                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 24 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STEVEN CRAIN,                                   No.    17-15116

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-00406-JAD-PAL
 v.

STATE OF NEVADA and MICHAEL                     MEMORANDUM*
VANDYKE, Parole Officer,

                Defendants-Appellees.

                   Appeal from the United States District Court
                             for the District of Nevada
                   Jennifer A. Dorsey, District Judge, Presiding

                             Submitted May 15, 2018**
                             San Francisco, California

Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS,*** District
Judge.

      Crain appeals from the dismissal of his section 1983 claims for unlawful



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Deborah A. Batts, United States District Judge for the
Southern District of New York, sitting by designation.
arrest and malicious prosecution in violation of his Fourth Amendment rights, and

the dismissal of his Nevada claim for malicious prosecution. Crain has waived any

challenge to the dismissal of his Nevada claims for false imprisonment and

intentional infliction of emotional distress by failing to brief the issues on appeal.

United States v. Murillo-Alvarado, 876 F.3d 1022, 1026 n.2 (9th Cir. 2017).

   1. The district court properly dismissed Crain’s section 1983 claim for

unlawful arrest because documents in the record contradict his allegation that

Officer VanDyke made a deliberate falsehood or omission in obtaining the arrest

warrant. See Chism v. Washington State, 661 F.3d 380, 386 (9th Cir. 2011). The

district court properly took judicial notice of the documents because they included

both public records and documents necessarily relied on by the complaint. See

Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); United States v. Ritchie, 342

F.3d 903, 908 (9th Cir. 2003). Crain does not dispute the contents or authenticity

of the documents. See Skilstaf v. CVS Caremark, 669 F.3d 1005, 1016 n.9 (9th Cir.

2012). In addition, Crain has waived any challenge to the taking of judicial notice

by failing to brief the issue on appeal. Murillo-Alvarado, 876 F.3d at 1026 n.2.

   2. The district court properly dismissed Crain’s section 1983 and Nevada

claims for malicious prosecution. Crain has failed to rebut the presumption that

the prosecutor exercised independent judgment because, as discussed above, he has

not shown that Officer VanDyke presented the prosecutor with information known


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to be false. See Blankenhorn v. City of Orange, 485 F.3d 463, 482 (9th Cir. 2007).

Nor has he shown that Officer VanDyke pressured the prosecutor or caused the

prosecutor to act contrary to the prosecutor’s independent judgment. Id.; M & R

Inv. Co. v. Mandarino, 748 P.2d 488, 494 (Nev. 1987).

   3. The district court did not abuse its discretion in denying Crain a third

opportunity to amend his complaint. Garmon v. County of Los Angeles, 828 F.3d

837, 842 (9th Cir. 2016). Because the judicially noticed documents show Officer

VanDyke did not violate Crain’s constitutional rights in filing the challenged

affidavit, any amendment would be futile. Id.

AFFIRMED.




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