Brian Mulligan v. James Nichols, et al

Filing

FILED OPINION (RICHARD R. CLIFTON, SANDRA S. IKUTA and FREDERIC BLOCK) Mulligan has filed a motion for judicial notice of a felony complaint against Officer Nichols arising from the same conduct that was the subject of the sexual assault allegations. The complaint was filed on February 16, 2016, more than two years after the trial concluded. It could not have been considered by the district court at the time it made its evidentiary determinations, so we deny the motion. We do not have reason to consider whether the fact of a felony complaint filed prior to trial would have been admissible. AFFIRMED; Judge: RRC Authoring, FILED AND ENTERED JUDGMENT. [10103596] [14-55278, 14-55763]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIAN C. MULLIGAN, an individual,
Plaintiff-Appellant,
v.

No. 14-55278
D.C. No.
2:13-cv-00836RGK-VBK

JAMES NICHOLS, an individual; JOHN
MILLER, an individual; THE CITY OF
LOS ANGELES, an entity; TYLER
IZEN, an individual; LOS ANGELES
POLICE PROTECTIVE LEAGUE, a
corporation,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding

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MULLIGAN V. NICHOLS

BRIAN C. MULLIGAN, an individual,
Plaintiff-Appellant,
v.
ERIC ROSE, an individual,
Defendant-Appellee.

No. 14-55763
D.C. No.
2:13-cv-08298SVW-AGR
OPINION

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted March 7, 2016
Pasadena, California
Filed August 29, 2016
Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
Judges and Frederic Block,* Senior District Judge.
Opinion by Judge Clifton

*

The Honorable Frederic Block, Senior U.S. District Judge for the
Eastern District of New York, sitting by designation.

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SUMMARY**

Civil Rights
The panel affirmed the district court’s summary judgment
and judgment entered following a jury trial in an action
brought pursuant to 42 U.S.C. § 1983 and state law by Brian
Mulligan who alleged, among other things, that Los Angeles
police officers together with City of Los Angeles officials and
the police officers’ union retaliated against him for exercising
his First Amendment rights.
Mulligan was injured in an altercation with two police
officers and subsequently filed an administrative claim
against the City of Los Angeles, alleging that the officers had
acted unlawfully. The police officers’ union, allegedly with
assistance from City officials, responded by accusing
Mulligan of being a drug abuser and of having acted
aggressively toward the officers. The episode attracted
publicity, and Mulligan lost his job with Deutsche Bank.
The panel held that the statements allegedly made by
defendants against Mulligan were not sufficiently adverse to
support a claim of First Amendment retaliation. The
defendants did not make any decision or take any state action
affecting Mulligan’s rights, benefits, relationship or status
with the state. Nor could Mulligan show the loss of a
valuable governmental benefit or privilege. The panel
concluded that although Mulligan’s reputation was
undoubtedly damaged by the increased media attention,
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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which eventually resulted in the loss of his job, such
reputational harm is not actionable under § 1983 unless it is
accompanied by some more tangible interests.
The panel held that the district court did not err by
granting summary judgment to defendants on Mulligan’s
state law negligence claim. The panel held that the causal
relationship between the allegedly negligent pre-force
conduct of police officers and the later use of force was too
attenuated. The panel affirmed the district court’s evidentiary
rulings excluding evidence: (1) that Mulligan was not
ultimately charged with any crime for his conduct on the
night on the incident; and (2) that one of the officers involved
in the incident had previously been accused of on-duty sexual
assault. Finally, the panel held that once the jury had found
that the officers did not act unlawfully, there was no basis for
the negligent-supervision claim against the City.

COUNSEL
Jennifer Mira Hashmall (argued) and Louis R. Miller, Miller
Barondess LLP, Los Angeles, California, for PlaintiffAppellant.
Jules S. Zeman (argued), McKenna Long & Aldridge LLP,
Los Angeles, California, for Defendant-Appellee James
Nichols.
Blithe Smith Bock (argued), Deputy City Attorney; Amy Jo
Field, Assistant City Attorney; Michael N. Feuer, City
Attorney; Office of the Los Angeles City Attorney, Los
Angeles, California; for Defendants-Appellees City of Los
Angeles and John Miller.

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Alexander H. Cote (argued), Amos A. Lowder, Angela M.
Machala, and David C. Scheper, Scheper Kim & Harris LLP,
Los Angeles, California, for Defendants-Appellees Los
Angeles Police Protective League, Tyler Izen, and Eric Rose.

