Delilah Coleman v. Lvmpd

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2022
• Docket: 21-16269
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 23 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DELILAH COLEMAN, Individually and No. 21-16269 as guardian ad litem of A.C. a minor; A. C., a minor, D.C. No. 2:20-cv-01511-JCM-EJY Plaintiffs-Appellants,

v. MEMORANDUM*

LAS VEGAS METROPOLITAN POLICE DEPARTMENT; AMMON PEACOCK,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted August 9, 2022** San Francisco, California

Before: RAWLINSON, BADE, and BRESS, Circuit Judges.

* 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). Plaintiffs Delilah Coleman and A.C., a minor (together, Plaintiffs), appeal

the district court’s decision granting the Las Vegas Metropolitan Police

Department’s (LVMPD) and Officer Ammon Peacock’s (Officer Peacock)

(together, Defendants) partial motion to dismiss Plaintiffs’ complaint under Rule

12(b)(6) of the Federal Rules of Civil Procedure.1 We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

1. We review de novo a district court’s order granting a motion to dismiss

under Rule 12(b)(6). See Knievel v. ESPN, 393 F.3d 1068, 1070, 1072 (9th Cir.

2005). On a motion to dismiss, “we accept all factual allegations in the complaint

as true and construe the pleadings in the light most favorable to the nonmoving

party.” Id. at 1072 (citation omitted). “We do not, however, necessarily assume

the truth of legal conclusions merely because they are cast in the form of factual

allegations.” Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)

(citations omitted). It is proper to grant a motion to dismiss if the complaint either:

(1) fails to allege a cognizable legal theory; or (2) fails to allege sufficient facts to

1 The district court “DISMISSED with prejudice” the two federal claims that were at issue in the Defendants’ motion for partial dismissal. The district court declined to exercise supplemental jurisdiction over the remaining three state law claims, and remanded the case to state court. The district court entered an order “clos[ing] this case” on July 6, 2021, and the judgment became final on December 3, 2021. See Fed. R. App. P. 4(a)(2), (a)(7)(A)(ii). The district court’s order constitutes an appealable final judgment. 2 support a cognizable legal theory. See Caltex Plastics, Inc. v. Lockheed Martin

Corp., 824 F.3d 1156, 1159 (9th Cir. 2016). We review a district court’s denial of

leave to amend for an abuse of discretion. See United States v. United Healthcare

Ins., 848 F.3d 1161, 1172 (9th Cir. 2016), as amended.

2. The district court properly determined that Plaintiffs did not allege

sufficient facts to support a plausible substantive due process claim against Officer

Peacock, because Plaintiffs did not allege sufficient specific facts that Officer

Peacock acted with an “intent to harm” Plaintiffs. Bingue v. Prunchak, 512 F.3d

1169, 1170-71 (9th Cir. 2008). In the context of a high-speed chase, for a plaintiff

to state a plausible Fourteenth Amendment substantive due process claim, the

plaintiff must sufficiently allege that the officer acted with “intent to harm.”

County of Sacramento v. Lewis, 523 U.S. 833, 854 (1998) (citation omitted). In

Bingue, we held that “the Lewis standard of intent to harm applies to all high-speed

police chases,” and we declined to “draw a distinction between emergency and

non-emergency situations involving high-speed chases aimed at apprehending a

fleeing suspect.” 512 F.3d at 1177 (citation and internal quotation marks omitted).

Plaintiffs’ failure to assert non-conclusory allegations regarding Officer Peacock’s

intent to harm is fatal to their 42 U.S.C. § 1983 substantive due process claim. See

id.; see also Western Mining, 643 F.2d at 624. Plaintiffs’ reliance on Flores v. City

3 of South Bend, 997 F.3d 725 (7th Cir. 2021), is inapposite because it is factually

distinguishable and at odds with our precedent. See id. at 729 (applying a

deliberate indifference standard rather than an intent-to-harm standard).

3. In their claim against the LVMPD under Monell v. Department of Social

Services, 436 U.S. 658 (1978), Plaintiffs failed to sufficiently plead that they

“possessed a constitutional right of which [they were] deprived,” and so they

cannot satisfy the first Monell requirement. Van Ort v. Estate of Stanewich, 92

F.3d 831, 835 (9th Cir. 1996). In any event, Plaintiffs have not proffered sufficient

non-conclusory factual allegations to establish the other elements of a Monell

claim. See id. ((2) “the municipality had a policy”; (3) “this policy ‘amounts to

deliberate indifference’ to the plaintiff’s constitutional right”; and (4) “the policy is

the ‘moving force behind the constitutional violation’”) (citation and internal

quotation marks omitted).

4. The district court did not abuse its discretion in denying leave to amend

the complaint. “Futility of amendment can, by itself, justify the denial of a motion

for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

Plaintiffs have waived any challenge to the district court’s denial of leave to amend

because they failed to include any non-conclusory argument on this issue in their

Opening Brief. See Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626

4 F.3d 483, 485 (9th Cir. 2010); see also Montana Envt’l Info. Ctr. v.

Stone-Manning, 766 F.3d 1184, 1191 n.6 (9th Cir. 2014). In any event, the district

court noted that “Plaintiffs have alleged all the facts that they plausibly can.”

Indeed, Plaintiffs suggest that it would be “impossible” to allege new facts at this

stage of the case, and have not identified any additional facts they could plead to

cure the defects in their complaint. See Miller v. Yokohama Tire Corp., 358 F.3d

616, 622 (9th Cir. 2004).

AFFIRMED.