NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 5 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MATTHEW A. NEIDERMEYER, No. 16-55233
Plaintiff-Appellant, D.C. No. 8:14-cv-01209-JLS-DFM v.
MICHAEL CALDWELL, CHP Officer MEMORANDUM * #20073, individual and official capacity,
Defendant-Appellee.
Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding
Argued and Submitted October 2, 2017 Pasadena, California
Before: M. SMITH and NGUYEN, Circuit Judges, and SETTLE, District Judge.**
Matthew Neidermeyer appeals the district court’s grant of summary
judgment in favor of California Highway Patrol Officer Michael Caldwell. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Benjamin H. Settle, District Judge for the U.S. District Court for the Western District of Washington, sitting by designation. 1. The district court properly granted Officer Caldwell summary judgment
on Neidermeyer’s investigatory stop claim. “In reviewing the district court’s
determination of reasonable suspicion, we must look at the ‘totality of the
circumstances’ to see whether the officer had a ‘particularized and objective basis’
for suspecting criminal activity.” United States v. Colin, 314 F.3d 439, 442 (9th
Cir. 2002) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). Video
evidence shows Neidermeyer drifting to the left within the traffic lane and then
quickly making an unsafe lane change. These apparent traffic offenses, see
California Vehicle Code §§ 21658(a), 22107, created reasonable suspicion that
justified an investigatory stop of the vehicle.
2. The district court properly granted Officer Caldwell summary judgment
on Neidermeyer’s unlawful arrest claim. Even assuming that Officer Caldwell
lacked probable cause to arrest Neidermeyer for being under the influence of a
controlled substance, Neidermeyer “bears the burden to show that the contours of
the right were clearly established.” Clairmont v. Sound Mental Health, 632 F.3d
1091, 1109 (9th Cir. 2011). Neidermeyer has failed, both here and before the
district court, to identify controlling authority or a “consensus of cases of
persuasive authority such that a reasonable officer could not have believed that his
actions were lawful” in similar circumstances. Wilson v. Layne, 526 U.S. 603, 617
(1999). In fact, Neidermeyer cites no cases at all, contending that the California
2 statute on driving while under the influence of a controlled substance (DUI) alone
shows that he was arrested without probable cause. But the operative question is
whether it was “clearly established” that an officer could not arrest someone for
DUI under the undisputed facts in this case.
Here, construing the facts in the light most favorable to Neidermeyer,
Officer Caldwell, who was trained as a Drug Recognition Expert, observed
Neidermeyer’s car drifting within its lane and then making an unsafe lane change.
After the traffic stop, Officer Caldwell also observed Neidermeyer’s delayed eye
response during a nystagmus test.1 Neidermeyer’s behavior during the stop was
unusual, including his atypical and continuous commentary and his flinging
himself on the ground. Additionally, Neidermeyer spoke quickly and exhibited
signs of paranoia, which Officer Caldwell had been trained to recognize as possible
signs of stimulant use. Neidermeyer has not shown that, faced with these facts, a
reasonable officer would have known that he lacked probable cause to arrest
someone for suspicion of driving under the influence of a controlled substance.
Since this is a “dispositive inquiry,” Saucier v. Katz, 533 U.S. 194, 202 (2001), the
1 Neidermeyer argues that Officer Caldwell lied about the nystagmus test results, but offers no evidence to support this allegation. We therefore doubt that Neidermeyer’s allegation is enough to put the fact of the delayed eye response in dispute. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.”). But even if this fact were disputed, Neidermeyer’s driving and subsequent behavior alone are sufficient to support our holding.
3 district court properly granted Officer Caldwell qualified immunity on this claim.
Neidermeyer argues that Officer Caldwell must have known he could not
punitively arrest him for refusing to answer questions. Even assuming
Neidermeyer’s refusal to answer questions was a factor in his arrest, Officer
Caldwell’s “[s]ubjective intentions play no role” in the Fourth Amendment
probable cause analysis. Whren v. United States, 517 U.S. 806, 813 (1996).
Instead, we must look to what a reasonable officer would do in light of the
objective facts. United States v. Magallon-Lopez, 817 F.3d 671, 675 (9th Cir.
2016). Here, the objective facts do not indicate that Officer Caldwell must have
known that he lacked probable cause.
