Alice Brown v. County of San Bernardino

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2021
• Docket: 19-56033
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 19 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALICE BROWN, No. 19-56033

Plaintiff-Appellant, D.C. No. 5:13-cv-00130-DSF-FFM v.

COUNTY OF SAN BERNARDINO; MEMORANDUM* SHERIFF’S DEPARTMENT, Big Bear Station; M. MCCRACKEN, San Bernardino County Deputy Sheriff; MASON, Sergeant; ESTATE OF JEREMIAH MACKAY,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Submitted March 17, 2021** San Francisco, California

Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.

* 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). Alice Brown appeals pro se the district court’s partial grant of qualified

immunity and its judgment after a jury verdict on her 42 U.S.C. § 1983 claims

against Deputy Marke McCracken and the Estate of Detective Jeremiah MacKay

for violating her Fourteenth Amendment right to familial association. We affirm.

The district court properly granted qualified immunity to McCracken for

Brown’s claim alleging violation of her Fourteenth Amendment right to care,

custody, and control of her child based on McCracken’s retention and later transfer

of her child to San Bernardino County Children and Family Services (“CFS”). We

review de novo a district court’s grant of summary judgment based on qualified

immunity. See Vazquez v. County of Kern, 949 F.3d 1153, 1159 (9th Cir. 2020).

Qualified immunity “protects government officials ‘from liability for civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Pearson

v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009). It

is not clearly established that there is a Fourteenth Amendment violation in a

situation like the one here, where the child’s mother asserts that her rights were

violated because her child, who was in protective police custody, was placed with

CFS when the whereabouts of a parent or legal guardian was unknown. As a

2 19-56033 result, McCracken is entitled to qualified immunity. See Kisela v. Hughes, __

U.S.__, __, 138 S. Ct. 1148, 1152, 200 L. Ed. 2d 449 (2018) (per curiam).

Brown also argues for the first time on appeal that the jury was racially

biased against her and that the district court’s comments during trial prejudiced the

jury. We review forfeited rights for plain error. See Hoard v. Hartman, 904 F.3d

780, 786–87 (9th Cir. 2018). Brown has not shown any obvious error affecting her

substantial rights. Her generalized assertions of systemic racism in America are

insufficient to establish actual or implied juror bias. See Fields v. Woodford, 309

F.3d 1095, 1103–04 (9th Cir.), amended by, 315 F.3d 1062 (9th Cir. 2002).

Similarly, Brown has not shown any judicial misconduct. That the district court

occasionally stopped Brown from asking witnesses certain questions or from

testifying while acting in her role as an advocate does not itself show misconduct,

let alone plain error. See Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir.

2008); Hansen v. Comm’r, 820 F.2d 1464, 1467 (9th Cir. 1987).

Finally, Brown waived review of whether the district court properly redacted

the jury foreperson’s name from the verdict form. See Resorts Int’l, Inc. v.

Lowenschuss (In re Lowenschuss), 67 F.3d 1394, 1402 (9th Cir. 1995). She also

waived review of whether the verdict is supported by substantial evidence. See

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Even if she had raised the

3 19-56033 argument in her opening brief, Brown’s failure to make the appropriate motions

under Federal Rules of Civil Procedure 50 and 59 precludes this court’s review.

See Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 401–04, 126 S.

Ct. 980, 985–87, 163 L. Ed. 2d 974 (2006); Nitco Holding Corp. v. Boujikian, 491

F.3d 1086, 1088–90 (9th Cir. 2007).

AFFIRMED.

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