                                                                            FILED
                                NOT FOR PUBLICATION                          DEC 20 2011

                                                                         MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



THEA MCKAY PETERS,                                  No. 09-17868

              Plaintiff-Appellant,                  D.C. No. 1:08-CV-00321-AWI-
                                                    SMS
  vs.

J.P. RICHWINE, Officer, as an Individual            MEMORANDUM *
and in his Official Capacities,

              Defendant-Appellee.


                      Appeal from the United States District Court
                           for the Eastern District of California
                     Anthony W. Ishii, Chief District Judge, Presiding

                         Argued and Submitted September 2, 2011
                                San Francisco, California

Before: FISHER and RAWLINSON, Circuit Judges, and MILLS, District Judge.**

        Following an arrest for driving while intoxicated and the subsequent dismissal

of charges, Thea McKay Peters asserted claims of false arrest and excessive force



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
against Officer J.P. Richwine under 42 U.S.C. § 1983 for violations of the Fourth and

Fourteenth Amendment. The district court granted summary judgment in favor of

Richwine, determining that he had probable cause to arrest Peters for disorderly

conduct. We affirm.

      We review the district court’s grant of summary judgment de novo, drawing all

reasonable inferences in favor of Peters, the non-movant. See Zeinali v. Raytheon Co.,

636 F.3d 544, 547 (9th Cir. 2011). Summary judgment is appropriate if the moving

party establishes “that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a).

      In California, a person is subject to arrest for disorderly conduct if, among other

ways, that person:

      is found in any public place under the influence of intoxicating liquor,
      any drug, controlled substance, toluene, or any combination of any
      intoxicating liquor, drug, controlled substance, or toluene, in a condition
      that he or she is unable to exercise care for his or her own safety or the
      safety of others, or by reason of his or her being under the influence of
      intoxicating liquor, any drug, controlled substance . . . interferes with or
      obstructs or prevents the free use of any street, sidewalk, or other public
      way.

Cal. Pen. Code § 647(f). “A public place has been defined to be a place where the

public has a right to go and to be, and includes public streets, roads, highways, and

sidewalks.” People v. Belanger, 243 Cal. App.2d 654, 657 (1966) (citation omitted).

In Belanger, the defendant was “stretched out and apparently asleep in the front seat

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of his automobile which was lawfully parked with the ignition off along the curb.”

Id. at 656. The officers determined the individual was intoxicated. See id. The court

concluded that defendant violated Penal Code § 647(f). See id. at 655, 662; see also

Mardis v. Superior Court, 218 Cal. App.2d 70, 74-75 (1963) (found that defendant

who had been sleeping in his car and was intoxicated was subject to arrest for

violation of § 647(f)). More recently, the California Supreme Court observed that

“sitting in an automobile while intoxicated does not, as a matter of law, prevent one

from being arrested for intoxication in a public place.” People v. Cruz, 44 Cal.4th

636, 674 (2008) (citation omitted). “Nor does being found asleep in a vehicle prevent

an arrest for public intoxication under section 647(f).” Id.

      Based on his own observations and investigation, Richwine had reason to

believe that Peters was intoxicated in a public place. Therefore, the district court

correctly concluded that Richwine had probable cause to arrest Peters for a violation

of California Penal Code § 647(f).

      Peters contends that the district court erred by requesting additional briefing on

§ 647(f) and should have instead denied Richwine’s motion for summary judgment

after determining that Richwine lacked probable cause to arrest her for DUI, in

violation of California Vehicle Code § 40300.5. In fact, a court may grant summary

judgment even without a motion, as long as notice and an opportunity to respond are



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provided. See Fed. R. Civ. P. 56(f)(1). Moreover, courts may enter summary

judgment on grounds not raised by a party. See Fed. R. Civ. P. 56(f)(2). Therefore,

Peters’s contention that the district court erred in ordering supplemental briefing and

on entering summary judgment on grounds which were not initially raised is without

merit.

         Peters also alleges that Richwine used excessive force during the arrest. A

plaintiff must do more than simply rely on conclusory allegations in order to defeat

summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,

922 (9th Cir. 2001). She claims that Richwine placed handcuffs on her by twisting

her right arm enough to cause pain to her shoulder. Peters further asserts she fell to

the ground and injured her knee when she was pulled out of the police vehicle. Peters

provides only these general allegations of injury. Additionally, Peters did not dispute

that Richwine took her to a hospital but she refused to be examined or treated.

Therefore, summary judgment was properly entered in favor of Richwine on Peters’s

excessive force claims.

         AFFIRMED.




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