FILED

NOT FOR PUBLICATION

MAR 8 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIFFANY PHOMMATHEP; JOHN No. 22-15132 PHOMMATHEP, Sr.; J. P., a minor, by and through his guardian ad litem Tiffany D.C. No. Phommathep; J. P., a minor, by and 2:18-cv-02916-TLN-DMC through his guardian ad litem Tiffany Phommathep; N. P., a minor, by and through his guardian ad litem Tiffany MEMORANDUM* Phommathep,

Plaintiffs-Appellants,

v.

COUNTY OF TEHAMA; TEHAMA

COUNTY SHERIFFS’ OFFICE; DAVE

HENCRATT, Sheriff, in his individual and official capacity as Sheriff for the County of Tehama Sheriff Department; PHIL JOHNSTON, Assistant Sheriff, in his individual and official capacity as Assistant Sheriff for the County of Tehama Sheriff’s Department,

Defendants-Appellees,

and

RANCHO TEHAMA ASSOCIATION,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

INC.,

Defendant.

A. H., a Minor, by and through his No. 22-15133 guardian ad litem Maria Anjelica Monroy, D.C. No. Plaintiff-Appellant, 2:18-cv-02917-TLN-DMC

v.

COUNTY OF TEHAMA; TEHAMA

COUNTY SHERIFFS’ OFFICE; DAVE

HENCRATT, Sheriff, in his individual and official capacity as Sheriff for the County of Tehama Sheriff Department; PHIL JOHNSTON, Assistant Sheriff, in his individual and official capacity as Assistant Sheriff for the County of Tehama Sheriff’s Department,

Defendants-Appellees,

and

RANCHO TEHAMA ASSOCIATION,

INC.,

Defendant.

JAMES WOODS, Jr.; JAMES WOODS, No. 22-15134 Sr., D.C. No. Plaintiffs-Appellants, 2:18-cv-02918-TLN-DMC

2 v.

COUNTY OF TEHAMA; TEHAMA

COUNTY SHERIFFS’ OFFICE; DAVE

HENCRATT, Sheriff, in his individual and official capacity as Sheriff for the County of Tehama Sheriff Department; PHIL JOHNSTON, Assistant Sheriff, in his individual and official capacity as Assistant Sheriff for the County of Tehama Sheriff’s Department,

Defendants-Appellees,

and

RANCHO TEHAMA ASSOCIATION,

INC.,

Defendant.

TROY MCFADYEN, in his Individual No. 22-15135 Capacity, and as Heir at Law and Successor in Interest to Michelle D.C. No. McFadyen, Deceased; PHILLIP BOW, as 2:18-cv-02912-TLN-DMC Heir at Law and Successor in Interest to Michelle McFadyen, Deceased; SIA BOW, as Heir at Law and Successor in Interest to Michelle McFadyen, Deceased,

Plaintiffs-Appellants,

v.

COUNTY OF TEHAMA; TEHAMA

3

COUNTY SHERIFFS’ OFFICE; DAVE

HENCRATT, Sheriff, in his individual and official capacity as Sheriff for the County of Tehama Sheriff Department; PHIL JOHNSTON, Assistant Sheriff, in his individual and official capacity as Assistant Sheriff for the County of Tehama Sheriff’s Department,

Defendants-Appellees,

and

RANCHO TEHAMA ASSOCIATION,

INC.,

Defendant.

MICHAEL ELLIOTT, Heir and Law and No. 22-15136 Successor in Interest to Daniel Lee Elliott II Deceased, and Diana Steele, Deceased; D.C. No. G. E., a Minor, by and through his 2:18-cv-02927-TLN-DMC Guardian ad Litem, Alma Feitelberg, Heir at Law and Successor in Interest to Daniel Lee Elliott II, Deceased, and Diana Steele, Deceased guardian ad litem Alma Feitelberg; M. E., a Minor, by and through her Guardian ad Litem, Latisha Cornwall, Heir at Law and Successor in Interest to Daniel Lee Elliott II, Deceased, and Diana Steele, Deceased guardian ad litem Latisha Cornwall,

Plaintiffs-Appellants,

4 v.

