NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF JOHN LEW BROWN, No. 20-35611
deceased, through Clinton L. Brown as the
Administrator of his Estate, D.C. No. 2:19-cv-00283-SAB
Plaintiff-Appellant,
MEMORANDUM*
v.
FERRY COUNTY; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, Chief District Judge, Presiding
Submitted June 17, 2021**
Anchorage, Alaska
Before: RAWLINSON, CHRISTEN, and R. NELSON, Circuit Judges.
Appellant-plaintiff Estate of John Brown through Clinton Brown as the
Administrator (“the Estate”) alleges Defendants violated John Brown’s substantive
due process right to bodily integrity under the Fourteenth Amendment. We assume
*
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).
familiarity with the facts so we do not recount them here.
For the Estate’s Fourteenth Amendment Due Process claim to survive
summary judgment, it must “make a sufficient showing on a[ll] essential
element[s] of [its] case with respect to which [it] has the burden of proof.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Specifically, the Estate must show all
state-created danger doctrine requirements: (1) Defendants’ affirmative actions
created or exposed Brown to an actual, particularized danger that he would not
otherwise have faced; (2) the injury Brown suffered was foreseeable; and (3)
Defendants were deliberately indifferent to the known danger. See Martinez v.
City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019).
The Estate does not present evidence that Defendants took affirmative
actions that placed Brown in a worse off position. For example, Defendants did
not cause the fire, nor did they “shepherd[]” or “direct[]” Brown into his burning
mobile home or otherwise instruct him to be in a dangerous location. See
Hernandez v. City of San Jose, 897 F.3d 1125, 1134 (9th Cir. 2018); see also
Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1087 (9th Cir. 2000);
Penilla v. City of Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997). If
Defendants had “not acted at all”—if Defendants had done nothing in response to
Brown’s phone calls—Brown would be in no worse position than what transpired.
See Pauluk v. Savage, 836 F.3d 1117, 1124 (9th Cir. 2016). The Estate presents no
2
evidence supporting its conclusory statement that Defendants’ “actions or inactions
created or enhanced the danger that Mr. John Brown faced and ultimately
succumbed to.” Thus, the Estate’s Fourteenth Amendment claim fails. See Patel
v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011).
AFFIRMED.
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Estate of John Lew Brown v. Ferry County
Combined Opinion