stating that a court may exercise its discretion to review newly presented issues when there are exceptional circumstances, a change in law while appeal was pending, or when the issue is a pure issue of law and the opposing party will suffer no prejudice
How later courts described this case
- stating that a court may exercise its discretion to review newly presented issues when there are exceptional circumstances, a change in law while appeal was pending, or when the issue is a pure issue of law and the opposing party will suffer no prejudice
- “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
AUG 8 2024
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK DAVID BROWN, No. 23-15619
Plaintiff-Appellant, D.C. No.
4:21-cv-00050-DCB
v.
PETER BASZNIANYN; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted August 8, 2024**
San Francisco, California
Before: WALLACE, O’SCANNLAIN, FERNANDEZ, Circuit Judges.
Plaintiff-Appellant Mark David Brown appeals pro se from the district
court’s order granting summary judgment in favor of, and entering final judgment
for, Defendants-Appellees in his action alleging excessive force during his pretrial
detention. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the
*
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).
district court’s resolution of legal questions at summary judgment de novo, and the
district court’s factual findings for clear error. See Al Haramain Islamic Found.,
Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 976 (9th Cir. 2012). We affirm.
The district court did not err in granting summary judgment. An excessive
force claim fails if the officers’ use of force against a pretrial detainee was
objectively reasonable under the Fourteenth Amendment.1 See Kingsley v.
Hendrickson, 576 U.S. 389, 397 (2015); Hughes v. Rodriguez, 31 F.4th 1211, 1220
(9th Cir. 2022). It is undisputed that Brown, who was responsive but
uncooperative upon his arrival in the parking lot of the Pima County Adult
Detention Center, resisted vigorously when Defendants-Appellees tried to pat him
down and escort him into the center. Defendants-Appellees had a legitimate
interest in maintaining the safety of the detention center. See Kingsley, 576 U.S. at
399–400. Defendants-Appellees offered video evidence and sworn declarations
supporting their statements that they placed Brown in the restraint chair due his
noncompliance with their repeated commands using only the amount of force
necessary to secure the restraints, and that Brown did not lose consciousness or
suffer any injuries due to their actions. Cf. id. at 397, citing Graham v. Connor,
490 U.S. 386, 396 (1989) (describing factors courts may consider in determining
1
Although Brown alleged excessive force in violation of the Fourth
Amendment, “we construe pro se complaints liberally, especially in civil rights
cases.” Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014).
2
whether the use of force was “objectively reasonable”). Brown has neither
produced evidence to controvert Defendants-Appellees’ evidence nor identified
material inconsistencies in their statements. Brown has thus failed to show a
genuine dispute of material fact that would preclude the entry of summary
judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only
disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Brown’s allegations regarding other potential constitutional violations or vicarious
liability, to the extent that he raises them in his briefing, are waived because they
were not raised in the district court.2 See Manta v. Chertoff, 518 F.3d 1134, 1144
(9th Cir. 2008).
AFFIRMED.
2
The three narrow exceptions to this general rule do not apply here. See
United States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir. 2005) (stating that
a court may exercise its discretion to review newly presented issues when there are
exceptional circumstances, a change in law while appeal was pending, or when the
issue is a pure issue of law and the opposing party will suffer no prejudice).
3