NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 5 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KERRY HARMON, No. 20-35096

Plaintiff-Appellant, D.C. No. 4:17-cv-00485-DCN v.

CITY OF POCATELLO; POCATELLO MEMORANDUM*

POLICE DEPARTMENT; and

SHANNON BLOXHAM, BRANDON

VAIL, SHAUN WRIGHT, and RUSS GUNTER in her and/or his individual official capacity as a police officer of the Pocatello Police Department,

Defendants-Appellees.

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

Argued and Submitted March 12, 2021 San Francisco, California

Before: WALLACE, GOULD, and FRIEDLAND, Circuit Judges.

Kerry Harmon appeals from the district court’s summary judgment for the

City of Pocatello, City of Pocatello Police Department, police officers Shannon

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Bloxham, Brandon Vail, Shaun Wright, and Russ Gunter (collectively, the

Defendants).1 We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review de

novo a district court’s decision to grant or deny summary judgment.” Prison Legal

News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005). “We must determine, viewing

the evidence in the light most favorable to the nonmoving party, whether there are

any genuine issues of material fact and whether the district court correctly applied

the relevant substantive law.” Id. “We also review a grant or denial of qualified

immunity de novo.” Id. We affirm.

On October 19, 2015, Nicole Insley filed a complaint with the Pocatello

police department (the police department) alleging telephone harassment by her

mother, Kerry Harmon. After speaking with Insley, police officer Busch prepared

an incident report and arrest warrant. On October 30, 2015, police officer Shaun

Wright prepared an affidavit for probable cause to arrest Harmon, which cited

Officer Busch’s incident report as the basis for the probable cause determination.

Relying on Officer Wright’s probable cause affidavit and the attached incident

report, a state magistrate judge issued an arrest warrant for Harmon for engaging in

telephone harassment in violation of Idaho Code section 18-6711.

1 Harmon agreed that Officer Gunter should be dismissed from the case, so there are only three officer defendants for purposes of this appeal. 2 On February 27, 2016, the police department received a complaint from

Cassie Hughes, alleging that Harmon was harassing her via telephone. Police

officer Brandon Vail was tasked with investigating Hughes’s complaint. During

his investigation, Officer Vail discovered the October 2015 arrest warrant for

Harmon. On February 28, 2016, Officer Vail and fellow police officer Shannon

Bloxham went to Harmon’s house to investigate the Hughes complaint and to

serve the outstanding arrest warrant. When Harmon came to the door, Officers

Vail and Bloxham spoke with her about the Hughes complaint and notified her that

they were placing her under arrest for the October 2015 complaint. Harmon

attempted to close the door, and Officer Bloxham grabbed Harmon by her wrist,

which according to Harmon was in a brace following recent treatment for arthritis.

Harmon pulled away, broke Officer Bloxham’s grasp, and went to another part of

her house to speak with her attorney by telephone. Police officer Daniels arrived

and spoke with Harmon’s husband, who was still in the doorway, and with her

attorney by telephone. Officer Daniels agreed to allow Harmon to present herself

at the courthouse the next day. The following day, Harmon reported to the

courthouse and was arraigned for misdemeanor telephone harassment. In August

2016, the state court granted the prosecutor’s motion to dismiss the charge relating

to the October 2015 complaint.

I.

3 Harmon argues that Officers Bloxham and Vail violated her Fourth

Amendment rights by unlawfully arresting her and that the district court erred by

granting Officers Bloxham and Vail qualified immunity on the section 1983

unlawful arrest claim. “A claim for unlawful arrest is cognizable under [section]

1983 as a violation of the Fourth Amendment, provided the arrest was without

probable cause or other justification.” Lacey v. Maricopa County, 693 F.3d 896,

918 (9th Cir. 2012) (citation omitted). “[T]he application of physical force to the

body of a person with intent to restrain is a seizure even if the person does not

submit and is not subdued.” Torres v. Madrid, No. 19-292, slip op. at 17 (U.S.

Mar. 25, 2021).

However, “[i]t is well established that, in an action for unlawful arrest

pursuant to a facially valid warrant, a police officer is entitled to qualified

immunity unless ‘no officer of reasonable competence would have requested the

warrant.’” Case v. Kitsap Cnty. Sheriff’s Dep’t, 249 F.3d 921, 926 (9th Cir. 2001),

quoting Malley v. Briggs, 475 U.S. 335, 346 n.9 (1986). Even if Officer

Bloxham’s grabbing of Harmon’s wrist was a seizure and even if probable cause

was lacking, Harmon does not contend that Office Wright’s warrant application

was “so lacking in indicia of probable cause as to render official belief in its

existence unreasonable.” Malley, 475 U.S. at 345. Without reaching the issue of

whether an unlawful arrest occurred, we affirm the district court’s summary

4 judgment on the ground that it did not err in granting Officers Bloxham and Vail

qualified immunity.

