Martin Escobar v. Jan Brewer ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 01 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
MARTIN H. ESCOBAR, No. 10-16946
Plaintiff - Appellant, D.C. No. 4:10-cv-00249-SRB
and
MEMORANDUM *
CITY OF FLAGSTAFF; CITY OF SAN
LUIS; CITY OF SOMERTON; CITY OF
TOLLESON,
Intervenor-Plaintiffs,
v.
JAN BREWER, Governor of the State of
Arizona, in her official and individual
capacities,
Defendant - Appellee,
and
CITY OF TUCSON, a municipal
corporation; CITY OF PHOENIX,
Defendants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted November 18, 2011
San Francisco, California
Before: FARRIS, NOONAN, and BEA, Circuit Judges.
The district court dismissed this case on the ground that plaintiff-Appellant
Escobar lacks standing to bring his challenges to Arizona’s 2010 immigration law
known as S.B. 1070. On appeal, Escobar contends: (1) that he has standing as a
police officer “mandated to enforce S.B. 1070,”; (2) that he has standing to
challenge the law as a “Hispanic residing in Arizona,”; and (3) in the alternative,
the court should have granted Escobar leave to amend his complaint. All of these
contentions fail, and we affirm the district court in all respects.1
Escobar contends that “if he refuses to enforce the Act, he can be disciplined
by his employer or subjected to costly enforcement actions,” but if he enforces it
he “can be subjected to costly civil actions alleging the deprivation of civil rights
of the individual against whom he enforces the Act.” This theory of standing is
1
Because the parties are familiar with the facts of the case, we repeat them
here only as necessary to explain our decision. Our jurisdiction is pursuant to 28
U.S.C. § 1291, and jurisdiction below was pursuant to 28 U.S.C. § 1331.
2
foreclosed by this court’s decision in City of S. Lake Tahoe v. Cal. Tahoe Reg’l
Planning Agency, 625 F.2d 231 (9th Cir. 1980), which is directly on point.
Nor does Escobar have standing to challenge S.B. 1070 as a “Hispanic
residing in Arizona,” since he has alleged insufficient facts in his complaint that
could allow a court to infer injury on this basis. Mere conclusory allegations are
not enough to establish the “concrete and particularized” injury required for
standing under Article III. See, e.g., Carrico v. City & Cnty. of San Francisco, 656
F.3d 1002, 1006 (9th Cir. 2011).
Finally, the district court was not required to dismiss the complaint with
leave to amend. Escobar never requested leave to amend and “[w]here a party does
not ask the district court for leave to amend, the request [on appeal] to remand with
instructions to permit amendment comes too late.” Alaska v. United States, 201
F.3d 1154, 1163–64 (9th Cir. 2000).
For the foregoing reasons, the decision of the district court is AFFIRMED.
3