The opinion
FILED
NOT FOR PUBLICATION FEB 28 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF JAMES PAUL GARCIA III, No. 12-16434
by and through Special Administrator
Rosa Valdez-Garza, D.C. No. 2:10-cv-00826-JAM-
KJN
Plaintiff - Appellee,
v. MEMORANDUM*
CITY OF SACRAMENTO; RICK
BRAZIEL; GARY DAHL,
Defendants - Appellants.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted February 11, 2014**
San Francisco, California
*
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).
Before: O’SCANNLAIN and MURGUIA, Circuit Judges, and ADELMAN,
District Judge.***
Officer Gary Dahl, Police Chief Rick Braziel, and the City of Sacramento
appeal the district court’s order denying their motion for summary judgment in this
42 U.S.C. § 1983 action brought by the estate of James Garcia.1 Dahl contends
that the district court improperly denied him qualified immunity; the Chief and the
City argue that we have pendant jurisdiction over their appeals.
The parties agree that the canine bite was a serious intrusion on Garcia’s
Fourth Amendment rights. But the officers were seeking a fleeing suspect who had
committed a violent felony. See Sykes v. United States, 131 S. Ct. 2267, 2270
(2011). In addition, the officers involved attempted less forceful methods to arrest
the suspect before deploying a canine, and Dahl gave a canine warning before
beginning his search for the suspect. Under the circumstances, it was not clearly
established that the Fourth Amendment required Dahl to provide an additional
warning before deploying his canine again. See Pearson v. Callahan, 555 U.S.
223, 236, 245 (2009); Miller v. Clark Cnty., 340 F.3d 959, 964–66 (9th Cir. 2003).
***
The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
1
Garcia died of unrelated causes while this suit was pending.
2
Because we do not reach the issue whether Garcia adequately alleged a
constitutional violation, our resolution of Dahl’s appeal does not necessarily
resolve Garcia’s § 1983 claims against the Chief and the City. We may not
exercise pendant appellate jurisdiction over such claims, because they are not
“inextricably intertwined” with the issue of Dahl’s entitlement to qualified
immunity. See Watkins v. City of Oakland, 145 F.3d 1087, 1092 (9th Cir. 1998).
REVERSED in part; DISMISSED in part; and REMANDED. Each
party shall bear its own costs on appeal.2
2
Garcia’s motion to take judicial notice, filed with this Court on
January 14, 2013, is DENIED as moot. Garcia’s motion to file physical exhibits,
filed with this Court on January 24, 2013, is GRANTED.
3