Christopher Kocar v. City of Vader

Ninth Circuit

Christopher Kocar v. City of Vader

534 F. App'x 627

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 24, 2013

Docket12-35687

StatusUnpublished

This text of 534 F. App'x 627 (Christopher Kocar v. City of Vader) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Christopher Kocar v. City of Vader, 534 F. App'x 627 (9th Cir. 2013).

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Opinion

MEMORANDUM ***

The district court did not abuse its discretion when it found that the declarations and affidavits Kocar proffered were inadmissible. The alleged witnesses to the September 8, 2007 tasing incident did not swear to the eight statements submitted by Kocar as is required by 28 U.S.C. § 1746. When Kocar’s counsel re-filed the statements, counsel’s secretary had sworn to the statements’ accuracy, but the witnesses still had not sworn that the transcripts of their interviews were accurate. Because the statements failed to meet the requirements of 28 U.S.C. § 1746, the district court did not abuse its discretion when it ruled the statements inadmissible.

Further, the district court did not err when it granted summary judgment in favor of the cities of Vader and Toledo. Kocar brings state law claims for assault and battery and negligence, as well as a Monell claim under 42 U.S.C. § 1983.

*628 Kocar’s assault and battery claim fails. Kocar offered no evidence that Officer Stennick caused his head injury. Instead, as defendants argue, Kocar had just been involved in a bar fight moments before Officer Stennick arrived on the scene, and Kocar could have received his injury from that incident. Further, Officer Stennick’s use of force was reasonable. Given Ko-ear’s failure to comply with Officer Sten-nick’s repeated commands, and Kocar’s aggressive and menacing actions, we conclude that Officer Stennick’s use of his Taser was not excessive. See Boyles v. City of Kennewick, 62 Wash.App. 174, 813 P.2d 178, 179 (1991).

With respect to negligence, Kocar’s claim fails because he has offered no evidence that Officer Stennick breached any duty owed to him during the incident. See Babcock v. Mason Cnty. Fire Dist. No. 6, 144 Wash.2d 774, 30 P.3d 1261, 1268 (2001).

Finally, Kocar’s Monell claim fails because Kocar has not shown that any alleged constitutional violation was “caused by a policy, practice, or custom of the entity, or ... the result of an order by a policy-making officer.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir.2012) (internal quotation marks omitted).

AFFIRMED.

***

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM ***

The district court did not abuse its discretion when it found that the declarations and affidavits Kocar proffered were inadmissible. The alleged witnesses to the September 8, 2007 tasing incident did not swear to the eight statements submitted by Kocar as is required by 28 U.S.C. § 1746. When Kocar’s counsel re-filed the statements, counsel’s secretary had sworn to the statements’ accuracy, but the witnesses still had not sworn that the transcripts of their interviews were accurate. Because the statements failed to meet the requirements of 28 U.S.C. § 1746, the district court did not abuse its discretion when it ruled the statements inadmissible.

Further, the district court did not err when it granted summary judgment in favor of the cities of Vader and Toledo. Kocar brings state law claims for assault and battery and negligence, as well as a Monell claim under 42 U.S.C. § 1983.

*628 Kocar’s assault and battery claim fails. Kocar offered no evidence that Officer Stennick caused his head injury. Instead, as defendants argue, Kocar had just been involved in a bar fight moments before Officer Stennick arrived on the scene, and Kocar could have received his injury from that incident. Further, Officer Stennick’s use of force was reasonable. Given Ko-ear’s failure to comply with Officer Sten-nick’s repeated commands, and Kocar’s aggressive and menacing actions, we conclude that Officer Stennick’s use of his Taser was not excessive. See Boyles v. City of Kennewick, 62 Wash.App. 174, 813 P.2d 178, 179 (1991).

With respect to negligence, Kocar’s claim fails because he has offered no evidence that Officer Stennick breached any duty owed to him during the incident. See Babcock v. Mason Cnty. Fire Dist. No. 6, 144 Wash.2d 774, 30 P.3d 1261, 1268 (2001).

Finally, Kocar’s Monell claim fails because Kocar has not shown that any alleged constitutional violation was “caused by a policy, practice, or custom of the entity, or ... the result of an order by a policy-making officer.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir.2012) (internal quotation marks omitted).

AFFIRMED.

***

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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