NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON SHELTON, No. 20-55036
20-55724
Plaintiff-Appellant,
v. D.C. No. 5:18-cv-02167-SP
COUNTY OF SAN BERNARDINO; et al.,
MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Sheri Pym, Magistrate Judge, Presiding
Argued and Submitted June 10, 2021
Pasadena, California
Before: GRABER, CALLAHAN, and FORREST, Circuit Judges.
Partial Dissent by Judge CALLAHAN
Plaintiff Jason Shelton appeals from the district court’s orders denying his
request to amend his complaint and granting summary adjudication against his
claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse
in part, vacate in part, and remand.
Amendment. The district court did not abuse its discretion in denying Shelton
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
leave to amend his complaint under Federal Rule of Civil Procedure 16’s good-cause
standard, which applies because the district court had issued a case scheduling order.
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Even
assuming that Shelton did not learn the unknown deputies’ identities until July 16,
2019, he was not diligent in seeking to amend his complaint to name these parties
after learning that information. See id. (“If [the party seeking amendment] was not
diligent, the inquiry should end.”). In fact, he did not move to amend until
Defendants filed their dispositive motions on October 1—seven months after the
scheduling order’s deadline.
Trespass. The district court did not misstate California law or otherwise err in
granting summary judgment for the County on Shelton’s trespass claim because,
after the County demonstrated a lack of admissible evidence supporting Shelton’s
claim, Shelton failed to “provide affidavits or other sources of evidence that set forth
specific facts showing that there is a genuine issue for trial.” Devereaux v. Abbey,
263 F.3d 1070, 1076 (9th Cir. 2001) (en banc) (internal quotation marks and citation
omitted).
California’s Bane Act. The district court erred in granting summary judgment
against Shelton’s Bane Act claim because, viewing the disputed facts in the light
most favorable to Shelton, including that Detective Hamilton aimed his gun at
Shelton despite knowing that Shelton was unarmed, we cannot say that such force is
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objectively reasonable as a matter of law. See Robinson v. Solano Cnty., 278 F.3d
1007, 1014 (9th Cir. 2002) (en banc); see also Reese v. Cnty. of Sacramento, 888
F.3d 1030, 1044 (9th Cir. 2018) (“[T]he elements of the excessive force claim under
[the Bane Act] are the same as under § 1983.” (internal quotation marks omitted)).
Although Shelton did not allege in his complaint that Detective Hamilton pointed a
gun at him, and the video footage of the incident nearly forecloses the possibility
that this transpired at any point during the encounter, see Scott v. Harris, 550 U.S.
372, 380 (2007), Shelton testified that such aiming occurred and, at oral argument,
the County conceded that there is a moment when Hamilton is out of frame and
could have raised his gun toward Shelton.
Assault. As the district court concluded that Shelton’s assault claim also failed
because the force Hamilton used was objectively reasonable as a matter of law, we
vacate the district court’s grant of summary judgment on Shelton’s assault claim.
See Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272 (1998).
Costs. Because Defendants are no longer the prevailing party, we vacate the
district court’s award of costs. See Fed. R. Civ. P. 54(d). Each party shall bear its
own costs on appeal.
AFFIRMED in part, REVERSED in part, VACATED in part, and
REMANDED for further proceedings consistent with this memorandum
disposition.
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FILED
Shelton v. County of San Bernardino, Nos. 20-55036, 20-55724
JUN 29 2021
CALLAHAN, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
With respect to Shelton’s excessive-force claim under California’s Bane
Act, the majority notes only that Detective Hamilton may have pointed a gun at
Shelton, and that pointing a gun at an unarmed person can constitute excessive
force. Be that as it may, even when officers use force, we must still assess whether
their actions were “objectively reasonable in light of the facts and circumstances
confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989). Here, Shelton
was visibly agitated and running toward the officers’ vehicle with an object in his
hand. Upon his approach, Detective Hamilton allegedly raised his gun and pointed
it at Shelton for a “millisecond” before lowering it, where it remained for the rest
of the encounter. Under these circumstances, and in keeping with our duty to view
the situation through the eyes of a reasonable officer, “rather than with the 20/20
vision of hindsight,” id. at 396, I would hold that Detective Hamilton’s minimal
use of force was reasonable as a matter of a law. I would therefore affirm in full
the district court’s order granting summary judgment in the County’s favor.