Michael Salman v. City of Phoenix

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2018
• Docket: 16-16053
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MICHAEL SALMAN and SUZANNE No. 16-16053 SALMAN, D.C. No. 2:12-cv-01219-JAT Plaintiffs-Appellants,

v. MEMORANDUM*

CITY OF PHOENIX, a municipal corporation of the State of Arizona and UNKNOWN PARTIES, named as: John Does I-X, Jane Does I-X, Black and White Corporations I-X, and ABC Partnerships I- X,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Argued and Submitted May 15, 2018 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS,** District Judge.

Michael and Suzanne Salman appeal, pro se, from the denial of their motion

for leave to file a fourth amended complaint and the dismissal of their claims under

Federal Rule of Civil Procedure 12(b)(6). The district court concluded that, even

after numerous attempts to amend, the proposed fourth amended complaint still

failed to state a plausible claim for relief and was barred by Heck v. Humphrey, 512

U.S. 477 (1994). Because the Salmans’ pro se appeal involved novel issues of law,

the court offered to appoint pro bono counsel and permit re-briefing.

Unfortunately, the Salmans declined, instead opting to continue pro se and rest on

their original briefing. The Salmans’ decision is fatal to their appeal, because the

Salmans’ briefing waives argument on several dispositive issues relied on by the

district court in denying the motion to amend and dismissing the complaint. We

now affirm.

1. Plausibility under rule 12(b)(6). The district court determined that the

proposed Fourth Amended Complaint failed to allege sufficient facts to state a

plausible claim for relief under 42 U.S.C. § 1983. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). The Salmans’ appellate briefing never acknowledges, let alone

** The Honorable Deborah A. Batts, United States District Judge for the Southern District of New York, sitting by designation. 2 addresses this dispositive ruling by the district court. Accordingly, they cannot

prevail on the appeal of their § 1983 claims. United States v. Kama, 394 F.3d 1236,

1238 (9th Cir. 2005); see also Wilcox v. Comm’r, 848 F.2d 1007, 1008 n.2 (9th

Cir. 1988) (“deem[ing] abandoned” arguments not raised in a pro se petitioner’s

briefing).

2. Heck v. Humphrey. The district court concluded that Michael Salman’s

§ 1983 claims were barred under Heck, because success on his challenge to the

same code provisions under which he was convicted “would necessarily imply the

invalidity of his conviction or sentence.” Heck, 512 U.S. at 487. The Salmans’ only

challenge to this ruling is their bald assertion that the conduct underlying Michael

Salman’s conviction is distinct from the conduct underlying the claims in their

complaint. In support of this assertion, the Salmans cite authority for the

proposition that Heck does not bar § 1983 claims that are factually independent

from a plaintiff’s conviction. Although true that a factually independent § 1983

claim is not barred by Heck, the Salmans’ have abandoned any argument that they

established a plausible constitutional violation—let alone one that is factually

independent of Michael Salman’s conviction. See supra. This defect is not

addressed in the Salmans’ briefing as to the Heck issue, and we will not

3 manufacture arguments for a party on appeal. Greenwood v. FAA, 28 F.3d 971, 977

(9th Cir. 1994).

3. Collateral estoppel. Although the district court held that Suzanne

Salman’s claims were barred by collateral estoppel, the Salmans’ briefing never

addresses this issue. Instead, the briefing as to Suzanne Salman asserts only that

her claims were not barred under Heck, because her sign ordinance conviction was

unrelated to the allegations in the complaint. Accordingly, we affirm. Kama, 394

F.3d at 1238.

4. Religious Land Use and Institutionalized Persons Act (RLUIPA). In

failing to brief this issue on appeal, the Salmans waived any claim that the district

court erred in holding that they failed to identify a land use ordinance subject to

RLUIPA, 42 U.S.C. § 2000cc. Greenwood, 28 F.3d at 977.

5. Remaining Claims. The Salmans’ briefing never mentions the district

court’s dismissal of their Establishment Clause, free exercise, right to privacy, and

Due Process Clause claims. Thus, the Salmans abandoned these claims. Wilcox,

848 F.2d at 1008 n.2.

AFFIRMED.

4 FILED Salman v. City of Phoenix, 16-16053 MAY 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS WALLACE, J., concurring.

I concur fully in the majority disposition. I write separately to emphasize that the

Salmans failed to brief adequately their argument that Heck does not bar a claim

based on conduct arising from an incident different from the one that formed the

basis of conviction, even if the incidents are close in time or took place under

similar circumstances. See Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en

banc). This failure defeats their claim. The only case in the Salmans’ opening brief

that touches on the temporal issue in Smith is Ballard v. Burton, 444 F.3d 391,

400-01 (5th Cir. 2006). Even then, the Salmans provide no page citation or

discussion of the case. We do not manufacture arguments for appellants.