Jackie Chagolla v. Liz Vullo

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 25, 2021
• Docket: 20-15078
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JACKIE CHAGOLLA, Parent on behalf of No. 20-15078 B.C. on behalf of P.C., D.C. No. 2:17-cv-01811-DGC Plaintiff-Appellant,

v. MEMORANDUM*

LIZ VULLO; et al.,

Defendants-Appellees,

and

AZ DCS; et al.,

Defendants.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Submitted January 20, 2021**

Before: McKEOWN, CALLAHAN, and BRESS, 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). Chagolla’s request for oral argument, set forth in the reply brief, is denied. Jackie Chagolla appeals pro se from the district court’s summary judgment

in her 42 U.S.C. § 1983 action alleging federal claims. We have jurisdiction under

28 U.S.C. § 1291. We review de novo. Kohler v. Bed Bath & Beyond, LLC,

780 F.3d 1260, 1263 (9th Cir. 2015). We affirm.

The district court properly granted summary judgment on Chagolla’s due

process claim against defendant Solis stemming from the removal of Chagolla’s

children from her custody because Chagolla failed to raise a genuine dispute of

material fact as to whether Solis lacked reasonable cause to believe the children

were in imminent danger of serious bodily injury. See Demaree v. Pederson, 887

F.3d 870, 878-79 (9th Cir. 2018) (explaining circumstances in which officials may

constitutionally remove children from their parents temporarily without prior

judicial authorization).

The district court properly granted summary judgment on Chagolla’s due

process claim against defendant Solis related to Solis’s investigation because

Chagolla failed to raise a triable dispute as to whether the alleged conduct shocked

the conscience. See Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101,

1111 (9th Cir. 2010) (“The Court has repeatedly spoken of the cognizable level of

executive abuse of power as that which shocks the conscience.” (citation and

internal quotation marks omitted)); Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th

Cir. 2001) (en banc) (no due process right to have a child abuse investigation

2 20-15078 carried out in a particular way or have witnesses interviewed in a particular

manner).

The district court properly granted summary judgment on Chagolla’s

defamation-plus claim against defendants Solis, Ward, and Holya because

Chagolla failed to raise a triable dispute as to whether the contested statements

were provably false assertions of fact. See Crowe v. County of San Diego, 608

F.3d 406, 443 (9th Cir. 2010) (“In order to fall outside the scope of First

Amendment protection, an alleged defamatory statement must contain a provably

false factual connotation.” (citation and internal quotation marks omitted)).

The district court properly granted summary judgment on Chagolla’s § 1983

claims against defendant Vullo because Chagolla failed to raise a triable dispute as

to whether Vullo acted under color of state law. See Kirtley v. Rainey, 326 F.3d

1088, 1092-96 (9th Cir. 2003) (explaining that a § 1983 plaintiff must show the

defendant “acted under color of state law” and the tests to determine state action;

the central question is whether the alleged constitutional violation is fairly

attributable to the government).

To the extent the district court erred by determining that the Arizona

Department of Child Safety (“DCS”) was not a party, any error was harmless

because Chagolla’s claims against DCS are barred by the Eleventh Amendment.

See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“[I]n

3 20-15078 the absence of consent a suit in which the State or one of its agencies or

departments is named as the defendant is proscribed by the Eleventh

Amendment.”).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

4 20-15078