Tracey Bogle v. Craig Roberts

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TRACEY E. BOGLE, No. 17-35980

Plaintiff-Appellant, D.C. No. 3:15-cv-00013-SI

v. MEMORANDUM* CRAIG ROBERTS, in his Official Capacity as Clackamas County Sheriff; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted December 6, 2018**

Before: FARRIS, TROTT, and TALLMAN, Circuit Judges.

Tracey E. Bogle appeals pro se from the district court’s summary judgment

in his 42 U.S.C. § 1983 action alleging that officers used excessive force when

arresting him. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

the district court’s summary judgment and an officer’s entitlement to qualified

* 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). immunity. Glenn v. Washington County, 673 F.3d 864, 870 (9th Cir. 2011). We

affirm.

The district court properly granted summary judgment on Bogle’s excessive

force claim premised on a first dog bite because, after resolving all factual disputes

in favor of Bogle, defendants’ use of a canine was objectively reasonable. See

Smith v. City of Hemet, 394 F.3d 689, 700-01 (9th Cir. 2005) (en banc) (setting

forth standard for claim of excessive force during arrest). Contrary to Bogle’s

assertions, we do not find any indication in his opinion that the district court acted

as a trier of fact and made credibility determinations.

The district court properly granted summary judgment on Bogle’s excessive

force claim against Robinson because Bogle failed to raise a genuine dispute of

material fact as to whether Robinson’s use of force was objectively reasonable.

See id. In resolving defendants’ motion on this claim, the district court did not

abuse its discretion by applying the sham affidavit rule to disregard Bogle’s factual

statements that clearly contradicted his prior deposition testimony. See Yeager v.

Bowlin, 693 F.3d 1076, 1079-80 (9th Cir. 2012) (requirements for sham affidavit

rule and standard of review).

The district court properly granted summary judgment on the basis of

qualified immunity on Bogle’s excessive force claim arising from McGlothin’s use

of a canine because there are no cases “where an officer acting under similar

2 17-35980 circumstances . . . was held to have violated the Fourth Amendment.” White v.

Pauly, 137 S. Ct. 548, 552 (2017) (clearly established law must be “particularized”

to the facts of the case).

The district court properly granted summary judgment on Bogle’s municipal

liability claim because Bogle failed to raise a genuine dispute of material fact as to

whether the county maintained a custom or policy of using excessive force. See

Rodriguez v. County of Los Angeles, 891 F.3d 776, 802-03 (9th Cir. 2018)

(requirements for municipal liability under § 1983). To the extent that Bogle

raised a facial challenge, Bogle failed to raise a genuine dispute of material fact as

to whether the county’s canine use of force policy could not be applied in a

constitutional manner. See Lanier v. City of Woodburn, 518 F.3d 1147, 1150 (9th

Cir. 2008) (“[A] policy of general applicability is facially valid unless it can never

be applied in a constitutional manner.”).

The district court properly granted summary judgment for Roberts because

Bogle failed to raise a genuine dispute of material fact as to a causal connection

between Roberts’s personal conduct and the alleged constitutional violations, or

whether Roberts ratified any alleged wrongdoing by defendants. See Rodriguez,

891 F.3d at 798 (requirements for supervisory liability under § 1983).

The district court did not abuse its discretion by denying Bogle’s motion for

leave to amend his complaint because leave to amend would have caused undue

3 17-35980 delay and potential prejudice to defendants. See AmerisourceBergen Corp. v.

Dialysist West, Inc., 465 F.3d 946, 949, 951-954 (9th Cir. 2006) (setting forth

standard of review and explaining that leave to amend can be denied on the basis

of prejudice or undue delay).

The district court did not abuse its discretion by denying in part Bogle’s

motions to compel discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.

2002) (standard of review; discovery rulings “will not be disturbed except upon the

clearest showing that denial of discovery results in actual and substantial prejudice

to the complaining litigant” (citation and internal quotation marks omitted)).

The district court did not abuse its discretion by denying Bogle’s motion for

appointment of an expert witness. See Walker v. Am. Home Shield Long Term

Disability Plan, 180 F.3d 1065, 1070-71 (9th Cir. 1999) (standard of review).

AFFIRMED.

4 17-35980