NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARAH VARGAS, 

Plaintiff-Appellee, 

 v. 

THAYNE COSTA; CITY AND COUNTY 

OF HONOLULU, 

Defendants-Appellants, 

and 

DAVID OH, 

Defendant.

No. 19-17447 

D.C. No. 

1:19-cv-00116-LEK-WRP 

MEMORANDUM*

Appeal from the United States District Court

for the District of Hawaii

Leslie E. Kobayashi, District Judge, Presiding

Submitted November 17, 2020**

San Francisco, California

Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.

* 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).

FILED

NOV 19 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

The district court denied qualified immunity to Honolulu Police Officer 

Thayne Costa in this 42 U.S.C. § 1985(3) action, in which Count III alleges that 

Officer Costa was complicit in a sexual assault committed by Honolulu Police 

Officer David Oh against Sarah Vargas. We have jurisdiction of this appeal by Costa 

and the pendent appeal by the City and County of Honolulu under 28 U.S.C. § 1291. 

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see also Huskey v. City of San Jose, 

204 F.3d 893, 904-05 (9th Cir. 2000) (discussing pendent appellate jurisdiction). 

We reverse the district court’s order denying qualified immunity and remand with 

instructions to dismiss Count III of the operative First Amended Complaint. 

1. A state official is entitled to qualified immunity “unless a plaintiff 

pleads facts showing (1) that the official violated a statutory or constitutional right, 

and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” 

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (cleaned up). In a § 1985(3) action, 

the first prong requires plausible allegations of a conspiracy to deprive the plaintiff 

of equal protection of the law. See Fazaga v. F.B.I., 965 F.3d 1015, 1059 (9th Cir. 

2020). A conspiracy is “an agreement to do an unlawful act.” Ziglar v. Abbasi, 137 

S. Ct. 1843, 1867 (2017). “A claim under this section must allege facts to support 

the allegation that defendants conspired together. A mere allegation of conspiracy 

without factual specificity is insufficient.” Karim-Panahi v. L.A. Police Dep’t, 839 

F.2d 621, 626 (9th Cir. 1988).
3 

2. The First Amended Complaint alleges only that after Costa and Oh 

responded to a call for help from Vargas’s sister, Costa left Oh alone with a “drunk 

and nearly naked” Vargas in her apartment. According to the First Amended 

Complaint, Oh then sexually assaulted Vargas, and Costa later gave unspecified 

“false and contradictory statements to Federal and State law enforcement” about the 

incident. Even if assumed true, these bare allegations do not suffice to establish that

Costa conspired with Oh to allow the sexual assault and cover it up. See KarimPanahi, 839 F.2d at 626. Because Vargas therefore has not plausibly alleged that 

Costa conspired with Oh, Costa was entitled to qualified immunity.1

REVERSED AND REMANDED with instructions to dismiss Count III of 

the First Amended Complaint against Costa and the City and County of Honolulu.

1 We therefore need not address at this time whether Costa is also entitled to 

qualified immunity on the ground that it is not clearly established on the facts alleged

whether persons working for the same entity can commit conspiracy under 42 U.S.C. 

§ 1985(3). See Abbasi, 137 S. Ct. at 1868–69; Fazaga, 965 F.3d at 1060.