NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD MARKHAM, 

Plaintiff-Appellant, 

 v. 

COUNTY OF PIMA; PIMA COUNTY 

SHERIFF'S DEPARTMENT; CLARENCE 

DUPNIK, Retired Sheriff; CHRIS 

NANCOS, Present Sheriff; ALEX JANSEN, 

Deputy Sheriff # 7332; M. B. DIXON, 

Deputy Sheriff # 1199; E. C. CURTIN, 

Deputy Sheriff Sergeant # 1154, 

Defendants-Appellees.

No. 19-15640 

D.C. No. 

4:16-cv-00134-JAS-JR 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

James Alan Soto, District Judge, Presiding

Submitted July 17, 2020**

Before O’SCANNLAIN, TROTT, N.R. SMITH, Circuit Judges: 

Gerald Markham appeals the district court’s order dismissing some of his § 

* 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

JUL 21 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

1983 Fourth Amendment claims and appeals from the grant of summary judgment 

on his other Fourth Amendment and Americans with Disabilities Act (ADA) 

claims. The facts of this case are known to the parties, and we do not repeat them 

here.

I

The district court did not err in dismissing some of Markham’s Fourth 

Amendment claims and granting summary judgment on others. Markham has not 

shown that the Pima County Sheriff’s Department’s (PCSD) policy of bloodtesting for DUI infractions, pursuant to a warrant, is a violation of the Fourth 

Amendment, and therefore, he has failed to state a claim against Pima County and 

the Pima County Sheriff. Monell v. Dept. of Social Services of City of New York, 

436 U.S. 658, 694 (1978).

The district court did not err in dismissing his claims for conspiracy to 

commit unlawful incarceration, by booking him after his arrest for DUI, against 

Deputies Jansen, Dixon, and Curtin. There is no federal right to immediate release 

after lawful arrest. Higbee v. City of San Diego, 911 F.2d 377, 379 (9th Cir. 1990). 

And there is no Arizona right to field release after arrest, but rather this decision is 

left to the discretion of the arresting officer. A.R.S. § 13-3903. Therefore, 

Markham has failed to state a claim under the Fourth Amendment for unlawful 

incarceration.
3 

Finally, the district court did not err in granting summary judgment in favor 

of Deputies Dixon and Curtin on Markham’s Fourth Amendment excessive force 

claims based on the five attempted blood draws.

1

 It is undisputed that the blood 

draws were performed pursuant to a warrant by two trained phlebotomists. It is 

further undisputed that the deputies wore gloves, sanitized Markham’s skin 

beforehand, and covered the site of the draw afterwards. Markham has provided 

no evidence demonstrating that the deputies’ actions were unreasonable, and he 

has further put forth no evidence that the pain and discomfort he experienced was 

beyond that normally associated with a blood-draw. Thus, no Fourth Amendment 

violation occurred, and the district court did not err in so finding. Graham v. 

Connor, 490 U.S. 386, 394, 397 (1989).

II

The district court did not err in granting summary judgment in favor of Pima 

County on Markham’s ADA claim that the officers failed to accommodate his 

disability during the blood draw process. Here, Markham has not met his burden 

to establish the elements of his ADA claim because he has not demonstrated that 

he has a disability. 42 U.S.C. § 12102. Although he alleged in his complaint that 

he suffers from a heart condition, he provided no evidence of any sort to confirm 

1 The district court did not err in dismissing the excessive force claim against 

Deputy Jansen who was present for but did not actually administer any blood draw. 

Chuman v. Wright, 76 F.3d 292, 294-95 (9th Cir. 1996).
4 

this condition was a disability within the meaning of the ADA. Since Markham 

has failed to produce evidence demonstrating a genuine dispute of material fact 

exists as to his ADA claim, the district court did not err in granting summary 

judgment in favor of the County.

III

The district court did not err in considering PCSD’s DUI policy, a written 

instrument that was attached to Markham’s complaint, in evaluating the County’s 

motion to dismiss. “A copy of a written instrument that is an exhibit to a pleading 

is a part of the pleading for all purposes.” Fed. R. Civ. P. 10(c). Here, Markham 

attached a copy of the policy to his own complaint, making it part of the pleadings. 

Thus, the district court did not err in considering the policy.

IV

The district court did not abuse its discretion in denying Markham’s motion 

to amend his complaint to include a state law public-records claim under A.R.S. 

§39-121.02. While the district court had jurisdiction, it is not required to grant 

leave to amend if the amendment likely would have been futile. DCD Programs, 

Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1986). Here, the amendment would 

have been futile because Markham failed to state what records he sought and was 

denied, and he also named the wrong party in his claim. Thus, the district court did 

not abuse its discretion in denying the motion to amend.
5 

V

The district court did not abuse its discretion in denying Markham’s motions

for extensions of time to respond to the County’s motion for summary judgment 

and to file written objections to the Report and Recommendation. Markham had 

already been granted approximately 20 extensions throughout the proceedings, he 

already had 71 days to respond to the County’s motion, and the case had been 

pending for 32 months. Markham’s cited computer issues and time needed to fix a 

noncompliant brief in a different case did not constitute good cause for another 

extension. The district court’s decision to deny Markham’s motions for extensions 

was thus not an abuse of discretion.2 Ahancian v. Xenon Pictures, Inc., 624 F.3d 

1253, 1258-59 (9th Cir. 2010).

AFFIRMED.

2 The district court’s denial of Markham’s motion to reconsider the denial of his 

motion for an extension of time was proper for the same reasons.