MICHAEL SALMAN and SUZANNE SALMAN v. City of Phoenix, a municipal corporation of the State of Arizona

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL SALMAN and SUZANNE
SALMAN,
Plaintiffs-Appellants,
v.
CITY OF PHOENIX, a municipal
corporation of the State of Arizona and
UNKNOWN PARTIES, named as: John
Does I-X, Jane Does I-X, Black and White
Corporations I-X, and ABC Partnerships I-
X,
Defendants-Appellees.
No. 16-16053
D.C. No. 2:12-cv-01219-JAT
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted May 15, 2018
San Francisco, California
FILED
MAY 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS,** District
Judge.
Michael and Suzanne Salman appeal, pro se, from the denial of their motion
for leave to file a fourth amended complaint and the dismissal of their claims under
Federal Rule of Civil Procedure 12(b)(6). The district court concluded that, even
after numerous attempts to amend, the proposed fourth amended complaint still
failed to state a plausible claim for relief and was barred by Heck v. Humphrey, 512
U.S. 477 (1994). Because the Salmans’ pro se appeal involved novel issues of law,
the court offered to appoint pro bono counsel and permit re-briefing.
Unfortunately, the Salmans declined, instead opting to continue pro se and rest on
their original briefing. The Salmans’ decision is fatal to their appeal, because the
Salmans’ briefing waives argument on several dispositive issues relied on by the
district court in denying the motion to amend and dismissing the complaint. We
now affirm.
1. Plausibility under rule 12(b)(6). The district court determined that the
proposed Fourth Amended Complaint failed to allege sufficient facts to state a
plausible claim for relief under 42 U.S.C. § 1983. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The Salmans’ appellate briefing never acknowledges, let alone
** The Honorable Deborah A. Batts, United States District Judge for the
Southern District of New York, sitting by designation.
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addresses this dispositive ruling by the district court. Accordingly, they cannot
prevail on the appeal of their § 1983 claims. United States v. Kama, 394 F.3d 1236,
1238 (9th Cir. 2005); see also Wilcox v. Comm’r, 848 F.2d 1007, 1008 n.2 (9th
Cir. 1988) (“deem[ing] abandoned” arguments not raised in a pro se petitioner’s
briefing).
2. Heck v. Humphrey. The district court concluded that Michael Salman’s
§ 1983 claims were barred under Heck, because success on his challenge to the
same code provisions under which he was convicted “would necessarily imply the
invalidity of his conviction or sentence.” Heck, 512 U.S. at 487. The Salmans’ only
challenge to this ruling is their bald assertion that the conduct underlying Michael
Salman’s conviction is distinct from the conduct underlying the claims in their
complaint. In support of this assertion, the Salmans cite authority for the
proposition that Heck does not bar § 1983 claims that are factually independent
from a plaintiff’s conviction. Although true that a factually independent § 1983
claim is not barred by Heck, the Salmans’ have abandoned any argument that they
established a plausible constitutional violation—let alone one that is factually
independent of Michael Salman’s conviction. See supra. This defect is not
addressed in the Salmans’ briefing as to the Heck issue, and we will not
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manufacture arguments for a party on appeal. Greenwood v. FAA, 28 F.3d 971, 977
(9th Cir. 1994).
3. Collateral estoppel. Although the district court held that Suzanne
Salman’s claims were barred by collateral estoppel, the Salmans’ briefing never
addresses this issue. Instead, the briefing as to Suzanne Salman asserts only that
her claims were not barred under Heck, because her sign ordinance conviction was
unrelated to the allegations in the complaint. Accordingly, we affirm. Kama, 394
F.3d at 1238.
4. Religious Land Use and Institutionalized Persons Act (RLUIPA). In
failing to brief this issue on appeal, the Salmans waived any claim that the district
court erred in holding that they failed to identify a land use ordinance subject to
RLUIPA, 42 U.S.C. § 2000cc. Greenwood, 28 F.3d at 977.
5. Remaining Claims. The Salmans’ briefing never mentions the district
court’s dismissal of their Establishment Clause, free exercise, right to privacy, and
Due Process Clause claims. Thus, the Salmans abandoned these claims. Wilcox,
848 F.2d at 1008 n.2.
AFFIRMED.
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Salman v. City of Phoenix, 16-16053
WALLACE, J., concurring.
I concur fully in the majority disposition. I write separately to emphasize that the
Salmans failed to brief adequately their argument that Heck does not bar a claim
based on conduct arising from an incident different from the one that formed the
basis of conviction, even if the incidents are close in time or took place under
similar circumstances. See Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en
banc). This failure defeats their claim. The only case in the Salmans’ opening brief
that touches on the temporal issue in Smith is Ballard v. Burton, 444 F.3d 391,
400-01 (5th Cir. 2006). Even then, the Salmans provide no page citation or
discussion of the case. We do not manufacture arguments for appellants.
FILED
MAY 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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