Tyrone Everett Payne v. City of Missoula; Ben Slater

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TYRONE EVERETT PAYNE,
Plaintiff - Appellant,
v.
CITY OF MISSOULA; BEN SLATER,
Defendants - Appellees.
No. 10-36022
D.C. No. 9:10-cv-00056-DWM
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted November 21, 2011 **
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
Tyrone Everett Payne, a Montana state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that his
Fourth and Fourteenth Amendment rights were violated during a traffic stop. We
FILED
NOV 22 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-36022 2
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ramirez v. City of
Buena Park, 560 F.3d 1012, 1019 (9th Cir. 2009), and we affirm.
The district court properly granted summary judgment on Payne’s Fourth
Amendment claim because Officer Ben Slater had reasonable suspicion that Payne
violated Mont. Code Ann. § 61-8-333(1)(b) before Slater made the traffic stop.
See United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000) (articulating
standard). The district court properly granted summary judgment on Payne’s
Fourteenth Amendment claim because Payne does not provide evidence that Slater
acted in a discriminatory manner or with discriminatory intent. See Bingham v.
City of Manhattan Beach, 341 F.3d 939, 948 (9th Cir. 2003), abrogated on other
grounds by Virginia v. Moore, 553 U.S. 164 (2008). Moreover, because Payne has
not shown any underlying constitutional violation, liability does not attach to the
City of Missoula. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per
curiam).
Payne’s Motion for Submission on Briefs is granted.
City of Missoula’s Motion to File DVD and CD is granted.
AFFIRMED.

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