FILED

NOT FOR PUBLICATION

APR 6 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO CARLIN SIMONELLI, No. 18-16916

Plaintiff-Appellant, D.C. No. 5:17-cv-01448-SVK

v.

MEMORANDUM*

COUNTY OF MONTEREY; ANDRE L.

ROBERTS,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Susan G. Van Keulen, Magistrate Judge, Presiding

Argued and Submitted February 14, 2020 San Francisco, California

Before: RAWLINSON and CALLAHAN, Circuit Judges, and S. MURPHY,** District Judge.

Appellant Antonio Simonelli (Simonelli) appeals the judgment entered

following a jury verdict in favor of Appellees County of Monterey (County) and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen J. Murphy III, United States District Judge for the Eastern District of Michigan, sitting by designation. Deputy Andre L. Roberts (Deputy Roberts). Simonelli alleges that Deputy Roberts

committed battery and assault, and used excessive force when he removed

Simonelli from a courtroom in April, 2016. Simonelli also contends that the

district court erred in granting summary judgment (1) on his First Amendment

claim premised on his exclusion from court proceedings, and (2) on his claim that

the County ratified Deputy Roberts’ conduct because it failed to conduct an

adequate investigation of the incident. Simonelli further asserts that a new trial is

warranted due to the district court’s erroneous evidentiary rulings and jury

instruction on excessive force.

1. The district court properly granted summary judgment on Simonelli’s

First Amendment claim because Simonelli failed to raise a material factual dispute

that Deputy Roberts barred him from court proceedings. Simonelli voluntarily left

the courtroom, and presented no evidence that Deputy Roberts prevented him from

returning. Simonelli also attended court proceedings on other occasions without

any interaction with Deputy Roberts.

2. The district court correctly held that Appellees were entitled to

summary judgment on Simonelli’s claim that the County ratified Deputy Roberts’

conduct. Simonelli did not raise a material factual dispute that the investigation

2 conducted by the County Counsel’s Office was inadequate, or that his detailed

complaint was otherwise ignored. See Christie v. Iopa, 176 F.3d 1231, 1239 (9th

Cir. 1999) (explaining that “a plaintiff must establish that there is a genuine issue

of material fact regarding whether a ratification occurred”) (citation omitted).

3. The district court did not abuse its discretion in excluding evidence

concerning another courtroom incident involving Deputy Roberts, Deputy Roberts’

“information and belief” denials in his answer to the complaint, and Simonelli’s

disabilities. See United States Sec. & Exch. Comm’n v. Jensen, 835 F.3d 1100,

1116 (9th Cir. 2016) (explaining that “[u]nder Rule 403 of the Federal Rules of

Evidence, a court may exclude evidence if its probative value is substantially

outweighed by a danger of unfair prejudice, confusing the issues, or misleading the

jury”) (citation, alterations, and internal quotation marks omitted).

4. Finally, the district court did not err in instructing the jury on

excessive force in lieu of Simonelli’s proposed instruction that any force

administered by Deputy Roberts was unreasonable. See Crawford v. City of

Bakersfield, 944 F.3d 1070, 1077 (9th Cir. 2019) (explaining that “[i]n evaluating a

Fourth Amendment excessive force claim, the jury asks whether the officers’

3 actions were objectively reasonable in light of the facts and circumstances

confronting them”) (citation and internal quotation marks omitted). Moreover, any

error was harmless because the jury determined that Deputy Roberts never

intentionally touched Simonelli. See Dunlap v. Liberty Nat’l Prod., Inc., 878 F.3d

794, 798 (9th Cir. 2017) (concluding that “[b]ecause it is more probable than not

that the jury’s verdict was not affected, the district court’s instructional error was

harmless”) (citation and internal quotation marks omitted).

AFFIRMED.

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