NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGETTE G. PURNELL, 

Plaintiff-Appellant, 

 v. 

CITY OF SUNNYVALE POLICE 

DEPARTMENT; et al., 

Defendants-Appellees.

No. 20-16447 

D.C. No. 5:18-cv-02113-EJD 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Edward J. Davila, District Judge, Presiding

Submitted April 20, 2021**

Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.

Dissent by Chief Judge THOMAS 

Georgette G. Purnell appeals pro se from the district court’s summary 

judgment in her 42 U.S.C. § 1983 action alleging claims for excessive force and 

failure to render medical assistance arising out of her arrest. We have jurisdiction 

* 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

APR 28 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 20-16447 

under 28 U.S.C. § 1291. We review de novo. Lolli v. County of Orange, 351 F.3d 

410, 414 (9th Cir. 2003). We may affirm on any basis supported by the record. 

Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm in part, 

vacate in part, and remand. 

Dismissal of Purnell’s claim alleging that defendants unreasonably failed to 

provide medical attention was proper because Purnell failed to allege facts 

sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th 

Cir. 2010) (although pro se pleadings are liberally construed, a plaintiff must allege 

facts sufficient to state a plausible claim); Tatum v. City & County of San 

Francisco, 441 F.3d 1090, 1098 (9th Cir. 2006) (officers must provide objectively 

reasonable post-arrest care to an apprehended suspect).

The district court did not abuse its discretion by denying Purnell’s motion to 

compel the production of any video from the Santa Clara County Jail because 

Purnell failed to establish that any video was in the possession, custody, or control

of defendants. See Fed. R. Civ. P. 34(a) (allowing discovery of information or 

documents in the responding party’s possession, custody, or control). 

The district court excluded under the “sham affidavit rule” Purnell’s 

declarations in support of her excessive force claim arising out of the alleged 

incident at the Santa Clara County jail. However, Purnell’s declaration was neither 

flatly contradicted by nor unambiguously inconsistent with her deposition 
3 20-16447 

testimony. See Van Asdale v. Int’l Game Tech., 577 F.3d 989, 999 (9th Cir. 2009). 

At her deposition, Purnell did testify that she could not identify “exactly who did 

what” to her during this incident, but she also testified several times at her 

deposition that defendants were present and participated in the incident. Purnell 

testified: “I can’t tell you specifically which one did what, but I’m sure Reyes [sic

(probably Reis)] was one of the officers that had their hands on me.” In her 

declarations, Purnell stated that defendants “along with a host of jail deputies” 

threw her up against the wall and floor, and that defendants threw Purnell to the 

floor assisted by “doe deputies.” Because Purnell’s declarations clarified Purnell’s 

deposition testimony, Purnell’s declarations should not have been disregarded. See 

Messick v. Horizon Indus., 62 F.3d 1227, 1231 (9th Cir. 1995) (“[T]he non-moving 

party is not precluded from elaborating upon, explaining or clarifying prior 

testimony elicited by opposing counsel on deposition; minor inconsistencies that 

result from an honest discrepancy, a mistake, or newly discovered evidence afford 

no basis for excluding an opposition affidavit.”).

Nonetheless, even considering Purnell’s declarations, the district court 

properly granted summary judgment on Purnell’s excessive force claim against

defendant Cheng because Purnell failed to raise a genuine dispute of material fact 

as to whether Cheng engaged in objectively unreasonable conduct during the 

alleged incident at the Santa Clara County jail. See Pierce v. Multnomah County, 
4 20-16447 

Or., 76 F.3d 1032, 1042-43 (9th Cir. 1996) (setting forth standard for an excessive 

force claim against an arrestee while detained in custody post-arrest but prearraignment).

Regarding defendant Reis, however, Reis admits that she was present during 

the incident but denies that she was involved in subduing Purnell, whereas Purnell 

testified that Reis had her hands on her. Because we cannot determine from the 

current record if there is a triable dispute as to whether Reis used excessive force 

during the alleged incident at the Santa Clara County jail, we vacate the district 

court’s judgment as to Purnell’s excessive force claim against Reis only and 

remand for further proceedings.

On remand, we recommend that the district court consider whether the 

appointment of pro bono counsel for Purnell is appropriate in this matter.

We do not consider arguments raised for the first time on appeal, or matters 

not specifically and distinctly raised and argued in the opening brief. See Padgett 

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). 

Purnell’s request for judicial notice (Docket Entry No. 3) is granted. 

The parties will bear their own costs on appeal.

AFFIRMED in part; VACATED in part; and REMANDED. 
5 20-16447 

Purnell v. City of Sunnyvale Police Dep’t, et al., No. 20-16447

THOMAS, Chief Judge, dissenting:

Chief Judge Thomas respectfully dissents and would affirm the judgment of the 

district court. 

FILED

APR 28 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS