Christopher Kocar v. City of Vader , 534 F. App'x 627 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER KOCAR, a single person, No. 12-35687
Plaintiff - Appellant, D.C. No. 3:09-cv-05697-RBL
v.
MEMORANDUM*
CITY OF VADER, a municipality and
CITY OF TOLEDO, a municipality,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted July 11, 2013**
Seattle, Washington
Before: M. SMITH and N.R. SMITH, Circuit Judges, and WALTER, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
The district court did not abuse its discretion when it found that the
declarations and affidavits Kocar proffered were inadmissible. The alleged
witnesses to the September 8, 2007 tasing incident did not swear to the eight
statements submitted by Kocar as is required by 28 U.S.C. § 1746. When Kocar’s
counsel re-filed the statements, counsel’s secretary had sworn to the statements’
accuracy, but the witnesses still had not sworn that the transcripts of their
interviews were accurate. Because the statements failed to meet the requirements
of 28 U.S.C. § 1746, the district court did not abuse its discretion when it ruled the
statements inadmissible.
Further, the district court did not err when it granted summary judgment in
favor of the cities of Vader and Toledo. Kocar brings state law claims for assault
and battery and negligence, as well as a Monell claim under 42 U.S.C. § 1983.
Kocar’s assault and battery claim fails. Kocar offered no evidence that
Officer Stennick caused his head injury. Instead, as defendants argue, Kocar had
just been involved in a bar fight moments before Officer Stennick arrived on the
scene, and Kocar could have received his injury from that incident. Further,
Officer Stennick’s use of force was reasonable. Given Kocar’s failure to comply
with Officer Stennick’s repeated commands, and Kocar’s aggressive and menacing
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actions, we conclude that Officer Stennick’s use of his Taser was not excessive.
See Boyles v. City of Kennewick, 813 P.2d 178, 179 (Wash. Ct. App. 1991).
With respect to negligence, Kocar’s claim fails because he has offered no
evidence that Officer Stennick breached any duty owed to him during the incident.
See Babcock v. Mason Cnty. Fire Dist. No. 6, 30 P.3d 1261, 1268 (Wash. 2001).
Finally, Kocar’s Monell claim fails because Kocar has not shown that any
alleged constitutional violation was “caused by a policy, practice, or custom of the
entity, or . . . the result of an order by a policy-making officer.” Tsao v. Desert
Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (internal quotation marks
omitted).
AFFIRMED.
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