Trevor Reynolds v. Maya Bryson ( 2018 )

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                                                                            FILED
NOT FOR PUBLICATION
MAR 23 2018
UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TREVOR REYNOLDS; HEATHER                         No. 16-56565
REYNOLDS; H. R., a minor; R. R., a
minor,                                           D.C. No. 3:11-cv-01256-JAH-AGS
Plaintiffs-Appellees,
MEMORANDUM*
v.
MAYA BRYSON; CHERYL
BERGLUND,
Defendants-Appellants,
and
COUNTY OF SAN DIEGO; SAN DIEGO
COUNTY HEALTH AND HUMAN
SERVICES AGENCY; POLINSKY
CHILDRENS CENTER; SHARI
MEDEIROS; LAURA ZETMEIR;
KRISTIE CAMPELL; DOES, 1-50,
Defendants.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted March 8, 2018
Pasadena, California
Before: GRABER, W. FLETCHER, and OWENS, Circuit Judges.
Defendants Maya Bryson and Cheryl Berglund appeal the partial denial of
their motion for summary judgment based on qualified immunity. We have
jurisdiction under 28 U.S.C. § 1291. See Jeffers v. Gomez,

267 F.3d 895

, 903 (9th
Cir. 2001) (per curiam). We reverse the partial denial, holding that Defendants are
entitled to qualified immunity for the removal of H.R.
Defendants are entitled to qualified immunity if, “resolving all disputes of
fact and credibility in favor of the party asserting the injury,” (1) the facts adduced
show that Defendants’ conduct did not violate a constitutional right, or (2) the right
was not clearly established at the time of the violation. Demaree v. Pederson,

880 F.3d 1066

, 1074 (9th Cir. 2018) (per curiam) (citation omitted) (describing the
two-pronged test of Saucier v. Katz,

533 U.S. 194

(2001)). We may begin our
analysis with either prong. Pearson v. Callahan,

555 U.S. 223

, 236 (2009).
Here, we begin with the second prong. “Qualified immunity attaches when
an official’s conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” White v. Pauly, 137 S.
Ct. 548, 551 (2017) (per curiam) (internal quotation marks omitted). For a right to
2
be clearly established, “existing precedent must have placed the statutory or
constitutional question beyond debate.” Kirkpatrick v. Cty. of Washoe,

843 F.3d 784

, 792 (9th Cir. 2016) (en banc) (quoting Ashcroft v. al-Kidd,

563 U.S. 731

, 741
(2011)). To meet this standard, existing precedent must be “particularized” to the
facts of the case, as “immunity protects all but the plainly incompetent or those
who knowingly violate the law.”

White, 137 S. Ct. at 551

–52 (internal quotation
marks and citation omitted).
Even assuming that Defendants violated a constitutional right by removing
H.R., that right was not clearly established in June of 2010. At the time, our case
law described “a well-elaborated constitutional right [of parents and children] to
live together without governmental interference.” Burke v. Cty. of Alameda,

586 F.3d 725

, 731 (9th Cir. 2009) (quoting Wallis v. Spencer,

202 F.3d 1126

, 1136 (9th
Cir. 2000)). But our case law did not give “fair and clear warning” about the
application of this general right to the circumstances facing Defendants.

White, 137 S. Ct. at 552

(internal quotation marks and citation omitted); see, e.g., Rogers
v. Cty. of San Joaquin,

487 F.3d 1288

, 1295 (9th Cir. 2007) (addressing removal
based on concerns about “bottle rot, the children’s malnourishment, and the
disorderly conditions in the home”);

Wallis, 202 F.3d at 1138

–40 (addressing an
“extraordinary” case in which removal was based on a psychiatric patient’s claim
3
that a satanic ritual sacrifice was imminent); see also

Kirkpatrick, 843 F.3d at 793

(noting that “none of the cases from this court explain when removing an infant
from a parent’s custody at a hospital to prevent neglect, without a warrant, crosses
the line of reasonableness and violates the Fourth Amendment”).
Decisions from other jurisdictions supported the removal of H.R. because of
Defendants’ reasonable belief that his sibling R.R. had been abused. See Cornejo
v. Bell,

592 F.3d 121

, 129 (2d Cir. 2010) (decided January 4, 2010); Taylor v.
Evans,

72 F. Supp. 2d 298

, 309 (S.D.N.Y. 1999). These cases may not be directly
on point, given differences among the circuits about the standard for removing a
child. See Gates v. Tex. Dep’t of Protective & Regulatory Servs.,

537 F.3d 404

,
428 (5th Cir. 2008) (discussing these differences, and noting that the “Ninth and
Tenth Circuits have adopted the strictest standards for removal of a child”).
However, they undermine any claim that it was clearly established that Defendants
could not constitutionally remove H.R., which was Plaintiffs’ burden to prove. See
Kennedy v. City of Ridgefield,

439 F.3d 1055