                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 30 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



BRYAN HISER,                                 No. 15-17450

             Plaintiff – Appellant           D.C. No. 2:15-cv-00814-RCJ-PAL

    v.                                       MEMORANDUM1

NEVADA DEPARTMENT OF
CORRECTIONS; LAS VEGAS
METROPOLITAN POLICE
DEPARTMENT; DIRECTOR GREG
COX; WARDEN DWIGHT NEVEN;
ASSISTANT WARDEN TIMOTHY
FILSON; WARDEN RENEE BAKER;
CASEWORKER WILLIAM
KULOLOIA; CASEWORKER
LEAVITT; CASEWORKER
FALSZECK; et al.

             Defendants – Appellees



                   Appeal from the United States District Court
                            for the District of Nevada
                    Robert C. Jones, District Judge, Presiding

                        Argued and Submitted June 6, 2017
                              Pasadena, California

1
 This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
Before: BEA and HURWITZ, Circuit Judges, and MOTZ,** Senior District Judge.

      Bryan Hiser appeals a summary judgment in favor of the Las Vegas

Metropolitan Police Department (“LVMPD”) and an order granting a motion to

dismiss under Fed. R. Civ. P. 12(b)(6) by the Nevada Department of Corrections

(“NDOC”) and several individual defendants. Hiser argues that the district court

erred in: (1) granting summary judgment to the LVMPD on his state-law claim for

false imprisonment and Monell claim; (2) dismissing Hiser’s claims against NDOC

and the individual defendants for failure to allege a constitutional violation; and (3)

denying his motions to extend discovery and amend his complaint. For the reasons

stated below, we affirm in part and reverse in part.

      1.     The district court did not err in granting summary judgment to

LVMPD on Hiser’s state-law claim for false imprisonment. To recover for false

imprisonment under Nevada law, it is “necessary to prove that the person be

restrained of his liberty under the probable imminence of force without any legal

cause or justification.” Marschall v. City of Carson, 464 P.2d 494, 497 (Nev.

1970). Regardless whether Hiser was under a judgment of conviction or sentence,

he was indisputably under a valid indictment for burglary. Because the state has a




**
  The Honorable J. Frederick Motz, Senior United States District Judge for the
District of Maryland, sitting by designation.
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right to hold pretrial detainees under indictment in custody, Hiser was not falsely

imprisoned.

      2.      The district court did not err in granting summary judgment to the

LVMPD on Hiser’s Monell claim. A plaintiff may sue local entities directly under

§ 1983 when “the action that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation, or decision officially adopted

and promulgated by that [entity’s] officers.” Monell v. Dep’t of Soc. Servs. of City

of N.Y., 436 U.S. 658, 690 (1978); Fairley v. Luman, 281 F.3d 913, 916 (9th Cir.

2002). A plaintiff must establish both that an official policy or custom exists and

that the policy “evince[s] a ‘deliberate indifference’ to the constitutional right and

[is] the ‘moving force behind the constitutional violation.’” Rivera v. Cty. of Los

Angeles, 745 F.3d 384, 389 (9th Cir. 2014) (citation omitted). Hiser offered no

evidence that the LVMPD had a custom or policy of subjecting pretrial detainees

to solitary confinement without a legitimate purpose.

      3.      The district court also did not err in granting the motion to dismiss as

to NDOC. As an initial matter, Hiser did not raise a Monell claim against NDOC

in his complaint. Moreover, Hiser failed to allege any facts to support a claim that

NDOC had any custom or policy of subjecting pretrial detainees to solitary

confinement without a legitimate purpose.




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      4.     However, the district court erred in dismissing Hiser’s § 1983 claim

against the individual prison officials who placed him in solitary confinement

when he complained that his transfer to a state prison violated a state court order.

Hiser alleged facts sufficient to raise a plausible inference that he was a pretrial

detainee when he was placed in solitary confinement because the state court judge

had vacated Hiser’s judgment of conviction and sentence. Hiser also alleged facts

sufficient to raise a plausible inference that the prison officials who placed him in

solitary confinement violated his constitutional rights. “In evaluating the

constitutionality of conditions or restrictions of pretrial detention that implicate

only the protection against deprivation of liberty without due process of law, we

think that the proper inquiry is whether those conditions amount to punishment of

the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “Absent a showing of an

expressed intent to punish on the part of detention facility officials, that

determination generally will turn on ‘whether an alternative purpose to which [the

restriction] may rationally be connected is assignable for it, and whether it appears

excessive in relation to the alternative purpose assigned [to it].’” Id. at 538–39

(quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963)); see also

Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir. 2004). Hiser alleged that prison

officials placed him in solitary confinement as punishment for complaining that his

transfer to state prison violated a state court order. Those allegations raise a


                                           4
plausible inference that the prison officials who placed Hiser in solitary

confinement violated Hiser’s due process rights as a pretrial detainee.

      5.     Hiser argues for the first time on appeal that he also pleaded a

plausible First Amendment violation. See Rhodes v. Robinson, 408 F.3d 559, 567–

68 (9th Cir. 2005) (“Within the prison context, a viable claim of First Amendment

retaliation entails five basic elements: (1) An assertion that a state actor took some

adverse action against an inmate (2) because of (3) that prisoner’s protected

conduct, and that such action (4) chilled the inmate’s exercise of his First

Amendment rights, and (5) the action did not reasonably advance a legitimate

correctional goal.”). Because Hiser’s original complaint did not include a First

Amendment claim and the district court had not yet had the opportunity to consider

a proposed amended pleading, we decline to address that argument, without

prejudice to Hiser seeking leave on remand to amend to plead such a claim.

      6.     The district court abused its discretion in denying Hiser’s motion to

extend the discovery deadline. The party moving for extended time to take

discovery under Rule 56(d) bears the burden “to proffer sufficient facts to show

that the evidence sought exists, and that it would prevent [dismissal].” Chance v.

Pac-Tel Teletrac, Inc., 242 F.3d 1151, 1161 n.6 (9th Cir 2001). Hiser requested an

extension of the discovery deadline to identify and name the individual prison

officials who placed him in solitary confinement after his transfer to a state prison.


                                           5
There is no question that the names of those prison officials exist. Moreover, the

proper naming of those prison officials would have prevented dismissal of Hiser’s

constitutional claims against the officials.

      7.     The district court also abused its discretion in denying Hiser’s motion

to amend his complaint. A party may amend its pleading with leave of the court,

and leave to amend should be freely given “when justice so requires.” Fed. R. Civ.

P. 15(a)(2). If his motion to amend had been granted, Hiser could, after discovery,

have named the specific prison officials who had placed him in solitary

confinement for complaining that his transfer to a state prison violated a state court

order and cured any deficiencies in the constitutional claims he raised against those

officials. The district court abused its discretion when it denied Hiser the

opportunity to do so.

      AFFIRMED IN PART; REVERSED IN PART.




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