Georgette G. Purnell v. City of Sunnyvale Police Department;

NOT FOR PUBLICATION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

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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

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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,

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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 pre-
arraignment).
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.

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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

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