                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 5 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MATTHEW A. NEIDERMEYER,                         No.    16-55233

                Plaintiff-Appellant,            D.C. No.
                                                8:14-cv-01209-JLS-DFM
 v.

MICHAEL CALDWELL, CHP Officer                   MEMORANDUM *
#20073, individual and official capacity,

                Defendant-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                      Argued and Submitted October 2, 2017
                              Pasadena, California

Before: M. SMITH and NGUYEN, Circuit Judges, and SETTLE, District Judge.**

      Matthew Neidermeyer appeals the district court’s grant of summary

judgment in favor of California Highway Patrol Officer Michael Caldwell. 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 Ninth Circuit Rule 36-3.
      **
             The Honorable Benjamin H. Settle, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.
      1. The district court properly granted Officer Caldwell summary judgment

on Neidermeyer’s investigatory stop claim. “In reviewing the district court’s

determination of reasonable suspicion, we must look at the ‘totality of the

circumstances’ to see whether the officer had a ‘particularized and objective basis’

for suspecting criminal activity.” United States v. Colin, 314 F.3d 439, 442 (9th

Cir. 2002) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). Video

evidence shows Neidermeyer drifting to the left within the traffic lane and then

quickly making an unsafe lane change. These apparent traffic offenses, see

California Vehicle Code §§ 21658(a), 22107, created reasonable suspicion that

justified an investigatory stop of the vehicle.

      2. The district court properly granted Officer Caldwell summary judgment

on Neidermeyer’s unlawful arrest claim. Even assuming that Officer Caldwell

lacked probable cause to arrest Neidermeyer for being under the influence of a

controlled substance, Neidermeyer “bears the burden to show that the contours of

the right were clearly established.” Clairmont v. Sound Mental Health, 632 F.3d

1091, 1109 (9th Cir. 2011). Neidermeyer has failed, both here and before the

district court, to identify controlling authority or a “consensus of cases of

persuasive authority such that a reasonable officer could not have believed that his

actions were lawful” in similar circumstances. Wilson v. Layne, 526 U.S. 603, 617

(1999). In fact, Neidermeyer cites no cases at all, contending that the California


                                           2
statute on driving while under the influence of a controlled substance (DUI) alone

shows that he was arrested without probable cause. But the operative question is

whether it was “clearly established” that an officer could not arrest someone for

DUI under the undisputed facts in this case.

      Here, construing the facts in the light most favorable to Neidermeyer,

Officer Caldwell, who was trained as a Drug Recognition Expert, observed

Neidermeyer’s car drifting within its lane and then making an unsafe lane change.

After the traffic stop, Officer Caldwell also observed Neidermeyer’s delayed eye

response during a nystagmus test.1 Neidermeyer’s behavior during the stop was

unusual, including his atypical and continuous commentary and his flinging

himself on the ground. Additionally, Neidermeyer spoke quickly and exhibited

signs of paranoia, which Officer Caldwell had been trained to recognize as possible

signs of stimulant use. Neidermeyer has not shown that, faced with these facts, a

reasonable officer would have known that he lacked probable cause to arrest

someone for suspicion of driving under the influence of a controlled substance.

Since this is a “dispositive inquiry,” Saucier v. Katz, 533 U.S. 194, 202 (2001), the


1
  Neidermeyer argues that Officer Caldwell lied about the nystagmus test results,
but offers no evidence to support this allegation. We therefore doubt that
Neidermeyer’s allegation is enough to put the fact of the delayed eye response in
dispute. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A summary
judgment motion cannot be defeated by relying solely on conclusory allegations
unsupported by factual data.”). But even if this fact were disputed, Neidermeyer’s
driving and subsequent behavior alone are sufficient to support our holding.

                                          3
district court properly granted Officer Caldwell qualified immunity on this claim.

      Neidermeyer argues that Officer Caldwell must have known he could not

punitively arrest him for refusing to answer questions. Even assuming

Neidermeyer’s refusal to answer questions was a factor in his arrest, Officer

Caldwell’s “[s]ubjective intentions play no role” in the Fourth Amendment

probable cause analysis. Whren v. United States, 517 U.S. 806, 813 (1996).

Instead, we must look to what a reasonable officer would do in light of the

objective facts. United States v. Magallon-Lopez, 817 F.3d 671, 675 (9th Cir.

2016). Here, the objective facts do not indicate that Officer Caldwell must have

known that he lacked probable cause.

