FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES FLAVY COY BROWN, on
behalf of himself and those similarly No. 14-16458
situated,
Plaintiff-Appellant, D.C. No.
2:13-cv-01039-
v. JCM-PAL
RAWSON-NEAL PSYCHIATRIC
HOSPITAL; LEON RAVIN, M.D., OPINION
individually and in his official
capacity as Associate Medical
Director; ANURAG GUPTA, M.D.,
individually; SOUTHERN NEVADA
ADULT MENTAL HEALTH SERVICES;
CHELSEA SZKLANY, individually and
in her official capacity as
Administrator; NEVADA BUREAU OF
HEALTH CARE QUALITY AND
COMPLIANCE; NEVADA DIVISION OF
HEALTH, DIVISION OF MENTAL
HEALTH AND DEVELOPMENTAL
SERVICES; RICHARD WHITLEY, in his
official capacity as Administrator of
the Nevada Division of Public and
Behavioral Health, formerly Nevada
Division of Health and the Nevada
Division of Mental Health &
Developmental Services; NEVADA
DEPARTMENT OF HEALTH AND
2 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.
HUMAN SERVICES; MIKE WILLDEN,
in his official capacity as Director;
LINDA J. WHITE M.D., individually
and in her official capacity as
Statewide Psychiatric Medical
Director of the State of Nevada;
KYLE DEVINE, in his official
capacity as Bureau Chief of the
Nevada Bureau of Health Care
Quality and Compliance,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted August 8, 2016
San Francisco, California
Filed November 4, 2016
Before: J. Clifford Wallace and Susan P. Graber, Circuit
Judges, and Barbara M. G. Lynn,* Chief District Judge.
Opinion by Chief District Judge Lynn;
Dissent by Judge Graber
*
The Honorable Barbara M. G. Lynn, Chief District Judge for the
U.S. District Court for the Northern District of Texas, sitting by
designation.
BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP. 3
SUMMARY**
Civil Rights
The panel affirmed the district court’s dismissal, pursuant
to Fed. R. Civ. P. 41(b), of an action arising from plaintiff’s
discharge from the Rawson-Neal Psychiatric Hospital in Las
Vegas, Nevada, and his subsequent transportation to
Sacramento, California.
The district court initially dismissed plaintiff’s federal
constitutional and statutory claims without prejudice under
Fed. R. Civ. P. 12(b)(6), with leave to amend. Plaintiff, who
was represented by counsel, moved for reconsideration. The
district court denied that motion and, again, granted plaintiff
leave to amend his complaint. When plaintiff did not timely
file an amended complaint or otherwise respond to the court’s
order, the district court dismissed the federal claims with
prejudice, as a sanction under Rule 41(b).
The panel held that plaintiff waived the argument that the
district court abused its discretion in dismissing his federal
claims under Rule 41(b) by failing to raise the issue in his
opening brief. The panel held that in the absence of a
showing that the district court abused its discretion, and
because the prior interlocutory order of dismissal under Rule
12(b)(6) was not reviewable, there was no basis to appeal.
Dissenting, Judge Graber stated that (1) the panel should
have exercised discretion to consider the Rule 41(b) issue;
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.
(2) the district court abused its discretion by dismissing the
case as a sanction under Rule 41(b), rather than on the merits
under Rule 12(b)(6); and (3) on the merits the district court
erred in ruling that plaintiff failed to state a federal claim.
COUNSEL
Mark E. Merin (argued) and Paul H. Masuhara, Law Office
of Mark E. Merin, Sacramento, California; Staci J. Pratt and
Allen Lichtenstein, Allen Lichtenstein, Attorney at Law Ltd.,
Las Vegas, Nevada; for Plaintiff-Appellant.
Linda C. Anderson (argued), Chief Deputy Attorney General,
Office of the Attorney General, Las Vegas, Nevada, for State
Defendants-Appellees.
David P. Pruett (argued), Carroll Kelly Trotter Franzen
McKenna & Peabody, Long Beach, California, for
Defendant-Appellee Linda J. White, M.D.
