The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SONJIA MACK, No. 20-16590
Plaintiff-Appellee, D.C. No.
2:18-cv-00799-APG-VCF
v.
BRIAN E. WILLIAMS, Sr.; et al., MEMORANDUM*
Defendants-Appellants.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted August 10, 2021**
San Francisco, California
Before: SILER,*** CHRISTEN, and FORREST, Circuit Judges.
Defendants-Appellants appeal from the district court’s denial of summary
judgment on Defendants’ qualified immunity defense against Sonjia Mack’s claim
*
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 Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
that Defendants violated her constitutional rights by strip searching her without her
consent and without reasonable suspicion of criminal activity when she sought to
visit an inmate at the High Desert State Prison. We have jurisdiction under 28 U.S.C.
§ 1291, Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944–45 (9th Cir. 2017),
and we “review a district court’s denial of summary judgment on qualified immunity
grounds . . . de novo,” Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 931 (9th Cir.
2017). We affirm the district court.
On appeal, Defendants make a new argument based on a decision of this court
issued after they appealed, Cates v. Stroud, 976 F.3d 972 (9th Cir. 2020), petition
for cert. filed (No. 20-1438). Specifically, they contend that, because it was not
clearly established before the Cates decision that a prison visitor had a right to leave
the facility instead of submitting to a strip search, they are entitled to qualified
immunity. Despite the general rule against raising new arguments on appeal, Club
One Casino, Inc. v. Bernhardt, 959 F.3d 1142, 1153 (9th Cir. 2020), we exercise our
discretion to consider Defendants’ new Cates argument because it is “purely” legal,
see United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990).
The Cates rule does not help Defendants. It applies where prison officials have
reasonable suspicion to suspect a visitor of bringing contraband into the prison. See
Cates, 976 F.3d at 984. Here, unlike in Cates, a genuine issue of fact exists regarding
whether Defendants reasonably suspected Mack of smuggling contraband.
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Accordingly, even if Cates were clearly established for purposes of this case,
Defendants would not be entitled to qualified immunity.
Even if Defendants did not have the lack-of-reasonable-suspicion problem
just discussed, which is dispositive, their Cates argument faces an additional
difficulty. Cates held that “a prison visitor has a right to leave the prison rather than
undergo a strip search conducted on the basis of reasonable suspicion.” 976 F.3d at
984. In the district court, Defendants asserted they told Mack that she could refuse
the strip search and leave the prison at any time. Thus, their argument on appeal—
that they are entitled to qualified immunity because they did not know they should
have given Mack the chance to leave the prison instead of submitting to a strip
search—is inconsistent with their position below.
AFFIRMED.
3