Opinion
Argued and Submitted April 10, 2003.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Citizens sued city and police officers claiming denial of access to courts, deprivation of equal protection, and unreasonable seizure. The United States District Court for the Southern District of California, Barry T. Moskowitz, J., granted judgment for defendants. Citizens appealed. The Court of Appeals held that: (1) citizens failed to establish backward-looking deprivation of access to courts claim; (2) citizens were not denied equal protection of the law by police officers' alleged failure to investigate death of relative or by lying about results of polygraph test administered to witness; and (3) since one parent of child plaintiff was suspected of committing child abuse, child's brief separation of a few days from both parents, when parents were married and presumably living together, was not excessively intrusive.
Affirmed. Appeal from the United States District Court for the Southern District of California, Barry T. Moskowitz, District Judge, Presiding.
Before BEEZER, FERNANDEZ, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
We affirm the district court's dismissal of appellants' denial of access to the courts claim and the district court's summary judgment of appellants' (1) claims of deprivation of equal protection and (2) claim of an unreasonable seizure. I
The facts are not recited here as the parties are familiar with the facts of this case.
Appellants argue that the district court erred in dismissing their denial of access to courts claim. The Supreme Court recently clarified the nature of the denial of access claim. See Christopher v. Harbury, 536 U.S. 403, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). In Christopher, the Supreme Court distinguishes between forward-looking and backward-looking claims. Id. at 414. The Supreme Court notes that in order to state a claim for backward-looking denial of access, a party must identify in the complaint (1) a "nonfrivolous," "arguable" underlying claim, whether anticipated or lost; (2) the official acts frustrating the litigation; and (3) a remedy that may be awarded as recompense but that is not otherwise available in a future suit. Id. at 415.
The Court in Christopher does not establish a new rule, but rather articulates the common elements of the backward-looking denial of access claim as recognized by various circuits. See id. at 414-16. Our circuit further requires that a party, in order to prevail on a denial of access claim, "demonstrate that the defendant's cover-up violated their right of access to the courts by rendering any available state court remedy ineffective." Delew v. Wagner, 143 F.3d 1219, 1223-224 (9th Cir.1998).
Here, the bankruptcy court proceedings rendered appellants' wrongful death action ineffective. We can never know what would have happened if the bankruptcy court case had not precluded the state lawsuit. Because appellants can not demonstrate that the defendants' alleged cover-up rendered any state court remedy ineffective, the district court properly dismissed their denial of access to courts claim.
II
Appellants appeal the district court's grant of summary judgment against their claims that: (1) the defendants deprived the appellants of equal protection by failing to investigate the death of Scott Neaves; and (2) the polygraph operator deprived the appellants of equal protection by lying about the results of the babysitter's polygraph test.
Equal protection rights are violated when (1) a person is a member of an identifiable class; (2) that person is intentionally treated differently from others similarly situated; and (3) there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Discriminatory intent "implies more than intent as volition or intent as awareness of consequences. It implied that the decision maker ... selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); see also City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 123 S.Ct. 1389, 1394, 155 L.Ed.2d 349 (2003). Here, the district court held that appellants were an identifiable class, but that appellants had not shown that the defendants acted with an intent or purpose to discriminate against them.
Appellants argue that when the defendants denied them police services, the defendants engaged in intended conduct with the inevitable or foreseeable consequence that the appellants would be denied equal protection. In certain instances, a violation of equal protection can occur when an officer acts with a discriminatory intent in refusing to investigate a particular case. See e.g., Estate of Macias v. Ihde, 219 F.3d 1018, 1028 (9th Cir.2000); Navarro v. Block, 72 F.3d 712, 716-17 (9th Cir.1995). In these instances, however, it is the victims themselves, not a relative or another third party, who have alleged a violation of their equal protection rights based on discriminatory police conduct. See e.g., Estate of Macias, 219 F.3d at 1028; Navarro, 72 F.3d at 716. In addition, our refusal to investigate cases have involved findings of discriminatory intent based upon membership in a particular class. See e.g., Estate of Macias, 219 F.3d at 1020, 1028 (involving discrimination against a person based on her status as a woman and as a domestic violence victim); Navarro, 72 F.3d at 717 (involving discrimination against a member of a class composed of domestic violence victims). Here, appellants may have been treated differently, but they have not shown discriminatory intent.