OPINION
LYNN, Chief District Judge:
Appellant James Flavy Coy Brown appeals from the
district court’s judgment dismissing his state and federal
claims against Southern Nevada Adult Mental Health
Services, Chelsea Szklany, Mike Willden, Richard Whitely,
Leon Ravin, M.D., Anurag Gupta, M.D., and Kyle Devine
(the “State Defendants”), arising out of his February 11, 2013
discharge from the Rawson-Neal Psychiatric Hospital in Las
Vegas, Nevada and subsequent transportation to Sacramento,
BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP. 5
California. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
I.
The district court initially dismissed Brown’s federal
constitutional and statutory claims without prejudice under
Fed. R. Civ. P. 12(b)(6), including his claims under 42 U.S.C.
§ 1983 for alleged violations of his rights under the Eighth,
Fourth, and Fourteenth Amendments to the United States
Constitution; alleged violations of the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq.; and alleged
violations of the Emergency Medical Treatment and Active
Labor Act, 42 U.S.C. § 1395dd, et seq. The district court also
granted Brown leave to amend his complaint, but Brown,
who was and is represented by counsel, instead moved for
reconsideration. The district court denied that motion and,
again, granted Brown leave to amend his complaint. After
Brown did not timely file an amended complaint, the district
court extended the deadline and warned Brown that his
failure to file an amended complaint within the time
prescribed may result in dismissal of his constitutional and
federal statutory claims with prejudice. When Brown did not
timely file an amended complaint or otherwise respond to the
court’s order, the district court dismissed Brown’s federal
claims with prejudice, as a sanction under Fed. R. Civ. P.
41(b). The district court further dismissed Brown’s
supplemental state law claims without prejudice.
Notwithstanding the dismissal under Rule 41(b), Brown
filed this appeal, seeking judicial review of the district court’s
orders dismissing his complaint under Rule 12(b)(6) and
denying his motion for reconsideration, ignoring the fact that
the case was dismissed as a sanction under Rule 41(b), and
6 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.
that in light of that, the Rule 12(b)(6) orders were not
reviewable. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386
(9th Cir. 1996); see also Edwards v. Marin Park, Inc.,
356 F.3d 1058, 1065 (9th Cir. 2004).
Brown did not raise in his opening brief the issue of
whether the district court abused its discretion in dismissing
the case as a sanction under Rule 41(b). Indeed, in outlining
the procedural history of the case in his opening brief, Brown
mentioned neither the Order warning him of an impending
dismissal with prejudice if he failed to amend, nor the Order
dismissing his federal claims with prejudice under Rule
41(b).
II.
We generally do not consider issues that are not raised in
the appellant’s opening brief. See, e.g., McKay v. Ingleson,
558 F.3d 888, 891 n. 5 (9th Cir. 2009). However, although the
court has discretion under these circumstances to consider an
argument not raised in the opening brief, it is not obligated to
do so. In re Riverside-Linden Inv. Co., 945 F.2d 320, 324 (9th
Cir. 1991).
We decline to exercise our discretion in Brown’s favor.
His failure to mention in his opening brief the final Order of
Dismissal under Rule 41(b) was either grossly negligent or
disingenuous. We hold that Brown waived the argument that
the district court abused its discretion in dismissing his
federal claims under Rule 41(b). In the absence of a showing
that the district court abused its discretion, because the prior
interlocutory order of dismissal under Rule 12(b)(6) is not
reviewable, there would be no basis to appeal. Having failed
BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP. 7
to make in his opening brief the abuse of discretion argument
as to Rule 41(b), Brown waived it.
The dissent asserts that we should exercise our discretion
in Brown’s favor because the State Defendants raised the
Rule 41(b) issue in their answering brief and thus did not
suffer any prejudice. We disagree for three reasons. First, we
do not agree that the State Defendants were not prejudiced by
Brown’s failure to raise the Rule 41(b) issue. Although the
State Defendants did address the issue in their answering
brief, they did so without the benefit of anything to argue
against. They had to address what arguments Brown might
have made, had he addressed the issue, and then refute them.
