Opinion
21-16207
07-18-2022
FRED DEVINE, Plaintiff-Appellant, v. CHAPMAN, Unknown; et al., Defendants-Appellees, and PHOENIX POLICE DEPARTMENT; et al., Defendants.
NOT FOR PUBLICATION
Submitted July 12, 2022 [**]
Appeal from the United States District Court for the District of Arizona Susan M. Brnovich, District Judge, Presiding D.C. No. 2:19-cv-05745-SMB- MTM
Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.
MEMORANDUM [*]
Fred Devine appeals pro se from the district court's summary judgment in his 42 U.S.C. § 1983 action alleging excessive force in connection with his arrest. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We vacate and remand.
Devine argues that he was never served with a copy of the body camera video footage relied upon by the district court in awarding summary judgment to defendants. It is a "firmly held main rule that a court may not dispose of the merits of a case on the basis of ex parte, in camera submissions." Am.-Arab AntiDiscrimination Comm. v. Reno, 70 F.3d 1045, 1069 (9th Cir. 1995). Because the record is unclear as to whether Devine was served with a copy of the body camera footage, we vacate the judgment and remand for further proceedings, including a determination by the district court as to whether Devine had an opportunity to review the video footage in preparing his opposition to summary judgment.
Devine's request for an update on the status of his appeal (Docket Entry No. 21) is denied as moot. The parties will bear their own costs on appeal.
VACATED and REMANDED.
[*] 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).