Ronnie Smith v. City of Dalles

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 12, 2021
• Docket: 20-35871
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RONNIE SMITH, No. 20-35871

Plaintiff-Appellant, D.C. No. 3:19-cv-00338-SI

v. MEMORANDUM* CITY OF DALLES, In its official capacity as a political and public entity in the State of Oregon; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted November 8, 2021**

Before: CANBY, TASHIMA, and MILLER, Circuit Judges.

Ronnie Smith appeals pro se from the district court’s summary judgment in

his 42 U.S.C. § 1983 action alleging federal and state law claims arising from an

arrest and prosecution for theft. We have jurisdiction under 28 U.S.C. § 1291. We

* 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). review de novo. Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 854 (9th Cir.

2019). We may affirm on any basis supported by the record. Thompson v. Paul,

547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.

The district court properly granted summary judgment on Smith’s federal

law false arrest and imprisonment claims due to issue preclusion. In Smith’s other

action, Smith v. City of Dalles, No. 6:16-cv-01771 (D. Or.), Smith alleged the same

claims. A jury issued a verdict on those claims for the time period before the

eyewitness identification was procured, and the district court granted summary

judgment on those claims for the subsequent time period. See Robi v. Five

Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988) (“The doctrine of issue preclusion

prevents relitigation of all issues of fact or law that were actually litigated and

necessarily decided in a prior proceeding.” (internal quotation marks omitted));

City of Portland v. Huffman, 331 P.3d 1105, 1107 (Or. Ct. App. 2014) (elements of

issue preclusion under Oregon law).

The district court properly granted summary judgment on Smith’s federal

claim of malicious prosecution because Smith failed to raise a genuine dispute of

material fact as to whether there was no probable cause. See Lacey v. Maricopa

County, 693 F.3d 896, 919 (9th Cir. 2012) (en banc) (“To claim malicious

prosecution, a petitioner must allege that the defendants prosecuted her with malice

and without probable cause, and that they did so for the purpose of denying her

2 20-35871 equal protection or another specific constitutional right.” (quotation marks

omitted)). Summary judgment was properly granted on Smith’s federal conspiracy

claim because it stemmed from Smith’s malicious prosecution claim.

Summary judgment was properly granted on Smith’s state law claims for

false arrest and imprisonment and malicious prosecution because they were

untimely under the Oregon Tort Claims Act, which requires a plaintiff to provide

notice to government defendants within 180 days of the alleged injury. See Or.

Rev. Stat. § 30.275(2)(b). Contrary to Smith’s contention, Smith did not allege a

continuing tort that could toll the statute of limitations. See Curzi v. Oregon State

Lottery, 398 P.3d 977, 986 (Or. Ct. App. 2017) (no continuing tort where each

separate act of alleged conduct was actionable). Summary judgment was also

properly granted on Smith’s state law claims of civil conspiracy, intentional

infliction of emotional distress, and negligence because they all stemmed from the

alleged malicious prosecution claim.

We reject as meritless Smith’s contentions related to the claims against and

service of process on defendant Linda Gouge.

We reject as unsupported by the record Smith’s contentions that the district

court improperly denied Smith’s motions for sanctions and to compel discovery.

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

3 20-35871 appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Smith’s motion for appointment of counsel, set forth in his reply brief, and

Smith’s motion for judicial notice (Docket Entry No. 20) are denied.

AFFIRMED.

4 20-35871