                                                                              FILED
                            NOT FOR PUBLICATION                               MAY 06 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WALTER WILLIAM GAGE,                             No. 10-35345

               Plaintiff - Appellant,            D.C. No. 6:09-cv-06107-AA

  v.
                                                 MEMORANDUM*
CITY OF BAKER CITY, a municipal
corporation; MICHAEL REGAN,
MICHAEL HARRIS and BRIAN
HARVEY, in their individual capacities,
and as police officials for the City of
Baker City,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Ann L. Aiken, Chief District Judge, Presiding

                              Submitted May 4, 2011**
                                 Portland, Oregon

Before:        KOZINSKI, Chief Judge, BEA and IKUTA, Circuit Judges.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                                page 2
      Unrebutted evidence shows that Gage appeared to be intoxicated even before

he failed three field sobriety tests. He can’t demonstrate that the officer lacked

probable cause to arrest him. See United States v. Buckner, 179 F.3d 834, 837 (9th

Cir. 1999).


      AFFIRMED.
