Amado v. City of Tucson Police Department

Full title: Pete AMADO, Plaintiff--Appellant, v. CITY OF TUCSON POLICE DEPARTMENT; et…

Court: United States Court of Appeals, Ninth Circuit

Date published: Dec 11, 2003

83 F. App'x 205 (9th Cir. 2003)

Opinion

Submitted December 8, 2003. ^*

* This case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the District of Arizona, Frank R. Zapata, U.S. District Judge, Presiding. D.C. No. CV-01-00243-FRZ.

Before GOODWIN, WALLACE, and MCKEOWN, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Pete Amado appeals the district court's summary judgment in favor of Officers David Cruze and James Hart on the basis of qualified immunity. ¹ We review de novo, see Bingham v. City of Manhattan Beach, 341 F.3d 939, 945 (9th Cir.2003), and affirm as to Officer Hart, but reverse as to Officer Cruze.

1 Officers Hart and Cruze were the only remaining defendants, the district court having previously dismissed the claims against all other defendants. See District Court Order, CV-01-00243-FRZ, at 1-2 (May 16, 2002).

Amado states a claim for violation of his Fourth Amendment rights because no reasonable officer could have believed the level of force allegedly employed by Cruze was necessary under the circumstances alleged. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). Furthermore, under the circumstances alleged, no reasonable officer could have mistakenly believed that the level of force allegedly employed was constitutionally permissible, and, thus, Cruze is not entitled to summary judgment based on qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201-2, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001).

It is undisputed that Officer Hart did not apply excessive force, and was unaware of the excessive nature of the force applied by Cruze. Thus, Hart's failure to intervene did not violate Amado's constitutional rights, and summary judgment in favor of Hart was appropriate. See Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir.2001).

Pete Amado, pro se, Douglas, AZ, for Plaintiff-Appellant.

Daryl A. Audilett, Esq., Kimble Nelson Audilett, McDonough & Molla PC, Tucson, AZ, for Defendant-Appellee.

AFFIRMED in part and REVERSED in part and REMANDED. Costs shall be awarded to the appellant.