The dissent notes that the police “may not disregard facts tending to
dissipate probable cause.” Dissent at 2, citing Ramirez v. City of Buena Park, 560
F.3d 1012, 1023-24 (9th Cir. 2009). But, viewing the evidence in the light most
favorable to Neidermeyer, the officers encountered no such facts. On the contrary,
Neidermeyer’s bizarre behavior intensified throughout the encounter. After being
asked to to step out of his car—a common measure during a lawful investigatory
stop, see Ramirez, 560 F.3d at 1021—Neidermeyer demanded that he be allowed
to stand “in public”; told the car’s passenger that the officers “are not men that can
be trusted at this point”; threw himself on the ground in response to a request to
take a step; told the officers “take me in, arrest me”; and twice shouted “I’m afraid
4 for my life.” He also told his companion to put her cell phone “in [her]
underwear” to preserve her cell phone recording of the encounter, and later urged
her to leave the car and “run to safety.”
The dissent suggests that a jury could have found this to be fearful behavior
that was reasonably provoked by Officer Caldwell’s conduct. But, as the district
court noted, the video at no point shows Officer Caldwell or his partner “raising his
voice or acting in a manner that would prompt these statements and behavior from
Neidermeyer.” Neidermeyer may not have been obligated to answer Officer
Caldwell’s questions about his intended destination, but the questions themselves
assuredly were permissible—indeed, “[a]sking questions is an essential part of
police investigations.” Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177,
185 (2004). In light of the undisputed facts in this case, including Neidermeyer’s
increasingly unusual behavior during the lawful investigatory stop, we cannot say
that a reasonable officer would have known he lacked probable cause to arrest
Neidermeyer for a controlled substance DUI.
3. The district court properly granted summary judgment on the malicious
prosecution claim. “[T]here is a rebuttable presumption that a prosecutor exercises
independent judgment regarding the existence of probable cause in filing a
complaint . . . insulat[ing] the arresting officers from liability.” Smiddy v. Varney,
803 F.2d 1469, 1471 (9th Cir. 1986); see also Beck v. City of Upland, 527 F.3d
5 853, 862 (9th Cir. 2008). The prosecutor, who had access to video of the arrest,
testified in his deposition that he exercised independent judgment in deciding to
file charges against Neidermeyer, and in fact also filed an additional charge not
recommended in Officer Caldwell’s report. Neidermeyer claims that the police
reports contain false information. We have the benefit, as did the district court, of
the videos documenting the traffic stop. While the police reports certainly
characterize the evening’s events differently than Neidermeyer does, like the
district court, we cannot say that any portion of the reports is demonstrably false.2
Neidermeyer “must provide more than an account of the incident in question that
conflicts with the account of the officers involved” in order “[t]o rebut the
presumption of independent judgment and to survive summary judgment.”
Newman v. Cty. of Orange, 457 F.3d 991, 995 (9th Cir. 2006).
4. The district court did not abuse its discretion in denying Neidermeyer
leave to amend the complaint to include a claim for an allegedly unlawful frisk.
While leave to amend should be “freely give[n] . . . when justice so requires,”
F.R.C.P. 15(a)(2), the district court was permitted to deny leave here due to
Neidermeyer’s “undue delay” in raising the claim and the “prejudice to the
2 For example, Neidermeyer argues that he did not refuse to undergo field sobriety tests, as the report indicated. But while in the police vehicle, Neidermeyer explicitly refused to consent to any test other than a Breathalyzer, which was later administered at the police station.
6 opposing party” that late amendment would cause, Johnson v. Buckley, 356 F.3d
1067, 1077 (9th Cir. 2004). Though the parties discussed the frisk in Officer
Caldwell’s deposition, an unlawful frisk claim was not raised in the second
amended complaint that was filed after that deposition was taken. Thus, Officer
Caldwell was not on notice that Neidermeyer would raise an unlawful frisk claim
later in the litigation, and was deprived of the opportunity to conduct appropriate
discovery as to possible damages.
