Mark Stuart v. City of Scottsdale ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK STUART, DBA Save Our Preserve No. 21-15504
Political Action Committee of Scottsdale,
DBA Save Our Preserve, Inc., an Individual D.C. No. 2:17-cv-01848-DJH
and Chairman,
Plaintiff-Appellant, MEMORANDUM*
and
SAVE OUR PRESERVE, INC., an Arizona
corporation on behalf of its members;
MARGARET STUART, DBA Save Our
Preserve Political Action Committee of
Scottsdale, an Individual and Treasurer,
Plaintiffs,
v.
CITY OF SCOTTSDALE, a Municipal
Corporation and a political subdivision of the
State of Arizona; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Mark Stuart appeals pro se from the district court’s judgment dismissing his
42 U.S.C. § 1983 action alleging federal and state law claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to
comply with the pleading requirements of Federal Rule of Civil Procedure 8.
Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006). We
affirm in part, reverse in part, and remand.
The district court properly dismissed Stuart’s excessive force claim set forth
in Count Three of the first amended complaint because Stuart failed to allege facts
sufficient to show that defendant Cleary had used excessive force while
handcuffing Stuart. See Smith v. City of Hemet, 394 F.3d 689, 700-04 (9th Cir.
2005) (standard for Fourth Amendment excessive force claim).
The district court properly dismissed the claims set forth in Counts One,
Four, Six, Seven, and Eight of the first amended complaint because Stuart failed to
comply with Rule 8. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(Rule 8 requires the complaint “give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests” (alteration in original, citation and internal
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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quotation marks omitted)); McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996)
(complaint does not comply with Rule 8 if “one cannot determine from the
complaint who is being sued, for what relief, and on what theory”).
The district court did not abuse its discretion by denying Stuart’s motions to
file his proposed second amended complaints because the proposed second
amended complaints did not comply with the requirements of Rule 8. See Fed. R.
Civ. P. 8(a), (d)(1); Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d
1047, 1179-80 (9th Cir. 2011) (denial of motion for leave to amend reviewed for
abuse of discretion; complaints that fail to comply with Rule 8 “impose unfair
burdens on litigants and judges” who “cannot use [such] complaint[s]” and “must
prepare outlines to determine who is being sued for what”).
The district court determined that defendants Lane, Cleary, and Glenn were
entitled to qualified immunity on Stuart’s claim that these defendants interfered
with protected First Amendment activity and wrongfully arrested him for
exercising his First Amendment rights at the city council meeting on February 7,
2017, as alleged in Count Two of the first amended complaint. However, Stuart
plausibly alleged that Lane imposed a restriction on Stuart’s speech at the city
council meeting that was not reasonable and viewpoint neutral. See Norse v. City
of Santa Cruz, 629 F.3d 966, 975 (9th Cir. 2010) (city council meetings are limited
public forums, and content-based regulations must be “viewpoint neutral and
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enforced that way”). Additionally, Stuart plausibly alleged that Cleary and Glenn
handcuffed Stuart and ejected him from the city council meeting because of
Stuart’s valid exercise of his First Amendment rights during the public comment
portion of the city council meeting. See Nieves v. Bartlett, 139 S. Ct. 1715, 1722-
25 (2019) (a First Amendment claim for retaliatory arrest requires that a plaintiff
show he was arrested without probable cause in retaliation for protected speech);
Rosenbaum v. Washoe County, 663 F.3d 1071, 1076 (9th Cir. 2011) (in a § 1983
claim for wrongful arrest “the two prongs of the qualified immunity analysis can
be summarized as: (1) whether there was probable cause for the arrest; and (2)
whether it is reasonably arguable that there was probable cause for arrest”).
The district court dismissed Stuart’s claim under Monell v. Department of
Social Services, 436 U.S. 658 (1978), set forth in Count Nine of the first amended
complaint, because Stuart failed to allege facts sufficient to establish municipal
liability. However, Stuart plausibly alleged that Lane had final policymaking
authority for Scottsdale. Specifically, Stuart alleged that on February 7, 2017,
during the public comment portion of the city council meeting, Lane instructed
Stuart to stop speaking and ordered police officers Cleary and Glenn to remove
Stuart from the meeting and the police officers obeyed his order. See Cortez v.
County of Los Angeles, 294 F.3d 1186, 1188-89 (9th Cir. 2002) (requirements for
establishing whether an official had final policymaking authority for the purposes
4 21-15504
of municipal liability); see also Lytle v. Carl, 382 F.3d 978, 982-83 (9th Cir. 2004)
(regarding municipal liability, the term “policy” includes “a course of action
tailored to a particular situation and not intended to control decisions in later
situations” (citation, internal quotation marks, and emphasis omitted)).
In sum, we reverse the judgment on Counts Two and Nine of the first
amended complaint and remand for further proceedings on these claims only, and
affirm the judgment on all other claims.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Stuart’s request for judicial notice (Docket Entry No. 27) is denied.
The parties will bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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