NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEJANDRO OCHOA, 

Plaintiff-Appellant, 

 v. 

COUNTY OF KERN; et al.,

Defendants-Appellees.

No. 23-15276 

D.C. No. 

1:18-cv-01599-JLT-CDB 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Jennifer L. Thurston, District Judge, Presiding

Submitted March 12, 2024**

San Francisco, California

Before: S.R. THOMAS, McKEOWN, and CHRISTEN, Circuit Judges.

Plaintiff-Appellant Alejandro Ochoa appeals the district court’s post-trial 

order denying his renewed motion for judgment as a matter of law or, in the 

alternative, for a new trial. We assume the parties’ familiarity with the facts and 

recite them only as necessary. We have jurisdiction pursuant to 28 U.S.C. § 1291, 

* 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 15 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

and we affirm. 

We review de novo a district court’s denial of a motion for judgment as a 

matter of law brought pursuant to Federal Rule of Civil Procedure 50(b). Harper 

v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008). We must uphold the

jury’s verdict if it is “supported by substantial evidence, which is evidence 

adequate to support the jury’s conclusion, even if it is also possible to draw a 

contrary conclusion.” Id. (quoting Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 

2002)). We review for abuse of discretion a district court’s denial of a motion for a 

new trial brought pursuant to Rule 59. Kode v. Carlson, 596 F.3d 608, 611 (9th 

Cir. 2010) (per curiam). 

I

The district court did not err by denying Ochoa’s renewed motion for 

judgment as a matter of law on his Fourth Amendment excessive force claims

against Deputies Ryan Brock and Andrew Bassett. Ochoa’s motion turns on

whether the evidence introduced at trial was sufficient for the jury to conclude that 

the deputies’ actions were “‘objectively reasonable’ in light of the facts and 

circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989). 

“This inquiry ‘requires a careful balancing of the nature and quality of the intrusion 

on the individual’s Fourth Amendment interests against the countervailing 

governmental interests at stake.’” Glenn v. Washington County, 673 F.3d 864, 871 
3 

(9th Cir. 2011) (quoting Graham, 490 U.S. at 396). To determine the nature and 

quality of the Fourth Amendment intrusion, we begin by “consider[ing] the 

quantum of force used” by Deputies Brock and Bassett. Id. We then determine 

the weight of the countervailing governmental interest in the use of force using the 

Graham factors: “(1) the severity of the crime; (2) whether the suspect posed an 

immediate threat to the safety of the officers or others; and (3) whether the suspect 

was actively resisting arrest or attempting to evade arrest by flight.” Sabbe v. 

Wash. Cnty. Bd. of Comm’rs, 84 F.4th 807, 822 (9th Cir. 2023). 

Substantial evidence supports the jury’s finding that Deputy Brock’s actions 

were objectively reasonable when he shot Ochoa with a projectile from a 40mm 

less-than-lethal launcher. The parties agree that the 40mm launcher was capable of 

inflicting—and did inflict—serious injury and that “a strong governmental 

interest” was required to justify its use. Deorle v. Rutherford, 272 F.3d 1272, 1280 

(9th Cir. 2001). 

The evidence submitted at trial and the reasonable inferences drawn from it

support the jury finding in favor of Deputy Brock on all three Graham factors. 

The testimony established that the deputies responded to a domestic violence call 

involving a potential hostage situation and knew Ochoa had an outstanding warrant 

for failure to appear in court for a felony spousal abuse charge. See Thomas v. 

Dillard, 818 F.3d 864, 890 (9th Cir. 2016) (“[W]e first consider the severity of the 
4 

crime at issue. Any form of domestic violence is serious . . . .”). The evidence 

showed that Ochoa was not allowing anyone to leave the house and that, after he

retreated to a bathroom, the deputies were not sure whether any additional hostages

were in the room with him. The jury also could have concluded that Ochoa posed 

an immediate threat to the deputies when Deputy Brock fired the less-than-lethal 

projectile. Brock testified that Ochoa ignored deputies’ commands to surrender, 

that neither Ochoa nor the bathroom had been searched for weapons, and that 

Ochoa was screaming with his fists clenched near his waistband. Finally, the jury 

could have concluded that Ochoa was attempting to evade arrest by retreating to a

bathroom, locking the door, not responding to the deputies’ instructions, and not 

complying after the door was breached. See Chew v. Gates, 27 F.3d 1432, 1442 

(9th Cir. 1994) (giving “a slight edge” to the government on the third Graham

factor where the plaintiff evaded police but, at the moment force was used, “his 

flight had terminated, at least temporarily, in [a] scrapyard”). 

Substantial evidence also supports the jury’s finding that Deputy Bassett’s 

actions were objectively reasonable when he instructed his canine to bite Ochoa. 

The parties agree that Deputy Bassett’s use of a canine to subdue Ochoa 

constituted at least intermediate force and could only be justified by a strong 

governmental interest. The evidence permitted the jury to conclude that a strong 

governmental interest existed because Ochoa posed an immediate risk to the safety 
5 

of the deputies when Deputy Bassett deployed his canine. Bassett testified that he 

was concerned that the deputies attempting to restrain Ochoa could have been 

injured in the struggle and that he did not know whether Ochoa was armed or if 

there was a weapon somewhere in the bathroom. The jury also could have credited 

Deputy Bassett’s testimony that he released his canine because Ochoa was 

violently resisting the deputies’ efforts to take him into custody. Because “[t]he 

evidence presented was far from ‘one-sided’ and did not give rise to ‘but one 

reasonable conclusion as to the verdict,’” Ochoa was not entitled to judgment as a 

matter of law. Shafer v. County of Santa Barbara, 868 F.3d 1110, 1116–17 (9th 

Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 252 

(1986)).

II

The district court did not abuse its discretion by denying Ochoa’s motion for 

a new trial. Ochoa provided no argument or authority in support of his motion, and 

“it cannot be said that there was an ‘absolute absence of evidence to support the 

jury’s verdict.’” Crowley v. Epicept Corp., 883 F.3d 739, 752 (9th Cir. 2018) 

(quoting Kode, 596 F.3d at 612).

AFFIRMED.