Ninth Circuit Case Law Part 3

However, if a government officer does not act within the scope of employment or under the color of state law, then that government officer acts as a private citizen. Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 9th Cir. 1996 finding no action under color of state law where a police officer returned to a home where a search had taken place the day before, forced his way in, and tortured the two people residing in the home.

State law can create a right that the Due Process Clause will protect only if the state law contains 1 substantive predicates governing official decision making, and 2 explicitly mandatory language specifying the outcome that must be reached if the substantive predicates have been met. Bonin v. Calderon, 59 F.3d 815, 842 9th Cir.1995

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. Starr v. Baca, 652 F.3d 1202, 1216 9th Cir. 2011.

Contrary to the district court’s conclusion, we hold that any right that James may have was not clearly established on the basis of common sense. A right can be clearly established by common sense only where conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional. DeBoer v. Pennington, 206 F.3d 857, 864-65 9th Cir.2000, vacated on 653*653 other grounds by Bellingham v. DeBoer, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 635 2001

State officials sued in their official capacity for injunctive relief, however, are persons for purposes of § 1983. Will, 491 U.S. at 71 n.10; Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 9th Cir. 2013; Flint, 488 F.3d at 825; Doe, 131 F.3d at 839; Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1371 9th Cir. 1992. See also Paeste v. Gov’t of Guam, 798 F.3d 1228, 1235–40 9th Cir. 2015 discussing distinction between suits seeking damages and suits seeking prospective relief. Thornton v. Brown, 757 F.3d 834, 839 9th Cir. 2013.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s dismissal of a complaint under Federal Rule of Civil Procedure 12b6 for failure to state a claim. Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 9th Cir. 2019 quoting Starr v. Baca, 652 F.3d 1202, 1205 9th Cir. 2011.

When ruling on a motion to dismiss, we accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party. Knievel v. ESPN, 393 F.3d 1068, 1072 9th Cir. 2005.

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

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

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. Starr v. Baca, 652 F.3d 1202, 1216 9th Cir. 2011.

The Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 1973 ; United States v. Ocheltree, 622 F.2d 992, 994 9th Cir.1980

Contrary to the district court’s conclusion, we hold that any right that James may have was not clearly established on the basis of common sense. A right can be clearly established by common sense only where conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional. DeBoer v. Pennington, 206 F.3d 857, 864-65 9th Cir.2000, vacated on 653*653 other grounds by Bellingham v. DeBoer, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 635 2001

The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies. Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 9th Cir.2001.

A seizure is a single act, and not a continuous fact. quoting Thompson v. Whitman, 85 U.S. 457, 471, 18 Wall. 457, 21 L.Ed. 897 1873 .Jones v. Cnty. of L.A., 802 F.3d 990, 1001 9th Cir. 2015

Officials violate this right if they remove a child from the home absent information at the time of the seizure that establishes `reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.’ at 1106 quoting Wallis, 202 F.3d at 1138. The Fourth Amendment also protects children from removal from their homes absent such a showing. Doe v. Lebbos, 348 F.3d 820, 827 n. 9 9th Cir.2003.

Absent conditions presenting an imminent risk of serious bodily harm, removing children from their home without obtaining judicial authorization is a violation of a parent’s established Fourth and Fourteenth Amendment rights. Rogers v. Cty. of San Joaquin, 487 F.3d 1288, 1297–98 9th Cir. 2007.

A claim of municipal liability under § 1983 is sufficient to withstand a motion to dismiss ‘even if the claim is based on nothing more than a bare allegation that the individual officers’ conduct conformed to official policy, custom, or practice. Karim-Panahi v. L.A. Police Dep’t., 839 F.2d 621, 624 9th Cir. 1988

However, a showing of probable cause does not satisfy the conclusion that MD was in imminent danger of serious physical injury sufficient to justify a warrantless removal. LaLonde v. County of Riverside, 204 F.3d 947, 954 9th Cir. 2000 Mabe v. San Bernardino County, 237 F.3d 1101, 1108 n.2 9th Cir. 2001

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