NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE NEWMAN, No. 15-16113
Plaintiff-Appellant, D.C. No. 3:13-cv-08005-JAT
v.
MEMORANDUM*
SHOW LOW POLICE DEPARTMENT; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Joe Newman appeals pro se from the district court’s summary judgment in
his 42 U.S.C. § 1983 action alleging excessive force during an arrest. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s grant
*
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).
of summary judgment on the basis of qualified immunity. Long v. City & County
of Honolulu, 511 F.3d 901, 905 (9th Cir. 2007). We affirm.
The district court properly granted summary judgment because, in light of
the video recording of the incident from Officer Williams’ patrol car, no
reasonable jury could credit Newman’s account of the arrest and find that
defendants used an unreasonable amount of force. See Scott v. Harris, 550 U.S.
372, 380 (2007) (holding that when a video recording of an alleged excessive force
incident contradicts the nonmoving party’s version of the incident to the extent that
“no reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment”); Espinosa v. City
& County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010) (setting forth
factors for determining whether excessive force was used in arrest).
The district court did not abuse its discretion by considering the video
recording on summary judgment because the recording was authenticated, it was
unquestionably relevant, and it contradicted key aspects of Newman’s account of
the incident. See Fed. R. Evid. 401 & 901; Scott, 550 U.S. at 380; see also Muniz
v. Amec Const. Mgmt., Inc., 623 F.3d 1290, 1294 (9th Cir. 2010) (setting forth
standard of review).
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The district court did not abuse its discretion by declining to order
defendants to produce what Newman claims is an unedited version of the video
recording because Newman failed to establish that another, more complete version
of the recording exists. See Lane v. Dep’t of Interior, 523 F.3d 1128, 1134 (9th
Cir. 2008) (“A district court has wide latitude in controlling discovery, and its
rulings will not be overturned in absence of a clear abuse of discretion.” (citation
and internal quotation marks omitted)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions are denied.
AFFIRMED.
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