                                                                          FILED
                           NOT FOR PUBLICATION
                                                                           AUG 18 2016
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

JERRY VIERRA,                                    No.   14-15650

              Plaintiff-Appellee,                D.C. No. 4:13-cv-00771-DCB

 v.
                                                 MEMORANDUM*
JAMES ALDO NUTI, JR., Cochise
County Deputy Sheriff in his official
capacity; AMANDA NUTI; CAROL
CAPAS; NICK CAPAS; ALISON
HADFIELD; SCOTT HADFIELD; NATE
TASCH; ERIN TASCH; SEAN REEVES
GIJANTO; HEATHER GIJANTO;
FOREST HAUSER; JOYCE HAUSER,

              Defendants-Appellants.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                             Submitted July 22, 2016**
                             San Francisco, California




         *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
           The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Before: GRABER and TALLMAN, Circuit Judges, and RAKOFF,*** Senior
District Judge.

       Defendants James Nuti, Amanda Nuti, Carol Capas, Nick Capas, Alison

Hadfield, Scott Hadfield, Nate Tasch, Erin Tasch, Sean Gijanto, Heather Gijanto,

Forest Hauser, and Joyce Hauser appeal the district court’s denial of their motion

to dismiss on the ground that they are entitled to qualified immunity. We affirm in

part, reverse in part, and remand.

       We review de novo a district court’s denial of a motion to dismiss on the

ground of immunity. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). We

accept the allegations in the complaint as true. Id. "[W]here the petitioner is pro

se, particularly in civil rights cases, [we] construe the pleadings liberally and . . .

afford the petitioner the benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338, 342

(9th Cir. 2010) (internal quotation marks omitted).

       In his second amended complaint, Plaintiff alleges that Defendant James

Nuti violated his rights through several actions, including: driving an SUV toward

Plaintiff in a threatening manner; initiating a meritless manhunt in search of

Plaintiff by falsely reporting that Plaintiff pointed a gun at him and, later, slightly

changing his story to falsely report that Plaintiff had pointed a gun at the ground;


        ***
         The Honorable Jed S. Rakoff, United States Senior District Judge for the
Southern District of New York, sitting by designation.
                                             2
attacking Plaintiff on Highway 82; arresting Plaintiff without probable cause;

pointing a gun at Plaintiff after he had been handcuffed and was lying on the floor;

threatening Plaintiff that he had to leave Cochise County after he got out of jail;

and, after Plaintiff was released from jail, submitting falsified reports to the

prosecutor’s office stating that Plaintiff had pointed a gun at the ground during

their initial altercation. Assuming, as we must, those allegations to be true, we

conclude that Nuti is not entitled to qualified immunity as to Plaintiff’s first, fifth,

and eighth claims.

      Because Plaintiff’s first claim alleges physically intrusive governmental

conduct, we review it under the "Fourth Amendment and its ‘reasonableness’

standard, rather than under a ‘substantive due process’ approach." Graham v.

Connor, 490 U.S. 386, 395 (1989). Here, Nuti allegedly used significant force

against Plaintiff though he allegedly knew that Plaintiff had committed only a

minor infraction—walking on a fog line. Using such force, assuming Plaintiff’s

allegations are true, was unreasonable by any measure, and the imbalance between

the infraction and the use of force was so obvious that a reasonable officer in

Nuti’s shoes would have known that it was excessive.

      Plaintiff’s fifth claim alleges that Nuti unlawfully arrested Plaintiff even

though he knew that Plaintiff had never pointed a gun at him or at the ground.


                                            3
Taking the facts alleged in the complaint to be true, Nuti is not entitled to qualified

immunity on this claim. See Dubner v. City of San Francisco, 266 F.3d 959, 964

(9th Cir. 2001) ("A claim for unlawful arrest is cognizable under § 1983 as a

violation of the Fourth Amendment, provided the arrest was without probable

cause or other justification."); cf. Awabdy v. City of Adelanto, 368 F.3d 1062,

1067 (9th Cir. 2004) ("Among the ways that a plaintiff can rebut a prima facie

finding of probable cause is by showing that the criminal prosecution was induced

by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct

undertaken in bad faith.").

       Plaintiff’s eighth claim alleges that Nuti unlawfully detained Plaintiff for

64.5 hours despite having fabricated all the evidence against Plaintiff. Taking the

facts alleged in the complaint to be true, Nuti is not entitled to qualified immunity

on this claim. See Lee v. City of Los Angeles, 250 F.3d 668, 684 (9th Cir. 2001)

(holding that, even though the plaintiff was incarcerated for only one day before

his extradition hearing, the complaint was sufficient to establish a due process

violation at the pleadings stage because it alleged, among other things, that the

defendants falsely arrested the plaintiff without probable cause and with deliberate

indifference to the plaintiff’s rights).




                                           4
       After careful consideration of all the remaining claims raised in Plaintiff’s

second amended complaint—and to the degree that any of Plaintiff’s claims apply

to any other Defendants—we hold that those Defendants are entitled to qualified

immunity. We reverse the district court’s decision relating to those remaining

federal claims and remand with instructions to dismiss all claims as to all

Defendants other than Nuti and to dismiss all claims as to Nuti, with the exception

of Plaintiff’s first, fifth, and eighth claims.1

       AFFIRMED in part; REVERSED in part and REMANDED with

instructions. The parties shall bear their own costs on appeal.




       1
         This instruction to dismiss, of course, does not apply to Plaintiff’s state-law
slander and defamation claim, which Defendants concede we do not have
jurisdiction to review. See Billington v. Smith, 292 F.3d 1177, 1191 (9th Cir.
2002) (holding that the court lacked jurisdiction over state-law tort claims on an
interlocutory appeal from a denial of qualified immunity).
                                              5
