Sergio Momox-Caselis v. Tara Donohue ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO MOMOX-CASELIS, No. 19-15126
individually, as Guardian Ad Litem,
and as Special Administrator of the D.C. No.
estate of M.M. on behalf of Maria 2:16-cv-00054-
Momox-Caselis, APG-GWF
Plaintiff-Appellant,
and OPINION
MARIA MOMOX-CASELIS; NICOLASA
HERNANDEZ, as Special
Administrator of the estate of M.M.;
KRISTIN WOODS, Co-Special
Administrator of the Estate of M.M.,
Plaintiffs,
v.
TARA DONOHUE; LISA RUIZ-LEE;
KIM KALLAS; JEREMY LAW;
SHUUANDY ALVAREZ; LANI AITKEN;
OSCAR BENAVIDES; PATRICIA
MEYERS; COUNTY OF CLARK, a
political subdivision of the State of
Nevada,
Defendants-Appellees,
and
2 MOMOX-CASELIS V. DONOHUE
IRENE KOZIKI; CLARK COUNTY
DEPARTMENT OF FAMILY SERVICES;
ESTATE OF JOAQUIN JUAREZ-PAEZ;
BETH ANN NELSON; JOAQUIN
JUAREZ-PAEZ; MAIRA JUAREZ-PAEZ,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted September 15, 2020
San Francisco, California
Filed February 3, 2021
Before: J. Clifford Wallace, Bridget S. Bade, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Wallace
MOMOX-CASELIS V. DONOHUE 3
SUMMARY *
Civil Rights
The panel affirmed the district court’s summary
judgment in favor of individual employees of the Clark
County Department of Family Services and the County in an
action brought pursuant to 42 U.S.C. § 1983 and state law
alleging defendants wrongfully removed plaintiffs’ infant
daughter, M.M., from plaintiffs’ home, wrongfully removed
M.M. from her foster mother’s home, and then placed her in
a neglectful foster home that caused her death.
The panel first held that plaintiffs waived several
appellate arguments. Plaintiffs waived issues pertaining to
the district court’s denial of their request for leave to amend
their Second Amended Complaint and their countermotion
for summary judgment by failing to challenge the rulings in
their opening brief. Plaintiffs waived their claim alleging a
failure to train social workers or supervisors by failing to
argue the issue in opposition to the County’s summary
judgment motion or in their opening brief. Plaintiffs waived
their argument that defendant social worker Law was not
entitled to discretionary act immunity under Nevada law
because the argument was inconsistent with their prior
concession in district court. The panel therefore affirmed the
district court’s grant of discretionary act immunity to
defendant Law.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 MOMOX-CASELIS V. DONOHUE
The panel affirmed the district court’s summary
judgment in favor of employees Ruiz-Lee and Donahue on
plaintiffs’ claim that they failed to train and supervise social
workers. Plaintiffs had failed to identify the procedures that
Ruiz-Lee or Donahue allegedly failed to follow and the
panel further noted that Donahue was not listed as a
defendant in the third claim of the Second Amended
Complaint alleging failure to train pursuant to § 1983. The
panel determined that plaintiffs’ assertion that the County
was liable for ratifying questionable Department policies
was waived because plaintiffs failed to present argument or
cite evidence in the record to support the argument.
The panel held that plaintiffs failed to present a genuine
dispute that M.M. was wrongfully removed from their home
or that defendants acted with deliberate indifference. The
panel noted that the County provided voluminous records of
the Department’s rigorous licensing and training policies
that foster parents had to complete. The panel further held
that neither the “special relationship” or the “state-created
danger” exceptions applied to overcome the hurdle that the
Due Process Clause does not confer an affirmative right to
governmental aid or impose a duty on the state to protect
individuals from third parties. The panel concluded that
plaintiffs’ arguments relied on supposition and a
mischaracterization of the evidence, while the County
presented voluminous evidence to refute plaintiffs’ claims.
