NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICHOLAS K. VIEIRA, 

Plaintiff-Appellant, 

 v. 

COUNTY OF SACRAMENTO; JOSEPH 

ZALEC, 

Defendants-Appellees, 

and 

CITY OF ANTIOCH, 

Defendant.

No. 20-15594 

D.C. No. 3:18-cv-05431-VC 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Vince Chhabria, District Judge, Presiding

Submitted June 14, 2021**

San Francisco, California

Before: SCHROEDER, M. SMITH, and VANDYKE, Circuit Judges.

* 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).

FILED

JUL 8 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Joseph Zalec, an off-duty police officer, shot Nicholas Vieira after multiple 

confrontations. Vieira brought claims under 42 U.S.C. § 1983 and state law claims 

for negligence and battery, suing Zalec, the County of Sacramento (Zalec’s 

employer), and the City of Antioch.

1 The district court granted summary judgment 

to the County and Zalec on Vieira’s § 1983 and negligence claims, while the battery 

claim proceeded to trial, where Zalec was found not liable. Vieira appealsthe district 

court’s partial grant of summary judgment for the County and Zalec. He also appeals

an order granting Zalec’s motions in limine to exclude Vieira’s self-defense 

argumentation and testimony from a use-of-force expert. 

We review de novo a grant of summary judgment, Olsen v. Idaho State Bd. of 

Med., 363 F.3d 916, 922 (9th Cir. 2004), and review evidentiary rulings for an abuse 

of discretion, United States v. Beltran, 165 F.3d 1266, 1269 (9th Cir. 1999). We 

affirm the district court.

1. The district court properly granted summary judgment for Zalec on 

Vieira’s § 1983 claim. To be subject to § 1983 liability, Zalec must have been 

(1) “purporting ... to act in performance of his ... official duties,” which (2) “had 

the purpose and effect of influencing the behavior of others,” and (3) “the challenged 

conduct must [have been] ‘related in some meaningful way ... to the officer’s 

1 The City of Antioch asserted a Heck v. Humphrey, 512 U.S. 477 (1994) defense to 

wrongful arrest and was dismissed prior to this appeal. 
3 

governmental status.’” Anderson v. Warner, 451 F.3d 1063, 1068–69 (9th Cir. 2006) 

(internal citations omitted). 

Vieira’s third amended complaint repeatedly states that Zalec shot Vieira 

“without identifying himself as a police officer,” making it clear Vieira did not 

perceive Zalec as “purporting ... to act in performance of his ... official duties.” Id.

at 1069. And nothing in Vieira’s own testimony indicates that any aspect of his 

behavior before or during the altercation was influenced by knowledge of Zalec’s 

deputy position. The district court properly determined that Zalec was not acting 

under color of law when he shot Vieira. See Huffman v. County of Los Angeles, 147 

F.3d 1054, 1058 (9th Cir. 1998).

2

2. The district court properly determined that the County was not liable

for Vieira’s state law claims under a theory of respondeat superior. Under California 

law, “[t]o recover under respondeat superior, plaintiff bears the burden of proof to 

demonstrate that the employee’s tortious act was committed within the scope of his 

employment.” Perez v. Van Groningen & Sons, Inc., 719 P.2d 676, 679 (Cal. 1986). 

When “a government officer does not act ... under color of state law, then that 

government officer acts as a private citizen” and outside the scope of 

2 The district court properly granted summary judgment for the County on Vieira’s 

§ 1983 claim. Vieira acknowledged that he waived his Monell v. New York City 

Department of Social Services, 436 U.S. 658 (1978) claim against the County prior 

to summary judgment. 
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employment. Van Ort v. Est. of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). 

Because the district court properly found that Zalec was not acting under color of 

law, he was also not acting within the scope of his employment with the County, 

eliminating any liability under respondeat superior. 

3. The district court properly granted summary judgment for Zalec on 

Vieira’s negligence claim. Vieira did not raise the argument before the district court

that Federal Rule of Evidence 410 prohibited the court from considering his no 

contest convictions. Vieira thus “waived any challenge ... by not objecting to” the 

defendants’ arguments on summary judgment regarding Vieira’s no contest 

convictions for brandishing and stalking. Dutta v. State Farm Mut. Auto. Ins. Co., 

895 F.3d 1166, 1172 (9th Cir. 2018).

4. The district court did not abuse its discretion in prohibiting Vieira from 

making a self-defense argument at trial. California law incorporates the Heck bar to 

apply to state law claims, and “we assume that a plea of nolo contendere in a 

California criminal action has the same effect as a guilty plea for Heck analysis.” 

Ove v. Gwinn, 264 F.3d 817, 823 n.4 (9th Cir. 2001). Vieira pled no contest to 

misdemeanor brandishing, which applies to “[e]very person who, except in selfdefense, in the presence of any other person, draws or exhibits any deadly weapon 

... in a rude, angry, or threatening manner.” Cal. Penal Code § 417(a)(1) (emphasis 

added). Vieira thus could not claim he was acting in self-defense while holding the 
5 

“tire buddy” without invalidating an element of his prior brandishing conviction in 

violation of Heck.

5. The district court did not abuse its discretion in excluding Vieira’s useof-force expert. The district court found that Vieira’s expert was “not qualified to 

reconstruct the shooting,” that the expert’s methodology was unreliable, and that the 

resulting testimony on civilian use-of-force would be inappropriate in any event. 

The court may affirm the district court on the ground that the expert’s scene 

reconstruction lacked reliability. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146–

47 (1997) (determining that a district court can exclude an expert opinion when 

“there is simply too great an analytical gap between the data and the opinion 

proffered”). Vieira does not dispute the expert’s reliability on appeal and thus 

waives this argument. Int’l Union of Bricklayers & Allied Craftsman Loc. Union 

No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404–05 (9th Cir. 1985).

AFFIRMED