F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J A M E S F L

A V Y C O Y B R

O W N , on behalf of himself and those similarly situated, Plaintiff-Appellant

,

v.

R A W S O N

- N E A L P S Y C H I A T R I C H O S P I T A L ; L E O N R A

V I N , M.D., individually and in his official capacity as Associate Medical Director; A

N U R A G G U P T A , M.D., individually ; S O U T H E R N N E V A D A A D U L T M E

N T A L H E A L T H S E R

V I C E S ; C H E L S E A S Z K

L A N Y , individually

and in her official capacity

as Administrator; N E V

A D A B U R E A U O F H E A L T H C A R

E Q U A L I T Y A N D C O M P L I A

N C E ; N E V

A D A D I V I S I O N O F H E A L T H , D I V I S I O N O F M E N T A L H E A L T H A

N D D E V E L O P M E

N T A L S E R V I C E S ; R I C H A R

D W H I T L E Y , in his official capacity

as Administrator of the Nevada Division of Public and B ehavioral Health, formerly Nevada Division of Health and the Nevada Division of Mental Health & Developmental Services; N E V A D A D E P A R T M E N T O F H E A L T H A

N D No. 14-16458

D.C. No. 2:13-cv-01039- J CM-PAL

OPI NI ONB R O W N V

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H U M A N S E R V I C E S ; M I K

E W I L L D E

N , in his official capacity

as Director; L I N D A J

. W H I T E M.D., individually and in her official capacity as Statewide Psy chiatric Medical Director of the State of Nevada; K Y L E D E V I

N E , in his official capacity as B u reau Chief of the Nevada B ureau of Health Care Quality and Compliance,

Defendants-Appellees.

A ppeal from the United States District Court for the District of Nevada J ames C. Mahan, District J udg e, Presiding

Arg ued and Submitted Aug ust 8, 2016 San F rancisco, California

F iled November 4, 2016

B e fore: J . Clifford W allace and Susan P. Graber, Circuit J udg es, and B arbara M. G. L y nn, * Chief District J udg e.

Opinion by

Chief District J udg e L y

nn; Dissent by

J udg e Graber

* T h e Ho n o rab le B arb ara M. G

. Ly n n , C h ief District J u d g e f or th e U.S. District C o u rt f

o r th e No rth ern District o f T ex as, sittin g b y d esig n atio n

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SUMMARY * *

Civil Rights

The panel affirmed the d istrict court’s dismissal, pursuant to F ed. R. Civ. P. 41(b), of an action arising from plaintiff’s discharg e f

rom the Rawson-Neal Psy c hiatric Hospital in L a s Ve ga s , Nevada, a

n d h is subsequent transportation to Sacramento, California.

The district court initially dismissed plaintiff’s fe d e r al constitu tional and statutory claims without prejudice under F ed. R. Civ. P. 12(b)(6), with leave to amend. Plaintiff, w ho was represented by

counsel, moved for reconsideration. The district court denied that motion and, a g ain, g ranted p laintiff leave to amend his complaint. W h en plaintiff did not timely file an amended complaint or otherwise respond to the court’s order, the district c o urt dismissed the federal claims with prejudice, as a sanction under Rule 41(b).

The panel held that plaintiff waived the arg ument that the district court a

bused its discreti o n in dismissing his federal claims under Rule 41(b) by fa i l i ng to raise the issue in his opening brief. The pane l held that in the absence of a showing that the district court abused i t s discretion, a nd because the prior interlocutory order of dismissal under Rule 12(b)(6) was not reviewable, there was no basis to appeal.

Dissenting

, J udg e Graber stated that (1) the panel should have ex ercise d d i s cretion to consider the Rule 41(b) issue;

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B R O W N V

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(2) the district court abused its discr e t i o n by dismissing the

case as a sanction u n der Rule 41(b), rather than on the merits under Rule 12(b)(6); and ( 3 ) on the merits t h e d i s trict court erred in ruling that plaintiff failed to state a federal claim.

