NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZYHERE L. FICHMAN,

Plaintiff

- Appellant,

v. JOSEPH MERCER, i ndividually and in his official capacity as a Sparks Police Department Officer; CITY OF SPARKS, a municipal corporation,

Defendants

- Appellees. No. 21

- 16452
D.C. No. 3:19

- cv - 00292

- MMD

- CLB

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding Argued and Submitted June 14, 2022 San Francisco, California Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.
Plaintiff

- Appellant Zyhere Fichman timely appeals the district court’s grant
of Defendant

- Appellee Joseph Mercer ’s motion for summary judgment. We have jurisdiction over Fichman’s appeal under 28 U.S.C. § 129 1 . After review ing the
district court’s decision de novo , we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

AUG 17 2022
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

On the evening of June 2, 2017, police in Sparks, Nevada received a report
of a residential armed robbery. Mercer was one of the officers who eventually responded. Based on his interview of the alleged victim , the information he
received from officers who had arrived at the scene before him , and additiona l
information learned from the immediately ensuing investigation , Mercer arrested
Fichman later that night . The district attorney eventually dropped the charges against Fichman after the alleged victim stopped cooperating with law
enforcement . Fichman then sued Mercer and the City for allegedly arresting him without probable cause in violation of Fichman’s Fourth Amendment rights. The
district court dismissed Fichman’s claim aga inst the City, and he does not challenge that ruling on appeal. The district court subsequently granted Mercer’s motion for summary judgment , leading to the appeal now before us

. We review a district court’s grant of summary judgment de novo , viewing the evidence in the light most favorable to the nonmoving party

. Bravo v. City of
Santa Maria , 665 F.3d 1076, 1083 (9th Cir. 2011) ; s ee Frudden v. Pilling , 877
F.3d 821, 828 (9th Cir. 2017). “Probable cause to arrest exists when officers have
knowl edge or reasonably trustworthy information sufficient to lead a person of
reasonable caution to believe an offense has been . . . committed by the person being arrested.” United States v. Lopez , 482 F.3d 1067, 1072 (9th Cir. 2007). “[P]robable cause means ‘fair probability,’ not certainty or even a preponderance3

of the evidence.” United States v. Gourde , 440 F.3d 1065, 1069 (9th Cir. 2006) (quoting Illinois v. Gates , 462 U.S. 213, 246 (1983))

. W e make this assessment
based on “the information t he officer had at the time of making the arrest.” John v. City of El Monte , 515 F.3d 936, 940 (9th Cir. 2008). Here, there was probable cause for Mercer to arrest Fichman

. I t is undisputed that the alleged victim knew Fichman and that o n the night in question
she said he had been involved in the robbery. It is also uncontroverted that the alleged victim’s description of the robbers’ getaway car fit the description of
Fichman’s car and that Mercer found Fichman in his car later that evening. Even

v iewin g these f

acts and other evidence in the record in the light most favorable to
Fichman , the district court did not err by granting summary judgment to Mercer

. See United States v. Brooks , 610 F.3d 1186, 1193 (9th Cir. 2010) (“Here, probable

cause was establ ished by the substantial correspondence between the officers’
observations at the time of the arrest and the details that [the victim] had provided to the police concerning the crime, the individuals involved, their vehicle, and the
location where the perp etrators operated.”). Fichman’s theory

— that Mercer planted Fichman’s name in the alleged
victim’s mind and ignored exculpatory evidence based on a vendetta Mercer purportedly had against Fichman

— finds no support in the evidence. Mercer and Fichman had only briefly interacted before the night in question, such that Fichman4

did not even remember doing so, and there is no apparent motive for Mercer to
frame Fichman. Fichman also admits that he has no proof that Mercer fabricated or

t ampered with evidence , or that Mercer withheld exculpatory evidence. Other disputed facts Fichman identified are immaterial

. Some relate to events after the night of the robbery and thus have little relevance to Mercer’s decision to arrest
Fichman

. A nd alt hough Fichman contends that Mercer’s investigation overlooked points that might have undermined the alleged victim’s identification of him , probable cause does not require certainty, but only a fair probability. Even granting
that questions and uncertainti es remained, we conclude that the key undisputed
facts known to Mercer on the night of the robbery were sufficient, as a matter of
law , to lead a reasonably cautious person to conclude that Fichman was involved in that robbery. Because the undisputed facts show that Mercer had probable cause to
arrest Fichman , Mercer’s motion for summary judgment was properly granted. Finally, t he parties disagree about certain evidentiary rulings made by the district court in conjunction with the motion for summary judgment. Because o ur holding would not change even if we resolved all these disputes in Fichman’s
favor , w e decline to address the merits of these evidentiary issues

. The district court is AFFIRMED

.