NOT FOR PUBLICATION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, CLERK

U.S. COURT OF APPEALS
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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. For 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 Street in Rancho Cucamonga to execute an 

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 intercepted 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. McGuigan denied any knowledge of or 

acquaintance with Ford, but refused to identify himself. The situation escalated. 

Eventually, 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 Nichols 
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to loosen his cuffs, Nichols would not do so. 

STANDARD OF REVIEW AND JURISDICTION

Because Defendants-Appellants challenge the 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 Cir. 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. Id.

at 836 (internal quotation mark omitted) (quoting Karl v. City of Mountlake 

Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012)). We review de novo DefendantsAppellants’ 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 a 
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concrete and factually defined context [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 the right allegedly violated was clearly 

established is the plaintiff’s burden. Id. at 1118.

Here, McGuigan has not carried this 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 obvious to all reasonable officers (1) that despite the physical similarities 

between McGuigan and Ford, and their two addresses, an officer could not 

reasonably suspect McGuigian 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 us
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to do so are lacking here. See, e.g., Sanchez v. Canales, 574 F.3d 1169, 1172 (9th 

Cir. 2009), overruled 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 denial of summary judgment 

on the basis of qualified immunity is REVERSED AND REMANDED.