FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES FLAVY COY BROWN, on

behalf of himself and those similarly

situated,

Plaintiff-Appellant,

v.

RAWSON-NEAL PSYCHIATRIC

HOSPITAL; LEON RAVIN, M.D.,

individually and in his official

capacity as Associate Medical

Director; ANURAG GUPTA, M.D.,

individually; SOUTHERN NEVADA

ADULT MENTAL HEALTH SERVICES;

CHELSEA SZKLANY, individually and

in her official capacity as

Administrator; NEVADA BUREAU OF

HEALTH CARE QUALITY AND

COMPLIANCE; NEVADA DIVISION OF

HEALTH, DIVISION OF MENTAL

HEALTH AND DEVELOPMENTAL

SERVICES; RICHARD WHITLEY, in his

official capacity as Administrator of

the Nevada Division of Public and

Behavioral Health, formerly Nevada

Division of Health and the Nevada

Division of Mental Health &

Developmental Services; NEVADA

DEPARTMENT OF HEALTH AND

No. 14-16458

D.C. No.

2:13-cv-01039-

JCM-PAL

OPINION
2 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.

HUMAN SERVICES; MIKE WILLDEN,

in his official capacity as Director;

LINDA J. WHITE M.D., individually

and in her official capacity as

Statewide Psychiatric Medical

Director of the State of Nevada;

KYLE DEVINE, in his official

capacity as Bureau Chief of the

Nevada Bureau of Health Care

Quality and Compliance,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted August 8, 2016

San Francisco, California

Filed November 4, 2016

Before: J. Clifford Wallace and Susan P. Graber, Circuit

Judges, and Barbara M. G. Lynn,* Chief District Judge.

Opinion by Chief District Judge Lynn;

Dissent by Judge Graber

* The Honorable Barbara M. G. Lynn, Chief District Judge for the

U.S. District Court for the Northern District of Texas, sitting by

designation.
BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP. 3

SUMMARY**

Civil Rights

The panel affirmed the district court’s dismissal, pursuant

to Fed. R. Civ. P. 41(b), of an action arising from plaintiff’s

discharge from the Rawson-Neal Psychiatric Hospital in Las

Vegas, Nevada, and his subsequent transportation to

Sacramento, California. 

The district court initially dismissed plaintiff’s federal

constitutional and statutory claims without prejudice under

Fed. R. Civ. P. 12(b)(6), with leave to amend. Plaintiff, who

was represented by counsel, moved for reconsideration. The

district court denied that motion and, again, granted plaintiff

leave to amend his complaint. When plaintiff did not timely

file an amended complaint or otherwise respond to the court’s

order, the district court dismissed the federal claims with

prejudice, as a sanction under Rule 41(b). 

The panel held that plaintiff waived the argument that the

district court abused its discretion in dismissing his federal

claims under Rule 41(b) by failing to raise the issue in his

opening brief. The panel held that in the absence of a

showing that the district court abused its discretion, and

because the prior interlocutory order of dismissal under Rule

12(b)(6) was not reviewable, there was no basis to appeal. 

Dissenting, Judge Graber stated that (1) the panel should

have exercised discretion to consider the Rule 41(b) issue;

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.

(2) the district court abused its discretion by dismissing the

case as a sanction under Rule 41(b), rather than on the merits

under Rule 12(b)(6); and (3) on the merits the district court

erred in ruling that plaintiff failed to state a federal claim.

COUNSEL

Mark E. Merin (argued) and Paul H. Masuhara, Law Office

of Mark E. Merin, Sacramento, California; Staci J. Pratt and

Allen Lichtenstein, Allen Lichtenstein, Attorney at Law Ltd.,

Las Vegas, Nevada; for Plaintiff-Appellant.

Linda C. Anderson (argued), Chief Deputy Attorney General,

Office of the Attorney General, Las Vegas, Nevada, for State

Defendants-Appellees.

David P. Pruett (argued), Carroll Kelly Trotter Franzen

McKenna & Peabody, Long Beach, California, for

Defendant-Appellee Linda J. White, M.D.

