LELAND WHEELER, Individually and as Successor in Interest of Deborah Colbert v. CITY OF SANTA CLARA, a municipal corporation; ANDREW MCGUIRE; NICHOLAS BRONTE; ALAN WOLF; MICHAEL J. SELLERS; DOES, 2 through 50
No. 16-17375
United States Court of Appeals for the Ninth Circuit
July 3, 2018
D.C. No. 5:16-cv-01953-RMW
Before: M. Margaret McKeown and Kim McLane Wardlaw, Circuit Judges, and Gary S. Katzmann, Judge. Opinion by Judge Katzmann; Concurrence by Judge Wardlaw
FOR PUBLICATION
Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted April 11, 2018 San Francisco, California
OPINION
WHEELER V. CITY OF SANTA CLARA
SUMMARY**
Civil Rights
The panel affirmed the district court‘s dismissal of a complaint brought pursuant to
The district court dismissed the case, finding that plaintiff had no legally cognizable interest in his relationship with Colbert and that he was not a proper successor in interest to her under California law because he had been adopted by other parents as an infant.
The panel held that California‘s survival statute was consistent with
Concurring, Judge Wardlaw stated that in holding that plaintiff did not have a protected interest for the Fourteenth Amendment loss of companionship claim, the panel concluded only that he was unable to demonstrate that he had a protected relationship with his biological mother. Judge Wardlaw emphasized that this opinion does not hold that no adopted-out child could prove he had a protected interest in his relationship with his biological parent under the Fourteenth Amendment.
COUNSEL
Sanjay S. Schmidt (argued), Law Office of Sanjay S. Schmidt, San Francisco, California; Joseph S. May, Law Office of Joseph S. May, San Francisco, California; for Plaintiff-Appellant.
Jon A. Heaberlin (argued) and Saman N. Khan, Rankin Stock Heaberlin, San Jose, California, for Defendants-Appellees.
KATZMANN, Judge:
This appeal poses questions regarding the interaction of state statutes with various federal civil rights laws, the survival after death of claims brought under those federal laws, and the effect of adoption on Fourteenth Amendment loss of companionship claims. Deborah Colbert died after a confrontation with police. Her biological son, plaintiff Leland Wheeler, seeks to assert claims on her behalf under
FACTUAL AND PROCEDURAL HISTORY
The complaint in this case alleges as follows: Deborah Colbert called 911 on April 13, 2014, and stated that she had taken pills, drank heavily, and would use a baseball bat to provoke the police to shoot her. Police officers were dispatched to her residence in response to her call. One of the officers had effectuated an involuntary mental health detention on Colbert eight days prior. When another officer obtained a key to Colbert‘s apartment from a building manager and attempted to enter, Colbert emerged from her apartment holding a baseball bat. The officers shot Colbert, and she died the following day from her resulting injuries. Leland Wheeler is the biological son and only known living relative of Colbert. He was adopted by other parents as an infant, but alleges that he maintained a “close relationship with Ms. Colbert during part of his childhood and throughout his adult life.”
Wheeler filed this action in his individual capacity and on behalf of Colbert against the City of Santa Clara and several Santa Clara police officers (“Santa Clara“). The complaint also named as a plaintiff “John Doe 1,” described as “the to-be-identified personal representative” of Colbert‘s estate. Colbert‘s estate was not submitted to probate and no personal representative was appointed. Wheeler asserted two
Granting Santa Clara‘s motion, the district court dismissed all of the claims without leave to amend. The court found that, although California‘s survivorship law prevented Wheeler from bringing claims on behalf of Colbert, the statute was not inconsistent
STANDARDS OF REVIEW
This court reviews de novo standing issues, In re Zappos.com, Inc., 888 F.3d 1020, 1024 (9th Cir. 2018), and orders granting a motion to dismiss for failure to state a claim, Lloyd v. CVB Financial Corp., 811 F.3d 1200, 1205 (9th Cir. 2016). A denial for leave to amend is reviewed for an abuse of discretion. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).
DISCUSSION
Wheeler argues that the district court erred in dismissing his case. He contends that (1) California‘s survivorship law undermines the deterrence and compensation goals of
A. California‘s Survival Statute Applies to Wheeler‘s § 1983 Claims.
Wheeler asserts that state survivorship law can fill interstices where federal civil rights legislation does not provide a survivorship regime only so long as state law is not inconsistent with the purposes of the relevant federal civil rights law. He contends that because California‘s survivorship law allows claims to abate when a civil rights violation causes the decedent‘s death, its application would undermine the deterrence and compensation goals of
“[T]he decision as to the applicable survivorship rule” in a
The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable
to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.
