United States v. 2020-01-13 | 18-16227 | MICHAEL MICOLO V. COUNTY OF PINAL | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL CARMINE MICOLO,

Plaintiff-Appellant,

v.

COUNTY OF PINAL; et al.,

Defendants-Appellees.

No. 18-16227

D.C. No. 2:17-cv-01439-DJH

MEMORANDUM
*

Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding

Submitted January 8, 2020
**

Before: CALLAHAN, NGUYEN, and HURWITZ, Circuit Judges.
Michael Carmine Micolo appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging excessive force. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal on the basis
of res judicata. Maldonado v. Harris, 370 F.3d 945, 949 (9th Cir. 2004). We

*
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).
FILED

JAN 13 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 18-16227
affirm in part, vacate in part, and remand.
Dismissal on the basis of res judicata (claim preclusion) was improper as to
defendant Reyes because Reyes was not a party or in privity with any party in the
prior action. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning
Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (setting forth requirements for res
judicata); see also Taylor v. Sturgell, 553 U.S. 880, 894-95 (2008) (discussing
requirements for non-party preclusion). To the extent that the district court’s
dismissal was based on collateral estoppel (issue preclusion), dismissal was
improper as to Reyes because the complaint alleges a separate instance of post-
arrest excessive force that was not actually litigated in the prior action. See
Littlejohn v. United States, 321 F.3d 915, 919, 923 (9th Cir. 2003) (setting forth
standard of review and requirements for collateral estoppel). We vacate the
judgment as to Micolo’s claims against defendant Reyes and remand for further
proceedings.
In his opening brief, Micolo does not challenge the district court’s dismissal
of his remaining claims and has therefore waived any challenge to the district
court’s dismissal of those claims. See Paladin Assocs., Inc. v. Mont. Power Co.,
328 F.3d 1145, 1164 (9th Cir. 2003).
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.