Stephen Tanner, I v. Idaho Department of Fish and Game

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2022
• Docket: 20-35886
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEPHEN A. TANNER I, No. 20-35886

Plaintiff-Appellant, D.C. No. 2:18-cv-00456-DCN

v. MEMORANDUM* IDAHO DEPARTMENT OF FISH AND GAME; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding

Submitted April 26, 2022**

Before: D.W. NELSON, FERNANDEZ, and SILVERMAN, Circuit Judges.

Stephen (“Steve”) Tanner appeals pro se the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging violations of his First, Fourth, and

Fifth Amendment rights and his rights under the Idaho Constitution. We review de

* 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). novo the district court’s grant of summary judgment. Thomas v. Ponder, 611 F.3d

1144, 1149 (9th Cir. 2010) (citation omitted). We affirm.

The district court properly granted summary judgment for defendants

because Tanner failed to raise a genuine dispute of material fact as to whether

defendants violated his rights under the federal Constitution or Idaho Constitution.

See Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019) (reasoned that the plaintiff

fails to establish a First Amendment retaliation claim based on arrest when

probable cause exists and others similarly situated were also arrested.); United

States v. Williams, 846 F.3d 303, 312 (9th Cir. 2016) (reasoning that searches

incident to an arrest are lawful); United States v. Fraire, 575 F.3d 929, 932 (9th

Cir. 2009) (holding checkpoint stops are constitutional if they are not used as crime

control devices and are employed reasonably); Stoot v. City of Everett, 582 F.3d

910, 925 n.15 (9th Cir. 2009) (holding plaintiff must demonstrate a statement they

made was used in a criminal case to establish a Fifth Amendment violation of their

right to remain silent.); United States v. Patayan Soriano, 361 F.3d 494, 505 (9th

Cir. 2004) (reasoning that arrests are valid when probable cause of a crime exists);

Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001)

(reasoning allegations of excessive force on the basis of handcuffing must be

supported by evidence); State v. Thurman, 996 P.2d 309, 314-15 (Idaho Ct. App.

1999) (holding Article I, § 17 of the Idaho Constitution provides no greater

2 protection in these situations than does the Fourth Amendment to the United States

Constitution).

The district court did not abuse its discretion in denying Tanner’s motion to

strike. See Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 963 (9th Cir. 2018).

The district court did not abuse its discretion in denying Tanner’s motion for

reconsideration of his motion to compel because Tanner set forth no valid grounds

for reconsideration. See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5

F.3d 1255, 1263 (9th Cir. 1993) (setting forth standard of review and grounds for

reconsideration).

The district court did not abuse its discretion in denying Tanner electronic

filing privileges. See Preminger v. Peake, 552 F.3d 757, 757, 769 & n.11 (9th Cir.

2008) (setting forth standard of review for a district court’s decisions regarding

management of its docket).

Tanner’s motions to correct the caption (Docket Entry No. 23) and to

withdraw his motion at Docket Entry No. 36 (Docket Entry No. 43) are granted.

Tanner’s motion to strike Docket Entry Nos. 36 and 37 (Docket Entry No. 44) is

denied. Tanner’s motion to expedite the case (Docket Entry No. 46) is denied as

moot. Tanner’s motion to certify questions to the Idaho Supreme Court, as set out

in his opening brief, is denied.

AFFIRMED.