Opinion

Rios v. City of Azusa

Court
Court of Appeals for the Ninth Circuit
Filed
Aug 20, 2026
Status
Published
Cited by
0 cases
Authority
More cited than 44.2%

The opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADRIAN HUMBERTO RIOS, an No. 24-5734

individual, by and through his

D.C. No.

Guardian Ad Litem Brenda Yvette

2:22-cv-03968-

Ceja; M.P.R., a minor individual, by

WLH-RAO

and through her Guardian ad Litem,

Brenda Yvette Ceja; ADRIAN RIOS,

Jr., an individual, OPINION

Plaintiffs - Appellees,

v.

CITY OF AZUSA; BENJAMIN

CYPHER, an individual; V.

GARCIA, an individual; RICHARD

MARTINEZ, an individual;

STEVEN D. SEARS, an individual;

MICHAEL DEANDA, an individual;

MICHAEL WISE, an individual;

ZACHARY CHADWICK, an

individual,

Defendants - Appellants,

and

COUNTY OF LOS ANGELES,

JACOB DAO, an individual,

Defendants.

2 RIOS V. CITY OF AZUSA

Appeal from the United States District Court

for the Central District of California

Wesley L. Hsu, District Judge, Presiding

Argued and Submitted November 21, 2025

Pasadena, California

Filed August 20, 2026

Before: Marsha S. Berzon, N. Randy Smith, and Eric D.

Miller, Circuit Judges.

Opinion by Judge Miller

SUMMARY *

Jurisdiction / Qualified Immunity

The panel dismissed for lack of jurisdiction an

interlocutory appeal from an order denying a motion for

summary judgment on the basis of qualified immunity in an

action brought pursuant to 42 U.S.C. § 1983, state law, and

the Americans with Disabilities Act by Adrian Rios and his

two children against the City of Azusa, Los Angeles County,

individual police officers, and a paramedic.

In the course of handcuffing Rios to take him into

custody, officers twice used a Taser and repeatedly punched,

kicked, or otherwise struck him, at least 24 times. Rios

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

RIOS V. CITY OF AZUSA 3

suffered serious brain damage and is now in a persistent

vegetative state.

The panel held that it lacked jurisdiction to review the

district court’s decision not to exclude certain evidence as a

discovery sanction. Under Johnson v. Jones, 515 U.S. 304

(1995), the court may not review a portion of a district

court’s summary judgment order that, though entered in a

qualified immunity case, determines only a question of

evidence sufficiency. Because the crux of defendants’

argument was that the district court abused its discretion in

denying their motion to strike a declaration, defendants

raised only a question about evidence sufficiency that may

not be reviewed in an interlocutory appeal.

The panel further rejected defendants’ contentions that

pendent jurisdiction applied. Because the panel lacked

jurisdiction to review the denial of qualified immunity, there

was no appealable claim to which a pendent claim could

attach. Accordingly, the panel dismissed the appeal in its

entirety.

4 RIOS V. CITY OF AZUSA

COUNSEL

Timothy A. Scott (argued) and Marcus S. Bourassa,

McKenzie Scott PC, San Diego, California; Geralyn L.

Skapik, Matthew Falkenstein, and Blair J. Berkley, Skapik

Law Group, Chino Hills, California; Eric C. Morris,

Southern California Lawyers Group PC, Chino Hills,

California; for Plaintiffs-Appellees.

Steven J. Renick (argued) and Mildred K. O'Linn, Manning

& Kass Ellrod Ramirez Trester LLP, Los Angeles,

California; Yury A. Kolesnikov, Manning & Kass Ellrod

Ramirez Trester LLP, San Diego, California; for

Defendants-Appellants.

OPINION

MILLER, Circuit Judge:

In an interlocutory appeal from an order denying a

motion for summary judgment on the basis of qualified

immunity, we may consider “whether the facts establish a

violation of a clearly established constitutional right.” Peck

v. Montoya, 51 F.4th 877, 885 (9th Cir. 2022). But we may

not review the district court’s assessment of the sufficiency

of the evidence—“which facts a party may, or may not, be

able to prove at trial.” Id. (quoting Johnson v. Jones, 515

U.S. 304, 313 (1995)). This case presents the question

whether we may review a district court’s decision not to

exclude certain evidence as a discovery sanction. We hold

that we may not.

RIOS V. CITY OF AZUSA 5

Late in the evening of July 22, 2021, several callers

reported to the Azusa, California, police that a man in the

courtyard of an apartment complex was acting erratically.

The callers said that the man was talking to himself and had

threatened a shooting, but they gave conflicting accounts of

whether he might be armed. Based on information provided

by the building manager, a 911 dispatcher identified the man

as Adrian Rios and determined that he was subject to a

domestic-violence restraining order.

Several police officers arrived at the scene. Over the

course of approximately half an hour, they observed Rios

walk back and forth as he repeated the phrase, “bang, bang,

shots fired,” while making the shape of a gun with his hands.

