FILED
NOT FOR PUBLICATION
MAR 14 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELIX SANCHEZ, No. 14-55761
Plaintiff - Appellant, D.C. No. 2:13-cv-02539-RGK-E
v.
MEMORANDUM*
CITY OF HAWTHORNE,
a public entity; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted March 7, 2016
Pasadena, California
Before: CLIFTON and IKUTA, Circuit Judges and BLOCK,** Senior District
Judge.
Plaintiff Felix Sanchez appeals the district court’s grant of summary
judgment in favor of Defendants City of Hawthorne, Hawthorne Police
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Department, Officer Jose Gomez, and Officer Sarah Lewis with respect to his
claims under 42 U.S.C. § 1983 and California law. Sanchez also appeals the
district court’s denial of his motion for amended or additional findings seeking
consideration of an unpled claim for failure to provide medical care.
(1) The district court, relying on Scott v. Harris, 550 U.S. 372 (2007),
determined that no reasonable jury could credit Sanchez’s account of his injuries
and therefore ruled that Defendants were entitled to summary judgment on
Sanchez’s excessive force claim and assault and battery claim. We disagree. The
dash camera video of the incident underlying Sanchez’s claims does not “blatantly
contradict” the entirety of Sanchez’s version of events. At most, the video
contradicts one of Sanchez’s allegations tangentially related to the allegations of
excessive force, namely that Officer Gomez ran past him before he fell from the
curb. That Sanchez might have been incorrect as to the sequence of that event does
not mean that the jury could not believe other parts of his testimony.
Defendants raise a number of arguments in support of summary judgment
that were not addressed by the district court. Although this court may affirm a
grant of summary judgment on any basis supported by the record, Gordon v.
Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009), none of Defendants’
alternative arguments supports that result.
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We vacate the summary judgment and remand for further proceedings.
(2) The district court properly denied Sanchez’s motion for amended or
additional findings. Contrary to Sanchez’s assertions, Defendants did not consent
to try the unpled failure to provide medical care claim. Defendants specifically
objected to consideration of that claim. We therefore affirm the district court’s
denial of Sanchez’s motion.
Each party to bear its own costs.
VACATED AND REMANDED IN PART AND AFFIRMED IN PART.
3