ERVIN v. 10 (2021)

United States Court of Appeals, Ninth Circuit.2021-08-19No. No. 19-56167

Summary · law.co

Holding. The district court's judgment dismissing Ervin's fourth amended complaint for failure to state a claim was affirmed.

John Lawrence Ervin appealed the dismissal of his fourth amended complaint alleging civil rights violations related to his placement on the state's Child Abuse Index. The district court dismissed all of his claims, and Ervin appealed pro se. The appeals court reviewed the dismissal and found that the district court properly rejected each category of claims Ervin raised.

Ervin's procedural due process claims failed because he received notice and multiple hearings before being listed. His due process claims regarding the Child Welfare Services listing also failed because an "unfounded" designation carries no stigma. His substantive due process claims did not adequately allege a deprivation of a protected liberty interest. His First Amendment retaliation claims lacked sufficient allegations that retaliation was the decisive factor in his listing. His equal protection claim did not show that the county treated him differently from similarly situated persons without rational justification. The court also upheld the denial of leave to amend the complaint, since Ervin sought only new legal theories rather than new facts.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether placement on Child Abuse Index violated procedural due process
Whether unfounded listing in Child Welfare Services system infringed liberty interests
Whether county listing constituted First Amendment retaliation
Whether county violated equal protection in making the listing

Procedural posture

Ervin appealed pro se from the district court's dismissal of his fourth amended complaint alleging civil rights violations.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Appellant John Lawrence Ervin appeals pro se from the district courts judgment dismissing for failure to state a claim his fourth amended complaint alleging civil rights violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Curry v. Yelp, Inc., 875 F.3d 1219, 1224 (9th Cir. 2017), and we affirm.

The district court properly dismissed Ervins procedural due process claims because Ervin received notice and multiple hearings before defendant County placed Ervins name on the states Child Abuse Index. See Endy v. County of Los Angeles, 975 F.3d 757, 760 (9th Cir. 2020). We do not consider Ervins argument, newly made on appeal, that the County did not have probable cause to investigate Ervin. In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010).

Dismissal of Ervins due process claims in connection with his listing in the Child Welfare Services Case Management System was proper because there is no stigma associated with an “unfounded” listing like the one Ervin alleged in his complaint. Endy, 975 F.3d at 765-68.

The district court properly dismissed Ervins substantive due process claims because Ervin did not plausibly allege deprivation of a protected liberty interest. See Capp v. County of San Diego, 940 F.3d 1046, 1060 (9th Cir. 2019).

The district court properly dismissed Ervins First Amendment retaliation claims because Ervin did not plausibly allege that any retaliatory animus was the “but for” cause of his listing on the CACI. See Nieves v. Bartlett, ––– U.S. ––––, 139 S.Ct. 1715, 1722, 204 L.Ed.2d 1 (2019).

The district court properly dismissed Ervins equal protection claim because Ervin did not plausibly allege that the County treated Ervin differently from those similarly situated without any rational basis. See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).

The district court did not abuse its discretion by denying leave to amend this fourth amended complaint, where Ervin sought not to allege new facts but instead only new theories of legal liability. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

We affirm the district courts judicial notice rulings because any error by the district court was harmless.

Ervins motions for oral argument (Docket Entry No. 22) and for judicial notice (Docket Entry No. 30) are denied.

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations made for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.