NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 10 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSICA FIDLER, an individual and No. 23-15691
guardian of minor on behalf of E.F.,
D.C. No. 2:22-cv-00300-ROS
Plaintiff-Appellant,
v. MEMORANDUM*
STATE OF ARIZONA, a government entity;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted April 1, 2024
Phoenix, Arizona
Before: HAWKINS, BADE, and DESAI, Circuit Judges.
Plaintiff-Appellant Jessica Fidler, on behalf of herself and her son, E.F.,
appeals the district court’s order dismissing her third amended complaint against
various defendants allegedly involved in the temporary removal of E.F. from her
custody. We have jurisdiction under 28 U.S.C. § 1291. “We may affirm the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
district court’s dismissal of the complaint on any basis supported by the record.”
Sonner v. Premier Nutrition Corp., 971 F.3d 834, 839 (9th Cir. 2020). We affirm.
1. We review the district court’s order de novo, Douglas v. Noelle, 567 F.3d
1103, 1106 (9th Cir. 2009), and apply a two-step, “context-specific” inquiry,
Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 995 (9th Cir.
2014). We first separate the conclusory allegations from the nonconclusory
allegations and then ask whether those nonconclusory allegations, taken as true,
state a plausible entitlement to relief. Id. at 996. A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
In addition to asserting that the claims against them are implausible, the state
appellees assert that they are entitled to absolute or qualified immunity from
liability for Fidler’s civil rights claims. We reject their argument that they are
absolutely immune because no claim challenges “discretionary, quasi-prosecutorial
decisions to institute court dependency proceedings to take custody away from
parents.” Miller v. Gammie, 335 F.3d 889, 898 (9th Cir. 2003) (en banc).
Qualified immunity is therefore the only potentially applicable immunity defense.
Id. at 897. In reviewing a qualified immunity defense at the motion to dismiss
stage, we ask “whether the complaint alleges sufficient facts, taken as true, to
2
support the claim that the officials’ conduct violated clearly established
constitutional rights of which a reasonable officer would be aware.” Keates v.
Koile, 883 F.3d 1228, 1235 (9th Cir. 2018).
2. In Claims Two and Three, Fidler alleges that defendants Dr. Bo Borch-
Christensen, Dr. Kathryn Coffman, Lisa Burns, Melinda Quigley, and Drue
Kaplan-Siekmann violated her and E.F.’s rights to familial association by judicial
deception. To state a plausible claim of judicial deception, a plaintiff must plead
“(1) a misrepresentation or omission (2) made deliberately or with a reckless
disregard for the truth, that was (3) material to the judicial decision.” Benavidez v.
County of San Diego, 993 F.3d 1134, 1147 (9th Cir. 2021). Fidler concedes that
all § 1983 claims against Drs. Christensen and Coffman were properly dismissed
because they were not state actors. See 42 U.S.C. § 1983 (requiring that a
defendant act “under color of” state law to be liable).
The judicial deception claims were also properly dismissed against the
remaining defendants. The third amended complaint contains no allegations that
Quigley and Kaplan-Siekmann made material statements to the state court. Nor
does it contain any nonconclusory allegations supporting the inference that Burns
made false statements deliberately or with a reckless disregard for the truth.
Therefore, Fidler did not establish a plausible entitlement to relief in Claims Two
and Three.
3
3. Claim One alleges that Burns, Quigley, and Kaplan-Siekmann violated
Fidler’s and E.F.’s rights to familial association under the First and Fourteenth
Amendments by conducting an inadequate investigation.1 Similarly, Claim Four
alleges that Burns, Quigley, Marisol Manjarrez, Francisco Saenz, and Kimmesha
Edwards violated the plaintiffs’ right to familial association under the Fourth and
Fourteenth Amendments by “failing to make reasonable efforts to preserve the
family relationship.” We conclude that Claim Four was forfeited as to Manjarrez,
Saenz, and Edwards because Fidler does not distinctly raise and argue the claim
against them in her opening brief. See Indep. Towers of Wash. v. Washington, 350
F.3d 925, 929 (9th Cir. 2003).
“Our cases hold that the Fourteenth, First, and Fourth Amendments provide
a guarantee ‘that parents will not be separated from their children without due
process of law except in emergencies.’” Keates, 883 F.3d at 1236 (quoting Mabe
v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107–09 (9th
Cir. 2001)). The right to familial association is violated when a defendant removes
a child from his parents’ custody without their consent or a court order and absent
1
If Claim One is based on the claim that Fidler and E.F. were “harmed by
legal errors made by the state court[],” it is barred by the Rooker-Feldman
doctrine. Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004). But we
construe the claim to instead “allege[] that the defendants’ wrongful conduct has
caused [them] harm,” and thus, it is not barred. Id. To the extent the claim alleges
the defendants committed judicial deception, it fails for the same reasons as Claims
Two and Three.
