NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 8 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEFANIE CLUGSTON, Individually, and No. 22-55203 as Personal Representative of the Estate of Michael Clugston; FAITH HOPE D.C. No. CLUGSTON, individually, 8:21-cv-01832-JVS-ADS

Plaintiffs-Appellants,

MEMORANDUM*

v.

CITY OF GARDEN GROVE, a California Public Entity; TRAVIS HADDEN,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted February 15, 2023 University of San Diego

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

Stephanie and Faith Clugston (“Plaintiffs”) appeal the dismissal of their

Section 1983 action against the City of Garden Grove (the “City”) and police officer

Travis Hadden. Officer Hadden was engaged in a high-speed pursuit when the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. suspect’s car struck and killed the Plaintiffs’ husband and father, Michael

Clugston. Plaintiffs allege Hadden’s actions violate the substantive due process

afforded by the Fourteenth Amendment and that the City had a custom, policy or

practice that caused the constitutional injury. We review the dismissal of an action

for failure to state a claim de novo, Retail Prop. Tr. v. United Bd. of Carpenters &

Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014), and we affirm.

There was no error in dismissing the claim against Officer Hadden. The

Supreme Court clearly stated in County of Sacramento v. Lewis:

[W]e hold that high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressable by an action under § 1983.

523 U.S. 833, 854 (1998).

Plaintiffs argue that Lewis is distinguishable because here Hadden had

sufficient time to deliberate before engaging in the pursuit so a deliberate

indifference standard should apply. However, this circuit has also rejected the

argument that the factual circumstances of any particular police pursuit should be

examined to determine whether the officer had any time to deliberate. In Bingue v.

Prunchak, we noted this approach would “effectively ‘eviscerate the holding of

Lewis’ because under that reading courts would be free to reject the intent to harm

standard ‘whenever a judge or a jury could say, with the wisdom of hindsight, that

an officer engaged in a high-speed pursuit had ample time to deliberate.’” 512 F.3d

2 1169, 1176 (9th Cir. 2008) (quoting Helseth v. Burch, 258 F.3d 867, 871 (8th Cir.

2001) (en banc)). We went on to hold resolutely: “Lewis requires us to apply the

‘intent to harm’ standard to all high-speed chases.” Id. at 1177 (emphasis in

original). Plaintiffs concede their complaint did not and could not allege that Officer

Hadden had an intent to harm. Therefore, dismissal was appropriate.

The claim against the City was properly dismissed. Pursuant to Monell v.

Department of Social Services of New York, 436 U.S. 658, 690‒91 (1978), a local

government may be liable for constitutional torts committed by its employees

pursuant to municipal policy, practice or custom. Plaintiffs alleged the City failed

to adequately train its police officers on the proper conduct of high-speed pursuits,

allows pursuits for minor traffic violations, and failed to discipline officers who

“recklessly place innocent bystanders in harm’s way by initiating unjustifiable high-

speed pursuits.”

In such cases hinging on an individual officer’s conduct, the plaintiff must

establish both a deprivation of a constitutional right and that a municipal policy,

custom or practice was the cause in fact of that deprivation. City of Canton v. Harris,

489 U.S. 378, 385 (1989); see also Collins v. City of Harker Heights, 503 U.S. 115,

120‒21 (1992). As we explained in Quintanilla v. City of Downey, a public entity

cannot be liable under § 1983 “under a policy that can cause constitutional

deprivations, when the factfinder concludes that an individual officer, acting

3 pursuant to the policy, inflicted no constitutional harm to the plaintiff.” 84 F.3d 353,

355 (9th Cir. 1996). We therefore agree with our sister circuits which have held in

the specific context of police pursuits that there can be no municipal liability without

an underlying constitutional violation by the officers. See, e.g., Graves v. Thomas,

450 F.3d 1215, 1225 (10th Cir. 2006); Sitzes v. City of W. Memphis Ark., 606 F.3d

461, 470‒71 (8th Cir. 2010); Evans v. Avery, 100 F.3d 1033, 1039‒40 (1st Cir.

1996); S.P. v. City of Takoma Park, 134 F.3d 260, 272 (4th Cir. 1998); Scott v. Clay

Cnty., 205 F.3d 867, 879 (6th Cir. 2000). The district court correctly dismissed the

claim against the City because there was no underlying constitutional violation by

Officer Hadden.

AFFIRMED.

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