Sefo Fatai v. Mark Ramos

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SEFO FATAI, No. 23-15354

Plaintiff-Appellee, D.C. No. 1:19-cv-00603-DKW-WRP v.

MARK RAMOS, Officer; FUMIKAZU MEMORANDUM* MURAOKA, Officer,

Defendants-Appellants,

and

CITY AND COUNTY HONOLULU; et al.,

Defendants.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, Chief District Judge, Presiding

Submitted February 13, 2024** Honolulu, Hawaii

Before: PAEZ, M. SMITH, and KOH, Circuit Judges.

* 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). Defendants appeal the district court’s order denying their motion for summary

judgment on qualified immunity grounds. Because we do not have jurisdiction to

hear a fact-based, interlocutory appeal of a denial of qualified immunity, we dismiss

the appeal.

1. Interlocutory orders “are typically not immediately appealable under [28

U.S.C.] § 1291.” Dupree v. Younger, 598 U.S. 729, 734 (2023). The collateral-

order doctrine “recognizes exceptions to this rule,” including in some instances “an

interlocutory order denying qualified immunity.” Id. at 734 n.3 (quoting Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985)). Defendants “cannot immediately appeal . . . [a]

fact-related district court determination” denying their motion for summary

judgment on qualified immunity. Johnson v. Jones, 515 U.S. 304, 307

(1995). Defendants may not “attempt to evade Johnson’s jurisdictional bar by

characterizing their arguments as legal ones . . . .” Peck v. Montoya, 51 F.4th 877,

886 (9th Cir. 2022).

Although many of Defendants’ arguments are “couched” in legal language,

nearly all their arguments “actually go[] to the sufficiency of [Plaintiff’s]

evidence.” George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013). Thus, we do not

have jurisdiction to review Defendants’ arguments.

2. To the extent that Defendants argue that the district court did not determine

that the officers’ conduct violated clearly established law, they waived those

2 arguments. Their arguments before the district court constituted “bare assertions

without supporting argument.” United States ex rel. Kelly v. Serco, Inc., 846 F.3d

325, 335 (9th Cir. 2017) (citing Christian Legal Soc. Chapter of Univ. of Cal. v. Wu,

626 F.3d 483, 487–88 (9th Cir. 2010)). Defendants specifically waived their

argument under Brady v. Maryland, 373 U.S. 83, 87 (1963), because it was not

addressed in the motion for summary judgment below.

We “will not manufacture arguments for an appellant, and a bare assertion

does not preserve a claim, particularly when, as here, a host of other issues are

presented for review.” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (citing

United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam)). Insofar as

legal issues remain, “[j]udges are not like pigs, hunting for truffles buried in

briefs.” Id. (alteration in original). Defendants refused to frame the facts in the light

most favorable to Plaintiff, the required standard here. See T.W. Elec. Serv., Inc. v.

Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630–31 (9th Cir. 1987). Thus, we need

not address any remaining arguments.

DISMISSED.