                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 28 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CRISTINA PAULOS,                                 No.   15-15728

              Plaintiff-Appellant,               D.C. No.
                                                 2:13-cv-01546-JCM-PAL
 v.

FCH1, LLC, a Nevada                              MEMORANDUM*
limited liability company; LAS VEGAS
METROPOLITAN
POLICE DEPARTMENT, a
governmental entity; JAKE VON
GOLDBERG, an individual; JEFFREY
SWAN, an individual; AARON BACA, an
individual; and JEANNIE HOUSTON, an
individual,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                       Argued and Submitted March 13, 2017
                            San Francisco, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                            Page 2 of 4
Before: FERNANDEZ and WATFORD, Circuit Judges, and STATON,** District
Judge.

      Cristina Paulos appeals the district court’s order granting summary judgment

in favor of the Las Vegas Metropolitan Police Department and Officers Aaron

Baca, Jake Von Goldberg, and Jeffrey Swan.

      “We review de novo both the grant of summary judgment and the

conclusion that a public employee is entitled to qualified immunity.” C.F. ex rel.

Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 983 (9th Cir. 2011). To

overcome the officers’ assertion of qualified immunity at summary judgment,

Paulos had to demonstrate that, (1) when viewing the facts in the light most

favorable to her, a reasonable jury could conclude that the officers engaged in

excessive force, and (2) the right was clearly established at the time of the officers’

conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson

v. Callahan, 555 U.S. 223 (2009). We exercise our discretion to proceed

immediately to whether any constitutional right at issue here was clearly

established. See Pearson, 555 U.S. at 236-42.

      An officer “cannot be said to have violated a clearly established right unless

the right’s contours were sufficiently definite that any reasonable official in the

      **
             The Honorable Josephine L. Staton, United States District Judge for
the Central District of California, sitting by designation.
                                                                             Page 3 of 4
defendant’s shoes would have understood that he was violating it.” Plumhoff v.

Rickard, 134 S. Ct. 2012, 2023 (2014). No decision from the Supreme Court or

this Circuit clearly establishes that keeping a suspect on hot asphalt for

approximately two minutes and forty seconds after backup officers arrive on the

scene constitutes excessive force when the suspect does not inform the officers that

the pavement is hurting her. See, e.g., Alexander v. Cty. of Los Angeles, 64 F.3d

1315, 1323 (9th Cir. 1995) (reversing a district court’s grant of summary judgment

when the suspect “repeatedly” asked the officer to loosen his handcuffs because of

his medical condition). Nor is there a consensus among other courts that the

conduct in question amounts to excessive force. See Rubio v. Lopez, 445 F. App’x

170, 173-75 (11th Cir. 2011) (finding no clearly established constitutional

violation); Howard v. Kansas City Police Dep’t, 570 F.3d 984, 990 (8th Cir. 2009)

(finding that a reasonable jury could conclude that the officers used excessive force

because the plaintiff voiced “persistent, specific complaints”).

      Paulos’s Monell claim likewise fails because she did not provide sufficient

evidence of a pattern of similar, allegedly unconstitutional conduct, see Connick v.

Thompson, 563 U.S. 51, 62 (2011), and the Las Vegas Metropolitan Police

Department’s mere failure to discipline its officers “does not amount to ratification

of their allegedly unconstitutional actions.” Sheehan v. City & Cty. of San
                                                                         Page 4 of 4
Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014), rev’d in part, cert. dismissed in

part, 135 S. Ct. 1765 (2015).

      AFFIRMED.