(emphasis added). In short,
Under California law, a cause of action is not lost by reason of a plaintiff‘s death.
Both parties agreed that Wheeler was neither a personal representative nor a successor in interest of Colbert, and thus was barred from bringing claims on her
Wheeler turns to Carlson v. Green, 446 U.S. 14 (1980), for further support. There, the Supreme Court declined to apply a state statute that would have barred survival of a Bivens claim for a death allegedly caused by federal officials. Id. at 23-25. The Court distinguished Robertson on the bases that: (1) the Robertson decedent did not die as a result of the alleged civil rights violation; and (2)
We are unpersuaded by Wheeler‘s arguments. As stated in Robertson, which we determine is controlling here:
Despite the broad sweep of
§ 1983 , we can find nothing in the statute or its underlying policies to indicate that a state law causing abatement of a particular action should invariably be ignored in favor of a rule of absolute survivorship.... That a federal remedy should be available does not mean that a§ 1983 plaintiff (or his representative) must be allowed to continue an action in disregard of the state law to which§ 1988 refers us. A state statute cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to lose the litigation. If success of the§ 1983 action were the only benchmark, there would be no reason at all to look to state law, for the appropriate rule would then always be the one favoring the plaintiff, and its source would be essentially irrelevant. But§ 1988 quite clearly instructs us to refer to state statutes; it does not say that state law is to be accepted or rejected based solely on which side is advantaged thereby.
Robertson, 436 U.S. at 590, 593 (emphasis added). Wheeler has proffered no subsequent authority or argument that overcomes this teaching of the Supreme Court. We note that we have previously applied state survivorship law to
Additionally, California‘s survivorship law is expansive – permitting either a personal representative or successor in interest to bring a claim on behalf of a decedent – and thus claims should rarely abate for lack of a proper plaintiff. See Robertson, 436 U.S. at 591–92 (holding that, because few people are not survived by one of the close relatives included in Louisiana‘s survivorship law and that the limitations included in the statute were reasonable, none of
B. Wheeler Cannot Assert Colbert‘s ADA and RA Claims.
Unlike
It is a fundamental canon that where the “statutory text is plain and unambiguous,” a court “must apply the statute according to its terms.” Carcieri v. Salazar, 555 U.S. 379, 387 (2009). Further, the “doctrine of expressio unius est exclusio alterius ‘as applied to statutory interpretation creates a presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions.‘” Silvers v. Sony Pictures Entm‘t, Inc., 402 F.3d 881, 885 (9th Cir. 2005) (en banc) (quoting Boudette v. Barnette, 923 F.2d 754, 756–57 (9th Cir. 1991)). According to the text of
This conclusion is buttressed by the legislative history of
In so ruling, we have considered that some circuits do apply
Having determined that
Courts have consistently applied a uniform federal law to the survival of various federal claims. See Revock, 853 F.3d at 108–09 (discussing cases where courts applied a uniform rule of survivorship to various types of federal claims). We apply a uniform federal rule of survivorship here as well, as “Congress declared its interest in passing the ADA was to ‘provide a clear and comprehensive national mandate’ with ‘clear, strong, consistent, [and] enforceable standards’ to address the ‘serious and pervasive social problem’ of disability-based discrimination on a case-by-case basis.” Guenther, 846 F.3d at 983 (emphasis in Guenther) (quoting
With regard to the content of a uniform federal rule, we note that under federal
That being said, Wheeler cannot bring his asserted ADA and RA claims on behalf of Colbert. He has provided no authority supporting the proposition that an individual without a legal relationship to the decedent – such as an adopted-out biological child – could bring survival claims under a uniform federal law. Wheeler‘s case stands in marked contrast to others where the legal status of the familial relationship or the decedent‘s estate was not disputed, nor was their ability to bring any claims that survived the decedent.14 As Wheeler has provided no support for his argument, we will refrain from expanding the limits of who federal common law would permit to bring suit. See Washington v. Glucksberg, 521 U.S. 702, 720 (1997). For these reasons, we affirm dismissal of the ADA and RA claims.
C. Wheeler Cannot Assert Fourteenth Amendment Claims for Loss of Colbert‘s Companionship.
Wheeler states – and Santa Clara agrees – that no federal case law addresses the Fourteenth Amendment liberty interests of a decedent‘s adopted-out biological child. Wheeler contends, however, that his relationship with Colbert can support a Fourteenth Amendment loss of companionship claim. We are not persuaded by Wheeler‘s arguments.
