                                                                             FILED
                                                                              OCT 12 2010
                               NOT FOR PUBLICATION                        MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

                        UNITED STATES COURT OF APPEALS

                               FOR THE NINTH CIRCUIT

    MARK BURDETT,                                   No. 08-15159

                 Plaintiff - Appellant,             MEMORANDUM *

      v.

    RAMON REYNOSO, et. al.,

                 Defendants - Appellees.


                       Appeal from the United States District Court
                          for the Northern District of California
                       Joseph S. Spero, Magistrate Judge, Presiding

                               Submitted October 4, 2010 **
                                San Francisco, California

Before: FERNANDEZ and SILVERMAN, Circuit Judges, and DUFFY, *** District
Judge.

           Appellant Mark Burdett appeals from the district court’s order entering



*
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
     The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
      The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
summary judgment against him in his 42 U.S.C. § 1983 action. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      We review a grant of summary judgment de novo. Buono v. Norton, 371

F.3d 543, 545 (9th Cir. 2004). We review a denial of leave to amend a complaint

and a denial of attorney’s fees for abuse of discretion. Griggs v. Pace Am. Group,

Inc., 170 F.3d 877, 879 (9th Cir. 1999); Corder v. Brown, 25 F.3d 833, 836 (9th

Cir. 1994).

I.    Federal False Arrest Claim

      There are factual disputes as to whether Officers Reynoso, Smalley, Brown,

Shea, Cesari, Hamilton, and Lazar (the “Arresting Officers”) had probable cause to

arrest Burdett. It is undisputed, however, that Burdett was neither on the sidewalk

nor in a crosswalk when he entered the ‘parking turnout’ on Market Street.

Viewing the evidence in the light most favorable to Burdett, the Arresting Officers

had probable cause, or at least a reasonable belief that probable cause existed, to

arrest Burdett for jaywalking under Cal. Veh. Code. § 21955. See Estate of Ford v.

Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002). Accordingly, the district

court properly found that the Arresting Officers were entitled to qualified

immunity on the federal false arrest claim. See Saucier v. Katz, 533 U.S. 194,

205–07 (2001); Edgerly v. City and Cty. of San Francisco, 599 F.3d 946, 954 (9th



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Cir. 2010) (citing Devenpeck v. Alford, 543 U.S. 146, 153–55 (2004)) (probable

cause supports an arrest so long as the arresting officers had probable cause to

arrest the suspect for any criminal offense, regardless of their stated reason for the

arrest.).

II.    State False Arrest Claim

       It is well established that “governmental immunity under California law is

governed by statute.” Ogborn v. City of Lancaster, 101 Cal. App. 4th 448, 460

(Cal. Ct. App. 2002). As stated above, the Arresting Officers could have

reasonably believed that there was probable cause to arrest Burdett. See Cal. Penal

Code § 836.5 (providing immunity if the officer reasonably believed the person to

be arrested violated a statute or ordinances in his or her presence). Accordingly,

the district court properly found that the Arresting Officers were entitled to

statutory immunity on the state false arrest claim.

III.   Federal Excessive Force Claim

       Burdett was not seized in any way when Officer Bautista swung his baton at

Burdett without touching him. See Robins v. Harum, 773 F.2d 1004, 1009 (9th

Cir. 1985) (holding that a seizure occurs “whenever [an officer] restrains the

individual’s freedom to walk away”). Therefore, the district court properly granted

summary judgment of Burdett’s excessive force claim in favor of Officer Bautista.



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IV.   Request for Leave to Amend

      Burdett requested leave to amend only if the court dismissed his federal

excessive force claim as to Officer Bautista. See Schlacter-Jones v. Gen. Tel., 936

F.2d 435, 443 (9th Cir. 1991) (a motion for leave to amend “is not a vehicle to

circumvent summary judgment”) (overturned on other grounds). Further, Burdett

has already filed three complaints, so he has had ample opportunity to address any

perceived deficiencies. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981,

1007 (9th Cir. 2009). And he failed to provide new facts to justify the amendment

or offer an explanation for the delay. See Nunes v. Ashcroft, 375 F.3d 805, 808

(9th Cir. 2004). Therefore, the district court did not abuse its discretion by denying

Burdett’s request to amend his second amended complaint.

V.    Motion for Attorney’s Fees

      We lack jurisdiction to review the district court’s order denying Burdett’s

motion for attorney’s fees. Burdett’s original notice of appeal was premature, and

he failed to file a second notice of appeal once the district court’s order was

rendered. See Whitaker v. Garcetti, 486 F.3d 572, 585 (9th Cir. 2007).

AFFIRMED.




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