Finally, the panel held that the district court properly
decided the question of causation for the state negligence
claim as a matter of law rather than a matter of fact. As for
the wrongful death claim, plaintiffs addressed it in the
section title but did not cite any facts in the record or present
argument relating to the claim. The claim was therefore
waived.
MOMOX-CASELIS V. DONOHUE 5
In concurrently filed orders, the panel denied plaintiffs’
motion to supplement the record, but granted the motion to
seal the proposed supplemental record because the testimony
in the full deposition transcripts included information
relating to minor children.
COUNSEL
Adam Ganz (argued), and Marjorie Hauf, Ganz & Hauf, Las
Vegas, Nevada, for Plaintiffs-Appellants.
Felicia Galati (argued), Olson Cannon Gormley & Stoberski,
Las Vegas, Nevada, for Defendants-Appellees.
OPINION
WALLACE, Circuit Judge:
Sergio Momox-Caselis, Maria Momox-Caselis, and the
special administrators of M.M.’s estate (collectively, the
Momox-Caselis family) appeal from the district court’s
summary judgment in favor of individual employees of the
Clark County Department of Family Services (Department)
and the County (collectively, the County). Sergio and Maria
Momox-Caselis are the natural parents of deceased infant
M.M. The Department removed M.M. and her siblings from
their home in 2013 based on long-term neglect by the
parents. The County removed M.M. from her initial
placement after receiving a report that the foster parents had
abused another foster child, and it placed M.M. with new
foster parents, Joaquin and Maira Juarez-Paez (collectively,
the Juarez-Paez family). A few months after her new
placement, M.M. died from an overdose of allergy
6 MOMOX-CASELIS V. DONOHUE
medication administered by her foster father. Joaquin
Juarez-Paez committed suicide shortly thereafter, and his
suicide note stated that he had accidentally killed M.M.
The Momox-Caselis family sued Joaquin Juarez-Paez’s
estate, Maira Juarez-Paez, and various County officials
involved in the foster care system in Nevada state court. The
action was removed to federal district court pursuant to
28 U.S.C. § 1441 based on federal question jurisdiction due
to the inclusion of federal claims in the Momox-Caselis
family’s complaint. The Momox-Caselis family amended
its complaint twice, and it stipulated to the dismissal of
Joaquin Juarez-Paez’s estate, Maira Juarez-Paez, and
M.M.’s Department caseworker Irene Koziki from the
action. The Momox-Caselis family alleges M.M. was
wrongfully removed from its home, wrongfully removed
from her initial foster mother’s home, and placed in a
neglectful foster home that caused her death, in violation of
state and federal law, including the Due Process Clause.
After extensive discovery, the County moved for
summary judgment on all counts. The County argued that:
(1) it was necessary to remove M.M. from both her natural
parents and her initial foster home due to allegations against
each family of neglect and abuse; (2) the County had
properly trained its Department officials, and the Momox-
Caselis family could not identify inadequate training; (3) it
had properly trained and licensed the Juarez-Paez family;
(4) it had properly placed M.M. with the Juarez-Paez family;
(5) it had adequate policies in place to ensure the safety of
the children under the Department’s care, and the Momox-
Caselis family could not identify a specific policy that was
deficient; and (6) the Department had exercised adequate
supervision over M.M. and the Juarez-Paez family.
MOMOX-CASELIS V. DONOHUE 7
The Momox-Caselis family responded with its own
motion for partial summary judgment, as well as a request to
amend the complaint. The Momox-Caselis family
maintained that there were genuine disputes of material facts
and disagreed with portions of the County’s Statement of
Undisputed Facts. The district court denied the Momox-
Caselis family’s motion to amend as futile, granted the
County’s summary judgment motion, and held that the
Momox-Caselis family had failed to present evidence to
support its claims. The district court also held that while the
special relationship or state-created danger doctrine in
relation to the due process claim could apply, there was not
a genuine dispute of material fact that would rise to the level
of deliberate indifference by the County. As for the
remaining failure to train claim and state negligence claims,
the district court held that the Momox-Caselis family failed
to present evidence of failure to train, negligently created
policies, or skewed reporting, and the County was entitled to
discretionary act immunity. The Momox-Caselis family
appeals from the summary judgment.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
Reviewing the district court’s summary judgment de novo,
Sandoval v. Cty. of Sonoma, 912 F.3d 509, 515 (9th Cir.