A decedent‘s parents and children generally have the right to assert substantive due process claims under the Fourteenth Amendment. Hayes, 736 F.3d at 1229-30; Moreland, 159 F.3d at 371. Even though state law typically governs legal familial relationships – including the inheritance of property, adoption, child custody, marriage, and divorce – the Federal Constitution in some cases supersedes state law and provides greater protection for certain family relationships. Lehr v. Robertson, 463 U.S. 248, 256-58 (1983) (discussing the Fourteenth Amendment rights of an unwed biological father); see also Smith v. Fontana, 818 F.2d 1411, 1419 (9th Cir. 1987) (holding that loss of companionship
In this case, Colbert surrendered Wheeler for adoption as an infant - choosing to legally sever her relationship with him and to give up all rights and responsibilities related to his care – and he was adopted by other parents. In his complaint, Wheeler asserts that he had a “close relationship with Ms. Colbert during part of his childhood and throughout his adult life.” That allegation is not sufficient to support a loss of companionship claim in the case before us. Few close relationships – even between blood relatives – can serve as a basis for asserting Fourteenth Amendment loss of companionship claims. See Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir. 1991) (finding siblings could not maintain a claim for loss of their brother‘s companionship). Wheeler does not allege that Colbert raised him, otherwise resumed responsibility for his upbringing, or even maintained consistent contact with him during his childhood. See Lehr, 463 U.S. at 261-62 (holding that biological father‘s failure to have significant custodial, personal, or financial relationship with his daughter and to pursue legal ties to her until she reached age two meant that he was not entitled to full Fourteenth Amendment protection of his relationship with her).
Without citation to any authority, Wheeler asserts that in light of evolving parenting and childrearing arrangements, this court should find that his relationship with Colbert constitutes a foundation for a loss of companionship claim despite his adoption as an infant. We decline that invitation. In doing so, we acknowledge that there has been an evolution in both adoption practices and “non-traditional” relationships and that the appropriate case may net a different result. We confine our holding to the case before us, arising from the particular nature of Wheeler and Colbert‘s relationship as alleged. Questions concerning all adopted-out children or those raised in non-traditional family arrangements are not before us today. Nor should this opinion be read to foreclose a case involving a true parent-child relationship in a different context where a constitutionally protected right may exist.
D. The District Court Did Not Abuse Its Discretion by Denying Leave to Amend.
Wheeler contends that the district court abused its discretion when it refused to grant leave to amend the complaint. He argues that denying him the opportunity to open an estate in probate, name a representative, and replace the “John Doe 1” personal representative with the newly appointed one is erroneous because the personal representative of Colbert‘s estate would be a proper plaintiff. Furthermore, Wheeler alleges that the court did not discuss the request for leave to amend the complaint in its order.
We do not discern merit in Wheeler‘s contention; the court did discuss the request for leave to amend the complaint in its order, stating that the request was denied as futile. Leave to amend may be denied if the proposed amendment is futile or would be subject to dismissal. Carrico v. City and Cnty. of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011). In survival actions, plaintiffs have the burden to prove proper standing. See Hayes, 736 F.3d at 1228–29.
Even assuming arguendo that Wheeler could have been appointed the personal representative, he was not Colbert‘s personal representative at the time of dismissal. Further, Wheeler provides no authority that suggests a “John Doe,” as yet nonexistent personal representative plaintiff can serve as a placeholder for hypothetical proper plaintiffs.
In any event, the newly named personal representative would be a new party for purposes of the relation-back doctrine, and relating back would be time-barred. Because
CONCLUSION
California‘s survival statute is consistent with
AFFIRMED.
WARDLAW, Circuit Judge, concurring in opinion:
While Wheeler does not and cannot allege a viable claim, I wish to emphasize what this opinion does not hold. We do not hold that no adopted-out child could prove he had a protected interest in his relationship with his biological parent under the Fourteenth Amendment. We no longer live in a world of conventional families with two heterosexual parents and only one mother. Some children have two mothers in a same-sex marriage; some children have two mothers because their heterosexual parents got divorced and remarried; and in fact, there are some children who have even more than two mothers. The intimate relationship between a parent and child is not limited by number; it is a practice, dependent on intimacy and association over time. Whether we approve or disapprove of these developing alternative family structures is irrelevant. There is no reason why an adopted-out child could not have had a “deeply loving and interdependent relationship” with both his adoptive and his biological mother under other circumstances. Spielman v. Hildebrand, 873 F.2d 1377, 1384 (10th Cir. 1989) (quoting Smith v. Org. of Foster Families For Equal. & Reform, 431 U.S. 816, 844 (1977) (“OFFER“)).
