NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT STEFANIE CLUGSTON, Individually, and as Personal Representative of the Estate of Michael Clugston; FAITH HOPE CLUGSTON, individually,

Plaintiffs

- Appellants,

v. CITY OF GARDEN GROVE, a California Public Entity; TRAVIS HADDEN,

Defendants

- Appellees. No. 22

- 55203
D.C. No. 8:21

- cv - 01832

- JVS

- ADS

MEMORANDUM *

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Argued and Submitted February 15, 2023 University of San Diego Before: HAWKINS, McKEOWN, and BUMATAY, Circuit Judges. Stephanie and Faith Clugston (“Plaintiffs”) appeal the dismi ssal of their Section 1983 action against the City of Garden Grove (the “City”) and police officer
Travis Hadden. Officer Hadden was engaged in a high

- speed pursuit when the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

MAR 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

suspect’s car struck and killed the Plaintiffs’ husband and father, Michael Clugs ton. Plaintiffs allege Hadden’s actions violate the substantive due process afforded by the Fourteenth Amendment and that the City had a custom, policy or practice that caused the constitutional injury. We review the dismissal of an action
for failure t o state a claim de novo, Retail Prop. Tr. v. United Bd. o f Carpenters & Joiners of Am ., 768 F.3d 938, 945 (9th Cir. 2014), and we affirm.
The re was n o err or in dismissing the claim against Officer Hadden. The Supreme Court clearly stated in County of Sac ramento v. Lewis :

[W]e hold that high

- speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redress a ble by an action under § 1983. 523 U.S. 833, 854 (1998). Plaintiffs argue that Lewis is distinguishable because here Hadden had sufficient time to deliberate before engaging in the pursuit so a deliberate indifference standard should apply

. However, this circuit has also rejected the argument that the factual circumstances of any particular police pursuit should be examined to determine whether the officer had any time to deliberate. In Bingue v. Prunchak , we noted this approach would “effectively ‘ eviscerate the holding of
Lewis ’ be cause under that reading courts would be free to reject the intent to harm standard ‘whenever a judge or a jury could say, with the wisdom of hindsight, that an officer engaged in a high

- speed pursuit had ample time to deliberate.’” 512 F.3d3

1169, 1176 (9th Cir. 2008) (quoting Helseth v. Burch , 258 F.3d 867, 871 (8th Cir. 2001) (en banc)). We went on to hold resolutely : “ Lewis requires us to apply the ‘intent to harm’ standard to all high

- speed chases.” Id. at 1177 (emphasis in original). Plaintiffs concede their complaint did not and could not allege that Officer Hadden had an intent to harm. Therefore, dismissal was appropriate.
The claim against the City was properly dismissed . Pursuant to Monell v. Department of Social Serv ice s o f Ne w York , 436 U.S. 658, 690

‒ 91 (1978), a local government may be liable for constitutional torts committed by its employees pursuant to municipal policy, practice or custom. Plaintiffs alleged the City failed to adequately train its police officers on the p roper conduct of high

- speed pursuits, allows pursuits for minor traffic violations, and failed to discipline officers who “recklessly place innocent bystanders in harm’s way by initiating unjustifiable high

speed pursuits.”
In such cases hinging on an in dividual officer’s conduct , the plaintiff must establish both a deprivation of a constitutional right and that a municipal policy, custom or practice was the cause in fact of that deprivation. City of Canton v. Harris , 489 U.S. 378, 385 (1989); see also C ollins v. City of Harker Heights , 503 U.S. 115,
120 ‒21 (1992). As we explained in Quintanilla v. City of Downey, a public entity cannot be liable under § 1983 “under a policy that can cause constitutional deprivations , when the factfinder concludes that a n individual officer, acting4

pursuant to the policy, inflicted no constitutional harm to the plaintiff.” 84 F.3d 353, 355 (9th Cir. 1996). We therefore agree with our sister circuits which have held in the specific context of police pursuits that there c an be no municipal liability without an underlying constitutional violation by the officers. See, e.g. , Graves v. Thomas , 450 F.3d 1215, 1225 (10th Cir. 2006); Sitzes v. City of W. Memphis Ark

. , 606 F.3d 461, 470

‒ 71 (8th Cir. 2010); Evans v. Avery , 100 F.3d 1033 , 1039‒40 (1st Cir. 1996); S.P. v. City of Takoma Park , 134 F.3d 260, 272 (4th Cir. 1998); Scott v. Clay Cnty

. , 205 F.3d 867, 879 (6th Cir. 2000). The district court correctly dismissed the claim against the City because there was no underlying c onstitutional violation by
Officer Hadden.
AFFIRMED.