Ralph Stanley Cooper v. Kevin Bennett

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RALPH STANLEY COOPER,
Plaintiff - Appellant,
v.
KEVIN BENNETT,
Defendant - Appellee.
No. 13-35800
D.C. No. 6:11-cv-06028-TC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Thomas M. Coffin, Magistrate Judge, Presiding
Argued and Submitted May 5, 2015
Portland, Oregon
Before: W. FLETCHER and HURWITZ, Circuit Judges, and WALTER,** Senior
District Judge.
Ralph Stanley Cooper brought suit under 42 U.S.C. § 1983 against Oregon
state trooper Kevin Bennett for alleged constitutional violations arising out of a
traffic stop. Cooper claims that Bennett unlawfully detained him and his traveling
FILED
MAY 11 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.

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companions in violation of the Fourth Amendment, unlawfully searched and seized
the rental car they occupied in violation of the Fourth Amendment, and stopped
him and his companions on the basis of their race in violation of the Fourteenth
Amendment and 42 U.S.C. § 1981. The district court granted partial summary
judgment to Bennett on Cooper’s second, third, and fourth claims, and, two days
into a jury trial on the first claim, dismissed the action with prejudice under Federal
Rule of Civil Procedure 41(b) as a sanction for Cooper’s unauthorized contact with
a juror. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We conclude that the district court acted within its discretion in dismissing
the action with prejudice. Under an abuse-of-discretion standard, we “will not
disturb the trial court’s dismissal without a ‘definite and firm conviction that the
court below committed a clear error of judgment in the conclusion it reached upon
a weighing of the relevant facts.’” Yourish v. Cal. Amplifier, 191 F.3d 983, 989
(9th Cir. 1999) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)).
We find no “clear error of judgment” on these facts. The district court reasonably
concluded that Cooper’s prior communication with a witness cast doubt on his
claim that his conversation with the juror was innocent misconduct. The district
court likewise reasonably concluded that a limiting instruction would not have
cured the effect that the conversation had on the juror. Although the district court
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could have reasonably concluded that a mistrial, rather than a dismissal under Rule
41(b), was the appropriate remedy for the unauthorized contact, it did not abuse its
discretion, under the particular facts of this case, in concluding otherwise.
Assuming without deciding that the district court’s grant of partial summary
judgment to Bennett is properly before us, we also conclude that the district court
did not err in granting partial summary judgment to Bennett on Cooper’s second,
third, and fourth claims. Even if United States v. Thomas, 447 F.3d 1191 (9th Cir.
2006), extends to a passenger not registered to drive a rental car, Cooper had not
been given permission to use the car seized on January 24, 2009, and thus would
not have had standing to challenge its search or seizure. Cooper’s racial profiling
claims, moreover, are defeated by circuit precedent. See Bingham v. City of
Manhattan Beach, 341 F.3d 939, 948 (9th Cir. 2003) (rejecting a § 1983 plaintiff’s
argument that “because he is African-American, the officer is white, and they
disagree about the reasonableness of the traffic stop, these circumstances are
sufficient to raise an inference of racial discrimination”). The district court did not
err in granting partial summary judgment to Bennett on these claims.
AFFIRMED.
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