United States v. 2011-12-20 | 09-17868 | THEA PETERS V. J. RICHWINE | nonprecedential | memorandum…

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Richard Mills, Senior United States District Judge for**
the Central District of Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THEA MCKAY PETERS,
Plaintiff-Appellant,
vs.
J.P. RICHWINE, Officer, as an Individual
and in his Official Capacities,
Defendant-Appellee.
No. 09-17868
D.C. No. 1:08-CV-00321-AWI-
SMS
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted September 2, 2011
San Francisco, California
Before: FISHER and RAWLINSON, Circuit Judges, and MILLS, District Judge.**
Following an arrest for driving while intoxicated and the subsequent dismissal
of charges, Thea McKay Peters asserted claims of false arrest and excessive force
FILED
DEC 20 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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against Officer J.P. Richwine under 42 U.S.C. § 1983 for violations of the Fourth and
Fourteenth Amendment. The district court granted summary judgment in favor of
Richwine, determining that he had probable cause to arrest Peters for disorderly
conduct. We affirm.
We review the district court’s grant of summary judgment de novo, drawing all
reasonable inferences in favor of Peters, the non-movant. See Zeinali v. Raytheon Co.,
636 F.3d 544, 547 (9th Cir. 2011). Summary judgment is appropriate if the moving
party establishes “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a).
In California, a person is subject to arrest for disorderly conduct if, among other
ways, that person:
is found in any public place under the influence of intoxicating liquor,
any drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, controlled substance, or toluene, in a condition
that he or she is unable to exercise care for his or her own safety or the
safety of others, or by reason of his or her being under the influence of
intoxicating liquor, any drug, controlled substance . . . interferes with or
obstructs or prevents the free use of any street, sidewalk, or other public
way.
Cal. Pen. Code § 647(f). “A public place has been defined to be a place where the
public has a right to go and to be, and includes public streets, roads, highways, and
sidewalks.” People v. Belanger, 243 Cal. App.2d 654, 657 (1966) (citation omitted).
In Belanger, the defendant was “stretched out and apparently asleep in the front seat

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of his automobile which was lawfully parked with the ignition off along the curb.”
Id. at 656. The officers determined the individual was intoxicated. See id. The court
concluded that defendant violated Penal Code § 647(f). See id. at 655, 662; see also
Mardis v. Superior Court, 218 Cal. App.2d 70, 74-75 (1963) (found that defendant
who had been sleeping in his car and was intoxicated was subject to arrest for
violation of § 647(f)). More recently, the California Supreme Court observed that
“sitting in an automobile while intoxicated does not, as a matter of law, prevent one
from being arrested for intoxication in a public place.” People v. Cruz, 44 Cal.4th
636, 674 (2008) (citation omitted). “Nor does being found asleep in a vehicle prevent
an arrest for public intoxication under section 647(f).” Id.
Based on his own observations and investigation, Richwine had reason to
believe that Peters was intoxicated in a public place. Therefore, the district court
correctly concluded that Richwine had probable cause to arrest Peters for a violation
of California Penal Code § 647(f).
Peters contends that the district court erred by requesting additional briefing on
§ 647(f) and should have instead denied Richwine’s motion for summary judgment
after determining that Richwine lacked probable cause to arrest her for DUI, in
violation of California Vehicle Code § 40300.5. In fact, a court may grant summary
judgment even without a motion, as long as notice and an opportunity to respond are

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provided. See Fed. R. Civ. P. 56(f)(1). Moreover, courts may enter summary
judgment on grounds not raised by a party. See Fed. R. Civ. P. 56(f)(2). Therefore,
Peters’s contention that the district court erred in ordering supplemental briefing and
on entering summary judgment on grounds which were not initially raised is without
merit.
Peters also alleges that Richwine used excessive force during the arrest. A
plaintiff must do more than simply rely on conclusory allegations in order to defeat
summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,
922 (9th Cir. 2001). She claims that Richwine placed handcuffs on her by twisting
her right arm enough to cause pain to her shoulder. Peters further asserts she fell to
the ground and injured her knee when she was pulled out of the police vehicle. Peters
provides only these general allegations of injury. Additionally, Peters did not dispute
that Richwine took her to a hospital but she refused to be examined or treated.
Therefore, summary judgment was properly entered in favor of Richwine on Peters’s
excessive force claims.
AFFIRMED.

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