Moreover, “when a party seeks to amend a pleading after the pretrial
scheduling order’s deadline for amending the pleadings has expired, the moving
party must satisfy the ‘good cause’ standard of Federal Rule of Civil Procedure
16(b)(4), which provides that ‘[a] schedule may be modified only for good cause
and with the judge’s consent,’ rather than the liberal standard of Federal Rule of
Civil Procedure 15(a).” In re W. States Wholesale Nat. Gas Antitrust Litig., 715
F.3d 716, 737 (9th Cir. 2013) (alteration in original). This good cause standard
“primarily considers the diligence of the party seeking the amendment.” Johnson
v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). If the moving
party “was not diligent, the inquiry should end.” Id. Neidermeyer, who “has been
aware of the facts and theories supporting amendment since the inception of the
action,” did not seek leave to amend until opposing Officer Caldwell’s Motion for
Reconsideration. In re W. States, 715 F.3d at 737 (internal quotation mark
7 omitted). Indeed, even if we considered the issue pursuant to Federal Rule of Civil
Procedure 15(b), as the dissent contends we should, the result would be the same:
Neidermeyer has already had two opportunities to amend his complaint and has
offered no explanation for his undue delay in seeking a third, the lateness of which
would prejudice Officer Caldwell. The district court did not abuse its discretion in
concluding that Neidermeyer did not show good cause for his failure to assert any
claim related to the frisk in his operative complaint, especially in light of his
personal knowledge of the relevant facts.
AFFIRMED.
8 FILED Neidermeyer v. Caldwell, No. 16-55233 DEC 5 2017
SETTLE, District Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
While I concur in the majority’s analysis of Neidermeyer’s investigatory
stop claim and malicious prosecution claim, I respectfully dissent in regards to
Neidermeyer’s unlawful arrest and unlawful frisk claims.
1. I believe the district court improperly granted summary judgment to
Officer Caldwell on Neidermeyer’s unlawful arrest claim. Like the district court,
the majority relies on the following facts that could support probable cause for
Neidermeyer’s arrest: (a) Neidermeyer momentarily drove along the left line of his
lane before making an unsafe lane change in the opposite direction, (b) Officer
Caldwell noted approximately two seconds of pupil constriction instead of one
when performing a modified nystagmus test, and (c) Neidermeyer acted
excessively fearful over the course of the investigatory stop.
In reaching its conclusion, the majority emphasizes Neidermeyer’s failure to
cite a consensus of cases to support his contention that, under the above-listed
facts, a reasonable officer would have known that he lacked probable cause.
However, while qualified immunity would certainly be warranted under these facts
in isolation, probable cause exists only if a prudent person would have believed
that the suspect had committed a crime under the totality of the circumstances.
Hart v. Parks, 450 F.3d 1059, 1065–66 (9th Cir. 2006). “As a corollary of the rule that the police may rely on the totality of facts available to them in establishing
probable cause, they also may not disregard facts tending to dissipate probable
cause.” Ramirez v. City of Buena Park, 560 F.3d 1012, 1023–24 (9th Cir. 2009).
Interpreting the totality of the circumstances in the light most favorable to
Neidermeyer, a jury could conclude that it was clear that Officer Caldwell lacked
probable cause to arrest Neidermeyer. See Saucier v. Katz, 533 U.S. 194, 202
(2001) (“The relevant, dispositive inquiry . . . is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.”).
Several facts in this case weigh against a finding of probable cause and negate the
facts that Officer Caldwell cites to justify his decision to arrest.
First, apart from the modified nystagmus test—which revealed no
nystagmus—Officer Caldwell failed to administer any field sobriety tests. The
majority notes that Neidermeyer refused sobriety tests when he was in the back of
Officer Caldwell’s vehicle. However, the offer and refusal of sobriety tests
occurred only after Neidermeyer had already been unlawfully frisked and then
placed under arrest. An officer’s failure to conduct any field sobriety tests weighs
against finding that an officer has a reasonable belief or suspicion that a driver is
intoxicated. See United States v. Colin, 314 F.3d 439, 446 (9th Cir. 2002).
Additionally, Officer Caldwell’s improper conduct during the stop and arrest
(described below) places his credibility in question, and a jury could reasonably
2 disbelieve his testimony regarding pupil constriction entirely.
