FILED

NOT FOR PUBLICATION

MAR 21 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAMELA FOX KUHLKEN, No. 18-55149

Plaintiff-Appellant, D.C. No. 3:16-cv-02504-CAB-DHB v.

COUNTY OF SAN DIEGO; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted February 27, 2019 Southwestern Law School, Los Angeles, California

Before: THOMAS, Chief Judge, HAWKINS, Circuit Judge, and PREGERSON,** District Judge.

Pamela Fox Kuhlken (Fox) appeals the district court’s grant of summary

judgment for defendants, County of San Diego and Deputy Darin Smith. We have

jurisdiction pursuant to 28 U.S.C. § 1294(1) and we affirm the district court’s grant

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. of summary judgment. Because the parties are familiar with the facts, we do not

recount them here.

We review a district court’s grant of summary judgment de novo. S. B. v.

County of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017). Summary judgment

shall be granted where “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In

reviewing the record, we view the facts in the light most favorable to Fox. White v.

Pauly, 137 S. Ct. 548, 550 (2017).

I

The district court properly granted summary judgment on Fox’s unlawful

arrest claim. An arrest is unlawful if it was not supported by “probable cause or

other justification.” Lacey v. Maricopa Cty., 693 F.3d 896, 918 (9th Cir. 2012).

“Probable cause exists when there is a fair probability or substantial chance of

criminal activity.” Id. (quoting United States v. Patayan Soriano, 361 F.3d 494,

505 (9th Cir. 2004)). “In general, we must ask whether ‘a prudent person would

believe [that Fox] had committed a crime.’” Id. at 918 (quoting Dubner v. San

Francisco, 266 F.3d 959, 966 (9th Cir. 2001)). The facts must demonstrate “only

the probability, and not a prima facie showing, of criminal activity.” Illinois v.

Gates, 462 U.S. 213, 235 (1983) (quoting Spinelli v. United States, 393 U.S. 410,

2 419 (1969)). In assessing whether there was probable cause, the court must

objectively consider what facts were available to the officer at the time. Lacey,

693 F.3d at 918.

Based on the undisputed facts, Deputy Smith had probable cause to arrest

Fox for a violation of California Penal Code § 148(a)(1). Deputy Smith was

responding without backup to a potentially serious crime. It is undisputed that Fox

refused to provide identification upon request, creating the probable cause for a

violation of California Penal Code § 148(a)(1) and California Vehicle Code §

12951(b).

II

The district court also properly granted summary judgment on the excessive

force claim. Although not limited to these factors, we assess the reasonableness of

force by analyzing: “(1) the severity of the intrusion on the individual’s Fourth

Amendment rights by evaluating the type and amount of force inflicted, (2) the

government’s interest in the use of force, and (3) the balance between the gravity

of the intrusion on the individual and the government’s need for that intrusion.”

Lowry v. City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (internal

quotations omitted).

3 Deputy Smith employed a take-down maneuver to handcuff Fox after she

resisted his efforts to detain her and refused to provide identification. Fox suffered

multiple minor abrasions and experienced pain from the tight handcuffs, however,

she declined medical attention at the station. The minimal nature of the intrusion

coupled with Fox’s resistance weigh toward a conclusion that the amount of force

Deputy Smith used was reasonable and not excessive.

III

Because Fox’s arrest was lawful and the amount of force used was not

excessive, her state law claims must also fail. We need not, and do not, reach any

other issue urged by the parties, nor do we express an opinion as to the wisdom of

the official actions taken in response to a parking lot dispute.

AFFIRMED.

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