NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 15 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TYRONE JOHNSON, an individual, No. 20-55186

Plaintiff-Appellant, D.C. No. 5:18-cv-01054-DMG-GJS v.

COUNTY OF SAN BERNARDINO, a MEMORANDUM* municipal entity; PAUL CASAS, an individual; DOES, 1 through 10, inclusive,

Defendants-Appellees.

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

Submitted October 13, 2021** San Francisco, California

Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges.

Tyrone Johnson appeals from the district court’s grant of summary judgment

to the County of San Bernardino and Sheriff’s Deputy Paul Casas in this civil-

rights action arising under 42 U.S.C. § 1983. As the facts are known to the parties,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). we repeat them only as necessary to explain our decision.

I

The district court did not abuse its discretion in denying Johnson’s Motion

for Leave to Amend (“MLA”). Cf. AE ex rel. Hernandez v. County of Tulare, 666

F.3d 631, 636 (9th Cir. 2012) (reviewing denial of leave to amend for abuse of

discretion).

The MLA, filed almost a year after the amendment cutoff date set by the

district court, was indisputably untimely. Thus, Johnson bore the burden of

establishing “good cause” for his MLA’s untimeliness, Fed. R. Civ. P. 16(b)(4),

which in turn required him to show he could not have filed a timely MLA despite

acting with “diligence,” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609

(9th Cir. 1992).

Casas and the County offered ample record evidence to show that Johnson

was not diligent, insofar as he “knew or should have known the facts and theories

raised by [his proposed] amendment” long before he filed his MLA.

AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 953 (9th Cir. 2006)

(quoting Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990)). For his

part, Johnson offered no credible explanation for why he could not have known,

well before October 2019, that he had been tased (as he sought to plead in his

proposed amended complaint) but never beaten by Casas (as he pleaded in his

2 original Complaint). As such, the district properly concluded that Johnson failed to

show “diligence”—and was therefore not entitled to an untimely amendment of his

Complaint. See Johnson, 975 F.2d at 609.

II

The district court did not err in granting Casas and the County’s Motion for

Summary Judgment (“MSJ”).

There is no doubt that the district court properly entered summary judgment

for Casas and the County on Johnson’s claims as actually pleaded in his

Complaint. The Complaint premised all of its claims on allegations that Casas

pulled Johnson over without probable cause, then beat him with repeated punches,

kicks, and strikes with a blunt metal object. Casas and the County presented

evidence that such allegations were entirely false, and Johnson conceded their

falsity in his own Opposition to the MSJ. Thus, the district court properly declined

to credit the Complaint’s allegations for purposes of ruling on the MSJ. See United

States v. Various Slot Machines on Guam, 658 F.2d 697, 701 (9th Cir. 1981)

(“[O]n a motion for summary judgment, a court is not compelled to give weight to

an allegation that is incontrovertibly demonstrated to be false.”). In turn, there was

no “genuine issue for trial,” and it was proper for the district court to grant

summary judgment for Casas and the County on all claims as framed in the

Complaint. Id.

3 Johnson is also unavailed by his argument that the district court, when ruling

on the MSJ, should have considered allegations outside the Complaint—namely,

Johnson’s allegations, raised in his Opposition to the MSJ, that Casas

improvidently and unlawfully tasered him. Where, as here, a plaintiff “fail[s] to

allege [a given] theory of liability” in his complaint, he “is barred from proceeding

on [such novel] theory . . . . at the summary judgment stage.” Coleman v. Quaker

Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000). Accordingly, it was proper for the

district court to decide the “MSJ solely on the allegations in the Complaint, not on

additional facts regarding Tasering beyond the scope of the Complaint.”

III

Finally, Johnson argues that he received ineffective assistance of counsel

(“IAC”) in the district court, and that he is therefore entitled to reversal of the

district court’s entry of summary judgment. This argument is legally incoherent:

As a plaintiff in a civil suit for monetary damages, where his physical liberty is not

at stake in the litigation, Johnson has no constitutional right to effective assistance

of counsel here. Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985) (per

curiam). From that, it necessarily follows that he cannot be entitled to reversal—or

any remedy—on putative IAC grounds.

AFFIRMED.

4