Fred Devine v. Chapman ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED DEVINE, No. 21-16207
Plaintiff-Appellant, D.C. No. 2:19-cv-05745-SMB-
MTM
v.
CHAPMAN, Unknown; et al., MEMORANDUM*
Defendants-Appellees,
and
PHOENIX POLICE DEPARTMENT; et al.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Susan M. Brnovich, District Judge, Presiding
Submitted July 12, 2022**
Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.
Fred Devine appeals pro se from the district court’s summary judgment in
*
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).
his 42 U.S.C. § 1983 action alleging excessive force in connection with his arrest.
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 vacate and remand.
Devine argues that he was never served with a copy of the body camera
video footage relied upon by the district court in awarding summary judgment to
defendants. It is a “firmly held main rule that a court may not dispose of the merits
of a case on the basis of ex parte, in camera submissions.” Am.-Arab Anti-
Discrimination Comm. v. Reno, 70 F.3d 1045, 1069 (9th Cir. 1995). Because the
record is unclear as to whether Devine was served with a copy of the body camera
footage, we vacate the judgment and remand for further proceedings, including a
determination by the district court as to whether Devine had an opportunity to
review the video footage in preparing his opposition to summary judgment.
Devine’s request for an update on the status of his appeal (Docket Entry No.
21) is denied as moot.
The parties will bear their own costs on appeal.
VACATED and REMANDED.
2 21-16207