Second, Neidermeyer’s fearful behavior can be justified as a reasonable
response to Officer Caldwell’s conduct during the investigatory stop. For instance,
prior to Neidermeyer’s fearful behavior, Officer Caldwell ordered Neidermeyer
from the vehicle, unlawfully frisked him, and repeatedly stated that Neidermeyer
was being detained—and would ultimately be arrested—simply for refusing to
answer where he was going. While Officer Caldwell’s subjective intent is
irrelevant to the existence of probable cause, the fact that he outwardly and
repeatedly expressed his unlawful subjective intent to Neidermeyer is an objective
fact that should be considered when evaluating the reasonableness of
Neidermeyer’s fearful behavior. Moreover, “[a] frisk for weapons ‘is a serious
intrusion upon the sanctity of the person, which may inflict great indignity and
arouse strong resentment.’” Thomas v. Dillard, 818 F.3d 864, 876 (9th Cir. 2016),
as amended (May 5, 2016) (quoting Terry v. Ohio, 392 U.S. 1, 28 (1968)). This
should be especially true of a patently unlawful frisk, which Officer Caldwell
concedes occurred here. 1 Therefore, a jury could conclude that no reasonable
officer would view Neidermeyer’s fearful behavior as a basis for arrest, since
Officer Caldwell’s own conduct would likely evoke in a reasonable person some
1 Officer Caldwell admits he lacked any suspicion that Neidermeyer was armed or dangerous. See Arizona v. Johnson, 555 U.S. 323, 327 (2009).
3 sort of fearful response.
Third, while Neidermeyer’s driving was sufficient to support probable cause
for a traffic infraction or a reasonable suspicion of intoxicated driving, it was
insufficient by itself to support probable cause for an arrest. The video evidence
shows Neidermeyer’s vehicle drifting towards the left edge of its lane and touching
the line briefly before correcting itself and making a potentially unsafe lane change
within a car’s length of a passing vehicle. Only thirty-four seconds pass from the
point when the video evidence first shows the vehicle drifting towards the left to
the time that the officers signal to stop. Only fourteen of those seconds pass
between when Neidermeyer’s vehicle first observably drifted towards the left of
his lane and when the subsequent lane change was completed. This was not the
type of “swerving all over the road” of which Officer Caldwell accused
Neidermeyer when initiating the stop. California courts have held that “pronounced
weaving within a lane provides an officer with reasonable cause to stop a vehicle
on suspicion of driving under the influence where such weaving continues for a
substantial distance.” People v. Perez, 221 Cal. Rptr. 776, 778 (1985). While
Officer Caldwell’s observation of a potentially unsafe lane change justified a
citation and investigatory stop under California Vehicle Code §§ 21658(a), 22107,
it did not, without more, confer probable cause to arrest for intoxicated driving. See
Colin, 314 F.3d at 446 (“[An] entire observation last[ing] only 35–45 seconds . . .
4 is not long enough to show that [defendants] were weaving for a ‘substantial’
distance.”).
For these reasons, I would remand on the basis that the district court
mistakenly entered summary judgment on Neidermeyer’s unlawful arrest claim
when there were genuine factual disputes and a jury could conclude that, under the
totality of the circumstances, it would be clear to a reasonable officer that Officer
Caldwell lacked probable cause to arrest. See Borunda v. Richmond, 885 F.2d
1384, 1391 (9th Cir. 1988) (“Where the facts or circumstances surrounding an
individual’s arrest are disputed . . . the existence of probable cause becomes a
question of fact for the jury.”).
2. Additionally, I believe that the district court improperly denied
Neidermeyer leave to amend his complaint to include his claim asserting an
unlawful frisk. The majority concludes that because Neidermeyer sought to amend
his complaint after the deadline set forth in a Rule 16 scheduling order, he must
satisfy the “good cause” standard set forth in Rule 16(b). Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). In reaching the conclusion
that the proposed amendment should be denied, the district court and the majority
rely exclusively on Neidermeyer’s lack of diligence in seeking the amendment. 2
2 While the majority cites “prejudice to the opposing party” as a factor justifying the denial of leave to amend, there does not appear to be any indication or findings of prejudice on the record.
5 However, Neidermeyer’s motion for summary judgment, which raised the issue of
the unlawful frisk, should have been construed as a motion to amend under Rule
15(b). Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014).
