                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 14 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


ROBERT SMITH,                                    No. 12-17661

              Plaintiff - Appellant,             D.C. No. 2:10-cv-02650-MEA

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

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Mark E. Aspey, Magistrate Judge, Presiding

                            Submitted October 9, 2014**
                                Phoenix, Arizona

Before: WALLACE, SILVERMAN, and M. SMITH, Circuit Judges.


       Robert Smith appeals from the district court’s summary judgment to the

appellees, individual police officers and the City of Payson, on Smith’s claims

under 42 U.S.C. § 1983 and Arizona law. Smith also appeals from the district

        *
             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).
                                         -2-
court’s denial of his Rule 60(b) motion for a new trial. We have jurisdiction under

28 U.S.C. § 1291. We review a summary judgment and summary judgment based

on qualified immunity de novo. Blankenhorn v. City of Orange, 485 F.3d 463, 470

(9th Cir. 2007). We review a district court’s decision on a Rule 60 motion for

abuse of discretion. Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5

F.3d 1255, 1262 (9th Cir. 1993). We affirm.

      I.     Timeliness of Notice of Appeal

      Smith’s post-judgment motions were timely under the Federal Rules of Civil

Procedure. See Fed. R. Civ. P. 59, 60. Those motions tolled the time to file a

Notice of Appeal under Federal Rule of Appellate Procedure 4(a)(4)(A)(v)-(vi).

Smith filed his Notice of Appeal within 30 days of the district court’s denial of his

post-judgment motions, which was a final order. Therefore, the Notice of Appeal

was timely filed, and we have jurisdiction over this appeal.

      II.    Claims Under 42 U.S.C. § 1983

      With respect to the district court’s summary judgment on the ground of

qualified immunity, Smith argues that genuine disputes of material fact regarding

the probable cause determination and Smith’s claimed justification defenses

required that the issue go to trial. However, the undisputed facts show that the

police had information (indeed, Smith admitted) that he lured a young man to his
                                         -3-
home, assaulted him, and confiscated his driver’s license. These undisputed facts

show that the police officers had probable cause to arrest Smith. Likewise, the

undisputed facts show that Smith’s actions were not in self-defense or otherwise

privileged. As the police officers had probable cause to make the arrest, they were

entitled to qualified immunity on Smith’s claims of false arrest and retaliatory

arrest under the first prong of the qualified immunity analysis. See Rosenbaum v.

Washoe Cnty., 663 F.3d 1071, 1075-76 (9th Cir. 2011).

      Finally, a § 1983 claim for malicious prosecution requires a plaintiff to show

lack of probable cause. Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir.

2004). Because, again, the police officers here did have probable cause, the district

court correctly granted summary judgment to them on Smith’s § 1983 malicious

prosecution claim.

      III.   Malicious Prosecution Under Arizona Law

      As with § 1983 malicious prosecution claims, lack of probable cause is an

essential element of malicious prosecution claims under Arizona state law.

Gonzales v. City of Phoenix, 52 P.3d 184, 187 (2002). Probable cause supported

Smith’s arrest and subsequent prosecution, so the district court properly granted

summary judgment to the police officers on this count. Smith v. Almada, 640 F.3d

931, 938 (9th Cir. 2011).
                                          -4-
      IV.    Municipal Liability

      Smith’s false arrest and retaliatory arrest claims against the City of Payson

are predicated on his claims that the individual police officers violated his rights.

However, because the police officers had probable cause to arrest Smith, there was

no constitutional violation; therefore, Smith’s claim that the police department

failed to properly train officers has no merit. Scott v. Henrich, 39 F.3d 912, 916

(9th Cir. 1994). Smith points to no unconstitutional policy or practice in place in

Payson that could lead to municipal liability. The district court properly granted

summary judgment on Smith’s claims against the city.

      V.     Motion for Relief From the Judgment

      Smith did not provide the district court with any reason cognizable under

Rule 60 to support his motion for relief from the judgment. Therefore, the district

court did not abuse its discretion in denying the motion.

      AFFIRMED.
