FILED NOT FOR PUBLICATION MAY 2 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTICE DESHAWN WALLACE, No. 22-16324

Plaintiff-Appellant, D.C. No. 2:17-cv-04126-DJH

v. MEMORANDUM* TIMOTHY A JONES, pursuant to Doc. 42, Fire Captain with City of Phoenix Fire Department; MICHAEL J THOMAS, pursuant to Doc. 42, City of Phoenix Fireman; KEITH B WAGNER, pursuant to Doc. 42, City of Phoenix Fireman; SCOTT A. ALFRED, pursuant to Doc. 42, City of Phoenix Fireman; TODD RIGGS, Firefighter at City of Phoenix Fire Department; DANIEL WARREN, Firefighter at City of Phoenix Fire Department; PHOENIX, CITY OF,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted [DATE] ** San Francisco, California

Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges.

Arizona state prisoner Martice Deshawn Wallace appeals pro se from the

district court’s sua sponte dismissal of his unlawful seizure claim under 28 U.S.C.

§ 1915(e)(2)(B)(ii) and the denial of his motion for a new trial on his excessive

force claim. We have jurisdiction under 28 U.S.C. § 1291. We review the

dismissal de novo1 and the denial of a motion for new trial for abuse of discretion.2

We affirm.

The district court did not err by dismissing Wallace’s unlawful seizure claim

against firefighters Scott Alfred, Michael Thomas, and Keith Wagner3 because

Wallace failed to state a claim on which relief could be granted. See Barren, 152

F.3d at 1194. The claim made no allegations against Alfred, Thomas, or Wagner.

See id.; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Nor did his complaint

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 2 Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (per curiam). 3 The district court also dismissed the unlawful seizure claim as to Timothy Jones. However, it subsequently granted summary judgment for Jones on the claim, which Wallace does not appeal.

2 22-16324 allege a failure to intercede claim, as Wallace contends. Even construed liberally,

his complaint does not suggest that either Alfred, or Thomas, or Wagner was aware

of any violation of Wallace’s constitutional rights by defendants Todd Riggs or

Daniel Warren. Cf. Tobias v. Arteaga, 996 F.3d 571, 583–84 (9th Cir. 2021). In

any event, a failure to intercede claim would fail as a matter of law because there

could be no cognizable claim of a constitutional violation by Riggs and Warren on

which a failure to intercede claim could be predicated. See id.; see also Heck v.

Humphrey, 512 U.S. 477, 486–87, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383

(1994).

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

for a new trial on his excessive force claim. See Mueller v. Auker, 700 F.3d 1180,

1193–94 (9th Cir. 2012). Notwithstanding evidence that could have supported

Wallace’s claim, Wallace did not demonstrate that the jury’s verdict was against

the clear weight of the evidence. See id.; see also Kode, 596 F.3d at 613.4

AFFIRMED.

4 Because substantial evidence supports the jury verdict regardless of the trial exhibits missing from the record, Wallace’s Motion for Defendants’ Counsel to File the Missing Exhibits (Dkt. 41) is denied. His Motion for Correction/Modification of the Record on Appeal (Dkt. 11) is also denied.

3 22-16324