OPINION
CLIFTON, Circuit Judge:
The First Amendment of the Constitution protects citizens
from attempts by government officials to chill their speech.
One question presented by this case is whether that same
constitutional guarantee also requires those officials to remain
silent when accused of misconduct, lest they risk liability for
unlawful retaliation. We conclude that it does not.
Plaintiff Brian Mulligan was injured in an altercation with
two Los Angeles Police Department (LAPD) officers.
Mulligan filed an administrative claim against the City of Los
Angeles, alleging that the officers had acted unlawfully. The
police officers’ union, the Los Angeles Police Protective
League (LAPPL), allegedly with assistance from City
officials, responded by accusing Mulligan of being a drug
abuser and of having acted aggressively toward the officers.
Because he was a prominent business executive connected
with the entertainment industry, the episode attracted
publicity, and Mulligan lost his job.
Mulligan brought 42 U.S.C. § 1983 and state-law claims
against the City, LAPD officers James Nichols and John
Miller, the LAPPL, and LAPPL officials Tyler Izen and Eric
Rose. He presented claims based both on his initial
interactions with the LAPD officers and on the subsequent

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publicity, which Mulligan contended constituted unlawful
retaliation against him for exercising his First Amendment
rights.
The district court granted summary judgment in favor of
Defendants on the unlawful retaliation claim and on
Mulligan’s claim that the LAPD officers acted negligently.
Mulligan’s other claims proceeded to trial, and the jury found
in favor of Defendants on all issues that were before it.
Judgment was entered for Defendants. Mulligan appeals on
several grounds. We affirm.
I. Background
The events behind this lawsuit began on May 15, 2012.
The parties intensely dispute what happened that night, but
they agree that LAPD officers Nichols and Miller first
encountered Mulligan near the entrance to Occidental College
in the Eagle Rock area of Los Angeles. The officers
responded to 911 calls reporting that a man fitting Mulligan’s
description was acting erratically. After taking Mulligan back
to his car in a nearby street, the officers transported and
checked Mulligan into a motel.1
Mulligan left the motel later that night. On the streets near
the motel, he once again encountered Officers Nichols and
Miller. The parties’ accounts as to what happened next were
very different. Mulligan testified that he tried to flee from the

1
The precise reason why the officers took Mulligan to the motel is one
of the facts about which the parties disagree. Mulligan asserts that he was
taken to the motel against his will. The officers testified at trial that
Mulligan, who appeared disoriented, asked them to take him to the motel
to “sleep it off.”

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officers as soon as he caught sight of them. The officers
followed, chasing him and blocking his escape. They then hit
him in the face with a baton, jabbed his back, and slammed
his face into the asphalt.
The officers testified, in contrast, that they found
Mulligan running down a street near the motel while
screaming and attempting to open locked cars. They then
pursued Mulligan, who continued fleeing despite their
repeated calls for him to stop. Mulligan then began charging
at the officers, forcing Miller to use his baton to subdue him.
With the help of a third officer, they managed to handcuff
Mulligan and called an ambulance to take him to a hospital.
The incident and Mulligan’s subsequent administrative
claim against the City attracted significant media attention.
Mulligan was at the time an executive with Deutsche Bank
and had formerly been chairman of Fox Television and cochairman of Universal Pictures. The officers’ police report
was leaked to news outlets, which published stories that
included the allegation that Mulligan was under the influence
of drugs at the time of the incident. The media pressure
intensified on October 15, 2012, when the LAPPL issued a
press release accusing Mulligan of being a frequent user of
bath salts.2 The press release included a leaked tape of a
conversation between Mulligan and an officer of the Glendale
Police Department that took place on May 13, two days
2

“Bath salts” is the popular term for a type of synthetic stimulant with
similar effects to amphetamines and cocaine. Drug Enforcement Agency,
Bath Salts or Designer Cathinones (Synthetic Stimulants),
http://www.dea.gov/druginfo/drug_data_sheets/Bath_Salts.pdf (last
visited, August 22, 2016) (available at https://perma.cc/9MVH-V5XM).
Bath salts have serious side effects, including agitation, insomnia,
paranoia, delusions, and panic attacks. Id.

