FILED

NOT FOR PUBLICATION

MAR 7 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC ANTHONY ALSTON, Jr., No. 21-15325

Plaintiff-Appellant, D.C. No. 2:18-cv-02420-TLN-CKD v.

COUNTY OF SACRAMENTO; SCOTT MEMORANDUM*

JONES, Sheriff; ERIC BUEHLER, Captain; CONNOR MILLIGAN, Sgt., #229; JESSE INIGUEZ, Deputy #91; EMILY BALL, Deputy, #823; MADRIAGO, Deputy, #1337; TRUMMEL, Deputy; RIVIERA, Deputy; KEN LLOYD, Deputy, #833,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Submitted March 3, 2023** San Francisco, California

* 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). Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges.

Eric Anthony Alston, Jr. appeals pro se from the district court’s judgment

dismissing his action alleging federal and state law claims against the County of

Sacramento (the “County”) and several of its Sheriff’s deputies and correctional

officials. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

dismissal under Federal Rule of Civil Procedure 12(b)(6), Hebbe v. Pliler, 627

F.3d 338, 341 (9th Cir. 2010), and the grant of summary judgment, Furnace v.

Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013). We affirm in part, reverse in part,

and remand.

1. The district court properly dismissed Alston’s equal protection claim

against Defendant Emily Ball because Alston “fail[ed] to plead sufficient facts to

raise a plausible inference that [Ball] acted with a ‘discriminatory intent’ based on

[Alston’s] sex.” Shooter v. Arizona, 4 F.4th 955, 960 (9th Cir. 2021) (citation

omitted, emphasis in the original).

2. The district court properly dismissed Alston’s procedural due process

claim against Ball because Alston’s allegation that Ball took his wrist brace at the

County jail and failed to return it “does not constitute a violation of the procedural

requirements” of the Fourteenth Amendment’s Due Process Clause where, as here,

“a meaningful postdeprivation remedy for the loss [was] available.” Hudson v.

2 Palmer, 468 U.S. 517, 533 (1984); see also Cal. Penal Code § 2656 (outlining

procedures by which a prisoner can petition the county superior court to have an

orthopedic appliance returned).

3. The district court properly dismissed Alston’s procedural due process

claim against Defendant Connor Milligan because Alston failed to plead

sufficiently to establish that Milligan was responsible for denying him access to the

phone for the three-hour period after his booking. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.”).

4. The district court properly dismissed Alston’s claim against the County

under Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978), because

Alston at most identified “isolated or sporadic incidents” of unconstitutional

conduct, but he did not plausibly allege “practices of sufficient duration, frequency

and consistency” to suggest that such “conduct has become a traditional method of

carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

5. The district court erred in dismissing Alston’s Fourth Amendment

excessive force, Bane Act, and state law battery and negligence claims against

Defendant Riviera because Alston plausibly alleged a sufficiently severe Fourth

3 Amendment intrusion when the complaint stated that Riviera ordered two officers

to forcibly throw Alston from his wheelchair. See Thompson v. Rahr, 885 F.3d

582, 586 (9th Cir. 2018) (elements of an excessive force claim). Alston also

plausibly alleged the “specific intent” element of a Bane Act claim and the “injury”

elements of battery and negligence claims. Reese v. County of Sacramento, 888

F.3d 1030, 1044–45 (9th Cir. 2018) (elements of a Bane Act claim); Beacon

Residential Cmty. Ass’n v. Skidmore, Owings & Merrill LLP, 327 P.3d 850, 853

(Cal. 2014) (elements of a negligence claim); Brown v. Ransweiler, 89 Cal. Rptr.

3d 801, 811 (Ct. App. 2009) (elements of a battery claim). Therefore, the district

court’s decisions on Alston’s excessive force, Bane Act, battery, and negligence

claims against Riviera are reversed and remanded for further proceedings.

6. The district court properly dismissed Alston’s Bane Act claim against

Defendant Trummel because Trummel’s alleged threats to put Alston in the patrol

car “by force or any means necessary” do not constitute excessive force, see Gaut

v. Sunn, 810 F.2d 923, 925 (9th Cir.1987) (holding a mere naked threat does not

constitute a constitutional wrong), nor does his alleged “swing,” particularly where

Alston does not allege that Trummel ever made any physical contact or caused any

injury, see Felarca v. Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018). Having failed

to allege an underlying constitutional violation by Trummel, Alston did not state a

4 claim under the Bane Act. See Williamson v. City of National City, 23 F.4th 1146,

1155 (9th Cir. 2022).

7. The district court properly dismissed Alston’s Fourteenth Amendment

claim against Ball, Milligan, and Riviera based on their alleged indifference to a

serious medical need because Alston’s alleged need for a wrist brace and knee

brace does not rise to the level of a “‘serious medical need,’ such that a ‘failure to

treat [the] prisoner’s condition could result in further significant injury or the

unnecessary and wanton infliction of pain.’” Russell v. Lumitap, 31 F.4th 729, 739

(9th Cir. 2022) (citation omitted). Similarly, the district court properly dismissed

Alston’s negligence claim against Milligan predicated on the same conduct: even

assuming that Milligan owed Alston a duty of care, Alston’s alleged injuries

(concussion and permanent nerve damage) were not a foreseeable result of

Milligan’s refusal to let Alston call his mother so she could bring him his knee

brace, and Milligan is statutorily immune from liability under Government Code §

845.6. See Lawson v. Superior Court, 103 Cal. Rptr. 3d 834, 844–45 (Ct. App.

2010).

