Kimberly Long v. Thomas Weeks

FILED

NOT FOR PUBLICATION

APR 18 2024

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIMBERLY LONG, No. 23-55004

Plaintiff-Appellee, D.C. No.

5:21-cv-02008-FWS-E

v.

THOMAS WEEKS; et al., MEMORANDUM*

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Fred W. Slaughter, District Judge, Presiding

Argued and Submitted March 28, 2024

Pasadena, California

Before: RAWLINSON, LEE, and BRESS, Circuit Judges.

Officers Thomas Weeks, Ronald Anderson, Daniel Bloomfield, Robert

Newman, Daniel Verdugo, and Jeffrey Glenn (Appellants) appeal the district

court’s denial of their motion to dismiss Kimberly Long’s (Long) complaint

alleging claims under 42 U.S.C. § 1983 for failure to intervene in the violation of

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

Long’s constitutional rights, conspiracy, malicious prosecution, failure to collect or

preserve evidence, fabrication of evidence, and suppression of evidence. We have

jurisdiction under 28 U.S.C. § 1291. We reverse in part and vacate and remand in

part for the district court to consider the plausibility of Long’s claims as to each

individual defendant.

“We have jurisdiction under the collateral order doctrine to review a district

court’s rejection of a qualified immunity defense at the motion to dismiss stage,

and we review such a denial de novo.” See Polanco v. Diaz, 76 F.4th 918, 925 (9th

Cir. 2023) (citations omitted). “When engaging in such review, we accept as true

all well-pleaded allegations and construe them in the light most favorable to the

non-moving party.” Id. (citation, alterations, and internal quotation marks

omitted).

1. We have jurisdiction notwithstanding whether Appellants raised disputes

of fact or improperly relied on materials outside the pleadings in their opening

brief. See id. To the extent Appellants did either, we did not consider them as part

of our de novo review. See id.

2. This appeal is not moot by virtue of the district court’s acceptance of the

second amended complaint. See Griggs v. Provident Consumer Disc. Co., 459

U.S. 56, 58 (1982) (“The filing of a notice of appeal . . . confers jurisdiction on the

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court of appeals and divests the district court of its control over those aspects of the

case involved in the appeal.”).

3. Appellants are entitled to qualified immunity on the conspiracy claim

because it is not clearly established that the intracorporate conspiracy doctrine is

inapplicable to Section 1983 claims. See Ziglar v. Abbasi, 582 U.S. 120, 153

(2017) (“Under . . . the intracorporate conspiracy doctrine[,] . . . an agreement

between or among agents of the same legal entity, when the agents act in their

official capacities, is not an unlawful conspiracy.”).

Given the implausibility of Long’s conspiracy claim, we remand for the

district court to conduct an individualized assessment of whether each Appellant is

entitled to qualified immunity for Long’s remaining Section 1983 claims. See

Cunningham v. Gates, 229 F.3d 1271, 1282, 1287 (9th Cir. 2000), as amended

(holding that the district court erred by “never conduct[ing] an individualized

analysis to determine whether each moving defendant was entitled to qualified

immunity based on his or her individual actions”).

REVERSED IN PART, VACATED AND REMANDED IN PART.

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