NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL SALMAN and SUZANNE SALMAN, Plaintiffs-Appellants,

v. CITY OF PHOENIX, a m unicipal corporation of the State of Arizona and UNKNOWN PARTIES, nam ed as: John Does I-X, Jane Does I-X, Black and WhiteCorporations I-X, and ABC Partnerships IX, Defendants-Appellees. No. 16-16053 D.C. No. 2:12-cv-01219-JAT

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Jam es A. Teilborg, District Judge, Presiding Argued and Subm itted May 15, 2018 San Francisco, California 

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MAY 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS, * * District

Judge. Michael and Suzanne Salm an appeal, pro se, from the denial of their m otion for leave to file a fourth am ended com plaint and the dism issal of their claim s under Federal Rule of Civil Procedure 12(b)(6). The district court concluded that, even after num erous attem

pts to am end, the proposed fourth am ended com plaint still failed to state a plausible claim for relief and was barred by Heck v. Humphrey , 512 U.S. 477 (1994). Because the Salm ans’ pro se appeal involved novel issues of law, the court offered to appoint pro bono counsel and perm it re-briefing. Unfortunately, the Salm ans declined, instead opting to continue pro se and rest on their original briefing. The Salm ans’ decision is fatal to their appeal, because the Salm ans’ briefing waives argum ent on several dispositive issues relied on by the district court in denying the m otion to am end and dism issing the com plaint. We now affirm

. 1. Plausibility under rule 12(b)(6). The district court determ ined that the proposed Fourth Am ended Com plaint failed to allege sufficient facts to state a plausible claim for relief under 42 U.S.C. § 1983. A shcroft v. Iqbal , 556 U.S. 662, 678 (2009). The Salm ans’ appellate briefing never acknowledges, let alone

* * The Honorable Deborah A. Batts, United States District Judge for the Southern District of New York, sitting by designation. 2addresses this dispositive ruling by the district court. Accordingly, they cannot

prevail on the appeal of their § 1983 claim s. United States v. Kama , 394 F.3d 1236, 1238 (9th Cir. 2005); see also Wilcox v. Comm’r , 848 F.2d 1007, 1008 n.2 (9th Cir. 1988) (“deem [ ing] abandoned” argum ents not raised in a pro se petitioner’s briefing). 2. H eck v. Humphrey . The district court concluded that Michael Salm an’s § 1983 claim s were barred under Heck , because success on his challenge to the

sam e code provisions under which he was convicted “would necessarily im ply the invalidity of his conviction or sentence.” H eck , 512 U.S. at 487. The Salm ans’ only challenge to this ruling is their bald assertion that the conduct underlying Michael Salm an’s conviction is distinct from the conduct underlying the claim s in their

com plaint. In support of this assertion, the Salm ans cite authority for the proposition that Heck

does not bar § 1983 claim s that are factually independent from a plaintiff’s conviction. Although true that a factually independent § 1983 claim is not barred by Heck , the Salm ans’ have abandoned any argum e nt that they established a plausible constitutional violation—let alone one that is factually independent of Michael Salm an’s conviction. See supra . This defect is not addressed in the Salm ans’ briefing as to the Heck issue, and we will not

3m anufacture argum ents for a party on appeal. Greenwood v. FAA , 28 F.3d 971, 977

(9th Cir. 1994). 3. Collateral estoppel. Although the district court held that Suzanne Salm an’s claim s were barred by collateral estoppel, the Salmans’ briefing never addresses this issue. Instead, the briefing as to Suzanne Salm an asserts only that her claim s were not barred under Heck , because her sign ordinance conviction was unrelated to the allegations in the com plaint. Accordingly, we affirm

. Kama , 394 F.3d at 1238. 4. Religious Land Use and Institutionalized Persons Act (RLUIPA). In failing to brief this issue on appeal, the Salm ans waived any claim that the district court erred in holding that they failed to identify a land use ordinance subject to RLUIPA, 42 U.S.C. § 2000cc. Greenwood , 28 F.3d at 977. 5. Rem aining Claim s. The Salm a ns’ briefing never m entions the district court’s dism issal of their Establishm ent Clause, free exercise, right to privacy, and Due Process Clause claim s. Thus, the Salm ans abandoned these claim s. W ilcox , 848 F.2d at 1008 n.2. AFFIRMED.

4Salman v. City of Phoenix, 16 - 16053 WALLACE, J. , concurring. I concur fully in the majority disposition. I write separately to emphasize that t he Salmans failed to brief adequately their argument that Heck does not bar a claim based on conduct arising from an incident different from the one that formed the basis of conviction, even if the incidents are close in time or took place under similar circumstances. See Smith v. City of Hemet , 394 F.3d 689 (9th Cir . 2005) (en banc). This failure defeats their claim. The only case in the Salmans’ opening brief that touches on the temporal issue in Smith is Ballard v. Burton , 444 F. 3d 391, 400

- 01 (5th Cir. 2006). Even then, the Salmans provide no page citation or disc ussion of the case. W e do not manufacture arguments for appellants

. 

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MAY 29 2018 MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S