FILED
NOT FOR PUBLICATION JUN 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN STEVEN SIMON, No. 10-15534
Plaintiff - Appellant, D.C. No. 2:09-cv-00701-MHM
v.
MEMORANDUM *
CITY OF PHOENIX; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
John Steven Simon appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging constitutional violations in
connection with an incident outside of the Maricopa Medical Center. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Sprewell v. Golden
*
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).
State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). We affirm in part, reverse in
part, and remand.
The district court properly dismissed Simon’s § 1983 claims against the
municipal defendants because Simon failed to allege that the constitutional
violations were the result of an official policy or custom. See Hart v. Parks, 450
F.3d 1059, 1071 (9th Cir. 2006) (municipal liability under § 1983 exists only for
constitutional violations occurring pursuant to an official government policy or
custom).
The district court properly dismissed Simon’s equal protection claim, as well
as his claims under 42 U.S.C. §§ 1981 and 1985(3), because Simon failed to allege
racial discrimination or any facts supporting the inference that he was otherwise
harshly singled out without rational purpose. See N. Pacifica LLC v. City of
Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (“In order to claim a violation of equal
protection in a class of one case, the plaintiff must establish that the [government
entity] intentionally, and without rational basis, treated the plaintiff differently
from others similarly situated.”); Sprewell, 266 F.3d at 989 (“[A]n indispensable
element of a claim under 42 U.S.C. § 1985(3) is some racial, or perhaps otherwise
class-based, invidiously discriminatory animus behind the conspirator’s
action . . . .” (citation and internal quotation marks omitted)); DeHorney v. Bank of
2 10-15534
Am. Nat’l Trust & Sav. Ass’n, 879 F.2d 459, 467 (9th Cir. 1989) (per curiam)
(§ 1981 claim requires proof of intentional or purposeful discrimination).
However, dismissal of Simon’s excessive force claim was improper because
Simon explicitly alleged that during the investigatory stop, defendant police
officers pushed him backwards from his seated position and tackled him, although
he was passive and providing no resistance, held him in place, and hit him with a
weapon, breaking his ribs. These allegations are sufficient to state an excessive
force claim. See Tekle v. United States, 511 F.3d 839, 844-45 (9th Cir. 2007)
(discussing factors for determining whether the force used was excessive,
including the need for and the severity of the force applied). The disputed and
inconsistent officer statements in the attachments to Simon’s complaint do not
warrant a contrary conclusion. Cf. Sprewell, 266 F.3d at 988-89 (plaintiff’s
attachments pled him “out of a claim” where they set forth uncontested facts that
effectively and persuasively rebutted the complaint’s conclusory allegations).
Accordingly, we remand for further proceedings on the excessive force claim.
Simon’s remaining contentions are unpersuasive.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
3 10-15534