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before the Eagle Rock incident. In the conversation, Mulligan
admitted to having used bath salts approximately twenty
times. Because of the press release and associated negative
media coverage, Mulligan lost his job at Deutsche Bank.
Mulligan filed his complaint in federal district court
against the City, Officers Nichols and Miller, the LAPPL, and
Tyler Izen, the LAPPL’s president, in February 2013. He
alleged that the City, LAPPL, and Izen had retaliated against
him for exercising his First Amendment right to file an
administrative claim against the City. He also alleged
excessive force claims under both Section 1983 and
California law, as well as state-law assault and battery, false
imprisonment, police negligence, and negligent supervision
claims against the officers and the City. A separate complaint
alleging a substantively identical retaliation claim against
Eric Rose, the LAPPL’s publicist, was filed in November
2013.
Defendants filed motions for summary judgment. The
district court granted summary judgment to Defendants on the
retaliation claim, concluding that Mulligan had not
demonstrated the existence of retaliatory intent.3 The district
court also granted summary judgment for Defendants on the
false imprisonment and police negligence claims. Summary
judgment was denied on the negligent supervision, excessive
force, and assault and battery claims.

3

The complaint against Rose was assigned to a different district judge,
who dismissed that claim based on issue preclusion following the entry of
summary judgment on the retaliation claim in the first action. The
dismissal of the complaint against Rose is also challenged in this appeal.

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The court bifurcated the trial, such that the first phase
would cover the excessive force claim, while the second
phase would cover the negligent supervision claim and
damages. As noted above, the jury found in favor of
Defendants in the first phase of the trial, which the district
court concluded made the second phase unnecessary.
Mulligan presents several arguments on appeal. First, he
contests the district court’s grant of summary judgment in
favor of Defendants on his First Amendment retaliation
claim. Second, he argues that the district court erred in
granting summary judgment to Defendants on his claim that
the officers’ use of force against him was negligent. Third, he
challenges two of the district court’s evidentiary rulings
during the excessive force phase of the trial. Finally, he
contends that the district court erred in not proceeding to the
second phase of the trial, involving his negligent supervision
claim.
II. First Amendment Retaliation Claim
Mulligan alleges that the City, LAPPL, Izen, and Rose4
retaliated against him for the exercise of his First Amendment
rights, in violation of 42 U.S.C. § 1983. Mulligan contends
that the accusations by the LAPPL that he was a regular user
of bath salts, along with the accompanying media leaks of the
4

Mulligan’s appeal of the dismissal of his action against Rose rests
entirely on his contention that summary judgment should not have been
entered against him on the retaliation claim in the first lawsuit. He does
not dispute the application of issue preclusion in the second lawsuit if the
summary judgment was proper. Because we hold that the summary
judgment was properly granted, we also hold that Mulligan’s separate
retaliation suit against Rose was properly dismissed. We will not discuss
the action against Rose separately.

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police report of the incident and the tape of his conversation
at the Glendale Police Department, in which he admitted to
his past bath salts use, constituted a smear campaign meant to
deter him from proceeding with his legal claim against the
officers and City. He also alleges that the City actively
participated in that campaign, making the LAPPL and its
officials joint state actors. We conclude that the facts alleged
by Mulligan do not give rise to a cognizable claim of First
Amendment retaliation.
To state a claim for First Amendment retaliation against
a government official, a plaintiff must demonstrate that
“(1) he engaged in constitutionally protected activity; (2) as
a result, he was subjected to adverse action by the defendant
that would chill a person of ordinary firmness from
continuing to engage in the protected activity; and (3) there
was a substantial causal relationship between the
constitutionally protected activity and the adverse action.”
Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010).
It is uncontested that Mulligan’s decision to file a claim
against the City is worthy of constitutional protection.
Ordinarily, the adverse retaliatory actions complained of
by plaintiffs are “‘exercise[s] of governmental power’ that are
‘regulatory, proscriptive, or compulsory in nature’ and have
the effect of punishing someone for his or her speech.” Id. at
544 (alteration in original) (quoting Laird v. Tatum, 408 U.S.
1, 11 (1972)). But that is not the situation here. Instead, the
essence of Mulligan’s claim is that the City and LAPPL
chilled his right to speak freely by engaging in speech of their
own that significantly damaged his reputation and ultimately
caused him to lose his job.

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Retaliation claims involving government speech warrant
a cautious approach by courts. Restricting the ability of
government decisionmakers to engage in speech risks
interfering with their ability to effectively perform their
duties. It also ignores the competing First Amendment rights
of the officials themselves. The First Amendment is intended
to “preserve an uninhibited marketplace of ideas in which
truth will ultimately prevail.” McCullen v. Coakley, 134 S. Ct.
2518, 2529 (2014) (quoting FCC v. League of Women Voters
of Cal., 468 U.S. 364, 377 (1984)). That marketplace of ideas
is undermined if public officials are prevented from
responding to speech of citizens with speech of their own. See
Bond v. Floyd, 385 U.S. 116, 136 (1966) (“The interest of the
public in hearing all sides of a public issue is hardly advanced
by extending more protection to citizen-critics than to
legislators.”).
In accordance with these principles, we have set a high
bar when analyzing whether speech by government officials
is sufficiently adverse to give rise to a First Amendment
retaliation claim. In Gini v. Las Vegas Metropolitan Police
Department, 40 F.3d 1041, 1043–44 (9th Cir. 1994), the
plaintiff alleged that she had lost her federal job as a result of
allegedly defamatory statements made by a city police officer
to her federal superiors following her filing of an Internal
Affairs complaint. We affirmed the dismissal of her
retaliation claim against the city. Id. at 1045. We noted that
an act of defamation by government officials was insufficient
to create a right to a remedy under the First Amendment in
the absence of “state action affecting [a plaintiff’s] rights,
benefits, relationship or status with the state.” Id. Similarly,
in Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir.
1998), which involved a claim by a police officer against his
government employer, we held that “[m]ere threats and harsh

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words” are not ordinarily sufficient to constitute an adverse
employment action for purposes of a First Amendment claim.
As we stated in Nunez, “[i]t would be the height of irony,
indeed, if mere speech, in response to speech, could constitute
a First Amendment violation.” Id.
As was the case in Gini and Nunez, the accusations and
media leaks by the LAPPL and its leadership are not enough
to demonstrate a constitutional violation. The Defendants in
this case did not “make any decision or take any state action
affecting [Mulligan’s] rights, benefits, relationship or status
with the state.” Gini, 40 F.3d at 1045. Nor can Mulligan show
“the loss of ‘a valuable governmental benefit or privilege.’”
Nunez, 147 F.3d at 875 (quoting Hyland v. Wonder, 972 F.2d
1129, 1136 (9th Cir. 1992)). Although Mulligan’s reputation
was undoubtedly damaged by the increased media attention,
which eventually resulted in the loss of his job, such
reputational harm “is not actionable under § 1983 unless it is
accompanied by ‘some more tangible interests.’” Gini,
40 F.3d at 1045 (quoting Patton v. Cty. of Kings, 857 F.2d
1379, 1381 (9th Cir. 1988)).5
5

We note that we do not understand Gini and Nunez to stand for the
proposition that speech by government officials can never give rise to a
claim of First Amendment retaliation in the absence of a loss of tangible
rights or government benefits. See Coszalter v. City of Salem, 320 F.3d
968, 975–76 (9th Cir. 2003) (stating that Nunez does not create “an
exclusive, category-based limitation on the kind of retaliatory action that
is actionable under the First Amendment,” nor does it mean that “the
government is allowed to take severe retaliatory actions . . . because those
actions do not result in the loss of a valuable governmental benefit or
privilege”). Indeed, we recognize that “[i]nformal measures, such as ‘the
threat of invoking legal sanctions and other means of coercion, persuasion,
and intimidation,’ can violate the First Amendment also.” White v. Lee,
227 F.3d 1214, 1228 (9th Cir. 2000) (quoting Bantam Books, Inc. v.
Sullivan, 372 U.S. 58, 67 (1963)).

