                                                                              FILED
                           NOT FOR PUBLICATION                                  FEB 04 2014

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



                           FOR THE NINTH CIRCUIT


JAMES GRANDY,                                    No. 12-55295

              Plaintiff-Appellant,               D.C. No. 2:09-cv-01270-JHN-RZ

  v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California,
                  Jacqueline H. Nguyen, District Judge, Presiding

                           Submitted January 9, 2014**
                              Pasadena, California

Before: REINHARDT and CLIFTON, Circuit Judges, and RAKOFF, Senior
District Judge.***



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      Plaintiff-Appellant James Grandy appeals from the judgment entered

following a bench trial, after which the District Court concluded, “Plaintiff has

failed to sustain his burden of proof because there is insufficient evidence that

Officer Raygoza failed to exercise ordinary diligence . . . .” This Court reviews a

district court's factual findings for clear error. See Concrete Pipe & Prods. of Cal.,

Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 623 (1993) (clear-

error reversal requires “a definite and firm conviction that a mistake has been

committed”); Fed. R. Civ. P. 52(a)(6). Although the existence of a duty of care is a

matter of law reviewed de novo, “issues of breach and proximate cause are

questions of fact, reviewable for clear error.” USAir Inc. v. U.S. Dep’t of the Navy,

14 F.3d 1410, 1412 (9th Cir. 1994). Even if this Court would view the evidence

differently as a matter of first impression, deference to the district court requires

affirmance so long as its interpretation of the evidence is plausible when viewed as

part of the entire record. See Husain v. Olympic Airways, 316 F.3d 829, 835 (9th

Cir. 2002). We affirm.

      Grandy identifies as the subjects of his appeal Finding of Fact No. 9 and

Conclusion of Law No. 15. He strenuously objects to the District Court’s use of “at

that moment” and “may have momentarily looked away,” urging that these were

conclusions unsupported by the record. But this objection is misplaced because it


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mischaracterizes the District Court’s analysis. The District Court did not conclude,

and did not need to conclude, that Officer Raygoza’s gaze left the metal detector

for a specific amount of time that was objectively reasonable. Rather, the District

Court concluded that Grandy had failed to carry his burden as plaintiff to

demonstrate breach by a preponderance of the evidence. Grandy appears to believe

that the United States had an affirmative burden to disprove an inference of breach

arising from the tragedy. But Grandy bore the burden to prove breach, and the

District Court found that he failed to meet it.

      This conclusion is plausible based upon the whole of the oral and

documentary evidence that was before the District Court at trial, including

testimony from the inmate-assailant, other inmates, Officer Raygoza, Captain

Shawn Grant, and plaintiff’s expert, Joe McGrath. While that evidence showed,

and the District Court found, that Raygoza “did not see Wiggins bypass the metal

detector,” a conclusion of negligence did not automatically follow because of, inter

alia, the additional duties he had during busy prisoner movements for both his and

the prisoners’ safety beyond metal-detector compliance. The record thus provides

ample support for the District Court’s conclusion that Grandy failed to prove

breach, and does not leave us with “a definite and firm conviction that a mistake

has been committed.” Concrete Pipe, 508 U.S. at 623. Accordingly, neither the

                                          -3-
finding of fact nor the conclusion of law informing the judgment appealed from

was clearly erroneous.

      AFFIRMED.




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