Barlow v. Town of Colorado City

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 15, 2025
• Docket: 24-3118
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 15 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TAYLOR E. BARLOW, No. 24-3118 D.C. No. Plaintiff - Appellant, 3:23-cv-08506-SMB v. MEMORANDUM* TOWN OF COLORADO CITY, an Arizona Municipal Corporation,

Defendant - Appellee.

Appeal from the United States District Court for the District of Arizona Susan M. Brnovich, District Judge, Presiding

Submitted March 25, 2025** Phoenix, Arizona

Before: GRABER and BENNETT, Circuit Judges, and TUNHEIM, District Judge.***

* 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). *** The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation. Appellant Taylor E. Barlow was formerly employed by Appellee Town of

Colorado City, Arizona (“Colorado City”) as a police officer. He alleges wrongful

termination due to his perceived affiliation with the Fundamentalist Church of Jesus

Christ of Latter-Day Saints (“FLDS”) religion. The district court dismissed

Barlow’s claims under claim preclusion and alternatively because he failed to

adequately plead a Monell claim. Claim preclusion is inapplicable here, but

nonetheless we affirm the district court’s decision because Barlow failed to

adequately plead a Monell claim.1

Barlow worked for a border town police department that served both Utah and

Arizona. When hired, Barlow was certified as a police officer in Utah and sought

Arizona certification. The Arizona Peace Officer Standards and Training Board

(“AZPOST”) determined that a prior sale of marijuana made Barlow ineligible for

Arizona certification and denied his application accordingly. Barlow appealed the

denial of his Arizona certification to an Administrative Law Judge, the Maricopa

County Superior Court, and the Arizona Court of Appeals; all confirmed that

AZPOST’s denial was lawful. Barlow v. Ariz. Peace Officer Standards & Training

Bd., No. 19-0378, 2020 WL 1274507, at *1–3 (Ariz. Ct. App. Mar. 17, 2020).

Barlow then brought discrimination claims against AZPOST in the federal district

1 We therefore need not address Colorado City’s alternative argument that we affirm on the ground of issue preclusion.

2 24-3118 court in Arizona. Barlow v. Arizona, No. 20-1358, 2021 WL 2474607, at *2 (D.

Ariz. Feb. 23, 2021). His claims were dismissed with prejudice, and we affirmed

that dismissal. Barlow v. Arizona, No. 21-15499, 2022 WL 418957, at *1 (9th Cir.

Feb. 10, 2022). After Barlow exhausted all challenges to AZPOST’s denial of his

Arizona certification, Colorado City terminated him.

1. The district court erred by ruling that claim preclusion barred Barlow’s

complaint because Barlow’s termination occurred after he had filed the prior actions.

Howard v. City of Coos Bay, 871 F.3d 1032, 1040 (9th Cir. 2017).

2. The district court correctly held that Barlow failed to adequately plead

a Monell claim.

A municipality can be held liable under Monell only when a constitutional

violation occurs pursuant to an official policy. Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 694 (1978); see also Dougherty v. City of Covina, 654 F.3d 892, 900 (9th

Cir. 2011). The policy requirement can be satisfied in one of three ways: (1) an

expressly adopted official policy, (2) a longstanding practice or custom, or (3) when

the individual who acted has final policymaking authority or the individual with

policymaking authority ratifies a subordinate’s unconstitutional action. Gordon v.

County of Orange, 6 F.4th 961, 973–74 (9th Cir. 2021). A municipality cannot be

held liable on a theory of respondeat superior. Castro v. County of Los Angeles, 833

F.3d 1060, 1073 (9th Cir. 2016) (en banc).

3 24-3118 Barlow’s allegations that Colorado City had a custom or policy of

discriminating against law enforcement officers affiliated with the FLDS religion

amount to bare conclusory statements. Barlow provided no allegation of a specific

policy or repetitive evidence of discrimination. Instead, he cites to a federal

injunction against Colorado City prohibiting religious discrimination against people

who were not affiliated with the FLDS religion. United States v. Town of Colorado

City, No. 3:12-8123, 2017 WL 1384353, at *1 (D. Ariz. Apr. 18, 2017). The only

other evidence Barlow urges the Court to consider are newspaper articles describing

the changes in Colorado City in response to the injunction. Those newspaper

articles, though, are hearsay, Twardowski v. Am. Airlines, 535 F.3d 952, 961 (9th

Cir. 2008) (per curiam), and were not embraced by the complaint, so they are

impermissible evidence on a motion to dismiss, Daniels-Hall v. Nat’l Educ. Ass’n,

629 F.3d 992, 998 (9th Cir. 2010). Moreover, the articles suggest Colorado City’s

progress toward equitable policing; nothing in those articles supports an inference

of an established policy or custom of discrimination against members of the FLDS

religion. Barlow has failed to sufficiently plead that Colorado City had an

established policy or custom to discriminate against members of the FLDS religion.

Barlow also failed to adequately plead that Colorado City Police Chief

Robbins Radley had final policymaking authority. Instead, Barlow conflated Chief

Radley’s power to terminate Barlow with policymaking authority. The two are not

4 24-3118 the same. Only the Town Council had final policymaking authority, and Chief

Radley could terminate employees only in accordance with the policies adopted by

the Town Council. See Collins v. City of San Diego, 841 F.2d 337, 341–42 (9th Cir.

1988) (holding that a Monell claim failed because, although a police sergeant had

authority to fire employees, he lacked policymaking authority). Further, Barlow has

not alleged that the Town Council took affirmative or deliberate action to ratify Chief

Radley’s termination decision. See Gillette v. Delmore, 979 F.2d 1342, 1347–48

(9th Cir. 1992) (per curiam). Accordingly, Barlow’s Monell claim cannot rest on

Chief Radley’s authority.

3. Finally, the district court did not abuse its discretion, Manzarek v. St.

Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008), by denying leave

to amend due to futility. Barlow has not identified any factual allegations that would

cure the deficiencies in his Monell claim.

AFFIRMED.

5 24-3118