George C. Nails v. City of Fullerton;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE C. NAILS,
Plaintiff-Appellant,
v.
CITY OF FULLERTON; et al.,
Defendants-Appellees.
No. 16-56292
D.C. No. 8:12-cv-00439-GW-SS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
George C. Nails appeals pro se from the district court’s summary judgment
in his 42 U.S.C. § 1983 action alleging claims arising from his arrest. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Guatay Christian
Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011). We affirm.
* 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
FEB 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-56292
The district court properly granted summary judgment on Nails’s excessive
force claim because Nails failed to raise a genuine dispute of material fact as to
whether defendants Haid and Acosta used an unreasonable amount of force against
him. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that
no reasonable jury could believe it, a court should not adopt the version of the facts
for purposes of ruling on a motion for summary judgment.”); Espinosa v. City &
County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010) (setting forth elements
of an excessive force claim).
The district court properly granted summary judgment on Nails’s equal
protection claim because Nails failed to raise a genuine dispute of material fact as
to whether defendant Barnes discriminated against him on the basis of his
membership in a protected class. See Hartmann v. Cal. Dep’t of Corrs. & Rehab.,
707 F.3d 1114, 1123 (9th Cir. 2013) (“To prevail on an Equal Protection claim
brought under § 1983, [plaintiff] must allege facts plausibly showing that the
defendants acted with an intent or purpose to discriminate against [him] based
upon membership in a protected class.” (citations and internal quotation marks
omitted)).

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3 16-56292
The district court properly granted summary judgment on Nails’ claims
against the City of Fullerton because Nails failed to raise a genuine dispute of
material fact as to whether a constitutional violation resulted from an official
custom, policy, or practice of the City of Fullerton. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690 (1978) (setting forth requirements for municipal
liability).
We reject as unsupported by the record Nails’ contention that the district
court abused its discretion by adopting the magistrate judge’s second amended
report and recommendation. See Fed. R. Civ. P. 52(a)(6); Wildman v. Johnson,
261 F.3d 832, 837 (9th Cir. 2001) (“Findings of fact of a magistrate judge adopted
by the district court are reviewed under the clearly erroneous standard.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Nails’ requests for refund of costs of appeal, appointment of counsel, court
fees, and sanctions, set forth in the opening and reply briefs, are denied.
All pending motions are denied.
AFFIRMED.

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