                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             MAR 09 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

RANDALL FONTANA,                                 No. 14-35784

              Plaintiff-Appellant,               D.C. No. 2:13-cv-00245-JCC

 v.
                                                 MEMORANDUM*
CITY OF AUBURN et al.,

              Defendants,
 and

SGT. JAMES NORDENGER,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                            Submitted March 7, 2017**
                               Seattle, Washington

Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.




       *
        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).
      Plaintiff Randall Fontana timely appeals the district court’s grant of

summary judgment in favor of Defendant Sergeant James Nordenger on Plaintiff’s

42 U.S.C. § 1983 claims of unlawful arrest and malicious prosecution. Reviewing

de novo the district court’s ruling that Nordenger is entitled to qualified immunity

and viewing the facts in the light most favorable to Plaintiff, Reza v. Pearce, 806

F.3d 497, 502 (9th Cir. 2015), we affirm.1

      1. The district court correctly held that Nordenger is entitled to qualified

immunity on the unlawful arrest claim. Given the facts known to

Nordenger—including the threatening nature of Plaintiff’s statements, their

proximity in time to the Lakewood killings, the reliability of the named citizen

informant who was interviewed by officers, and the reports of Plaintiff’s post-

statement conduct—it was "reasonably arguable that there was probable cause for

arrest." Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011) (per

curiam) (emphasis omitted).




      1
        Because the district court correctly ruled on qualified immunity, we need
not and do not address the court’s alternative ground for granting summary
judgment—issue preclusion. Also, because Plaintiff’s opening brief challenges the
summary judgment only as to Nordenger, we do not address the summary
judgment in favor of the other Defendants. See Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999) (holding that arguments not raised in a party’s opening brief
generally are waived).
                                          2
      2. The district court correctly held that Nordenger is entitled to qualified

immunity on the malicious prosecution claim. The evidence does not disclose

"wrongful motives or reckless disregard of" Plaintiff’s rights. State v. Chenoweth,

158 P.3d 595, 602 (Wash. 2007). Plaintiff has not overcome the ordinary

presumption that the decision to file criminal charges "result[ed] from an

independent determination on the part of the prosecutor, [which] precludes liability

for those who participated in the investigation or filed a report that resulted in the

initiation of proceedings." Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th

Cir. 2004).

      AFFIRMED.




                                           3