COUNTY OF TEHAMA; TEHAMA

COUNTY SHERIFFS’ OFFICE; DAVE

HENCRATT, Sheriff, in his individual and official capacity as Sheriff for the County of Tehama Sheriff Department; PHIL JOHNSTON, Assistant Sheriff, in his individual and official capacity as Assistant Sheriff for the County of Tehama Sheriff’s Department,

Defendants-Appellees,

and

RANCHO TEHAMA ASSOCIATION,

INC.,

Defendant.

MARCIA MCHUGH, Heir at Law and No. 22-15137 Successor in Interest to Joseph McHugh, Deceased; GRACE MCHUGH, Heir at D.C. No. Law and Successor in Interest to Joseph 2:19-cv-02292-TLN-DMC McHugh, Deceased,

Plaintiffs-Appellants,

v.

COUNTY OF TEHAMA; TEHAMA

COUNTY SHERIFFS’ OFFICE; DAVE

HENCRATT, Sheriff, in his individual and official capacity as Sheriff for the County

5 of Tehama Sheriff Department; PHIL JOHNSTON, Assistant Sheriff, in his individual and official capacity as Assistant Sheriff for the County of Tehama Sheriff’s Department,

Defendants-Appellees,

and

RANCHO TEHAMA ASSOCIATION,

INC.,

Defendant.

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

Argued and Submitted February 9, 2023 San Francisco, California

Before: McKEOWN, BYBEE, and BUMATAY, Circuit Judges.

This case arises from a mass shooting that took place in 2017 in Rancho

Tehama, California. The shooting, perpetrated by a resident of Rancho Tehama

named Kevin Neal, resulted in the death of five people and the injury of at least

twelve more. Plaintiffs are individuals who were injured in the shooting and

survivors of those who were killed. Included among Defendants are Tehama

6 County, the Tehama County Sheriff’s Office, and the Tehama County Sheriff and

Assistant Sheriff.

In Plaintiffs’ complaints,1 they alleged three causes of action under 42

U.S.C. § 1983: (1) Defendants violated Plaintiffs’ right to due process by

enhancing the danger that the perpetrator of the shooting presented to them; (2)

Defendants withheld law enforcement services from Plaintiffs in violation of the

Equal Protection Clause of the Fourteenth Amendment; and (3) Defendants

inadequately trained and supervised their officers, thus creating municipal liability

under Monell v. Department of Social Services of New York, 436 U.S. 658 (1978).

The district court dismissed all three causes of action for failure to state a claim.2

We have jurisdiction under 28 U.S.C. § 1291 and review de novo the district

court’s order granting a motion to dismiss. Judd v. Weinstein, 967 F.3d 952, 955

(9th Cir. 2020). We affirm.

1. “As a general matter . . . a State’s failure to protect an individual

against private violence . . . does not constitute a violation of the Due Process

Clause.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 197

1 Plaintiffs filed six separate actions, which have been consolidated for the purposes of this appeal. 2 The district court initially dismissed Plaintiffs’ equal protection and Monell claims with leave to amend. The district court entered final judgment on those claims at Plaintiffs’ request. 7 (1989). However, under what we have called the “state-created danger doctrine,”

the state may be held liable when “government employees ‘affirmatively place the

plaintiff in a position of danger, that is, where their actions create or expose an

individual to a danger which he or she would not have otherwise faced.’”

Hernandez v. City of San Jose, 897 F.3d 1125, 1133 (9th Cir. 2018) (cleaned up)

(quoting Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006)). To

plead a claim of state-created danger, Plaintiffs must show that a government

employee took an “affirmative act” that “create[d] an actual, particularized

danger.” Id. This danger must be one that the plaintiff “would not otherwise have

faced.” Martinez v. City of Clovis, 943 F.3d 1260, 1272 (9th Cir. 2019) (quoting

Kennedy, 439 F.3d at 1061). In other words, the affirmative act must be a but-for

cause of Plaintiffs’ injuries. See id. (discussing causal link between defendant’s

affirmative conduct and plaintiff’s abuse); Kennedy, 439 F.3d at 1067 (discussing

cases in which “the state’s action made plaintiffs vulnerable to a particularized

danger they would not have faced but for that action”).

