NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 8 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICHOLAS K. VIEIRA, No. 20-15594

Plaintiff-Appellant, D.C. No. 3:18-cv-05431-VC

v.

MEMORANDUM*

COUNTY OF SACRAMENTO; JOSEPH

ZALEC,

Defendants-Appellees,

and

CITY OF ANTIOCH,

Defendant.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Submitted June 14, 2021** San Francisco, California

Before: SCHROEDER, M. SMITH, and VANDYKE, Circuit Judges.

* 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). Joseph Zalec, an off-duty police officer, shot Nicholas Vieira after multiple

confrontations. Vieira brought claims under 42 U.S.C. § 1983 and state law claims

for negligence and battery, suing Zalec, the County of Sacramento (Zalec’s

employer), and the City of Antioch.1 The district court granted summary judgment

to the County and Zalec on Vieira’s § 1983 and negligence claims, while the battery

claim proceeded to trial, where Zalec was found not liable. Vieira appeals the district

court’s partial grant of summary judgment for the County and Zalec. He also appeals

an order granting Zalec’s motions in limine to exclude Vieira’s self-defense

argumentation and testimony from a use-of-force expert.

We review de novo a grant of summary judgment, Olsen v. Idaho State Bd. of

Med., 363 F.3d 916, 922 (9th Cir. 2004), and review evidentiary rulings for an abuse

of discretion, United States v. Beltran, 165 F.3d 1266, 1269 (9th Cir. 1999). We

affirm the district court.

1. The district court properly granted summary judgment for Zalec on

Vieira’s § 1983 claim. To be subject to § 1983 liability, Zalec must have been

(1) “purporting … to act in performance of his … official duties,” which (2) “had

the purpose and effect of influencing the behavior of others,” and (3) “the challenged

conduct must [have been] ‘related in some meaningful way … to the officer’s

1 The City of Antioch asserted a Heck v. Humphrey, 512 U.S. 477 (1994) defense to wrongful arrest and was dismissed prior to this appeal.

2 governmental status.’” Anderson v. Warner, 451 F.3d 1063, 1068–69 (9th Cir. 2006)

(internal citations omitted).

Vieira’s third amended complaint repeatedly states that Zalec shot Vieira

“without identifying himself as a police officer,” making it clear Vieira did not

perceive Zalec as “purporting … to act in performance of his … official duties.” Id.

at 1069. And nothing in Vieira’s own testimony indicates that any aspect of his

behavior before or during the altercation was influenced by knowledge of Zalec’s

deputy position. The district court properly determined that Zalec was not acting

under color of law when he shot Vieira. See Huffman v. County of Los Angeles, 147

F.3d 1054, 1058 (9th Cir. 1998).2

2. The district court properly determined that the County was not liable

for Vieira’s state law claims under a theory of respondeat superior. Under California

law, “[t]o recover under respondeat superior, plaintiff bears the burden of proof to

demonstrate that the employee’s tortious act was committed within the scope of his

employment.” Perez v. Van Groningen & Sons, Inc., 719 P.2d 676, 679 (Cal. 1986).

When “a government officer does not act … under color of state law, then that

government officer acts as a private citizen” and outside the scope of

2 The district court properly granted summary judgment for the County on Vieira’s § 1983 claim. Vieira acknowledged that he waived his Monell v. New York City Department of Social Services, 436 U.S. 658 (1978) claim against the County prior to summary judgment.

3 employment. Van Ort v. Est. of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).

Because the district court properly found that Zalec was not acting under color of

law, he was also not acting within the scope of his employment with the County,

eliminating any liability under respondeat superior.

3. The district court properly granted summary judgment for Zalec on

Vieira’s negligence claim. Vieira did not raise the argument before the district court

that Federal Rule of Evidence 410 prohibited the court from considering his no

contest convictions. Vieira thus “waived any challenge … by not objecting to” the

defendants’ arguments on summary judgment regarding Vieira’s no contest

convictions for brandishing and stalking. Dutta v. State Farm Mut. Auto. Ins. Co.,

895 F.3d 1166, 1172 (9th Cir. 2018).

4. The district court did not abuse its discretion in prohibiting Vieira from

making a self-defense argument at trial. California law incorporates the Heck bar to

apply to state law claims, and “we assume that a plea of nolo contendere in a

California criminal action has the same effect as a guilty plea for Heck analysis.”

Ove v. Gwinn, 264 F.3d 817, 823 n.4 (9th Cir. 2001). Vieira pled no contest to

misdemeanor brandishing, which applies to “[e]very person who, except in self-

defense, in the presence of any other person, draws or exhibits any deadly weapon

… in a rude, angry, or threatening manner.” Cal. Penal Code § 417(a)(1) (emphasis

added). Vieira thus could not claim he was acting in self-defense while holding the

4 “tire buddy” without invalidating an element of his prior brandishing conviction in

violation of Heck.

5. The district court did not abuse its discretion in excluding Vieira’s use-

of-force expert. The district court found that Vieira’s expert was “not qualified to

reconstruct the shooting,” that the expert’s methodology was unreliable, and that the

resulting testimony on civilian use-of-force would be inappropriate in any event.

The court may affirm the district court on the ground that the expert’s scene

reconstruction lacked reliability. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146–

47 (1997) (determining that a district court can exclude an expert opinion when

“there is simply too great an analytical gap between the data and the opinion

proffered”). Vieira does not dispute the expert’s reliability on appeal and thus

waives this argument. Int’l Union of Bricklayers & Allied Craftsman Loc. Union

No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404–05 (9th Cir. 1985).

AFFIRMED

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