      The dissent notes that the police “may not disregard facts tending to

dissipate probable cause.” Dissent at 2, citing Ramirez v. City of Buena Park, 560

F.3d 1012, 1023-24 (9th Cir. 2009). But, viewing the evidence in the light most

favorable to Neidermeyer, the officers encountered no such facts. On the contrary,

Neidermeyer’s bizarre behavior intensified throughout the encounter. After being

asked to to step out of his car—a common measure during a lawful investigatory

stop, see Ramirez, 560 F.3d at 1021—Neidermeyer demanded that he be allowed

to stand “in public”; told the car’s passenger that the officers “are not men that can

be trusted at this point”; threw himself on the ground in response to a request to

take a step; told the officers “take me in, arrest me”; and twice shouted “I’m afraid


                                          4
for my life.” He also told his companion to put her cell phone “in [her]

underwear” to preserve her cell phone recording of the encounter, and later urged

her to leave the car and “run to safety.”

      The dissent suggests that a jury could have found this to be fearful behavior

that was reasonably provoked by Officer Caldwell’s conduct. But, as the district

court noted, the video at no point shows Officer Caldwell or his partner “raising his

voice or acting in a manner that would prompt these statements and behavior from

Neidermeyer.” Neidermeyer may not have been obligated to answer Officer

Caldwell’s questions about his intended destination, but the questions themselves

assuredly were permissible—indeed, “[a]sking questions is an essential part of

police investigations.” Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177,

185 (2004). In light of the undisputed facts in this case, including Neidermeyer’s

increasingly unusual behavior during the lawful investigatory stop, we cannot say

that a reasonable officer would have known he lacked probable cause to arrest

Neidermeyer for a controlled substance DUI.

      3. The district court properly granted summary judgment on the malicious

prosecution claim. “[T]here is a rebuttable presumption that a prosecutor exercises

independent judgment regarding the existence of probable cause in filing a

complaint . . . insulat[ing] the arresting officers from liability.” Smiddy v. Varney,

803 F.2d 1469, 1471 (9th Cir. 1986); see also Beck v. City of Upland, 527 F.3d


                                            5
853, 862 (9th Cir. 2008). The prosecutor, who had access to video of the arrest,

testified in his deposition that he exercised independent judgment in deciding to

file charges against Neidermeyer, and in fact also filed an additional charge not

recommended in Officer Caldwell’s report. Neidermeyer claims that the police

reports contain false information. We have the benefit, as did the district court, of

the videos documenting the traffic stop. While the police reports certainly

characterize the evening’s events differently than Neidermeyer does, like the

district court, we cannot say that any portion of the reports is demonstrably false.2

Neidermeyer “must provide more than an account of the incident in question that

conflicts with the account of the officers involved” in order “[t]o rebut the

presumption of independent judgment and to survive summary judgment.”

Newman v. Cty. of Orange, 457 F.3d 991, 995 (9th Cir. 2006).

      4. The district court did not abuse its discretion in denying Neidermeyer

leave to amend the complaint to include a claim for an allegedly unlawful frisk.

While leave to amend should be “freely give[n] . . . when justice so requires,”

F.R.C.P. 15(a)(2), the district court was permitted to deny leave here due to

Neidermeyer’s “undue delay” in raising the claim and the “prejudice to the



2
  For example, Neidermeyer argues that he did not refuse to undergo field sobriety
tests, as the report indicated. But while in the police vehicle, Neidermeyer
explicitly refused to consent to any test other than a Breathalyzer, which was later
administered at the police station.

                                          6
opposing party” that late amendment would cause, Johnson v. Buckley, 356 F.3d

1067, 1077 (9th Cir. 2004). Though the parties discussed the frisk in Officer

Caldwell’s deposition, an unlawful frisk claim was not raised in the second

amended complaint that was filed after that deposition was taken. Thus, Officer

Caldwell was not on notice that Neidermeyer would raise an unlawful frisk claim

later in the litigation, and was deprived of the opportunity to conduct appropriate

discovery as to possible damages.

