NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE CHRISTINA RIVERA, No. 17-56566
Plaintiff-Appellant, D.C. No.
5:16-cv-00795-PSG-KS
v.
COUNTY OF SAN DIEGO; SAN DIEGO MEMORANDUM*
COUNTY SHERIFF'S DEPARTMENT;
FRANK LEYVA, San Diego Deputy Sheriff
(No. 3348); WILLIAM GORE, Sheriff,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted May 15, 2019
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and ANTOON,** District Judge.
Michelle Rivera appeals the district court’s orders denying her motion for a
new trial and dismissing her Monell claims against San Diego County and the San
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
Diego County Sheriff.1 We have jurisdiction under 28 U.S.C. § 1291. We review
the district court’s evidentiary rulings for abuse of discretion, see Reese v. County
of Sacramento, 888 F.3d 1030, 1047 (9th Cir. 2018), and its dismissal of Rivera’s
Monell claims de novo, see Flores v. County of Los Angeles, 758 F.3d 1154, 1158
(9th Cir. 2014). We affirm.
1. The district court did not abuse its discretion in admitting defense expert
Jacob Pavlenko’s testimony that Deputy Frank Leyva deployed the K-9 unit in
accordance with department policy. The Fourth Amendment reasonableness
inquiry is not limited to any specific factors. See Smith v. City of Hemet, 394 F.3d
689, 701 (9th Cir. 2005) (en banc). Pavlenko’s testimony was relevant because
Leyva’s compliance with the policy was disputed. Pavlenko testified that deputies
are permitted to use physical force only “[t]o overcome resistance, prevent escape
and to effect an arrest,” and not to punish or injure a suspect because she did not
surrender when told to do so. Rivera’s theory of the case was that when the
deputies caught up with her and released the K-9 unit, they faced no immediate
threat and “were just angry” because she “gave [them] a really hard time” during
her two-and-a-half-hour flight.
2. The district court did not abuse its discretion in admitting Leyva’s
testimony that he was nominated for the “K-9 Handler of the Year” award in 2013
1
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
2
and 2014. This evidence, presented as part of Leyva’s background, was relevant to
show his training and experience with K-9 units. That it may have incidentally
reflected favorably upon his character was not overly prejudicial.
3. The district court erred in allowing defense counsel to ask Rivera’s expert
Dr. Peter Meade whether he had ever been sued, but the error did not result in
prejudice. See Reese, 888 F.3d at 1047. Any adverse inference that the jury might
have drawn from Meade’s testimony that he had been sued 10 to 15 times over
three decades was countered by his uncontradicted testimony that his work in “a
high risk area” necessarily involved the legal system and that none of the lawsuits
against him was successful.
4. In light of the jury’s finding that Leyva did not use excessive force
against Rivera, her contention that the district court erred by dismissing her Monell
claims is moot. “If a person has suffered no constitutional injury at the hands of
the individual police officer, the fact that the departmental regulations might have
authorized the use of constitutionally excessive force is quite beside the point.”
City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam).
AFFIRMED.
3