Plaintiffs argue that their complaint alleges two affirmative acts that

increased the risk that Neal posed to his neighbors. First, when responding to a

call from Neal’s neighbors, Defendants allegedly told Neal that he could “continue

to own and discharge firearms in the community.” Second, in other conversations

8 with Neal, Defendants allegedly declined to investigate illegal firearm use by his

neighbors. Plaintiffs claim these statements “communicated to Neal, both

explicitly . . . and implicitly, that he could recklessly use and/or unlawfully possess

firearms with impunity.”

Neither interaction constitutes an affirmative act. Plaintiffs’ principal

support for their argument to the contrary, Martinez, 943 F.3d 1260, is

distinguishable. In Martinez, we found that police officers had committed

affirmative acts by making statements that could have provoked the plaintiff’s

boyfriend—who was also a police officer—into abusing her. Id. at 1272–73. The

police officers had described the plaintiff in derogatory terms, informed her

boyfriend that she had previously reported his abusive behavior, and praised the

boyfriend’s family. Id. We concluded that these acts were sufficient to provoke

the boyfriend into abusing the plaintiff and believing that he could continue to do

so with impunity. Id. Here, Plaintiffs have only pleaded that Defendants told Neal

that they would not arrest him or his neighbors for their firearm use. Without

additional supporting facts, declining to arrest an individual does not constitute an

affirmative act. See id. Such facts were present in Martinez, where the plaintiff

pleaded that police officers provoked her boyfriend by describing her in derogatory

terms, revealing her past police reports, and praising her boyfriend’s family. Id.

9 Similar facts are not present here. As a result, Plaintiffs have failed to satisfy the

affirmative act requirement.

Moreover, even if Plaintiffs had met the affirmative act requirement, they

have failed to plead a causal link between their injuries and Defendants’ conduct.

In Martinez, causation was clear. The police officers allegedly encouraged the

boyfriend to engage in the same kind of conduct that ultimately caused the

plaintiff’s injuries—domestic violence. See id. The temporal proximity between

the police officers’ statements and the plaintiff’s harm supported an inference of

causation, too; the boyfriend physically and sexually abused the plaintiff shortly

after the police officers left their home. Id. Here, Plaintiffs have—at

most—alleged that Defendants’ statements to Neal led him to believe that he

would not be arrested for reckless firearm use on and around his property. But

Plaintiffs were not injured by Neal’s reckless firearm use on or around his

property. Instead, they were injured by his intentionally violent acts throughout his

surrounding community. Without facts that connect Defendants’ affirmative acts

to the conduct that caused Plaintiffs’ injuries, Defendants’ claim fails for want of a

causal link.

2. Plaintiffs allege that Defendants discriminated against them by

providing inadequate police services to Rancho Tehama and by responding

10 ineffectively to calls reporting firearm offenses. To show that a policy is

discriminatory, a plaintiff must identify a “control group composed of individuals

who are similarly situated” that the state has treated differently. Gallinger v.

Becerra, 898 F.3d 1012, 1016 (9th Cir. 2018); see also Freeman v. City of Santa

Ana, 68 F.3d 1180, 1187 (9th Cir. 1995). Plaintiffs claim to have done so by

alleging that “[D]efendants discriminated against Rancho Tehama and its residents

compared to other communities within [D]efendants’ jurisdiction.” However,

Plaintiffs plead no facts to support this allegation. Plaintiffs do not even name

another community in their county, let alone plead any facts suggesting that

Defendants responded to those communities more effectively than they responded

to Rancho Tehama. Likewise, Plaintiffs do not plead that there were classes of

crimes that Defendants treated more seriously than firearms offenses. Plaintiffs’

conclusory allegations are insufficient to state a claim. See Beckington v. Am.

Airlines, Inc., 926 F.3d 595, 604 (9th Cir. 2019).

3. Plaintiffs concede that their Monell claim depends on their other

constitutional claims. Municipal liability under Monell is “contingent on a

violation of constitutional rights.” Scott v. Henrich, 39 F.3d 912, 916 (9th Cir.

1994). Plaintiffs’ underlying constitutional claims fail, so their Monell claim fails,

too.

11

AFFIRMED.

12