                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 05 2010

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




                             FOR THE NINTH CIRCUIT



ANKHENATEN RA EL, Sui Juris,                     No. 08-56122

               Plaintiff - Appellant,            D.C. No. 5:05-cv-00174-DDP-RZ

  v.
                                                 MEMORANDUM *
MICHAEL MALONE CRAIN, I; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                           Submitted September 13, 2010 **


Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Ankhenaten Ra El appeals pro se from the district court’s summary

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

from two arrests. We have jurisdiction under 28 U.S.C. § 1291. We review de


          *
             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).
novo. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.

2001). We may affirm on any ground supported by the record. Venetian Casino

Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937, 941 (9th Cir.

2001). We affirm in part, vacate in part, and remand.

      The district court properly granted summary judgment on the blood

withdrawal claim because defendants had probable cause to believe that

Ankhenaten Ra El was under the influence of a controlled substance. See

Schmerber v. California, 384 U.S. 757, 768-71 (1966) (non-consensual blood draw

did not violate Fourth Amendment where probable cause and exigent

circumstances existed).

      The district court properly granted summary judgment on the false

imprisonment and false arrest claims because the officers are entitled to qualified

immunity in light of the indicia of controlled substance use that Ankhenaten Ra El

exhibited. See Ramirez v. City of Buena Park, 560 F.3d 1012, 1023-24 (9th Cir.

2009) (officers were entitled to qualified immunity under similar circumstances).

      The district court properly granted summary judgment on the claim that

defendant Doyle failed to provide Ankhenaten Ra El with an adequate probable

cause hearing, because a hearing was held well within 48 hours and personal

appearance is not required. See Jones v. City of Santa Monica, 382 F.3d 1052,


                                          2                                    08-56122
1055 (9th Cir. 2004). Summary judgment was also proper on the jail safety claim

because Ankhenaten Ra El failed to establish a genuine issue of material fact as to

whether Doyle was aware of but disregarded a risk to Ankhenaten Ra El’s safety.

See Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124,

1128 (9th Cir. 1998) (applying Eighth Amendment standards to pretrial detainees).

      To the extent that Ankhenaten Ra El claims a denial of the Fourteenth

Amendment right to production of exculpatory evidence, summary judgment was

proper because a favorable decision on this claim “would necessarily imply the

invalidity of his conviction.” Heck v. Humphrey, 512 U.S. 477, 487 (1994).

      The district court properly granted summary judgment on the claims alleging

racial animus and evidence tampering because Ankhenaten Ra El failed to raise a

genuine issue of material fact as to whether the individual defendants were

motivated by racial animus or tampered with their recordings of his arrest. See

Arpin, 261 F.3d at 922 (conclusory allegations unsupported by factual data are

insufficient to defeat a motion for summary judgment).

      The district court properly determined that even if Ankhenaten Ra El has a

viable First Amendment retaliation claim, defendants Smith and Medina are

entitled to qualified immunity because their arrest of Ankhenaten Ra El was

supported by probable cause. See Skoog v. County of Clackamas, 469 F.3d 1221,


                                          3                                   08-56122
1235 (9th Cir. 2006) (because “the right of an individual to be free of police action

motivated by retaliatory animus” despite the existence of probable cause was not

clearly established as of 2006, the officer defendant was protected by qualified

immunity).

      Finally, the district court properly granted summary judgment on the

excessive force claims because success on those claims would necessarily

invalidate Ankhenaten Ra El’s conviction under California Penal Code § 148(a)(1)

for resisting arrest. See Heck, 512 U.S. at 486-87; Smith v. City of Hemet, 394 F.3d

689, 699 n.5 (9th Cir. 2005) (en banc) (a jury-trial conviction for resisting arrest,

pursuant to Cal. Penal Code § 148(a)(1), “necessarily determines the lawfulness of

the officers’ actions throughout the whole course of the defendant’s conduct, and

any action alleging the use of excessive force would necessarily imply the

invalidity of his conviction”) (citation and internal quotation marks omitted).

However, those claims should have been dismissed without prejudice. See Trimble

v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam). Accordingly,

we vacate the judgment and remand for the limited purpose of entering a dismissal

without prejudice.

      We do not consider arguments raised for the first time on appeal. See Smith

v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).


                                           4                                      08-56122
Ankhenaten Ra El’s remaining contentions are unpersuasive.

The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.




                                   5                         08-56122