OPINION

LYNN, Chief District Judge:

Appellant James Flavy Coy Brown appeals from the

district court’s judgment dismissing his state and federal

claims against Southern Nevada Adult Mental Health

Services, Chelsea Szklany, Mike Willden, Richard Whitely,

Leon Ravin, M.D., Anurag Gupta, M.D., and Kyle Devine

(the “State Defendants”), arising out of his February 11, 2013

discharge from the Rawson-Neal Psychiatric Hospital in Las

Vegas, Nevada and subsequent transportation to Sacramento,
BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP. 5

California. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

I.

The district court initially dismissed Brown’s federal

constitutional and statutory claims without prejudice under

Fed. R. Civ. P. 12(b)(6), including his claims under 42 U.S.C.

§ 1983 for alleged violations of his rights under the Eighth,

Fourth, and Fourteenth Amendments to the United States

Constitution; alleged violations of the Americans with

Disabilities Act, 42 U.S.C. § 12101, et seq.; and alleged

violations of the Emergency Medical Treatment and Active

Labor Act, 42 U.S.C. § 1395dd, et seq. The district court also

granted Brown leave to amend his complaint, but Brown,

who was and is represented by counsel, instead moved for

reconsideration. The district court denied that motion and,

again, granted Brown leave to amend his complaint. After

Brown did not timely file an amended complaint, the district

court extended the deadline and warned Brown that his

failure to file an amended complaint within the time

prescribed may result in dismissal of his constitutional and

federal statutory claims with prejudice. When Brown did not

timely file an amended complaint or otherwise respond to the

court’s order, the district court dismissed Brown’s federal

claims with prejudice, as a sanction under Fed. R. Civ. P.

41(b). The district court further dismissed Brown’s

supplemental state law claims without prejudice.

Notwithstanding the dismissal under Rule 41(b), Brown

filed this appeal, seeking judicial review of the district court’s

orders dismissing his complaint under Rule 12(b)(6) and

denying his motion for reconsideration, ignoring the fact that

the case was dismissed as a sanction under Rule 41(b), and
6 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.

that in light of that, the Rule 12(b)(6) orders were not

reviewable. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386

(9th Cir. 1996); see also Edwards v. Marin Park, Inc.,

356 F.3d 1058, 1065 (9th Cir. 2004).

Brown did not raise in his opening brief the issue of

whether the district court abused its discretion in dismissing

the case as a sanction under Rule 41(b). Indeed, in outlining

the procedural history of the case in his opening brief, Brown

mentioned neither the Order warning him of an impending

dismissal with prejudice if he failed to amend, nor the Order

dismissing his federal claims with prejudice under Rule

41(b).

II.

We generally do not consider issues that are not raised in

the appellant’s opening brief. See, e.g., McKay v. Ingleson,

558 F.3d 888, 891 n. 5 (9th Cir. 2009). However, although the

court has discretion under these circumstances to consider an

argument not raised in the opening brief, it is not obligated to

do so. In re Riverside-Linden Inv. Co., 945 F.2d 320, 324 (9th

Cir. 1991).

We decline to exercise our discretion in Brown’s favor.

His failure to mention in his opening brief the final Order of

Dismissal under Rule 41(b) was either grossly negligent or

disingenuous. We hold that Brown waived the argument that

the district court abused its discretion in dismissing his

federal claims under Rule 41(b). In the absence of a showing

that the district court abused its discretion, because the prior

interlocutory order of dismissal under Rule 12(b)(6) is not

reviewable, there would be no basis to appeal. Having failed
BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP. 7

to make in his opening brief the abuse of discretion argument

as to Rule 41(b), Brown waived it.

The dissent asserts that we should exercise our discretion

in Brown’s favor because the State Defendants raised the

Rule 41(b) issue in their answering brief and thus did not

suffer any prejudice. We disagree for three reasons. First, we

do not agree that the State Defendants were not prejudiced by

Brown’s failure to raise the Rule 41(b) issue. Although the

State Defendants did address the issue in their answering

brief, they did so without the benefit of anything to argue

against. They had to address what arguments Brown might

have made, had he addressed the issue, and then refute them.

