NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL MATTHEW MCGUIGAN,

Plaintiff

- Appellee,

v. COUNTY OF SAN BERNARDINO,

Defendant,
and CHARLES NICHOLS; CHARLES MULLIGAN; PAUL SCHAEFER,

Defendants

- Appellants. No. 16

- 55492
D.C. No. 5:14

- cv - 02483

- VAP

- SP

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief Judge, Presiding Argued and Submitted October 2, 2017 Pasadena, California Before: M. SMITH and NGUYEN, Circuit Judges, and SETTLE, ** District Judge.

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

- 3.

** The Honorable Benjamin H. Settle, United States District Judge for the Western District of Washington, sitting by designation. 

# FILED

OCT 12 2017 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Defendants

- Appellants argue that they are entitled to qualified immunity with regard to Plaintiff

- Appellee McGuigan’s unlawful seizure , excessive force , and malicious prosecution claims brought under 42 U.S.C. § 1983

. F or the reasons
stated below , we agree , and so reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND For purposes of this appeal, we accept as true the following factual account proffered by McGuigan, and draw all inferences therefrom in his favor. On the evening of October 23, 2013, Defendant

- Appellant Nichols went to McGuigan’s home at 8411 Hawthorne St reet in Rancho Cucamonga to execute a n active felony arrest warrant for an individual named Erik Ford. The warrant
indicated that Ford resided at that address , though in a different zip code. It
described Ford as a white male who was 5’8” tall , weighed 180 pounds , had blonde hair and green eyes, and was born in 1970. McGuigan interce pted Nichols on the home’s front porch. McGuigan was a white man , had “dark black” hair and blue eyes, weighed 215 pounds, and was
6’0” tall. He was born in 1967. McGuig an denied any knowledge of or acquaintance with Ford, but refused to identify himself. T he situation escalated

. E ventually , Nichols arrested McGuigan for impeding Nichols’s investigation in
violation of California Penal Code § 148. To effect this arrest , Nichols shoved McGuigan against a wall and handcuffed him. Though McGuigan asked Nichols3

to loosen his cuffs, Nichols would not do so

.

STANDARD OF REVIEW AND JURISDICTION
Because Defendants

- Appellants challenge t he district court’s denial of qualified immunity , “we have jurisdiction over the denial of summary judgment, an interlocutory decision not normally appealable[,]” though the “scope” of our review “is circumscribed.” George v. Morris , 736 F.3d 829 , 834 (9th C ir. 2013)

. “[W]e are confined to the question of whether the [Defendants

- Appellants] would be entitled to qualified immunity as a matter of law, assuming all factual disputes are resolved, and all reasonable inferences are drawn,” in favor of McGuigan

. I d.
at 836 (internal quotation mark omitted) (quoting Karl v. City of Mountlake
Terrace , 678 F.3d 1062, 1068 (9th Cir. 2012) )

. W e review de novo Defendants

Appellants’ entitlement to qualified immunity

. See Glenn v. Wash. Cty. , 673 F.3d 864, 870 (9th Cir. 2011).
ANALYSIS “To determine whether qualified immunity applies in a given case, we must determine: (1) whether a public official has violated a plaintiff’s constitutionally protected right; and (2) whether the particular right that the official has violated was clearly established at the time of the violation.” Shafer v. Cty. of Santa
Barbara , 868 F.3d 1110, 1115 (9th Cir. 2017) . For a right to be clearly established, case law ordinarily must have been developed previously “ in such a4

concrete and factually defined cont ext [as] to make it obvious to all reasonable government actors, in the defendant’s place, ” that the defendant’s conduct violates
federal law. Id. at 1117

. Showing that th e right allegedly violated was clearly established is the plaintiff’s burden. Id. at 1118. Here, McGuigan has not carried t his burden; he has not identified law that
would make it obvious to all reasonable officers, in the Defendants

- Appellants’ place, that what they did violated federal law. Thus, we cannot conclude that it

was obviou s to all reasonable officers (1) that despite the physical similarities
between McGuigan and Ford, and their two addresses, an officer could not reasonably suspect McGu i gian was Ford or was harboring Ford; or (2) that it was
excessive force to restrain McGuigan against a wall and refuse to loosen his handcuffs, though McGuigan did not complain of pain. Defendants

- Appellants are entitled to qualified immunity with regard to McGuigan’s detention and the force
used to effect McGuigan’s arrest

. In light of this holding, McGuigan’s malicious prosecution claim is moot.
Because Defendants

- Appellants are entitled to qualified immunity with regard to McGuigan’s detention and arrest, there is no basis for a malicious prosecution
claim.
We decline to exercise pendent jurisdiction to review the district court’s grant of qualified immunity because the special circumstances that might allow us5

to do so are lacking here

. See , e.g. , Sanchez v. Canales , 574 F.3d 1169, 1172 (9th Cir. 2009), overr uled on other grounds by United States v. King , 687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam) ; Cunningham v. Gates , 229 F.3d 1271,
1284

- 85 (9th Cir. 2000), as amended (Oct. 31, 2000)

. CONCLUSION For the foregoing reasons, the district court’s den ial of summary judgment
on the basis of qualified immunity is REVERSED AND REMANDED.