NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICK MOERS,

Plaintiff

- Appellant,

v.

JOSH MCCALLISTER REID; et al.,

Defendants

- Appellees. No. 19

- 15256

D.C. No.

2:18

- cv

- 01418

- JCM

- NJK

MEMORANDUM *

Appeal from the United States District Court

for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted May 7, 2020 * * Portland, Oregon

Before: WATFORD and HURWITZ, Circuit Judges, and BATTAGLIA, ** * District Judge.

Patrick Moers appeals from the district court’s order granting the

defendants ’ motion to dismiss under Federal Rule of Civil Procedure 12(b). We

* 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).

*** The Honorable Anthony J. Battaglia, United States District Judge for

the Southern District of California, sitting by designation. 

# FILED

MAY 11 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALSPage 2 of 3

affirm.

1. The district court properly dismissed Moers’s federal claim s with

prejudice under Rule 12(b)(6). The separation agreement Moers signed released

all of his claim s under 42 U.S.C

. § 1983 against all of the defendants. 1 The release

provision covers “the City and each of its City Councilmembers, agents,

employees, representatives, attorneys, and all persons acting through or in concert

with any of them .” Contrary to Moers’s argument, the defendants plainly fall

within the scope of the release, despit e not being specifically named

. The

provision releases “any and all matters, causes of action, charges, complaints, [and]

claims,

. . . whether known or unknown, arising from or relating to, directly or

indirectly, [Moers’s] employment with and separation from the City.” All of

Moers’ s § 1983 claim s fall squarely within this language , as they all arise from the

defendants’ alleged participation in an unlawful scheme designed to oust Moers as

chief of p olice.

Moers argues that the release is invalid beca use it had to be executed by the

city council rather than the city manager. According to Moers

, the city manager

lacked authority to execute a severance agreement with him because the city

manager has no supervisory power s over executive officers appointed directly by

1 Moers voluntarily signed the separation agreement while represented by counsel.

We therefore reject Moers’s argument, raised for the first time in his reply brief on appeal, that he signed the agreement under duress.Page 3 of 3

the city council. See Henderson Municipal Code § 2.10.020(A) ; Henderson City

Charter art. I

, § 1.090

. That argument is without merit. T he city council does not

directly appoint the chief of police; the city manager does. Henderson Municipal

Code § 2.10.020(C)(1). Accordingly, t he city manager

— who has general

supervisory power s, including the authority to execute severance agreements

, over

all departments of the City

— was authorized to execute Moers’s separa tion

agreement

. See id. §§ 2.10.020(A)

, 2.10.040(G).

2. The district court did not err in dismissing without prejudice Moers’s

state law claims because Moers failed to name the State or appropriate political

subdivision as a defendant. See Nev

. Rev

. Stat

. § 41.0337(1).

AFFIRMED.