Jimmy Moore v. City of Boise ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMMY C. MOORE, No. 18-35377
Plaintiff-Appellant, D.C. No. 1:16-cv-00346-BLW
v.
MEMORANDUM*
CITY OF BOISE; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted November 18, 2020**
Before: GOODWIN, CANBY, and LEAVY, Circuit Judges.
Jimmy C. Moore, a prisoner in the custody of the Idaho Department of
Correction, filed this 42 U.S.C. § 1983 action alleging that Boise City Police
Officers Dan Muguira and Tad Miller and Community Services Officer Jessica
Bovard used excessive force against him during his arrest for domestic violence.
*
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).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Chudacoff v.
Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1148 (9th Cir. 2011) (summary
judgment), Far Out Prod., Inc. v. Oskar, 247 F.3d 986, 993 (9th Cir. 2001) (rulings
regarding the preclusive effect of a prior judgment). We affirm.
The district court properly granted summary judgment on Moore’s claims
against Officers Muguira and Miller because Moore failed to raise a triable dispute
as to whether their use of force was unconstitutionally excessive. See Davis v. City
of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007) (Fourth Amendment claim for
excessive force “requires balancing the nature and quality of the intrusion on a
person’s liberty with the countervailing governmental interests at stake to
determine whether the force used was objectively reasonably under the
circumstances” (citation and internal quotation marks omitted)).
The district court properly granted summary judgment on Moore’s claim
against Community Services Officer Bovard because Moore failed to raise a triable
dispute as to whether Bovard committed any constitutional violation. See
Chudacoff, 649 F.3d at 1149 (explaining requirements for liability under § 1983).
The district court properly ruled that Moore was collaterally estopped by his
state-court convictions from arguing that he did not commit domestic battery or
resisting arrest. See Rodriguez v. Dep’t of Corr., 29 P.3d 401, 404 (Idaho 2001)
(requirements of collateral estoppel under Idaho law); see also Ayers v. City of
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Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990) (“State law governs the application
of collateral estoppel or issue preclusion to a state court judgment in a federal civil
rights action.”).
The district court did not abuse its discretion by denying Moore’s requests
for appointment of counsel because Moore failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (“[A] court
may under ‘exceptional circumstances’ appoint counsel for indigent civil litigants
pursuant to 28 U.S.C. § 1915(e)(1).”; in evaluating whether “exceptional
circumstances” exist, “a court must consider ‘the likelihood of success on the
merits as well as the ability of the petitioner to articulate his claims pro se in light
of the complexity of the legal issues involved’”; standard of review (citations
omitted)).
The district court did not abuse its discretion by denying Moore’s motion to
extend the deadline for conducting discovery, filed after entry of the pretrial
scheduling order, because Moore failed to show good cause. See Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 607-09 (9th Cir. 1992) (once the
district court has entered a pretrial scheduling order, the timetable to complete
discovery or file motions may be altered only “upon a showing of ‘good cause,’” a
standard that “primarily considers the diligence of the party seeking” the extension;
“If [the moving] party was not diligent, the inquiry should end.”; standard of
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review (citing Fed. R. Civ. P. 16(b)).
The district court did not abuse its discretion by denying as untimely
Moore’s cross-motion for summary judgment because Moore failed to show good
cause for the late filing. See id.The district court did not abuse its discretion by ruling inadmissible portions
of Ryan M. Tone’s affidavit. See Fed. R. Evid. 401, 801(c)(2); Spence v. Peters,
857 F.3d 789, 797 (9th Cir. 2017) (standard of review).
Appellees’ request to strike the Appendix to Moore’s Reply Brief, Dkt. No.
32, is GRANTED.
AFFIRMED.
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