Barnes

Barnes v. McLellan

Good Law
54 F. App'x 283
United States Court of Appeals for the Ninth CircuitJanuary 15, 2003No. 01-56328; D.C. No. CV-99-00695-MJLCalifornia345 words

Opinion

Lead Opinion

MEMORANDUM **

William Barnes appeals pro se the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging excessive force. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo the district court’s grant of summary judgment based on qualified immunity, Jackson v. City of Bremerton, 268 F.3d 646, 650 (9th Cir.2001), and we affirm.

The district court properly concluded that it lacked jurisdiction to consider Barnes’ Fed.R.Civ.P. 60(b) motion, because Barnes filed this motion more than ten days after he filed his notice of appeal. See Fed. R.App. P. 4(a)(4)(A)(vi); Carriger v. Lewis, 971 F.2d 329, 332 (9th Cir.1992) (en banc).

Because Barnes presented no evidence showing that Officer McLellan’s use of a carotid hold to restrain him was objectively unreasonable under the circumstances, the facts taken in the light most favorable to Barnes do not establish a Fourth Amendment violation. See Jackson, 268 F.3d at 651-53 (applying reasonableness factors delineated in Graham v. Connor, 490 U.S. 386, 396-97 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), to conclude that officers did not use excessive force).

Accordingly, the district court properly concluded…

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