NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 28 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

Mr. MICHAEL DEVIN FLOYD, No. 24-6866 D.C. No. Plaintiff - Appellant, 3:22-cv-00750-CRB v.

MEMORANDUM*

SANTA CLARA DEPARTMENT OF

CORRECTION; COUNTY OF SANTA

CLARA; SANTA CLARA COUNTY

SHERIFF’S OFFICE; ELMWOOD

CORRECTIONAL FACILITY; Deputy DUNG TRAN, #10679; Deputy ROBERT SILOS, #11291; Deputy JEREMY HILES, #11188; Deputy SAUL AGUSTIN, #11131; CHARLES STOKES, III #11240; Deputy RYAN REYES, #10612; Deputy GINO COFFERATI, #10991; Deputy COREY EVANS, #10838; Sgt. YVETTE DIAS, #10305; CONSUELO RENEE GARCIA, LMFT; Sgt. BRADLEY REAGAN, #10572; Deputy VICTOR CABRERA, #11081; Deputy KYLE QUADROS, #11216; Deputy FABIAN SERRANO- ALVAREZ, #11284; Deputy GEORGE BARAJAS, #11089; Deputy JESUS PATINO, #11308; Deputy JOSEPH CORTEZ, #11307; Deputy ISAIAH CAMPOS, #11214; Sgt. RYAN HERNANDEZ, #10604; Deputy MIGUEL

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. SANCHEZ-PEREZ, #11050; Lt. RUTH COTE, #10457; Deputy Sheriff MATTHEW NEWTON, #2212; Sergeant VORPAHL, #10888; Correctional Deputy

DANIEL DICKSON, #11036,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Submitted October 21, 2025** San Francisco, California

Before: PAEZ, BEA, and FORREST, Circuit Judges.

Late in the evening on August 18, 2021, Plaintiff-Appellant Michael Devin

Floyd was arrested and brought to the Santa Clara Main Jail for booking. Four hours

later, Floyd was transferred to the nearby Elmwood Correctional Facility. There,

correctional officers asked Floyd to change from his civilian clothes into jail-issued

attire, a routine procedure that all detainees who arrive at Elmwood must complete

before moving from the lobby into the prison’s housing unit. Floyd was unwilling

to change his clothes and thus could not leave the lobby. For ten hours, Floyd

refused to cooperate despite attempts by more than a dozen correctional officers and

two mental-health professionals to persuade him. On the afternoon of August 19,

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 24-6866 2021, Floyd finally relented and allowed officers to escort him to his housing unit,

thus ending an encounter that began with Floyd’s booking at the Main Jail and lasted

more than fourteen hours.

Floyd filed this action under 42 U.S.C. § 1983 against the County of Santa

Clara, several of the County’s subdivisions, and twenty-four individual correctional

officers from both the Main Jail and Elmwood (collectively, “Defendants”). Floyd

alleged that various officers used excessive force against him, deprived him of the

right to make a phone call, and denied him access to the restroom, in violation of his

Fourteenth Amendment right as a pretrial detainee to be free from punishment; Floyd

also alleged that the County of Santa Clara had a policy of violating detainees’ rights

in this manner and was liable under Monell v. Dep’t of Social Services, 436 U.S. 658

(1978). The district court granted summary judgment to Defendants on all counts.

Floyd timely appealed.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district

court’s grant of summary judgment and its qualified immunity determinations de

novo. Hughes v. Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022) (citation omitted).

We affirm.

1. The district court did not err in finding that, on account of video evidence

proffered by Defendants that “blatantly contradicted” Floyd’s version of events, no

reasonable jury could find that the officers used excessive force or violated Floyd’s

3 24-6866 right of access to a restroom. See Scott v. Harris, 550 U.S. 372, 380 (2007). Floyd

claims that the footage in the videos was altered or fabricated. Floyd offers no

evidence to substantiate this claim, yet maintains that because the videos were

fabricated, the district court should not have accorded them any weight at summary

judgment and should have found that a triable issue of fact existed because of the

conflict between Floyd’s narrative of events and Defendants’ narrative. While the

district court’s decision to grant summary judgment would be called into question if

there were evidence to support a reasonable inference that the videos upon which

the district court relied were “doctored or altered in any way,” Scott, 550 U.S. at

378, Floyd’s bare allegations of fabrication do not suffice. “[M]ere allegation and

speculation do not create a factual dispute for purposes of summary judgment.”

Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir. 1996). Thus, the

district court properly considered the video evidence and accorded it the proper

weight under Scott v. Harris. See 550 U.S. at 378–80.

2. Regarding Floyd’s Fourteenth Amendment claim arising from the alleged

denial of his right to make a phone call, the district court correctly granted summary

judgment to the defendant officers based on qualified immunity. Floyd’s asserted

right comes from California Penal Code § 851.5, which creates a “liberty interest,”

protected by the Fourteenth Amendment, in an arrestee’s right to make three phone

calls. Carlo v. City of Chino, 105 F.3d 493, 502 (9th Cir. 1997).

4 24-6866 Cal. Penal Code § 851.5 requires officers to allow an arrestee to use a phone

“upon request, or as soon as practicable.” Id. § 851.5(e). At Elmwood, multiple

officers assured Floyd that he would be able to use the phone once he “dressed out”

and could be taken to his cell. Though Floyd claims that he had to wait over ten

hours at Elmwood before he could make a phone call, this delay was caused by

Floyd’s refusal to “dress out,” not the defendant officers. The officers’ conduct at

Elmwood did not clearly violate their statutory obligation to provide Floyd with a

phone call “as soon as practicable.” Cal. Penal Code § 851.5(e). Floyd has failed to

show that he “suffered a deprivation of a constitutional or statutory right” and

therefore cannot overcome the officers’ defense of qualified immunity. Hamby v.

Hammond, 821 F.3d 1085, 1091 (9th Cir. 2016) (quoting Taylor v. Barkes, 575 U.S.

822, 824 (2015)). The district court properly granted summary judgment to the

defendant officers on this basis.1

3. The district court correctly granted summary judgment to Defendants on

Floyd’s Fourteenth Amendment claim arising out of his alleged deprivation of

access to the restroom because Floyd failed to raise a genuine dispute of material

fact as to whether Defendants committed a constitutional violation. Because Floyd

1 Defendants have filed a motion to take judicial notice of the previously enacted text and legislative history of Cal. Penal Code § 851.5. Because the text and legislative history of Section 851.5 are unnecessary to affirm the district court’s order granting summary judgment to the defendant officers based on qualified immunity, we DENY Defendants’ motion to take judicial notice.

5 24-6866 was a pretrial detainee, not a convicted prisoner, his asserted right comes from the

Fourteenth Amendment’s prohibition against “punishment” of pretrial detainees, not

the Eighth Amendment’s prohibition against “cruel and unusual punishment.” See

Norbert v. City & County of San Francisco, 10 F.4th 918, 928 (9th Cir. 2021). For

official action to constitute “punishment” that violates the Fourteenth Amendment,

“(1) that action must cause the detainee to suffer some harm or disability, and (2) the

purpose of the governmental action must be to punish the detainee.” Demery v.

Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004) (quoting Bell v. Wolfish, 441 U.S. 520,

538 (1979). To satisfy the first prong, a detainee must show that he has been

subjected to harm that “significantly exceed[s] . . . the inherent discomforts of

confinement.” Id. at 1030. Short-term deprivations of restroom access do not rise

to this level. As this Court has recognized, in the prison context, there is “no doubt

that toilets can be unavailable for some period of time without violating the

[Constitution].” Johnson v. Lewis, 217 F.3d 726, 733 (9th Cir. 2000).

Floyd used the restroom four times and did not involuntarily urinate or

defecate at any point. There is no evidence that Floyd had to wait longer than two

hours to use the restroom after he requested to use it. Construing the facts in the

light most favorable to Floyd, he has failed to show he suffered harm that

“significantly exceed[s] . . . the inherent discomforts of confinement.” See Demery,

6 24-6866 378 F.3d at 1030. Thus, the district court properly granted summary judgment to

Defendants on this claim.

4. Floyd forfeited his excessive force and Monell claims by failing to raise

them in his opening brief. “[A]rguments . . . omitted from the opening brief” are

generally “deemed forfeited,” subject to exceptions that are not applicable here. Orr

v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018). This rule applies “even to non-lawyers

who proceed pro se.” Sharemaster v. SEC, 847 F.3d 1059, 1070 (9th Cir. 2017).

AFFIRMED.

7 24-6866