NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 9 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MORAYON SIMMONS, No. 21-56272
Plaintiff-Appellant, D.C. No. 2:20-cv-10779-RGK-E v.
CITY OF LOS ANGELES, a municipal MEMORANDUM* entity; LOS ANGELES POLICE DEPARTMENT, a municipal entity; JONATHAN KINCAID,
Defendants-Appellees,
and
COUNTY OF LOS ANGELES; DOES, 1 through 100, inclusive,
Defendants.
Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding
Argued and Submitted April 14, 2023 Pasadena, California
Before: W. FLETCHER, BERZON, and LEE, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. After spending nearly three years in custody, Morayon Simmons was
acquitted by a jury of attempted murder and other related crimes. He subsequently
filed this § 1983 suit against the Los Angeles Police Department (“LAPD”), the
City of Los Angeles, the County of Los Angeles, and LAPD officer Jonathan
Kincaid, based on Kincaid’s alleged failure to disclose exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). LAPD was the only defendant
timely served. Simmons appeals the district court’s grant of summary judgment in
favor of LAPD and its denial of leave to serve Kincaid well after the 90-day period
for service had passed, see Fed. R. Civ. P. 4(m); 28 U.S.C. § 1448. Reviewing the
district court’s grant of summary judgment de novo, Blankenhorn v. City of
Orange, 485 F.3d 463, 470 (9th Cir. 2007), and the district court’s decision
regarding an extension of time for service for abuse of discretion, Efaw v.
Williams, 473 F.3d 1038, 1040 (9th Cir. 2007), we affirm.
1. A local government entity cannot be held liable under § 1983 “unless
action pursuant to official municipal policy of some nature caused a constitutional
tort.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). To establish a
Monell claim, a plaintiff must demonstrate that he has suffered a constitutional
injury, Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994), and that “the local
government had a deliberate policy, custom, or practice that was the moving force
behind the constitutional violation,” Vanegas v. City of Pasadena, 46 F.4th 1159,
2 1167 (9th Cir. 2022) (citation omitted). Simmons asserted two Monell claims
against LAPD: first, for its alleged failure to implement adequate policies,
customs, and practices, and second, for its alleged failure to train officers regarding
their Brady obligations.
We assume for purposes of this memorandum disposition that Brady applies
to the pre-trial period, but see Tatum v. Moody, 768 F.3d 806, 816 (9th Cir. 2014),
and applies although Simmons was acquitted rather than convicted, see Smith v.
Almada, 640 F.3d 931, 940–41 (9th Cir. 2011) (Gould, J., concurring); id. at 941
(Gwin, J., specially concurring). So assuming, Simmons’s claims fail as an initial
matter because he has not raised a triable issue of fact to support his underlying
Brady claim. 1
Simmons asserts that Kincaid suppressed evidence obtained from two
witnesses that could have impeached the alleged victims’ testimony. The arrest
report in the underlying criminal proceeding states that the alleged victims told
LAPD officers that the confrontation with Simmons began after Simmons’s
girlfriend accused them of stealing her wallet, which they denied to her. According
to reports by Simmons’s private investigator, the witnesses told the private
1 In his reply brief and at oral argument, Simmons argued that he also brought a malicious prosecution claim under § 1983. However, the complaint did not so allege. The complaint did allege a stand-alone state-law malicious prosecution claim, which the parties stipulated to dismiss in district court.
3 investigator that they saw the alleged victims steal the wallet and that they spoke
with Kincaid, who told one of the witnesses “not to mention to anyone” that
Kincaid had spoken with him.
The witnesses’ statements may have been impeaching of aspects of the
alleged victims’ testimony. But Simmons points to nothing in the record
demonstrating that this impeachment evidence was “material” for Brady purposes. 2
See Strickler v. Greene, 527 U.S. 263, 280 (1999). The record does not
demonstrate the extent to which the wallet theft undermined the credibility of any
testimony the victims may have given about the shooting at issue in the criminal
proceedings, nor how the wallet theft would have provided a defense to the
shooting.
Moreover, Simmons learned of one witness just six days after he was
arrested and of the other three months later; one of the witnesses testified at trial
for Simmons. Simmons thus has not demonstrated that prejudice ensued as a result
of Kincaid’s alleged pre-trial suppression of evidence even though Simmons had
obtained the evidence. See Strickler, 527 U.S. at 281–82.