Brown, on the other hand, discussed the issue at length in his

reply brief and the State Defendants were not given an

opportunity to respond to those arguments. Accordingly, we

do not assume that the State Defendants did not suffer any

prejudice, simply because they had the foresight to attempt to

address the issue unprompted.

Second, the decision the dissent relies on in its waiver

discussion, United States v. Ullah, 976 F.2d 509 (9th Cir.

1992), is distinguishable. Ullah is a criminal case in which

one defendant raised an issue in his opening brief, while the

co-defendant (Ullah) did not. Thus, we concluded that “it is

manifestly unjust to reverse the conviction of one codefendant but to uphold the conviction of another codefendant when the same error affected both defendants.” Id.

at 514. Correspondingly, we exercised our discretion to

consider the argument that was unraised by only one

defendant, but was before the court. The present case does

not involve a criminal defendant who will lose his liberty if

we do not exercise our discretion. Rather, our case involves

a civil appellant who tiptoed around a central issue in his
8 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.

opening brief. Whether the omission was intentional or

merely negligent, it was a significant error. Unlike in Ullah,

there is no reason to “deviate from our usual practice in this

case.” E.E.O.C. v. Peabody Western Coal Co., 773 F.3d 977,

990 (9th Cir. 2014).

Third, we dispute the dissent’s characterization of our

decision as “a triumph of procedural rigidity” that serves no

other purpose. We understand that our rules about preserving

issues can sometimes seem academic and formalistic, rather

than practical. There are, however, important reasons for

holding that an appellant waives an issue if it fails to provide

argument about the issue in its opening brief. Rules are

enforced to deter the type of improper, or inattentive, conduct

that occurred here. Moreover, “appellate courts do not sit as

self-directed boards of legal inquiry and research, but

essentially as arbiters of legal questions presented and argued

by the parties before them.” United States v. Mageno,

762 F.3d 933, 954–55 (9th Cir. 2014) (Wallace, J.,

dissenting) (vacated on other grounds), quoting Nat’l

Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 131

S.Ct. 746, 756 n. 10, 178 L.Ed.2d 667 (2011). We thus

reasonably require parties to preserve valid issues in order to

conserve judicial resources and to assist our review.

Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994), citing

United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)

(“Judges are not like pigs, hunting for truffles buried in

briefs.”). That principle dictates finding waiver on these facts.

AFFIRMED.
BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP. 9

GRABER, Circuit Judge, dissenting:

I respectfully dissent. In my view, we should exercise

discretion to consider the Rule 41(b) issue; the district court

abused its discretion by dismissing the case as a sanction

under Rule 41(b), rather than on the merits under Rule

12(b)(6); and on the merits the district court erred in ruling

that Plaintiff failed to state a federal claim. Accordingly, I

would reverse and remand for further proceedings.

1. We have discretion to address Rule 41(b).

As the majority recognizes, we have discretion to

consider the Rule 41(b) issue. United States v. Ullah,

976 F.2d 509, 514 (9th Cir. 1992). At least two of the

reasons that motivated us to reach the unraised issue in Ullah

also are present here. First, the Rule 41(b) issue was raised—

and discussed at length—in the Defendants’ answering brief. 

Id. Second, Plaintiff’s failure to raise the issue has not

prejudiced Defendants’ defense; in their brief, Defendants

both responded to the substance of Plaintiff’s opening brief

and put forth an argument concerning the Rule 41(b) issue. 

Id. Plaintiff, for his part, responded to the Rule 41(b)

argument in his reply brief.1

The majority correctly points out that, unlike Ullah, this

case does not involve a criminal defendant who “will lose his

1 The majority notes that Defendants did not file (and they did not ask

to file) another brief concerning Rule 41(b), following Plaintiff’s reply

brief. But we held oral argument at which Defendants had a full

opportunity to discuss the issue. Thusit is not entirely correct to state that

Defendants “were not given an opportunity to respond.” (Maj. op. at page

7.)
10 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.

liberty if we do not exercise our discretion.” (Maj. op. at

page 7.) But that distinction is relevant only to the “manifest

injustice” ground2for reaching an unraised issue, not to the

other two grounds, each of which is independently adequate. 

