Elvira Fernandez v. Sergio Virgillo

651 F. App'x 692

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 10, 2016
• Docket: 14-16374
• Status: Unpublished

Opinion

MEMORANDUM *

Elvira Fernandez and Frank Rodriguez (collectively “Fernandez”) appeal from the district court’s grant of summary judgment in favor of Sergio Virgilio in their § 1983 suit. Because the facts are known to the parties, we do not repeat them here.

I

The district court did not err in granting summary judgment on Fernandez’s claim that Virgilio used excessive force by deploying his taser against Daniel Rodriguez. Arizona law prevents Fernandez from recovering damages for Daniel’s pre-death pain and suffering. See Ariz. Rev. Stat. § 14-3110. The district court correctly held that such law bars Fernandez’s claim; applying Arizona’s law does not frustrate the purposes of § 1983 where, as here, the alleged constitutional violation did not cause the victim’s death. See Robertson v. Wegmann, 436 U.S. 584, 590-92, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978); Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1103-05 (9th Cir. 2014).

In any event, notwithstanding the limitations imposed by Arizona law, Virgilio is entitled to qualified immunity, because it was not clearly established on October 5, 2010, that Virgillo’s use of his taser was excessive in the circumstances. See Taylor v. Barkes, — U.S. -, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (per curiam) (discussing qualified immunity standards); Mattos v. Agarano, 661 F.3d 433, 452 (9th Cir. 2011) (en banc) (granting qualified immunity in two separate excessive force claims involving use of a taser).

II

The district court did not err in granting summary judgment on Fernandez’s claim that Virgilio failed to intercede to prevent Chrisman from shooting and killing Daniel. Virgilio did intervene by talking calmly to Daniel and persuading him to leave the trailer, and it is undisputed that Virgillo’s efforts at least momentarily calmed the situation and appeared to relieve any danger to Daniel. .Virgilio is entitled to qualified immunity, because Fernandez can point to no authority clearly establishing that he needed to intervene in some other manner, at least prior to the point that Chrisman blocked Daniel’s path and redrew his gun, once again escalating the situation. See Taylor, 135 S.Ct. at 2044-45.

Although she attempts to do so on appeal, Fernandez did -not explicitly argue to the district court that Virgilio had an opportunity to intervene further in the period of seconds between- when Chrisman re-escalated the situation and when he shot Daniel. In any event, the district court did not err in holding that such a fleeting period of time did not offer a realistic opportunity for Virgilio to intercede in a meaningful way, and that he is not liable for failing to do so. Cf., e.g., Ting v. United States, 927 F.2d 1504, 1512 (9th Cir. 1991) (“[T]he agents were positioned around the room ... and were thus physically incapable of preventing the incidents surrounding the shooting, all of which transpired in a matter of seconds.”).

Ill

The district court did not err in granting summary judgment on Fernandez’s loss of familial association claim. Fernandez has not pointed to any evidence that would allow a reasonable jury to conclude that Virgilio acted with the requisite “purpose to harm unrelated to legitimate law enforcement objectives.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). There is no support for Fernandez’s contention that Chrisman’s purposes are imputed to Virgilio, especially because (as noted) the district court correctly held that Virgilio is not liable for failing to prevent Chrisman’s actions.

AFFIRMED.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.