2018), we affirm.
I.
The Department removed M.M. and her siblings from
their home in 2013 based on long-term neglect by their
natural parents. After, a state court judge in the County’s
Family Division approved the removal. The Department first
placed M.M. with the Hernandez family. The Hernandez
family had previously adopted foster children, and it was
fostering another child in addition to M.M. The Hernandez
family had been licensed to foster children for several years,
8 MOMOX-CASELIS V. DONOHUE
but they also had a long history of licensing issues, reports,
and complaints. In May 2014, M.M.’s foster brother
reported to the Department that their foster father was
physically abusive with the children and often used his hands
or a belt for discipline. The Department removed M.M. from
the Hernandez home, and the Hernandez family’s license
was eventually revoked.
In June 2014, the County placed M.M. in the only
available foster home. Maira and Joaquin Juarez-Paez, new
foster parents, took M.M. into their home with their foster
son. The Juarez-Paez family had received a license to foster
children in May 2014. Maira took care of the children in the
evening, while Joaquin took care of them during the day.
Social workers visited approximately once a month to check
on M.M. and to ensure that the Juarez-Paez home continued
to be a safe environment. Yet in the last two to three weeks
of M.M.’s life, Joaquin struggled with his underlying health
issues, and he required more assistance from Maira. On
M.M.’s final day in October 2014, Joaquin gave her too
much of her allergy medicine, and she died from the
overdose. Joaquin committed suicide shortly thereafter. The
County eventually returned the remaining Momox-Caselis
children to their natural parents.
II.
We review summary judgments de novo. Sandoval,
912 F.3d at 515. Summary judgment is appropriate if there
is no genuine dispute of material fact, and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
However, if the nonmoving party contests summary
judgment, the alleged factual dispute must be both genuine
and material to the nonmoving party’s claims. See id. We
view justifiable inferences in the light most favorable to the
nonmoving party; however, the nonmoving party “may not
MOMOX-CASELIS V. DONOHUE 9
rest upon mere allegations or denials of [its] pleading.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)
(citations omitted); Fed. R. Civ. P. 56(e).
Therefore, the existence of “some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.” Liberty Lobby,
Inc., 477 U.S. at 247–48 (emphasis omitted). The
nonmoving party must produce specific facts, by affidavit or
other evidentiary materials, to show that there is a genuine
issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(c)(1).
“Only disputes over facts that might affect the outcome of
the [action] under the governing law will properly preclude
the entry of summary judgment” for purposes of materiality.
Liberty Lobby, Inc., 477 U.S. at 248. An issue is genuine if
“a reasonable jury could return a verdict for the nonmoving
party.” Id.III.
The Momox-Caselis family has waived several appellate
arguments. These arguments were either not raised before
the district court, are inconsistent with positions employed
there, or are presented without argument.
Generally, we do not consider arguments raised for the
first time on appeal. Smith v. Marsh, 194 F.3d 1045, 1052
(9th Cir. 1999). This rule is subject to three exceptions:
(1) there are exceptional circumstances why the issue was
not raised in the trial court; (2) the new issue arises while the
appeal is pending because of a change in the law; or (3) the
issue presented is a pure question of law and the opposing
party will suffer no prejudice as a result of the failure to raise
the issue in the trial court. Raich v. Gonzales, 500 F.3d 850,
868 (9th Cir. 2007). We have also held that a cursory
10 MOMOX-CASELIS V. DONOHUE
mention of an issue in a footnote without citation to legal
authority is insufficient for purposes of appellate
consideration, United States v. Strong, 489 F.3d 1055, 1060
n. 4 (9th Cir. 2007), as are matters not specifically and
distinctly raised and argued in the opening brief, Padgett v.
Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).
The Momox-Caselis family did not raise several issues
with the district court that it now offers to us or it has
modified its arguments to account for the district court’s
summary judgment. First, its appeal does not present
argument regarding the district court’s denial of its request
to amend nor its countermotion for summary judgment. The
Momox-Caselis family sought leave to amend its Second
Amended Complaint to correct its first claim’s erroneous
reliance on the Fifth Amendment rather than the Fourth
Amendment. The district court rejected the request as futile
in its summary judgment order, although it nonetheless
considered the substantive argument as if it had been raised
pursuant to the Fourth Amendment. The Momox-Caselis
family did not challenge this ruling in its opening brief, and
this issue is, therefore, waived.
Second, the third claim in the Second Amended
Complaint alleges a failure to train social workers or
supervisors. As in the district court, the Momox-Caselis
family does not identify the alleged deficiencies in the
Department’s training of its social workers or supervisors.
The Momox-Caselis family did not argue that the County
failed to train its social workers and supervisors in its
opposition to the County’s summary judgment motion, and
it did not argue the issue in its opening brief. Consequently,
the Momox-Caselis family waived appeal of the district
court’s ruling on the third claim.
MOMOX-CASELIS V. DONOHUE 11
Third, in response to the district court’s ruling on their
state law claims, the Momox-Caselis family modified the
nature of its claims against several defendants, as discussed
below. The fourth claim in the Second Amended Complaint
alleges various claims of negligence relating to M.M.’s
placement and supervision in the Juarez-Paez home. The
Department asserted that they were entitled to discretionary
act immunity under Nevada law. See Nev. Stat. § 41.032.2;
Ransdell v. Clark Cnty., 192 P.3d 756, 762 (Nev. 2008) (en
banc). In the district court, the Momox-Caselis family
conceded that “a large part of Law’s investigation and
recommendations [were] discretionary in nature.” Yet it
argued that he “skewed” his investigative findings that led to
M.M.’s removal from the initial foster family’s home and
that doing so was not discretionary. The district court held
that Law was entitled to discretionary act immunity.
In this court, the Momox-Caselis family argues that Law
is not entitled to discretionary act immunity because
gathering information and preparing a recommendation
were ministerial tasks and did not involve policy
considerations. This argument is inconsistent with their
prior concession in district court. We, therefore, hold that
this argument has been waived because it was not presented
to the district court, and we affirm the district court’s grant
of discretionary act immunity to Law.
The Momox-Caselis family has also changed its
argument regarding its state law claims related to training
County employees. In the district court, the Momox-Caselis
family argued that discretionary act immunity did not apply
to County director Lisa Ruiz-Lee and licensing manager
Tara Donohue because they created policy for the
Department. The district court granted summary judgment
in favor of Ruiz-Lee and Donohue, not on the ground of
12 MOMOX-CASELIS V. DONOHUE
discretionary act immunity, but because of the lack of
“argument or evidence” as to “what these defendants
allegedly did wrong.” On appeal, the Momox-Caselis family
refocuses its argument to Ruiz-Lee’s and Donohue’s alleged
failure to train and supervise social workers. Yet it again
fails to identify the procedures that Ruiz-Lee or Donohue
failed to ensure the social workers, including Defendant
Law, followed. Moreover, Donohue is not listed as a
defendant in the third claim of the Second Amended
Complaint alleging failure to train pursuant to § 1983. Thus,
we affirm the district court’s grant of summary judgment in
favor of Ruiz-Lee and Donohue.
