NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JAIRO CERVANTES RAMIREZ; et al., No. 20-56117
Plaintiffs-Appellants, D.C. Nos. 3:17-cv-01230-BAS-AHG v. 3:18-cv-01062-BAS-AHG
SHELLY ZIMMERMAN, San Diego Police Chief; et al., MEMORANDUM*
Defendants-Appellees,
and
BOUDREAU, Sheriff's Sergeant; et al.,
Defendants.
Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding
Argued and Submitted October 5, 2021 Pasadena, California
Before: GRABER and CHRISTEN, Circuit Judges, and SEEBORG,** District Judge. Partial Concurrence by Judge CHRISTEN.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. Plaintiffs Jairo Cervantes, Nancy Sanchez, Madison Goodman, Brandon
Steinberg, and Bryan Pease timely appeal the dismissal of their civil rights action.
We affirm.
1. Plaintiffs’ theory of liability under Monell v. Department of Social
Services, 436 U.S. 658 (1978), is that Chief of Police Shelley Zimmerman, as final
policymaker for the San Diego police department, ratified unconstitutional conduct
by city police officers. But the record contains no evidence that Chief Zimmerman
ratified a subordinate’s unconstitutional action. See Christie v. Iopa, 176 F.3d
1231, 1239 (9th Cir. 1999) (“To show ratification, a plaintiff must prove that the
authorized policymakers approve a subordinate’s decision and the basis for it.”
(internal quotation marks omitted)). Nor has Plaintiff ever argued—on summary
judgment or on appeal—that Chief Zimmerman knew of a constitutional violation
and actually approved of it. See Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004)
(“The policymaker must have knowledge of the constitutional violation and
actually approve of it.”); see also Christie, 176 F.3d at 1239. (“[A] plaintiff must
establish that there is a genuine issue of material fact regarding whether a
ratification occurred.”). Plaintiffs’ Monell claim fails on that ground. See Isabel v.
Reagan, 987 F.3d 1220, 1226 (9th Cir. 2021) (“We may affirm a district court’s
judgment on any ground supported by the record, whether or not the decision of
the district court relied on the same grounds or reasoning we adopt.” (quoting Atel
2 Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (per curiam))).
2. Plaintiffs’ constitutional claims against the individual officers also fail
because qualified immunity shields the officers.
Plaintiffs forfeited their Fourth Amendment qualified immunity arguments
because the opening brief makes no legal argument that qualified immunity does
not apply, nor is such an argument apparent from Plaintiffs’ factual recitation. See
United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made in
passing and not supported by citations to the record or to case authority are
generally deemed waived.”).
Qualified immunity also shields the officer Defendants from any theories
under the First Amendment because Plaintiffs have not cited, nor have we found,
any clearly established law that is on point. See Sharp v. County of Orange, 871
F.3d 901, 909 (9th Cir. 2017) (holding that qualified immunity shields officer
Defendants from claims arising out of their police work unless their conduct
violated “clearly established” federal law).
3. In a footnote in its summary judgment order, the district court refused to
address viewpoint discrimination at summary judgment because a prior order had
denied Plaintiffs leave to amend their complaint to add a claim for viewpoint
discrimination. Plaintiffs do not challenge that denial of leave to amend. Instead,
Plaintiffs argue only that the district court improperly discarded strong evidence of
3 viewpoint discrimination. But the operative complaint (the Fourth Amended
Complaint) nowhere articulated, nor so much as referenced, a viewpoint
discrimination theory. See Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d
989, 992 (9th Cir. 2006) (holding that “summary judgment is not a procedural
second chance to flesh out inadequate pleadings” (internal quotation marks
omitted)).
Plaintiffs argue that viewpoint discrimination may be part of a claim under
the Ralph Civil Rights Act, Cal. Civ. Code § 51.7, a claim alleged in the operative
complaint. But the district court held that the claim under the Ralph Act failed
because Plaintiffs had submitted no evidence that some “physical, destructive act”
beyond the “mere application of physical force” had occurred. Because Plaintiffs
do not challenge that conclusion on appeal, the Ralph Act claim cannot be revived.
4. The district court dismissed other state-law claims as well, but the
opening brief does not address those claims. Further, at oral argument, Plaintiffs’
counsel clarified that Plaintiffs appeal the dismissal of their claims under § 1983
that allege a violation of the First Amendment and a violation of the Fourth
Amendment. Therefore, any arguments related to the other dismissed claims are
either waived or forfeited. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999) (holding that arguments not raised in a party’s opening brief generally are
forfeited).
4 5. The district court did not abuse its discretion in denying leave to amend
to add three police officers as defendants. The district court denied leave to amend
on the grounds that Plaintiffs so moved after discovery closed and that Plaintiffs
should have been aware of those officers’ roles as far back as April 2018, when
Defendants listed the role assigned to each officer for the events of May 27, 2016.
See United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th Cir.
2016) (This court “review[s] the denial of leave to amend for an abuse of
discretion.”).
