Ninth Circuit Case Law Part 2

Section 1983 can provide a cause of action against persons acting under color of state law who have violated rights guaranteed by federal statutes. Gonzaga Univ. v. Doe, 536 U.S. 273, 279 2002; Blessing v. Freestone, 520 U.S. 329, 340–41 1997; Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 1981; Maine v. Thiboutot, 448 U.S. 1, 4 1980; Henry A. v. Willden, 678 F.3d 991, 1005 9th Cir. 2012; Cal. State Foster Parent Ass’n v. Wagner, 624 F.3d 974, 978–79 9th Cir. 2010; AlohaCare v. Haw., Dep’t of Human Servs., 572 F.3d 740, 745 9th Cir. 2009; Ball v. Rodgers, 492 F.3d 1094, 1103 9th Cir. 2007; Legal Servs. of N. Cal., Inc. v. Arnett, 114 F.3d 135, 138 9th Cir. 1997.

The allegations must ‘plausibly give rise to an entitlement to relief.’ Dougherty v. City of Covina, 654 F.3d 892, 897 9th Cir. 2011 quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 2009.

Section 1983 provides a cause of action against persons acting under color of state law who have violated rights guaranteed by the Constitution. Buckley v. City of Redding, 66 F.3d 188, 190 9th Cir. 1995; Demery v. Kupperman, 735 F.2d 1139, 1146 9th Cir. 1984.

Section 1983 can provide a cause of action against persons acting under color of state law who have violated rights guaranteed by federal statutes. Gonzaga Univ. v. Doe, 536 U.S. 273, 279 2002; Blessing v. Freestone, 520 U.S. 329, 340–41 1997; Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 1981; Maine v. Thiboutot, 448 U.S. 1, 4 1980; Henry A. v. Willden, 678 F.3d 991, 1005 9th Cir. 2012; Cal. State Foster Parent Ass’n v. Wagner, 624 F.3d 974, 978–79 9th Cir. 2010; AlohaCare v. Haw., Dep’t of Human Servs., 572 F.3d 740, 745 9th Cir. 2009; Ball v. Rodgers, 492 F.3d 1094, 1103 9th Cir. 2007; Legal Servs. of N. Cal., Inc. v. Arnett, 114 F.3d 135, 138 9th Cir. 1997.

An unreasonable belief of imminent harm to a child will render a seizure unreasonable. Wallis v. Spencer, 202 F.3d 1126, 1140 9th Cir. 2000

Thus, the qualified immunity analysis has two prongs: 1 whether the official violated the plaintiff’s constitutional rights, and 2 whether the right violated was clearly established at the time of the official’s conduct. Id. at 232, 129 S.Ct. 808. For a right to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. That is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent. Jones v. Cnty. of L.A., 802 F.3d 990, 999 9th Cir. 2015

Determining the reasonableness of any search involves a two-fold inquiry: first, one must consider whether the … action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.B. v. City of Sonora, 769 F.3d 1005, 1023 9th Cir.2014

A child has a constitutionally protected interest in the companionship and society of his or her parent. Ward v. San Jose 9th Cir. 1992

A plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply. Larez v. Holcomb, 16 F.3d 1513, 1517-18 9th Cir.1994; Mueller v. Auker, 700 F.3d 1180, 1193 9th Cir. 2012 placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship; Pavao v. Pagay, 307 F.3d 915, 919 9th Cir.2002 reaffirming that plaintiff in § 1983 action carries the ultimate burden of establishing each element of his or her claim, including lack of consent to search; Hopkins v. Bonvicino, 573 F.3d 752, 764 9th Cir. 2009 placing burden on defendant to show existence of exigent circumstance at summary judgment stage.

With respect to the Fourth Amendment, the Supreme Court has defined a seizure as a governmental termination of freedom of movement through means intentionally applied. Brower v. County of Inyo, 489 U.S. 593, 596-97 1989 emphasis in original; Nelson v. City of Davis, 685 F.3d 867, 876-77 9th Cir. 2012

Specific intent to violate a person’s rights is not a prerequisite to liability under § 1983. Caballero v. City of Concord, 956 F.2d 204, 206 9th Cir. 1992

The filing of a grievance/complaint whether it be verbal or written, formal or informal is protected conduct. Threats to sue and/or pursue criminal charges fall within the purview of the constitutionally protected right to file grievances. Entler v. Gregoire, 872 F.3d 1031 9th Cir. 2017.

A plaintiff may bring a Section 1983 claim alleging that public officials, acting in their official capacity, took action with the intent to retaliate against, obstruct, or chill the plaintiff’s First Amendment rights. To bring a First Amendment retaliation claim, the plaintiff must allege that 1 it engaged in constitutionally protected activity; 2 the defendant’s actions would ‘chill a person of ordinary firmness’ from continuing to engage in the protected activity; and 3 the protected activity was a substantial or motivating factor in the defendant’s conduct—i.e., that there was a nexus between the defendant’s actions and an intent to chill speech. Further, to prevail on such a claim, a plaintiff need only show that the defendant ‘intended to interfere’ with the plaintiff’s First Amendment rights and that it suffered some injury as a result; the plaintiff is not required to demonstrate that its speech was actually suppressed or inhibited. But see Sharp v. County of Orange, 871 F.3d 901, 919 9th Cir. 2017 applying but-for causation standard in summary judgment context; Skoog v. County of Clackamas, 469 F.3d 1221, 1231-32 9th Cir. 2006.

Thus, to demonstrate a First Amendment violation, a citizen plaintiff must provide evidence showing that by his actions the defendant deterred or chilled the plaintiff’s political speech and such deterrence was a substantial or motivating factor in the defendant’s conduct. quoting Mendocino Env’l Ctr. v. Mendocino County,14 F.3d 457, 459-60 9th Cir. 1994.

Under the First Amendment to the United States Constitution, a citizen has the right to be free from governmental action taken to retaliate against the citizen’s exercise of First Amendment rights or to deter the citizen from exercising those rights in the future. Sloman v. Tadlock, 21 F.3d 1462, 1469-70 9th Cir. 1994.

Magistrate made a determination of probable cause and issued a search warrant, but the search warrant was defective on its face and the officer who sought the warrant was not entitled to qualified immunity; Bravo v. City of Santa Maria, 665 F.3d 1076, 1083–87 9th Cir. 2011

Second, because Jones is pro se, we must consider as evidence in his opposition to summary judgment all of Jones’s contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where Jones attested under penalty of perjury that the contents of the motions or pleadings are true and correct. McElyea v. Babbitt, 833 F.2d 196, 197 9th Cir.1987 verified pleadings admissible to oppose summary judgment; Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 9th Cir.1998 verified motions admissible to oppose summary judgment; Schroeder v. McDonald, 55 F.3d 454, 460 n. 10 9th Cir.1995 pleading counts as verified if the drafter states under penalty of perjury that the contents are true and correct.

To prove a conspiracy between the state and private parties under § 1983, the plaintiff must show an agreement or meeting of the minds to violate constitutional rights. To be liable, each participant in the conspiracy need not know the exact details of the plan, but each must at least share the common objective of the conspiracy. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540–41 9th Cir. 1989

Conclusory allegations are insufficient to state a claim of conspiracy. Simmons, 318 F.3d at 1161; Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 783–84 9th Cir. 2001;

Assigned public defender is ordinarily not considered a state actor; Kirtley v. Rainey, 326 F.3d 1088, 1093–94 9th Cir. 2003 citing Polk Cty. to determine that a state-appointed guardian ad litem does not act under color of state law for purposes of § 1983; Cox v. Hellerstein, 685 F.2d 1098, 1099 9th Cir. 1982

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