                                                                               FILED
                            NOT FOR PUBLICATION                                JUN 04 2013

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




                            FOR THE NINTH CIRCUIT



ROBERT FOREST,                                    No. 11-16985

              Plaintiff - Appellant,              D.C. No. 1:09-cv-05970-NJV

  v.
                                                  MEMORANDUM *
CITY OF FORT BRAGG; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Nandor J. Vadas, Magistrate Judge, Presiding

                        Argued and Submitted April 18, 2013
                             San Francisco, California

Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM, District
Judge.**

       Robert Forest appeals the dismissal of his federal civil rights action arising

from his arrest for felony assault charges after he pointed a gun at another




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
individual in Fort Bragg, California, on November 8, 2006. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      The district court did not err in dismissing Forest’s 42 U.S.C. § 1983 claims

for false imprisonment and malicious prosecution and his California false

imprisonment claim. Forest concedes that the existence of probable cause is a

complete defense to these claims. See Cabrera v. City of Huntington Park, 159

F.3d 374, 380 (9th Cir. 1998) (per curiam); Freeman v. City of Santa Ana, 68 F.3d

1180, 1189 (9th Cir. 1995). Forest argues that the district court erred by

concluding that the existence of probable cause was fully litigated in his state court

preliminary hearing and factual innocence proceedings. Because we agree that the

existence of probable cause for his arrest was fully litigated in state court, we

affirm. See Lucido v. Superior Court, 795 P.2d 1223, 1225 (Cal. 1990);

McCutchen v. City of Montclair, 87 Cal. Rptr. 2d 95, 99-101 (Ct. App. 1999). This

case is distinguishable from this court’s recent decision in Wige v. City of Los

Angeles where plaintiff’s allegation of fabricated evidence was not heard in his

state court proceedings and, if true, would have undermined the existence of

probable cause. No. 10-56515, 2013 WL 1606916, at *3 (9th Cir. April 16, 2013).

In this case, testimony from an unbiased witness and the victim of the alleged




                                           2
assault established probable cause even if the victim had an undisclosed history of

mental illness or violence.

      The district court also correctly dismissed Forest’s claim that defendants

suppressed material exculpatory evidence in violation of Brady v. Maryland, 373

U.S. 83 (1963). We decline to reach the question left open in Smith v. Almada, 640

F.3d 931, 941 (9th Cir. 2011) (Gwin, J., concurring), asking whether Brady claims

can be brought by a defendant who was not convicted. Even assuming that Brady

applies and that the government failed to disclose information about the victim’s

mental health history, Forest did not suffer prejudice in the probable cause

determination in light of the eyewitness testimony of the November 8, 2006

incident.

      AFFIRMED.




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