                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 19 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PEDRO RIVERA, AKA Tomas                          No. 08-35349
Salamanca Ramirez, AKA Dennis
Gonzales,                                        D.C. No. 9:05-CV-00165-JCL

              Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

DON BELL,

              Defendant - Appellee.



                    Appeal from the United States District Court
                            for the District of Montana
                  Jeremiah C. Lynch, Magistrate Judge, Presiding **

                           Submitted February 11, 2013 ***

Before:       FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Pedro Rivera, aka Tomas Salamanca Ramirez, aka Dennis Gonzales, appeals


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).

       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action

alleging claims arising from his arrest for driving under the influence of alcohol

and other charges. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo, Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002), and we affirm.

      The district court properly granted summary judgment on Rivera’s excessive

force claim under the doctrine of qualified immunity because Rivera failed to raise

a genuine dispute of material fact as to whether defendant used unreasonable force

in trying to gain control over, search, and arrest Rivera after Rivera refused to obey

instructions, behaved erratically, and tried to resist the officer. See Tatum v. City &

County of San Francisco, 441 F.3d 1090, 1095-96 (9th Cir. 2006) (use of force

during an arrest was objectively reasonable, not excessive, where suspect, who

later died of cocaine toxicity, was agitated, refused to obey commands, struggled

out of the officer’s grasp, and otherwise resisted arrest); see also Pearson v.

Callahan, 555 U.S. 223, 231-32 (2009) (defendants were entitled to qualified

immunity where there is no violation of plaintiff’s constitutional right or the right

at issue was not “clearly established”).

      AFFIRMED.




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