Francis T. Fahy v. Orpheos Tarbox;

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NOT FOR PUBLICATION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
FRANCIS T. FAHY,
Plaintiff - Appellant,
v.
ORPHEOS TARBOX; et al.,
Defendants - Appellees.
No. 11-17276
D.C. No. 3:09-cv-01420-MMC
MEMORANDUM*
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
FILED
SEP 20 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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

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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)

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(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.

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§ 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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