FILED

NOT FOR PUBLICATION

MAY 4 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CYNTHIA RIVERA-MARTINEZ; No. 19-15008

ARTURO MARTINEZ,

D.C. No. 1:16-cv-00062-SEH Plaintiffs-Appellants,

v. MEMORANDUM*

KERN COUNTY; KERN COUNTY

DEPARTMENT OF HUMAN

SERVICES; STEPHANIE MEEK, Social Worker; individually,

Defendants-Appellees,

and

PHILIP HYDEN, M.D.,

Defendant.

Appeal from the United States District Court for the Eastern District of California Sam E. Haddon, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted April 16, 2020** Pasadena, California

Before: SCHROEDER and COLLINS, Circuit Judges, and BAYLSON,*** District Judge.

Plaintiff-Appellants Cynthia Rivera-Martinez and Arturo Martinez appeal

the district court’s dismissal of their 42 U.S.C. § 1983 action. Plaintiffs alleged

that Defendant-Appellees Kern County, Kern County Department of Human

Services, and Social Worker Stephanie Meek violated their constitutional rights

when they temporarily took custody of Appellants’ five-week-old son while

investigating whether permanent custody was appropriate. In particular, Plaintiffs

alleged that Meek falsely omitted information from her “Social Study –

Detentional” report, which Meek filed with the superior court in connection with

its review of the county’s temporary custody of Plaintiffs’ son. The district court

dismissed the action, holding that as a matter of law Meek was entitled to absolute

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael M. Baylson, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. 2 immunity or, alternatively, qualified immunity.1 We affirm the district court

judgment, but only on the ground of qualified immunity.

The district court erred in applying absolute immunity to all of the conduct

alleged in Plaintiffs’ operative complaint. We have followed the Supreme Court in

distinguishing between the quasi-prosecutorial task of filing charging documents

(which is entitled to absolute immunity) and the separate but related task of

providing factual evidence in support of the allegations made (which is not). See,

e.g., Kalina v. Fletcher, 522 U.S. 118, 129–30 (1997) (prosecutor’s attestation to

underlying facts in support of arrest warrant involved performing “an act that any

competent witness might have performed”); Hardwick v. Cty. of Orange, 844 F.3d

1112, 1116 (9th Cir. 2017) (absolute immunity did not apply to, inter alia,

defendant social workers’ “allegedly false statements and omissions made in

defendants’ court reports” during juvenile dependency proceedings). Under

Hardwick, at least some of the claims against Meek were not subject to absolute

immunity.

1 The district court’s order is not entirely clear as to the basis on which the claims against the county and its agency were dismissed. Plaintiffs, however, do not contend on appeal that their claims against those defendants can survive if their claims against Meeks fail, and we deem any such argument to have been waived. Loomis v. Cornish, 836 F.3d 991, 998 n.3 (9th Cir. 2016). 3 We nonetheless affirm the district court’s alternative conclusion that Meek

was entitled to qualified immunity. Construing the evidence in the light most

favorable to Plaintiffs, we conclude that Meek did not violate Plaintiffs’ clearly

established rights. See District of Colombia v. Wesby, 138 S. Ct. 577, 589 (2018).

“[A] defendant cannot be said to have violated a clearly established right unless the

right’s contours were sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was violating it.” Plumhoff v.

Rickard, 572 U.S. 765, 778–79 (2014). Plaintiffs have the burden to show that

“the right allegedly violated was clearly established at the time of the alleged

misconduct.” Martinez v. City of Clovis, 943 F.3d 1260, 1275 (9th Cir. 2019)

(citations and internal quotation marks omitted). Here, Plaintiffs’ theory is not

“that Meek fabricated evidence,” but rather that she failed to present obviously

relevant evidence to the court and otherwise “fail[ed] to seek the evidence that

would have revealed the truth of what happened to [Plaintiffs’] baby.” Even

granting that Meek’s investigation was deficient and that she failed to present

additional evidence that might have supported a different conclusion in the

dependency proceedings, we cannot say that the nature of the deficiencies were

such that it would have been apparent to every reasonable official in Meek’s shoes

4 that she was thereby violating Plaintiffs’ constitutional rights. See Plumhoff, 572

U.S. 765, 778–79. Meek was therefore entitled to qualified immunity.

The district court did not abuse its discretion in denying, for failure to show

good cause, Plaintiffs’ motion to file a second amended complaint. After the

pretrial scheduling order deadline to amend a complaint expires, a complaint “may

be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P.

16(b)(4); see also In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d

716, 737 (9th Cir. 2013) (explaining that when a movant seeks to amend his or her

complaint after the pretrial scheduling order deadline expires, Rule 16’s good

cause standard applies, rather than the more generous Rule 15 amendment

standard). Plaintiffs’ proposed second amended complaint alleges, for the first

time, constitutional violations against the Delano Police Department and Officer

Gay. Although Plaintiffs did not know of Officer Gay’s personal involvement

prior to the expiration of the deadline to amend the complaint, Plaintiffs knew of

the Delano Police Department’s involvement prior to filing their initial complaint,

and knew well before the deadline to file an amended complaint expired that the

Delano police acted without a warrant. Plaintiffs did not file an initial action

against the Delano Police Department and did not amend their complaint prior to

the deadline expiring, and they make no good cause showing for failing to do so.

5 See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)

(explaining that good cause standard is not met when the moving party does not act

with diligence).

AFFIRMED.

6