Pamela Fox Kuhlken v. County of San Diego;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAMELA FOX KUHLKEN,
Plaintiff-Appellant,
v.
COUNTY OF SAN DIEGO; et al.,
Defendants-Appellees.
No. 18-55149
D.C. No.
3:16-cv-02504-CAB-DHB
MEMORANDUM*
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
FILED
MAR 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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,
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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).
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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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