1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KERRY HARMON, 

Plaintiff-Appellant, 

 v. 

CITY OF POCATELLO; POCATELLO 

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.

No. 20-35096

D.C. No. 

4:17-cv-00485-DCN

MEMORANDUM*

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.

FILED

APR 5 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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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.
3

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.
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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 
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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 
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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. 
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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 
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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.