Schwenk

MEMORANDUM

Tanya Schwenk and her son, Christopher Schwenk, appeal the district court’s order granting the appellees’ motion to dismiss their § 1983 complaint. We have jurisdiction under 28 U.S.C. § 1291 . We affirm in part, reverse in part, and remand for further proceedings.

The district court erred by dismissing the case in light of Tanya Schwenk’s well-pleaded allegation that she was Christopher’s legal custodian. When ruling on the motion to dismiss, the district court was required to take as true Schwenk’s allegation of legal custody, unless contradicted by a matter properly before the court. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). The district court properly took judicial notice of an interim order of the Alameda County Family Court, dated May 11, 2004, which transferred physical custody of Christopher from Tanya Sehwenk to his father and which gave Tanya Sehwenk “visitation with [Christopher] every Sunday at 7:30 a.m. until Sunday at 9:00 p.m.” See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.2001); Fed.R.Evid. 201. However, because the order was silent on the matter of legal custody, the district court erred by concluding that…