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Our decision in Mendocino Environmental Center v.
Mendocino County, 192 F.3d 1283 (9th Cir. 1999), is not to
the contrary. There, we concluded that evidence that police
officers had made false accusations of criminal activity
against members of an environmental activist group was
sufficient to justify a First Amendment claim by the group’s
members. Id. at 1302–03. The accusations in Mendocino were
made in the context of a police investigation and contributed
to arrests and search warrants aimed at the activists. Id. at
1289–91. That was speech that did more than simply damage
the plaintiffs’ reputation, it also intimated that punishment
would imminently follow.
The approach we take here and have taken in the past is
consistent with the views of other circuits. The circuit courts
that have considered the issue have required plaintiffs
alleging government retaliation that takes the form of speech
to meet a high threshold. For example, the Fourth Circuit has
held that in situations “where a public official’s alleged
retaliation is in the nature of speech,” a citizen’s First
Amendment rights are not violated “in the absence of a threat,
coercion, or intimidation intimating that punishment,
sanction, or adverse regulatory action will imminently
follow.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 687
(4th Cir. 2000). Other circuits have adopted similar tests. See,
e.g. Goldstein v. Galvin, 719 F.3d 16, 30–31 (1st Cir. 2013);
Hutchins v. Clarke, 661 F.3d 947, 955–57 (7th Cir. 2011); XMen Sec., Inc. v. Pataki, 196 F.3d 56, 68–71 (2d Cir. 1999).
Mulligan argues that the emphasis we and other courts
have placed on defendants’ free speech rights is mistaken
because, in his view, public officials do not possess any First
Amendment rights worthy of protection. We disagree. That
viewpoint would cripple the ability of state actors to play a

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part in public discourse. It is well established that public
employees and officials retain rights to free speech. See, e.g.
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (“[P]ublic
employees do not surrender all their First Amendment rights
by reason of their employment.”); Blair, 608 F.3d at 545
(“[W]e assume all of the Board members have a protected
interest in speaking out and voting their conscience on the
important issues they confront.” (emphasis in original)).
Mulligan also directs our attention to the decision of the
Sixth Circuit in Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998).
In that case, the court held that a rape victim who had
criticized the police investigation of her rape had a cognizable
retaliation claim after the county sheriff responded to her
criticisms by releasing “highly personal and extremely
humiliating details” of the rape at a public press conference.
Id. at 676. We need not decide now whether we agree that the
First Amendment would permit a retaliation claim based on
the disclosure of deeply private personal details like those at
issue in Bloch, because Mulligan’s claim does not remotely
rise to the same level. Although his taped admission of
previous bath salts use was undoubtedly embarrassing,
statements made as part of a conversation voluntarily entered
into with a police officer, without any promise of
confidentiality, are not of the same degree of constitutional
magnitude as the retaliatory conduct in Bloch, which the
Sixth Circuit concluded implicated the plaintiff’s
fundamental privacy rights. Id. at 686.6

6
The City and LAPPL also argue in their briefs that summary judgment
was proper for the reason that Mulligan’s claim solely involves the
conduct of the LAPPL, a private actor, and is therefore not actionable
under Section 1983. The City separately argues that even if the LAPPL
and its officers unlawfully retaliated against Mulligan, the City itself could

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III.

15

Police Negligence Claim

Mulligan next contends that the district court erred in
granting summary judgment to Defendants on his state-law
claim that Officers Nichols and Miller acted negligently in
their use of force against him. In light of the jury verdict in
favor of the officers at trial, Mulligan does not argue that the
officers’ use of force was itself negligent, but he asserts that
the officers’ conduct prior to the specific acts that involved
force violated California law. We review the district court’s
grant of summary judgment de novo. Hawn v. Exec. Jet
Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010).
Under California law, negligence liability “can arise if the
tactical conduct and decisions leading up to the use of deadly
force [by law enforcement] show, as part of the totality of
circumstances, that the use of deadly force was
unreasonable.” Hayes v. Cty. of San Diego, 305 P.3d 252, 254
(Cal. 2013). Thus, negligence claims under California law
encompass a broader spectrum of conduct than excessive
force claims under the Fourth Amendment. Cf. Billington v.
Smith, 292 F.3d 1177, 1190 (9th Cir. 2002) (“[E]ven if an
officer negligently provokes a violent response, that negligent
act will not transform an otherwise reasonable subsequent use
of force into a Fourth Amendment violation.” (emphasis in
original)).
Mulligan asserts that the officers’ decision to take him to
the motel against his will was sufficient to create a triable

not be held responsible under the rules established in Monell v.
Department of Social Services of New York, 436 U.S. 658 (1978). Because
we conclude that the conduct at issue was not a violation of Mulligan’s
constitutional rights, we do not address these alternative arguments.

