Fred Devine v. Phoenix Fire Department

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 29, 2024
• Docket: 23-15192
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRED DEVINE, No. 23-15192

Plaintiff-Appellant, D.C. No. 2:19-cv-05745-SMB- MTM v.

PHOENIX FIRE DEPARTMENT, Named as MEMORANDUM* Phoenix Fire Department, et al.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Susan M. Brnovich, District Judge, Presiding

Submitted March 26, 2024**

Before: TASHIMA, SILVERMAN, and KOH, Circuit Judges.

Fred Devine appeals pro se from the district court’s summary judgment in

his 42 U.S.C. § 1983 action alleging excessive force under the Fourth Amendment.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v.

Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.

* 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). The district court properly granted summary judgment because Devine failed

to raise a genuine dispute of material fact as to whether defendants used excessive

force in arresting him. See Graham v. Connor, 490 U.S. 386, 396-98 (1989)

(setting forth objective reasonableness standard for excessive force

determinations); see also Scott v. Harris, 550 U.S. 372, 380 (2007) (an assertion

that is “blatantly contradicted by the record, so that no reasonable jury could

believe it” will not create a genuine dispute of material fact at summary judgment).

The district court did not abuse its discretion in denying Devine’s motion to

preclude the officer body camera videos because Devine failed to establish that the

evidence was inadmissible. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773

(9th Cir. 2002) (setting forth standard for review and explaining that a court can

consider admissible evidence in ruling on a motion for summary judgment).

The district court did not abuse its discretion in denying Devine’s motion to

defer ruling on defendants’ motion for summary judgment because Devine failed

to show that allowing further discovery would have precluded summary judgment.

See Fam. Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822,

827-28 (9th Cir. 2008) (setting forth standard of review and required showing for

granting a continuance on a motion for summary judgment).

The district court did not abuse its discretion in denying Devine’s motion for

sanctions because Devine failed to establish that defendants’ counsel made any

2 23-15192 misstatements to the court. See Anheuser-Busch, Inc. v. Nat. Beverage Distribs.,

69 F.3d 337, 348 (9th Cir. 1995) (setting forth standard of review and discussing a

court’s inherent power to sanction parties).

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not

consider documents not presented to the district court. See United States v. Elias,

921 F.2d 870, 874 (9th Cir. 1990).

Devine’s motion to supplement the record (Docket Entry No. 9) is denied.

AFFIRMED.

3 23-15192