NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 23 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLAUDIA SARAHI RUEDA VIDAL, No. 19-56232

Plaintiff-Appellee, D.C. No. 2:18-cv-09276-DMG-PLA v.

ANDREW K. BOLTON, in his individual MEMORANDUM* capacity; DANIEL BRIGHTMAN, in his individual capacity,

Defendants-Appellants,

and

U.S. DEPARTMENT OF HOMELAND

SECURITY; et al.,

Defendants.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Argued and Submitted August 31, 2020 Pasadena, California

Before: SILER,** BERZON, and LEE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Defendants Andrew Bolton and Daniel Brightman appeal the denial of their

motion to dismiss Plaintiff Claudia Rueda Vidal’s Fourth Amendment claims for

unlawful seizure and arrest under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971). We reverse but remand to the district

court to allow Rueda Vidal to seek leave to amend her complaint.

To defeat Defendants’ assertion of qualified immunity, Rueda Vidal must

allege facts sufficient to support a plausible claim of (1) a violation of a

constitutional right, that (2) was clearly established when the challenged conduct

occurred. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011); Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Rueda Vidal’s complaint does not meet the first requirement,

so we need not consider the second.

Rueda Vidal alleges that the officers seized and arrested her without

reasonable suspicion or probable cause. Defendants offer the “obvious alternative

explanation” that the officers were aware of her immigration status, giving them

reasonable suspicion to seize her and probable cause for her arrest. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 567 (2007). “When faced with two possible

explanations . . . plaintiffs cannot offer allegations that are ‘merely consistent with’

their favored explanation but are also consistent with the alternative explanation.

Something more is needed, such as facts tending to exclude the possibility that the

alternative explanation is true, in order to render plaintiffs’ allegations plausible

2 within the meaning of Iqbal and Twombly.” In re Century Aluminum Co. Sec.

Litig., 729 F.3d 1104, 1108 (9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678)

(citations omitted). The facts alleged by Rueda Vidal may support an inference that

she was targeted by the officers even though they did not know she was

undocumented, but do not tend to exclude the more plausible alternative

explanation that her immigration status had been checked before the officers

arrived at her house to make the arrest.

Rueda Vidal’s First Amended Complaint alleges that no immigration

charges were filed against her until after the three weeks she was held in detention.

But the judicially noticed Notice to Appear (“NTA”) shows that it was issued on

the day of Rueda Vidal’s arrest. On a motion to dismiss, a court may take judicial

notice of “documents crucial to the plaintiff’s claims, but not explicitly

incorporated in his complaint.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.

1998), superseded by statute on other grounds as recognized in Abrego Abrego v.

Dow Chemical Co., 443 F.3d 676, 681 (9th Cir. 2006). The date of the NTA tends

to support, rather than exclude, an inference that the officers who seized and

arrested Rueda Vidal were aware of her immigration status, by indicating that the

enforcement authorities alleged that day that she was undocumented.

The other facts about the seizure itself alleged in the complaint—the close

timing after Rueda Vidal’s activism on behalf of her mother, the early morning

3 arrest by plainclothes officers, and that the officers asked her for identification and

her name in Spanish and said “that’s her”—do not give rise to an inference that the

officers were sent out without any check on Rueda Vidal’s immigration status.

Given the great unlikelihood that immigration officers would have gotten Rueda

Vidal’s name and address without her immigration status having been checked as

well—even if the motives were retaliatory—the complaint needed to have alleged

some factual basis to conclude that it was plausible, not merely possible, that such

a check was not run. The facts in the complaint do not meet the Century Aluminum

standard of tending to exclude the alternative plausible explanation that the officers

were aware of Rueda Vidal’s probable immigration status when they seized and

arrested her. 729 F.3d at 1108.

Defendants are therefore entitled to qualified immunity on the Fourth

Amendment claim, as Rueda Vidal has not alleged facts sufficient to plausibly, not

merely possibly, allege a violation of a clearly established right. Because our

holding is sufficient to dismiss the claim as now pleaded, we do not reach the issue

of whether Bivens applies here under Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).

In the district court, Rueda Vidal requested leave to amend if her complaint

were dismissed. That request was not ruled upon as to the claims before us, which

were not dismissed. As it is possible that an amendment might state a plausible

claim incorporating the factual allegations in the complaint, we remand for the

4 consideration of any motion for leave to amend the complaint.

REVERSED and REMANDED.

5