Delilah Coleman v. Lvmpd ( 2022 )

FILED
NOT FOR PUBLICATION
AUG 23 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DELILAH COLEMAN, Individually and No. 21-16269
as guardian ad litem of A.C. a minor; A.
C., a minor, D.C. No.
2:20-cv-01511-JCM-EJY
Plaintiffs-Appellants,
v. MEMORANDUM*
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; AMMON PEACOCK,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 9, 2022**
San Francisco, California
Before: RAWLINSON, BADE, and BRESS, 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).
Plaintiffs Delilah Coleman and A.C., a minor (together, Plaintiffs), appeal
the district court’s decision granting the Las Vegas Metropolitan Police
Department’s (LVMPD) and Officer Ammon Peacock’s (Officer Peacock)
(together, Defendants) partial motion to dismiss Plaintiffs’ complaint under Rule
12(b)(6) of the Federal Rules of Civil Procedure.1 We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. We review de novo a district court’s order granting a motion to dismiss
under Rule 12(b)(6). See Knievel v. ESPN, 393 F.3d 1068, 1070, 1072 (9th Cir.
2005). On a motion to dismiss, “we accept all factual allegations in the complaint
as true and construe the pleadings in the light most favorable to the nonmoving
party.” Id. at 1072 (citation omitted). “We do not, however, necessarily assume
the truth of legal conclusions merely because they are cast in the form of factual
allegations.” Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)
(citations omitted). It is proper to grant a motion to dismiss if the complaint either:
(1) fails to allege a cognizable legal theory; or (2) fails to allege sufficient facts to
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The district court “DISMISSED with prejudice” the two federal claims that
were at issue in the Defendants’ motion for partial dismissal. The district court
declined to exercise supplemental jurisdiction over the remaining three state law
claims, and remanded the case to state court. The district court entered an order
“clos[ing] this case” on July 6, 2021, and the judgment became final on December
3, 2021. See Fed. R. App. P. 4(a)(2), (a)(7)(A)(ii). The district court’s order
constitutes an appealable final judgment.
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support a cognizable legal theory. See Caltex Plastics, Inc. v. Lockheed Martin
Corp., 824 F.3d 1156, 1159 (9th Cir. 2016). We review a district court’s denial of
leave to amend for an abuse of discretion. See United States v. United Healthcare
Ins., 848 F.3d 1161, 1172 (9th Cir. 2016), as amended.
2. The district court properly determined that Plaintiffs did not allege
sufficient facts to support a plausible substantive due process claim against Officer
Peacock, because Plaintiffs did not allege sufficient specific facts that Officer
Peacock acted with an “intent to harm” Plaintiffs. Bingue v. Prunchak, 512 F.3d
1169, 1170-71 (9th Cir. 2008). In the context of a high-speed chase, for a plaintiff
to state a plausible Fourteenth Amendment substantive due process claim, the
plaintiff must sufficiently allege that the officer acted with “intent to harm.”
County of Sacramento v. Lewis, 523 U.S. 833, 854 (1998) (citation omitted). In
Bingue, we held that “the Lewis standard of intent to harm applies to all high-speed
police chases,” and we declined to “draw a distinction between emergency and
non-emergency situations involving high-speed chases aimed at apprehending a
fleeing suspect.” 512 F.3d at 1177 (citation and internal quotation marks omitted).
Plaintiffs’ failure to assert non-conclusory allegations regarding Officer Peacock’s
intent to harm is fatal to their 42 U.S.C. § 1983 substantive due process claim. See
id.; see also Western Mining, 643 F.2d at 624. Plaintiffs’ reliance on Flores v. City
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of South Bend, 997 F.3d 725 (7th Cir. 2021), is inapposite because it is factually
distinguishable and at odds with our precedent. See id. at 729 (applying a
deliberate indifference standard rather than an intent-to-harm standard).
3. In their claim against the LVMPD under Monell v. Department of Social
Services, 436 U.S. 658 (1978), Plaintiffs failed to sufficiently plead that they
“possessed a constitutional right of which [they were] deprived,” and so they
cannot satisfy the first Monell requirement. Van Ort v. Estate of Stanewich, 92
F.3d 831, 835 (9th Cir. 1996). In any event, Plaintiffs have not proffered sufficient
non-conclusory factual allegations to establish the other elements of a Monell
claim. See id. ((2) “the municipality had a policy”; (3) “this policy ‘amounts to
deliberate indifference’ to the plaintiff’s constitutional right”; and (4) “the policy is
the ‘moving force behind the constitutional violation’”) (citation and internal
quotation marks omitted).
4. The district court did not abuse its discretion in denying leave to amend
the complaint. “Futility of amendment can, by itself, justify the denial of a motion
for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
Plaintiffs have waived any challenge to the district court’s denial of leave to amend
because they failed to include any non-conclusory argument on this issue in their
Opening Brief. See Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626
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F.3d 483, 485 (9th Cir. 2010); see also Montana Envt’l Info. Ctr. v.
Stone-Manning, 766 F.3d 1184, 1191 n.6 (9th Cir. 2014). In any event, the district
court noted that “Plaintiffs have alleged all the facts that they plausibly can.”
Indeed, Plaintiffs suggest that it would be “impossible” to allege new facts at this
stage of the case, and have not identified any additional facts they could plead to
cure the defects in their complaint. See Miller v. Yokohama Tire Corp., 358 F.3d
616, 622 (9th Cir. 2004).
AFFIRMED.
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