NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MORAYON SIMMONS, 

 Plaintiff-Appellant, 

 v. 

CITY OF LOS ANGELES, a municipal 

entity; LOS ANGELES POLICE 

DEPARTMENT, a municipal entity; 

JONATHAN KINCAID, 

 Defendants-Appellees, 

and 

COUNTY OF LOS ANGELES; DOES, 1 

through 100, inclusive, 

 Defendants.

No. 21-56272 

D.C. No. 

2:20-cv-10779-RGK-E 

MEMORANDUM* 

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted April 14, 2023

Pasadena, California

Before: W. FLETCHER, BERZON, and LEE, Circuit Judges.

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

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 9 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

After spending nearly three years in custody, Morayon Simmons was 

acquitted by a jury of attempted murder and other related crimes. He subsequently 

filed this § 1983 suit against the Los Angeles Police Department (“LAPD”), the 

City of Los Angeles, the County of Los Angeles, and LAPD officer Jonathan 

Kincaid, based on Kincaid’s alleged failure to disclose exculpatory evidence in 

violation of Brady v. Maryland, 373 U.S. 83 (1963). LAPD was the only defendant

timely served. Simmons appeals the district court’s grant of summary judgment in 

favor of LAPD and its denial of leave to serve Kincaid well after the 90-day period 

for service had passed, see Fed. R. Civ. P. 4(m); 28 U.S.C. § 1448. Reviewing the

district court’s grant of summary judgment de novo, Blankenhorn v. City of 

Orange, 485 F.3d 463, 470 (9th Cir. 2007), and the district court’s decision 

regarding an extension of time for service for abuse of discretion, Efaw v. 

Williams, 473 F.3d 1038, 1040 (9th Cir. 2007), we affirm. 

1. A local government entity cannot be held liable under § 1983 “unless 

action pursuant to official municipal policy of some nature caused a constitutional 

tort.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). To establish a 

Monell claim, a plaintiff must demonstrate that he has suffered a constitutional 

injury, Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994), and that “the local 

government had a deliberate policy, custom, or practice that was the moving force 

behind the constitutional violation,” Vanegas v. City of Pasadena, 46 F.4th 1159, 
3 

1167 (9th Cir. 2022) (citation omitted). Simmons asserted two Monell claims

against LAPD: first, for its alleged failure to implement adequate policies, 

customs, and practices, and second, for its alleged failure to train officers regarding 

their Brady obligations. 

We assume for purposes of this memorandum disposition that Brady applies 

to the pre-trial period, but see Tatum v. Moody, 768 F.3d 806, 816 (9th Cir. 2014), 

and applies although Simmons was acquitted rather than convicted, see Smith v. 

Almada, 640 F.3d 931, 940–41 (9th Cir. 2011) (Gould, J., concurring); id. at 941 

(Gwin, J., specially concurring). So assuming, Simmons’s claims fail as an initial 

matter because he has not raised a triable issue of fact to support his underlying 

Brady claim.1

Simmons asserts that Kincaid suppressed evidence obtained from two 

witnesses that could have impeached the alleged victims’ testimony. The arrest 

report in the underlying criminal proceeding states that the alleged victims told

LAPD officers that the confrontation with Simmons began after Simmons’s 

girlfriend accused them of stealing her wallet, which they denied to her. According 

to reports by Simmons’s private investigator, the witnesses told the private 

1 In his reply brief and at oral argument, Simmons argued that he also brought a 

malicious prosecution claim under § 1983. However, the complaint did not so 

allege. The complaint did allege a stand-alone state-law malicious prosecution 

claim, which the parties stipulated to dismiss in district court. 
4 

investigator that they saw the alleged victims steal the wallet and that they spoke 

with Kincaid, who told one of the witnesses “not to mention to anyone” that 

Kincaid had spoken with him.

The witnesses’ statements may have been impeaching of aspects of the 

alleged victims’ testimony. But Simmons points to nothing in the record 

demonstrating that this impeachment evidence was “material” for Brady purposes.

2

See Strickler v. Greene, 527 U.S. 263, 280 (1999). The record does not 

demonstrate the extent to which the wallet theft undermined the credibility of any 

testimony the victims may have given about the shooting at issue in the criminal 

proceedings, nor how the wallet theft would have provided a defense to the 

shooting.