COUNSEL

Mark E. Merin (arg

ued) and Paul H. Masuhara, L aw Office of Mark E. Merin, Sacramento, California; Staci J

. Pratt a nd Allen L ichtenstein, Allen L ichtenstein, Attorney at L aw L td., L as Veg a s, Nevada; for Plaintiff-Appellant.

L inda C. Anderson (arg

ued), Chief Deputy Attorney General, Office of the A ttorney General, L a s V eg as, Nevada, for State Defendants-Appellees.

David P. Pruett (arg

u ed), Carroll Kelly Trot t e r F ranz en McKenna & Peabody

, L ong B eac h

, California, for Defendant-Appellee L inda J . W hite, M.D.

OP INION

L YNN, Chief District J udg e:

Appellant J ames F lavy Coy B rown appeals from t he district court’s judg ment dismissing h is stat e a n d federal cl aims ag ainst Southern Nevada Adult Mental Health Services, Chelsea Sz klany

, Mike Willden, Richard Whitely

, L eon Ravin, M.D., A n u ra g G upta, M.D., and Ky le Devine (the “State Defendants”), arising out of his F ebruary 11, 2013 discharg e from the Rawson-Neal Psy chiatric Hospital in L a s Veg as, N evada and subsequent transportation to Sacramento,B R O W N V

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California. W e have jurisdict i o n p ursuant to 28 U .S.C. § 1291, and we affirm.

I

.

The distri ct court initially d ismissed B rown’s federal constitutional and statutory claims without prejudice under F ed. R. Civ. P. 12(b)(6), including his claims under 42 U .S.C. § 1 9 8 3 for alleg ed violations of his rig h ts under the Eig hth, F ourth, a nd F ourteenth A mendments to t h e United States Constitution; alleg ed violations of the Ameri cans with Disabilities Act, 42 U.S.C. § 1 2 1 0 1, et seq.; and alleg ed violations of the Emerg e ncy Medical Treatment and Active L abor Act, 42 U.S.C. § 1395dd, e t seq. The district court also
g ranted B rown leave t o a m end his complaint, but B rown, who was and is represented by c o u n s e l

, instead moved for reconsideration. The district court denied that motion and,
ag ain, g ranted B rown leave to amend h i s c omplaint. After B rown did not timely file an amended complaint, the district
court ex te n d e d t he deadline and warned B rown that his failure to file an a mended compla i n t w i thin the time prescribed may r esult in dismiss a l o f his constitutional a nd federal statutory claims with prejudice. W hen B rown did not timely file an amended complaint or otherwise respond to the court’s order, the distr i c t court dismissed B rown’s federal claims w ith prejudice, as a sanc tion under F ed. R. Civ. P. 41(b). T he district court further dismissed B rown’s supplemental state law claims without prejudice.

Notwithstanding the d ismissal under Rule 41(b), Br o wn filed this appeal, seeking judicial review of the district court’s

o r d ers dismissing his complaint under Rule 12(b)(6) a n d deny ing h is motion for reconsideration, ig noring the fact that the case was dismissed as a s a nction under Rule 41(b), a ndB R O W N V

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that in lig ht o f that, the Rule 12(b)(6) o r d e r s were not reviewable. S

e e Al-Torki v. Kaempen
, 7 8 F .3d 1381, 1386 (9th Cir. 1996); see also Edwards v. Marin Park, Inc
., 356 F .3d 1058, 1065 (9th Cir. 2004).

B r own did not raise in his opening brief th e i s s u e o f whether the district court abused its discretion in dismissing the case as a sanction u nder Rule 41(b). I ndeed, in outlining the p rocedural history of the c ase in his opening brief, B rown

m e ntioned neither the Order warning him of an impend i n g dismissal with prejudice if he failed to amend, nor the Order dismiss i n g his federal claims with prejudice under Rule 41(b).

I I

.