Finally, in connection with their claim that the
Department was deliberately indifferent to M.M.’s safety
and well-being, for the first time on appeal the Momox-
Caselis family asserts that the County is liable because it
ratified questionable Department policies and procedures.
However, it fails to present argument or cite evidence in the
record to support the assertion. Thus, the ratification
argument is waived.
Ultimately, the Momox-Caselis family’s reply to the
various waiver issues did not list an exception to the waiver
rule or present any argument.
IV.
The Second Amended Complaint alleges civil rights
violations pursuant to 42 U.S.C. § 1983 (claims one, two,
and three), negligence (claims four and five), and wrongful
death (claim six). The Momox-Caselis family argues that
the district court erred because it decided questions of fact as
matters of law. However, each of the Momox-Caselis
family’s asserted factual disputes are either resolved by the
record or are insufficient to create a genuine dispute of
MOMOX-CASELIS V. DONOHUE 13
material fact on its claims. As discussed above, the Momox-
Caselis family’s third claim of failure to train has been
waived whereas its fifth claim of state-law negligence was
effectively dismissed when it stipulated to the dismissal of
Maira Juarez-Paez and Joaquin’s estate from its action.
Accordingly, only four claims remain. We next affirm the
district court’s ruling on the remaining claims.
A.
The Momox-Caselis family’s first section 1983 claim
alleges that Clark County violated the Momox-Caselis
family’s Fifth and Fourteenth Amendment rights when the
Department seized their children, including M.M., “without
warning and without any immediate threat from Plaintiffs.”
In the district court, the County characterized this claim as
based on M.M.’s seizure and argued such a claim is properly
based on the Fourth rather than the Fifth Amendment. The
County did not mention the Fourteenth Amendment claim.
Yet the district court granted summary judgment in favor of
the County because the district judge concluded it “pointed
out an absence of evidence to support the plaintiff’s first
claim.” The district court further found that the Momox-
Caselis family did not identify the applicable law, explain
how the County violated either M.M.’s parents’ Fourteenth
Amendment rights or M.M.’s Fourth Amendment rights, or
cite any evidence that would raise a genuine dispute about
the propriety of the County’s actions.
“The Fourteenth Amendment guarantees that parents
will not be separated from their children without due process
of law except in emergencies.” Mabe v. San Bernadino
Cnty. Dep’t. of Public Soc. Servs., 237 F.3d 1101, 1107 (9th
Cir. 2001). “[T]he state may not remove children from their
parents’ custody without a court order unless there is
specific, articulable evidence that provides reasonable cause
14 MOMOX-CASELIS V. DONOHUE
to believe that a child is in imminent danger of abuse.”
Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000).
Whether reasonable cause to believe exigent circumstances
existed, “and the related questions, are all questions of fact
to be determined by a jury.” Wallis, 202 F.3d at 1138 (citing
McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984)).
“Summary judgment in favor of the defendants is improper
unless, viewing the evidence in the light most favorable to
the plaintiffs, it is clear that no reasonable jury could
conclude that the plaintiffs’ constitutional rights were
violated.” Id.On appeal, the Momox-Caselis family argues that
summary judgment on its first claim was improper because
whether M.M. was appropriately removed from her family
has “hardly been established as a matter of law.” However,
as in the district court, the Momox-Caselis family again fails
to identify the applicable law. Additionally, the Second
Amended Complaint alleges a Fourteenth Amendment
violation based on M.M.’s removal from her natural parents,
but it does not allege any facts related to her removal from
that home. Furthermore, on appeal, the Momox-Caselis
family still fails to identify any facts related to M.M.’s
removal from her natural parents’ home.
The County argues that the Department “appropriately
removed” M.M. from her parents’ home due to neglect
because Maria left the children, aged two to twelve,
unsupervised at least twice when Sergio was out of town.
