NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 3 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL HAMPTON; JACQUELINE No. 22-15481

HAMPTON,

D.C. No. 3:21-cv-03058-LB Plaintiffs-Appellees,

v. MEMORANDUM*

STATE OF CALIFORNIA; CALIFORNIA

DEPARTMENT OF CORRECTIONS AND

REHABILITATION; SAN QUENTIN

STATE PRISON; RALPH DIAZ; RONALD

DAVIS, Warden; RONALD

BROOMFIELD; CLARENCE CRYER;

ALISON PACHYNSKI; SHANNON

GARRIGAN; LOUIE ESCOBELL;

MUHAMMAD FAROOQ; KIRK A

TORRES; ESTATE OF ROBERT S.

THARRATT,

Defendants-Appellants.

Appeal from the United States District Court for the Northern District of California Laurel D. Beeler, Magistrate Judge, Presiding

Argued and Submitted May 10, 2023 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: FRIEDLAND and BENNETT, Circuit Judges, and R. BENNETT,** District Judge.

High-level officials within the California prison system (“Defendants”)

appeal from the district court’s order denying in part their motion to dismiss. We

address most of the arguments presented in this appeal in a published opinion filed

concurrently with this memorandum disposition. Here, we address their familial-

association claim and their requests for judicial notice.

1. This case involves a familial-association claim asserted by a spouse,

rather than a parent or child. “We have not previously held whether a substantive

due process right exists in that context, and other courts of appeals have reached

conflicting conclusions.” Peck v. Montoya, 51 F.4th 877, 893 (9th Cir. 2022).

Plaintiff’s due process right to familial association with her husband is therefore

not “clearly established,” id. at 887 (quotation marks omitted), and Defendants are

entitled to qualified immunity on the familial-association claim. Cf. Villanueva v.

California, 986 F.3d 1158, 1165 n.5 (9th Cir. 2021) (holding that whether a party

had “Fourth Amendment standing” was part of the merits of the constitutional

claim and accordingly must be clearly established “to overcome qualified

immunity”).

** The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation.

2 2. Defendants ask us to take judicial notice of three categories of documents:

(1) news articles describing COVID-19 guidance as it existed in the spring and

early summer of 2020; (2) publications and data about COVID-19 from

governmental agencies; and (3) court transcripts from Plata v. Newsom, N.D. Cal.

No. 01-cv-1351. Defendants seek to use the news articles and COVID-19 data to

support their position that their actions were reasonable, considering their

knowledge at the time. Similarly, Defendants rely on the court transcripts in

support of their argument that the Federal Receiver directed or oversaw the

challenged actions. Defendants’ knowledge and the Receiver’s involvement are

key factual disputes in this case, and it would be inappropriate for us to take

judicial notice of such disputed facts. See Lee v. City of Los Angeles, 250 F.3d

668, 689-90 (9th Cir. 2001) (“[A] court may not take judicial notice of a fact that is

‘subject to reasonable dispute.’” (quoting Fed. R. Evid. 201(b))). To the extent

Defendants rely on the documents for other reasons, we deny the request to take

judicial notice because the documents are “not relevant to the disposition of this

appeal.” Cuellar v. Joyce, 596 F.3d 505, 512 (9th Cir. 2010). Defendants’ request

for judicial notice is accordingly denied.

REVERSED IN PART.

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