Jairo Cervantes Ramirez v. Shelly Zimmerman

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 3 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAIRO CERVANTES RAMIREZ; et al., No. 20-56117

Plaintiffs-Appellants, D.C. Nos.

3:17-cv-01230-BAS-AHG

v. 3:18-cv-01062-BAS-AHG

SHELLY ZIMMERMAN, San Diego Police

Chief; et al., MEMORANDUM*

Defendants-Appellees,

and

BOUDREAU, Sheriff's Sergeant; et al.,

Defendants.

Appeal from the United States District Court

for the Southern District of California

Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted October 5, 2021

Pasadena, California

Before: GRABER and CHRISTEN, Circuit Judges, and SEEBORG,** District

Judge. Partial Concurrence by Judge CHRISTEN.

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The Honorable Richard Seeborg, Chief United States District Judge

for the Northern District of California, sitting by designation.

Plaintiffs Jairo Cervantes, Nancy Sanchez, Madison Goodman, Brandon

Steinberg, and Bryan Pease timely appeal the dismissal of their civil rights action.

We affirm.

1. Plaintiffs’ theory of liability under Monell v. Department of Social

Services, 436 U.S. 658 (1978), is that Chief of Police Shelley Zimmerman, as final

policymaker for the San Diego police department, ratified unconstitutional conduct

by city police officers. But the record contains no evidence that Chief Zimmerman

ratified a subordinate’s unconstitutional action. See Christie v. Iopa, 176 F.3d

1231, 1239 (9th Cir. 1999) (“To show ratification, a plaintiff must prove that the

authorized policymakers approve a subordinate’s decision and the basis for it.”

(internal quotation marks omitted)). Nor has Plaintiff ever argued—on summary

judgment or on appeal—that Chief Zimmerman knew of a constitutional violation

and actually approved of it. See Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004)

(“The policymaker must have knowledge of the constitutional violation and

actually approve of it.”); see also Christie, 176 F.3d at 1239. (“[A] plaintiff must

establish that there is a genuine issue of material fact regarding whether a

ratification occurred.”). Plaintiffs’ Monell claim fails on that ground. See Isabel v.

Reagan, 987 F.3d 1220, 1226 (9th Cir. 2021) (“We may affirm a district court’s

judgment on any ground supported by the record, whether or not the decision of

the district court relied on the same grounds or reasoning we adopt.” (quoting Atel

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Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (per curiam))).

2. Plaintiffs’ constitutional claims against the individual officers also fail

because qualified immunity shields the officers.

Plaintiffs forfeited their Fourth Amendment qualified immunity arguments

because the opening brief makes no legal argument that qualified immunity does

not apply, nor is such an argument apparent from Plaintiffs’ factual recitation. See

United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made in

passing and not supported by citations to the record or to case authority are

generally deemed waived.”).

Qualified immunity also shields the officer Defendants from any theories

under the First Amendment because Plaintiffs have not cited, nor have we found,

any clearly established law that is on point. See Sharp v. County of Orange, 871

F.3d 901, 909 (9th Cir. 2017) (holding that qualified immunity shields officer

Defendants from claims arising out of their police work unless their conduct

violated “clearly established” federal law).

3. In a footnote in its summary judgment order, the district court refused to

address viewpoint discrimination at summary judgment because a prior order had

denied Plaintiffs leave to amend their complaint to add a claim for viewpoint

discrimination. Plaintiffs do not challenge that denial of leave to amend. Instead,

Plaintiffs argue only that the district court improperly discarded strong evidence of

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viewpoint discrimination. But the operative complaint (the Fourth Amended

Complaint) nowhere articulated, nor so much as referenced, a viewpoint

discrimination theory. See Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d

989, 992 (9th Cir. 2006) (holding that “summary judgment is not a procedural

second chance to flesh out inadequate pleadings” (internal quotation marks

omitted)).

Plaintiffs argue that viewpoint discrimination may be part of a claim under

the Ralph Civil Rights Act, Cal. Civ. Code § 51.7, a claim alleged in the operative

complaint. But the district court held that the claim under the Ralph Act failed

because Plaintiffs had submitted no evidence that some “physical, destructive act”

beyond the “mere application of physical force” had occurred. Because Plaintiffs

do not challenge that conclusion on appeal, the Ralph Act claim cannot be revived.

4. The district court dismissed other state-law claims as well, but the

opening brief does not address those claims. Further, at oral argument, Plaintiffs’

counsel clarified that Plaintiffs appeal the dismissal of their claims under § 1983

that allege a violation of the First Amendment and a violation of the Fourth

Amendment. Therefore, any arguments related to the other dismissed claims are

either waived or forfeited. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.

1999) (holding that arguments not raised in a party’s opening brief generally are

forfeited).