They also cite the Family Division judge’s decision granting
the Department custody of the children. However the
parties’ briefing does not address the legal authority that
governs the Momox-Caselis family’s Fourteenth
Amendment claim. It does not address whether the way she
was removed comported with due process. Even if the state
MOMOX-CASELIS V. DONOHUE 15
family court found the removal itself appropriate, the
briefing does not explain why that decision necessarily
means that the way the children were removed from the
home complied with due process.
The Momox-Caselis family, therefore, fails to present a
genuine dispute that M.M. was wrongfully removed from its
home. We hold that its first section 1983 claim fails.
B.
Their second section 1983 claim is asserted against all
defendants and alleges that Department official policy or
longstanding unofficial practice led to due process violations
against M.M., namely: (1) the improper licensure of the
Juarez-Paez family; (2) improper placement of M.M. into its
custody; and (3) failure to supervise the placement. These
assertions go against the record, and the Momox-Caselis
family does not point to a specific Department policy or
practice that violated M.M.’s due process rights. Also, it has
inconsistently argued that the Department did not follow its
policies and failed to discipline employees who flouted
policies. As a result, the Momox-Caselis family does not
present a viable Monell claim against the County. See
Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S.
658, 691 (1978). Instead, the County provided voluminous
records of the Department’s rigorous licensing and training
process that the Juarez-Paez parents had to complete before
obtaining their license to foster children. While there may
be factual disputes on some narrow issues, they are not
genuine disputes of material fact that would save the second
section 1983 claim from summary judgment.
16 MOMOX-CASELIS V. DONOHUE
1.
Most importantly, the Momox-Caselis family fails to
prove that the Department acted with deliberate indifference.
The Momox-Caselis family contended that either the
“special relationship” exception or the “state-created
danger” exception applies to overcome the hurdle that the
Due Process Clause does not confer an affirmative right to
governmental aid or impose a duty on the state to protect
individuals from third parties. See Kent Sch. Dist., 648 F.3d
at 971 (citation omitted). We hold that neither exception
applies under the facts of this appeal.
The “special relationship” exception applies when there
is a custodial relationship between the plaintiff and the State,
such that the State assumes some responsibility for the
plaintiff’s safety and well-being. Id. The exception applies
to children in foster care. Tamas v. Dep’t of Soc. & Health
Servs., 630 F.3d 833, 844–47 (9th Cir. 2010) (clarifying that
the proper standard for determining whether a foster child’s
due process rights have been violated is “deliberate
indifference”). To qualify for the exception under the
deliberate indifference standard, the Momox-Caselis family
must prove: (1) there was an objectively substantial risk of
harm; (2) the Department was subjectively aware of facts
from which an inference could be drawn that a substantial
risk of serious harm existed; and (3) the Department either
actually drew that inference or a reasonable official would
have been compelled to draw that inference. Id. at 845.
Deliberate indifference is “a stringent standard of fault,
requiring proof that a municipal actor disregarded a known
or obvious consequence of his action.” Connick v.
Thompson, 563 U.S. 51, 61 (2011) (citation omitted).
The “state-created danger” exception is available when
the State “affirmatively places the plaintiff in danger by
MOMOX-CASELIS V. DONOHUE 17
acting with ‘deliberate indifference’ to a ‘known and
obvious danger.’” Kent Sch. Dist., 648 F.3d at 971–72
(citation omitted). To establish that the Department
affirmatively placed M.M. in danger, the Momox-Caselis
family must demonstrate that: (1) the Department took
affirmative actions that placed M.M. in danger she otherwise
would not have faced; (2) the danger was known or obvious;
and (3) the Department acted with deliberate indifference to
that danger. Henry A. v. Willden, 678 F.3d 991, 1002 (9th
Cir. 2012). The Supreme Court has held that negligence is
insufficient to prove a due process violation. Daniels v.
Williams, 474 U.S. 327, 328 (1986) (holding that “the Due
Process Clause [of the Fourteenth Amendment] is simply not
implicated by a negligent act of an official causing
unintended loss of or injury to life, liberty, or property”)
(emphasis in original). The special relationship exception
and state-created danger exception analyses share factors;
therefore, we examine the facts and address the factors in
unison.
