NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 14 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF TIMOTHY GENE SMITH, by No. 23-55074 his successor in interest Wyatt Allen Gunner Smith; WYATT ALLEN GUNNER SMITH, D.C. No. 3:16-cv-02989-WQH-MSB Plaintiffs-Appellants,

and MEMORANDUM*

SANDY LYNN SIMMONS,

Plaintiff,

v.

DANIEL O. ESCAMILLA, as an individual and on behalf of Legal Service Bureau, Inc.,

Defendant-Appellee,

and

SCOTT R. HOLSLAG; et al.,

Defendants.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted February 8, 2024

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

Before: WARDLAW, FRIEDLAND, and SUNG, Circuit Judges.

The Estate of Timothy Gene Smith and Wyatt Allen Gunner Smith

(collectively “Appellants”) appeal the district court’s grant of summary judgment

to Defendant Dan Escamilla in their 42 U.S.C. § 1983 action alleging conspiracy to

violate and violation of their Fourth and Fourteenth Amendment rights resulting

from the fatal shooting of decedent Smith at the hands of a San Diego Police

Department (SDPD) officer. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

1. The district court properly concluded that Escamilla did not act under

color of state law because “purely private conduct, no matter how wrongful, is not

within the protective orbit of section 1983.” Ouzts v. Md. Nat’l Ins. Co., 505 F.2d

547, 550 (9th Cir. 1974) (en banc).

In Ouzts, we held that bail bondsmen acting outside their statutory authority

are private actors, not state actors. Id. at 553. Here, Escamilla, a bail bondsman

and fugitive recovery agent, was tasked with recovering fugitive Janie Sanders

pursuant to a Missouri bail bond contract. With the help of Ismael Soto, Escamilla

traced Sanders and her boyfriend, decedent Smith, to the San Diego area, where

they contacted the SDPD with information regarding Smith and Sanders to “have

th[e] arrest effected by the police.” Although California law allows bail bondsmen

2 to arrest out-of-state fugitives if they first obtain a warrant, there is no suggestion

here that Escamilla and his colleagues did so. See Cal. Penal Code § 847.5.

Because Escamilla did not act pursuant to the power conveyed to him by statute,

Ouzts forecloses any contention that he himself is a state actor.1 See 505 F.2d at

553.

Nor did Escamilla engage in the “substantial degree of cooperative action”

in the challenged use of deadly force by law enforcement necessary to hold him

liable pursuant to a joint action theory. See Collins v. Womancare, 878 F.2d 1145,

1154 (9th Cir. 1989). Escamilla and Soto contacted local law enforcement,

informing them that Smith and Sanders were armed criminals with violent histories

and urging the police to intervene. Viewing the evidence in the light most

favorable to Appellants, Escamilla and Soto exaggerated the danger Smith and

Sanders posed with the express purpose of persuading the police to recover their

targets for them. The SDPD responded in full force, and Escamilla was on the

scene for one unsuccessful search, during which he provided officers with a

1 Even if Escamilla had been acting under statutory authority, Plaintiffs would also have to show that Escamilla exercised a “traditional state function.” See Collins v. Womancare, 878 F.2d 1145, 1150-51 (9th Cir. 1989) (addressing two-part test from Lugar v. Edmondson Oil Co., 457 U.S. 922, 928 (1982)). Plaintiffs likely could not do so under our reasoning in Ouzts. See Collins, 878 F.2d at 1153 (“[I]n Ouzts, we held that a bail bondsman does not exercise a ‘public function’ because he ‘is in the business in order to make money and is not acting out of a high-minded sense of devotion to the administration of justice’” (quoting Ouzts, 505 F.2d at 555)).

3 photograph of Smith and Sanders. But Escamilla was not present or otherwise

involved when Smith was ultimately shot and killed by an SDPD officer. Thus, he

cannot “be recognized as a joint participant in the challenged activity,” which here

was the use of deadly force by law enforcement. Id. (emphasis added) (quotation

marks omitted).

Appellants present no evidence of a preconceived plan or agreement

between the bondsmen and the SDPD to use force, nor does the record demonstrate

any further collaborative activity. Absent further cooperation, “complaining to the

police does not convert a private party into a state actor.” Id. at 1155. Therefore,

the “trial court correctly concluded that a finding of concerted action could not be

found on this record.” Peng v. Hu, 335 F.3d 970, 980 (9th Cir. 2003).

2. The district court properly concluded that Escamilla did not

proximately cause the SDPD officer’s use of deadly force. See Merritt v. Mackey,

827 F.2d 1368, 1371 (9th Cir. 1987) (requiring a showing of proximate cause to

establish § 1983 liability). Where a private actor’s conduct forms part of a causal

chain that leads to a state officials’ unconstitutional action, “[a]bsent some

showing that a private party had some control over state officials’ decision to

commit the challenged act, the private party did not proximately cause the injuries

stemming from the act.” Franklin v. Fox, 312 F.3d 423, 446 (9th Cir. 2002)

(brackets omitted) (quoting King v. Massarweh, 782 F.2d 825, 829 (9th Cir.

4 1986)). Here, Appellants do not present sufficient evidence to show that Escamilla

exercised any control over the law enforcement response to the bondsmen’s calls

generally or over the SDPD officer’s decision to employ deadly force in particular.

This record is insufficient to permit a reasonable inference that “private individuals

exercised control over the decisionmaking” of the police in committing the

challenged act. Mann v. City of Tucson, Dep’t of Police, 782 F.2d 790, 793 (9th

Cir. 1986).

AFFIRMED.

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