6. The district court did not abuse its discretion in denying Plaintiff Pease
additional discovery after the cases were consolidated. Although the material
sought is relevant, Plaintiffs make no attempt to show how their case would be
aided by reopening discovery. See Dichter-Mad Fam. Partners, LLP v. United
States, 709 F.3d 749, 751 (9th Cir. 2013) (per curiam) (holding that “broad
discretion is vested in the trial court to permit or deny discovery, and its decision to
deny discovery will not be disturbed except upon the clearest showing that denial
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JAIRO CERVANTES RAMIREZ; et al., No. 20-56117
Plaintiffs-Appellants, D.C. Nos. 3:17-cv-01230-BAS-AHG v. 3:18-cv-01062-BAS-AHG
SHELLY ZIMMERMAN, San Diego Police Chief; et al., MEMORANDUM*
Defendants-Appellees,
and
BOUDREAU, Sheriff's Sergeant; et al.,
Defendants.
Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding
Argued and Submitted October 5, 2021 Pasadena, California
Before: GRABER and CHRISTEN, Circuit Judges, and SEEBORG,** District Judge. Partial Concurrence by Judge CHRISTEN.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. Plaintiffs Jairo Cervantes, Nancy Sanchez, Madison Goodman, Brandon
Steinberg, and Bryan Pease timely appeal the dismissal of their civil rights action.
We affirm.
1. Plaintiffs’ theory of liability under Monell v. Department of Social
Services, 436 U.S. 658 (1978), is that Chief of Police Shelley Zimmerman, as final
policymaker for the San Diego police department, ratified unconstitutional conduct
by city police officers. But the record contains no evidence that Chief Zimmerman
ratified a subordinate’s unconstitutional action. See Christie v. Iopa, 176 F.3d
1231, 1239 (9th Cir. 1999) (“To show ratification, a plaintiff must prove that the
authorized policymakers approve a subordinate’s decision and the basis for it.”
(internal quotation marks omitted)). Nor has Plaintiff ever argued—on summary
judgment or on appeal—that Chief Zimmerman knew of a constitutional violation
and actually approved of it. See Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004)
(“The policymaker must have knowledge of the constitutional violation and
actually approve of it.”); see also Christie, 176 F.3d at 1239. (“[A] plaintiff must
establish that there is a genuine issue of material fact regarding whether a
ratification occurred.”). Plaintiffs’ Monell claim fails on that ground. See Isabel v.
Reagan, 987 F.3d 1220, 1226 (9th Cir. 2021) (“We may affirm a district court’s
judgment on any ground supported by the record, whether or not the decision of
the district court relied on the same grounds or reasoning we adopt.” (quoting Atel
2 Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (per curiam))).
2. Plaintiffs’ constitutional claims against the individual officers also fail
because qualified immunity shields the officers.
Plaintiffs forfeited their Fourth Amendment qualified immunity arguments
because the opening brief makes no legal argument that qualified immunity does
not apply, nor is such an argument apparent from Plaintiffs’ factual recitation. See
United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made in
passing and not supported by citations to the record or to case authority are
generally deemed waived.”).
Qualified immunity also shields the officer Defendants from any theories
under the First Amendment because Plaintiffs have not cited, nor have we found,
any clearly established law that is on point. See Sharp v. County of Orange, 871
F.3d 901, 909 (9th Cir. 2017) (holding that qualified immunity shields officer
Defendants from claims arising out of their police work unless their conduct
violated “clearly established” federal law).
3. In a footnote in its summary judgment order, the district court refused to
address viewpoint discrimination at summary judgment because a prior order had
denied Plaintiffs leave to amend their complaint to add a claim for viewpoint
discrimination. Plaintiffs do not challenge that denial of leave to amend. Instead,
Plaintiffs argue only that the district court improperly discarded strong evidence of
3 viewpoint discrimination. But the operative complaint (the Fourth Amended
Complaint) nowhere articulated, nor so much as referenced, a viewpoint
discrimination theory. See Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d
989, 992 (9th Cir. 2006) (holding that “summary judgment is not a procedural
second chance to flesh out inadequate pleadings” (internal quotation marks
omitted)).
Plaintiffs argue that viewpoint discrimination may be part of a claim under
the Ralph Civil Rights Act, Cal. Civ. Code § 51.7, a claim alleged in the operative
complaint. But the district court held that the claim under the Ralph Act failed
because Plaintiffs had submitted no evidence that some “physical, destructive act”
beyond the “mere application of physical force” had occurred. Because Plaintiffs
do not challenge that conclusion on appeal, the Ralph Act claim cannot be revived.
4. The district court dismissed other state-law claims as well, but the
opening brief does not address those claims. Further, at oral argument, Plaintiffs’
counsel clarified that Plaintiffs appeal the dismissal of their claims under § 1983
that allege a violation of the First Amendment and a violation of the Fourth
Amendment. Therefore, any arguments related to the other dismissed claims are
either waived or forfeited. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999) (holding that arguments not raised in a party’s opening brief generally are
forfeited).