As the Supreme Court has said, “the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in promoting a way of life through the instruction of children, as well as from the fact of blood relationship.” OFFER, 431 U.S. 816, 844 (1977) (quoting Wisconsin v. Yoder, 406 U.S. 205, 231-33 (1972)) (original alterations omitted). The Fourteenth Amendment is not constrained by state laws governing legal relationships. Instead, it is the actual relationship that society recognizes as worthy of respect and protection, that animates the constitutional claim. Lehr v. Robertson, 463 U.S. 248, 259–62 (1983). In an earlier
That was yesterday. The moral consensus that insisted on confining procreation within marriage has dissipated along with traditional notions of parent and child. And both the Supreme Court and the Circuit Courts have expanded familial protections based on the special, intimate and loving relationship between parent and child. Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S. 73, 74–75 (1968); Stanley, 405 U.S. at 651; Moore v. City of East Cleveland, 431 U.S. 494 (1977) (extending Supreme Court principles protecting the parental role in raising children to protect a broader set of relationships within the family structure and invalidating under substantive due process a zoning ordinance preventing grandmother and grandson from living together in certain circumstances); Strandberg v. City of Helena, 791 F.2d 744 (9th Cir. 1986) (holding that parents have constitutional rights to loss of companionship of adult children); Spielman, 873 F.2d at 1385 (holding that pre-adoptive parents have a sufficient liberty interest to be afforded some level of due process protection). “This principle rests on a practical recognition that biology and association can together establish a relationship between father and child that may be essential to the happiness of both,” even if the formality of a legal relationship is missing. Pena v. Mattox, 84 F.3d 894, 899 (7th Cir. 1996).
As we noted, the loss of companionship under the Fourteenth Amendment applies as equally to a child‘s loss of a parent as it does to a parent‘s loss of a child. Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999); see Curnow By & Through Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). In fact, in Smith, we reasoned that a child‘s interest is likely stronger than a parent‘s interest because parents can have more biological children whereas children cannot have more than one set of biological parents. Smith, 818 F.2d at 1418 n.10. The cases that exclude other blood relatives from asserting a Fourteenth Amendment claim for loss of companionship do not preclude biological parents or children from asserting this claim. See Ward v. City of San Jose, 967 F.2d 280, 283–84 (9th Cir. 1991) (siblings do not have a constitutional right to loss of companionship).
Thus, in holding that Wheeler does not have a protected interest, we conclude only that he was unable to demonstrate that he had a protected relationship with his mother.
Notes
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer‘s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
(a) Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person‘s death, but survives subject to the applicable limitations period.
(b) This section applies even though a loss or damage occurs simultaneously with or after the death of a person who would have been liable if the person‘s death had not preceded or occurred simultaneously with the loss or damage.
(a) An adoption severs the relationship of parent and child between an adopted person and a natural parent of the adopted person unless both of the following requirements are satisfied:
(1) The natural parent and the adopted person lived together at any time as parent and child, or the natural parent was married to or cohabiting with the other natural parent at the time the person was conceived and died before the person‘s birth.
(2) The adoption was by the spouse of either of the natural parents or after the death of either of the natural parents.
(b) Neither a natural parent nor a relative of a natural parent, except for a wholeblood brother or sister of the adopted person or the issue of that brother or sister, inherits from or through the adopted person on the basis of a parent and child relationship between the adopted person and the natural parent that satisfies the requirements of paragraphs (1) and (2) of subdivision (a), unless the adoption is by the spouse or surviving spouse of that parent.
(c) For the purpose of this section, a prior adoptive parent and child relationship is treated as a natural parent and child relationship.
Title 13 of the Revised Statutes, referred to in subsec. (a), was in the original “this Title” meaning title 13 of the Revised Statutes, consisting of R.S. §§ 530 to 1093. For complete classification of R.S. §§ 530 to 1093 to the Code, see Tables.
Title 24 of the Revised Statutes, referred to in subsec. (a), was in the original “Title ‘Civil Rights,‘” meaning title 24 of the Revised Statutes, consisting of R.S. §§ 1977 to 1991, which are classified to
Title 70 of the Revised Statutes, referred to in subsec. (a), was in the original “Title ‘Crimes,‘” meaning title 70 of the Revised Statutes, consisting of R.S. §§ 5323 to 5550. For complete classification of R.S. §§ 5323 to 5550, see Tables.