Momox-Caselis v. Donohue, No. 19-15126 (9th Cir. 2021)
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The Ninth Circuit affirmed the district court's grant of summary judgment in favor of individual employees of the Clark County DFS and the County in an action brought by plaintiffs under 42 U.S.C. 1983 and state law, alleging that defendants wrongfully removed plaintiffs' infant daughter, M.M., from plaintiffs' home, wrongfully removed M.M. from her foster mother's home, and then placed her in a neglectful foster home that caused her death.
The panel held that plaintiffs waived several appellate arguments where these arguments were either not raised before the district court, are inconsistent with positions employed there, or are presented without argument. The panel also held that each of plaintiffs' asserted factual disputes are either resolved by the record or are insufficient to create a genuine dispute of material fact on its claims. In this case, plaintiffs' third claim of failure to train has been waived whereas its fifth claim of state-law negligence was effectively dismissed. Furthermore, plaintiffs fail to present a genuine dispute that M.M. was wrongfully removed from their home or that defendants acted with deliberate indifference. Finally, the panel held that the district court properly decided the question of causation for the state negligence claim as a matter of law rather than a matter of fact, and that plaintiffs waived their wrongful death claim.
Court Description: Civil Rights. The panel affirmed the district court’s summary judgment in favor of individual employees of the Clark County Department of Family Services and the County in an action brought pursuant to 42 U.S.C. § 1983 and state law alleging defendants wrongfully removed plaintiffs’ infant daughter, M.M., from plaintiffs’ home, wrongfully removed M.M. from her foster mother’s home, and then placed her in a neglectful foster home that caused her death. The panel first held that plaintiffs waived several appellate arguments. Plaintiffs waived issues pertaining to the district court’s denial of their request for leave to amend their Second Amended Complaint and their countermotion for summary judgment by failing to challenge the rulings in their opening brief. Plaintiffs waived their claim alleging a failure to train social workers or supervisors by failing to argue the issue in opposition to the County’s summary judgment motion or in their opening brief. Plaintiffs waived their argument that defendant social worker Law was not entitled to discretionary act immunity under Nevada law because the argument was inconsistent with their prior concession in district court. The panel therefore affirmed the district court’s grant of discretionary act immunity to defendant Law. 4 MOMOX-CASELIS V. DONOHUE The panel affirmed the district court’s summary judgment in favor of employees Ruiz-Lee and Donahue on plaintiffs’ claim that they failed to train and supervise social workers. Plaintiffs had failed to identify the procedures that Ruiz-Lee or Donahue allegedly failed to follow and the panel further noted that Donahue was not listed as a defendant in the third claim of the Second Amended Complaint alleging failure to train pursuant to § 1983. The panel determined that plaintiffs’ assertion that the County was liable for ratifying questionable Department policies was waived because plaintiffs failed to present argument or cite evidence in the record to support the argument. The panel held that plaintiffs failed to present a genuine dispute that M.M. was wrongfully removed from their home or that defendants acted with deliberate indifference. The panel noted that the County provided voluminous records of the Department’s rigorous licensing and training policies that foster parents had to complete. The panel further held that neither the “special relationship” or the “state-created danger” exceptions applied to overcome the hurdle that the Due Process Clause does not confer an affirmative right to governmental aid or impose a duty on the state to protect individuals from third parties. The panel concluded that plaintiffs’ arguments relied on supposition and a mischaracterization of the evidence, while the County presented voluminous evidence to refute plaintiffs’ claims. Finally, the panel held that the district court properly decided the question of causation for the state negligence claim as a matter of law rather than a matter of fact. As for the wrongful death claim, plaintiffs addressed it in the section title but did not cite any facts in the record or present argument relating to the claim. The claim was therefore waived. MOMOX-CASELIS V. DONOHUE 5 In concurrently filed orders, the panel denied plaintiffs’ motion to supplement the record, but granted the motion to seal the proposed supplemental record because the testimony in the full deposition transcripts included information relating to minor children.
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