Brown, on the other hand, discussed the issue at length in his
reply brief and the State Defendants were not given an
opportunity to respond to those arguments. Accordingly, we
do not assume that the State Defendants did not suffer any
prejudice, simply because they had the foresight to attempt to
address the issue unprompted.
Second, the decision the dissent relies on in its waiver
discussion, United States v. Ullah, 976 F.2d 509 (9th Cir.
1992), is distinguishable. Ullah is a criminal case in which
one defendant raised an issue in his opening brief, while the
co-defendant (Ullah) did not. Thus, we concluded that “it is
manifestly unjust to reverse the conviction of one co-
defendant but to uphold the conviction of another co-
defendant when the same error affected both defendants.” Id.
at 514. Correspondingly, we exercised our discretion to
consider the argument that was unraised by only one
defendant, but was before the court. The present case does
not involve a criminal defendant who will lose his liberty if
we do not exercise our discretion. Rather, our case involves
a civil appellant who tiptoed around a central issue in his
8 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.
opening brief. Whether the omission was intentional or
merely negligent, it was a significant error. Unlike in Ullah,
there is no reason to “deviate from our usual practice in this
case.” E.E.O.C. v. Peabody Western Coal Co., 773 F.3d 977,
990 (9th Cir. 2014).
Third, we dispute the dissent’s characterization of our
decision as “a triumph of procedural rigidity” that serves no
other purpose. We understand that our rules about preserving
issues can sometimes seem academic and formalistic, rather
than practical. There are, however, important reasons for
holding that an appellant waives an issue if it fails to provide
argument about the issue in its opening brief. Rules are
enforced to deter the type of improper, or inattentive, conduct
that occurred here. Moreover, “appellate courts do not sit as
self-directed boards of legal inquiry and research, but
essentially as arbiters of legal questions presented and argued
by the parties before them.” United States v. Mageno,
762 F.3d 933, 954–55 (9th Cir. 2014) (Wallace, J.,
dissenting) (vacated on other grounds), quoting Nat’l
Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 131
S.Ct. 746, 756 n. 10, 178 L.Ed.2d 667 (2011). We thus
reasonably require parties to preserve valid issues in order to
conserve judicial resources and to assist our review.
Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994), citing
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)
(“Judges are not like pigs, hunting for truffles buried in
briefs.”). That principle dictates finding waiver on these facts.
AFFIRMED.
BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP. 9
GRABER, Circuit Judge, dissenting:
I respectfully dissent. In my view, we should exercise
discretion to consider the Rule 41(b) issue; the district court
abused its discretion by dismissing the case as a sanction
under Rule 41(b), rather than on the merits under Rule
12(b)(6); and on the merits the district court erred in ruling
that Plaintiff failed to state a federal claim. Accordingly, I
would reverse and remand for further proceedings.
1. We have discretion to address Rule 41(b).
As the majority recognizes, we have discretion to
consider the Rule 41(b) issue. United States v. Ullah,
976 F.2d 509, 514 (9th Cir. 1992). At least two of the
reasons that motivated us to reach the unraised issue in Ullah
also are present here. First, the Rule 41(b) issue was raised—
and discussed at length—in the Defendants’ answering brief.
Id. Second, Plaintiff’s failure to raise the issue has not
prejudiced Defendants’ defense; in their brief, Defendants
both responded to the substance of Plaintiff’s opening brief
and put forth an argument concerning the Rule 41(b) issue.
Id. Plaintiff, for his part, responded to the Rule 41(b)
argument in his reply brief.1
The majority correctly points out that, unlike Ullah, this
case does not involve a criminal defendant who “will lose his
1
The majority notes that Defendants did not file (and they did not ask
to file) another brief concerning Rule 41(b), following Plaintiff’s reply
brief. But we held oral argument at which Defendants had a full
opportunity to discuss the issue. Thus it is not entirely correct to state that
Defendants “were not given an opportunity to respond.” (Maj. op. at page
7.)
