NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIM GOMES; CATHERINE GOMES, No. 20-16799
Plaintiffs-Appellants, D.C. No. 5:18-cv-04191-EJD
v.
MEMORANDUM*
SANTA CLARA COUNTY,
Defendant-Appellee,
and
ROSHANDA BURNS; et al.,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted June 15, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges.
Tim and Catherine Gomes appeal the district court’s grant of summary
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judgment for Santa Clara County and Bob Beck, a supervisory social worker with
the County’s Department of Family and Children’s Services (“DFCS”). The
Gomeses’ suit claimed the warrantless removal of their child, H.G., violated the
Fourteenth Amendment.1 We review a district court’s grant of summary judgment,
including for qualified immunity, de novo. Torres v. Cty. of Madera, 648 F.3d 1119,
1123 (9th Cir. 2011); Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1141 (9th
Cir. 2021).
1. The district court correctly held that Beck is entitled to qualified immunity
for his role in removing H.G. without a warrant. Qualified immunity “shields federal
and state officials from money damages unless a plaintiff pleads facts showing (1)
that the official violated a statutory or constitutional right, and (2) that the right was
clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011) (simplified). To be “clearly established, a right must be
sufficiently clear that every reasonable official would have understood that what he
is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012)
(simplified).
1
On appeal, the Gomeses challenge only the district court’s grant of summary
judgment on their Fourteenth Amendment claims (Claims 5, 7, 8, and 14) against
the County and Beck for their warrantless removal of H.G. The Gomeses dismissed
their constitutional claims against defendant Michael Shaheed below, and they do
not raise any arguments related to the other three individual Defendants—Sarah
Arana, Rashonda Burns, and Linda Hsiao.
2
The Fourteenth Amendment protects “the parent-child relationship from
unwanted interference by the state.” Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784,
788 (9th Cir. 2016). Social workers may not remove children from their parents
“absent a warrant or exigent circumstances.” Id. at 791 (simplified). Exigent
circumstances exist when “[s]erious allegations of abuse that have been investigated
and corroborated” support “a reasonable inference of imminent danger” that the
child “might again be [abused] during the time it would take to get a warrant.”
Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1294–95 (9th Cir. 2007) (simplified).
Here, hospital staff alerted DFCS and Beck to the Gomeses’ mistreatment of
H.G., including specific instances that cast into doubt whether the days-old infant
would be fed properly, kept warm, and protected from physical harm. For example,
the hospital reported that Tim had picked H.G. up by the neck and dangled her body,
both parents had repeatedly left H.G. unswaddled to the point where her body
temperature dropped, and both parents neglected to change H.G.’s diapers or feed
her when needed. Social worker Katherine DiPaulo independently confirmed these
accounts. Then, most importantly, the hospital alerted DFCS and Beck that H.G.
would be discharged to her parents “momentarily.” Beck was understandably
concerned about how the Gomeses would care for H.G. outside the hospital staff’s
supervision. On these facts, Beck could reasonably believe that the child would face
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an immediate risk of physical harm before he could successfully secure a warrant.
See Rogers, 487 F.3d at 1294–95.
None of the precedents cited by the Gomeses establish that “the state of the
law at the time of [the] incident provided fair warning to [Beck] that [his]
conduct was unconstitutional.” Jessop v. Cty. of Fresno, 936 F.3d 937, 940 (9th Cir.
2019) (simplified); see Kirkpatrick, 843 F.3d at 793 (holding that it must be “beyond
debate that the confluence of factors [in the present case] would not support a finding
of exigency”). Those cases are materially distinguishable from this case because
they do not involve the immediate risk of harm H.G. faced. See id. at 792 (hospital
placed a “hold” preventing the child from being released to her mother); Rogers, 487
F.3d at 1296 (social worker delayed acting for eighteen days after learning of
neglect, and agency “classified the case as a ten-day response”); Mabe v. San
Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1105, 1108 (9th Cir.
2001) (social worker delayed one month after initial report and four days after
interview confirming abuse before acting); Wallis v. Spencer, 202 F.3d 1126, 1131–
32, 1134, 1138–40 (9th Cir. 2000) (social workers removed child based on
uncorroborated report of an impending Satanic sacrifice by an estranged relative
with a history of “delusional disorders”); Ram v. Rubin, 118 F.3d 1306, 1311 (9th
Cir. 1997) (social workers “acted on two-year-old allegations” with no change in
circumstances).
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The facts of this case, viewed in the light most favorable to the Gomeses,
O’Doan v. Sanford, 991 F.3d 1027, 1032 (9th Cir. 2021), support a reasonable belief
that H.G. faced an immediate risk of physical harm before Beck could obtain a
warrant. And no “clearly established” prior case law would have led a “reasonable
official” to have understood “that what he [was] doing violate[d the Constitution]”
under the circumstances presented by the record. al-Kidd, 563 U.S. at 741
(simplified). We therefore do not reach the first prong of the qualified immunity
inquiry, see Reichle, 566 U.S. at 664, and affirm the district court’s summary
judgment for Beck on qualified immunity grounds on Claims 5 and 7.
2. We do not reach the Gomeses’ Monell claims against the County because
the Gomeses waived these claims by not raising them in their opening brief. See
Young v. State, 992 F.3d 765, 780 (9th Cir. 2021) (“We do not ordinarily consider
matters on appeal that are not specifically and distinctly raised and argued in
appellant’s opening brief.”) (simplified). Aside from sparse references to the
County’s allegedly inadequate training for its social workers in its statement of facts,
the opening brief never invokes Monell and fails to develop any arguments to
support this generalized criticism. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th
Cir. 1994). We accordingly affirm the district court’s grant of summary judgment
for the County on the Gomeses’ Monell claims (Claims 8 and 14).
AFFIRMED.
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