FILED
NOT FOR PUBLICATION DEC 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALICE DELA CRUZ, No. 08-17136
Plaintiff - Appellant, D.C. No. 1:06-CV-00037
v.
MEMORANDUM *
TOM PALACIOS, in his personal
capacity; SANTIAGO TUDELA, in his
personal capacity; ANDREW SANTOS, in
his personal capacity,
Defendants - Appellees.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Alex R. Munson, Chief District Judge, Presiding
Argued and Submitted October 13, 2010
Honolulu, Hawaii
Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.
Plaintiff-Appellant Alice Dela Cruz (“Dela Cruz”) appeals the adverse grant of
summary judgment in her 42 U.S.C. § 1983 action for deprivation of familial
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
association and interference with a property interest in the body of her deceased son,
Donald Sewell (“Sewell”). We affirm.
Familial Association Claim
As Dela Cruz correctly notes, the proper standard for evaluating her § 1983
claim for deprivation of familial association based on the loss of her son is the
Fourteenth Amendment’s stringent “shocks the conscience” standard. Porter v.
Osborn, 546 F.3d 1131, 1137-38 (9th Cir. 2008). Where, as here, “an officer
encounters fast paced circumstances presenting competing public safety obligations,”
only actions demonstrating that the officer acted with a “purpose to harm” unrelated
to legitimate law enforcement objectives will suffice to establish a claim. Id. at 1139-
40.
Dela Cruz produced no colorable evidence that defendant police officer Andrew
Santos (“Santos”) acted with an intent to harm Sewell, other than to stop an attack on
himself or innocent bystanders. Even construing the facts in the light most favorable
to her, Dela Cruz has not shown that Santos acted with a “purpose to harm.” Id. at
1139. Summary judgment for Santos and his superior, defendant Santiago Tudela,
was therefore proper.
Nor are we required to remand to the district court for consideration of the
claim under the Porter standard. Dela Cruz was on notice that she must come forward
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with all her evidence to support her claim. See Celotex Corp. v. Catrett, 477 U.S. 317,
326 (1986); Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 & n.4 (9th
Cir. 1998) (although district court applied wrong standard, “if [it] correctly
determined [the officer’s] actions were objectively reasonable, it follows that [the]
conduct did not offend the more stringent standard applicable to substantive due
process claims”).
The district court also acted within its gatekeeping discretion in excluding the
affidavit of Claudio Norita because of reliability defects. See Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 593-95, 597 (1993). See also Fed. R. Evid. 702.
Having failed to raise it in her opening brief, Dela Cruz has waived her
argument that the district court erred in deeming admitted defendants’ requests for
admissions. Randle v. Crawford, 578 F.3d 1177, 1184 (9th Cir. 2009).
Claim for Interference with Property Interest
To prevail on her § 1983 claim and overcome defendant Tom Palacios’s
(“Palacios”) assertion of qualified immunity, Dela Cruz was required to show that
Palacios violated “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). This traditionally involved a two-step inquiry requiring determination of
whether a constitutional right existed and was violated before determining whether the
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right was clearly established at the time of the alleged violation. See Saucier v. Katz,
533 U.S. 194, 201 (2001). However, where it is impractical or would require unduly
extensive constitutional analysis, courts need not adhere to the rigid order of the
traditional qualified immunity analysis. Pearson v. Callahan, 129 S. Ct. 808, 818
(2009).
Dela Cruz does not point to any authority establishing a constitutional property
right or interest of the breadth she claims. State statutory and common law do not
support her claim. Whatever the status and scope of a property interest in the
immediate possession of the body of a close relative, in the context of a lawful
ongoing investigation, no such right was clearly established at the time of the alleged
deprivation. Having failed to establish a necessary element of her § 1983 case, Dela
Cruz’s claim necessarily fails, and summary judgment for Palacios on qualified
immunity grounds was proper. See Celotex Corp., 477 U.S. at 322-23.
Dela Cruz argues for the first time on appeal that the Morgue Operating Policy
under which Palacios acted was not a valid regulation. Because the validity of the
regulation would only be relevant to the § 1983 analysis if the right Dela Cruz claimed
was clearly established, we need not address the argument.
AFFIRMED.
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