McGee v. Milpitas Police Department

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 20 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ANTHONY McGEE, No. 23-3670 D.C. No. 5:23-cv-02559-VKD Plaintiff - Appellant, v. MEMORANDUM* MILPITAS POLICE DEPARTMENT; CITY OF MILPITAS; OFFICER DOE, Defendants - Appellees. Appeal from the United States District Court for the Northern District of California Virginia Kay DeMarchi, Magistrate Judge, Presiding** Submitted March 17, 2025*** Before: CANBY, R. NELSON, and FORREST, Circuit Judges. Anthony McGee appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations of the Fourth * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). We affirm. The district court properly dismissed McGee’s action because McGee failed to allege facts sufficient to show that he suffered a constitutional violation as a result of an official policy or custom. See Lockett v. Cnty. of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020) (discussing requirements to establish municipal liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” (citation and internal quotation marks omitted)). The district court did not abuse its discretion in denying McGee’s motions for entry of default and default judgment because defendants filed a timely motion to dismiss. See Fed. R. Civ. P. 55(a) (providing that a default can be entered against a party only where that party “has failed to plead or otherwise defend”); Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 689 (9th Cir. 1988) (a default judgment is inappropriate if defendant indicates its intent to defend the action); Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986) (setting forth standard of review and factors for determining whether to enter 2 23-3670 default judgment and explaining that “default judgments are ordinarily disfavored”). We reject as unsupported by the record McGee’s contentions that documents submitted under seal by defendants were publicly filed or that the district court should have applied judicial estoppel. We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009). All pending motions are denied. AFFIRMED. 3 23-3670