Thomas

MEMORANDUM **

Thomas appeals from a judgment in favor of the United States in this action which was brought pursuant to the Federal Tort Claims Act (FTCA). 28 U.S.C. § 2671 et seq. He contends that the magistrate judge clearly erred in not finding excessive force was used and erred in not concluding he was illegally seized. The district court had jurisdiction pursuant to 28 U.S.C. § 1346 (b), and we have jurisdiction over this timely filed appeal pursuant to 28 U.S.C. § 1291 . We affirm.

The magistrate judge correctly reasoned that Thomas’s claim pursuant to the FTCA depended upon Oregon law governing a *784 police officer’s use of force. See Aguilar v. United States, 920 F.2d 1475, 1477 (9th Cir.1990). Here, the magistrate judge specifically found that “Thomas was the aggressor in the confrontation,” a finding that was not clearly erroneous. Oregon law therefore allowed Carter to use physical force in self-defense. See Or.Rev.Stat. § 161.235(2). Further, the magistrate judge did not clearly err in crediting the testimony of Officer Carter over that of Thomas and Price, and concluding on the basis of that testimony and other evidence, that “Officer Carter’s use of force in the…