#### Donald G. ROBERTSON and Colleen F. Robertson, Plaintiffs-Appellants, v. FERRY COUNTY, a municipal corporation; et al., Defendants-Appellees.

No. 15-35561

United States Court of Appeals, Ninth Circuit.

Submitted August 28, 2017 * Seattle, Washington

Filed September 06, 2017

Douglas Dwight Phelps, Attorney, Phelps *&*Associates, PS, Spokane, WA, for Plaintiffs-Appellants

Brian A. Christensen, Jerry Moberg *&*Associates, PS, Ephrata, WA, for Defendants-Appellees

Before: HAWKINS and McKEOWN, Circuit Judges, and ROTHSTEIN,** District Judge.

*

 The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R. App. P. 34(a)(2).

**

 The Honorable Barbara Jacobs Rothstein, United States District Judge for the Western District of Washington, sitting by designation.

MEMORANDUM ***

Donald and Colleen Robertson (“the Robertsons”) appeal the adverse summary judgment grant in their 42 U.S.C. § 1983 and state law action. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The Robertsons have not made a “substantial showing” that Deputy Talon Venturo “deliberately' or recklessly made false statements or omissions” in the warrant application to search their residence. *Ewing v. City of Stockton,*588 F.3d 1218, 1223 (9th Cir. 2009) (citation omitted). Accordingly, there was no error in granting summary judgment to Deputy Venturo.

Additionally, to the extent the Robert-sons argue the search warrant did not satisfy the Fourth Amendment’s particularity requirement, Deputy Venturo is entitled to qualified immunity. *See KRL v. Estate of Moore,*512 F.3d 1184, 1189 (9th Cir. 2008).

*5012. The Robertsons’ request, made for the first time on appeal, to amend their pleadings to add Deputy John Lofts as a defendant in the case has been waived because the Robertsons did not seek leave to amend before the district court. *See Alaska v. United States,*201 F.3d 1154, 1163-64 (9th Cir. 2000). Moreover, the Robertsons have not shown “good cause” under Federal Rule of Civil Procedure 16 for their failure to comply with the district court’s scheduling order deadlines. Accordingly, there was no error in granting summary judgment on the Robertsons’ claim that Deputy Lofts assaulted Colleen Robertson.

3. The Robertsons have not adduced sufficient evidence creating triable issues of fact as to Sheriff Pete Warner’s superviso-rial liability or Ferry County and the Ferry County Sheriffs Department’s municipal liability. *See Blankenhorn v. City of Orange,*485 F.3d 463, 485 (9th Cir. 2007) (discussing supervisorial liability); *Monell v. Dep't of Soc. Servs. of N.Y.,*436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (discussing municipal liability). Accordingly, there was no error in granting summary judgment to these defendants.

4. The Robertsons’ claim that searching their residence was improper because Washington state authorized their use of medicinal marijuana fails. At the time sheriffs deputies searched their residence, Washington law only provided an affirmative defense to charges of violations of state law relating to marijuana. *State v. Reis,*183 Wash.2d 197, 351 P.3d 127, 131 (2015). Such an affirmative defense “does not undermine probable cause for a search warrant.” *Id.*at 136. Accordingly, there was no error in granting summary judgment on this claim.

AFFIRMED.

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 xhis disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.