FILED
NOT FOR PUBLICATION
APR 30 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT MANN, Sr.; et al., No. 19-15483
Plaintiffs-Appellants, D.C. No.
2:17-cv-01201-WBS-DB
and
ZACHARY MANN; WILLIAM MANN, MEMORANDUM*
Plaintiffs,
v.
SACRAMENTO POLICE
DEPARTMENT; SAMUEL D. SOMERS,
Jr.,
Defendants,
and
JOHN C. TENNIS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, 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 April 14, 2020
San Francisco, California
Before: GOULD and CHRISTEN, Circuit Judges, and LASNIK,** District Judge.
Plaintiffs-Appellants Robert Mann, Sr., Vern Murphy-Mann, and Deborah
Mann appeal from the district court’s order granting Defendants-Appellees’ motion
to dismiss in a § 1983 action alleging deprivation of their First Amendment right to
familial association with their adult brother. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we reverse and remand.1
A prior panel reviewed an interlocutory appeal in this case and concluded
that Plaintiffs’ initial complaint failed to adequately allege facts showing that they
had a constitutionally protected relationship with the decedent. See Mann v. City
of Sacramento, 748 F. App’x 112 (9th Cir. 2018) (“Mann II”). In accordance with
General Order 4.3.a, the memorandum disposition provided a concise explanation
of its decision, but we recognize that the explanation may have caused confusion
on remand.
As relevant here, Mann II concluded that Plaintiffs’ complaint did not allege
facts establishing a First Amendment right of familial or intimate association, as
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
1
Because the parties are familiar with the facts and procedural history of
this case, we do not recite them here.
2
recognized in Board of Directors of Rotary International v. Rotary Club of Duarte,
481 U.S. 537, 545 (1987), and its progeny. 748 F. App’x at 114. We stated that
even if Plaintiffs’ complaint met Rotary Club’s standard, their intimate-association
claims would be foreclosed by Ward v. City of San Jose, 967 F.2d 280, 283–84
(9th Cir. 1991). Ward held that a decedent’s adult siblings lacked “a cognizable
liberty interest in their brother’s companionship” under the substantive Due
Process Clause of the Fourteenth Amendment. Id. Ward did not discuss
cohabitation. Nevertheless, because Mann II stated that Ward barred intimate-
association claims by “adult, non-cohabitating siblings,” 748 F. App’x at 115, the
Mann II decision was interpreted on remand as requiring that Plaintiffs plead facts
demonstrating their cohabitation with the decedent to sustain their First
Amendment intimate-association claim.
We conclude that Mann II’s statement that Ward “would” foreclose
Plaintiffs’ First Amendment claim “even if” they had pleaded sufficient facts, see
id., is dicta. See Trent v. Valley Elec. Ass’n, Inc., 195 F.3d 534, 537 (9th Cir.
1999). First, Ward did not create a cohabitation requirement or purport to govern
First Amendment claims; Ward addressed only Fourteenth Amendment intimate-
association claims brought by adult siblings. See Ward, 967 F.2d at 284.
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Second, Mann II cited the Rotary Club line of cases in addressing the
sufficiency of Plaintiffs’ First Amendment allegations, and it recognized that
cohabitation was one of several objective indicia that courts may consider when
assessing whether Plaintiffs were deprived of their intimate-association right. 748
F. App’x at 114; see also Rotary Club of Duarte, 481 U.S. at 545; Keates v. Koile,
883 F.3d 1228, 1236 (9th Cir. 2018); Lee v. City of Los Angeles, 250 F.3d 668,
685-86 (9th Cir. 2001); Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th Cir.
1995).
Finally, Mann II could not have held that Ward forecloses Plaintiffs’ First
Amendment claim because it expressly decided that the district court could allow
Plaintiffs to amend on remand. See 748 F. App’x at 115. If Ward controlled the
First Amendment analysis, amendment would have been futile because no
amendment could change the fact that Plaintiffs are the decedent’s adult siblings.
We therefore remand for consideration of Plaintiffs’ First Amendment claim under
the standard set forth in Rotary Club and its progeny. 481 U.S. at 545; Keates, 883
F.3d at 1236; Lee, 250 F.3d at 685-86.
REVERSED and REMANDED.
4