WINDY PAYNE V. JODI COY, No. 13-35921 (9th Cir. 2015)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 3 2015 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT WINDY PAYNE, individually and as guardian on behalf of D.P., a minor child, U.S. COURT OF APPEALS No. 13-35921 D.C. No. 3:05-cv-05780-RBL Plaintiff - Appellee, MEMORANDUM* v. PENINSULA SCHOOL DISTRICT, Defendant, And JODI COY, Defendant - Appellant. Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding Argued and Submitted July 10, 2015 Seattle, Washington Before: NGUYEN and FRIEDLAND, Circuit Judges and ZOUHARY, ** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jack Zouhary, District Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation. Jodi Coy appeals the district court’s denial of summary judgment and qualified immunity. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, Preschooler II v. Clark Cty. Sch. Bd. Of Trs., 479 F.3d 1175, 1179 (9th Cir. 2007), we reverse. The case is remanded for further proceedings on Plaintiff’s remaining Monell and state law claims. Coy is entitled to qualified immunity with respect to Plaintiff’s Fourth Amendment claim because, at the time she acted, it would not have been clear to a reasonable official that placing D.P. in the safe room, as part of his aversive and behavioral intervention plan, was an unconstitutional seizure. See Ashcroft v. alKidd, 131 S. Ct. 2074, 2083–85 (2011); Couture v. Bd. of Educ. of Albuquerque Pub. Sch., 535 F.3d 1243 (10th Cir. 2008); Wash. Admin. Code § 392-172-394 (2005). Likewise, Coy is entitled to qualified immunity with respect to Plaintiff’s Fourteenth Amendment claim because, at the time Coy acted, it would not have been clear to a reasonable official that having D.P. assist in cleaning up after he defecated in the safe room violated D.P.’s substantive due process rights. See Harris v. Robinson, 273 F.3d 927, 931–32 (10th Cir. 2001). REVERSED AND REMANDED. 2

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