NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRED DEVINE, 

Plaintiff-Appellant, 

 v. 

PHOENIX FIRE DEPARTMENT, Named as 

Phoenix Fire Department, et al.; et al., 

Defendants-Appellees.

No. 23-15192 

D.C. No. 2:19-cv-05745-SMBMTM 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Susan M. Brnovich, District Judge, Presiding

Submitted March 26, 2024**

Before: TASHIMA, SILVERMAN, and KOH, Circuit Judges.

Fred Devine appeals pro se from the district court’s summary judgment in 

his 42 U.S.C. § 1983 action alleging excessive force under the Fourth Amendment. 

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. 

Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.

* 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

MAR 29 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 23-15192

The district court properly granted summary judgment because Devine failed 

to raise a genuine dispute of material fact as to whether defendants used excessive 

force in arresting him. See Graham v. Connor, 490 U.S. 386, 396-98 (1989)

(setting forth objective reasonableness standard for excessive force 

determinations); see also Scott v. Harris, 550 U.S. 372, 380 (2007) (an assertion 

that is “blatantly contradicted by the record, so that no reasonable jury could 

believe it” will not create a genuine dispute of material fact at summary judgment).

The district court did not abuse its discretion in denying Devine’s motion to 

preclude the officer body camera videos because Devine failed to establish that the 

evidence was inadmissible. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 

(9th Cir. 2002) (setting forth standard for review and explaining that a court can 

consider admissible evidence in ruling on a motion for summary judgment).

The district court did not abuse its discretion in denying Devine’s motion to 

defer ruling on defendants’ motion for summary judgment because Devine failed 

to show that allowing further discovery would have precluded summary judgment. 

See Fam. Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 

827-28 (9th Cir. 2008) (setting forth standard of review and required showing for 

granting a continuance on a motion for summary judgment).

The district court did not abuse its discretion in denying Devine’s motion for 

sanctions because Devine failed to establish that defendants’ counsel made any 
3 23-15192

misstatements to the court. See Anheuser-Busch, Inc. v. Nat. Beverage Distribs., 

69 F.3d 337, 348 (9th Cir. 1995) (setting forth standard of review and discussing a 

court’s inherent power to sanction parties).

We do not consider arguments and allegations raised for the first time on 

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not 

consider documents not presented to the district court. See United States v. Elias, 

921 F.2d 870, 874 (9th Cir. 1990).

Devine’s motion to supplement the record (Docket Entry No. 9) is denied.

AFFIRMED.