NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 25 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KYLE CHRISTOPHER ZOELLNER, No. 23-15505

Plaintiff-Appellant, D.C. No. 3:18-cv-04471-JSC

v.

MEMORANDUM*

CITY OF ARCATA; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Jacqueline Scott Corley, Magistrate Judge, Presiding

Argued and Submitted June 10, 2024 San Francisco, California

Before: NGUYEN, R. NELSON, and BRESS, Circuit Judges.

This appeal is about the arrest and subsequent prosecution of Appellant Kyle

Zoellner for murder. After charges were dropped for a lack of probable cause,

Zoellner sued the City of Arcata and several of its officials and police officers

(collectively Defendants). The district court entered judgment for Defendants. We

have jurisdiction to review that judgment. See 28 U.S.C. § 1291. Because the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. district court reached the correct result, we affirm.

1. On appeal are three 42 U.S.C. § 1983 claims (unlawful arrest, malicious

prosecution, and inadequate medical care), a Monell claim, and defamation claims

related to Detective Dokweiler’s probable cause statement and Chief Chapman’s

press statement.1 We review a grant of summary judgment, as well as a court’s

probable cause determination, de novo. San Jose Christian Coll. v. City of Morgan

Hill, 360 F.3d 1024, 1029 (9th Cir. 2004) (summary judgment); United States v.

Garza, 980 F.2d 546, 550 (9th Cir. 1992) (probable cause).

2. Zoellner’s unlawful arrest and malicious prosecution claims fail because he

has not shown any genuine issue of fact as to whether there was probable cause. See,

e.g., Dubner v. City & County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001)

(proof of an unlawful arrest claim requires lack of probable cause); see also Conrad

v. United States, 447 F.3d 760, 767 (9th Cir. 2006) (proof of a malicious prosecution

claim requires lack of probable cause). Probable cause is a low standard and only

requires the “fair probability or substantial chance” that the suspect has committed

1 Zoellner also alleges that the district court exhibited judicial bias and abused its discretion by denying him leave to amend his complaint and his requests for discovery sanctions. These claims fail. Zoellner’s identified reasons for judicial bias—the district court’s legal decisions and litigation management—are not viable bases for a judicial bias claim. See, e.g., Liteky v. United States, 510 U.S. 540, 551 (1994). And we find no abuse of discretion in the district court’s denial of sanctions. See Unigard Sec. Ins. Co. v. Lakewood Engineering & Mfg. Corp., 982 F.2d 363, 367, 369 (9th Cir. 1992).

2 a crime. United States v. Patayan Soriano, 361 F.3d 494, 505 (9th Cir. 2004)

(quoting United States v. Bishop, 264 F.3d 919, 924 (9th Cir. 2001)).

Here, ample undisputed evidence supports a “fair probability” that Zoellner

may have committed the crime. Zoellner was identified by witnesses at the scene as

the “stabber” and his clothes were covered in blood. The blood pattern on Zoellner’s

clothes was not consistent with his own nosebleed. Zoellner also admitted to a

physical fight that night with the victim, which was corroborated by an eyewitness.

Additionally, a kitchen knife was found at the scene, and Zoellner worked as a chef.

3. Zoeller’s deliberate indifference to serious medical needs claim fails

because Defendants have qualified immunity. To assess qualified immunity for a

deliberate indifference claim arising before April 2018, “we apply the current

objective deliberate indifference standard to analyze whether there was a

constitutional violation, and ‘concentrate on the objective aspects of the [pre-

Gordon] constitutional standard’ to evaluate whether the law was clearly

established.” Sandoval v. County of San Diego, 985 F.3d 657, 672 (9th Cir. 2021)

(quoting Horton by Horton v. City of Santa Maria, 915 F.3d 592, 600 (9th Cir.

2019)). Here, there was no clearly established violation of Zoellner’s constitutional

rights. These facts are not as extreme as those in Sandoval or those cases on which

Sandoval relies. While Zoellner was not taken to the hospital for at least an hour

after Officer Nilsen detained him, Zoellner at first refused medical treatment. And

3 shortly after Zoellner requested medical treatment, Officer Nilsen took him to the

hospital. The hospital medically cleared Zoellner, and his medical release showed

he only had facial lacerations and swelling.

4. Zoellner’s defamation claim against Detective Dokweiler is based on his

probable cause statement filed with the court that other witnesses had seen Zoellner

stab the victim. This defamation claim fails because the allegedly defamatory

statement is protected under California’s litigation privilege. See Cal. Civ. Code

§ 47. Section 47 designates any statement made (a) “[i]n the proper discharge of an

official duty” and (b) in any “judicial proceeding” as privileged. Detective

Dokweiler’s statement to the superior court is protected because it was “made in

connection with a judicial proceeding.” Pech v. Doniger, 290 Cal. Rptr. 3d 471, 488

(Cal. Ct. App. 2022).

Zoellner alleges that Chief Chapman defamed him in a press statement where

Chapman said that it was “a white male who stabbed and killed a black male.”

Because of this, Chapman thought it “prudent and logical to look at race as an issue.”

This statement is not defamatory because there is no evidence that it was causally

linked to Zoellner’s claimed actual damages. See Price v. Stossel, 620 F.3d 992, 998

(9th Cir. 2010). We agree with the district court that Zoellner suffered his claimed

injuries “simply because of the charges that had been filed against him.” Zoellner

v. City of Arcata, 588 F. Supp. 3d 979, 1009 (N.D. Cal. 2022). No evidence suggests

4 that Chief Chapman’s statement resulted in any of Zoellner’s claimed actual

damages.

5. Finally, Zoellner’s Monell claim fails. The district court did not abuse its

discretion in denying Zoellner’s request for leave to amend for a fifth time. See, e.g.,

Rich v. Shrader, 823 F.3d 1205, 1209 (9th Cir. 2016) (“[W]hen the district court has

already afforded the plaintiff an opportunity to amend the complaint, it has wide

discretion in granting or refusing leave to amend after the first amendment.”).

Zoellner’s Monell claim also fails on the merits. Monell liability exists when a

violation of a federally protected right is attributable to (1) an express official policy;

(2) a pervasive practice or custom; (3) a failure to train; or (4) the decision or act of

a final policymaker. Horton, 915 F.3d at 602–03. Zoellner identifies no error in the

district court’s decision limiting his Monell claim to only a policymaker ratification

theory due to repeated pleading deficiencies. As a result, only the fourth factor is at

issue, and it fails because Zoellner does not identify plausible facts demonstrating

that the defendants had final policymaking authority over Zoellner’s prosecution or

knowledge of the alleged constitutional violation. See Christie v. Iopa, 176 F.3d

1231, 1238–40 (9th Cir. 1999).

AFFIRMED.

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