NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CESAR GEOVANY VALDES FLORES, No. 20-16373 Plaintiff-Appellant, D.C. No. 2:19-cv-05182-SPL-CDB v. MEMORANDUM* GRAND CANYON EDUCATION INCORPORATED, AKA Grand Canyon University; et al., Defendants-Appellees, and BRIAN E. MUELLER; et al., Defendants. Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding Submitted September 14, 2021** Before: PAEZ, NGUYEN, and OWENS, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Former Immigration and Customs Enforcement detainee Cesar Geovany Valdes Flores appeals pro se from the district court’s judgment dismissing for failure to state a claim Flores’s action alleging constitutional claims under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). We may affirm on any basis supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm in part, vacate in part, and remand. The district court properly dismissed Flores’s malicious prosecution claim because Flores failed to allege facts sufficient to show that defendants were prosecutors and that the arresting officers lacked probable cause to arrest Flores for trespassing. See Lacey v. Maricopa County, 693 F.3d 896, 919 (9th Cir. 2012) (en banc) (setting forth elements of a § 1983 malicious prosecution claim); Blankenhorn v. City of Orange, 485 F.3d 463, 475 (9th Cir. 2007) (observing that the “inquiry is not whether [the arrestee] was trespassing,” but “whether a reasonable officer had probable cause to think he could have been”) (citations omitted); Overson v. Lynch, 317 P.2d 948, 949 (Ariz. 1957) (setting forth elements of state tort of malicious prosecution); see also Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002-03 (9th Cir. 2018) (noting that the district court may 2 20-16373 consider documents upon which the plaintiff’s complaint necessarily relies); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (explaining that although pro se pleadings are liberally construed, plaintiff must allege facts sufficient to state a plausible claim). The district court properly dismissed Flores’s racial discrimination claim because Flores failed to allege facts sufficient to show that the arresting officers lacked reasonable suspicion that Flores was a noncitizen illegally in the United States. See 8 CFR §§ 287.8(b)(2), (c)(2)(i); 8 U.S.C. § 1357(a)(2). To the extent Flores raised Bivens claims, dismissal was proper because Flores failed to allege facts sufficient to show a constitutional violation. See Lanuza v. Love, 899 F.3d 1019, 1025-26 (9th Cir. 2018) (discussing extension of Bivens remedy); see also Regents of the Univ. of California v. …
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