Appellants argue that defendants acted with discriminatory intent by citing three other cases involving the deaths of young children that occurred under circumstances which are arguably similar to the circumstances surrounding Scott Neaves' death and which were investigated differently. It is undisputed, however, that any improper conduct by defendants was motivated by a desire to protect the babysitter, rather than by an intention to discriminate against the appellants because of their membership in a class. Looking at the evidence in the light most favorable to the appellants, the defendants did not fail to provide police services "because of" appellants' membership in a certain class. Rather, the defendants acted to protect the babysitter, "in spite of" any adverse effects on the appellants. Absent evidence of discriminatory intent, appellants' equal protection claims fail. The district court's decision is correct.
We also note that the Neaves' have no "judicially cognizable interest" in having the babysitter prosecuted. See Diamond v. Charles, 476 U.S. 54, 64, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986).
III
Appellant Makenzie Neaves appeals the district court's grant of summary judgment against Makenzie's unlawful seizure claim. The grant of summary judgment was based on defendants' qualified immunity.
In order to determine whether the defendants are entitled to qualified immunity, we first determine whether the facts alleged, taken in the light most favorable to the appellants, show that the defendants' conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If a violation of a constitutional right is shown, then we determine whether the right was so clearly established at the time that a reasonable officer would have known that his or her conduct was unlawful. Id. at 201-02.
In order to determine whether a constitutional violation has occurred, we determine whether there was an unlawful seizure. Officials may remove a child without a warrant from parental custody when the official has a "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." Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir.2000).
California Welfare and Institutions Code § 305 contains similar language. Section 305 proves that any peace officer may, without warrant, take into temporary custody a minor "[w]hen the officer has reasonable cause for believing that the minor ... is in immediate danger of physical or sexual abuse, or the physical environment ... poses an immediate threat to the child's health or safety."
The defendants had reasonable cause to believe Makenzie was in imminent danger. Makenzie's brother, Scott, had sustained life-threatening injuries potentially caused by abuse. The defendants did not know at the time who was responsible for Scott's injuries. In response, the defendants temporarily separated Makenzie from both her parents and her babysitter for the child's protection.
Appellants claim that the scope of intrusion involved in seizing Makenzie was excessive in that Makenzie could have been placed with her father, who was identified as a "non-suspect" in the child abuse investigation. The officers knew, however, that Makenzie's parents were married and that placing Makenzie with her father would not necessarily remove Makenzie from the risk of her mother, who was a suspect in the child abuse investigation.
In addition, the brief period during which Makenzie was separated distinguishes her seizure from an unlawful seizure. Cf. Wallis, 202 F.3d at 1131 (holding summary judgment improper where, on the basis of a fantastical allegation of a planned satanic ritual alleged by an estranged relative hospitalized in a psychiatric facility, children were taken away from their parents for two and one-half months, during which time the children underwent intrusive anal and vaginal physical examinations). A brief separation of a few days from both parents, when the parents are married and presumably living together and when one parent is suspected of committing child abuse, is not excessively intrusive.
The district court properly determined that there was no violation of Makenzie's constitutional rights. Defendants had reasonable cause to believe that Makenzie was in imminent danger of serious bodily injury and the scope of the intrusion caused by temporarily separating Makenzie from her parents was reasonably necessary to avert that danger. We affirm the district court's grant of summary judgment against Makenzie's claim of unlawful seizure on the basis of qualified immunity.
The district court also stated that, even if Makenzie's constitutional rights were violated, the officers did not violate clearly established rights because a reasonable officer would not have known that his or her conduct was unlawful. We agree.
AFFIRMED
PAEZ, concurring in part, dissenting in part.
I concur in Parts I and III of the memorandum disposition. I respectfully dissent, however, from the majority's decision in Part II to affirm the district court's summary dismissal of the Neaves' equal protection claim. Because there are triable issues of fact regarding the defendant officers' intent, I would reverse the district court's ruling on this claim and remand for further proceedings.
