                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 17 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JEREMY ROCHA,                                    No. 13-17267

              Plaintiff - Appellant,             D.C. No. 1:13-cv-00796-LJO-GSA

 v.
                                                 MEMORANDUM*
COUNTY OF TULARE, California, a
California General Law County and
GABRIEL MACIAS, a deputy of the
Tulare County Sheriffs Office,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                    Argued and Submitted November 16, 2015
                            San Francisco, California

Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.

      Jeremy Rocha appeals the dismissal with prejudice of his second amended

complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The district court did not err in dismissing Rocha’s 42 U.S.C. § 1983

claims because Rocha failed to allege a violation of his federal constitutional or

statutory rights, a necessary predicate for § 1983 liability. See Leer v. Murphy, 844

F.2d 628, 632–33 (9th Cir. 1988). Rocha’s generalized allegations regarding the

manner of the search are factually insufficient to state a Fourth Amendment claim

for excessive force. See Cameron v. Craig, 713 F.3d 1012, 1021 (9th Cir. 2013);

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Similarly, the bare allegation

that defendants seized Rocha’s firearm during a warrant-backed search is

insufficient to state a Second Amendment violation. See D.C. v. Heller, 554 U.S.

570, 626–27 (2008). Because Rocha has not sufficiently alleged a constitutional

violation, his theory of municipal liability also fails. See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690–91 (1978).

      2. Rocha’s allegations that defendants violated his rights under Title II of

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq., by

failing to accommodate his hearing impairment are also insufficient to state a

claim. Rocha does not allege facts suggesting that defendants were aware of his

hearing impairment and acted with deliberate indifference, both of which are

necessary for an award of monetary damages. See Duvall v. Cnty. of Kitsap, 260

F.3d 1124, 1138–39 (9th Cir. 2001), as amended on denial of reh'g (Oct. 11,


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2001). The district court did not err in dismissing Rocha’s direct ADA claim

against the County for failure to accommodate because Rocha has not alleged any

ADA violations for which the County may be held vicariously liable. See id. at

1141.

        3. Nor did the district court err in dismissing Rocha’s claims under the Bane

Act, Cal. Civ. Code § 52.1, because interference with a statutory or constitutional

right is a necessary predicate for Bane Act liability. See Gillan v. City of San

Marino, 55 Cal. Rptr. 3d 158, 167 (Cal. Ct. App. 2007). Rocha’s possession of a

medical marijuana recommendation does not grant him an unlimited right to

possess and cultivate medical marijuana under California law. See People v. Kelly,

222 P.3d 186, 188 (Cal. 2010); People v. Wayman, 116 Cal. Rptr. 3d 833, 839

(Cal. Ct. App. 2010). Nor does it render the search and seizure violative of the

Fourth Amendment on the facts alleged. Without more, Rocha’s allegation that

defendants knew he possessed a medical marijuana recommendation does not

negate probable cause and render the search and seizure unreasonable under

California law. See People v. Clark, 178 Cal. Rptr. 3d 649, 656 (Cal. Ct. App.

2014), review denied (Dec. 17, 2014).

        4. Because Rocha did not plead a violation of his constitutional or statutory

rights, the district court’s alternative holding that the doctrine of qualified immunity


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bars Rocha’s claims was not erroneous. See Ashcroft v. al-Kidd, 131 S. Ct. 2074,

2080 (2011).

      5. The district court did not abuse its discretion by denying Rocha leave to

file a third amended complaint. The district court dismissed Rocha’s first amended

complaint (“FAC”) without prejudice, informed Rocha of the FAC’s deficiencies,

and granted him leave to file a SAC. The SAC, however, did not cure the identified

deficiencies, and Rocha pointed to no additional facts that could support his claims.

See Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1012 (9th Cir. 2011).

      AFFIRMED.




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