Salvador Ortiz Lopez v. Town of Apple Valley

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2021
• Docket: 19-56412
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED MAR 23 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SALVADOR ORTIZ LOPEZ, No. 19-56412

Plaintiff-Appellant, D.C. No. 5:17-cv-02517-JGB-SP

and MEMORANDUM* IRMA ORTIZ,

Plaintiff,

v.

TOWN OF APPLE VALLEY, a corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Salvador Ortiz Lopez appeals pro se from the district court’s summary

* 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). judgment in his 42 U.S.C. § 1983 action alleging retaliation. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Karam v. City of Burbank, 352 F.3d

1188, 1192 (9th Cir. 2003). We affirm.

The district court properly granted summary judgment because Ortiz Lopez

failed to raise a genuine dispute of material fact as to whether the alleged

deprivations were caused by municipal policy, custom or practice, or whether the

allegedly unconstitutional conduct was ratified by an official with final

policymaking authority. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978) (explaining municipal liability under § 1983); Christie v. Iopa, 176 F.3d

1231, 1238-39 (9th Cir. 1999) (explaining that in the absence of an expressly

adopted municipal policy, municipal liability under § 1983 can be established by

proving that an official with final policymaking authority ratified a subordinate’s

unconstitutional decision or action and basis for it); see also Capp v. County of San

Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) (setting forth the elements of First

Amendment retaliation).

The district court properly declined to consider alleged violations of the

Eighth Amendment prohibition on excessive fines and the Fourth Amendment

right to be free from unreasonable arrest raised in Ortiz Lopez’s Opposition to the

Motion for Summary Judgment because these claims were not raised in Ortiz

Lopez’s complaint. See Echlin v. PeaceHealth, 887 F.3d 967, 977-78 (9th Cir.

2 19-56412 2018) (explaining that a plaintiff cannot add new claims at the summary judgment

stage without seeking leave to amend).

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not

consider documents and facts not presented to the district court. See United States

v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to

the district court are not part of the record on appeal.”).

Ortiz Lopez’s motion for judicial notice (Docket Entry No. 7) is denied.

Appellee’s request to strike Ortiz Lopez’s Opening Brief, set forth in the

Answering Brief, is denied.

AFFIRMED.

3 19-56412