FILED
NOT FOR PUBLICATION
OCT 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS RUSSELL HOOPER, No. 15-35521
Plaintiff-Appellant, D.C. No. 1:13-cv-01400-CL
v.
MEMORANDUM*
JACKSON COUNTY SHERIFF’S
OFFICE; MIKE WINTERS, Sheriff,
Defendants,
and
DAVID PENKAVA, Deputy,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Mark D. Clarke, Magistrate Judge, Presiding
Argued and Submitted October 10, 2017
Gonzaga University, Spokane, Washington
Before: GRABER, PAEZ, and CLIFTON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
While on patrol, Defendant Deputy David Penkava pulled over Plaintiff
Dennis Russell Hooper, believing that he was driving without a valid Oregon
license, and cited Plaintiff for traffic violations. The state court acquitted Plaintiff
of the citations. He then brought this action under 42 U.S.C. § 1983, alleging that
Defendant had pulled him over without reasonable suspicion, in violation of the
Fourth Amendment. A jury found for Defendant. Plaintiff moved for a new trial
on the ground of unfair surprise. The district court denied the motion, and Plaintiff
timely appeals. Reviewing for abuse of discretion, Molski v. M.J. Cable, Inc., 481
F.3d 724, 728 (9th Cir. 2007), we affirm.
Defendant’s original declaration contained certain factual inaccuracies and
failed to include some information. But during his pretrial deposition, Defendant
corrected the inaccuracies and supplied the missing information. Plaintiff took the
deposition in August 2014, and the trial did not occur until February 2015.
Defendant’s testimony at trial was consistent with his deposition testimony.
Moreover, the defense theory remained unchanged: that Defendant possessed
information that led him to believe Plaintiff was driving without a valid Oregon
license. Accordingly, Plaintiff was not surprised, unfairly or otherwise.
AFFIRMED.
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