2.
The Momox-Caselis family argues that M.M. was in
foreseeable danger in the Juarez-Paez home, but the
Department was deliberately indifferent to the red flags
presented by the Juarez-Paez family’s application to be
foster parents. However, these alleged red flags are either
exaggerated or mistaken. For example, the Momox-Caselis
family speculates that the Department licensed the Juarez-
Paez family based, in part, on information about another
family because the licensing file includes notes incorrectly
stating that the Juarez-Paez family had two children or were
expecting twins. Yet they do not cite any evidence
indicating that the Department relied upon these notes when
making the licensing determination. In particular,
18 MOMOX-CASELIS V. DONOHUE
Defendant Aitken knew that the Juarez-Paez family had no
children and could not conceive.
In addition, the Juarez-Paez family completed training
and obtained its license in May 2014. Thus, the Momox-
Caselis family’s repeated arguments that M.M. was placed
with the Juarez-Paez family before they were trained and
licensed are incorrect. The Momox-Caselis family relies on
Defendants’ failure to check the medication logs, which
indicated that Joaquin inconsistently logged the
administration of M.M.’s allergy medication, as evidence of
deliberate indifference to a substantial risk of harm to M.M.
They did not present this argument to the district court and,
thus, we do not consider it. See Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999) (stating that the court generally
does not consider arguments raised for the first time on
appeal). The Momox-Caselis family’s assumption that
Joaquin was actively or frequently taking narcotics is
unsubstantiated.
The Department also submitted evidence that it
contacted numerous foster homes after it removed M.M.
from the Hernandez home, and the Juarez-Paez family was
the only available home at the time. The Department
provided evidence of its supervision of, and guidance to, the
Juarez-Paez family once M.M. was placed with it. Finally,
while the Momox-Caselis family points to the Department’s
placement of more than one child under the age of two with
the Juarez-Paez family as evidence of deliberate
indifference, the governing county resolution states that the
goal of placing only one toddler in a foster home at a time is
an aspirational goal, not a requirement. Regardless, Nevada
state regulation permitted the placement. Nev. Admin. Code
§ 424.160(4) (2014).
MOMOX-CASELIS V. DONOHUE 19
The Department has argued that M.M.’s death at the
hands of Joaquin was unforeseeable, and it was unaware of
any facts that indicated M.M. would face a substantial risk
of harm in the Juarez-Paez home. Maira and Joaquin’s
general health status and medications were disclosed to the
Department, and an examining physician declared that their
health would not inhibit their ability to parent foster children.
There is a genuine dispute about whether the Department
and its employees were aware that Maira and Joaquin had
been in a car accident and they both occasionally used
narcotic pain relief during flare-ups. However, this does not
overwhelm the other evidence in the record. Joaquin only
experienced physical difficulties in the final weeks before
M.M.’s death and his suicide, and Maira never notified the
Department that Joaquin was struggling. The Department
could not be deliberately indifferent to a situation of which
it had no knowledge. Joaquin’s physical health did not
present a substantial risk of harm to M.M, particularly not
the risk that he would overdose M.M. with her allergy
medication.
The Momox-Caselis family takes issue with Joaquin’s
initial failure to disclose his criminal history on his foster
application, but the Department confirmed that Joaquin’s
criminal record was limited to possession of false
identification and working without a work card because he
was not a U.S. citizen. His criminal history and immigration
status also did not pose a substantial risk of harm to M.M.,
because he did not have a violent record and non-U.S.
citizens may foster children. The Momox-Caselis family
argues that Joaquin’s immigration status interfered with his
ability to obtain subsidies for childcare, but this is not
relevant to the substantial risk of harm analysis and ignores
that Maira is a U.S. citizen and capable of obtaining such
subsidies.
