FILED
NOT FOR PUBLICATION JAN 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAMON OBAS, No. 11-15617
Plaintiff - Appellee, D.C. No. 5:09-cv-05540-LHK
v.
MEMORANDUM *
COUNTY OF MONTEREY; CONAN
HICKEY; BRYAN HOSKINS,
Defendants - Appellants.
Appeal from the United States District Court
for the Northern District of California
Lucy Koh, District Judge, Presiding
Argued and Submitted December 4, 2012
San Francisco, California
Before: TROTT, RAWLINSON, and CUDAHY,** Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Richard D. Cudahy, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
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Conan Hickey (Hickey) and Bryan Hoskins (Hoskins) appeal from the
denial of their motion for summary judgment based on their assertion of qualified
immunity.
1. The district court’s rejection of a qualified immunity defense is
immediately appealable. See Wilkinson v. Torres, 610 F.3d 546, 549-50 (9th Cir.
2010).
2. The district court did not err in finding that disputed facts in this case
were material to the qualified immunity analysis. Hickey and Hoskins contend that
Emergency Medical Technicians (EMTs) informed them that Obas was cleared for
transport via police cruiser. The examining EMT, Mike Vindhurst (Vindhurst),
counters that he recommended to officers that Obas be placed in c-spine
precautions and taken to the hospital via ambulance. The recommendation was
given to a group of “2 or 3 deputies.” Although Vinhurst could not identify the
deputies with particularity, Hickey and Hoskins were in the vicinity and admitted
speaking with EMTs on the scene. Indeed, the officers conceded in the district
court that if a recommendation had been made to transport Obas in an ambulance,
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failure to do so would amount to excessive force in violation of clearly established
law. Counsel confirmed this concession during oral argument.
3. Obas’ state law battery claims are analyzed under the same
framework, and require the same proof, as his section 1983 excessive force claim.
See Saman v. Robbins, 173 F.3d 1150, 1157 n.6 (9th Cir. 1999) (treating section
1983 and state law battery claims as synonymous). Therefore, the same question
of material fact identified above precludes summary judgment on the state law
battery claims, as the district court properly concluded.
4. Discretionary immunity for battery under California Government
Code section 820.2 is unavailable because Hickey and Hoskins are accused of
using excessive force. See Blankenhorn v. City of Orange, 485 F.3d 463, 487 (9th
Cir. 2007) (noting that section 820.2 “does not apply to officers who use
unreasonable force in making an arrest”) (citations omitted).
5. We lack jurisdiction to review the district court’s denial of immunity
pursuant to California Civil Code section 3333.3 for Obas’ state law negligence
claims. Section 3333.3 confers immunity from damages, not immunity from suit.
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Therefore, denial of such immunity is not immediately appealable as a collateral
order. See Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir. 2011) (“[T]he
availability of an appeal depends on whether, under state law, the immunity
functions as an immunity from suit or only as a defense to liability.”) (citations
omitted) (emphasis in the original).
AFFIRMED.
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