                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 9 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JAMES ELLIS JOHNSON,                            No.    16-16736

                Plaintiff-Appellant,            D.C. No. 3:13-cv-02405-JD

 v.
                                                MEMORANDUM*
UNITED STATES OF AMERICA and
CITY AND COUNTY OF SAN
FRANCISCO,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                    James Donato, District Judge, Presiding

                             Submitted May 7, 2018**
                             San Francisco, California

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

      James Johnson appeals pro se the district court's judgment, following a two-

day bench trial, of his action raising claims under the Federal Tort Claims Act

(“FTCA”), other statutes, and the common law against the United States and the


      *
             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).
City and County of San Francisco (“San Francisco”). Johnson raises a number of

issues and we will address each in turn. We have jurisdiction under 28 U.S.C. §

1291, and we affirm.

         1. The district court did not err in finding Johnson’s allegations do not

support municipal liability against San Francisco under 42 U.S.C. § 1983. Johnson

fails to allege “a government’s policy or custom” that caused his injury. Monell v.

Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978).

         2. The district court properly dismissed Johnson’s claim for Intentional

Infliction of Emotional Distress (“IIED”) and battery against San Francisco. To

state a claim for battery Johnson needed to allege: “(1) defendant touched plaintiff

or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2)

plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by

defendant’s conduct; and (4) a reasonable person in the plaintiff’s position would

have been offended by the touching.” So v. Shin, 212 Cal. App. 4th 652, 668

(2013) (citations omitted). Johnson does not allege that any of the unnamed

sheriff’s deputies intended to harm or offend him. Therefore, his battery claim

fails.

         Similarly, Johnson cannot state a claim for IIED. Johnson alleges the

officers handcuffing him during an arrest, failure to remove the handcuffs while

waiting to be booked, and the failure to intervene amounts to “extreme and


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outrageous conduct.” Id. at 671. These routine actions by officers conducting an

arrest and booking are not conduct that is “so extreme as to exceed all bounds of

decency in a civilized community.” Id. For this reason, Johnson’s IIED claim

fails.

         3. The district court properly found Johnson could not state a claim for false

arrest. The officers had “reasonable cause to believe the arrest was lawful”

because of Johnson’s behavior at the VA. Cal. Pen. Code § 847(b)(1). As Johnson

does not allege any facts to contradict the officer’s good faith belief, the district

court correctly dismissed his false arrest claim.

         4. The district court properly found there was no private right of action

under California Penal Code §§ 849, 142, 145, 147, 836, 840, and 4006. Johnson’s

causes of action “fail to allege a mandatory duty that may serve as a predicate for

liability.” Haggis v. City of Los Angeles, 22 Cal.4th 490, 495 (2000).

         5. The district court did not abuse its discretion in re-assigning the case

from Judge Chen to Judge Donato upon his appointment to the federal bench

pursuant to Civil Local Rule 3-3. See United States v. Gray, 876 F.2d 1411, 1414

(9th Cir. 1989) (“[W]e give district courts broad discretion in interpreting,

applying, and determining the requirements of their own local rules and general

orders.”) (citation omitted).

         In addition, the district court properly rejected Johnson’s request for recusal.


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There was no “legitimate reason” for Judge Donato to recuse himself. United

States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008).

      6. The district court properly addressed Johnson’s claims for malicious

prosecution, excessive force, failure to intervene, and violation of the California

Penal Code against the United States. The district court correctly held Johnson

could not state a claim for malicious prosecution because he could not show that

the United States had commenced a legal proceeding against him. Soukup v. Law

Offices of Herbets Hafif, 39 Cal.4th 260, 291–92 (2006).

      Johnson’s allegations of excessive force and failure to intervene cannot

overcome the sovereign immunity bar to state a Fourth Amendment claim against

the United States. Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir. 1985).

      As with his California Penal Code allegations against San Francisco,

Johnson’s Penal Code claims against the United States fail because he has not

alleged any basis for a private right of action. Haggis, 22 Cal.4th at 495.

      7. The district court did not abuse its discretion in any of its various rulings.

See United States v. Hoffman, 794 F.2d 1429, 1431 (9th Cir. 1986). Johnson

complains that the district court improperly: (1) relied on the testimony of

Johnson’s VA doctor and two arresting officers in determining why Johnson was

arrested; (2) denied his request for the name of the front desk employee who called

the police; (3) denied Johnson access to two key recorded phone calls; (4) denied


                                          4
Johnson discovery as to the names of all the doctors and veterans who had

appointments in the VA at the time of his arrest; and (5) denied his request to take

photographs of himself in the VA holding room handcuffed. We find no abuse of

discretion in any of these rulings.

      8. Johnson, despite his arguments to the contrary, was not entitled to a jury

trial on his FTCA claims. The statute explicitly prohibits a jury trial: “[A]ny

action against the United States . . . shall be tried by a court without a jury.” 28

U.S.C. § 2402.

      9. The district court did not err in dismissing Johnson’s IIED claim against

the United States. The conduct Johnson alleges is not “so extreme as to exceed all

bounds of that usually tolerated in a civilized community.” Tekle v. United States,

511 F.3d 839, 855–56 (9th Cir. 2007) (internal quotation marks and citation

omitted).

      10. Judge Donato did not abuse his discretion by “controlling the conduct of

trial.” Ward v. Westland Plastics, Inc., 651 F.2d 1266, 1271 (9th Cir. 1980). The

district judge acted in a “detached, fair, and impartial” manner as he addressed the

challenges of a pro se plaintiff and aided Johnson in the presentation of his trial.

Id. Johnson’s arguments about Judge Donato’s conduct lack merit.

      11. Further Judge Donato did not abuse his discretion by permitting cross-

examination of Johnson’s expert regarding Johnson’s prior shoulder injury. “The


                                           5
scope and extent of cross-examination rests in the sound discretion of the trial

court, and his action in that regard will not be reviewed unless there is an abuse of

that discretion.” United States v. Johnson, 285 F.2d 35, 40 (9th Cir. 1960)

(citations omitted). We see no abuse of discretion in the trial court’s decision to

permit the defendant to cross-examine Dr. Ashley.

      12. The district court properly excluded evidence of the Order of Behavior

Restriction because it was not a “fact . . . of consequence in determining the

action.” Fed. R. Evid. 401(b).

      13. Under all the circumstances, including how heavily litigated the case

had been over the prior three years and that the Magistrate Judge had worked

diligently to get the case to trial, there was no abuse of discretion in denying

Johnson’s motion for a ten-day continuance. See United States v. Flynt, 756 F.2d

1352, 1358–59 (9th Cir. 1985).

      14. The Clerk and the district court correctly awarded the permissible costs

to Johnson under Federal Rule of Civil Procedure 54(d)(1), 28 U.S.C. § 1920, and

the local rules. There is no basis for Johnson’s argument to the contrary.

      15. Damages awards are reviewed for clear error. Jarvis v. K2 Inc., 486

F.3d 526, 529 (9th Cir. 2007). The award was based on reasonable estimates of

loss and thus was not clearly erroneous.

      16. Johnson provides no evidence or case law to support his claim that there


                                           6
was illegal contact between the court and the Assistant U.S. Attorney. We treat

these unargued claims as abandoned. Bhan v. NME Hospitals, Inc., 929 F.2d 1404,

1414 (9th Cir. 1991); see Fed. R. App. P. 28(a)(8)(A).

      AFFIRMED.1




1
 Johnson’s Request for Clarification of Appeal, Motion to File an Informal Late
Amended Reply Brief, and Request to Transfer Exhibits and Add a New Exhibit
are DENIED.

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