W e g enerally do not consider issues that are not raised in the appellant’s opening brief. See, e.g. , McKay v. I n gleson

, 558 F

. 3d 888, 891 n. 5 ( 9 th Cir. 2009). However, althoug h the
court has d iscretion under these circumstances to consider an arg ument not raised in the o pening brief, it is not oblig ated to do so. In re Riverside-Linden Inv. Co.
, 945 F .2d 320, 324 (9th Cir. 1991).

W e decline to ex e rc ise our discretion in B rown’s favor. His failure to mention in his opening brief the final Order o f Dismissal under Rule 41(b) was e i t h er g rossly neg lig ent o r dising enuous. W e hold that B rown waived the arg u ment that the district court abused its d i s c retion in d ismissing his federal claims under Rule 41(b). I n the absence of a showing that the district court abused its discretion, because the prior int e r l o c utory order of dismissal under Rule 1 2(b)(6) is not reviewable, there would be no basis to appeal. Having failedB R O W N V

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to make in his opening brief the abuse of discretion arg ument as to Rule 41(b), B rown waived it.

The d issent asserts that we should ex ercise our discretion i n B rown’s favor b ecause the State Defendants raised t h e Rule 41(b) issue in their a nswering brief and thus did not suffer any prejudice. W e disag ree for three reasons. F irst, we do not ag ree that the State Defendants were not prejudiced b y B rown’s failu re to raise the Rule 41(b) issue. Althoug h the State Defendants d id address t h e i s sue in their answering brief, t h e y d i d so without the b enefit of any thing to a rg ue ag ainst. They had t o address w hat arg uments B rown mig ht have made, had he addressed the issue, and then refute them. B rown, on the other hand, discussed the issue at leng th in his reply brief and the S t ate Defendants were not g iven an opportunity

to respond to those arg uments. According ly , we do not a ssume that the State Defendants d i d not suffer any prejudice, simply because they had the foresig ht to a ttempt to address the issue unprompted.

Second, the decision the dissent relies on in its w aiver discussion, United States v. Ullah

, 9 7 6 F. 2d 509 (9th Cir. 1992), is disting u ishable. Ullah is a criminal case in which one defendant raised an issue in his opening brief, w hile the co-defendant (Ullah) did not. Thus, we concluded that “it is manifestly unjust to reverse the convictio n of one codefendant but to uph o l d t he conviction of another codefendant w hen the same error affected b oth defendants.” Id.
at 514. Corresponding ly

, we ex ercised o u r discretion to consider the arg ument that was unraised by only o ne defend a n t , but was before the court. The present c ase does
not involve a criminal d ef e n d a nt who will lose his liberty if

we do n o t ex ercise our discretion. Rather, our case involves

a civil a ppellant who tiptoed around a central issue in h i sB R O W N V

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opening brief. Whether the om ission was intentional o r merely neg lig ent, it was a sig nificant e rror. Unlike in Ullah

, there is no reason to “deviate f rom o ur usual practice in this case.” E.E.O.C. v. Peabody W e stern Coal Co.
, 773 F .3d 977, 990 (9th Cir. 2014).

Third, we dispute the dissent’s characteriz a tion of our decision a s “ a triumph of procedural rig idity ” that serves no other purpose. W e understand that our rules about p r eserving issues can sometimes seem academic and formalistic, rather than p ractical. There are, how e ver, important reasons for holding that an appellant waives an issue if it fails to provide
arg ument about the is sue in its opening brief. Rules a re enforced to deter the ty

p e of improper, or inattentive, conduct that o ccurred here. Moreover, “appellate courts do not sit a s self-directed boards of lega l i nquiry and research, but essentially as arbiters of leg al questions presented and a rg u ed by the parties before them.” United States v

. M a g eno , 762 F .3d 933, 954–55 (9th Cir. 2014) ( W al lace, J
., dissenting) ( vacated on other g rounds), quoting Nat’l A e r onautics & Space A dmin. v. Nelson

, 562 U.S. 134, 1 3 1 S.Ct. 746, 756 n. 10, 178 L

. E d

. 2 d 667 (2011). W e thus reasonably require parties to preserve valid issues in order to

conserve judicial resources and to assist our r e v i ew. Greenwood v. F.A.A.
, 28 F .3d 971, 977 (9th Cir. 1994), citing United States v. Dunkel

, 927 F .2 d 9 5 5
, 956 ( 7th Cir. 1 991) (“J udg es a

re not like pig s, hun t i n g for truffles buried in briefs.”). That principle dictates f inding waiver on these facts.

