NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICHOLAS YAROFALCHUW, 

Plaintiff-Appellant, 

 v. 

JOHN CABRERA; DANNY FITIAL, 

Defendants-Appellees.

No. 23-15279 

D.C. No. 1:22-cv-00001 

MEMORANDUM*

Appeal from the United States District Court

for the District of the Northern Mariana Islands

Ramona V. Manglona, Chief District Judge, Presiding

Argued and Submitted February 13, 2024

Honolulu, Hawaii

Before: PAEZ, M. SMITH, and KOH, Circuit Judges.

Plaintiff Nicholas Yarofalchuw (Plaintiff) appeals the district court’s grant 

of summary judgment in favor of Defendant-Appellees Sergeant John Cabrera and 

Danny Fitial in his action brought pursuant to 42 U.S.C. § 1983. Because the 

parties are familiar with the facts, we do not recount them here, except as 

necessary to provide context to our ruling. We have jurisdiction pursuant to 28 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAR 8 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

U.S.C. §1291, and we affirm. 

1. The district court did not err in granting Defendants’ motion for summary 

judgment. We assume without deciding that Yarofalchuw was seized by a show of 

authority when Cabrera failed to leave the property and the officers blocked the 

driveway with their cars. However, Yarofalchuw has not met his burden to show 

that the alleged violation of his rights was clearly established by law. See Gordon 

v. Cnty. of Orange, 6 F.4th 961, 969 (9th Cir. 2021). 

“For a constitutional right to be clearly established, a court must define the 

right at issue with specificity and not at a high level of generality.” Id. at 968

(internal quotations omitted and cleaned up). Moreover, “[t]he contours of the 

right must be sufficiently clear that a reasonable official would understand that 

what [the official] is doing violates that right.” Anderson v. Creighton, 483 U.S. 

635, 640 (1987).

Yarofalchuw argues that the officers violated his right to be free from an 

unlawful seizure and defines the right as one to be “free to disregard the police, 

terminate the encounter with them, and go about his business.” But that right is 

defined at too high a level of generality to put officers on notice of a potential 

violation, and the cases Yarofalchuw cites in support of his position are materially 

distinguishable from the facts at issue here. See, e.g., United States v. Al-Azzawy, 

784 F.2d 890, 891, 893 (9th Cir. 1985) (holding that seizure occurred where 
3 

officers surrounded the defendant’s trailer with their guns drawn and ordered him 

to step outside and get on his knees); Fisher v. City of San Jose, 558 F.3d 1069, 

1072, 1074 (9th Cir. 2009) (holding that seizure occurred when the arrestee’s 

house was surrounded by over sixty police officers in an armed standoff).

2. Even if Yarofalchuw’s physical arrest was unlawful, no clearly 

established law put the officers on notice that arresting him between the hedges at 

the end of his driveway would constitute an arrest within the curtilage of his 

home. Yarofalchuw argues otherwise, citing Brizuela v. City of Sparks, No. 22-

16357, 2023 WL 5348815, at *1 (9th Cir. Aug. 21, 2023), in which we affirmed a 

district court’s denial of qualified immunity on a plaintiff’s search and seizure 

claims. But the officers in Brizuela were put on notice of the constitutional 

violation because Supreme Court precedent made clear that Brizuela’s front 

porch—where the violation occurred—constituted curtilage, see Fla. v. Jardines, 

569 U.S. 1, 6–7 (2013). Moreover, Brizuela cannot have clearly established that 

Yarofalchuw’s arrest in 2021 was unlawful: it is an unpublished memorandum 

disposition and was decided after the events of this case. Yarofalchuw raises a 

number of other cases in support of his argument, but none “place[] the statutory or 

constitutional question beyond debate.” Foster v. City of Indio, 908 F.3d 1204, 

1210 (9th Cir. 2018) (per curiam). 

3. The district court did not abuse its discretion in denying Plaintiff’s motion 
4 

to amend. The first time Plaintiff sought leave to add an excessive force claim was 

at the same hearing where the district court denied his motion for summary 

judgment, on December 1, 2022. 

In denying Plaintiff’s motion, the district court explained that Plaintiff had to 

show “good cause” existed for modifying the scheduling order under Rule 16. 

Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and 

with the judge’s consent.”); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 

607–08 (9th Cir. 1992) (“Once the district court had filed a pretrial scheduling 

order pursuant to Federal Rule of Civil Procedure 16 which established a timetable 

for amending pleadings that rule’s standards controlled.”). The court noted that 

Plaintiff was fully aware of his excessive force claim earlier in the litigation and 

had in fact filed a separate action for excessive force in state court on October 6, 

2022—ten months after the district court complaint was filed and six months after 

the deadline for any amendment of pleadings in the federal case. 

The district court properly exercised its discretion by enforcing the deadlines 

in the scheduling order and ensuring that Plaintiff did not manipulate deadlines 

once “he s[aw] the value of an alternative claim or theory of liability after an 

adverse ruling by the Court.” 

AFFIRMED.