Tony Fu v. City

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY FU,
Plaintiff-Appellant,
v.
CITY AND COUNTY OF SAN
FRANCISCO; MATTHEW P. SULLIVAN,
an individual and in his official capacities,
Defendants-Appellees,
and
DEMAS WAI YAN, Esquire; et al.,
Defendants.
No. 21-15423
D.C. No. 4:18-cv-04668-JST
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
* 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).
FILED
MAY 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Tony Fu appeals pro se from the district court’s summary judgment in his 42
U.S.C. § 1983 action alleging various claims related to his arrest. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Thomas v. Ponder, 611
F.3d 1144, 1149 (9th Cir. 2010). We affirm.
The district court properly granted summary judgment on Fu’s due process
claim because Fu failed to raise a genuine dispute of material fact as to whether his
arrest lacked probable cause. See United States v. Lopez, 482 F.3d 1067, 1072 (9th
Cir. 2007) (explaining probable cause standard); see also Ewing v. City of
Stockton, 588 F.3d 1218, 1224-25 (9th Cir. 2009) (“If the officer omitted facts
required to prevent technically true statements in the affidavit from being
misleading, the court determines whether the affidavit, once corrected and
supplemented, establishes probable cause.”).
The district court properly granted summary judgment on Fu’s excessive
bail claim because Fu failed to raise a triable dispute as to whether his bail was
calculated “for purposes unauthorized by California law or that the amount of bail
was excessive in light of the valid purposes for which it was set.” Galen v. County
of Los Angeles, 477 F.3d 652, 661 (9th Cir. 2007).
The district court properly granted summary judgment on Fu’s conditions-
of-confinement claims because Fu failed to raise a triable dispute as to whether the
conditions of his pretrial detention amounted to a due process violation. See

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Castro v. County of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (holding
that challenges to conditions of pretrial detention are analyzed under the due
process clause of the Fourteenth Amendment rather than the Eighth Amendment);
see also Gordon v. County of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018)
(explaining the objective deliberate indifference standard that applies to
conditions-of-confinement claims).
The district court properly granted summary judgment on Fu’s equal
protection claim because Fu failed to raise a triable dispute as to whether his
unequal treatment was based on an impermissible classification or whether the City
intentionally and without any rational basis treated him differently from others
similarly situated. See N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th
Cir. 2008).
The district court properly granted summary judgment on Fu’s conspiracy
claim because Fu failed to raise a triable dispute as to whether there was “an
agreement or ‘meeting of the minds’ to violate constitutional rights.” Franklin v.
Fox, 312 F.3d 423, 441 (9th Cir. 2002) (quoting United Steelworkers of Am. v.
Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on

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appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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