                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               APR 1 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOHN HUNT,                                       No.   18-16838

              Plaintiff-Appellant,               D.C. No.
                                                 2:17-cv-01519-JCM-NJK
 v.

CITY OF BOULDER CITY; JOHN                       MEMORANDUM*
GLENN, individually and in his official
capacity as a Sergeant of the Boulder City
Police Department,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                            Submitted March 24, 2020**
                               Las Vegas, Nevada

Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

      Plaintiff-Appellant John Hunt appeals the district court’s grant of summary

judgment in his § 1983 action against the City of Boulder and Boulder City Police

      *
             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).
Department (BCPD) Officer John Glenn. Because the parties are familiar with the

facts, we will not recite them here except where necessary. We review the district

court’s grant of summary judgment de novo. See Animal Legal Def. Fund v. U.S.

FDA, 836 F.3d 987, 988 (9th Cir. 2016) (en banc) (per curiam). We affirm.

1.       Summary judgment was proper for the claims against Boulder City. To hold

a municipality liable for the constitutionally violative acts of an employee, a

plaintiff must demonstrate that the employee acted pursuant to a policy or custom

of the municipality. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

Hunt concedes that his Monell claim against the City should be dismissed, but

seeks instead to hold Boulder City liable under a theory of simple respondeat

superior. But “a municipality cannot be held liable under § 1983 on a respondeat

superior theory.” Id. at 691. Thus, Hunt’s claims against Boulder City cannot

stand.

2.       Summary judgment was proper for the Fourth Amendment excessive force

claim against Officer Glenn. Under the doctrine of qualified immunity, a

government official is immune “from liability for civil damages insofar as [his]

conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Pearson v. Callahan, 555 U.S.

223, 231 (2009) (internal quotation marks omitted). Hunt has not shown that


                                           2
Glenn violated a clearly established right either when he grabbed Hunt after Hunt

refused to get out of the road, or when he took Hunt to the ground after Hunt

resisted arrest. Hunt asserts that the Supreme Court’s decision in Tennessee v.

Garner establishes that right. But Garner concerned “the constitutionality of the

use of deadly force to prevent the escape of an apparently unarmed suspected

felon,” 471 U.S. 1, 3 (1985); its facts are too divergent from those in this case for it

to be instructive. Glenn is thus entitled to qualified immunity on this claim.

3.    Summary judgment was proper for the Fourth Amendment unlawful arrest

claim against Officer Glenn. A police officer may arrest a person without a

warrant if he has probable cause to believe that the person committed a crime in the

officer’s presence. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

Nevada law prohibits pedestrians “suddenly leav[ing] a curb or other place of

safety and walk[ing] or run[ning] into the path of a vehicle which is so close that it

is impossible for the driver to yield.” Nev. Rev. Stat. § 484B.283(1)(b). Glenn

witnessed Hunt walking back and forth across the crosswalk and observed cars

struggling to stop in time to yield to Hunt. And Hunt admits that at least one driver

failed to stop without intruding on the crosswalk. These facts amount to probable

cause for violating Nevada Revised Statutes § 484B.283(1)(b). Moreover, Hunt

concedes that he resisted Glenn’s efforts to move Hunt out of the road, and so


                                           3
Glenn had probable cause to arrest Hunt for resisting arrest. Thus, there was no

unlawful arrest.

4.    Summary judgment was proper on the First Amendment retaliatory arrest

claim against Officer Glenn. When there is probable cause for an arrest, a First

Amendment retaliation claim fails as a matter of law. Nieves v. Bartlett, 139 S. Ct.

1715, 1724 (2019). Because Glenn had probable cause to arrest Hunt, supra, the

First Amendment retaliation claim fails.

5.    Summary judgment was proper on the malicious prosecution claim against

Officer Glenn. Hunt has shown no evidence that Glenn was involved in the

decision to re-file charges against Hunt or to add additional charges On this

record, Glenn cannot be held liable for the decision to prosecute, even if it was

malicious. See generally Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th

Cir. 1995).

6.    Summary judgment was proper on the due process claims against Officer

Glenn. There is “a clearly established constitutional due process right not to be

subjected to criminal charges on the basis of false evidence that was deliberately

fabricated by the government.” Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th

Cir. 2001). Hunt challenges the validity of two pieces of evidence in this case: (1)

an allegedly falsified police report and (2) allegedly altered dash-cam footage.


                                           4
Hunt has presented no evidence that the police report was deliberately falsified,

and the dash-cam footage was likely not falsified at all. But even if this evidence

were deliberately falsified, Hunt was not charged “on the basis of” either the dash-

cam video or the police report. Thus, Glenn is thus entitled to qualified immunity

on this claim.

AFFIRMED.




                                          5