8. The district court properly dismissed Alston’s Americans with

Disabilities Act (“ADA”) claim against the County. Even assuming that Alston

suffers from a “disability” for purposes of the ADA, Alston did not identify any

5 particular “service[], program[], or activit[y]” from which he was excluded during

his overnight stay in the County jail, Cohen v. City of Culver City, 754 F.3d 690,

694 (9th Cir. 2014) (quoting 42 U.S.C. § 12132), nor did he “show how the

accommodations offered by [the County jail],” in this case a wheelchair, “were not

reasonable,” Memmer v. Marin Cnty. Courts, 169 F.3d 630, 634 (9th Cir. 1999).

9. The district court properly dismissed Alson’s Unruh Act claim against

Ball and Madriago. “The Unruh Act only applies to ‘business establishments’ that

are ‘generally open to the public,’” Smith v. BP Lubricants USA Inc., 278 Cal.

Rptr. 3d 587, 596 (Ct. App. 2021) (citation omitted), and therefore does not extend

to alleged discrimination in either a police patrol car or a County jail.

10. The district court erred in dismissing Alston’s negligence claim against

Ball, Madriago, and the County. Having arrested Alston while he was “dependent,

subject to the[ir] control[,] . . . and unable to attend to his . . . own medical needs,”

Ball and Madriago were in a special relationship with Alston and “owe[d] [him] a

duty of reasonable care[.]” Frausto v. Dep’t of Cal. Highway Patrol, 267 Cal.

Rptr. 3d 889, 906 (Ct. App. 2020). Alston plausibly alleged that by failing to

fasten his seatbelt in the patrol car, Ball and Madriago breached their duty of care,

and that this breach “was a substantial factor in bringing about the harm” that

resulted when Ball repeatedly braked hard en route to the hospital. Id. at 909.

6 Because “[p]ublic entities are correspondingly liable for the negligent acts or

omissions of their employees acting within the scope of their employment[,]” id. at

903 (citing Cal. Gov. Code § 815.2), and neither Ball nor Madriago are statutorily

immunized for the alleged conduct, Alston also stated a claim for negligence

against the County. Therefore, the district court’s decision on Alston’s negligence

claim against Ball, Madriago, and the County is reversed and remanded for further

proceedings.

11. The district court properly granted summary judgment on Alston’s

excessive force, Bane Act, and battery claims because the video evidence

submitted in support of Lloyd’s motion “blatantly contradicted” Alston’s allegation

of Lloyd’s use of force such that “no reasonable jury could believe it.” Hughes v.

Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022) (internal quotation marks and

citation omitted). See Thompson, 885 F.3d at 586 (elements of an excessive force

claim); see also Reese, 888 F.3d at 1044 (“[T]he elements of the excessive force

claim under [the Bane Act] are the same as under § 1983[.]” (quoting Chaudhry v.

City of Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014))); Saman v. Robbins, 173

F.3d 1150, 1157 n.6 (9th Cir. 1999) (“A prima facie case for battery is not

established under California law unless the plaintiff proves that an officer used

unreasonable force against him to make a lawful arrest or detention.”).

7 12. The district court did not abuse its discretion by denying either of

Alston’s motions to amend because Alston failed to object to the magistrate’s order

recommending denying Alston’s first motion to amend and Alston did not

demonstrate that he had been diligent in seeking his second motion to amend. See

Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015) (“[W]e have held that ‘a

party who fails to file timely objections to a magistrate judge’s nondispositive

order with the district judge to whom the case is assigned forfeits its right to

appellate review of that order.’” (quoting Simpson v. Lear Astronics Corp., 77 F.3d

1170, 1174 (9th Cir. 1996) (emphasis removed)); Crowley v. Bannister, 734 F.3d

967, 977 (9th Cir. 2013) (standard of review); Johnson v. Mammoth Recreations,

Inc., 975 F.2d 604, 609 (9th Cir. 1992) (noting that the good cause standard

required to amend a pleading after the pretrial scheduling order’s deadline

“primarily considers the diligence of the party seeking the amendment”).

13. The district court did not abuse its discretion by merely warning Alston

that his inappropriate, obstreperous conduct during depositions could result in the

imposition of sanctions. Nor did it abuse its discretion in denying Alston’s motion

for recusal, which merely complained of adverse rulings by the magistrate judge.

See Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th Cir. 1999) (requirements for

recusal).

14. We reject as meritless Alston’s “Motion for Judicial Estoppel and

8 Judicial Notice” (Docket Entry No. 11).

The parties shall bear their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

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