Jabril Caldwell-Parker v. Surprise Police Department, government entity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JABRIL CALDWELL-PARKER,
Plaintiff-Appellant,
v.
SURPRISE POLICE DEPARTMENT,
government entity; TERRI CALABRESE-
KOPRONICA, Sgt., supervised unit;
TRINITEE SAPP, customer service
representative; T. M. KNIGHT, officer,
police official; J. W. ANDERSON, officer,
police official,
Defendants-Appellees.
No. 22-17010
D.C. No. 2:21-cv-01088-DWL
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Dominic Lanza, District Judge, Presiding
Submitted April 12, 2024**
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
FILED
APR 12 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Plaintiff Jabril Caldwell-Parker appeals from the district court’s grant of
summary judgment in favor of the defendants in his civil rights action arising out
of his arrest by the defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review de novo, Hughes v. Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022), and
affirm.
Summary judgment was proper on the Fifth Amendment due process claim
because the defendants are local officials. See Castillo v. McFadden, 399 F.3d
993, 1002 n.5 (9th Cir. 2005) (explaining that the Fifth Amendment Due Process
Clause applies to federal officials).
The district court properly held that plaintiff could not state an Eighth
Amendment claim because he was not a convicted prisoner at the time of his arrest.
See Hughes, 31 F.4th at 1220-21 (holding that the Fourth Amendment standard
applies to free citizens, while the Eighth Amendment standard applies to convicted
prisoners, whether those prisoners are incarcerated or have escaped).
Summary judgment was proper on the Fourth Amendment unlawful arrest
claim because the undisputed facts established that the defendants had probable
cause to arrest plaintiff. Under the totality of the circumstances known to the
defendants, an objectively reasonable officer would have believed that plaintiff had
committed the crime of disturbing the peace by yelling at the victim and spraying
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her with the water hose in the presence of his family and neighbors. See Dist. of
Columbia v. Wesby, 583 U.S. 48, 56-57 (2018) (setting forth the requirements for
probable cause); A.R.S. § 13-2904(A)(1) (setting forth the elements of the crime).
The district court properly granted summary judgment on the Fourth
Amendment excessive force claim because plaintiff cannot establish that his
constitutional rights were violated. Under the totality of the circumstances,
particularly the difficulty that the officers had handcuffing plaintiff and getting him
into the patrol vehicle, a reasonable officer could have believed that a minimal
amount of force and an implied threat of force were necessary to get plaintiff into
the vehicle and onto the back seat of that vehicle. See Nelson v. City of Davis, 685
F.3d 867, 881 (9th Cir. 2012) (explaining that “[e]ven passive resistance may
support the use of some degree of governmental force if necessary to attain
compliance”).
We decline to consider claims waived in the opening brief. Martinez-
Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996). Nor do we consider the
district court’s alternative ruling that the Fourth Amendment claims are barred by
Heck v. Humphrey, 512 U.S. 477 (1994).
The pending motions (Dkt. Entry Nos. 20, 21, 23, 24) are denied as moot.
AFFIRMED.
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