Ellen Keates v. Michael Koile

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 6, 2021
• Docket: 20-16015
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 6 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ELLEN KEATES, No. 20-16015

Plaintiff-Appellant, D.C. No. 2:15-cv-01270-NVW v.

MICHAEL KOILE, individually as an MEMORANDUM* employee with the State of Arizona Child Protective Services; and KIMBERLY PENDER, individually as an employee with the State of Arizona Child Protective Services,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Neil V. Wake, Senior District Judge, Presiding

Submitted May 4, 2021** Portland, Oregon

Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and BLOCK,***

* 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). *** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. District Judge.

Appellant Ellen Keates (“Keates”) appeals the District Court’s denial of her

motion for judgment as a matter of law pursuant to Rule 50 after a jury rendered a

verdict in favor of Appellees Michael Koile (“Koile”) and Kimberly Pender

(“Pender”), who were sued individually as employees of Arizona’s Child

Protective Services (“CPS”). We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

The following facts were established at trial. On May 20, 2013, Keates took

her thirteen-year-old daughter A.K. to see a pediatrician. While being examined by

Dr. Susan Stephens, A.K. disclosed that she “had attempted to hurt herself.” At

some point in time, Keates entered the examination room, and Dr. Stephens

became concerned about Keates’s behavior because she discounted the possibility

that A.K. would engage in self-harm and spontaneously mentioned that A.K. had

been the victim of sexual abuse. Consequently, Dr. Stephens instructed Keates to

take A.K. to the Phoenix Children’s Hospital to be evaluated by a psychiatrist. Dr.

Stephens informed Keates that if A.K. was not checked in within thirty minutes,

she would contact CPS. At the hospital, Behavioral Health Crisis Counselor

Randall Call (“Call”) concluded that it would be unsafe to release A.K. from the

hospital after Keates initially refused to stay home with A.K. to make sure that she

did not harm herself. Call instead determined that A.K. should be transferred to an

2 inpatient psychiatric environment as soon as a bed became available and contacted

CPS.

The next morning, May 21, 2013, Pender assigned Koile to investigate on

behalf of CPS. Upon arriving at the hospital, Koile spoke to A.K. and hospital

staff. Keates was not at the hospital. Koile attempted to contact Keates by phone

several times without success. That same morning, a social worker told Koile that

Aurora Behavioral Health (“Aurora”) would have a bed available for A.K. at 3:00

P.M. that day. At the time of these events, it took an average of five days to obtain

a warrant to take custody of a child. Koile took A.K. into custody and transferred

her to Aurora in the early afternoon without obtaining a warrant.

Keates then brought this action, claiming Koile and Pender violated her

constitutional rights when A.K. was seized without a warrant.1 At trial, the jury

returned a verdict in Defendants’ favor. In doing so, it answered three

interrogatories, finding that Koile and Pender (1) had “reasonable cause to believe

[A.K.] was in imminent danger of serious bodily injury within the time it would

have taken to obtain a court order authorizing the removal,” and (2) “pursue[d]

avenues of investigation that were reasonable considering all the circumstances,”

and (3) that “the scope and degree of the interference with familial association

1 A.K. asserted claims in the initial complaint. Before trial, A.K. reached the age of majority and voluntarily withdrew her claims.

3 [was] reasonably necessary to avert the imminent danger.”

In denying the renewed motion for judgment as a matter of law, the District

Court held that “the verdict and the jury interrogatories established both (1) that

Defendants did not violate Plaintiff’s constitutional rights and (2) that, if they did,

Defendants are entitled to qualified immunity because they did not violate law that

was clearly established in the circumstances of this case.”

We review the District Court’s denial of a motion for judgment as matter of

law de novo. See In re Bard IVC Filters Prod. Liab. Litig., 969 F.3d 1067, 1077

(9th Cir. 2020). We ask whether the evidence, construed in the light most favorable

to the nonmoving party, “permits only one reasonable conclusion, and that

conclusion is contrary to the jury’s verdict.” Josephs v. Pac. Bell, 443 F.3d 1050,

1062 (9th Cir. 2006). We hold that the jury’s verdict that there was no

constitutional violation was reasonable and supported by the record. Ample

evidence supported a finding that the officials “ha[d] reasonable cause to believe

that [a] child [was] likely to experience serious bodily harm in the time that would

be required to obtain a warrant.” Rogers v. Cnty. of San Joaquin, 487 F.3d 1288,

1294 (9th Cir. 2007). Consequently, we need not address the issue of qualified

immunity.

AFFIRMED.