Shakina Ortega v. Sdpd

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 1, 2019
• Docket: 17-55564
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 01 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAKINA ORTEGA, individually, and as No. 17-55564 successor of interest of Victor Ortega, deceased; et al., D.C. No. 3:13-cv-00087-LAB-JMA Plaintiffs-Appellants,

v. MEMORANDUM*

SAN DIEGO POLICE DEPARTMENT, a public entity; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted March 28, 2019**

Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

Shakina Ortega, proceeding pro se, appeals the district court’s entry of

judgment following a jury verdict in this 42 U.S.C. § 1983 action alleging

* 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). violations of the Fourth and Fourteenth Amendments and state law. On June 4,

2012, Officer Jonathan McCarthy shot and killed Victor Ortega, Ortega’s husband,

while attempting to take him into custody. Ortega, then represented by counsel,

brought suit individually and on behalf of her minor children and the estate of

Victor Ortega. Following entry of judgment for defendants, Ortega timely

appealed. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

Ortega’s failure to file a post-verdict motion for judgment as a matter of law

precludes appellate review for sufficiency of the evidence to support the verdict.

See Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1088 (9th Cir. 2007) (failure

to file a post-verdict motion under Federal Rule of Civil Procedure 50(b) precludes

even plain error review).

The district court did not err in failing to strike a juror because there was no

“evidence of partiality . . . so indicative of impermissible juror bias that the court

was obliged to strike [the juror] . . . , even though neither counsel made the

request.” United States v. Mitchell, 568 F.3d 1147, 1151 (9th Cir. 2009) (citation

and internal quotation marks omitted); see United States v. Olsen, 704 F.3d 1172,

1191 (9th Cir. 2013) (“[A]ctual bias is not proven by the mere fact that [a juror]

learned about the case from the media and formed prior impressions about it . . .

before the trial.”).

2 The district court did not abuse its discretion in excluding testimony by

Ortega’s sister, Naomi Campbell, as hearsay and because any probative value was

substantially outweighed by the danger of confusing the issues, misleading the

jury, and wasting time. See Fed. R. Evid. 403, 801(c); Harper v. City of L.A., 533

F.3d 1010, 1030 (9th Cir. 2008) (standard of review). Even if there were error,

moreover, Ortega has not shown prejudice. See id. (reversal of an evidentiary

ruling requires a showing of prejudice, that is, that “more probably than not, the . . .

error tainted the verdict” (citation and internal quotation marks omitted)).

The district court did not abuse its discretion in publishing a video recreation

prepared by defendants’ expert Geoffrey Desmoulin, and even if there were error,

Ortega has not shown prejudice. See id.; Rogers v. Raymark Indus., Inc., 922 F.2d

1426, 1432-33 (9th Cir. 1991) (where demonstrative evidence was simply a more

graphic version of what a witness had already said, and plaintiff did not show that

the evidence was inaccurate, any error in admitting it was harmless).

To the extent that Ortega, proceeding pro se, attempts to represent the

interests of her minor children and the estate of Victor Ortega, those parties are not

properly before this court. See Johns v. Cnty. of San Diego, 114 F.3d 874, 877 (9th

Cir. 1997) (noting that “a non-lawyer has no authority to appear as an attorney for

others than himself” and applying this rule where a parent or guardian attempts to

3 bring an action on behalf of a minor child without retaining a lawyer (citation and

internal quotation marks omitted)); accord, e.g., Pridgen v. Andresen, 113 F.3d

391, 392-93 (2d Cir. 1997) (“[A]n administratrix or executrix of an estate may not

proceed pro se when the estate has beneficiaries or creditors other than the

litigant.”).

Ortega’s allegations of attorney misconduct are speculative and unsupported

by the record.

Ortega’s Motion to Supplement the Record on Appeal (Docket No. 19) is

DENIED.

Ortega’s Motion to Assign Original Panel (Docket No. 30) is DENIED.

AFFIRMED.