Moreover, Simmons learned of one witness just six days after he was 

arrested and of the other three months later; one of the witnesses testified at trial 

for Simmons. Simmons thus has not demonstrated that prejudice ensued as a result 

of Kincaid’s alleged pre-trial suppression of evidence even though Simmons had 

obtained the evidence. See Strickler, 527 U.S. at 281–82.

Even if Simmons had established a viable underlying Brady violation, his 

2 The bulk of the criminal trial record is not in the record in this case—neither the 

victims’ testimony at the preliminary hearing where the trial court determined that 

probable cause supported the charges against Simmons, nor the victims’ testimony 

at trial.
5 

Monell claims still fail. “When, as here, a plaintiff pursues liability based on a 

failure to act,” he must establish that “the municipality exhibited deliberate 

indifference to the violation of her federally protected rights” by pointing “to a 

pattern of prior, similar violations of federally protected rights, of which the 

relevant policymakers had actual or constructive notice.” Park v. City & Cnty. of 

Honolulu, 952 F.3d 1136, 1141–42 (9th Cir. 2020). Alternatively, “in a narrow 

range of circumstances,” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 409 

(1997), “it may happen that in light of the duties assigned to specific officers or 

employees the need for more or different training is so obvious, and the 

inadequacy so likely to result in the violation of constitutional rights, that the 

policymakers of the city can reasonably be said to have been deliberately 

indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989).

Simmons points to no evidence that any LAPD officer other than Kincaid 

has previously committed a Brady violation, nor to any evidence that Kincaid 

himself has committed a Brady violation outside of this matter. Nor are the 

“unconstitutional consequences” of LAPD’s Brady policy “so patently obvious” 

that LAPD “could be liable under § 1983 without proof of a pre-existing pattern of 

violations.” Connick v. Thompson, 563 U.S. 51, 63–64 (2011). It is undisputed that 

LAPD officers are provided general training on their Brady obligations. And the 

Tennison Memorandum clarifies officers’ obligations affirmatively to bring 
6 

exculpatory material to the attention of prosecutors. Whether or not the LAPD 

training included specific guidance about what constitutes exculpatory evidence,

any defect in “the nuance of the allegedly necessary training” is in no way similar 

to the Supreme Court’s hypothetical example of the extreme circumstances that 

might constitute “deliberate indifference” in the absence of any pattern of 

unconstitutional behavior. See id. at 63–64, 67 (suggesting that a city that 

“deploys . . . armed officers into the public to capture fleeing felons without 

training the officers in the constitutional limitation on the use of deadly force”

might be held responsible for the failure to train its law enforcement officers). The 

district court did not err when it granted summary judgment in favor of LAPD.

2. Simmons also appeals the district court’s denial of his ex parte application 

requesting an extension of time to serve Kincaid, filed seven months after the 

deadline to serve defendants. Under Federal Rule of Civil Procedure 4(m), if a 

defendant is not timely served, “the court—on motion or on its own after notice to 

the plaintiff—must dismiss the action without prejudice against that defendant or 

order that service be made within a specified time.” But “if the plaintiff shows 

good cause for the failure, the court must extend the time for service for an 

appropriate period.” Id. Even if good cause is not established, “the district court 

may extend time for service upon a showing of excusable neglect.” Lemoge v. 

United States, 587 F.3d 1188, 1198 (9th Cir. 2009); see Fed. R. Civ. P. 6(b). 
7 

Simmons has not established either good cause or excusable neglect for his 

failure to timely serve Kincaid. Although one of Simmons’s counsel declared that 

he had been suffering from “very concerning” health issues during the service

period, according to the documentation in the record, that lawyer did timely serve 

the LAPD and became severely ill very shortly before the end of the 90-day 

service period; he was practicing for at least some of the time during the seven 

months between the onset of his illness and the filing of the application; and there 

were two attorneys of record in this case, not one. Simmons’s counsel offer no 

persuasive explanation to excuse both lawyers’ failure to comply with the time 

requirement of Rule 4(m) and their subsequent failure for seven months to request 

an extension of the service period. See Dela Rosa v. Scottsdale Mem’l Health Sys., 

Inc., 136 F.3d 1241, 1244 (9th Cir. 1998). Given these circumstances, the district 

court did not abuse its discretion in denying the application. 

AFFIRMED.