Nailing v. City of Los Angeles

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 12, 2026
• Docket: 24-5216
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 12 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

XAVIER NAILING, No. 24-5216 D.C. No. Plaintiff - Appellant, 2:22-cv-07224-AB-JC v. MEMORANDUM* CITY OF LOS ANGELES; GARCIA, an individual; Serial No. 42501; ALTAMITRANO, an individual; Serial No. 42570,

Defendants - Appellees.

Appeal from the United States District Court for the Central District of California André Birotte, Jr., District Judge, Presiding

Submitted March 12, 2026**

Before: O’SCANNLAIN, SILVERMAN, and N.R. SMITH, Circuit Judges.

Xavier Nailing appeals pro se from the district court’s grant of summary

judgment in favor of defendants City of Los Angeles and Los Angeles Police

* 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). Officers Garcia and Altamirano in his 42 U.S.C. § 1983 action. Nailing alleged

that his Fourth and Fourteenth Amendment rights were violated when he was

arrested for assault with a deadly weapon. We have jurisdiction pursuant to 28

U.S.C. § 1291. We review a district court’s grant of summary judgment de novo,

Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021), and

affirm.

The district court properly granted summary judgment on the Fourth

Amendment false arrest claim. Officers had probable cause to arrest Nailing for

assault with a deadly weapon because Hugo Mazariego told the officers that

Nailing had stabbed him, showed them the laceration near his hip, and an

independent witness corroborated part of Mazariego’s version of events. See Norse

v. City of Santa Cruz, 629 F.3d 966, 978 (9th Cir. 2010) (a false arrest claim fails if

the officers had probable cause to arrest); Dist. of Columbia v. Wesby, 583 U.S. 48,

56-57 (2018) (setting forth the requirements for probable cause); People v. Aguayo,

515 P.3d 63, 67-68 (Cal. 2022) (setting forth the elements of assault with a deadly

weapon). The mere fact that Nailing called the police does not negate probable

cause under the totality of circumstances in this case. See Yousefian v. City of

Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015) (concluding that officers had

probable cause to arrest the plaintiff who called the police because the alleged

attacker had more severe injuries and explained how the plaintiff attacked him).

2 24-5216 Summary judgment was proper on the Fourteenth Amendment fabrication of

evidence claim. The alleged fabrications, the identity of the officer who

transported Nailing to the police station and the statement that Nailing owned the

knife and crowbar, did not cause Nailing’s arrest. Rather, the officers arrested

Nailing as the aggressor for the reasons stated above, because Mazariego’s

statement was consistent with Mazariego’s visible injuries and an independent

witness’s statement. See Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017)

(requiring proof that the alleged fabrication caused the deprivation of liberty).

The district court properly granted summary judgment on the Fourteenth

Amendment equal protection claim because Nailing failed to offer any evidence to

establish that he was arrested because of his race. See Rosenbaum v. City & Cnty.

of S.F., 484 F.3d 1142, 1153 (9th Cir. 2007) (requiring proof that the defendants

were motivated, at least in part, because of plaintiff’s membership in a protected

class); Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005)

(“[C]onclusory statements of bias do not carry the nonmoving party’s burden in

opposition to a motion for summary judgment.”).

Summary judgment was proper on the state law claims because Nailing did

not file a timely notice of claim with the City of Los Angeles within six months of

the incident pursuant to the California Government Claims Act. See Cal. Gov’t

Code § 911.2(a); DiCampli-Mintz v. Cnty. of Santa Clara, 289 P.3d 884, 887 (Cal.

3 24-5216 2012) (“failure to timely present a claim for money or damages to a public entity

bars a plaintiff from filing a lawsuit against that entity”) (internal quotation marks

omitted); Ellis v. City of San Diego, 176 F.3d 1183, 1190 (9th Cir. 1999)

(affirming summary judgment for failure to file a timely notice of claim).

We decline to consider matters not properly raised in the opening brief or

district court. Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per

curiam).

AFFIRMED.

4 24-5216