The opinion
FILED
NOT FOR PUBLICATION
JUL 19 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHANE BADDING, No. 21-16821
Plaintiff-Appellant, D.C. No.
3:20-cv-08315-DWL-ESW
v.
DAVID CLOUSE, individually and in his MEMORANDUM*
official capacity as Sheriff of Navajo
County, Arizona; et al.,
Defendants-Appellees,
and
COUNTY OF NAVAJO; NAVAJO
COUNTY BOARD OF SUPERVISORS,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Dominic Lanza, District Judge, Presiding
Submitted July 17, 2023**
San Francisco, California
*
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).
Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges.
Shane Badding appeals from the district court’s dismissal with prejudice of
his action alleging violations of federal and state law against Navajo County
Sheriff David Clouse and Navajo County Sheriff Deputy Newman (collectively,
“Defendants”).1 We have jurisdiction under 28 U.S.C. § 1291. “We review de
novo an order granting a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6).” Mudpie, Inc. v. Travelers Cas. Ins. Co.
of Am., 15 F.4th 885, 889 (9th Cir. 2021). “We review the denial of leave to
amend for an abuse of discretion, but we review the futility of amendment de
novo.” Cohen v. ConAgra Brands, Inc., 16 F.4th 1283, 1287 (9th Cir. 2021). We
also review de novo questions of federal and state law. Asante v. Cal. Dep’t of
Health Care Servs., 886 F.3d 795, 799 (9th Cir. 2018). We affirm. Because the
1
Badding also sought to name Navajo County Sheriff Deputy Pendergast as
a defendant, but the district court properly found that Deputy Pendergast had not
been timely served. See Fed. R. Civ. P. 4(m). Moreover, because “[a] [d]istrict
[c]ourt may properly on its own motion dismiss an action as to defendants who
have not moved to dismiss where such defendants are in a position similar to that
of moving defendants or where claims against such defendants are integrally
related,” Silverton v. Dep’t of Treasury of U.S. of Am., 644 F.2d 1341, 1345 (9th
Cir. 1981), the district court did not err in dismissing the action as against Deputy
Pendergast.
2
parties are familiar with the factual and procedural history of the case, we need not
recount it here.
I
The district court did not err in dismissing Badding’s federal claims under
42 U.S.C. § 1983 against Defendants. First, Badding has not plausibly alleged any
violations of the First, Ninth, or Fourteenth Amendments against Deputy Newman
because Badding’s amended complaint fails to allege any facts beyond “mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 6778 (2009). Badding’s
Fifth Amendment claim is foreclosed by Vega v. Tekoh, 142 S. Ct. 2095, 2106–08
(2022). Badding has also failed to plausibly allege a violation of the Fourth
Amendment because his amended complaint does not allege that the arrest lacked
probable cause or exigent circumstances, nor does it identify any clearly
established law holding that Defendants’ alleged actions constituted excessive
force. See LaLonde v. County of Riverside, 204 F.3d 947, 954 (9th Cir. 2000).
Accordingly, Deputy Newman is entitled to qualified immunity. See LSO, Ltd. v.
Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000).
Second, Badding’s § 1983 claim against Sheriff Clouse fails because
Badding has alleged no facts from which it can be plausibly inferred that Sheriff
Clouse was involved in or “ratifi[ed]” any actions of the deputies. Christie v. Iopa,
3
176 F.3d 1231, 1239 (9th Cir. 1999). Nor does respondeat superior provide a
basis for liability under § 1983. Iqbal, 556 U.S. at 676. Sheriff Clouse is therefore
also entitled to qualified immunity. See LSO, 205 F.3d at 1157.
Third, Badding’s § 1983 claim under Monell v. Department of Social
Services, 436 U.S. 658 (1978), against Navajo County fails to plausibly allege “a
deliberate policy, custom, or practice” that caused the alleged constitutional
violations. AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir.
2012) (citation omitted); see Iqbal, 556 U.S. at 677–78.
II
The district court did not err in dismissing Badding’s state-law assault claim
because Badding failed to plausibly allege that his detention was unsupported by
probable cause. See Iqbal, 556 U.S. at 677–78; Ariz. Rev. Stat. Ann. § 13-409
(2023).
III
The district court correctly held that Badding’s state-law negligence claim is
foreclosed by Ryan v. Napier, 425 P.3d 230 (Ariz. 2018), because the “negligent
use of intentionally inflicted force is [not] a cognizable claim” under Arizona law.
Id. at 236.
IV
4
The district court did not abuse its discretion by dismissing the second
amended complaint with prejudice, because Badding “failed to add the requisite
particularity to [his] claims.” Nguyen v. Endologix, Inc., 962 F.3d 405, 420 (9th
Cir. 2020) (citation omitted); see id. (holding that “the district court’s discretion to
deny leave to amend is particularly broad” where the district court has previously
granted the plaintiff leave to amend the complaint).
AFFIRMED.
5