NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 29 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASON SHELTON, No. 20-55036 20-55724 Plaintiff-Appellant,

v. D.C. No. 5:18-cv-02167-SP

COUNTY OF SAN BERNARDINO; et al.,

MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Sheri Pym, Magistrate Judge, Presiding

Argued and Submitted June 10, 2021 Pasadena, California

Before: GRABER, CALLAHAN, and FORREST, Circuit Judges. Partial Dissent by Judge CALLAHAN

Plaintiff Jason Shelton appeals from the district court’s orders denying his

request to amend his complaint and granting summary adjudication against his

claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse

in part, vacate in part, and remand.

Amendment. The district court did not abuse its discretion in denying Shelton

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. leave to amend his complaint under Federal Rule of Civil Procedure 16’s good-cause

standard, which applies because the district court had issued a case scheduling order.

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Even

assuming that Shelton did not learn the unknown deputies’ identities until July 16,

2019, he was not diligent in seeking to amend his complaint to name these parties

after learning that information. See id. (“If [the party seeking amendment] was not

diligent, the inquiry should end.”). In fact, he did not move to amend until

Defendants filed their dispositive motions on October 1—seven months after the

scheduling order’s deadline.

Trespass. The district court did not misstate California law or otherwise err in

granting summary judgment for the County on Shelton’s trespass claim because,

after the County demonstrated a lack of admissible evidence supporting Shelton’s

claim, Shelton failed to “provide affidavits or other sources of evidence that set forth

specific facts showing that there is a genuine issue for trial.” Devereaux v. Abbey,

263 F.3d 1070, 1076 (9th Cir. 2001) (en banc) (internal quotation marks and citation

omitted).

California’s Bane Act. The district court erred in granting summary judgment

against Shelton’s Bane Act claim because, viewing the disputed facts in the light

most favorable to Shelton, including that Detective Hamilton aimed his gun at

Shelton despite knowing that Shelton was unarmed, we cannot say that such force is

2 objectively reasonable as a matter of law. See Robinson v. Solano Cnty., 278 F.3d

1007, 1014 (9th Cir. 2002) (en banc); see also Reese v. Cnty. of Sacramento, 888

F.3d 1030, 1044 (9th Cir. 2018) (“[T]he elements of the excessive force claim under

[the Bane Act] are the same as under § 1983.” (internal quotation marks omitted)).

Although Shelton did not allege in his complaint that Detective Hamilton pointed a

gun at him, and the video footage of the incident nearly forecloses the possibility

that this transpired at any point during the encounter, see Scott v. Harris, 550 U.S.

372, 380 (2007), Shelton testified that such aiming occurred and, at oral argument,

the County conceded that there is a moment when Hamilton is out of frame and

could have raised his gun toward Shelton.

Assault. As the district court concluded that Shelton’s assault claim also failed

because the force Hamilton used was objectively reasonable as a matter of law, we

vacate the district court’s grant of summary judgment on Shelton’s assault claim.

See Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272 (1998).

Costs. Because Defendants are no longer the prevailing party, we vacate the

district court’s award of costs. See Fed. R. Civ. P. 54(d). Each party shall bear its

own costs on appeal.

AFFIRMED in part, REVERSED in part, VACATED in part, and

REMANDED for further proceedings consistent with this memorandum

disposition.

3

FILED

Shelton v. County of San Bernardino, Nos. 20-55036, 20-55724

JUN 29 2021

CALLAHAN, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

With respect to Shelton’s excessive-force claim under California’s Bane

Act, the majority notes only that Detective Hamilton may have pointed a gun at

Shelton, and that pointing a gun at an unarmed person can constitute excessive

force. Be that as it may, even when officers use force, we must still assess whether

their actions were “objectively reasonable in light of the facts and circumstances

confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989). Here, Shelton

was visibly agitated and running toward the officers’ vehicle with an object in his

hand. Upon his approach, Detective Hamilton allegedly raised his gun and pointed

it at Shelton for a “millisecond” before lowering it, where it remained for the rest

of the encounter. Under these circumstances, and in keeping with our duty to view

the situation through the eyes of a reasonable officer, “rather than with the 20/20

vision of hindsight,” id. at 396, I would hold that Detective Hamilton’s minimal

use of force was reasonable as a matter of a law. I would therefore affirm in full

the district court’s order granting summary judgment in the County’s favor.