10 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.
liberty if we do not exercise our discretion.” (Maj. op. at
page 7.) But that distinction is relevant only to the “manifest
injustice” ground2 for reaching an unraised issue, not to the
other two grounds, each of which is independently adequate.
Here, as in Ullah, “the discussion of the [unraised] issue in
th[e] briefs is sufficient to permit an informed resolution of
the dispute.” 976 F.2d at 514. Failing to address the Rule
41(b) issue in these circumstances is a triumph of procedural
rigidity but serves no other purpose.
2. The district court abused its discretion under Rule
41(b).
Dismissal as a sanction is a harsh penalty to be imposed
only in extreme circumstances. In re Phenylpropanolamine
(PPA) Prods. Liab. Litig., 460 F.3d 1217 (9th Cir. 2006).
The district court granted Plaintiff leave to amend the
complaint. He did not do so. The district court then promptly
dismissed Plaintiff’s federal law claims with prejudice under
Rule 41(b) as a sanction for failing to comply with a court
order.3 That decision was an abuse of discretion for the
2
Given the errors here, both procedural and substantive, the manifest
injustice exception also may apply, just as it did in Ullah. Plaintiff’s
claim—that notwithstanding his delusional and suicidal state, Defendants
placed him on a bus against his will and sent him, without money or
identification, to a distant city where he lacked any ties—describes a
situation that, if proved, may be as onerous as being incarcerated.
3
The district court did not rely on an alleged failure to prosecute. See
Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (holding that
a dismissal for failure to prosecute must be supported by a showing of
unreasonable delay). The dismissal with prejudice occurred less than 30
days after leave to amend was granted.
BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP. 11
simple reason that, under our precedents, Plaintiff did not fail
to comply with a court order.
When a district court requires a plaintiff to file an
amended complaint, the court may dismiss the case under
Rule 41(b) if the plaintiff fails to follow the requirement. See
Yourish v. Cal. Amplifer, 191 F.3d 983, 986 n.2 (9th Cir.
1999) (noting that the order stated that an “[a]mended
complaint shall be filed within 60 days (emphasis added));
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)
(stating that the court “ordered” and “required” the filing of
a second amended complaint); Edwards v. Marin Park, Inc.,
356 F.3d 1058, 1065 (9th Cir. 2004) (“Yourish and Ferdik
both arose when plaintiffs, given the opportunity to amend or
be dismissed, did nothing. . . . The failure of the plaintiff
eventually to respond to the court’s ultimatum—either by
amending the complaint or by indicating to the court that it
will not do so—is properly met with the sanction of a Rule
41(b) dismissal.” (second emphasis added)).
But here, the district court did not require Plaintiff to file
an amended complaint, nor did the court require in the
alternative that Plaintiff file an amended complaint or some
other specified document. The court’s order denying
Plaintiff’s motion for reconsideration merely granted leave to
amend, with permissive text allowing Plaintiff to amend or
not: The “plaintiff, if he chooses to amend his complaint,
[must] file a motion to amend within fourteen (14) days.”
(Emphasis added.) Later, the court warned, without citation
to Rule 41(b), that “failure to file an amended complaint
within this time may result in dismissal.” (Emphasis added.)
Given the court’s failure to cite Rule 41(b), the permissive
wording of its orders, and Plaintiff’s desire to obtain appellate
review of the Rule 12(b)(6) dismissal as discussed in the
12 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.
motion for reconsideration, he understandably hoped for a
dismissal, which he reasonably thought would be under Rule
12(b)(6). After all, the district court never ordered Plaintiff
to file an amended complaint, as the courts had in Yourish or
Ferdik. Leave to amend was granted; failure to amend did
not constitute noncompliance with a court order. Simply put,
there was no “ultimatum” within the meaning of our
precedents, and so the district court abused its discretion in
dismissing Plaintiff’s federal claims under Rule 41(b).
