Alice Brown v. County of San Bernardino ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 19 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALICE BROWN, No. 19-56033
Plaintiff-Appellant, D.C. No.
5:13-cv-00130-DSF-FFM
v.
COUNTY OF SAN BERNARDINO; MEMORANDUM*
SHERIFF’S DEPARTMENT, Big Bear
Station; M. MCCRACKEN, San
Bernardino County Deputy Sheriff;
MASON, Sergeant; ESTATE OF
JEREMIAH MACKAY,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted March 17, 2021**
San Francisco, California
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Alice Brown appeals pro se the district court’s partial grant of qualified
immunity and its judgment after a jury verdict on her 42 U.S.C. § 1983 claims
against Deputy Marke McCracken and the Estate of Detective Jeremiah MacKay
for violating her Fourteenth Amendment right to familial association. We affirm.
The district court properly granted qualified immunity to McCracken for
Brown’s claim alleging violation of her Fourteenth Amendment right to care,
custody, and control of her child based on McCracken’s retention and later transfer
of her child to San Bernardino County Children and Family Services (“CFS”). We
review de novo a district court’s grant of summary judgment based on qualified
immunity. See Vazquez v. County of Kern, 949 F.3d 1153, 1159 (9th Cir. 2020).
Qualified immunity “protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson
v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009). It
is not clearly established that there is a Fourteenth Amendment violation in a
situation like the one here, where the child’s mother asserts that her rights were
violated because her child, who was in protective police custody, was placed with
CFS when the whereabouts of a parent or legal guardian was unknown. As a
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result, McCracken is entitled to qualified immunity. See Kisela v. Hughes, __
U.S.__, __, 138 S. Ct. 1148, 1152, 200 L. Ed. 2d 449 (2018) (per curiam).
Brown also argues for the first time on appeal that the jury was racially
biased against her and that the district court’s comments during trial prejudiced the
jury. We review forfeited rights for plain error. See Hoard v. Hartman, 904 F.3d
780, 786–87 (9th Cir. 2018). Brown has not shown any obvious error affecting her
substantial rights. Her generalized assertions of systemic racism in America are
insufficient to establish actual or implied juror bias. See Fields v. Woodford, 309
F.3d 1095, 1103–04 (9th Cir.), amended by, 315 F.3d 1062 (9th Cir. 2002).
Similarly, Brown has not shown any judicial misconduct. That the district court
occasionally stopped Brown from asking witnesses certain questions or from
testifying while acting in her role as an advocate does not itself show misconduct,
let alone plain error. See Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir.
2008); Hansen v. Comm’r, 820 F.2d 1464, 1467 (9th Cir. 1987).
Finally, Brown waived review of whether the district court properly redacted
the jury foreperson’s name from the verdict form. See Resorts Int’l, Inc. v.
Lowenschuss (In re Lowenschuss), 67 F.3d 1394, 1402 (9th Cir. 1995). She also
waived review of whether the verdict is supported by substantial evidence. See
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Even if she had raised the
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argument in her opening brief, Brown’s failure to make the appropriate motions
under Federal Rules of Civil Procedure 50 and 59 precludes this court’s review.
See Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 401–04, 126 S.
Ct. 980, 985–87, 163 L. Ed. 2d 974 (2006); Nitco Holding Corp. v. Boujikian, 491
F.3d 1086, 1088–90 (9th Cir. 2007).
AFFIRMED.
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