Joseph Ortega v. Kurt Rodenspiel , 617 F. App'x 795 ( 2015 )

FILED
NOT FOR PUBLICATION
SEP 25 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH ALEJANDRO ORTEGA, No. 13-16207
Plaintiff - Appellant, D.C. No. 4:10-cv-03239-YGR
v.
MEMORANDUM*
KURT RODENSPIEL; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted September 15, 2015
San Francisco, California
Before: CALLAHAN, CHRISTEN, and FRIEDLAND, Circuit Judges.
Plaintiff Joseph Alejandro Ortega appeals the district court’s order granting
summary judgment in favor of Defendants on Ortega’s Fourth Amendment claim,
brought under 42 U.S.C. § 1983, and on several state law claims. Ortega also
appeals the district court’s denial of his motion to alter or amend the judgment
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under Federal Rule of Civil Procedure 59(e). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
We review de novo a district court’s order granting summary judgment.
Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc), cert. denied, 135 S.
Ct. 403 (2014). We review a district court’s denial of a Rule 59(e) motion for
abuse of discretion. Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5
F.3d 1255, 1262 (9th Cir. 1993).
An officer’s use of deadly force is reasonable and consistent with the Fourth
Amendment if “it is necessary to prevent . . . escape and the officer has probable
cause to believe that the suspect poses a significant threat of death or serious
physical injury to the officer or others.” Tennessee v. Garner, 471 U.S. 1, 3
(1985); see also Scott v. Harris, 550 U.S. 372, 382 (2007) (characterizing Garner
as “an application of the Fourth Amendment’s ‘reasonableness’ test” (citing
Graham v. Connor, 490 U.S. 386, 388 (1989))). Here, the district court properly
accepted the jury’s finding from Ortega’s criminal trial for assault with a deadly
weapon that Ortega “used his car in such a way that was . . . likely to cause death
or great bodily injury.” See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (plaintiff
cannot recover on § 1983 claim if doing so necessarily implies invalidity of
plaintiff’s criminal conviction). Thus, Officer Rodenspiel acted reasonably when
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he fired his weapon in response to Ortega’s threat of death or serious injury. See
Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc) (the “most
important” factor in assessing the reasonableness of the use of force is “whether
the suspect poses an immediate threat to the safety of the officers or others”)
(quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)).
Ortega argues that there is a genuine dispute as to whether this deadly threat
had dissipated when Officer Rodenspiel fired his weapon. We disagree. There are
no facts in the record from which a reasonable jury could infer a meaningful gap in
time between Ortega’s assault and the shooting. And in light of Ortega’s
potentially ongoing threat, no reasonable jury could have concluded that the risk
firing the weapon created for other officers rendered the use of force unreasonable.
Because Officer Rodenspiel’s use of deadly force was reasonable, the
district court properly granted summary judgment to Defendants on Ortega’s
Fourth Amendment claim, see Graham, 490 U.S. at 388, and on Ortega’s state law
claims, see Cal. Civ. Code § 52.1 (Bane Act, permitting suit for constitutional
violations); Hernandez v. City of Pomona, 207 P.3d 506, 513–14 (Cal. 2009)
(negligence); Edson v. City of Anaheim, 74 Cal. Rptr. 2d 614, 616 (Cal. Ct. App.
1998) (battery). Finally, the district court did not abuse its discretion in denying
Ortega’s motion to alter or amend the judgment.
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AFFIRMED.
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