                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 22 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL COSTA, individually and as               No.   15-56393
personal representative and administrator
of the Estate of Devon Thomas Costa;             D.C. No. 2:14-cv-06955-R-E
JANET COSTA, individually; ESTATE
OF DEVON THOMAS COSTA,
                                                 MEMORANDUM*
              Plaintiffs-Appellants,

 v.

THE COUNTY OF VENTURA;
VENTURA COUNTY SHERIFF’S
DEPARTMENT; GARY PENTIS, Sheriff,
individual and official capacity; GEOFF
DEAN, Sheriff, individual and official
capacity; JOHN CROMBACH, former
Assistant Sheriff, individual and official
capacity; DANIELLE DELPIT, Sheriff
Deputy, individual and official capacity,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                       Argued and Submitted February 9, 2017
                                Pasadena, California

Before: THOMAS, Chief Judge, NGUYEN, Circuit Judge, and AMON,** District
Judge.

      Devon Costa’s estate and parents (collectively, “the Estate”) appeal from the

district court’s grant of summary judgment on the federal claims and dismissal of

the state law claims. We have jurisdiction under 28 U.S.C. § 1291, and we reverse

and remand. Because the parties are familiar with the history of this case, we need

not recount it here.

      The district court abused its discretion by denying all discovery after the

defendants’ assertion of qualified immunity. “[L]imited discovery, tailored to the

issue of qualified immunity, will sometimes be necessary before a district court can

resolve a motion for summary judgment.” Moss v. U.S. Secret Serv., 572 F.3d 962,

973 (9th Cir. 2009) (first citing Anderson v. Creighton, 483 U.S. 635, 646 n.6

(1987); then citing Crawford–El v. Britton, 523 U.S. 574, 593 n.14 (1998)

(plurality opinion)). Specifically, if the actions alleged by the plaintiff are such

that no reasonable officer could have believed them lawful, and if the officer

alleges that she took actions different from those alleged by the plaintiff, “then



      **
             The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
                                            2
discovery may be necessary before [the plaintiff]’s motion for summary judgment

on qualified immunity grounds can be resolved.” Anderson, 483 U.S. at 646 n.6.

      Here, the Estate alleged the violation of a clearly established right under

42 U.S.C. § 1983, namely the excessive force allegedly used by an officer, who the

Estate claims shot Costa while Costa was immobilized by the officer’s dog. This

version of events conflicts with the officer’s declaration that the dog did not

succeed in immobilizing Costa. The district court denied the Estate the

opportunity to conduct discovery, then granted summary judgment based on

exhibits tendered by the defendants. In particular, it relied on the officer’s affidavit

and the unsworn interview of the other eyewitness.

      Under Anderson, the defendants’ claim of qualified immunity did not

prohibit the district court from allowing the Estate to obtain discovery. The district

therefore court abused its discretion by precluding the Estate from taking the

depositions of the only living individuals who witnessed the shooting and instead

relying exclusively on the defendants’ declarations supporting their version of the

events. At a minimum, the denial of such discovery deprived the Estate of any

opportunity to test the defendants’ declarations through depositions, and it thereby

prejudiced the Estate.




                                           3
      Because the information sought in discovery relates to all of the Estate’s

claims, we vacate the district court’s decisions as to all claims and remand for

further proceedings. We do not prejudge the outcome of any renewed motion for

summary judgment filed after the Estate has been afforded the opportunity to

conduct discovery.

      We decline the Estate’s request to reassign this case to a different judge on

remand.



      REVERSED AND REMANDED.




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