Although some of the officers had a clear view of Rios and

others did not, none saw him with a weapon. The officers

ordered Rios to get on the ground, but he did not comply.

Some of the officers then approached Rios to take him

into custody. The nature of the resulting interaction is

disputed, but it is not disputed that in the course of

handcuffing Rios, the officers twice used a Taser and

repeatedly punched, kicked, or otherwise struck him—by

their own description, at least 24 times. Rios suffered serious

brain damage and is now in a persistent vegetative state.

Rios and his two children, Adrian Rios Jr. and M.P.R.,

brought this action against the City of Azusa, Los Angeles

County, seven individual police officers, and a paramedic.

They asserted excessive-force and other constitutional

claims under 42 U.S.C. § 1983, various state-law tort claims,

and claims under the Americans with Disabilities Act of

1990 (ADA), 42 U.S.C. § 12101.

During discovery, counsel for plaintiffs became aware

that Michael Brown, a resident of the apartment complex

6 RIOS V. CITY OF AZUSA

where the incident took place, had filed a pro se complaint

against the Azusa Police Department alleging excessive

force in an unrelated episode. Counsel promptly interviewed

Brown. During the interview, counsel realized that they had

already spoken with Brown shortly after the July 2021

incident involving Rios. In that earlier conversation, Brown

said that he had witnessed Rios’s beating, but he refused to

identify himself or provide a detailed statement. This time,

however, he was willing to do so. A few days before the

close of discovery, plaintiffs supplemented their initial

disclosures under Federal Rule of Civil Procedure 26(a),

which had not mentioned Brown, to state that Brown was

likely to have discoverable information.

Soon thereafter, plaintiffs provided defendants with a

declaration by Brown, which they ultimately included as an

exhibit to their summary-judgment papers. In the

declaration, Brown stated that although Rios “moved his

hands and arms like a gun and said words about a gun, it was

easy to see that he did not have a gun.” He added that as the

officers approached, Rios “did not move in any manner I

would describe as a fighting stance or threat.” According to

Brown, “[r]ather than threaten the officers in any way, . . .

Rios lay down on his stomach in front of them,” and it

appeared that “he was obeying their command to get down.”

At that point, Brown said, the officers “proceeded to kick

Mr. Rios repeatedly while he lay on the ground defenseless,”

even though Rios “was not fighting back,” “did not reach for

a taser or swing at the officers,” and “did not appear to be

resisting in any way.” Thereafter, “[o]ne of the officers knelt

on top of Mr. Rios near his head or neck.”

Defendants moved for summary judgment, arguing that

the officers were entitled to qualified immunity on the

excessive-force claim. Under the doctrine of qualified

RIOS V. CITY OF AZUSA 7

immunity, officers are shielded from civil liability under

section 1983 unless a plaintiff establishes that their conduct

“violate[d] clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Defendants

argued that “the force used was reasonable and not excessive

under the totality of the circumstances,” and that no

“controlling authority at the time of the incident” had clearly

established otherwise.

Defendants also moved to strike Brown’s declaration

under Federal Rule of Civil Procedure 37(c)(1), which

provides that when a party fails to identify a witness as

required by Rule 26, “the party is not allowed to use that . . .

witness to supply evidence . . . unless the failure was

substantially justified or is harmless.” Fed. R. Civ. P.

37(c)(1). Defendants argued that plaintiffs had not timely

disclosed Brown as an “individual likely to have

discoverable information.” Fed. R. Civ. P. 26(a)(1)(A)(i).

The late disclosure of Brown’s identity, they said, was not

justified and had caused prejudice by “depriv[ing]

Defendants of an opportunity to depose Mr. Brown.”

The district court denied the motion to strike Brown’s

declaration. It found “that Plaintiffs timely disclosed Brown

as a potential witness soon after learning that he saw the

incident with Rios.” “Regardless,” the court added, it would

“extend the discovery deadline” to allow defendants to take

Brown’s deposition “if they so wish.”

The district court went on to deny summary judgment in

relevant part, concluding that “viewing the facts and

evidence in the light most favorable to Rios, a rational jury

could find that the Officer Defendants used excessive force

against Rios in violation of clearly established law.” The

8 RIOS V. CITY OF AZUSA

court also denied summary judgment with respect to some

of the state-law and ADA claims.

Defendants appeal. The crux of their argument is that the

district court abused its discretion in denying their motion to

strike Brown’s declaration. In their view, because Brown’s

declaration “was the only evidence relied upon by the district

court to find a genuine dispute of facts,” the district court

erred in denying summary judgment.

That argument is not properly before us. We have

jurisdiction over appeals from “final decisions of the district

courts.” 28 U.S.C. § 1291; see Geo Grp., Inc. v. Menocal,

146 S. Ct. 774, 781 (2026). Orders denying summary

judgment are not final, so they are not normally immediately

appealable. Plumhoff v. Rickard, 572 U.S. 765, 771 (2014).

