FILED

NOT FOR PUBLICATION

MAR 9 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NOE ADALBERTO SILVA; VERONICA No. 18-16453

DE SILVA,

D.C. No. 3:16-cv-04360-VC Plaintiffs-Appellants,

v. MEMORANDUM*

SAN PABLO POLICE DEPARTMENT;

et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Argued and Submitted January 24, 2020 San Francisco, California

Before: W. FLETCHER and R. NELSON, Circuit Judges, and SESSIONS,** District Judge.

Plaintiffs Noe Adalberto Silva (“Silva”) and Veronica de Silva filed an

action in district court in August 2016 after San Pablo Police officers, suspecting

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. Silva was a burglar, used a canine to apprehend and subdue him in his bedroom.

This action (“Silva I”) named as defendants the City of San Pablo (“San Pablo”),

the San Pablo Police Department (“SPPD”), SPPD Police Chief Lisa Rosales, and

“Does 1 through 10,” in their individual and official capacities. In November

2017, plaintiffs filed a second complaint (“Silva II”) for damages stemming from

the same incident against SPPD officers Brett Bennett, Robert Brady, Scott Cook,

David Hoff, Jeremy Johnson, Amardeep Kullar, and “Does 1 through 10,” in their

individual capacities.

Plaintiffs appeal several of the district court’s decisions, including its grant

of summary judgment in favor of San Pablo in Silva I. We have jurisdiction under

28 U.S.C. § 1291. We affirm in part, reverse in part, and remand.

1. Plaintiffs argue that the district court abused its discretion when it denied

their motion for leave to amend their Silva I complaint to add as named defendants

the individual officers involved in the incident. Plaintiffs filed their motion to

amend on February 15, 2018, after the district court suggested that Silva II might

be dismissed as duplicative under the claim-splitting doctrine. The district court

ultimately dismissed Silva II for this reason.

The district court did not abuse its discretion in concluding that granting the

plaintiffs’ motion to amend their Silva I complaint under Rule 15(a) would have

2 caused undue delay and possible prejudice to the opposing party. See In re Tracht

Gut, LLC, 836 F.3d 1146, 1151–52 (9th Cir. 2016). The plaintiffs moved for leave

to amend their complaint well after learning the identities of the involved

officers—specifically, some fourteen months after San Pablo produced

investigative materials in the action. This delay was partially attributable to

strategic decisions by plaintiffs’ counsel. Additionally, the defendants faced

possible prejudice by virtue of amendment. When the plaintiffs moved to amend,

discovery in Silva I had already closed; two rounds of summary judgment filings

had occurred; and trial was set for four months out. Under these circumstances, the

district court did not abuse its discretion in denying the plaintiffs leave to amend

their Silva I complaint. See, e.g., Lockheed Martin Corp., v. Network Solutions,

Inc., 194 F.3d 980, 986 (9th Cir. 1999); Ascon Props., Inc. v. Mobil Oil Co., 866

F.2d 1149, 1161 (9th Cir. 1989); Parker v. Joe Lujan Enters., Inc., 848 F.2d 118,

121 (9th Cir. 1988); cf. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187–88

(9th Cir. 1987). We affirm.

2. Plaintiffs contend the district court erred when it found that they did not

sue Chief Rosales in her individual capacity and accordingly granted her summary

judgment on all claims. We review de novo a district court’s grant of summary

judgment. Martinez v. City of Clovis, 943 F.3d 1260, 1269 (9th Cir. 2019). The

3 district court based its decision solely on plaintiffs’ response to an interrogatory

refusing to answer a question. However, the interrogatory response indicates that

plaintiffs may have believed evidence supporting their theory of Chief Rosales’s

individual liability overlapped with evidence supporting their municipal liability

claims and was therefore excluded from discovery under a bifurcation order by the

court. The district court later clarified its bifurcation order. Moreover, the Silva I

complaint specifically stated, “Plaintiff sues Rosales in her individual and official

capacities.” The district court’s decision was error, and we reverse.

3. Plaintiffs argue the district court erred in finding that SPPD was not a

separate legal entity capable of being sued under 42 U.S.C. § 1983, and in

therefore granting summary judgment to SPPD on the § 1983 claims. We review

this question de novo. Martinez, 943 F.3d at 1269.

The Supreme Court in Monell v. Department of Social Services of City of

New York, 436 U.S. 658, 690 (1978), held that municipalities and other local

governmental units could be sued as “persons” under § 1983. The Ninth Circuit

has squarely held that, depending on state law, a local law enforcement agency can

be a separately suable entity. See Streit v. Cty. of Los Angeles, 236 F.3d 552,

565–67 (9th Cir. 2001); Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621,

4 624 n.2 (9th Cir. 1988). The district court erred in holding otherwise without

analysis of state law.

4. Finally, plaintiffs argue that the district court erred in granting summary

judgment on their § 1983 claims on the ground that they had not sufficiently shown

San Pablo could be liable under Monell for any constitutional violations its police

officers may have committed. We review this question de novo. Martinez, 943

F.3d at 1269. Like the district court, we assume a reasonable jury could find

constitutional violations (excessive force, unlawful entry, and false arrest).

A plaintiff may hold a municipality liable for constitutional violations if he

or she proves that “a city employee committed the alleged constitutional violation

pursuant to a formal governmental policy . . . .” Gillette v. Delmore, 979 F.2d

1342, 1346 (9th Cir. 1992) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,

737 (1989)). A plaintiff must then show that “the circumstance was (1) the cause

in fact and (2) the proximate cause of the constitutional deprivation.” Trevino v.

Gates, 99 F.3d 911, 918 (9th Cir. 1996). As the district court acknowledged, a

policymaker’s after-the-fact approval of a subordinate’s conduct may be used as

evidence that a municipality had a pre-existing policy that caused the alleged

constitutional violations. See, e.g., Larez v. City of Los Angeles, 946 F.2d 630, 647

(9th Cir. 1991).

5 The district court held that plaintiffs had argued Chief Rosales’s after-the-

fact “ratification” of the officers’ actions was a “cause in fact” of their injuries,

rather than evidence of pre-existing policy. We do not read plaintiffs’ argument to

the district court so narrowly. We read their argument to have been that Chief

Rosales’s ratification was evidence of San Pablo’s pre-existing policy concerning

use of canines, pursuant to which the officers acted.

Here, two pieces of evidence suggest the existence of such a policy. First,

Chief Rosales, an official policymaker for SPPD, reviewed and approved of the

officers’ conduct. In a deposition, she testified that she reviewed “the reports,”

“the audio,” “the incident history, the call history,” and “the canine and use of

force policy” before “sign[ing] off on the incident” because she “believe[d] that it

was within policy and training.” Second, San Pablo’s own expert opined that both

the officers’ entry into the plaintiffs’ home and their decision to deploy the police

canine were “reasonable, lawful, . . . and consistent with . . . departmental policies

and procedures.” Accordingly, there is a triable issue of fact as to the existence of

a municipal policy under Monell and San Pablo’s liability under § 1983. We

reverse the district court’s grant of summary judgment.

We AFFIRM in part, REVERSE in part, and REMAND for proceedings

consistent with this disposition. The parties shall bear their own costs.

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