FILED
NOT FOR PUBLICATION
APR 01 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAKINA ORTEGA, individually, and as No. 17-55564
successor of interest of Victor Ortega,
deceased; et al., D.C. No.
3:13-cv-00087-LAB-JMA
Plaintiffs-Appellants,
v. MEMORANDUM*
SAN DIEGO POLICE DEPARTMENT, a
public entity; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted March 28, 2019**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Shakina Ortega, proceeding pro se, appeals the district court’s entry of
judgment following a jury verdict in this 42 U.S.C. § 1983 action alleging
*
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).
violations of the Fourth and Fourteenth Amendments and state law. On June 4,
2012, Officer Jonathan McCarthy shot and killed Victor Ortega, Ortega’s husband,
while attempting to take him into custody. Ortega, then represented by counsel,
brought suit individually and on behalf of her minor children and the estate of
Victor Ortega. Following entry of judgment for defendants, Ortega timely
appealed. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Ortega’s failure to file a post-verdict motion for judgment as a matter of law
precludes appellate review for sufficiency of the evidence to support the verdict.
See Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1088 (9th Cir. 2007) (failure
to file a post-verdict motion under Federal Rule of Civil Procedure 50(b) precludes
even plain error review).
The district court did not err in failing to strike a juror because there was no
“evidence of partiality . . . so indicative of impermissible juror bias that the court
was obliged to strike [the juror] . . . , even though neither counsel made the
request.” United States v. Mitchell, 568 F.3d 1147, 1151 (9th Cir. 2009) (citation
and internal quotation marks omitted); see United States v. Olsen, 704 F.3d 1172,
1191 (9th Cir. 2013) (“[A]ctual bias is not proven by the mere fact that [a juror]
learned about the case from the media and formed prior impressions about it . . .
before the trial.”).
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The district court did not abuse its discretion in excluding testimony by
Ortega’s sister, Naomi Campbell, as hearsay and because any probative value was
substantially outweighed by the danger of confusing the issues, misleading the
jury, and wasting time. See Fed. R. Evid. 403, 801(c); Harper v. City of L.A., 533
F.3d 1010, 1030 (9th Cir. 2008) (standard of review). Even if there were error,
moreover, Ortega has not shown prejudice. See id. (reversal of an evidentiary
ruling requires a showing of prejudice, that is, that “more probably than not, the . . .
error tainted the verdict” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion in publishing a video recreation
prepared by defendants’ expert Geoffrey Desmoulin, and even if there were error,
Ortega has not shown prejudice. See id.; Rogers v. Raymark Indus., Inc., 922 F.2d
1426, 1432-33 (9th Cir. 1991) (where demonstrative evidence was simply a more
graphic version of what a witness had already said, and plaintiff did not show that
the evidence was inaccurate, any error in admitting it was harmless).
To the extent that Ortega, proceeding pro se, attempts to represent the
interests of her minor children and the estate of Victor Ortega, those parties are not
properly before this court. See Johns v. Cnty. of San Diego, 114 F.3d 874, 877 (9th
Cir. 1997) (noting that “a non-lawyer has no authority to appear as an attorney for
others than himself” and applying this rule where a parent or guardian attempts to
3
bring an action on behalf of a minor child without retaining a lawyer (citation and
internal quotation marks omitted)); accord, e.g., Pridgen v. Andresen, 113 F.3d
391, 392-93 (2d Cir. 1997) (“[A]n administratrix or executrix of an estate may not
proceed pro se when the estate has beneficiaries or creditors other than the
litigant.”).
Ortega’s allegations of attorney misconduct are speculative and unsupported
by the record.
Ortega’s Motion to Supplement the Record on Appeal (Docket No. 19) is
DENIED.
Ortega’s Motion to Assign Original Panel (Docket No. 30) is DENIED.
AFFIRMED.
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Shakina Ortega v. Sdpd
Combined Opinion