Mark Stuart v. City of Scottsdale

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 1 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK STUART, DBA Save Our Preserve No. 21-15504

Political Action Committee of Scottsdale,

DBA Save Our Preserve, Inc., an Individual D.C. No. 2:17-cv-01848-DJH

and Chairman,

Plaintiff-Appellant, MEMORANDUM*

and

SAVE OUR PRESERVE, INC., an Arizona

corporation on behalf of its members;

MARGARET STUART, DBA Save Our

Preserve Political Action Committee of

Scottsdale, an Individual and Treasurer,

Plaintiffs,

v.

CITY OF SCOTTSDALE, a Municipal

Corporation and a political subdivision of the

State of Arizona; et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Diane J. Humetewa, District Judge, Presiding

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

Submitted May 17, 2022**

Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.

Mark Stuart appeals pro se from the district court’s judgment dismissing his

42 U.S.C. § 1983 action alleging federal and state law claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to

comply with the pleading requirements of Federal Rule of Civil Procedure 8.

Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006). We

affirm in part, reverse in part, and remand.

The district court properly dismissed Stuart’s excessive force claim set forth

in Count Three of the first amended complaint because Stuart failed to allege facts

sufficient to show that defendant Cleary had used excessive force while

handcuffing Stuart. See Smith v. City of Hemet, 394 F.3d 689, 700-04 (9th Cir.

2005) (standard for Fourth Amendment excessive force claim).

The district court properly dismissed the claims set forth in Counts One,

Four, Six, Seven, and Eight of the first amended complaint because Stuart failed to

comply with Rule 8. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(Rule 8 requires the complaint “give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests” (alteration in original, citation and internal

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

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quotation marks omitted)); McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996)

(complaint does not comply with Rule 8 if “one cannot determine from the

complaint who is being sued, for what relief, and on what theory”).

The district court did not abuse its discretion by denying Stuart’s motions to

file his proposed second amended complaints because the proposed second

amended complaints did not comply with the requirements of Rule 8. See Fed. R.

Civ. P. 8(a), (d)(1); Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d

1047, 1179-80 (9th Cir. 2011) (denial of motion for leave to amend reviewed for

abuse of discretion; complaints that fail to comply with Rule 8 “impose unfair

burdens on litigants and judges” who “cannot use [such] complaint[s]” and “must

prepare outlines to determine who is being sued for what”).

The district court determined that defendants Lane, Cleary, and Glenn were

entitled to qualified immunity on Stuart’s claim that these defendants interfered

with protected First Amendment activity and wrongfully arrested him for

exercising his First Amendment rights at the city council meeting on February 7,

2017, as alleged in Count Two of the first amended complaint. However, Stuart

plausibly alleged that Lane imposed a restriction on Stuart’s speech at the city

council meeting that was not reasonable and viewpoint neutral. See Norse v. City

of Santa Cruz, 629 F.3d 966, 975 (9th Cir. 2010) (city council meetings are limited

public forums, and content-based regulations must be “viewpoint neutral and

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enforced that way”). Additionally, Stuart plausibly alleged that Cleary and Glenn

handcuffed Stuart and ejected him from the city council meeting because of

Stuart’s valid exercise of his First Amendment rights during the public comment

portion of the city council meeting. See Nieves v. Bartlett, 139 S. Ct. 1715, 1722-

25 (2019) (a First Amendment claim for retaliatory arrest requires that a plaintiff

show he was arrested without probable cause in retaliation for protected speech);

Rosenbaum v. Washoe County, 663 F.3d 1071, 1076 (9th Cir. 2011) (in a § 1983

claim for wrongful arrest “the two prongs of the qualified immunity analysis can

be summarized as: (1) whether there was probable cause for the arrest; and (2)

whether it is reasonably arguable that there was probable cause for arrest”).

The district court dismissed Stuart’s claim under Monell v. Department of

Social Services, 436 U.S. 658 (1978), set forth in Count Nine of the first amended

complaint, because Stuart failed to allege facts sufficient to establish municipal

liability. However, Stuart plausibly alleged that Lane had final policymaking

authority for Scottsdale. Specifically, Stuart alleged that on February 7, 2017,

during the public comment portion of the city council meeting, Lane instructed

Stuart to stop speaking and ordered police officers Cleary and Glenn to remove

Stuart from the meeting and the police officers obeyed his order. See Cortez v.

County of Los Angeles, 294 F.3d 1186, 1188-89 (9th Cir. 2002) (requirements for

establishing whether an official had final policymaking authority for the purposes

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of municipal liability); see also Lytle v. Carl, 382 F.3d 978, 982-83 (9th Cir. 2004)

(regarding municipal liability, the term “policy” includes “a course of action

tailored to a particular situation and not intended to control decisions in later

situations” (citation, internal quotation marks, and emphasis omitted)).

In sum, we reverse the judgment on Counts Two and Nine of the first

amended complaint and remand for further proceedings on these claims only, and

affirm the judgment on all other claims.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Stuart’s request for judicial notice (Docket Entry No. 27) is denied.

The parties will bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

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