Terrylyn McCain v. Stockton Police Department

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 16 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TERRYLYN McCAIN, No. 11-17907

Plaintiff-Appellant, D.C. No. 2:10-cv-03170-JAM-CKD

v. MEMORANDUM* STOCKTON POLICE DEPARTMENT, DBA City of Stockton; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted August 9, 2017**

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

Terrylyn McCain appeals pro se from the district court’s judgment

dismissing her 42 U.S.C. § 1983 action alleging constitutional claims arising from

a traffic stop and her subsequent arrest. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a judgment on the pleadings under Federal Rule of

* 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). Civil Procedure 12(c). Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). We

affirm.

The district court properly dismissed McCain’s Fourth Amendment claims

relating to the traffic stop and her later arrest because McCain failed to allege facts

sufficient to show that defendants did not have reasonable suspicion for the traffic

stop and a reasonable basis to execute an arrest warrant. See Rivera v. County of

Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014) (an arrest pursuant to a warrant

satisfies the Fourth Amendment if an arresting officer has a good faith, reasonable

belief that the arrestee is the subject of the warrant); United States v. Hartz, 458

F.3d 1011, 1017 (9th Cir. 2006) (“A police-initiated traffic stop is reasonable under

the Fourth Amendment if the police stop the vehicle because of a ‘reasonable

suspicion’ that the vehicle’s occupants have broken a law.” (citation omitted)).

The district court properly dismissed McCain’s Fourth Amendment claim

relating to the search of her property following the custodial arrest. See United

States v. Edwards, 415 U.S. 800, 802 (1974) (the Fourth Amendment permits

warrantless searches incident to custodial arrest).

The district court properly dismissed McCain’s claims relating to impound

of her vehicle because McCain failed to allege facts sufficient to show that

2 11-17907 defendants did not have a reasonable belief that she was operating the vehicle

illegally on a public right of way. See Miranda v. City of Cornelius, 429 F.3d 858,

865 (9th Cir. 2005) (“The violation of a traffic regulation justifies impoundment of

a vehicle if the driver is unable to remove the vehicle from a public location

without continuing its illegal operation.”); see also Hallstrom v. City of Garden

City, 991 F.2d 1473, 1477 n.4 (9th Cir. 1993) (no due process violation where,

consistent with an independent community caretaking function, officer arranged

for the plaintiff’s vehicle to be towed after pulling her over for a traffic violation).

The district court properly dismissed McCain’s Fifth Amendment claim

relating to defendants’ alleged violation of her privilege against self-incrimination

because McCain failed to allege facts sufficient to show that disclosing her full

name violated her rights against self-incrimination. See Hiibel v. Sixth Judicial

Dist. Court of Nev., 542 U.S. 177, 190-91 (2004) (no Fifth Amendment violation

absent evidence that a person’s refusal to disclose his name was based on real and

appreciable fear that it would be used to incriminate him); United States v. Bohn,

622 F.3d 1129, 1137 (9th Cir. 2010) (a defendant’s disclosure of name and

identification has no incriminating effect where police officer knows who

defendant is and what he has done, such as where a traffic violation occurs in the

3 11-17907 officer’s presence).

The district court properly dismissed McCain’s claims under the First, Fifth,

Sixth, and Fourteenth Amendments, her claim relating to her right to interstate

travel, and her claim alleging cruel and unusual punishment because McCain failed

to allege facts sufficient to state plausible claims. See Hebbe v. Pliler, 627 F.3d

338, 341-42 (9th Cir. 2010) (although pro se pleadings are construed liberally,

plaintiff must present factual allegations sufficient to state a plausible claim for

relief); see also Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011)

(due process claim requires a constitutionally protected liberty interest); Bingue v.

Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (Fifth Amendment’s due process

clause applies only to actions of the federal government); Miller v. Reed, 176 F.3d

1202, 1205-06 (9th Cir. 1999) (there is no fundamental right to drive a motor

vehicle).

The district court did not abuse its discretion in setting aside entry of default

against defendant Duran because McCain had not yet properly served the

defendant. See Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (setting forth

standard of review and noting that a court is without jurisdiction unless there has

been proper service).

4 11-17907  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

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

AFFIRMED.

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