The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 29 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEFO FATAI, No. 23-15354
Plaintiff-Appellee, D.C. No.
1:19-cv-00603-DKW-WRP
v.
MARK RAMOS, Officer; FUMIKAZU MEMORANDUM*
MURAOKA, Officer,
Defendants-Appellants,
and
CITY AND COUNTY HONOLULU; et al.,
Defendants.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, Chief District Judge, Presiding
Submitted February 13, 2024**
Honolulu, Hawaii
Before: PAEZ, M. SMITH, and KOH, Circuit Judges.
*
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).
Defendants appeal the district court’s order denying their motion for summary
judgment on qualified immunity grounds. Because we do not have jurisdiction to
hear a fact-based, interlocutory appeal of a denial of qualified immunity, we dismiss
the appeal.
1. Interlocutory orders “are typically not immediately appealable under [28
U.S.C.] § 1291.” Dupree v. Younger, 598 U.S. 729, 734 (2023). The collateral-
order doctrine “recognizes exceptions to this rule,” including in some instances “an
interlocutory order denying qualified immunity.” Id. at 734 n.3 (quoting Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985)). Defendants “cannot immediately appeal . . . [a]
fact-related district court determination” denying their motion for summary
judgment on qualified immunity. Johnson v. Jones, 515 U.S. 304, 307
(1995). Defendants may not “attempt to evade Johnson’s jurisdictional bar by
characterizing their arguments as legal ones . . . .” Peck v. Montoya, 51 F.4th 877,
886 (9th Cir. 2022).
Although many of Defendants’ arguments are “couched” in legal language,
nearly all their arguments “actually go[] to the sufficiency of [Plaintiff’s]
evidence.” George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013). Thus, we do not
have jurisdiction to review Defendants’ arguments.
2. To the extent that Defendants argue that the district court did not determine
that the officers’ conduct violated clearly established law, they waived those
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arguments. Their arguments before the district court constituted “bare assertions
without supporting argument.” United States ex rel. Kelly v. Serco, Inc., 846 F.3d
325, 335 (9th Cir. 2017) (citing Christian Legal Soc. Chapter of Univ. of Cal. v. Wu,
626 F.3d 483, 487–88 (9th Cir. 2010)). Defendants specifically waived their
argument under Brady v. Maryland, 373 U.S. 83, 87 (1963), because it was not
addressed in the motion for summary judgment below.
We “will not manufacture arguments for an appellant, and a bare assertion
does not preserve a claim, particularly when, as here, a host of other issues are
presented for review.” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (citing
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam)). Insofar as
legal issues remain, “[j]udges are not like pigs, hunting for truffles buried in
briefs.” Id. (alteration in original). Defendants refused to frame the facts in the light
most favorable to Plaintiff, the required standard here. See T.W. Elec. Serv., Inc. v.
Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630–31 (9th Cir. 1987). Thus, we need
not address any remaining arguments.
DISMISSED.
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