PEDRO RIVERA, AKA Tomas Salamanca Ramirez, AKA Dennis Gonzales v. Don Bell

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The parties consented to proceed before a magistrate judge. See 28**
U.S.C. § 636(c).
The panel unanimously concludes this case is suitable for decision***
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO RIVERA, AKA Tomas
Salamanca Ramirez, AKA Dennis
Gonzales,
Plaintiff - Appellant,
v.
DON BELL,
Defendant - Appellee.
No. 08-35349
D.C. No. 9:05-CV-00165-JCL
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Jeremiah C. Lynch, Magistrate Judge, Presiding**
Submitted February 11, 2013***
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Pedro Rivera, aka Tomas Salamanca Ramirez, aka Dennis Gonzales, appeals
FILED
FEB 19 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-35349 2
pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action
alleging claims arising from his arrest for driving under the influence of alcohol
and other charges. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002), and we affirm.
The district court properly granted summary judgment on Rivera’s excessive
force claim under the doctrine of qualified immunity because Rivera failed to raise
a genuine dispute of material fact as to whether defendant used unreasonable force
in trying to gain control over, search, and arrest Rivera after Rivera refused to obey
instructions, behaved erratically, and tried to resist the officer. See Tatum v. City &
County of San Francisco, 441 F.3d 1090, 1095-96 (9th Cir. 2006) (use of force
during an arrest was objectively reasonable, not excessive, where suspect, who
later died of cocaine toxicity, was agitated, refused to obey commands, struggled
out of the officer’s grasp, and otherwise resisted arrest); see also Pearson v.
Callahan, 555 U.S. 223, 231-32 (2009) (defendants were entitled to qualified
immunity where there is no violation of plaintiff’s constitutional right or the right
at issue was not “clearly established”).
AFFIRMED.

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