                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 24 2013

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



                            FOR THE NINTH CIRCUIT


CHRISTOPHER KOCAR, a single person,              No. 12-35687

              Plaintiff - Appellant,             D.C. No. 3:09-cv-05697-RBL

  v.
                                                 MEMORANDUM*
CITY OF VADER, a municipality and
CITY OF TOLEDO, a municipality,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                             Submitted July 11, 2013**
                               Seattle, Washington

Before: M. SMITH and N.R. SMITH, Circuit Judges, and WALTER, Senior
District Judge.***




        *
             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).
        ***
             The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
      The district court did not abuse its discretion when it found that the

declarations and affidavits Kocar proffered were inadmissible. The alleged

witnesses to the September 8, 2007 tasing incident did not swear to the eight

statements submitted by Kocar as is required by 28 U.S.C. § 1746. When Kocar’s

counsel re-filed the statements, counsel’s secretary had sworn to the statements’

accuracy, but the witnesses still had not sworn that the transcripts of their

interviews were accurate. Because the statements failed to meet the requirements

of 28 U.S.C. § 1746, the district court did not abuse its discretion when it ruled the

statements inadmissible.

      Further, the district court did not err when it granted summary judgment in

favor of the cities of Vader and Toledo. Kocar brings state law claims for assault

and battery and negligence, as well as a Monell claim under 42 U.S.C. § 1983.

      Kocar’s assault and battery claim fails. Kocar offered no evidence that

Officer Stennick caused his head injury. Instead, as defendants argue, Kocar had

just been involved in a bar fight moments before Officer Stennick arrived on the

scene, and Kocar could have received his injury from that incident. Further,

Officer Stennick’s use of force was reasonable. Given Kocar’s failure to comply

with Officer Stennick’s repeated commands, and Kocar’s aggressive and menacing




                                           2
actions, we conclude that Officer Stennick’s use of his Taser was not excessive.

See Boyles v. City of Kennewick, 813 P.2d 178, 179 (Wash. Ct. App. 1991).

      With respect to negligence, Kocar’s claim fails because he has offered no

evidence that Officer Stennick breached any duty owed to him during the incident.

See Babcock v. Mason Cnty. Fire Dist. No. 6, 30 P.3d 1261, 1268 (Wash. 2001).

      Finally, Kocar’s Monell claim fails because Kocar has not shown that any

alleged constitutional violation was “caused by a policy, practice, or custom of the

entity, or . . . the result of an order by a policy-making officer.” Tsao v. Desert

Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (internal quotation marks

omitted).

      AFFIRMED.




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