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issue of material fact as to whether the officers’ pre-force
conduct was negligent. We disagree. Even “viewing the
evidence in the light most favorable” to Mulligan for
purposes of summary judgment, Hawn, 615 F.3d at 1155,
Mulligan has failed to demonstrate a sufficiently close causal
link between the officers’ decision to take him to the motel
and their eventual use of force. In Hayes, the California
Supreme Court held that the pre-deadly-force theory of
negligence liability was applicable to the decision of police
officers to enter a residence with knowledge that a potentially
suicidal man was in the house. Hayes, 305 P.3d at 254.7
Immediately afterwards, the officers shot and killed the man,
who had walked toward the officers carrying a knife. Id.
The causal relationship in this case between the allegedly
negligent pre-force conduct and the later use of force is far
more attenuated. The events at the motel took place
significantly earlier in time and in a different location than
the later altercation between Mulligan and the officers.
California law does not support the existence of negligence
liability in these circumstances. We therefore affirm the
district court’s grant of summary judgment.

7

The California Supreme Court did not address whether decisions
before non-deadly force can be actionable negligence, but addressed this
issue only in the context of “deadly force.” See, e.g. Hayes, 305 P.3d at
263 (“Our response to the Ninth Circuit’s question on an issue of state
law, as restated by this court, is this: Law enforcement personnel’s tactical
conduct and decisions preceding the use of deadly force are relevant
considerations under California law in determining whether the use of
deadly force gives rise to negligence liability.” (emphasis added)).

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IV.

17

Evidentiary Rulings

Mulligan challenges the district court’s exclusion of two
pieces of evidence during the trial of his excessive force
claims. A district court’s evidentiary rulings are reviewed for
abuse of discretion. McEuin v. Crown Equip. Corp., 328 F.3d
1028, 1032 (9th Cir. 2003). We conclude that the district
court did not abuse its discretion in excluding the contested
evidence.
Mulligan first argues that the district court erred in
excluding evidence that he was not ultimately charged with
any crime for his conduct on the night of the incident. The
evidence was excluded as irrelevant. In Mulligan’s view, the
evidence was relevant in that it contradicted the officers’
allegations that Mulligan had been acting violently and had
been attempting to break into locked cars before he was
detained. The district court did not abuse its discretion under
the circumstances. Even assuming that there was some
marginal relevance to the evidence, it was properly excluded
under Rule 403 because “its probative value [was]
substantially outweighed by a danger of . . . confusing the
issues, misleading the jury, [or] undue delay.” Fed. R. Evid.
403. Any probative value here was minimal given that many
factors inform a prosecutor’s decision to press charges other
than whether the events being investigated actually occurred.
A contrary approach might motivate a prosecutor to pursue a
criminal charge simply to avoid an inference to that effect.
Moreover, any probative value was outweighed by the
possibilities that a jury unfamiliar with prosecution practices
may have been confused as to the significance of the lack of
charges against Mulligan or that substantial trial time might
have been taken up by a digression into the prosecutor’s
decision-making process.

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Mulligan also contends that the district court erroneously
excluded evidence that Officer Nichols had previously been
accused of on-duty sexual assault. It was not an abuse of
discretion for the district court to exclude that evidence,
either. The allegations against Nichols had nothing to do with
the excessive force claim at issue in the trial. Evidence of
prior bad acts is not admissible except to show “motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid.
404(b)(2). The accusations that Nichols had sexually
assaulted vulnerable women involved conduct distinct from
the excessive force allegations at issue in Mulligan’s case.8
V. Negligent Supervision Claim
Mulligan finally argues that the district court erred in not
proceeding to trial on his negligent supervision claim against
the City. The district court acted properly in not proceeding
to the second phase of the trial. Once the jury had found that
the officers did not act unlawfully, there was no basis for a
claim against the City that those officers had been negligently
supervised.

8

Mulligan has filed a motion for judicial notice of a felony complaint
against Officer Nichols arising from the same conduct that was the subject
of the sexual assault allegations. The complaint was filed on February 16,
2016, more than two years after the trial concluded. It could not have been
considered by the district court at the time it made its evidentiary
determinations, so we deny the motion. We do not have reason to consider
whether the fact of a felony complaint filed prior to trial would have been
admissible.

Case: 14-55278, 08/29/2016, ID: 10103596, DktEntry: 85-1, Page 19 of 19

MULLIGAN V. NICHOLS
VI.

19

Conclusion

We affirm the judgments of the district court. The
statements allegedly made against Mulligan as joint state
actions by the LAPPL were not sufficiently adverse to
support a claim of First Amendment retaliation.
Consequently, the district court’s grant of summary judgment
for that claim was proper. Similarly, the district court did not
err in its decisions regarding Mulligan’s police negligence,
excessive force, and negligent supervision claims.
AFFIRMED.