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5. The district court did not abuse its discretion in denying leave to amend

to add three police officers as defendants. The district court denied leave to amend

on the grounds that Plaintiffs so moved after discovery closed and that Plaintiffs

should have been aware of those officers’ roles as far back as April 2018, when

Defendants listed the role assigned to each officer for the events of May 27, 2016.

See United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th Cir.

2016) (This court “review[s] the denial of leave to amend for an abuse of

discretion.”).

6. The district court did not abuse its discretion in denying Plaintiff Pease

additional discovery after the cases were consolidated. Although the material

sought is relevant, Plaintiffs make no attempt to show how their case would be

aided by reopening discovery. See Dichter-Mad Fam. Partners, LLP v. United

States, 709 F.3d 749, 751 (9th Cir. 2013) (per curiam) (holding that “broad

discretion is vested in the trial court to permit or deny discovery, and its decision to

deny discovery will not be disturbed except upon the clearest showing that denial

of discovery results in actual and substantial prejudice to the complaining litigant”

(internal quotation marks omitted)).

7. Plaintiffs did not preserve their argument that the district court erred by

not exercising its discretionary power under Federal Rule of Civil Procedure 37 to

sanction Defendants. See Graf, 610 F.3d at 1166 (“Arguments made in passing

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and not supported by citations to the record or to case authority are generally

deemed waived.”).

8. Because Plaintiffs settled with the county defendants, any arguments

related to the Sheriff’s Department are moot.

AFFIRMED.

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FILED

Cervantes Ramirez v. Zimmerman, No. 20-56117

NOV 3 2021

CHRISTEN, Circuit Judge, concurring in part and concurring in the judgment.

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur with my colleagues’ decision to affirm the district court’s rulings

concerning plaintiffs’ Monell claims, its decision not to consider viewpoint

discrimination at summary judgment, dismissal of plaintiffs’ state-law claims,

denial of leave to amend, denial of additional discovery after the cases were

consolidated, denial of sanctions, and that arguments related to the Sheriff’s

Department are moot. I write separately because I conclude that issues of fact

should have prevented entry of summary judgment on whether plaintiffs suffered

First and Fourth Amendment injuries.

The district court concluded that plaintiffs had no First Amendment right to

remain in the area of an unlawful assembly order and that no reasonable jury could

find that defendants lacked probable cause to arrest plaintiffs because plaintiffs

failed to disperse. I disagree. Viewing the facts in the light most favorable to the

plaintiffs, questions of fact remain regarding whether plaintiffs had departed from

the area of the unlawful assembly and were complying with the order to disperse

when they were arrested.

The operative dispersal order was issued at approximately 4:30 p.m.

pursuant to California Penal Code § 726. Subsequent announcements directed

plaintiffs to walk away from Tin Fish Plaza, “toward L Street east,” and then onto

Harbor Drive. The record includes evidence showing the defendants’ aim was to

keep two—or possibly three—factions apart to avoid violence, and that this was

the reason plaintiffs were not allowed to circle back on the side streets to their

parked cars. I do not question the legitimacy of the law enforcement objective to

steer the groups in opposite directions, but the record before us shows that officers

told plaintiffs to proceed down Harbor Drive, and only Harbor Drive, but never

told them how far they were required to go. Plaintiffs contend they walked along

Harbor Drive and away from the plaza as directed. The record shows that one

plaintiff testified, “Well, they just kept saying ‘keep walking,’ which we were. We

didn’t stand still at any point.” And another testified, “They said to keep on going

the way they were telling us . . . [and] I followed directions . . . [I k]ept on going

forward.” Perhaps the best evidence that plaintiffs complied with the order to

disperse is the uncontested location and time of their arrests: approximately a mile

down Harbor Drive and over two hours after the 4:30 p.m. dispersal order.

Public demonstrations are an important feature of our political landscape and

gatherings of this sort are certain to continue. In my view, a dispersal order

specifying a point at which officers could allow people to deviate from the trek

down Harbor Drive would have avoided considerable confusion for

everyone—including the officers on the ground—and may have avoided these

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arrests and follow-on litigation. Instead, the open-ended dispersal order exposed

defendants to allegations that they committed constitutional violations by arresting

people who had departed from the area in compliance with the order to disperse.

That said, in my view the district court correctly concluded that qualified

immunity shields defendants from liability for these claims. Plaintiffs articulated

an intent to appeal the district court’s qualified immunity ruling but offered only

general rules of law and the assertion that defendants’ conduct “was clearly illegal

and unconstitutional.” Plaintiffs are correct that, “in an obvious case,” we may

find clearly established standards “even without a body of relevant case law,”

Brosseau v. Haugen, 543 U.S. 194, 199 (2004), but the facts in this case do not

approach that standard, see, e.g., Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020). It

was plaintiffs’ burden to show clearly established law put defendants on notice

their actions violated plaintiffs’ rights, and plaintiffs did not meet this burden. For

these reasons, I agree with my colleagues’ decision to affirm the district court’s

ruling on qualified immunity.

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