Kessele Livingston v. Lauri Esslinger; Rebecca Ohton; Teresa Patterson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KESSELE LIVINGSTON,
Plaintiff-Appellee,
v.
LAURI ESSLINGER; REBECCA
OHTON; TERESA PATTERSON,
Defendants-Appellants.
No. 17-16563
D.C. No. 2:16-cv-03295-DLR
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted August 16, 2018
San Francisco, California
Before: O’SCANNLAIN and BEA, Circuit Judges, and McLAUGHLIN,** District
Judge.
Several Arizona Department of Child Safety caseworkers appeal the district
court’s denial of their motion to dismiss Kessele Livingston’s claims on the basis
FILED
SEP 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Mary A. McLaughlin, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.

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of qualified immunity. Because the facts are known to the parties, we repeat them
only as necessary to explain our decision.
“Qualified immunity shields government officials from civil damages
liability unless the official violated a statutory or constitutional right that was
clearly established at the time of the challenged conduct.” Taylor v. Barkes, 135 S.
Ct. 2042, 2044 (2015) (per curiam) (internal quotation marks omitted). The
asserted “right must be sufficiently clear that every reasonable official would have
understood that what he is doing violates that right. . . . [E]xisting precedent must
have placed the statutory or constitutional question beyond debate.” Id. (internal
quotation marks omitted). Our inquiry is “fact-specific” and “highly
contextualized”; it “must be undertaken in light of the specific context of the case,
not as a broad general proposition.” Hamby v. Hammond, 821 F.3d 1085, 1091
(9th Cir. 2016) (internal quotation marks and emphasis omitted).
The district court erred in rejecting the caseworkers’ claim for qualified
immunity, because Livingston has not alleged the violation of a constitutional right
that is clearly established.1
1 We conclude only that the rights Livingston asserts are not clearly
established and do not consider the underlying question of whether such rights
indeed exist. See Pearson v. Callahan, 555 U.S. 223, 236–37 (2009).
2

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I
First, the caseworkers had no clearly established duty to discover
Livingston’s actual age after he entered their care. At most, Livingston can show
that the State has a duty to provide children within its custody “reasonable safety
and minimally adequate care and treatment appropriate to the age and
circumstances of the child.” Lipscomb v. Simmons, 962 F.2d 1374, 1379 (9th Cir.
1992) (en banc). Even assuming arguendo that such duty implies some additional
duty to determine the age of a child held by the State, that is not the appropriate
question for our analysis. The Supreme Court has “repeatedly told courts . . . not
to define clearly established law at a high level of generality.” Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011). Livingston much be able to show, much more
specifically, that in the context of this case his caseworkers had a clearly
established duty to do more to discover his actual age. See Hamby, 821 F.3d at
1090–91 & n.3.
Livingston has not identified a single case that opines on the State’s alleged
duty to determine the age of a child in its custody, let alone in circumstances
similar to these. The caseworkers are not the ones who incorrectly determined that
Livingston was born in 1994. Upon his entry into the United States, Livingston’s
own aunt asserted that he was born then, information which was then recorded on
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his official federal residency card and which was later relied upon by other State
officials. Whether or not the caseworkers had reason to question Livingston’s
purported age, he has identified no case that shows (or even suggests) they had a
constitutional obligation to investigate and somehow to disprove the age under
which he had been living for years.
II
Second, even if the caseworkers could be faulted for failing to determine
Livingston’s actual age, he has not identified any authority that clearly establishes
his alleged right to receive “restoration services” from them or to be held within
their care until he became an adult. Cf. DeShaney v. Winnebago Cty. Dep’t of
Soc’l Servs., 489 U.S. 189, 201 (1989) (a State may remove a child from its
protective custody so long as it “place[s] him in no worse position than that in
which he would have been had [the State] not acted at all”); Henry A. v. Willden,
678 F.3d 991, 1000 (9th Cir. 2012) (while in foster care, children have a right to
receive “the basic needs identified in DeShaney—food, clothing, shelter, medical
care, and reasonable safety”).
REVERSED.
4

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