Even if Simmons had established a viable underlying Brady violation, his
2 The bulk of the criminal trial record is not in the record in this case—neither the victims’ testimony at the preliminary hearing where the trial court determined that probable cause supported the charges against Simmons, nor the victims’ testimony at trial.
4 Monell claims still fail. “When, as here, a plaintiff pursues liability based on a
failure to act,” he must establish that “the municipality exhibited deliberate
indifference to the violation of her federally protected rights” by pointing “to a
pattern of prior, similar violations of federally protected rights, of which the
relevant policymakers had actual or constructive notice.” Park v. City & Cnty. of
Honolulu, 952 F.3d 1136, 1141–42 (9th Cir. 2020). Alternatively, “in a narrow
range of circumstances,” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 409
(1997), “it may happen that in light of the duties assigned to specific officers or
employees the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately
indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989).
Simmons points to no evidence that any LAPD officer other than Kincaid
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 9 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MORAYON SIMMONS, No. 21-56272
Plaintiff-Appellant, D.C. No. 2:20-cv-10779-RGK-E v.
CITY OF LOS ANGELES, a municipal MEMORANDUM* entity; LOS ANGELES POLICE DEPARTMENT, a municipal entity; JONATHAN KINCAID,
Defendants-Appellees,
and
COUNTY OF LOS ANGELES; DOES, 1 through 100, inclusive,
Defendants.
Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding
Argued and Submitted April 14, 2023 Pasadena, California
Before: W. FLETCHER, BERZON, and LEE, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. After spending nearly three years in custody, Morayon Simmons was
acquitted by a jury of attempted murder and other related crimes. He subsequently
filed this § 1983 suit against the Los Angeles Police Department (“LAPD”), the
City of Los Angeles, the County of Los Angeles, and LAPD officer Jonathan
Kincaid, based on Kincaid’s alleged failure to disclose exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). LAPD was the only defendant
timely served. Simmons appeals the district court’s grant of summary judgment in
favor of LAPD and its denial of leave to serve Kincaid well after the 90-day period
for service had passed, see Fed. R. Civ. P. 4(m); 28 U.S.C. § 1448. Reviewing the
district court’s grant of summary judgment de novo, Blankenhorn v. City of
Orange, 485 F.3d 463, 470 (9th Cir. 2007), and the district court’s decision
regarding an extension of time for service for abuse of discretion, Efaw v.
Williams, 473 F.3d 1038, 1040 (9th Cir. 2007), we affirm.
1. A local government entity cannot be held liable under § 1983 “unless
action pursuant to official municipal policy of some nature caused a constitutional
tort.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). To establish a
Monell claim, a plaintiff must demonstrate that he has suffered a constitutional
injury, Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994), and that “the local
government had a deliberate policy, custom, or practice that was the moving force
behind the constitutional violation,” Vanegas v. City of Pasadena, 46 F.4th 1159,
2 1167 (9th Cir. 2022) (citation omitted). Simmons asserted two Monell claims
against LAPD: first, for its alleged failure to implement adequate policies,
customs, and practices, and second, for its alleged failure to train officers regarding
their Brady obligations.
We assume for purposes of this memorandum disposition that Brady applies
to the pre-trial period, but see Tatum v. Moody, 768 F.3d 806, 816 (9th Cir. 2014),
and applies although Simmons was acquitted rather than convicted, see Smith v.
Almada, 640 F.3d 931, 940–41 (9th Cir. 2011) (Gould, J., concurring); id. at 941
(Gwin, J., specially concurring). So assuming, Simmons’s claims fail as an initial
matter because he has not raised a triable issue of fact to support his underlying
Brady claim. 1
Simmons asserts that Kincaid suppressed evidence obtained from two
witnesses that could have impeached the alleged victims’ testimony. The arrest
report in the underlying criminal proceeding states that the alleged victims told
LAPD officers that the confrontation with Simmons began after Simmons’s
girlfriend accused them of stealing her wallet, which they denied to her. According
to reports by Simmons’s private investigator, the witnesses told the private
1 In his reply brief and at oral argument, Simmons argued that he also brought a malicious prosecution claim under § 1983. However, the complaint did not so allege. The complaint did allege a stand-alone state-law malicious prosecution claim, which the parties stipulated to dismiss in district court.
3 investigator that they saw the alleged victims steal the wallet and that they spoke
with Kincaid, who told one of the witnesses “not to mention to anyone” that
Kincaid had spoken with him.
