                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 10 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ELVIRA FERNANDEZ, individually and               No. 14-16374
as Co-Personal Representative of: estate of
Daniel Frank Rodriguez; FRANK                    D.C. No. 2:12-cv-02475-JWS
RODRIGUEZ, individually and as Co-
Personal Representative of: estate of
Daniel Frank Rodriguez,                          MEMORANDUM*

              Plaintiffs - Appellants,

 v.

SERGIO VIRGILLO, Husband; MARIA
VIRGILLO, Wife, also named as: Jane
Doe Virgillo; RICHARD A. CHRISMAN,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                    John W. Sedwick, District Judge, Presiding

                        Argued and Submitted May 12, 2016
                             San Francisco, California

Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Elvira Fernandez and Frank Rodriguez (collectively “Fernandez”) appeal

from the district court’s grant of summary judgment in favor of Sergio Virgillo in

their § 1983 suit. Because the facts are known to the parties, we do not repeat

them here.

                                           I

      The district court did not err in granting summary judgment on Fernandez’s

claim that Virgillo used excessive force by deploying his taser against Daniel

Rodriguez. Arizona law prevents Fernandez from recovering damages for Daniel’s

pre-death pain and suffering. See Ariz. Rev. Stat. § 14-3110. The district court

correctly held that such law bars Fernandez’s claim; applying Arizona’s law does

not frustrate the purposes of § 1983 where, as here, the alleged constitutional

violation did not cause the victim’s death. See Robertson v. Wegmann, 436 U.S.

584, 590–92 (1978); Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1103–05

(9th Cir. 2014).

      In any event, notwithstanding the limitations imposed by Arizona law,

Virgillo is entitled to qualified immunity, because it was not clearly established on

October 5, 2010, that Virgillo’s use of his taser was excessive in the circumstances.

See Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per curiam) (discussing

qualified immunity standards); Mattos v. Agarano, 661 F.3d 433, 452 (9th Cir.


                                          2
2011) (en banc) (granting qualified immunity in two separate excessive force

claims involving use of a taser).

                                            II

       The district court did not err in granting summary judgment on Fernandez’s

claim that Virgillo failed to intercede to prevent Chrisman from shooting and

killing Daniel. Virgillo did intervene by talking calmly to Daniel and persuading

him to leave the trailer, and it is undisputed that Virgillo’s efforts at least

momentarily calmed the situation and appeared to relieve any danger to Daniel.

Virgillo is entitled to qualified immunity, because Fernandez can point to no

authority clearly establishing that he needed to intervene in some other manner, at

least prior to the point that Chrisman blocked Daniel’s path and redrew his gun,

once again escalating the situation. See Taylor, 135 S. Ct. at 2044–45.

       Although she attempts to do so on appeal, Fernandez did not explicitly argue

to the district court that Virgillo had an opportunity to intervene further in the

period of seconds between when Chrisman re-escalated the situation and when he

shot Daniel. In any event, the district court did not err in holding that such a

fleeting period of time did not offer a realistic opportunity for Virgillo to intercede

in a meaningful way, and that he is not liable for failing to do so. Cf., e.g., Ting v.

United States, 927 F.2d 1504, 1512 (9th Cir. 1991) (“[T]he agents were positioned


                                             3
around the room . . . and were thus physically incapable of preventing the incidents

surrounding the shooting, all of which transpired in a matter of seconds.”).

                                            III

       The district court did not err in granting summary judgment on Fernandez’s

loss of familial association claim. Fernandez has not pointed to any evidence that

would allow a reasonable jury to conclude that Virgillo acted with the requisite

“purpose to harm unrelated to legitimate law enforcement objectives.” Wilkinson

v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). There is no support for Fernandez’s

contention that Chrisman’s purposes are imputed to Virgillo, especially because (as

noted) the district court correctly held that Virgillo is not liable for failing to

prevent Chrisman’s actions.

       AFFIRMED.




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