Nancy Lagrange v. Steven Hatcher

FILED
NOT FOR PUBLICATION JUL 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NANCY LAGRANGE, guardian ad litem No. 10-16787
of Alize Martinez; JOSIE GARCIA,
D.C. No. 3:09-cv-00681-LRH-
Plaintiffs - Appellants, RAM
v.
MEMORANDUM *
STEVEN HATCHER, an individual;
NEVADA, STATE OF, its Gaming
Control Board; A-1 CHEMICAL, INC., a
Nevada Corporation; BRAD PHILLIPS,
an individual; STATE GAMING
CONTROL BOARD,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted July 18, 2011
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge.**
Josie Garcia and Nancy LaGrange, guardian ad litem of Alize Martinez
(Alize), (collectively, Plaintiffs), appeal the district court’s dismissal of their 42
U.S.C. § 1983 complaint, which alleged, inter alia, that Steven Hatcher, an
enforcement agent of the Nevada Gaming Control Board, and the Nevada Gaming
Control Board, (collectively, State Defendants), acted with deliberate indifference
to their Fourteenth Amendment due process rights when Hatcher fatally shot
Santiago Ray Martinez (Martinez), Garcia’s son and Alize’s father.
1. The district court abused its discretion when it dismissed the claims
against the State Defendants without oral argument and without providing
Plaintiffs the opportunity to amend the complaint because the factual findings
contained in the district attorney’s report regarding the shooting incident raised the
spectre of a plausible claim under 42 U.S.C. § 1983 against Hatcher. See
Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (holding that a
district court abuses its discretion by denying leave to amend unless amendment
would be futile or the plaintiff has failed repeatedly to cure the complaint’s
**
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
2
deficiencies despite repeated opportunities); see also Doe v. United States, 58 F.3d
494, 497 (9th Cir. 1995) (“[A] district court should grant leave to amend even if no
request to amend the pleading was made, unless it determines that the pleading
could not possibly be cured by the allegation of other facts.”) (citation omitted).
2. Plaintiffs’ opening brief does not assert any claims against
Defendants-Appellees A-1 Chemical, Inc., and Brad Phillips. We deem these
claims abandoned and affirm the district court’s dismissal of all claims against
them. See Cousins v. Lockyer, 568 F.3d 1063, 1070 n.3 (9th Cir. 2009).
AFFIRMED IN PART; VACATED AND REMANDED IN PART. The
parties are to bear their own respective costs.
3