      Moreover, “when a party seeks to amend a pleading after the pretrial

scheduling order’s deadline for amending the pleadings has expired, the moving

party must satisfy the ‘good cause’ standard of Federal Rule of Civil Procedure

16(b)(4), which provides that ‘[a] schedule may be modified only for good cause

and with the judge’s consent,’ rather than the liberal standard of Federal Rule of

Civil Procedure 15(a).” In re W. States Wholesale Nat. Gas Antitrust Litig., 715

F.3d 716, 737 (9th Cir. 2013) (alteration in original). This good cause standard

“primarily considers the diligence of the party seeking the amendment.” Johnson

v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). If the moving

party “was not diligent, the inquiry should end.” Id. Neidermeyer, who “has been

aware of the facts and theories supporting amendment since the inception of the

action,” did not seek leave to amend until opposing Officer Caldwell’s Motion for

Reconsideration. In re W. States, 715 F.3d at 737 (internal quotation mark


                                          7
omitted). Indeed, even if we considered the issue pursuant to Federal Rule of Civil

Procedure 15(b), as the dissent contends we should, the result would be the same:

Neidermeyer has already had two opportunities to amend his complaint and has

offered no explanation for his undue delay in seeking a third, the lateness of which

would prejudice Officer Caldwell. The district court did not abuse its discretion in

concluding that Neidermeyer did not show good cause for his failure to assert any

claim related to the frisk in his operative complaint, especially in light of his

personal knowledge of the relevant facts.

      AFFIRMED.




                                            8
                                                                        FILED
Neidermeyer v. Caldwell, No. 16-55233                                    DEC 5 2017

SETTLE, District Judge, concurring in part and dissenting in part:   MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS


      While I concur in the majority’s analysis of Neidermeyer’s investigatory

stop claim and malicious prosecution claim, I respectfully dissent in regards to

Neidermeyer’s unlawful arrest and unlawful frisk claims.

      1. I believe the district court improperly granted summary judgment to

Officer Caldwell on Neidermeyer’s unlawful arrest claim. Like the district court,

the majority relies on the following facts that could support probable cause for

Neidermeyer’s arrest: (a) Neidermeyer momentarily drove along the left line of his

lane before making an unsafe lane change in the opposite direction, (b) Officer

Caldwell noted approximately two seconds of pupil constriction instead of one

when performing a modified nystagmus test, and (c) Neidermeyer acted

excessively fearful over the course of the investigatory stop.

      In reaching its conclusion, the majority emphasizes Neidermeyer’s failure to

cite a consensus of cases to support his contention that, under the above-listed

facts, a reasonable officer would have known that he lacked probable cause.

However, while qualified immunity would certainly be warranted under these facts

in isolation, probable cause exists only if a prudent person would have believed

that the suspect had committed a crime under the totality of the circumstances.

Hart v. Parks, 450 F.3d 1059, 1065–66 (9th Cir. 2006). “As a corollary of the rule
that the police may rely on the totality of facts available to them in establishing

probable cause, they also may not disregard facts tending to dissipate probable

cause.” Ramirez v. City of Buena Park, 560 F.3d 1012, 1023–24 (9th Cir. 2009).

      Interpreting the totality of the circumstances in the light most favorable to

Neidermeyer, a jury could conclude that it was clear that Officer Caldwell lacked

probable cause to arrest Neidermeyer. See Saucier v. Katz, 533 U.S. 194, 202

(2001) (“The relevant, dispositive inquiry . . . is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.”).

Several facts in this case weigh against a finding of probable cause and negate the

facts that Officer Caldwell cites to justify his decision to arrest.

      First, apart from the modified nystagmus test—which revealed no

nystagmus—Officer Caldwell failed to administer any field sobriety tests. The

majority notes that Neidermeyer refused sobriety tests when he was in the back of

Officer Caldwell’s vehicle. However, the offer and refusal of sobriety tests

occurred only after Neidermeyer had already been unlawfully frisked and then

placed under arrest. An officer’s failure to conduct any field sobriety tests weighs

against finding that an officer has a reasonable belief or suspicion that a driver is

intoxicated. See United States v. Colin, 314 F.3d 439, 446 (9th Cir. 2002).

Additionally, Officer Caldwell’s improper conduct during the stop and arrest

(described below) places his credibility in question, and a jury could reasonably


                                            2
disbelieve his testimony regarding pupil constriction entirely.

