NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 1 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANDY MATTHEW CORDERO, No. 16-55112

Plaintiff-Appellant, D.C. No. 5:10-cv-01935-PJW

v.

MEMORANDUM*

HEMET POLICE DEPARTMENT,

Defendant,

and

SILIFAGA VAEOSO, Officer, Hemet Police Department; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Patrick J. Walsh, Magistrate Judge, Presiding

Argued and Submitted April 11, 2019 Pasadena, California

Before: GRABER and BYBEE, Circuit Judges, and HARPOOL,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation. Plaintiff Randy Cordero appeals the district court’s judgment in favor of

Defendants. Cordero alleges that the district court erred in formulating and

submitting the jury instruction and special verdict form on Cordero’s Fourteenth

Amendment claim. We affirm.

We review de novo whether the district court’s submission of jury

instructions adequately presented the theory of the case. United States v. Dixon,

201 F.3d 1223, 1230 (9th Cir. 2000). “If the district court’s instructions fairly and

adequately covered the elements of the offense, however, we review the

instruction’s ‘precise formulation’ for an abuse of discretion.” Id. (citation

omitted). “A special verdict form is reviewed for an abuse of discretion. We must

determine whether the questions in the form were adequate to obtain a jury

determination of the factual issues essential to judgment.” Smith v. Jackson, 84

F.3d 1213, 1220 (9th Cir. 1996) (internal citation omitted).

During trial, the jury was presented with Cordero’s version of his arrest and

subsequent transport to jail, and the officers’ version of the events. After hearing

four days of evidence, the jury accepted the officers’ version of the events and

rejected Cordero’s claim that Officer Vaeoso used excessive force during his

encounter with Cordero.

Cordero’s Fourteenth Amendment Equal Protection claim alleged that

Officer Vaeoso’s alleged wrongful conduct in the arrest and transport of Cordero

2 was based on Cordero’s race. “To state a claim under 42 U.S.C. § 1983 for a

violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff

must show that the defendants acted with an intent or purpose to discriminate

against the plaintiff based upon membership in a protected class.” Barren v.

Harrington, 152 F.3d 1193, 1194–95 (9th Cir. 1998) (order). Plaintiff must

establish that the Defendant “acted in a discriminatory manner and that the

discrimination was intentional.” Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d

736, 740 (9th Cir. 2000).

The district court submitted Cordero’s equal protection claim to the jury.

The jury instruction and verdict form asked, in part, whether Officer Vaeoso used

excessive force against Cordero and, if so, whether Officer Vaeoso acted with an

intent or purpose to discriminate against Cordero because of his membership in a

protected class. The jury found no excessive force and therefore did not answer

whether Officer Vaeoso acted with an intent to discriminate.

Cordero argues that the court erred in giving these instructions because his

Fourteenth Amendment claim is not based on an allegation of excessive force alone

but rather on an allegation of improper force. However, the existence of racial bias

without an accompanying improper act based on such bias does not amount to a

claim for equal protection. Cordero failed to present any comparative evidence to

prove that individuals of other races received different, or gentler, treatment than

3 Cordero, or that Officer Vaeoso acted differently in the arrest and transport of

Cordero than he normally would have, based on Cordero’s race. Because Cordero

failed to present any evidence that Vaeoso treated him improperly because of his

race, any instructional error is harmless.

Finally, Cordero initially filed a pro se appeal and raised issues not

subsequently briefed or argued by Cordero’s court appointed counsel. We find

Cordero’s remaining pro se arguments are unavailing.

AFFIRMED.

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