                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 08 2010

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

EDWARD ELLINGTON,                                No. 08-36066

             Plaintiff - Appellant,              D.C. No. 2:07-cv-00047-SEH

  v.
                                                 MEMORANDUM *
JAMES CASHELL, individually and as
the Sheriff and Agent of Gallatin County;
TRAVIS SWANDAL, individually and as
a Deputy Sheriff, Detective and Agent of
Gallatin County; GALLATIN COUNTY, a
political subdivision of the State of
Montana; STATE OF MONTANA; JOHN
DOES, I - X,

             Defendants - Appellees.


                   Appeal from the United States District Court
                           for the District of Montana
                    Sam E. Haddon, District Judge, Presiding

                           Submitted February 1, 2010**
                               Seattle, Washington

Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiff Edward Ellington appeals the district court’s orders granting

summary judgment to the Gallatin County Defendants and granting the State of

Montana’s Rule 12(b)(6) motion to dismiss. We affirm.

      Officer Swandal and the Gallatin County Defendants were not collaterally

estopped from relitigating the issue of probable cause. They were not in sufficient

privity with the State of Montana to provide them a “full and fair opportunity to

litigate” the issue of probable cause in the criminal prosecution of Ellington. See

Baltrusch v. Baltrusch, 2006 MT 51 ¶18, 130 P.3d 1267, 1274 (Mont. 2006).

      Officer Swandal is entitled to a qualified immunity defense. The relevant

inquiry is whether “a reasonable officer could have believed that probable cause

existed [for the] arrest.” Hunter v. Bryant, 502 U.S. 224, 228 (1991). “Even law

enforcement officials who ‘reasonably but mistakenly conclude that probable cause

is present’ are entitled to immunity.” Id. at 227 (quoting Anderson v. Creighton,

483 U.S. 635, 641 (1987)).

       Officer Swandal was in the process of serving a warrant on Stacy

Wizenburg’s vehicle based on suspicion that she was engaged in drug distribution.

It is undisputed that Ellington was speaking with the occupants of the vehicle. The

casino parking lot where Ellington and the car were located was a well known place

of drug activity. As the officers approached the car, Ellington moved from the


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driver’s side window around the front of the car. Even taking the evidence in the

light most favorable to Ellington, his movement away from the driver’s side

window around the front of the car could have reasonably been seen as evasive.

      Ellington has waived appellate review of the district court’s October 27, 2008

order granting summary judgment for the remaining Gallatin County Defendants

and granting the State of Montana’s Rule 12(b)(6) motion to dismiss. We “review

only issues which are argued specifically and distinctly in a party's opening brief.”

Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994). In his briefing to this court,

Ellington discusses only the order dismissing Officer Swandal.

      AFFIRMED.




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