NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZYHERE L. FICHMAN, 

Plaintiff-Appellant, 

 v. 

JOSEPH MERCER, individually 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. § 1291. After reviewing 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 APPEALS
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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 additional 

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 against 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); see Frudden v. Pilling, 877

F.3d 821, 828 (9th Cir. 2017). “Probable cause to arrest exists when officers have 

knowledge 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 preponderance 
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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)). We make this assessment

based on “the information the 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. It is

undisputed that the alleged victim knew Fichman and that on 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 

viewing these facts 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 established 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 perpetrators 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 Fichman 
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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 

tampered 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. And although 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 uncertainties 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, the parties disagree about certain evidentiary rulings made by the 

district court in conjunction with the motion for summary judgment. Because our 

holding would not change even if we resolved all these disputes in Fichman’s 

favor, we decline to address the merits of these evidentiary issues.

The district court is AFFIRMED.