                                                                             FILED
                            NOT FOR PUBLICATION                               JUL 05 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LARRY IKEI,                                       No. 10-15405

              Plaintiff - Appellant,              D.C. No. 1:08-cv-00395-DAE-
                                                  BMK
  v.

THE CITY AND COUNTY OF                            MEMORANDUM *
HONOLULU; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Hawaii
                     David A. Ezra, District Judge, Presiding

                             Submitted June 15, 2011 **
                                Honolulu, Hawaii

Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.

       Larry Ikei appeals the district court’s grant of summary judgment in favor of

the Honolulu police defendants in this § 1983 action. The district court concluded

that the officers were entitled to qualified immunity because Ikei failed to raise a

        *
             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).
genuine issue of material fact as to whether probable cause supported Ikei’s arrest.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Ikei cannot avoid summary judgment because he has failed to present

“affirmative evidence from which a jury could find in his favor.” FTC v.

Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 257 (1986)). The defendants’ evidence established that Ikei

moved toward a store clerk while pointing his finger and yelling. This behavior

constituted probable cause to arrest Ikei on suspicion of harassment in violation of

Hawaii Revised Statutes § 711-1106(1)(b), which criminalizes “[i]nsults, taunts,

or challenges [to] another person . . . that would cause the other person to

reasonably believe that the actor intends to cause bodily injury to the recipient.”

      “[O]ther than statements in the appellate brief, [Ikei] has never offered any

evidence to support [his] factual assertions” denying that he engaged in such

conduct. FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir.

1997). That he does not remember speaking with the clerk inside of the store does

not contradict the defendants’ version of events. See Stefanchik, 559 F.3d at 929

(“A non-movant’s bald assertions or a mere scintilla of evidence in his favor are

both insufficient to withstand summary judgment.”). Ikei erroneously relies on

SEC v. Phan, 500 F.3d 895 (9th Cir. 2007), and United States v. 1 Parcel of Real


                                           2
Property, Lot 4, Block 5 of Eaton Acres, 904 F.2d 487 (9th Cir. 1990). The district

court did not grant summary judgment to the defendants based on the conclusion

that Ikei’s affidavit was self-serving. Rather, the district court correctly concluded

that, unlike the appellants in Phan and 1 Parcel, Ikei failed to affirmatively

contradict the evidence as to probable cause offered by the defendants. Cf. Phan,

500 F.3d at 910; 1 Parcel, 904 F.2d at 492 n.3.

      Therefore, Ikei failed to create a genuine dispute of material fact as to

whether the officers had “knowledge or reasonably trustworthy information

sufficient to lead a person of reasonable caution to believe that an offense ha[d]

been or [wa]s being committed by the person being arrested.” Rodis v. City,

County of San Francisco, 558 F.3d 964, 969 (9th Cir. 2009) (quoting United States

v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)). Accordingly, the district court

properly determined that the officers are entitled to qualified immunity because

their conduct did “not violate clearly established [Fourth Amendment] rights of

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

223, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)).

      Nor did the district court err by dismissing Ikei’s § 1983 claim based on an

alleged First Amendment violation. Ikei claimed that the defendants violated his


                                           3
First Amendment rights by arresting him without probable cause in retaliation for

his threatening to file a complaint. The district court correctly held that this claim

fails because Ikei did not present a genuine issue of material fact questioning the

basis for the officers’ probable cause to arrest.

      The district court also properly granted summary judgment on Ikei’s

Fourteenth Amendment claim, as the Fourteenth Amendment does not govern “the

constitutionality of the duration of or legal justification for a prolonged

warrantless, post-arrest, pre-arraignment custody.” Pierce v. Multnomah County,

76 F.3d 1032, 1043 (9th Cir. 1996); cf Redman v. County of San Diego, 942 F.2d

1435, 1440 (9th Cir. 1991) (noting the applicability of the Fourteenth Amendment

Due Process Clause in the separate context of the rights of pretrial detainees).

      AFFIRMED.




                                            4