20 MOMOX-CASELIS V. DONOHUE
In addition, Maira and Joaquin’s need for additional
childcare was occasional and predominately arose during the
last week preceding M.M.’s death, and they chose not to
apply for subsidized daycare. There is a genuine dispute
about whether they had been advised by the Department that
they did not qualify for subsidized daycare due to Joaquin’s
immigration status or whether Maira assumed that was the
case. Regardless, the lack of subsidized childcare did not
pose a substantial risk of harm to M.M., because her foster
parents took shifts to ensure that she and her foster brother
were constantly supervised. The Juarez-Paez family was
also permitted to use babysitters, pay for daycare, or use
respite care as needed.
There is no evidence that the Juarez-Paez family was
consistently overwhelmed by their foster care duties.
Instead, Maira expressed an interest in fostering M.M.’s
siblings so that the children could be together. Joaquin’s
occasional overwhelm was limited to when both foster
children were demanding attention and he did not know
whom to go to first. The Momox-Caselis family also argues
that the failure to attempt reunification between the Momox-
Caselis children and their natural parents amounted to
deliberate indifference to a risk of substantial harm to M.M.,
but the Momox-Caselis family does not explain this point
and it is not included in the Second Amended Complaint.
We hold that the Momox-Caselis family’s second
section 1983 due process claim fails, and we do not consider
their arguments challenging qualified immunity.
C.
As for their fourth and sixth claims brought pursuant to
Nevada law, the Momox-Caselis family argues that there
were genuine issues of material fact that the district court
MOMOX-CASELIS V. DONOHUE 21
ignored. We disagree. The district court properly decided
the question of causation for the negligence claim as a matter
of law rather than a matter of fact. As for its wrongful death
claim, the Momox-Caselis family addresses it in the section
title but it does not cite any facts in the record or present
argument relating to the claim. The claim is, therefore,
waived.
Under Nevada law, in order to prove a negligence claim,
the Momox-Caselis family must prove: (1) the County owed
a duty of care to M.M.; (2) the County breached that duty;
(3) the breach was the legal cause of M.M.’s death; and
(4) M.M. and her survivors suffered damages. See
Scialabba v. Brandise Const. Co., Inc., 112 Nev. 965, 968
(Nev. 1996). The district court held that it could not properly
consider the negligence factors because the Momox-Caselis
family failed to provide sufficient evidence or argument so
that it could identify breach or causation by the County. The
district court also held that the County and the individual
employees were entitled to discretionary act immunity. The
record supports both holdings.
We also hold that Joaquin’s actions qualified as an
intervening cause of M.M.’s death, so that the negligence
claim fails on that ground as well. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (holding that there cannot
be a genuine issue of material fact where the nonmoving
party fails to make a sufficient showing to establish the
existence of an essential element). The improper
administration of the allergy medicine was either intentional
or accidental. If intentional, Joaquin committed a crime by
killing M.M. and his action is a superseding cause even if the
County had been negligent in creating the situation by
placing M.M. with the Juarez-Paez family. Bower v.
Harrah’s Laughlin, Inc., 125 Nev. 470, 491–92 (Nev. 2009)
22 MOMOX-CASELIS V. DONOHUE
(observing that the originally negligent party is only liable
for a third party’s intentional tort or crime if it was
foreseeable). Even if accidental, the Momox-Caselis family
has not presented evidence of foreseeability. As discussed
above, it was unforeseeable that Joaquin would overdose
M.M. on her allergy medication specifically or even
generally harm her.
V.
The Momox-Caselis family has waived its new
arguments raised on appeal. The district court’s summary
judgment was appropriate because the Momox-Caselis
family failed to carry its burden or present evidence of a
genuine dispute of material fact. Its arguments relied on
supposition and a mischaracterization of the evidence, while
the County presented voluminous evidence to refute the
Momox-Caselis family’s claims.
AFFIRMED.