Here, as in Ullah, “the discussion of the [unraised] issue in

th[e] briefs is sufficient to permit an informed resolution of

the dispute.” 976 F.2d at 514. Failing to address the Rule

41(b) issue in these circumstances is a triumph of procedural

rigidity but serves no other purpose.

2. The district court abused its discretion under Rule

41(b).

Dismissal as a sanction is a harsh penalty to be imposed

only in extreme circumstances. In re Phenylpropanolamine

(PPA) Prods. Liab. Litig., 460 F.3d 1217 (9th Cir. 2006). 

The district court granted Plaintiff leave to amend the

complaint. He did not do so. The district court then promptly

dismissed Plaintiff’s federal law claims with prejudice under

Rule 41(b) as a sanction for failing to comply with a court

order.3 That decision was an abuse of discretion for the

2 Given the errors here, both procedural and substantive, the manifest

injustice exception also may apply, just as it did in Ullah. Plaintiff’s

claim—that notwithstanding his delusional and suicidal state, Defendants

placed him on a bus against his will and sent him, without money or

identification, to a distant city where he lacked any ties—describes a

situation that, if proved, may be as onerous as being incarcerated.

3 The district court did not rely on an alleged failure to prosecute. See

Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (holding that

a dismissal for failure to prosecute must be supported by a showing of

unreasonable delay). The dismissal with prejudice occurred less than 30

days after leave to amend was granted.
BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP. 11

simple reason that, under our precedents, Plaintiff did not fail

to comply with a court order.

When a district court requires a plaintiff to file an

amended complaint, the court may dismiss the case under

Rule 41(b) if the plaintiff fails to follow the requirement. See

Yourish v. Cal. Amplifer, 191 F.3d 983, 986 n.2 (9th Cir.

1999) (noting that the order stated that an “[a]mended

complaint shall be filed within 60 days (emphasis added));

Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)

(stating that the court “ordered” and “required” the filing of

a second amended complaint); Edwards v. Marin Park, Inc.,

356 F.3d 1058, 1065 (9th Cir. 2004) (“Yourish and Ferdik

both arose when plaintiffs, given the opportunity to amend or

be dismissed, did nothing. . . . The failure of the plaintiff

eventually to respond to the court’s ultimatum—either by

amending the complaint or by indicating to the court that it

will not do so—is properly met with the sanction of a Rule

41(b) dismissal.” (second emphasis added)).

But here, the district court did not require Plaintiff to file

an amended complaint, nor did the court require in the

alternative that Plaintiff file an amended complaint or some

other specified document. The court’s order denying

Plaintiff’s motion for reconsideration merely granted leave to

amend, with permissive text allowing Plaintiff to amend or

not: The “plaintiff, if he chooses to amend his complaint,

[must] file a motion to amend within fourteen (14) days.” 

(Emphasis added.) Later, the court warned, without citation

to Rule 41(b), that “failure to file an amended complaint

within this time may result in dismissal.” (Emphasis added.) 

Given the court’s failure to cite Rule 41(b), the permissive

wording of its orders, and Plaintiff’s desire to obtain appellate

review of the Rule 12(b)(6) dismissal as discussed in the
12 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.

motion for reconsideration, he understandably hoped for a

dismissal, which he reasonably thought would be under Rule

12(b)(6). After all, the district court never ordered Plaintiff

to file an amended complaint, as the courts had in Yourish or

Ferdik. Leave to amend was granted; failure to amend did

not constitute noncompliance with a court order. Simply put,

there was no “ultimatum” within the meaning of our

precedents, and so the district court abused its discretion in

dismissing Plaintiff’s federal claims under Rule 41(b).