Under that standard, the district court was required to consider “bad faith, undue
delay, prejudice to the opposing party, futility of amendment, and whether the
plaintiff has previously amended the complaint.” Id. We abuse our discretion if we
do not apply the correct legal standard, Bateman v. U.S. Postal Service, 231 F.3d
1220, 1223 (9th Cir. 2000), or if we fail to consider the factors relevant to the
exercise of our discretion. See Bautista v. Los Angeles Cnty., 216 F.3d 837, 841–42
(9th Cir. 2000). See also Desertrain, 754 F.3d at 1155 (“[T]he district court abused
its discretion by not amending the First Amended Complaint to conform to the
evidence and argument . . . .”).
Even if Neidermeyer’s request to amend was governed by the Rule 16(b)
“good cause” requirement instead of the Rule 15(b) standard, the district court and
majority employ too stringent of a standard of “good cause” in this case. Denying
leave to amend may be understandable under a harsh interpretation of Rule 16(b)
and the Circuit’s precedent in Johnson. See 975 F.2d at 609 (“If [the moving] party
was not diligent, the inquiry should end.”). However, while “Rule 16(b)’s ‘good
cause’ standard primarily considers the diligence of the party seeking the
amendment,” the very use of the term “primarily” in the Circuit’s decision in
6 Johnson leaves open the possibility that circumstances will arise where courts must
consider other factors. Johnson, 975 F.2d at 609. If this is not the case to require
looking beyond just the diligence of the moving party, then I do not believe there
can ever be one. The decision in Johnson was rendered under highly
distinguishable circumstances. In that case, the moving party waited until summary
judgment to seek an amendment despite receiving three separate invitations from
opposing counsel to correct the inadequacy of the complaint. Additionally, the
defendants in Johnson predicated their summary judgment motion on the
inadequacy of the complaint, so the inadequacy of the complaint was actually
before the court during summary judgment proceedings.
In this case, however, the issue of the unlawful frisk was fully briefed
without objection in Officer Caldwell’s opposition to Neidermeyer’s summary
judgment motion. Also, the parties openly and plainly discussed whether the frisk
was lawfully justified during Officer Caldwell’s deposition. Officer Caldwell
failed to object to Neidermeyer’s efforts to litigate the frisk’s unlawfulness until
after the district court had already entertained the fully-briefed arguments on the
issue and entered summary judgment in favor of Neidermeyer. Denying leave to
amend appears to benefit Officer Caldwell for lying in wait with his objection,
despite having the issue made clear much earlier in the case. As noted in Johnson,
a party’s gross lack of diligence should end the inquiry into whether a late
7 amendment will be permitted. In this case however, the district court snatched
defeat from the jaws of victory on a constitutional violation that was litigated
without objection all the way through summary judgment.
Finally, the district court and the majority’s approach of focusing
exclusively on the diligence of Neidermeyer’s counsel in seeking the proposed
amendment appears unworkable when Rule 16 and Rule 15 are viewed in tandem.
Rule 15(b) expressly states that, even during trial, “[t]he Court should freely permit
an amendment when doing so will aid in presenting the merits and the objecting
party fails to satisfy the court that the evidence would prejudice that party’s action
or defense on the merits.” Fed. R. Civ. P. 15(b)(1). Since Rule 15(b) allows for the
amendment of pleadings freely during trial absent prejudice to the objecting party,
basing the Rule 16(b) “good cause” standard exclusively on the diligence of the
moving party, without any consideration of prejudice to the objecting party,
renders the standard in Rule 15(b)(1) ineffective. Moreover, the text of Rule 16(b)
requires that a party show good cause for modifying the scheduling order; it does
not require the party to show good cause for their failure to seek modification
earlier. If the Rule 16(b) “good cause” standard is to be properly applied in this
case, it appears that it must necessarily incorporate a review of some factors
beyond mere delay, including a balance of prejudice to Officer Caldwell and the
ultimate goal of avoiding an unjust result.
8 Officer Caldwell’s only arguments relating to prejudice deal with a
purported lack of opportunity to obtain evidence on damages. If this did constitute
prejudice, it could easily be remedied with less than an hour deposition of
Neidermeyer sometime before trial, with the costs to be borne by Neidermeyer.
Therefore, I would remand with instructions to consider whether the proposed
amendment should be permitted under the factors applicable to the Rule 15(b)
standard. Even under the Rule 16(b) “good cause” standard, I would remand for
consideration of whether the proposed amendment would result in any prejudice to
Officer Caldwell or whether avoiding an unjust result in this case constitutes “good
cause” for modifying the scheduling order.