AF F IRMED.B R O W N V

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GRAB ER, Circuit J udg e, dissenting :

I respectfully di s s e n t

. I n my view, we should ex ercise discretion to consider the Rule 41(b) issue; the district court abused its discretion by dismissing the case as a san c t i o n under Rule 4 1(b), rather than on the merits under Rule 12(b)(6); and on the merits the district court e r r e d i n ruling that P l a i n t iff failed to state a federal claim. According ly

, I would reverse and remand for further proceeding s.

1. W e have discretion to address Rule 41( b)

.

A s t h e majority recog niz e s, we have discretion to consider the Rule 41(b) issue. United States v. Ullah

, 976 F .2d 509, 514 (9th C i r

. 1 9 92). At least two of the

reasons that motivated us to reach the u nraised issue in Ullah also are present here. F irst, the Rule 41(b) issue was raised— and discussed at leng th—in the Defendants’ answering brief. Id. Second, Plaintiff’s failure to raise t h e issue has not prejudiced Defendants’ defense; in the i r brief, Defendants both responded to the substance of Plaintiff’s opening brief and put forth an arg ument concerning t he Rule 41(b) issue. Id. Plaintiff, for his part, responded to the Rule 41(b)
arg ument in his reply

brief. 1

The majority correctly points ou t t hat, unlike Ullah

, this

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

1 T h e m aj o rity n o t es th at Def en d an t s did n o t f

ile (an d th ey d id n o t ask
to f ile) an o th er b rief co n cer n in g Ru le 4 1 (b ), f o llo w in g P lain tif

f ’ s rep ly b r i e f. B u t w e h eld oral arg u m en t at w h ich Def en d an ts h ad a fu l l

o p p o rtu n ity to d iscu s s th e issu e. T h u s it is n o t en tirely co rrect t o state th at Def en d an ts “ w ere n o t g i v en an op p o rtu n ity to resp o n d .” (Maj

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liberty if we do n ot ex e rcise o ur discretion.” (Maj. o p. at pag e 7.) B ut that distinction is relevant o nly to the “manifest injustice” g round 2 f

or reaching a

n unraised issue, n ot to t he other two g rounds, each of which is independently adequate. Here, as in Ullah

, “the discus s i o n of the [ unraised] issue in th[ e] briefs is sufficient to permit an informed resolut i o n o f the dispute.” 976 F

. 2d at 514. F ailing to add ress the Rule 41(b) issue in these circumstances is a triumph of procedural rig idity but serves no other purpose.

2. The district court ab u sed its discretion under Rule 41( b)

.

Dismissal as a sanction i s a h arsh penalty to be imposed only in ex treme c ircumstances. In re Phenylpropanolamine ( PPA) Prods. Liab. Litig.
, 460 F .3d 1 2 1 7 ( 9th Cir. 2006). The district court g ranted Plain t i f f leave to a mend the complaint. He did not do so. The d istrict court then promptly dismissed Plaintiff’s federal law claims with prejudice under Rule 41(b) as a sanction for failing to c o m ply with a court order. 3 That decision was an abus e o f d i scretion for the

2 Giv en th e erro rs h ere, b oth p ro ced u ral an d su b stan tiv e, th e m an if

est in j u stice ex cep tio n also m ay ap p l y , j u s t a s it d id in Ulla h

. P lain tif f ’ s claim —th at n otw i th stan din g h is d elu sio n al an d su icid al state, Def en d an ts p laced h i m o n a b u s ag ain s t h is w i ll an d sen t h im

, w ith o u t m o n ey or i d en tif i catio n , to a d istan t city w h ere h e lack ed an y ties—d escrib es a situ atio n th at, if p ro v ed , m ay

b e as o n ero u s as b ein g in carcerated

.