4
reasonable cause to believe that the seizure is necessary to avert imminent, serious
bodily harm. Id. at 1237–38. An official also violates the right when his or her
conduct “shocks the conscience.” Capp v. County of San Diego, 940 F.3d 1046,
1060 (9th Cir. 2019) (quoting Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir.
2010)).
These claims fail against Quigley and Kaplan-Siekmann because there are
no plausible allegations that those defendants did anything to violate Fidler’s or
E.F.’s rights to familial association. The third amended complaint contains no
allegations that Quigley personally participated in E.F.’s removal or placement
with a foster family beyond supervising Burns. See Jones v. Williams, 297 F.3d
930, 934 (9th Cir. 2002) (“In order for a person acting under color of state law to
be liable under section 1983 there must be a showing of personal participation in
the alleged rights deprivation: there is no respondeat superior liability under
section 1983.”). And the nonconclusory allegations demonstrate only that Kaplan-
Siekmann reviewed some documents and submitted a report to the Arizona
Department of Child Safety. This conduct does not constitute a plausible
constitutional violation. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(holding that a plausible claim “requires more than labels and conclusions”).
Claims One and Four also fail against Burns because it was not clearly
established that her investigation was unreasonable. See Keates, 883 F.3d at 1234–
5
35. The district court correctly concluded that the allegations that Burns “rubber-
stamped” Dr. Christensen’s report were implausible. After receiving Dr.
Christensen’s report of potential abuse, Burns met with the Scottsdale Police
Department, retained Kaplan-Siekmann to review records, and interviewed Fidler
and E.F. The state court accepted Burns’ investigation as sufficient to issue a
temporary dependency order. Under these circumstances, Burns was not on notice
that her conduct was constitutionally deficient. See Moore v. Garnand, 83 F.4th
743, 750 (9th Cir. 2023) (stating that law is clearly established when “every
reasonable official would have understood that what he is doing violates that right”
(internal quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011))). We affirm the dismissal of Claims One and Four.
4. Claim Five against Manjarrez, Saenz, and Edwards fails because Fidler
points to no clearly established law that E.F. had a First Amendment right to be
placed with a family that practices a certain religion or a family that would allow
him to fully practice his religion. See id. at 753 (observing that the plaintiff has the
“burden to identify the clearly established law”). The claim independently fails
against Saenz and Edwards because the third amended complaint contains no
factual allegations that they personally participated in the deprivation of any right.
See Jones, 297 F.3d at 934.
5. Claims Six and Seven allege violations of Fidler’s rights to direct and
6
participate in E.F.’s medical care. “The right to family association includes the
right of parents to make important medical decisions for their children, and of
children to have those decisions made by their parents rather than the state.”
Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 2000). Therefore, state officials
are “required to: (1) notify the parents of a medical examination of their children;
(2) obtain parental consent or a court order in advance of the medical examination;
and (3) permit the parent to be present at the examination.” Benavidez, 993 F.3d at
1150. The third amended complaint includes no factual allegations that, if taken as
true, show that Burns, Quigley, Manjarrez, Saenz, or Edwards were responsible for
(1) E.F. receiving medical examinations (2) without notice to Fidler and
(3) without permission for her to be present. Fidler therefore did not state a
plausible entitlement to relief in Claims Six and Seven. See id.
6. Claim Ten alleges medical malpractice by Dr. Christensen. On appeal,
Fidler relies entirely on the theory that Dr. Christensen treated E.F. when Dr.
Christensen accessed E.F.’s medical records. But she cites no authority for the
proposition that accessing medical records constitutes treatment under Arizona
law. Regardless, the third amended complaint does not plausibly allege that any
treatment by Dr. Christensen caused damages, so the claim fails. See Seisinger v.
Siebel, 203 P.3d 483, 492 (Ariz. 2009) (“In medical malpractice actions, as in all
negligence actions, the plaintiff must prove the existence of a duty, a breach of that
7
duty, causation, and damages.”). And absent plausible allegations that employees
of Phoenix Children’s Hospital are liable for negligence, the negligence claim
against the hospital in Claim Twelve was properly dismissed. Cf. Laurence v. Salt
River Project Agric. Improvement & Power Dist., 528 P.3d 139, 150 (Ariz. 2023)
(“[E]xonerating or acquitting an employee of tortious acts must exonerate or acquit
the employer from vicarious liability.”).
AFFIRMED.2
2
Fidler confirmed at oral argument that she does not appeal the dismissal of
Claims Eight, Nine, or Eleven. She also does not argue that the district court erred
by denying leave to amend, and we conclude that the district court was within its
discretion to do so. See Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160
(9th Cir. 1989) (“The district court’s discretion to deny leave to amend is
particularly broad where plaintiff has previously amended the complaint.”).
8