                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            OCT 18 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

DENNIS RUSSELL HOOPER,                           No. 15-35521

              Plaintiff-Appellant,               D.C. No. 1:13-cv-01400-CL

 v.
                                                 MEMORANDUM*
JACKSON COUNTY SHERIFF’S
OFFICE; MIKE WINTERS, Sheriff,

              Defendants,

 and

DAVID PENKAVA, Deputy,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Mark D. Clarke, Magistrate Judge, Presiding

                     Argued and Submitted October 10, 2017
                    Gonzaga University, Spokane, Washington

Before: GRABER, PAEZ, and CLIFTON, Circuit Judges.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      While on patrol, Defendant Deputy David Penkava pulled over Plaintiff

Dennis Russell Hooper, believing that he was driving without a valid Oregon

license, and cited Plaintiff for traffic violations. The state court acquitted Plaintiff

of the citations. He then brought this action under 42 U.S.C. § 1983, alleging that

Defendant had pulled him over without reasonable suspicion, in violation of the

Fourth Amendment. A jury found for Defendant. Plaintiff moved for a new trial

on the ground of unfair surprise. The district court denied the motion, and Plaintiff

timely appeals. Reviewing for abuse of discretion, Molski v. M.J. Cable, Inc., 481

F.3d 724, 728 (9th Cir. 2007), we affirm.

      Defendant’s original declaration contained certain factual inaccuracies and

failed to include some information. But during his pretrial deposition, Defendant

corrected the inaccuracies and supplied the missing information. Plaintiff took the

deposition in August 2014, and the trial did not occur until February 2015.

Defendant’s testimony at trial was consistent with his deposition testimony.

Moreover, the defense theory remained unchanged: that Defendant possessed

information that led him to believe Plaintiff was driving without a valid Oregon

license. Accordingly, Plaintiff was not surprised, unfairly or otherwise.

      AFFIRMED.




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