FILED

NOT FOR PUBLICATION

FEB 23 2024

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREAR STEPHEN SCHMID; ASTRID No. 23-15314

SCHMID,

D.C. No. 3:21-cv-01920-TLT Plaintiffs-Appellants,

v. MEMORANDUM*

COUNTY OF SONOMA, by and through its Permit and Resource Management Department,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Trina Thompson, District Judge, Presiding

Argued and Submitted February 15, 2024 San Francisco, California

Before: S.R. THOMAS, BEA, and CHRISTEN, Circuit Judges.

Plaintiffs-Appellants Frear Stephen Schmid and Astrid Schmid (the

Schmids) appeal a district court’s dismissal of their section 1983 lawsuit against

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-Appellee the County of Sonoma. The district court had federal question

jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

We AFFIRM the district court’s dismissal of all claims with prejudice and without

leave to amend. Because the parties are familiar with the factual and procedural

history of the case, we need not recount it here.

“We review de novo the dismissal of a claim pursuant to Federal Rule of

Civil Procedure 12(b)(6) . . . .” Bridge Aina Le’a, LLC v. Land Use Comm’n, 950

F.3d 610, 624 (9th Cir. 2020). “[W]e may affirm [a Rule 12(b)(6) dismissal] based

on any ground supported by the record.” Johnson v. Riverside Healthcare Sys.,

LP, 534 F.3d 1116, 1121 (9th Cir. 2008). “We review for abuse of discretion a

district court’s dismissal with prejudice and without leave to amend.” Benavidez v.

County of San Diego, 993 F.3d 1134, 1141–42 (9th Cir. 2021). “Dismissal with

prejudice and without leave to amend is not appropriate unless it is clear on de

novo review that the complaint could not be saved by amendment.” Webb v.

Trader Joe’s Co., 999 F.3d 1196, 1204 (9th Cir. 2021) (quoting Eminence Cap.,

LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam)). In

reviewing questions of state law, “[t]he district court’s interpretation . . . is

reviewed de novo.” Jackson v. Gates, 975 F.2d 648, 654–55 (9th Cir. 1992).

2 The Schmids do not adequately plead a basis to hold the County of Sonoma

liable under section 1983. A “municipality cannot be held liable under [section]

1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs. of New

York, 436 U.S. 658, 691 (1978). Instead, municipalities can be held liable only

when there is “a direct causal link between a municipal policy or custom and the

alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385

(1989).

On appeal,1 the Schmids ask us to decide whether, under the Supreme

Court’s decisions in City of St. Louis v. Praprotnik, 485 U.S. 112 (1988)

(plurality), and Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), they can hold

the County of Sonoma liable for a single decision: issuing the Schmids’ neighbor,

the Two Rock Fire Department, a permit for their new building and parking lot

subsequent to allegedly inadequate notice.

They cannot. Although, under Praprotnik and Pembaur, municipalities can

be held liable for “single decision[s],” the Schmids must also “establish that the

individual who committed the constitutional tort was an official with ‘final

1 On appeal, the Schmids abandon their practice or custom claims and focus their arguments solely on whether the County of Sonoma can be held liable for a single decision of “a final policymaking authority.” Ulrich v. City & County of San Francisco, 308 F.3d 968, 984–85 (9th Cir. 2002). 3 policy-making authority’ and that the challenged action itself thus constituted an

act of official governmental policy.” Gillette v. Delmore, 979 F.2d 1342, 1346–47

(9th Cir. 1992). The Schmids theorize that the Director of Sonoma County’s

Permit and Resource Management Department (PRMD), Tennis Wick, is “an

authorized official policy maker for the County and [] the ultimate/final policy

maker for [PRMD]” and “implemented, furthered, and allowed the conduct and

policy” that injured the Schmids.

The Schmids do not present a plausible theory as to how, under state law,

Wick is a final policy maker. For the purposes of Monell liability, it does not

matter whether Wick was the final decision maker in this particular case. Rather,

the question of whether Wick holds final policymaking authority “is a question of

state law.” Pembaur, 475 U.S. at 483. The Schmids assert that their alleged

interactions with Wick establish that Wick holds final policymaking authority.

However, the district court properly concluded that the Schmids’ “[s]tatements of

personal knowledge based on interactions not germane to the current action do not

constitute plausible factual assertions.” See Lytle v. Carl, 382 F.3d 978, 982 (9th

Cir. 2004).

The Schmids’ allegations that Wick is vested with the discretion to issue a

use permit and waive a hearing are insufficient, they must also show Wick is

4 “responsible for establishing final policy with respect to the subject matter in

question.” Pembaur, 475 U.S. at 483 & n.12 (emphasis added). Under Sonoma’s

County Code, Wick’s decisions are appealable to two higher bodies. Sonoma, Cal.

County Code § 26-93-040(b) (“Any interested person may appeal any . . .

permit . . . [issued] by the planning director . . . to the board of zoning adjustments

or the planning commission.”). And the Schmids concede that Wick reports to the

County Board of Supervisors. The amended complaint does not point to any state

law that vests Wick with final policymaking authority over Sonoma County’s land

use policies (to give one example, Wick cannot change or repeal the amended

complaint’s cited sections of the County Code that create setback requirements).

For these reasons, the Schmids failed to plead facts sufficient to state a municipal

liability claim.

In the alternative, the Schmids argue that either Wick’s actions were ratified

by the County, or the County delegated its final policymaking authority to Wick.

The amended complaint makes a single vague reference to ratification in the

context of a related state court action and does not mention delegation. The

amended complaint does not “contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

5 Finally, the district court did not abuse its discretion when it dismissed the

case without prejudice and leave to amend. The Schmids’ amended complaint

repeats the errors that led to the original complaint’s dismissal. The amended

complaint does not include a “short and plain statement of the claim.” Fed. R. Civ.

P. 8(a)(2). Further, amendment would be futile, as the Schmids have not presented

a legal theory that establishes municipal liability. As “[t]he district court’s

discretion to deny leave to amend is particularly broad where [a] plaintiff has

previously amended the complaint,” we decline to disturb its decision. Ascon

Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989).

Because the Schmids failed to plead facts sufficient to state a municipal

liability claim, we need not—and do not—resolve any other issue urged by the

parties, including the merits of the Schmids’ constitutional claims.

AFFIRMED.

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