                                                                              FILED
                           NOT FOR PUBLICATION                                 MAY 11 2015

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RALPH STANLEY COOPER,                            No. 13-35800

              Plaintiff - Appellant,             D.C. No. 6:11-cv-06028-TC

 v.
                                                 MEMORANDUM*
KEVIN BENNETT,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                  Thomas M. Coffin, Magistrate Judge, Presiding

                        Argued and Submitted May 5, 2015
                                Portland, Oregon

Before: W. FLETCHER and HURWITZ, Circuit Judges, and WALTER,** Senior
District Judge.

      Ralph Stanley Cooper brought suit under 42 U.S.C. § 1983 against Oregon

state trooper Kevin Bennett for alleged constitutional violations arising out of a

traffic stop. Cooper claims that Bennett unlawfully detained him and his traveling

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
companions in violation of the Fourth Amendment, unlawfully searched and seized

the rental car they occupied in violation of the Fourth Amendment, and stopped

him and his companions on the basis of their race in violation of the Fourteenth

Amendment and 42 U.S.C. § 1981. The district court granted partial summary

judgment to Bennett on Cooper’s second, third, and fourth claims, and, two days

into a jury trial on the first claim, dismissed the action with prejudice under Federal

Rule of Civil Procedure 41(b) as a sanction for Cooper’s unauthorized contact with

a juror. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We conclude that the district court acted within its discretion in dismissing

the action with prejudice. Under an abuse-of-discretion standard, we “will not

disturb the trial court’s dismissal without a ‘definite and firm conviction that the

court below committed a clear error of judgment in the conclusion it reached upon

a weighing of the relevant facts.’” Yourish v. Cal. Amplifier, 191 F.3d 983, 989

(9th Cir. 1999) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)).

We find no “clear error of judgment” on these facts. The district court reasonably

concluded that Cooper’s prior communication with a witness cast doubt on his

claim that his conversation with the juror was innocent misconduct. The district

court likewise reasonably concluded that a limiting instruction would not have

cured the effect that the conversation had on the juror. Although the district court


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could have reasonably concluded that a mistrial, rather than a dismissal under Rule

41(b), was the appropriate remedy for the unauthorized contact, it did not abuse its

discretion, under the particular facts of this case, in concluding otherwise.

      Assuming without deciding that the district court’s grant of partial summary

judgment to Bennett is properly before us, we also conclude that the district court

did not err in granting partial summary judgment to Bennett on Cooper’s second,

third, and fourth claims. Even if United States v. Thomas, 447 F.3d 1191 (9th Cir.

2006), extends to a passenger not registered to drive a rental car, Cooper had not

been given permission to use the car seized on January 24, 2009, and thus would

not have had standing to challenge its search or seizure. Cooper’s racial profiling

claims, moreover, are defeated by circuit precedent. See Bingham v. City of

Manhattan Beach, 341 F.3d 939, 948 (9th Cir. 2003) (rejecting a § 1983 plaintiff’s

argument that “because he is African-American, the officer is white, and they

disagree about the reasonableness of the traffic stop, these circumstances are

sufficient to raise an inference of racial discrimination”). The district court did not

err in granting partial summary judgment to Bennett on these claims.

      AFFIRMED.




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