“Where the details are disputed, we rely on [plaintiff’s] account as the non-moving party for purposes of our review.”
How later courts described this case
- “Where the details are disputed, we rely on [plaintiff’s] account as the non-moving party for purposes of our review.”
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
K.J.P., a minor, individually, by and through No. 19-55527
their mother, Loan Thi Minh Nguyen; et al.,
D.C. No.
Plaintiffs-Appellees, 3:15-cv-02692-H-MDD
v.
MEMORANDUM*
COUNTY OF SAN DIEGO; et al.,
Defendants-Appellants,
and
WILLIAM GORE, San Diego Sheriff; et al.,
Defendants.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted March 31, 2020**
Pasadena, California
Before: MURGUIA and MILLER, Circuit Judges, and STEEH,*** District Judge.
*
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).
***
The Honorable George Caram Steeh III, United States District Judge
The County of San Diego, the San Diego County Sheriff’s Department, and
individual Sheriff’s deputies (collectively, “Defendants”) appeal the district court’s
denial of their motion for summary judgment on the basis of qualified immunity.
We dismiss for lack of appellate jurisdiction.
1. This Court has jurisdiction over a district court’s denial of summary
judgment based on qualified immunity “only to the extent ‘the issue appealed
concerned, not which facts the parties might be able to prove, but, rather, whether
or not certain given facts showed a violation of clearly established law.’” Foster v.
City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (quoting Johnson v. Jones, 515
U.S. 304, 311 (1995)). “In an interlocutory appeal challenging the denial of
qualified immunity, we must construe the facts in the light most favorable to the
plaintiff.” Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020); Ames v.
King Cty., 846 F.3d 340, 343 n.1 (9th Cir. 2017) (“Where the details are disputed,
we rely on [plaintiff’s] account as the non-moving party for purposes of our
review.”).
2. On appeal, Defendants failed to present all relevant facts in the light
most favorable to the Plaintiffs. Where a defendant “ha[s] not advanced an
argument as to why the law is not clearly established that takes the facts in the light
for the Eastern District of Michigan, sitting by designation.
2
most favorable to [the plaintiff] . . . [w]e will not ‘do an appellant’s work for it,
either by manufacturing its legal arguments, or by combing the record on its behalf
for factual support.’” George v. Morris, 736 F.3d 829, 837 (9th Cir. 2013)
(citation omitted) (quoting W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 979
(9th Cir. 2012)). To the extent that Defendants challenge the district court’s
determination that disputed facts precluded summary judgment on whether the
decedent, Lucky Phounsy, was a threat to officers, or whether officers failed to
take steps to monitor Phounsy’s breathing, we lack appellate jurisdiction to address
those purely factual disputes. See Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir.
2009). And to the extent Defendants seek to challenge the district court’s holding
that clearly established law protected Phounsy’s rights, Defendants waived those
arguments by failing to advance an argument that the law was not clearly
established that takes the facts in the light most favorable to the Plaintiffs. See
George, 736 F.3d at 837.
DISMISSED FOR LACK OF JURISDICTION.
3