II.

Harmon argues that Officers Bloxham and Vail violated her Fourth

Amendment rights by exercising excessive force against her. “Under the Fourth

Amendment, police may use only such force as is objectively reasonable under the

circumstances.” LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir.

2000), citing Graham v. Connor, 490 U.S. 386, 397 (1989). When weighing an

excessive force claim, summary judgment is appropriate if the court “concludes,

after resolving all factual disputes in favor of the plaintiff, that the officer’s use of

force was objectively reasonable under the circumstances.” Scott v. Henrich, 39

F.3d 912, 915 (9th Cir. 1994). Our court outlined the analysis required under

Graham:

Our analysis proceeds in three steps. First, we assess the gravity of the particular intrusion on Fourth Amendment interests by evaluating the type and amount of force inflicted. Second, we assess the importance of the government interests at stake by evaluating: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Third, we balance the gravity of the intrusion on the individual against the government's need for that intrusion to determine whether it was constitutionally reasonable.

Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003) (citations omitted).

Officer Bloxham grabbed Harmon by her wrist to initiate an arrest, and Harmon 5 pulled her arm away, breaking Officer Bloxham’s grasp. Officer Bloxham used

minimal force to attempt to initiate an arrest. Harmon resisted Officer Bloxham’s

attempt to initiate an arrest by pulling her arm away and breaking Officer

Bloxham’s grasp. Irrespective of Harmon’s existing wrist condition, the type and

amount of force applied by Officer Bloxham was objectively reasonable. The

district court did not err in entering summary judgment for the Defendants on

Harmon’s section 1983 excessive force claim.

III.

Harmon argues that Officer Wright violated her Fourth and Fourteenth

Amendment rights by maliciously prosecuting her.2 “To maintain a [section] 1983

action for malicious prosecution, a plaintiff must show that ‘the defendants

prosecuted her with malice and without probable cause, and that they did so for the

purpose of denying her [a] specific constitutional right.’” Smith v. Almada, 640

F.3d 931, 938 (9th Cir. 2011) (alteration in original), quoting Freeman v. City of

Santa Ana, 68 F.3d 1180, 1189 (9th Cir.1995). Moreover, a section 1983 plaintiff

may state a malicious prosecution claim against a government investigator who

submits false and material information in a warrant affidavit. See Galbraith v.

2 In her Second Amended Complaint, Harmon appears to assert a malicious prosecution claim against Officers Vail and Bloxham as well. On appeal, however, Harmon makes clear that her malicious prosecution claim is exclusively against Officer Wright, so we do not consider the viability of a malicious prosecution claim against Officers Vail and Bloxham. 6 County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002). To succeed on such a

claim, the plaintiff “must show that the investigator made deliberately false

statements or recklessly disregarded the truth in the affidavit and that the

falsifications were material to the finding of probable cause.” Id. Harmon argues

that Officer Wright made several misrepresentations and omissions in his probable

cause affidavit relating the October 2015 complaint, including “that [Officer]

Wright was the investigating officer and had conducted an investigation, that he

had made a personal determination that there was probable cause to arrest Harmon,

and that he had read the contents of a police report and its exhibits, prepared by

two other officers.” However, we need not reach the issues of malice or probable

cause because there is no evidence to establish that Officer Wright acted “for the

purpose of denying [Harmon] a specific constitutional right.” Smith, 640 F.3d at

938. Accordingly, the district court did not err in entering summary judgment for

the Defendants on Harmon’s section 1983 malicious prosecution claim.

IV.

Harmon alleges that the City of Pocatello (the city) violated her

constitutional rights by implementing customs or practices to have officers

misrepresent or omit material facts in probable cause affidavits and training

officers not to show arrest warrants to arrestees, purportedly in violation of Idaho

state law. “[A] municipality cannot be held liable under [section] 1983 on a

7 respondeat superior theory.” Monell v. New York City Dep’t of Soc. Servs., 436

U.S. 658, 691 (1978). To establish a municipality’s liability under Monell, a

plaintiff “must show that (1) she was deprived of a constitutional right; (2) the

[municipality] had a policy; (3) the policy amounted to a deliberate indifference to

her constitutional right; and (4) the policy was the moving force behind the

constitutional violation.” Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc.

Servs., 237 F.3d 1101, 1110–11 (9th Cir. 2001) (citation and quotation marks

omitted). Since no violation of any constitutional right occurred, we need not

reach the Monell claim against the city. See Aguilera v. Baca, 510 F.3d 1161,

1174 (9th Cir. 2007). Moreover, irrespective of what the state law requires,

Harmon’s argument fails because “when States go above the Fourth Amendment

minimum, the Constitution’s protections concerning search and seizure remain the

same.” Virginia v. Moore, 553 U.S. 164, 173 (2008).

AFFIRMED.

8