Thomas Glenn v. City of Portland

FILED
NOT FOR PUBLICATION OCT 22 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS GLENN; PATSY McKINNEY, No. 13-35764
Plaintiffs - Appellants, D.C. No. 3:11-cv-00402-MO
v.
MEMORANDUM*
CITY OF PORTLAND,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted October 14, 2015**
Before: SILVERMAN, BERZON, and WATFORD, Circuit Judges.
Thomas Glenn and Patsy McKinney (“Appellants”) appeal pro se from the
district court’s judgment in favor of the City of Portland following a jury trial in
their 42 U.S.C. § 1983 action alleging constitutional and state law claims relating
to the police’s warrantless entry into their home. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review for an abuse of discretion challenges for cause, Hard v.
Burlington N. R. Co., 870 F.2d 1454, 1460 (9th Cir. 1989), and for manifest error a
trial court’s findings of juror impartiality, Skilling v. United States, 561 U.S. 358,
396 (2010). We affirm.
The district court did not abuse its discretion in denying Appellants’ request
to excuse Juror No. 6 for cause. Although Juror No. 6 had a friend in law
enforcement, he “confirmed his ability to judge the case fairly.” Image Tech.
Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1220 (9th Cir. 1997) (a party
“can only succeed on a challenge for cause by showing that [a juror] was actually
biased”); cf. Tinsley v. Borg, 895 F.2d 520, 529 (9th Cir. 1990) (jurors are not
presumed to be biased solely because they are in law enforcement). Further, any
error was harmless because Juror No. 6 did not sit on the jury.
The district court did not clearly err by denying Appellants’ challenge under
Batson v. Kentucky, 476 U.S. 79 (1986) to Juror No. 2 because the City proffered a
race-neutral reason for its peremptory challenge and Appellants failed to show
purposeful discrimination. See SmithKline Beecham Corp. v. Abbott Labs., 740
F.3d 471, 476 (9th Cir. 2014) (setting forth three-part test under Batson); Johnson
v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996) (standard of review). Moreover, the
City was entitled to use its peremptory challenges to remove any jurors who had
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witnessed excessive force by the police. See Alaska Rent-A-Car, Inc. v. Avis
Budget Grp., Inc., 738 F.3d 960, 966 (9th Cir. 2013) (a party is entitled to
peremptory challenges unless they are exercised in a manner violative of Batson).
We reject Glenn’s contention that he was coerced into dropping his battery
claim.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
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