Summary
affirming denial of motion to dismiss with leave to pursue qualified immunity defense at summary judgment
Summary of this case from Walters v. Cnty. of Contra CostaOpinion
No. 13-17202
05-19-2015
LETICIA ROMERO, as the natural mother and legal guardian of MMR, a minor, Plaintiff - Appellee, v. COUNTY OF WASHOE, a political subdivision of the State of Nevada, Defendant, DOES, 1-10, Defendant, And DIANA MANN, individually and in her capacity as social worker for Washoe County and JULIE BRANDT, individually and in her capacity as social worker for Washoe County, Defendants - Appellants.
NOT FOR PUBLICATION
D.C. No. 3:11-cv-00582-LRH-WGC MEMORANDUM Appeal from the United States District Court for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted May 14, 2015 San Francisco, California Before: O'SCANNLAIN and IKUTA, Circuit Judges and BURNS, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Larry A. Burns, District Judge for the U.S. District Court for the Southern District of California, sitting by designation.
Appellants Diana Mann and Julie Brandt appeal the denial of their motion to dismiss Leticia Romero's claim for relief under 42 U.S.C. § 1983 on the basis of qualified immunity. Because the parties are familiar with the factual and procedural history of this case, we do not recount it. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Where a defendant presents a qualified immunity defense in a Rule 12(b)(6) motion, "dismissal is not appropriate unless we can determine, based on the complaint itself, that qualified immunity applies." Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001). An allegation that sexual abuse occurred in the home, without additional facts regarding exigency, is insufficient to show the imminent danger of serious bodily injury necessary to intrude on a parent's custody of her child without prior judicial authorization. Mabe v. San Bernardino Cnty., Dep't of Pub. Soc. Servs, 237 F.3d 1101, 1107-08 (9th Cir. 2001). Romero's complaint does not address whether Mann and Brandt had reasonable cause to believe that MMR was in imminent danger of serious bodily injury or whether the failure to obtain a warrant was reasonably necessary to avert that specific injury. See id. at 1108-09 (holding that qualified immunity is inappropriate if "a material question of fact exists regarding whether . . . there was reasonable cause to believe" that the "child[ ] faced an immediate threat of serious physical injury or death" (internal quotation marks omitted)). The district court properly denied their motion to dismiss with leave to pursue their qualified immunity defense at summary judgment.
In light of this disposition, Romero's request for judicial notice is denied as moot.
--------
AFFIRMED.