FILED
NOT FOR PUBLICATION
FEB 22 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL COSTA, individually and as No. 15-56393
personal representative and administrator
of the Estate of Devon Thomas Costa; D.C. No. 2:14-cv-06955-R-E
JANET COSTA, individually; ESTATE
OF DEVON THOMAS COSTA,
MEMORANDUM*
Plaintiffs-Appellants,
v.
THE COUNTY OF VENTURA;
VENTURA COUNTY SHERIFF’S
DEPARTMENT; GARY PENTIS, Sheriff,
individual and official capacity; GEOFF
DEAN, Sheriff, individual and official
capacity; JOHN CROMBACH, former
Assistant Sheriff, individual and official
capacity; DANIELLE DELPIT, Sheriff
Deputy, individual and official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted February 9, 2017
Pasadena, California
Before: THOMAS, Chief Judge, NGUYEN, Circuit Judge, and AMON,** District
Judge.
Devon Costa’s estate and parents (collectively, “the Estate”) appeal from the
district court’s grant of summary judgment on the federal claims and dismissal of
the state law claims. We have jurisdiction under 28 U.S.C. § 1291, and we reverse
and remand. Because the parties are familiar with the history of this case, we need
not recount it here.
The district court abused its discretion by denying all discovery after the
defendants’ assertion of qualified immunity. “[L]imited discovery, tailored to the
issue of qualified immunity, will sometimes be necessary before a district court can
resolve a motion for summary judgment.” Moss v. U.S. Secret Serv., 572 F.3d 962,
973 (9th Cir. 2009) (first citing Anderson v. Creighton, 483 U.S. 635, 646 n.6
(1987); then citing Crawford–El v. Britton, 523 U.S. 574, 593 n.14 (1998)
(plurality opinion)). Specifically, if the actions alleged by the plaintiff are such
that no reasonable officer could have believed them lawful, and if the officer
alleges that she took actions different from those alleged by the plaintiff, “then
**
The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
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discovery may be necessary before [the plaintiff]’s motion for summary judgment
on qualified immunity grounds can be resolved.” Anderson, 483 U.S. at 646 n.6.
Here, the Estate alleged the violation of a clearly established right under
42 U.S.C. § 1983, namely the excessive force allegedly used by an officer, who the
Estate claims shot Costa while Costa was immobilized by the officer’s dog. This
version of events conflicts with the officer’s declaration that the dog did not
succeed in immobilizing Costa. The district court denied the Estate the
opportunity to conduct discovery, then granted summary judgment based on
exhibits tendered by the defendants. In particular, it relied on the officer’s affidavit
and the unsworn interview of the other eyewitness.
Under Anderson, the defendants’ claim of qualified immunity did not
prohibit the district court from allowing the Estate to obtain discovery. The district
therefore court abused its discretion by precluding the Estate from taking the
depositions of the only living individuals who witnessed the shooting and instead
relying exclusively on the defendants’ declarations supporting their version of the
events. At a minimum, the denial of such discovery deprived the Estate of any
opportunity to test the defendants’ declarations through depositions, and it thereby
prejudiced the Estate.
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Because the information sought in discovery relates to all of the Estate’s
claims, we vacate the district court’s decisions as to all claims and remand for
further proceedings. We do not prejudge the outcome of any renewed motion for
summary judgment filed after the Estate has been afforded the opportunity to
conduct discovery.
We decline the Estate’s request to reassign this case to a different judge on
remand.
REVERSED AND REMANDED.
4