                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 28 2014

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



                            FOR THE NINTH CIRCUIT


ESTATE OF JAMES PAUL GARCIA III,                 No. 12-16434
by and through Special Administrator
Rosa Valdez-Garza,                               D.C. No. 2:10-cv-00826-JAM-
                                                 KJN
              Plaintiff - Appellee,

  v.                                             MEMORANDUM*

CITY OF SACRAMENTO; RICK
BRAZIEL; GARY DAHL,

              Defendants - Appellants.


                   Appeal from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding

                          Submitted February 11, 2014**
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: O’SCANNLAIN and MURGUIA, Circuit Judges, and ADELMAN,
District Judge.***

      Officer Gary Dahl, Police Chief Rick Braziel, and the City of Sacramento

appeal the district court’s order denying their motion for summary judgment in this

42 U.S.C. § 1983 action brought by the estate of James Garcia.1 Dahl contends

that the district court improperly denied him qualified immunity; the Chief and the

City argue that we have pendant jurisdiction over their appeals.

      The parties agree that the canine bite was a serious intrusion on Garcia’s

Fourth Amendment rights. But the officers were seeking a fleeing suspect who had

committed a violent felony. See Sykes v. United States, 131 S. Ct. 2267, 2270

(2011). In addition, the officers involved attempted less forceful methods to arrest

the suspect before deploying a canine, and Dahl gave a canine warning before

beginning his search for the suspect. Under the circumstances, it was not clearly

established that the Fourth Amendment required Dahl to provide an additional

warning before deploying his canine again. See Pearson v. Callahan, 555 U.S.

223, 236, 245 (2009); Miller v. Clark Cnty., 340 F.3d 959, 964–66 (9th Cir. 2003).




          ***
             The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
      1
                Garcia died of unrelated causes while this suit was pending.

                                            2
      Because we do not reach the issue whether Garcia adequately alleged a

constitutional violation, our resolution of Dahl’s appeal does not necessarily

resolve Garcia’s § 1983 claims against the Chief and the City. We may not

exercise pendant appellate jurisdiction over such claims, because they are not

“inextricably intertwined” with the issue of Dahl’s entitlement to qualified

immunity. See Watkins v. City of Oakland, 145 F.3d 1087, 1092 (9th Cir. 1998).

      REVERSED in part; DISMISSED in part; and REMANDED. Each

party shall bear its own costs on appeal.2




      2
              Garcia’s motion to take judicial notice, filed with this Court on
January 14, 2013, is DENIED as moot. Garcia’s motion to file physical exhibits,
filed with this Court on January 24, 2013, is GRANTED.

                                             3
