Sweeney Gillette v. Malheur County ( 2018 )

FILED
NOT FOR PUBLICATION
JUN 08 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SWEENEY GILLETTE; KENDRA No. 16-35518
GILLETTE; RICHARD HOYT,
D.C. No. CV 14-1542 MHS
Plaintiffs-Appellants,
v. MEMORANDUM*
MALHEUR COUNTY; ROBERT
SPEELMAN; LYNN GIBSON; DAWN
SCHOOLEY; LARRY HAYHURST;
JACK NOBLE; RODGER HUFFMAN;
GREG ROMANS; BRIAN WOLFE,
Sheriff; TRAVIS JOHNSON; BOB
WROTEN; BILL BARTON, Dr.; JEFF
ANDERSON; 6 UNKNOWN JANE
DOES; 6 UNKNOWN JOHN DOES,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted May 17, 2018**
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
Before: TASHIMA, McKEOWN, and PAEZ, Circuit Judges.
Plaintiffs-Appellants Sweeney and Kendra Gillette, and Richard Hoyt
(“Plaintiffs”) appeal the dismissal with prejudice of their 42 U.S.C. § 1983 and
Bivens claims1 against state and federal officials. Plaintiffs asserted nine claims,
stemming from alleged abuses committed during an investigation of Plaintiffs’
cattle business. Defendants moved to dismiss under Federal Rules of Civil
Procedure 8 and 12(b)(6). A magistrate judge recommended dismissing all of the
claims with prejudice pursuant to Rule 12(b)(6). The district court agreed,
adopting the magistrate judge’s findings and recommendation, and dismissed all
claims with prejudice
Plaintiffs appeal only the dismissal of four of their original claims.
Specifically, Plaintiffs contend that the district court erred in dismissing their (1)
Fourth Amendment; (2) Fifth and Fourteenth Amendment; (3) conspiracy; and (4)
supervisory liability claims. Additionally, Plaintiffs ask this Court to reverse the
district court’s denial of leave to amend.
We review the district court’s dismissal for failure to state a claim de novo,
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011),
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).
2
and the denial of leave to amend for abuse of discretion, see AE ex rel. Hernandez
v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012).
We affirm. Although we could dismiss the appeal for failure to comply with
Federal Rule of Appellate Procedure (“FRAP”) 28, we nonetheless have reviewed
Plaintiffs’ Second Amended Complaint on the merits and are satisfied that the
district court did not err in dismissing Plaintiffs’ claims with prejudice.
1. FRAP 28 mandates that an appellant’s opening brief must include,
among other things, “a concise statement of the case setting out the facts relevant
to the issues submitted for review,” “a summary of the argument,” and “appellant’s
contentions and the reasons for them, with citations to the authorities . . . on which
the appellant relies.” Fed. R. App. P. 28(a)(6), (7), & (8)(A). Further, this Court’s
rules state that “[b]riefs not complying with FRAP and these rules may be stricken
by the Court.” 9th Cir. R. 28-1(a). “In order to give fair consideration to those
who call upon us for justice, we must insist that parties not clog the system by
presenting us with a slubby mass of words rather than a true brief.” N/S Corp. v.
Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997).
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Plaintiffs’ opening brief plainly fails to meet the minimum standards under
FRAP 28 for at least three reasons.2 First, Plaintiffs’ “statement of the case” does
not provide any facts on which Plaintiffs’ lawsuit is based; instead it merely
outlines the procedural posture of the case. See Fed. R. App. P. 28(a)(6). Second,
Plaintiffs do not include a summary of their argument. See id. R. 28(a)(7). Third,
and most importantly, Plaintiffs’ argument section is nothing more than bare
assertions and unexplained citations to the Second Amended Complaint and a
Proposed Third Amended Complaint.3 See id. R. 28(a)(8)(A); Sekiya v. Gates, 508
F.3d 1198, 1200 (9th Cir. 2007) (per curiam). Although we may strike Plaintiffs’
opening brief and dismiss the appeal, id., out of an abundance of caution we
proceed to the merits.
2(a) Plaintiffs’ Fourth Amendment claims fail because they have pointed
to no law suggesting that shaving cattle for the purpose of brand inspection is an
unreasonable search or seizure. Further, Plaintiffs have not alleged that
Defendants’ involvement in the bank’s repossession of Plaintiffs’ property rose to
2
Plaintiffs did not file a reply brief.
3
As the Proposed Third Amended Complaint was never filed or lodged
in the district court, we do not rely on it here because it is not part of the appellate
record. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990); see also Fed.
R. App. P. 10(a)(1). Plaintiffs’ motion to accept brief with an exhibit [Dkt. 17] is
denied insofar as it seeks to have the Proposed Third Amended Complaint filed.
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the level of state action. See Harris v. City of Roseburg, 664 F.2d 1121, 1127 (9th
Cir. 1981).
(b) Plaintiffs’ Fifth and Fourteenth Amendment deprivation of property
allegations also fail to state a claim. Plaintiffs argue that Defendants violated the
Fifth and Fourteenth Amendments by harming the cattle and by defaming
Plaintiffs. As to the first contention, Plaintiffs provide conclusions rather than
facts. As to the second, Plaintiffs have not alleged that the defamation harmed
them beyond damage to their reputation; this is insufficient under the “stigma plus”
test. See Paul v. Davis, 424 U.S. 693, 711–12 (1976).
(c) As to their conspiracy claim, Plaintiffs provide no facts to support
their allegations that Defendants agreed to deprive Plaintiffs of their rights. See
Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010).
(d) Finally, as to supervisory liability, Plaintiffs must show (1) that the
subordinates violated their constitutional rights and, (2) that the supervisor knew
about the violations and failed to prevent them. See Preschooler II v. Clark Cty.
Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th Cir. 2007). Plaintiffs have not met
either element. Sheriff Wolfe being aware of potential tort violations is a far cry
from knowing about constitutional violations and failing to prevent them.
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3. The district court did not abuse its discretion in denying leave to
amend because Plaintiffs were on notice about deficiencies in their complaints and
had multiple opportunities to cure them. See United States v. Corinthian Colls.,
655 F.3d 984, 995 (9th Cir. 2011). Additionally, the district court’s concerns that
Plaintiffs were acting in bad faith were justified and further reinforce the decision
to dismiss with prejudice. Id.
• ! •
The judgment of the district court is
AFFIRMED.
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