3. Plaintiff stated a claim for relief.
In view of the erroneous Rule 41(b) dismissal, I would
reach the merits of the district court’s dismissal under Rule
12(b)(6). We review de novo. Edwards, 356 F.3d at 1061,
1065.
The operative complaint contains seven federal law
claims, though many of them may be viewed as alternative
theories of liability rather than as distinct claims for relief.
Each claim rests on the following set of alleged facts. A
state-run psychiatric hospital and numerous individual
doctors and state health officials engaged in, or approved of,
a practice of “Greyhound therapy,” in which patients were
involuntarily discharged from the hospital and ordered to
board (or tricked into boarding) buses bound for out-of-state
destinations. No arrangements were made for the patients’
care in the destination cities, nor were the cities chosen
because the patients had ties to them. Plaintiff was sent to
Sacramento, “a city with which he had no prior contact, and
where he knew no one.”
At the time he was sent to Sacramento, Plaintiff had been
in the hospital for only a few days. He had been admitted
BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP. 13
“with a diagnosis of psychosis, hearing voices, and thinking
of suicide” and was given various “psychotropic medications
which affect thinking and judgment” during his short stay.
He was released “without money, identification or Medicaid
card” and in a delusional and suicidal state. In short, Plaintiff
alleges that a state-run psychiatric hospital decided to ship
him to another state—without regard for what kind of care, if
any, he might receive upon arrival—rather than to provide
him treatment.
It should be plain enough even from this abridged version
of the facts that Plaintiff’s complaint states a plausible claim
for relief under a substantive due process theory. “[T]he
state’s failure to protect an individual against private violence
. . . can [violate the guarantee of due process] where the state
action ‘affirmatively places the plaintiff in a position of
danger,’ that is, where state action creates or exposes an
individual to a danger which he or she would not have
otherwise faced.” Kennedy v. City of Ridgefield, 439 F.3d
1055, 1061 (9th Cir. 2006) (brackets omitted) (quoting Wood
v. Ostrander, 879 F.2d 583, 589–90 (9th Cir. 1989)); see also
Pauluk v. Savage, No. 14-15027, 2016 WL 4698287, at *4–6
(9th Cir. Sept. 8, 2016) (discussing “state-created danger”
doctrine).
The district court rejected Plaintiff’s substantive due
process theory because he made “no allegation that [the]
defendants caused [him] to be in a dangerous situation.
Indeed, before [P]laintiff was admitted to [the hospital] he
was homeless and in need of psychiatric care. . . . [T]he
complaint makes it very clear that [P]laintiff faced these
dangers prior to any interaction with [the] defendants.” But
Plaintiff faced quite different dangers in Sacramento, an
unfamiliar city to which he had no ties, than he had faced in
14 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.
Las Vegas, the city where he resided. And even if Plaintiff
faced the same kinds of dangers in both places, he has
plausibly alleged that Defendants’ affirmative acts exposed
him to a greater danger than he otherwise would have faced,
which is sufficient to state a due process claim. See Kennedy,
439 F.3d at 1063 n.4 (noting that “this court has already
specifically rejected the ‘danger creation’ versus ‘danger
enhancement’ distinction”).
If even one theory supporting a claim for relief is
plausible, the claim cannot be dismissed under Rule
12(b)(6).4 See Haddock v. Bd. of Dental Exam’rs of Cal.,
777 F.2d 462, 464 (9th Cir. 1985) (stating that “a complaint
should not be dismissed if it states a claim under any legal
theory, even if the plaintiff erroneously relies on a different
legal theory”); see also Fed. R. Civ. P. 8(d)(2) (“A party may
set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or
defense or in separate ones. If a party makes alternative
statements, the pleading is sufficient if any one of them is
sufficient.”). Because Plaintiff pleaded a plausible claim for
relief on a substantive due process theory, his federal claims
should not have been dismissed under Rule 12(b)(6).
For all these reasons, I dissent.
4
By focusing only on one theory I do not mean to suggest that none
of Plaintiff’s other theories states a claim.