Andrew Hamer v. City of Eureka , 669 F. App'x 926 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ANDREW HAMER, No. 14-16700
14-16705
Plaintiff-Appellee,
D.C. No. 4:12-cv-06077-JSW
v.
CITY OF EUREKA; et al., MEMORANDUM*
Defendants-Appellants,
and
COUNTY OF HUMBOLDT; et al.,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted September 15, 2016
San Francisco, California
Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendants, City of Eureka, County of Humboldt, and officials in their
public and individual capacities, appeal from the district court’s denial of summary
judgment. We have jurisdiction under 28 U.S.C. § 1291, and we review de novo a
denial of summary judgment. See Johnson v. Bay Area Rapid Transit District, 724
F.3d 1159, 1168 (9th Cir. 2013). We affirm in part, reverse in part, and remand.
We reverse the district court and grant summary judgment to Sergeant Nova
in both his individual and official capacity. Because Plaintiff was jaywalking in
violation of California Vehicle Code section 21955, Sergeant Nova had probable
cause to order an arrest. See Atwater v. City of Lago Vista, 532 U.S. 318, 354
(2001); Blankenhorn v. City of Orange, 485 F.3d 463, 471–72 (9th Cir. 2007).
We reverse the district court and grant summary judgment to Police Chief
Harpham in his individual capacity. Defendant Harpham’s only direct involvement
with Plaintiff was Harpham’s failed attempt to detain Plaintiff after Sergeant Nova
ordered Plaintiff’s arrest. Because he never made contact with Plaintiff, he was
entitled to qualified immunity as a matter of law.
However, we affirm the district court’s denial of summary judgment to
Defendant Harpham in his official capacity and to the City of Eureka. There are
genuine issues of material fact as to whether he and the City are liable under
Monell v. Department of Social Services of New York, 436 U.S. 658 (1978), for
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failure to train Officer Liles. See Collins v. City of Harker Heights, 503 U.S. 115,
122–24 (1992); Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).
We affirm the district court’s denial of summary judgment to Officer Liles
and Deputies Crosswhite and Mowery. Given that a permissible interpretation of
the video is that Liles tackled Plaintiff using excessive force, Officer Liles is not
entitled to summary judgment. See Graham v. Connor, 490 U.S. 386, 396–97
(1989), Wilkinson v. Torres, 610 F.3d 546, 550–51 (9th Cir. 2010). Similarly,
because both Deputies Mowrey and Crosswhite struck Plaintiff with their batons –
Mowrey multiple times and Crosswhite once – it is a permissible interpretation of
the video that they did so with excessive force. They are therefore not entitled to
summary judgment. The underlying factual disputes that gave rise to these claims
are appropriate for a jury determination. See, e.g., Chew v. Gates, 27 F.3d 1432,
1440 (9th Cir. 1994).
Plaintiff has not pursued his policy and failure-to-train claim against
Defendant Humboldt County under Monell. The only Monell claim that remains is
a ratification claim. We decline to exercise pendent jurisdiction over this aspect of
the district court’s order, as it is not “inextricably intertwined” with the other issues
involved in this appeal. Watkins v. City of Oakland, 145 F.3d 1087, 1092 (9th Cir.
1998) (quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 51 (1995)).
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We also decline to review any other issues besides those above, including
any First Amendment claims raised before the district court. The district court
declined to reach those issues in the decision below, and we therefore lack
jurisdiction to entertain them upon appeal.
Each party shall bear its own costs associated with this appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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