But because qualified immunity is “an immunity from suit

rather than a mere defense to liability,” the Supreme Court

has held that orders denying qualified immunity are

effectively final and are therefore subject to immediate

appeal under the collateral-order doctrine. Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985) (emphasis omitted); see

Plumhoff, 572 U.S. at 771–72. In such an appeal, we may

review “whether the facts establish a violation of a clearly

established constitutional right, thus defeating qualified

immunity.” Peck, 51 F.4th at 885. But under the Supreme

Court’s decision in Johnson v. Jones, we may not review “a

portion of a district court’s summary judgment order that,

though entered in a qualified immunity case, determines

only a question of evidence sufficiency, i.e., which facts a

party may, or may not, be able to prove at trial.” 515 U.S. at

313 (internal quotation marks omitted). As we have recently

summarized the rule of Johnson, a “public official may not

immediately appeal a fact-related dispute about the pretrial

record, namely, whether or not the evidence in the pretrial

RIOS V. CITY OF AZUSA 9

record was sufficient to show a genuine issue of fact for

trial.” Peck, 51 F.4th at 885 (quoting Estate of Anderson v.

Marsh, 985 F.3d 726, 731 (9th Cir. 2021)).

We have observed that “the distinction between making

sure that only ‘reasonable inferences’ are drawn (which we

may do) and answering questions of ‘evidence sufficiency’

(which we may not) is often difficult to discern.” Peck, 51

F.4th at 885. In this case, however, it is not difficult at all.

Defendants make no argument about what inferences

should be drawn from the facts before the district court that

does not first assume that Brown’s declaration should have

been excluded. Crucially, they do not argue that, if Brown’s

declaration is included as part of the summary-judgment

record, they are nevertheless entitled to qualified immunity

on the excessive-force claim. See Blankenhorn v. City of

Orange, 485 F.3d 463, 481 (9th Cir. 2007) (recognizing that

clearly established law prohibits “gang-tackling without first

attempting a less violent means of arresting a relatively calm

trespass suspect—especially one who . . . was at the moment

not actively resisting arrest”); Drummond ex rel. Drummond

v. City of Anaheim, 343 F.3d 1052, 1061–62 (9th Cir. 2003)

(recognizing that clearly established law prohibits the

application of bodyweight pressure to the back of a

compliant individual).

Instead, defendants’ argument is about which facts were

properly before the district court—specifically, whether the

facts set out in the Brown declaration should have been part

of the summary-judgment record, or whether the district

court should instead have excluded that declaration as a

discovery sanction. That is a question about evidence

sufficiency that we may not review in an interlocutory

10 RIOS V. CITY OF AZUSA

appeal. We thus lack jurisdiction to review the district

court’s denial of qualified immunity.

In an effort to avoid Johnson, defendants frame their

argument not as one of evidence sufficiency but instead as

raising the question whether the district court abused its

discretion in denying their motion to strike the Brown

declaration under Rule 37. That framing runs into a different

problem: Discovery rulings are not “final decisions” and

therefore are not immediately appealable. 28 U.S.C. § 1291;

see Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107–08

(2009); Admiral Ins. Co. v. United States Dist. Ct. for Dist.

of Ariz., 881 F.2d 1486, 1490 (9th Cir. 1989).

Defendants invoke pendent appellate jurisdiction, which

allows us to “review an ‘otherwise non-appealable ruling’ in

certain limited situations when it ‘is inextricably intertwined

with or necessary to ensure meaningful review of the order

properly before us on interlocutory appeal.’” CDK Glob.

LLC v. Brnovich, 16 F.4th 1266, 1273 (9th Cir. 2021)

(quoting Arc of Cal. v. Douglas, 757 F.3d 975, 992–93 (9th

Cir. 2014)); see Swint v. Chambers Cnty. Comm’n, 514 U.S.

35, 50–51 (1995). Defendants argue that review of the Rule

37 question is necessary to ensure meaningful review of the

qualified-immunity question. As they put it, an appellate

court “can only conduct a meaningful review if it knows

what evidence was properly within the district court’s

purview when it ruled on the summary judgment motion.”

But because we lack jurisdiction to review the denial of

qualified immunity, there is “no appealable claim on which

a pendent claim could attach.” McKinney v. Duplain, 463

F.3d 679, 693 (7th Cir. 2006).

Finally, even if the order denying qualified immunity

were appealable, qualified immunity could be available only

RIOS V. CITY OF AZUSA 11

to the individual defendants, and only with respect to the

claims under section 1983. Defendants also seek to appeal

the remaining claims in the case, asserting that pendent

appellate jurisdiction allows interlocutory review of the

denial of summary judgment on those claims in conjunction

with the qualified-immunity appeal. But because there is no

proper appeal of the denial of qualified immunity, there is no

appeal to which the other claims can be pendent. We

therefore dismiss the appeal in its entirety.

DISMISSED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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