      Second, Neidermeyer’s fearful behavior can be justified as a reasonable

response to Officer Caldwell’s conduct during the investigatory stop. For instance,

prior to Neidermeyer’s fearful behavior, Officer Caldwell ordered Neidermeyer

from the vehicle, unlawfully frisked him, and repeatedly stated that Neidermeyer

was being detained—and would ultimately be arrested—simply for refusing to

answer where he was going. While Officer Caldwell’s subjective intent is

irrelevant to the existence of probable cause, the fact that he outwardly and

repeatedly expressed his unlawful subjective intent to Neidermeyer is an objective

fact that should be considered when evaluating the reasonableness of

Neidermeyer’s fearful behavior. Moreover, “[a] frisk for weapons ‘is a serious

intrusion upon the sanctity of the person, which may inflict great indignity and

arouse strong resentment.’” Thomas v. Dillard, 818 F.3d 864, 876 (9th Cir. 2016),

as amended (May 5, 2016) (quoting Terry v. Ohio, 392 U.S. 1, 28 (1968)). This

should be especially true of a patently unlawful frisk, which Officer Caldwell

concedes occurred here. 1 Therefore, a jury could conclude that no reasonable

officer would view Neidermeyer’s fearful behavior as a basis for arrest, since

Officer Caldwell’s own conduct would likely evoke in a reasonable person some



1
 Officer Caldwell admits he lacked any suspicion that Neidermeyer was armed or
dangerous. See Arizona v. Johnson, 555 U.S. 323, 327 (2009).

                                          3
sort of fearful response.

      Third, while Neidermeyer’s driving was sufficient to support probable cause

for a traffic infraction or a reasonable suspicion of intoxicated driving, it was

insufficient by itself to support probable cause for an arrest. The video evidence

shows Neidermeyer’s vehicle drifting towards the left edge of its lane and touching

the line briefly before correcting itself and making a potentially unsafe lane change

within a car’s length of a passing vehicle. Only thirty-four seconds pass from the

point when the video evidence first shows the vehicle drifting towards the left to

the time that the officers signal to stop. Only fourteen of those seconds pass

between when Neidermeyer’s vehicle first observably drifted towards the left of

his lane and when the subsequent lane change was completed. This was not the

type of “swerving all over the road” of which Officer Caldwell accused

Neidermeyer when initiating the stop. California courts have held that “pronounced

weaving within a lane provides an officer with reasonable cause to stop a vehicle

on suspicion of driving under the influence where such weaving continues for a

substantial distance.” People v. Perez, 221 Cal. Rptr. 776, 778 (1985). While

Officer Caldwell’s observation of a potentially unsafe lane change justified a

citation and investigatory stop under California Vehicle Code §§ 21658(a), 22107,

it did not, without more, confer probable cause to arrest for intoxicated driving. See

Colin, 314 F.3d at 446 (“[An] entire observation last[ing] only 35–45 seconds . . .


                                           4
is not long enough to show that [defendants] were weaving for a ‘substantial’

distance.”).

      For these reasons, I would remand on the basis that the district court

mistakenly entered summary judgment on Neidermeyer’s unlawful arrest claim

when there were genuine factual disputes and a jury could conclude that, under the

totality of the circumstances, it would be clear to a reasonable officer that Officer

Caldwell lacked probable cause to arrest. See Borunda v. Richmond, 885 F.2d

1384, 1391 (9th Cir. 1988) (“Where the facts or circumstances surrounding an

individual’s arrest are disputed . . . the existence of probable cause becomes a

question of fact for the jury.”).

      2. Additionally, I believe that the district court improperly denied

Neidermeyer leave to amend his complaint to include his claim asserting an

unlawful frisk. The majority concludes that because Neidermeyer sought to amend

his complaint after the deadline set forth in a Rule 16 scheduling order, he must

satisfy the “good cause” standard set forth in Rule 16(b). Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). In reaching the conclusion

that the proposed amendment should be denied, the district court and the majority

rely exclusively on Neidermeyer’s lack of diligence in seeking the amendment. 2


2
  While the majority cites “prejudice to the opposing party” as a factor justifying
the denial of leave to amend, there does not appear to be any indication or findings
of prejudice on the record.

                                          5
However, Neidermeyer’s motion for summary judgment, which raised the issue of

the unlawful frisk, should have been construed as a motion to amend under Rule

15(b). Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014).

