Pamela Motley; v. JOSEPH SMITH, Fresno Police Officer;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAMELA MOTLEY; et al.,
Plaintiffs-Appellants,
v.
JOSEPH SMITH, Fresno Police Officer; et
al.,
Defendants-Appellees.
No. 18-15171
D.C. No.
1:15-cv-00905-DAD-BAM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted August 8, 2019
San Francisco, California
Before: O'SCANNLAIN, McKEOWN, and BENNETT, Circuit Judges.
Pamela Motley and Cindy Raygoza, through her estate and surviving
children, brought 42 U.S.C. § 1983 claims for violations of their equal protection
rights and their substantive due process rights relating to the right to familial
association under the Fourteenth Amendment. They claim that the Fresno Police
Department (“FPD”) treats domestic violence and female crime victims differently
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
AUG 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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than similarly situated victims. The district court granted summary judgment in
favor of the City of Fresno and individual FPD officers for the equal protection
claim and dismissed the substantive due process claim. We affirm in part and
reverse in part.
The record in this case is extensive, and the parties are familiar with the facts
so we do not repeat them here. The record includes contradictory accounts
involving material facts. Drawing all inferences in favor of Motley and Raygoza’s
estate and children, we conclude that there are genuine disputes of material facts
about whether the FPD treats disfavored groups of crime victims—women and
domestic violence crime victims—differently than similarly situated victims. See
Navarro v. Block, 72 F.3d 712, 716–17 (9th Cir. 1995). Therefore, we reverse the
district court’s grant of summary judgment on the equal protection claim and
remand the case for further proceedings.
The substantive due process claim proposes a novel argument that an equal
protection violation may serve as a basis for a substantive due process claim for the
denial of the right to familial association. The Ninth Circuit has not considered
this theory of substantive due process, and we do not need to reach it here. The
allegations in the complaint do not allege state action or a state-created danger
causing the deprivation of familial association. See Wilkinson v. Torres, 610 F.3d
546, 554 (9th Cir. 2010). We affirm the district court’s dismissal of this claim.

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The parties shall bear their own costs on appeal.
AFFIRM IN PART; REVERSE AND REMAND IN PART.

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