VINCENT OTYANG V. CITY AND COUNTY OF SAN FRANCIS, No. 13-15639 (9th Cir. 2015)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JUL 31 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT VINCENT OTYANG, No. 13-15639 Plaintiff - Appellant, D.C. No. 3:12-cv-00577-MEJ v. MEMORANDUM* CITY AND COUNTY OF SAN FRANCISCO; JOSE MITRA, Defendants - Appellees. Appeal from the United States District Court for the Northern District of California Maria-Elena James, Magistrate Judge, Presiding** Submitted July 21, 2015*** Before: CANBY, BEA, and MURGUIA, Circuit Judges. Vincent Otyang appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging First Amendment and state law violations * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). in connection with the enforcement of a city ordinance. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007), and we affirm. The district court properly granted summary judgment on Otyang’s § 1983 claim against the City and County of San Francisco because Otyang failed to raise a genuine dispute of material fact as to whether there was a municipal policy, custom, or practice that was the moving force behind the alleged constitutional violation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (explaining municipal liability under § 1983). To the extent that Otyang challenges the city ordinance requiring a permit to erect a table, the district court properly concluded that the ordinance was a reasonable time, place, and manner restriction. See Menotti v. City of Seattle, 409 F.3d 1113, 1129-31 (9th Cir. 2005) (setting forth the factors for determining the constitutionality of time, place, and manner restrictions under the First Amendment). The district court properly granted summary judgment on Otyang’s § 1983 claim against Mitra on the basis of qualified immunity. See Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 967 (9th Cir. 2010) (discussing qualified immunity analysis); Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir. 1994) (“[T]he existence of a statute or ordinance authorizing particular conduct is a 2 13-15639 factor which militates in favor of the conclusion that a reasonable officer would find that conduct constitutional.”). The district court properly granted summary judgment on Otyang’s state law claims because Otyang failed to raise a genuine issue of material fact as to the existence of essential elements of each claim. See Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009) (elements of negligence under California law); Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 770 P.2d 278, 281 (Cal. 1989) (elements of negligent infliction of emotional distress under California law); So v. Shin, 151 Cal. Rptr. 3d 257, 268-70 (Ct. App. 2013), as modified on denial of reh’g (Jan. 28, 2013) (elements of assault, battery, and intentional infliction of emotional distress under California law). We do not consider facts not presented to the district court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“[F]acts not presented to the district court are not part of the record on appeal.”). We reject Otyang’s contentions regarding the inapplicability of the permitting ordinance. AFFIRMED. 3 13-15639

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