3 T h e d istrict co u rt d i d n o t rely o n an alleg ed f ailu re to p ro secu te. S

ee Omstea d v. Dell, In c. , 5 9 4 F.3 d 1 0 8 1
, 1 08 4 (9 th Cir. 2 0 10 ) (h o ld in g th at

a d ism issal f

o r f ailu re t o p ro s ecu te m

u st b e su p p o rted b y a sh o w in g of

u n reaso n ab le d elay ). T h e d ism issal w ith p rej u dice o ccu rred less th an 3 0 d ay s af ter leav e to am en d w as g ran ted

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simple reason that, u nder our precedents, Plaintiff did not fail to comply with a court order.

W h en a district court req u i res a plaintiff to file an amended complaint, the cour t may dismiss the case under Rule 41(b) if the plaintiff fails to follow the requirement. See Y o urish v. Cal. Amplifer

, 1 9 1 F. 3 d 983, 986 n.2 (9th Cir. 1999) (noting that the order stated that an “[ a] mended complaint shall be filed within 6 0 d ay s (emphasis a d d e d )); F e r d ik v. Bonzelet

, 963 F .2d 1258, 1260 (9th Cir. 19 9 2 ) (stating th a t the court “ordered” and “required” the filing o f

a second amended c omplaint); Edwards v. Marin P a rk, Inc.
, 356 F .3d 1058, 1065 ( 9th Cir. 2004) (“ Y ourish and Ferdik both arose when plaintiffs, g iven the opportunity to a mend o r be dismissed, did nothing

. . . . The failure o f the p laintiff eventually to respond to the c o u r t ’ s ultimatum —either b y

a m ending the complaint or by indicating to the court that i t will not do so—is properly met with the s a n c t i on of a Rule 41(b) dismissal.” (second emphasis added)).

B u t here, the district c ourt did not require Plaintiff to file

an amended com p laint, nor did the court require in the alternative that Plaintiff fi l e an amended complaint or some other specifie d document. The c ourt’s order deny ing Plaintiff’s motion for reconsideration merely g ranted leave to amend, with p ermissive tex t allo w i n g Plaintiff to amend o r not: The “ plainti f

f

, i f he chooses to amend his complaint, [ must] file a motion to amend within f ourteen ( 1 4 ) day s.” (Emphasis added.) L ater, the court w arned, without citation
to Rule 41(b), that “failure to file an amended c o m p laint within this time may r esult 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 t h eB R O W N V

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motion f or reconside r ation, he understandably hoped f or a dismissal, which he reasonably thoug ht would be under Rule 12(b)(6). After all, the district cour t n ev e r ordered Plaintiff
to file an amended c omplaint, as the courts had in Y ourish o r Ferdik

. Leave to amend w as g ranted; failure to amend did
not constitute noncompliance w ith a court order. Simply put, there w a s n o “ultimatum” within the meaning of our precedents, and so the district court a b u s e d its discretion in dismissing Plaintiff’s federal claims under Rule 41(b).

3. Plaintiff stated a claim for relief

.

I n v i e w o f the erroneous Rule 4 1(b) dismissal, I would reach the merits of the dist r i ct court’s dismissal u nder Rule 12(b)(6). W e review de novo. Edw a r d s , 3 5 6 F .3d at 1061, 1065.