4 5. The district court did not abuse its discretion in denying leave to amend
to add three police officers as defendants. The district court denied leave to amend
on the grounds that Plaintiffs so moved after discovery closed and that Plaintiffs
should have been aware of those officers’ roles as far back as April 2018, when
Defendants listed the role assigned to each officer for the events of May 27, 2016.
See United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th Cir.
2016) (This court “review[s] the denial of leave to amend for an abuse of
discretion.”).
6. The district court did not abuse its discretion in denying Plaintiff Pease
additional discovery after the cases were consolidated. Although the material
sought is relevant, Plaintiffs make no attempt to show how their case would be
aided by reopening discovery. See Dichter-Mad Fam. Partners, LLP v. United
States, 709 F.3d 749, 751 (9th Cir. 2013) (per curiam) (holding that “broad
discretion is vested in the trial court to permit or deny discovery, and its decision to
deny discovery will not be disturbed except upon the clearest showing that denial
of discovery results in actual and substantial prejudice to the complaining litigant”
(internal quotation marks omitted)).
7. Plaintiffs did not preserve their argument that the district court erred by
not exercising its discretionary power under Federal Rule of Civil Procedure 37 to
sanction Defendants. See Graf, 610 F.3d at 1166 (“Arguments made in passing
5 and not supported by citations to the record or to case authority are generally
deemed waived.”).
8. Because Plaintiffs settled with the county defendants, any arguments
related to the Sheriff’s Department are moot.
AFFIRMED.
6 FILED Cervantes Ramirez v. Zimmerman, No. 20-56117 NOV 3 2021 CHRISTEN, Circuit Judge, concurring in part and concurring in the judgment. MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I concur with my colleagues’ decision to affirm the district court’s rulings
concerning plaintiffs’ Monell claims, its decision not to consider viewpoint
discrimination at summary judgment, dismissal of plaintiffs’ state-law claims,
denial of leave to amend, denial of additional discovery after the cases were
consolidated, denial of sanctions, and that arguments related to the Sheriff’s
Department are moot. I write separately because I conclude that issues of fact
should have prevented entry of summary judgment on whether plaintiffs suffered
First and Fourth Amendment injuries.
The district court concluded that plaintiffs had no First Amendment right to
remain in the area of an unlawful assembly order and that no reasonable jury could
find that defendants lacked probable cause to arrest plaintiffs because plaintiffs
failed to disperse. I disagree. Viewing the facts in the light most favorable to the
plaintiffs, questions of fact remain regarding whether plaintiffs had departed from
the area of the unlawful assembly and were complying with the order to disperse
when they were arrested.
The operative dispersal order was issued at approximately 4:30 p.m.
pursuant to California Penal Code § 726. Subsequent announcements directed
plaintiffs to walk away from Tin Fish Plaza, “toward L Street east,” and then onto Harbor Drive. The record includes evidence showing the defendants’ aim was to
keep two—or possibly three—factions apart to avoid violence, and that this was
the reason plaintiffs were not allowed to circle back on the side streets to their
parked cars. I do not question the legitimacy of the law enforcement objective to
steer the groups in opposite directions, but the record before us shows that officers
told plaintiffs to proceed down Harbor Drive, and only Harbor Drive, but never
told them how far they were required to go. Plaintiffs contend they walked along
Harbor Drive and away from the plaza as directed. The record shows that one
plaintiff testified, “Well, they just kept saying ‘keep walking,’ which we were. We
didn’t stand still at any point.” And another testified, “They said to keep on going
the way they were telling us . . . [and] I followed directions . . . [I k]ept on going
forward.” Perhaps the best evidence that plaintiffs complied with the order to
disperse is the uncontested location and time of their arrests: approximately a mile
down Harbor Drive and over two hours after the 4:30 p.m. dispersal order.
Public demonstrations are an important feature of our political landscape and
gatherings of this sort are certain to continue. In my view, a dispersal order
specifying a point at which officers could allow people to deviate from the trek
down Harbor Drive would have avoided considerable confusion for
everyone—including the officers on the ground—and may have avoided these
2 arrests and follow-on litigation. Instead, the open-ended dispersal order exposed
defendants to allegations that they committed constitutional violations by arresting
people who had departed from the area in compliance with the order to disperse.
That said, in my view the district court correctly concluded that qualified
immunity shields defendants from liability for these claims. Plaintiffs articulated
an intent to appeal the district court’s qualified immunity ruling but offered only
general rules of law and the assertion that defendants’ conduct “was clearly illegal
and unconstitutional.” Plaintiffs are correct that, “in an obvious case,” we may
find clearly established standards “even without a body of relevant case law,”
Brosseau v. Haugen, 543 U.S. 194, 199 (2004), but the facts in this case do not
approach that standard, see, e.g., Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020). It
was plaintiffs’ burden to show clearly established law put defendants on notice
their actions violated plaintiffs’ rights, and plaintiffs did not meet this burden. For
these reasons, I agree with my colleagues’ decision to affirm the district court’s
ruling on qualified immunity.