As noted by the majority, we have recognized an equal protection claim when police officers have allegedly acted with discriminatory intent in refusing to investigate alleged criminal acts against a victim. See e.g., Estate of Macias v. Ihde, 219 F.3d 1018, 1028 (9th Cir.2000); Navarro v. Block, 72 F.3d 712, 716-17 (9th Cir.1995). Although the Macias and Navarro claims were either brought by the victim or the estate of a deceased victim, I do not believe that the equal protection analysis we employed in those cases should be limited to plaintiffs who were crime victims, as the majority seems to suggest. Indeed, the Equal Protection Clause guarantees that all persons who are similarly situated are entitled to equal treatment by government officials. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Thus, an individual who alleges that a police officer intentionally treated him or her differently than other similarly-situated individuals and alleges that there was no rational basis for the difference in treatment states a viable Fourteenth Amendment Equal Protection Claim. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).
Although the summary judgment record does not reflect that the Neaves explicitly requested an investigation of their son's death, we can reasonably infer from the record that the Neaves made such a request. As the record reflects, the police immediately suspected that there might have been criminal conduct involved in their son's death, and there is nothing in the record to show that the Neaves were a target of the investigation. Because the Neaves are entitled to all reasonable inferences in resisting summary judgment, it is reasonable to infer, in the circumstances of this case, that the Neaves requested the police to investigate the death of their son, especially after the coroner declared his death to be a homicide. When viewed in this context, the Equal Protection claim is analogous to those cases in which individuals requested police services and were denied such services or were afforded inferior services. See Macias, 219 F.3d at 1028; Navarro, 72 F.3d at 716-17.
Moreover, as I understand the Neaves' Equal Protection claim, it is not tied to their denial of access claim. They made this point in their opposition to Defendants' summary judgment motion and at oral argument before this panel. If the Neaves can prove that they were treated differently from other similarly situated individuals, then they could recover damages for any injury they suffered--including emotional distress. See Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (holding that damages for emotional distress are available under § 1983). Indeed, the Neaves contend that they suffered injury, not from denial of access to the courts, but from the unequal treatment that they received during the defendants' investigation of their son's death.
The majority concludes that even if the Neaves were treated differently from other similarly situated individuals, they failed to show that Defendants acted with an intent or purpose to discriminate against them because of their membership in a class. Although the Neaves must demonstrate that the police officers acted " 'because of,' not merely 'in spite of' " the Neaves' desire to see Cummings held responsible for the death of their son, see Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), the defendants' alleged desire to protect Cummings, in my view, does not negate a possible showing of discriminatory intent. Whether Defendants desired to protect Cummings from criminal and civil liability or whether they intentionally discriminated against the Neaves because the Neaves wanted Defendants to investigate Cummings' role in their son's death raises a genuine question of fact for the jury. Because this issue is the very heart of the dispute, I cannot agree with the majority that it is "undisputed ... that any improper conduct by Defendants was motivated by a desire to protect the babysitter." Memorandum Disposition at 5.
Plaintiffs presented evidence that Gil and Doakes permitted Cummings to meet
Page 434.
with Sergeant Roger Michael, Cummings' father, before they conducted their investigative interview with her, and that Michael was permitted to maintain regular contact with the investigating officers about the status of the investigation in spite of the fact that he was worried Cummings might have harmed Scott Neaves. Further, the Neaves offered evidence that police officers in the San Diego Police Department considered their fellow officers and their relatives as "family," and that the officers involved in the investigation had known Sergeant Michael for more than 10 years. In addition, Defendants did not collect evidence from or take pictures of the crime scene, even though they closed off some parts of Cummings' home on the night Scott collapsed.
Presented with this evidence, a reasonable juror could find that Defendants treated the Neaves differently than other individuals whose children were victims of child abuse because Cummings was the suspected perpetrator of the Neaves' son's death. Put another way, because there is sufficient evidence in the record to show that Defendants had a constitutionally impermissible goal, adopted an impermissible means of achieving that goal, and their actions produced an impermissible effect, a reasonable juror could conclude that Defendants were motivated, at least in part, by a desire to intentionally treat the Neaves differently by conducting an inadequate investigation of their son's death without any rational basis. See Myers v. County of Orange, 157 F.3d 66, 74-76 (2d Cir.1998); Backlund v. Hessen, 104 F.3d 1031, 1033-34 (8th Cir.1997). Accordingly, I would reverse the district court's ruling on the Neaves' equal protection claim and remand that claim for further proceedings.