The witnesses’ statements may have been impeaching of aspects of the
alleged victims’ testimony. But Simmons points to nothing in the record
demonstrating that this impeachment evidence was “material” for Brady purposes. 2
See Strickler v. Greene, 527 U.S. 263, 280 (1999). The record does not
demonstrate the extent to which the wallet theft undermined the credibility of any
testimony the victims may have given about the shooting at issue in the criminal
proceedings, nor how the wallet theft would have provided a defense to the
shooting.
Moreover, Simmons learned of one witness just six days after he was
arrested and of the other three months later; one of the witnesses testified at trial
for Simmons. Simmons thus has not demonstrated that prejudice ensued as a result
of Kincaid’s alleged pre-trial suppression of evidence even though Simmons had
obtained the evidence. See Strickler, 527 U.S. at 281–82.
Even if Simmons had established a viable underlying Brady violation, his
2 The bulk of the criminal trial record is not in the record in this case—neither the victims’ testimony at the preliminary hearing where the trial court determined that probable cause supported the charges against Simmons, nor the victims’ testimony at trial.
4 Monell claims still fail. “When, as here, a plaintiff pursues liability based on a
failure to act,” he must establish that “the municipality exhibited deliberate
indifference to the violation of her federally protected rights” by pointing “to a
pattern of prior, similar violations of federally protected rights, of which the
relevant policymakers had actual or constructive notice.” Park v. City & Cnty. of
Honolulu, 952 F.3d 1136, 1141–42 (9th Cir. 2020). Alternatively, “in a narrow
range of circumstances,” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 409
(1997), “it may happen that in light of the duties assigned to specific officers or
employees the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately
indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989).
Simmons points to no evidence that any LAPD officer other than Kincaid
has previously committed a Brady violation, nor to any evidence that Kincaid
himself has committed a Brady violation outside of this matter. Nor are the
“unconstitutional consequences” of LAPD’s Brady policy “so patently obvious”
that LAPD “could be liable under § 1983 without proof of a pre-existing pattern of
violations.” Connick v. Thompson, 563 U.S. 51, 63–64 (2011). It is undisputed that
LAPD officers are provided general training on their Brady obligations. And the
Tennison Memorandum clarifies officers’ obligations affirmatively to bring
5 exculpatory material to the attention of prosecutors. Whether or not the LAPD
training included specific guidance about what constitutes exculpatory evidence,
any defect in “the nuance of the allegedly necessary training” is in no way similar
to the Supreme Court’s hypothetical example of the extreme circumstances that
might constitute “deliberate indifference” in the absence of any pattern of
unconstitutional behavior. See id. at 63–64, 67 (suggesting that a city that
“deploys . . . armed officers into the public to capture fleeing felons without
training the officers in the constitutional limitation on the use of deadly force”
might be held responsible for the failure to train its law enforcement officers). The
district court did not err when it granted summary judgment in favor of LAPD.
2. Simmons also appeals the district court’s denial of his ex parte application
requesting an extension of time to serve Kincaid, filed seven months after the
deadline to serve defendants. Under Federal Rule of Civil Procedure 4(m), if a
defendant is not timely served, “the court—on motion or on its own after notice to
the plaintiff—must dismiss the action without prejudice against that defendant or
order that service be made within a specified time.” But “if the plaintiff shows
good cause for the failure, the court must extend the time for service for an
appropriate period.” Id. Even if good cause is not established, “the district court
may extend time for service upon a showing of excusable neglect.” Lemoge v.
United States, 587 F.3d 1188, 1198 (9th Cir. 2009); see Fed. R. Civ. P. 6(b).
6 Simmons has not established either good cause or excusable neglect for his
failure to timely serve Kincaid. Although one of Simmons’s counsel declared that
he had been suffering from “very concerning” health issues during the service
period, according to the documentation in the record, that lawyer did timely serve
the LAPD and became severely ill very shortly before the end of the 90-day
service period; he was practicing for at least some of the time during the seven
months between the onset of his illness and the filing of the application; and there
were two attorneys of record in this case, not one. Simmons’s counsel offer no
persuasive explanation to excuse both lawyers’ failure to comply with the time
requirement of Rule 4(m) and their subsequent failure for seven months to request
an extension of the service period. See Dela Rosa v. Scottsdale Mem’l Health Sys.,
Inc., 136 F.3d 1241, 1244 (9th Cir. 1998). Given these circumstances, the district
court did not abuse its discretion in denying the application.
AFFIRMED.