3. Plaintiff stated a claim for relief.

In view of the erroneous Rule 41(b) dismissal, I would

reach the merits of the district court’s dismissal under Rule

12(b)(6). We review de novo. Edwards, 356 F.3d at 1061,

1065.

The operative complaint contains seven federal law

claims, though many of them may be viewed as alternative

theories of liability rather than as distinct claims for relief. 

Each claim rests on the following set of alleged facts. A

state-run psychiatric hospital and numerous individual

doctors and state health officials engaged in, or approved of,

a practice of “Greyhound therapy,” in which patients were

involuntarily discharged from the hospital and ordered to

board (or tricked into boarding) buses bound for out-of-state

destinations. No arrangements were made for the patients’

care in the destination cities, nor were the cities chosen

because the patients had ties to them. Plaintiff was sent to

Sacramento, “a city with which he had no prior contact, and

where he knew no one.”

At the time he was sent to Sacramento, Plaintiff had been

in the hospital for only a few days. He had been admitted
BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP. 13

“with a diagnosis of psychosis, hearing voices, and thinking

of suicide” and was given various “psychotropic medications

which affect thinking and judgment” during his short stay. 

He was released “without money, identification or Medicaid

card” and in a delusional and suicidal state. In short, Plaintiff

alleges that a state-run psychiatric hospital decided to ship

him to another state—without regard for what kind of care, if

any, he might receive upon arrival—rather than to provide

him treatment.

It should be plain enough even from this abridged version

of the facts that Plaintiff’s complaint states a plausible claim

for relief under a substantive due process theory. “[T]he

state’s failure to protect an individual against private violence

. . . can [violate the guarantee of due process] where the state

action ‘affirmatively places the plaintiff in a position of

danger,’ that is, where state action creates or exposes an

individual to a danger which he or she would not have

otherwise faced.” Kennedy v. City of Ridgefield, 439 F.3d

1055, 1061 (9th Cir. 2006) (brackets omitted) (quoting Wood

v. Ostrander, 879 F.2d 583, 589–90 (9th Cir. 1989)); see also

Pauluk v. Savage, No. 14-15027, 2016 WL 4698287, at *4–6

(9th Cir. Sept. 8, 2016) (discussing “state-created danger”

doctrine).

The district court rejected Plaintiff’s substantive due

process theory because he made “no allegation that [the]

defendants caused [him] to be in a dangerous situation. 

Indeed, before [P]laintiff was admitted to [the hospital] he

was homeless and in need of psychiatric care. . . . [T]he

complaint makes it very clear that [P]laintiff faced these

dangers prior to any interaction with [the] defendants.” But

Plaintiff faced quite different dangers in Sacramento, an

unfamiliar city to which he had no ties, than he had faced in
14 BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.

Las Vegas, the city where he resided. And even if Plaintiff

faced the same kinds of dangers in both places, he has

plausibly alleged that Defendants’ affirmative acts exposed

him to a greater danger than he otherwise would have faced,

which is sufficient to state a due process claim. See Kennedy,

439 F.3d at 1063 n.4 (noting that “this court has already

specifically rejected the ‘danger creation’ versus ‘danger

enhancement’ distinction”).

If even one theory supporting a claim for relief is

plausible, the claim cannot be dismissed under Rule

12(b)(6).

4

See Haddock v. Bd. of Dental Exam’rs of Cal.,

777 F.2d 462, 464 (9th Cir. 1985) (stating that “a complaint

should not be dismissed if it states a claim under any legal

theory, even if the plaintiff erroneously relies on a different

legal theory”); see also Fed. R. Civ. P. 8(d)(2) (“A party may

set out 2 or more statements of a claim or defense

alternatively or hypothetically, either in a single count or

defense or in separate ones. If a party makes alternative

statements, the pleading is sufficient if any one of them is

sufficient.”). Because Plaintiff pleaded a plausible claim for

relief on a substantive due process theory, his federal claims

should not have been dismissed under Rule 12(b)(6).

For all these reasons, I dissent.

4

 By focusing only on one theory I do not mean to suggest that none

of Plaintiff’s other theories states a claim.