                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             FEB 07 2018
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
BRIAN EDWARD MALNES,                             No.   16-15059

              Plaintiff-Appellant,               D.C. No. 3:15-cv-08113-GMS

 v.
                                                 MEMORANDUM*
CITY OF FLAGSTAFF; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                     G. Murray Snow, District Judge, Presiding

                           Submitted February 5, 2018**
                             San Francisco, California

Before: D.W. NELSON, TASHIMA, and CHRISTEN, Circuit Judges.

      Brian Malnes (“Malnes”) appeals pro se the district court’s dismissal of his

civil rights and state law claims against various school, city, and law enforcement




      *
             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).
officials.1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part

and dismiss in part.

      1. The district court ruled on the Arizona Defendants’ Motion for Judgment

on the Pleadings after all the defendants in this action had filed an answer, and

hence, “[a]fter the pleadings [had] closed,” in compliance with Federal Rule of

Civil Procedure 12(c). Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005)

(emphasis removed) (citation omitted); see also Shame on You Prods., Inc. v.

Elizabeth Banks, 120 F. Supp. 3d 1123, 1142 (C.D. Cal. 2015) (citing id.) (holding

the court “[could not] grant defendants’ motion for judgment on the pleadings”

until all defendants had filed answers).

      2. Malnes’s claims for false arrest and malicious prosecution pursuant to 42

U.S.C. § 1983 fail because there was probable cause to arrest him for harassment

under Ariz. Rev. Stat. Section 13-2921. Fortson v. L.A. City Attorney’s Office, 852

F.3d 1190, 1194 (9th Cir. 2017) (citations omitted); see also Yousefian v. City of

      1
      This memorandum refers to the following parties as the “Arizona
Defendants”: City of Flagstaff, Michelle D’Andrea, Robert Brown, Kevin
Treadway, Bradley Battaglia, Todd Bishop, and Bill Burke.

      It refers to the following parties as the “Louisiana Defendants”: Christine
Devine, Larry Zerangue, Joey Sturm, Patricia Cottonham, Jennifer Vaught, Jordan
Kellman, Jo Davis-McElligatt, Aaron Martin, John Laudun, Shelley Ingram,
Claiborne Rice, James McDonald, Joseph Adriano, John Greene, Christine
Brasher, and Joseph Savoie.

                                           2
Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015) (citations omitted). “The

insufficiency of [his] allegations to support a [§] 1983 violation [further] precludes

a conspiracy claim [under § 1985] predicated [on] [those] same allegations.”

Cassettari v. Nev. Cty., Cal., 824 F.2d 735, 739 (9th Cir. 1987) (citation omitted).

      3. Malnes fails to state a claim for intentional infliction of emotional

distress because his arrest for harassment “[was] lawful,” and hence, could not

constitute the “extreme or outrageous” behavior required to establish the tort.

Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of Governors, 909 P.2d

486, 496 (Ariz. Ct. App. 1995); see also Joseph v. Markovitz, 551 P.2d 571,

575–76 (Ariz. Ct. App. 1976) (finding the “filing of [a] third-party complaint” that

was based on probable cause and subsequently dismissed “[did] not [come] within

the purview of extreme and outrageous conduct”).

      4. Malnes cannot claim defamation as to the police reports because they are

“[s]ubstantial[ly] tru[e].” Desert Palm Surgical Grp., P.L.C. v. Petta, 343 P.3d

438, 449 (Ariz. Ct. App. 2015) (citing Fendler v. Phx. Newspapers, Inc., 636 P.2d

1257, 1261–62 (Ariz. Ct. App. 1981)); see also Godbehere v. Phx. Newspaper,

Inc., 783 P.2d 781, 787 (Ariz. 1989) (citation omitted). He cannot claim invasion

of privacy because he does not allege the reports were “communicat[ed] . . . to the

public at large” and therefore published for purposes of this cause of action. Hart


                                           3
v. Seven Resorts, Inc., 947 P.2d 846, 854 (Ariz. Ct. App. 1997) (emphasis

removed) (citation and internal quotation marks omitted).

      5. The district court did not abuse its discretion in denying Malnes leave to

amend his claims. Permitting amendment here would have been “futil[e],” caused

“undue delay,” and “undu[ly] prejudice[d] . . . the opposing part[ies].” Moore v.

Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citations

omitted).

      6. Given we have “affirm[ed] the district court’s grant of [judgment on the

pleadings,] . . . a reversal of its denial of [Malnes’s request for a temporary

restraining order] would have no practical consequences.” Mount Graham Red

Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir. 1992). “Accordingly, we

dismiss [Malnes’s request] as moot.” Id.

      AFFIRMED IN PART AND DISMISSED IN PART.




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