NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 21 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

J. AGUIRRE; et al., No. 23-55315

Plaintiffs-Appellants, D.C. No. 2:22-cv-07435-MWF-JEM v.

ALEJANDRO VILLANUEVA; et al., MEMORANDUM*

Defendants-Appellees,

and

SHEILA KEUHL,

Defendant.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted February 12, 2024** Pasadena, California

Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges.

Plaintiffs are pre-trial detainees in Los Angeles County who allege that they

* 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). are harmed by their placement and retention in custody because they are too poor

to pay cash bail. They brought a putative class action suit against the former and

current Los Angeles County Sheriff (“Sheriff Defendants”), as well as several

members of the Los Angeles County Board of Supervisors (“Supervisor

Defendants”) (collectively, “Defendants”).1 The district court dismissed the

Plaintiffs’ Second Amended Complaint on two grounds: 1) that Plaintiffs could

not adequately plead that the Defendants were the proximate cause of their alleged

injury, and 2) that Plaintiffs’ claims against the Supervisor Defendants are barred

by legislative immunity. We have jurisdiction under 28 U.S.C § 1291. We review

de novo the district court’s dismissal for failure to state a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6), Steckman v. Hart Brewing, Inc., 143 F.3d 1293,

1295 (9th Cir. 1998), and for lack of subject matter jurisdiction pursuant to Rule

12(b)(1), Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015). We affirm.

1. Plaintiffs fail to adequately plead that the Supervisor Defendants are

the proximate cause of their alleged injury of being held on excessive bail in

violation of the Eighth Amendment. “[A] public official is liable under § 1983

only if he causes the plaintiff to be subjected to a deprivation of his constitutional

1 The district court did not have jurisdiction over the Sheriff Defendants because the Sheriff Defendants were never served. Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (“A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed.R.Civ.P. 4.”) (citation omitted). They are not parties to this appeal.

2 rights.” Baker v. McCollan, 443 U.S. 137, 142 (1979) (quotation marks and

citation omitted) (emphasis in original). Plaintiffs’ bail amounts are determined by

countywide bail schedules that are prepared and adopted by the superior court

judges in each county. Cal. Pen. Code § 1269b(c); see also Galen v. Cnty. of Los

Angeles, 477 F.3d 652, 663 (9th Cir. 2007) (rejecting argument that officers in

sheriff’s department were actual and proximate cause of allegedly excessive bail).

For some offenses, the bail schedule requires judges or magistrates to exercise their

discretion in setting bail. Cal. Pen. Code § 1275. Plaintiffs’ Second Amended

Complaint does not include any allegations as to what role the Supervisor

Defendants play in this statutory regime.

The Second Amended Complaint merely alleges that the Sheriff Defendants

are holding Plaintiffs in custody on cash bail set at an amount they cannot afford to

pay, in violation of the Eighth Amendment, and that the Supervisor Defendants are

liable for this “wrongful conduct” because “they caused it, ratified it, condoned it,

or otherwise made it possible, by their actions and/or inactions, and by a willful

failure to fund policies that might correct and prevent constitutional violations, and

caused and/or created LASD policies, practices, procedures, and/or customs, that

caused the LASD sheriff’s and officers’ unconstitutional conduct.” We need not

reach the causation issue with respect to the Sheriff Defendants, who are not

parties to this appeal. But even if we agreed that the Sheriff Defendants could be

3 held liable under §1983 for enforcing the countywide bail schedule, there is still a

causal step separating the Supervisor Defendants from that alleged “wrongful

conduct,” because there are no allegations that the Supervisor Defendants play any

role in setting, approving, ratifying, or enforcing the bail schedule.

2. Plaintiffs’ claims against the Supervisor Defendants are also barred by

legislative immunity. See Bogan v. Scott–Harris, 523 U.S. 44, 49 (1998)

(recognizing that local legislators are “absolute[ly] immune[e] from suit under

§ 1983 for their legislative activities”). 2

We consider four factors in determining whether an act is legislative in

character and effect, thereby subjecting it to legislative immunity: “(1) whether the

act involves ad hoc decisionmaking, or the formulation of policy; (2) whether the

act applies to a few individuals, or the public at large; (3) whether the act is

formally legislative in character; and (4) whether it bears all the hallmarks of

traditional legislation.” Cmty. House, Inc. v. City of Boise, 623 F.3d 945, 960 (9th

Cir. 2010) (citing Kaahumanu v. Cnty. of Maui, 315 F.3d 1215, 1220 (9th Cir.

2003)). Each factor weighs in favor of applying legislative immunity here.

Plaintiffs allege that the Supervisor Defendants 1) willfully fail to fund policies

2 Legislative immunity applies to lawmakers sued in their individual capacities. See Schmidt v. Contra Costa Cnty., 693 F.3d 1122, 1131 n.10 (9th Cir. 2012). To the extent that the complaint purports to sue the Supervisor Defendants in their official capacities, state officials acting in their official capacities are not persons subject to suit under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

4 that might prevent constitutional violations, 2) create the Sheriff’s policies and

customs that cause the Sheriff’s unconstitutional conduct, and 3) fail in their duty

to train police in proper policing and jail procedures. Plaintiffs assert that these are

“administrative acts,” rather than legislative acts, but that is not a well-pleaded

factual allegation. Funding the Sheriff’s Department and creating its policies are

“discretionary, policymaking decision[s] implicating the budgetary priorities of the

city.” Kaahumanu, 315 F.3d at 1223 (quoting Bogan, 523 U.S at 55–56).

Accordingly, the Supervisor Defendants are entitled to legislative immunity.

3. The district court, having already provided Plaintiffs two

opportunities to amend their complaint to fix pleading deficiencies related to

causation, acted within its discretion in dismissing the Second Amended Complaint

with prejudice. The district court referred to the factors set forth in Foman v.

Davis, 371 U.S. 178 (1962), and correctly concluded that amendment would be

futile because it would not be “possible for Plaintiffs to allege that the Supervisor

Defendants . . . are a proximate cause of Plaintiffs’ constitutional harm . . . .”

AFFIRMED.

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