                                                                           FILED
                             NOT FOR PUBLICATION                            SEP 20 2012

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




                             FOR THE NINTH CIRCUIT



FRANCIS T. FAHY,                                 No. 11-17276

               Plaintiff - Appellant,            D.C. No. 3:09-cv-01420-MMC

  v.
                                                 MEMORANDUM *
ORPHEOS TARBOX; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Maxine M. Chesney, District Judge, Presiding

                           Submitted September 10, 2012 **

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

       Francis T. Fahy appeals pro se from the district court’s summary judgment

in his action under 42 U.S.C. § 1983 alleging constitutional violations arising out

of his arrest and confinement following a car accident. We have jurisdiction under




          *
             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).
28 U.S.C. § 1291. We review de novo. Arpin v. Santa Clara Valley Transp.

Agency, 261 F.3d 912, 919 (9th Cir. 2001). We may affirm on any basis supported

by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th

Cir. 2008). We affirm.

      The district court properly granted summary judgment on Fahy’s unlawful

and false arrest claims because Fahy failed to raise a triable dispute as to whether,

at the time of the arrest, the officers lacked probable cause to believe that Fahy had

violated California Vehicle Code § 20002(a). See Michigan v. DeFillippo, 443

U.S. 31, 36 (1979) (validity of arrest does not depend on whether suspect actually

committed a crime); Rodis v. City & County of San Francisco, 558 F.3d 964, 969

(9th Cir. 2009) (there is probable cause to arrest if officers know of “reasonably

trustworthy information sufficient to lead a person of reasonable caution to believe

that an offense has been . . . committed by the person being arrested” (citation and

internal quotation marks omitted)).

      The district court properly granted summary judgment on Fahy’s excessive

force claims because Fahy failed to raise a triable dispute as to whether the

officers’ actions were objectively unreasonable under the circumstances. See

Graham v. Connor, 490 U.S. 386, 396 (1989) (an officer is allowed to use

reasonable force during an arrest); Arpin, 261 F.3d at 922 (summary judgment


                                           2                                    11-17276
proper on excessive force claim arising from application of handcuffs where

plaintiff did “not provide any medical records to support her claim that she

suffered injury as a result of being handcuffed”).

      The district court properly granted summary judgment on Fahy’s strip search

claims because Fahy failed to raise a triable dispute as to whether the search was

inconsistent with the process approved by this court in Bull v. City & County of

San Francisco, 595 F.3d 964, 966-67, 971, 982 (9th Cir. 2010) (en banc).

      Summary judgment was proper on Fahy’s deliberate indifference to serious

medical needs claims because Fahy failed to raise a triable dispute as to whether

the denial or delay in treatment of his eye was harmful or led to further injury. See

Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (prisoner alleging delay of

medical treatment evinces deliberate indifference must show delay led to further

injury); Shapely v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.

1985) (inmate does not have a “claim for deliberate indifference unless the denial

was harmful”).

      The district court properly granted summary judgment on Fahy’s malicious

prosecution claims because Fahy failed to raise a triable dispute as to whether

criminal prosecution of Fahy was initiated. See Wallace v. Kato, 549 U.S. 384,

389-90 (2007); Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th Cir. 1987)


                                          3                                    11-17276
(the elements of a malicious prosecution claim under § 1983 include the initiation

of criminal prosecution).

       The district court properly granted summary judgment on Fahy’s claims

arising out of his placements in what he alleges were “overcrowded” and “cold”

cells because Fahy failed to raise a triable dispute as to whether his placement in

these cells constituted “‘deliberate indifference’ to a substantial risk of serious

harm.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998); see also Rhodes v.

Chapman, 452 U.S. 337, 348 (1981) (allegations of overcrowding, alone, are

insufficient to state a claim); Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir.

2010) (per curiam) (constitution requires adequate heating, but not necessarily a

“comfortable” temperature).

       The district court properly granted summary judgment on Fahy’s conspiracy

and municipal liability claims because Fahy failed to raise a triable dispute as to

whether his constitutional rights were violated. See 42 U.S.C. § 1985; Scott v.

Henrich, 39 F.3d 912, 916 (9th Cir. 1994) (“While the liability of municipalities

doesn’t turn on the liability of individual officers, it is contingent on a violation of

constitutional rights.”).

       The district court did not abuse its discretion in declining to exercise

supplemental jurisdiction over Fahy’s state law claims. See 28 U.S.C.


                                            4                                     11-17276
§ 1367(c)(3); Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1187 (9th Cir. 2001).

      Fahy’s contentions of judicial bias and incompetence are unpersuasive. See

Liteky v. United States, 510 U.S. 540, 555 (1994) (“judicial rulings alone almost

never constitute a valid basis for a bias or partiality motion”).

      Fahy’s contentions regarding discovery are also unpersuasive. See Fed. R.

Civ. P. 56(d)(2); cf. Barona Grp. of the Capitan Grande Band of Mission Indians

v. Am. Mgmt. & Amusement, Inc., 840 F.2d 1394, 1400 (9th Cir. 1988) (reference

to a need for discovery in memoranda and declarations insufficient to satisfy

requirements for Rule 56 motion for additional discovery).

      AFFIRMED.




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