The operative c omplain t contains seven federal law claims, thoug h many of them may be view ed as a lternative theories o f liability rather than a s distinct claims for relief. Each claim rests on the following set of alleg ed facts. A
state-run p sy chiatric hospital and numerous individual doctors and state health o fficials eng ag ed in, or approved of,

a practice of “Grey

hound therapy ,” in which p a t ients were involuntarily discharg ed from the hospital a n d ordered to board ( or tricked into boarding ) buses bound for out-of-state destinations. No arrang e ments were made f or the patients’

care in the destination cities

, n or were the cities chosen because the patients had ties to them. Plain t i ff was sent to Sacramento, “a city with which he h ad no prior c ontact, and where he knew no one.”

At the time he w as sent to Sacramento, Plaintiff had been in the hospital for o nly a few day s. H e had b een admittedB R O W N V

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“with a diag n osis o f psy chosis, hearing voices, and thinking of suicide” and was g iven various “psy chotropic medications which affect thinking and judg ment” during his short stay

. He w as released “without money , identification or Medicaid card” and in a delusional and suicidal state. I n short, Plaintiff alleg es that a state-ru n p sy chiatric h ospital decided to ship him to another state—without r eg ard f or what kind of c are, if
any , he mig ht receive upon arrival—rather than to provide him treatment.

I t should be plain enoug h even from this abridg ed v ersion of the f acts that Plaintiff’s c o mplaint states a plausible claim for relief under a substantive due process th e o r y

. “[ T] he state’s failure to protect an individual ag ainst private violence

. . . can [ violate the g uarantee o f due process] where the state action ‘ affirmatively places the p laintiff in a position o f dang er,’ that is, where state action crea t es or ex p oses an individual to a dang e r w hich he or she would n ot have otherwise faced.” Kennedy v. City of R i dgefield

, 439 F .3d 1055, 1 061 (9th Cir. 2006) (brackets omitted) (quoting W ood

v. Ostrander

, 879 F .2d 583, 589–90 (9th Cir. 1989)); see also Pauluk v. Savage
, No. 14-15027, 2016 W L 4698287, at *4–6 (9th Cir. Sept. 8, 2016) (disc u s s i n g “state-created dang e r” doctrine).

The district court rej ec ted Plaintiff’s substantive d ue process t h eory b ecause he made “no alleg ation that [ the] defendants caused [him] to be in a dang erous situation. I ndeed, before [ P] laintiff w as admitted to [ the hospital] he

was homeless and in n eed of psy chiatric care.

. . . [T] he complaint makes it very cle a r that [P] laintiff faced these dang ers prior to any

interaction with [ the] defendants.” B ut Plaintiff faced quite different d ang ers in Sacrament o, an unfamiliar c ity to which he h ad no ties, than he had faced inB R O W N V

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L as V eg as, the ci t y w h e re he resided. And even if Plaintiff faced the same kinds of dang ers in b o t h p l a ces, he has plausibly a lleg ed that D efendants’ affirmative acts ex p osed him to a g reater dang er than he otherwise would have faced, which is sufficient to state a due process claim. See Kennedy

, 439 F .3d at 1063 n.4 (not i n g t h at “this court has already specifically rejected the ‘dang e r creation’ versus ‘ d a ng er enhancement’ distinction”).

I f even o n e theory supporting a claim for relief is plausible, the claim c annot be dismissed under Rule 12(b ) ( 6 )

. 4 See Haddock v. B d

. of Dental Exam’rs of Cal.

, 777 F .2d 462, 464 (9th Cir. 1 985) (stating that “a complaint should n ot b e d i s m i s sed if it states a claim under any leg al theory

, even if the plaintiff erroneously relies on a d i ff e r e nt leg al theory ”); see also F ed. R. Civ. P. 8(d)(2) (“A party may set out 2 o r more statements of a claim or defense alternatively or hy

pothetically

, either in a sing le c ount o r defense o r in separate ones. I f a part y m a k es a lternative statements, the pleading is sufficient if a n y o n e of them is sufficient.”). B ecause 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).

F or all these reasons, I

dissent.

4 B y f o cu sin g o n ly o n

o n e th eo ry

I d o n o t m ean to su g g est th at n on e

o f P lain tif f ’ s o th er th eo ries states a claim

.