                                                                            FILED
                             NOT FOR PUBLICATION
                                                                             OCT 31 2017
                      UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


LYNNE KORFF, as Statutory Plaintiff and          No.    16-16020
surviving mother of Timothy O’Brien
deceased - on behalf of all Statutory            D.C. No. 2:13-cv-02317-ESW
Plaintiffs,

               Plaintiff-Appellant,
                                                 MEMORANDUM*
 v.

CITY OF PHOENIX, a municipality; et
al.,

               Defendants-Appellees.


                     Appeal from the United States District Court
                              for the District of Arizona
                     Eileen Willett, Magistrate Judge, Presiding**

                       Argued and Submitted October 18, 2017
                              San Francisco, California

Before: HAWKINS, W. FLETCHER, and TALLMAN, Circuit Judges.



      *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
      **
           The parties consented to proceed before a magistrate judge.
      The purpose of summary judgment is to identify whether material fact questions

exist, not to resolve them. In this 42 U.S.C. § 1983 civil rights action,1 the district

court granted summary judgment on claims arising out of a June 2012 confrontation

between two Phoenix police officers and the late Timothy O’Brien at a public park.

According to the officers, O’Brien was wielding a baseball bat, advancing towards

them, and disregarding commands to stop and drop the bat when they fired their

weapons. O’Brien’s mother, Lynne Korff (“Korff”), contends that her son had

dropped the bat and was no longer advancing towards the officers when the fatal shots

were fired. Taking the evidence put forward on O’Brien’s behalf and, as we must,

making all inferences from the record evidence in O’Brien’s favor, we conclude that

a jury must resolve this critical factual dispute. See Bracken v. Okura, 869 F.3d 771,

778 (9th Cir. 2017) (citing Zetwick v. Cty. of Yolo, 850 F.3d 436, 440 (9th Cir. 2017)).

Accordingly, we reverse and remand.

      This factual dispute is also central to the officers’ assertion that they are entitled

to qualified immunity and Korff’s state law negligence claim against the City of

Phoenix.

      Because nothing in the record suggests that the magistrate judge could not fairly

and correctly apply the law on remand, we decline the suggestion that the case be


      1
          Korff also brings a related negligence claim under Arizona law.
                                            2
assigned to a different judge. Neither our determination that summary judgment was

erroneously granted nor the preservation of the appearance of justice warrants

reassignment on remand. See Wyler Summit P’ship v. Turner Broad. Sys., Inc., 235

F.3d 1184, 1196 (9th Cir. 2000).

      Our conclusions necessitate the vacatur of the fee and cost award below.2

      REVERSED AND REMANDED.




      2
        For that reason, Appellees’ Motion to Strike Korff’s Amended Notice of
Appeal is denied as moot.
                                         3