Under that standard, the district court was required to consider “bad faith, undue

delay, prejudice to the opposing party, futility of amendment, and whether the

plaintiff has previously amended the complaint.” Id. We abuse our discretion if we

do not apply the correct legal standard, Bateman v. U.S. Postal Service, 231 F.3d

1220, 1223 (9th Cir. 2000), or if we fail to consider the factors relevant to the

exercise of our discretion. See Bautista v. Los Angeles Cnty., 216 F.3d 837, 841–42

(9th Cir. 2000). See also Desertrain, 754 F.3d at 1155 (“[T]he district court abused

its discretion by not amending the First Amended Complaint to conform to the

evidence and argument . . . .”).

      Even if Neidermeyer’s request to amend was governed by the Rule 16(b)

“good cause” requirement instead of the Rule 15(b) standard, the district court and

majority employ too stringent of a standard of “good cause” in this case. Denying

leave to amend may be understandable under a harsh interpretation of Rule 16(b)

and the Circuit’s precedent in Johnson. See 975 F.2d at 609 (“If [the moving] party

was not diligent, the inquiry should end.”). However, while “Rule 16(b)’s ‘good

cause’ standard primarily considers the diligence of the party seeking the

amendment,” the very use of the term “primarily” in the Circuit’s decision in


                                           6
Johnson leaves open the possibility that circumstances will arise where courts must

consider other factors. Johnson, 975 F.2d at 609. If this is not the case to require

looking beyond just the diligence of the moving party, then I do not believe there

can ever be one. The decision in Johnson was rendered under highly

distinguishable circumstances. In that case, the moving party waited until summary

judgment to seek an amendment despite receiving three separate invitations from

opposing counsel to correct the inadequacy of the complaint. Additionally, the

defendants in Johnson predicated their summary judgment motion on the

inadequacy of the complaint, so the inadequacy of the complaint was actually

before the court during summary judgment proceedings.

      In this case, however, the issue of the unlawful frisk was fully briefed

without objection in Officer Caldwell’s opposition to Neidermeyer’s summary

judgment motion. Also, the parties openly and plainly discussed whether the frisk

was lawfully justified during Officer Caldwell’s deposition. Officer Caldwell

failed to object to Neidermeyer’s efforts to litigate the frisk’s unlawfulness until

after the district court had already entertained the fully-briefed arguments on the

issue and entered summary judgment in favor of Neidermeyer. Denying leave to

amend appears to benefit Officer Caldwell for lying in wait with his objection,

despite having the issue made clear much earlier in the case. As noted in Johnson,

a party’s gross lack of diligence should end the inquiry into whether a late


                                           7
amendment will be permitted. In this case however, the district court snatched

defeat from the jaws of victory on a constitutional violation that was litigated

without objection all the way through summary judgment.

      Finally, the district court and the majority’s approach of focusing

exclusively on the diligence of Neidermeyer’s counsel in seeking the proposed

amendment appears unworkable when Rule 16 and Rule 15 are viewed in tandem.

Rule 15(b) expressly states that, even during trial, “[t]he Court should freely permit

an amendment when doing so will aid in presenting the merits and the objecting

party fails to satisfy the court that the evidence would prejudice that party’s action

or defense on the merits.” Fed. R. Civ. P. 15(b)(1). Since Rule 15(b) allows for the

amendment of pleadings freely during trial absent prejudice to the objecting party,

basing the Rule 16(b) “good cause” standard exclusively on the diligence of the

moving party, without any consideration of prejudice to the objecting party,

renders the standard in Rule 15(b)(1) ineffective. Moreover, the text of Rule 16(b)

requires that a party show good cause for modifying the scheduling order; it does

not require the party to show good cause for their failure to seek modification

earlier. If the Rule 16(b) “good cause” standard is to be properly applied in this

case, it appears that it must necessarily incorporate a review of some factors

beyond mere delay, including a balance of prejudice to Officer Caldwell and the

ultimate goal of avoiding an unjust result.


                                           8
      Officer Caldwell’s only arguments relating to prejudice deal with a

purported lack of opportunity to obtain evidence on damages. If this did constitute

prejudice, it could easily be remedied with less than an hour deposition of

Neidermeyer sometime before trial, with the costs to be borne by Neidermeyer.

Therefore, I would remand with instructions to consider whether the proposed

amendment should be permitted under the factors applicable to the Rule 15(b)

standard. Even under the Rule 16(b) “good cause” standard, I would remand for

consideration of whether the proposed amendment would result in any prejudice to

Officer Caldwell or whether avoiding an unjust result in this case constitutes “good

cause” for modifying the scheduling order.




                                         9
