                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 08 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



NUBIAN AMON RA; KRISTINA                         No. 09-17905
DUNN,
                                                 D.C. Nos.    4:06-cv-00470-CKJ
              Plaintiffs - Appellants,                        4:06-cv-00555-CKJ

  v.
                                                 MEMORANDUM *
COCHISE COUNTY, an Arizona
municipality; COCHISE COUNTY
SHERIFF’S DEPARTMENT; M.
DENNEY, Sgt.; G. WHEELER, Detective;
R. GERENCSER, Detective; ABNEY,
Detective; RITCHIE, Detective; MARK
DANIELS, Lt.; KEVIN JAMKA,
Detective; GENE WHEELER, Cpl.;
URSULA RITCHIE, Detective; THAD
SMITH, Sgt.; UNITED STATES OF
AMERICA; MARK STRICKLAND, FBI
Agent; KEVIN BLACK, DEA Agent,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                        Argued and Submitted May 9, 2011


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                               San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District Judge.**

      Plaintiffs-Appellants Nubian Amon Ra and Kristina Dunn (collectively

“Plaintiffs”) appeal two orders of the district court that dismissed with prejudice

claims against Defendants-Appellees Cochise County and several individual

county employees (collectively “County Defendants”), and claims against the

United States, FBI Special Agent Mark Strickland, and DEA Special Agent Kevin

Black (collectively “Federal Defendants”). We have jurisdiction under 28 U.S.C.

§ 1291. We reverse the dismissal of Plaintiff Amon Ra’s excessive force claim

against County Defendants. In other respects, we affirm.

                                            I

      We affirm the district court’s dismissal of the claims against Federal

Defendants. Plaintiffs failed to state a plausible claim for relief with regard to

malicious prosecution, intentional infliction of emotional distress, and common-

law conspiracy. See United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., 637

F.3d 1047, 1054 (9th Cir. 2011) (holding that we must “inquire whether the

complaint’s factual allegations, together with all reasonable inferences, state a



       **
            The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.

                                            2
plausible claim for relief”); see generally Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949–50 (2009). At most, Plaintiffs alleged that Federal Defendants provided

information to state and federal prosecutors. The complaint did not allege that

Federal Defendants acted with malice. Nor did the complaint identify extreme or

outrageous conduct committed by Federal Defendants. Because Plaintiffs did not

state a claim against Federal Defendants for malicious prosecution or intentional

infliction of emotional distress, Plaintiffs necessarily did not state a claim for

common-law conspiracy based on those underlying torts. Plaintiffs’ Bivens claim

also fails because, on appeal, Plaintiffs challenge only the dismissal of their

conspiracy claim, not the dismissal of the underlying First and Fourth Amendment

claims. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971).

                                           II

                                           A

      For the reasons stated by the district court, we affirm the dismissal of

Plaintiff Amon Ra’s equal protection claim against County Defendants. Amon Ra

did not allege sufficient facts to show that he was targeted for selective

enforcement of the laws, or that County Defendants acted with “an intent or

purpose to discriminate against [Plaintiff] based upon membership in a protected


                                            3
class.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). We also

affirm the district court’s dismissal of Cochise County as a defendant. Amon Ra’s

allegations fall short of indicating the existence of a policy or custom. Amon Ra

alleged that the County must have known and acquiesced in the investigation given

its length and scope, but that allegation, standing alone, is not sufficient. See Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be

enough to raise a right to relief above the speculative level . . . .”).

                                             B

       We reverse the district court’s dismissal of Amon Ra’s Fourth Amendment

excessive force claim against County Defendants. At oral argument, counsel for

Cochise County stated: “[I]n a situation where there’s a high-risk entry—a

warranted, high-risk entry—and officers have their guns drawn and are pointing

them at the occupants, I don’t believe that that states a claim for excessive force.”

We reject this characterization of the complaint and the law. See Espinosa v. City

& Cnty. of San Francisco, 598 F.3d 528, 538 (9th Cir. 2010) (holding that the

degree of risk presented by a suspect was a factual question). Amon Ra did not

allege that he was a high-risk target or that the raid on his home required a high-

risk entry, and we decline to read such facts into the complaint.




                                             4
      The district court dismissed this claim because there were “no allegations

that [C]ounty Defendants were the officers who entered the residence or that

[C]ounty Defendants knew of the conduct in the residence.” We disagree. The

Second Amended Complaint at paragraph 28 alleges that “the listed individual

Defendants were either part of the SWAT team that entered the home, entered the

home after the SWAT team entered, and/or took part in the planning for the SWAT

entry.” The complaint further alleges that “[t]he individually listed Defendants

took part in the decision to use a heavily armed SWAT team to enter the home

despite having information that Plaintiff and[] his wife live in the home with their

minor children.” The district court concluded that “Amon Ra has alleged no factual

basis to support the conclusory allegations that all actions are attributed to all

Defendants.” But Amon Ra has alleged specific facts indicating that the named

County Defendants personally participated in the raid, or were in the home during

and after the raid, or otherwise participated in the planning of the raid and the

decision to use a heavily-armed SWAT team against Amon Ra and his wife and

children. The complaint sufficiently alleges that County Defendants played an

“affirmative part in the alleged deprivation of constitutional rights.” King v. Atiyeh,

814 F.2d 565, 568 (9th Cir. 1987). We reverse the district court’s dismissal of

Amon Ra’s Fourth Amendment claim of excessive force against County


                                            5
Defendants. The excessive force claim was not properly dismissed at the pleadings

stage.

         AFFIRMED in part, REVERSED in part, and REMANDED. The parties

shall bear their own costs on appeal.




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