Garver Ex Rel. Garver v. Brandt

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 30 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KORY GARVER, as the natural father and No. 11-18015
legal guardian of Amie Garver, a minor,
D.C. No. 3:09-cv-00463-LRH-
Plaintiff - Appellee, WGC
v.
MEMORANDUM*
JULIE BRANDT, individually and in her
capacity as social worker for Washoe
County; DENA NEGRON, individually
and in her capacity as social worker for
Washoe County,
Defendants - Appellants,
And
WASHOE COUNTY, a political
subdivision of the State of Nevada;
SHOSHONE TRIBAL POLICE
DEPARTMENT; DOES, 1-10,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted March 3, 2014
Pasadena, California
Before: BYBEE and BEA, Circuit Judges, and RESTANI, Judge.**
Defendants-Appellants Julie Brandt and Dena Negron appeal the district
court’s order denying their motion for summary judgment. Because we lack
jurisdiction, we dismiss the appeal.
Plaintiffs-Appellees Kory Garver and A.G. filed this 42 U.S.C. § 1983action alleging that Brandt and Negron violated their Fourth and Fourteenth
Amendment rights. Brandt and Negron moved for summary judgment on the basis
of qualified immunity. The district court denied the motion because it determined
that “[g]enuine issues of material fact remain regarding what information was
actually . . . received by Brandt and Negron. A jury’s resolution of such disputed
facts is critical to determining whether Brandt and Negron violated the Fourth and
Fourteenth Amendment rights of [A.G.] and Kory Garver and the reasonableness
of their belief in the legality of their conduct.”
We lack jurisdiction to review the district court’s decision because “a
defendant, entitled to invoke a qualified immunity defense, may not appeal a
**
The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
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district court’s summary judgment order insofar as that order determines whether
or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v.
Jones, 515 U.S. 304, 319–20 (1995). It is true that “summary judgment
determinations are appealable when they resolve a dispute concerning an ‘abstract
issu[e] of law’ relating to qualified immunity—typically, the issue whether the
federal right allegedly infringed was ‘clearly established[.]’” Behrens v. Pelletier,
516 U.S. 299, 313 (1996) (alteration in original) (internal citations omitted). But,
as the district court noted, we have already held that the contours of the rights at
issue in this case are clearly established. See Rogers v. Cnty. of San Joaquin, 487
F.3d 1288, 1297 (9th Cir. 2007) (“The law was clearly established [in 2001] that a
child could not be removed from the home without prior judicial authorization
absent evidence of imminent danger of serious bodily injury and [unless] the scope
of the intrusion is reasonably necessary to avert that specific injury.” (second
alteration in original) (internal quotation marks and citations omitted)).
Rather than resolving an abstract question of law, the district court
determined that there are genuine issues of material fact concerning whether
Brandt and Negron had reasonable cause to believe that A.G. would have been
placed in imminent danger of serious bodily injury in the time it would have taken
to obtain a warrant. See id. at 1294 (“Officials, including social workers, who
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remove a child from [her] home without a warrant must have reasonable cause to
believe that the child is likely to experience serious bodily harm in the time that
would be required to obtain a warrant.”); see also Wallis v. Spencer, 202 F.3d
1126, 1138 (9th Cir. 1999) (“The existence of reasonable cause, and the related
questions, are all questions of fact to be determined by the jury.”). What the social
workers were told by dispatch is a triable issue of fact because what dispatch told
them depends, in part, on what Officer Brannen told dispatch. In this way, the
officer’s report to dispatch is circumstantial evidence of what the social workers
were actually told. We therefore lack jurisdiction to review the district court’s
order denying the defendants’ motion for summary judgment. See Johnson, 515
U.S. at 319–20; see also George v. Morris, 736 F.3d 829, 835 & n.9 (9th Cir.
2013); Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001); Collins v. Jordan,
110 F.3d 1363, 1370 (9th Cir. 1996). We express no view about whether Brandt
and Negron are entitled to qualified immunity.
DISMISSED.
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