MARTINEZ v. OXNARD POLICE DEPT., 05-56129 (9th Cir. 6-14-2007)
OLIVERIO MARTINEZ, Plaintiff-Appellee, v. OXNARD POLICE DEPT.,Defendant, and BEN CHAVEZ, Defendant-Appellant.
No. 05-56129.United States Court of Appeals, Ninth Circuit.Submitted August 10, 2006.[fn**]
June 14, 2007.
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.][fn**] This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P.34(a)(2).
AMENDED MEMORANDUM[fn*]
[fn*] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court for the Central District of California Florence Marie Cooper, District Judge, Presiding, D.C. No. CV-98-09313-FMC Central District of California, Los Angeles.
Before: WARDLAW, PAEZ, and TALLMAN, Circuit Judges.Page 2
Appellant Ben Chavez asks us to revisit our prior decision to deny his claim for qualified immunity. We do not have jurisdiction to consider Chavez's argument that the district court's factual findings were not supported by the evidence presented. See Johnson v. Jones, 515 U.S. 304, 319-20
(1995) (stating "that a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a `genuine' issue of fact for trial").
Chavez advances the same arguments for qualified immunity as he did in his original appeal. See Martinez v. City ofOxnard, 337 F.3d 1091 (9th Cir. 2003), on remand fromChavez v. Martinez, 538 U.S. 760 (2003) (plurality opinion). Because our prior decision was not clearly erroneous, or undermined by intervening Supreme Court authority, we decline to exercise our discretion to depart from the law of the case doctrine. See United States v. Alexander,106 F.3d 874, 876 (9th Cir. 1997). Therefore, this appeal is controlled by our prior decision following remand in Martinez,337 F.3d 1091.
Because Martinez's motion for sanctions was withdrawn by stipulation of the parties, we vacate our prior grant of that motion.
DISMISSED in part; AFFIRMED in part.Page 1
ORDER AMENDING MEMORANDUM DISPOSITION
The Memorandum disposition filed on August 14, 2006, is amended as follows:
The last paragraph of the disposition has been replaced with the following language:
Because Martinez's motion for sanctions was withdrawn by stipulation of the parties, we vacate our prior grant of that motion.Page 1