# Cortez v. Stubbs

> Court of Appeals for the Ninth Circuit · June 5, 2025

URL: https://www.frixlaw.com/law-library/cases/11065731

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** June 5, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 5 2025
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

MOISES JOSUE CORTEZ, No. 24-2714
D.C. No.
Plaintiff - Appellee, 3:21-cv-00316-ART-CLB
v.
MEMORANDUM*
BRANDON STUBBS, JOSE GUZMAN,
ANGELA SEARLE, SHANE BROWN,
JESSE COZ, MACELEN KLEER, CHET
RIGNEY, DAVID DRUMMOND,
WILLIAM REUBART, CHRISTOPHER
DAVIS, SEAN JOHNSON, JAMES
WEILAND,

Defendants - Appellants,

and

MATTHEW ROMAN, W. GITTERE, R.
GUZMAN, SEARES, EDWARDS,
HERNY,

Defendants.

Appeal from the United States District Court
for the District of Nevada
Anne R. Traum, District Judge, Presiding

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted June 3, 2025**
San Francisco, California

Before: CALLAHAN, BADE, and KOH, Circuit Judges.

Defendants-Appellants Brandon Stubbs, Jose Guzman, Angela Searle, Shane

Brown, Jesse Coz, Macelen Kleer, Chet Rigney, David Drummond, William

Reubart, Christopher Davis, Sean Johnson, and James Weiland appeal the district

court’s denial of their motion for summary judgment asserting qualified immunity

from Plaintiff-Appellee Moises Josue Cortez’s claims of excessive force,

deliberate indifference to serious medical needs, and retaliation in violation of his

First Amendment rights.

The district court denied Defendants’ motion for summary judgment and

denied qualified immunity because they failed to provide authenticated evidence.

Although orders denying motions for summary judgment are typically not

immediately appealable under 28 U.S.C. § 1291, denials of qualified immunity at

the summary judgment stage are immediately reviewable “under the collateral

order exception to finality.” Ballou v. McElvain, 29 F.4th 413, 421 (9th Cir. 2022)

(citation omitted). We have jurisdiction, and we reverse.

We review a “district court’s evidentiary decisions for abuse of discretion,”

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

2
and the appellant must “establish that the error was prejudicial.” Allstate Ins. Co.

v. Herron, 634 F.3d 1101, 1110 (9th Cir. 2011) (internal quotation marks and

citation omitted). “[A] district court abuses its discretion if it applies an incorrect

legal standard to decide an issue.” Las Vegas Sands, LLC v. Nehme, 632 F.3d 526,

532 (9th Cir. 2011).

Here, the district court declined to consider Defendants’ evidence “[b]ecause

Defendants failed to attach their exhibits to an authenticating affidavit,” meaning

“their exhibits [were] not admissible to support their Motion for Summary

Judgment.” However, the district court’s ruling was based on case law interpreting

a version of Federal Rule of Civil Procedure 56 that predates the 2010 amendments

to the rule. Before 2010, Rule 56 required authenticating affidavits for documents

to be considered on a motion for summary judgment. As a result of the 2010

amendments, Rule 56 now provides that “[a] party asserting that a fact cannot be or

is genuinely disputed must support the assertion by . . . citing to particular parts of

materials in the record, including . . . documents.” Fed. R. Civ. P. 56(c)(1)(a). If a

party “object[s] that the material cited to support or dispute a fact cannot be

presented in a form that would be admissible in evidence,” id. 56(c)(2), then “[t]he

burden is on the proponent to show that the material is admissible as presented or

to explain the admissible form that is anticipated,” id., committee note to 2010

amendments. Because the district court denied summary judgment and qualified

3
immunity based on an incorrect legal standard, its error was prejudicial to

Defendants.

REVERSED AND REMANDED.1

1
We decline to consider the merits of the parties’ arguments regarding summary
judgment and qualified immunity in the first instance. See Ecological Rts. Found.
v. Pac. Lumber Co., 230 F.3d 1141, 1154 (9th Cir. 2000) (“Usually, an appellate
court does not consider legal issues in the first instance but instead has the benefit
of the district judge’s initial analysis.”).

4

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11065731. Public record. Not legal advice.