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.