                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 24 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LOVEYMAE GALARIO, individually                   No. 09-16199
and as Next Friend of J.K.G., a minor born
October 9, 1998; JALYN LIKE; J.K.G., a           D.C. No. 1:07-cv-00159-DAE-
minor child, born October 9, 1998,               KSC

              Plaintiffs - Appellees,
                                                 MEMORANDUM*
  v.

AYOTUNDE ADEWUNDMI; PEGGY
HILTON; LILLIAN KOLLER, in their
individual and official capacities; STATE
OF HAWAII DEPARTMENT OF
HUMAN SERVICES, CHILD
PROTECTIVE SERVICES,

              Defendants - Appellants.


                   Appeal from the United States District Court
                            for the District of Hawaii
                    David A. Ezra, District Judge, Presiding

                             Submitted June 11, 2013**
                                Honolulu, Hawaii


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.

      Hawaii Child Protective Services (“CPS”) social worker Ayotunde

Adewundmi appeals from the district court’s order denying him summary

judgment on the ground of qualified immunity. We have jurisdiction under 28

U.S.C. § 1291, and we reverse.

1.    Plaintiffs advanced two theories in support of their equal protection claim.

First, they asserted that Adewundmi harbored discriminatory animus towards them

on the basis of their perceived sexual orientation and that this animus was at least

in part the reason for his recommendation that CPS remove Loveymae Galario’s

child from their home. It was clearly established as of November 23, 2004—the

date of J.K.G.’s removal—that this type of discrimination violates equal protection.

See Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134–35 (9th Cir.

2003). However, Plaintiffs’ only evidence that Adewundmi’s actions were based

on animus towards their perceived homosexual relationship is that Adewundmi

once filed a report in the family court on behalf of CPS in which he identified Jalyn

Like as Galario’s “cousin and intimate partner.” This is insufficient to raise a

triable issue of fact as to Adewundmi’s alleged animus.

2.    Plaintiffs also invoked a “class of one” theory, which requires proof that

Adewundmi “intentionally, and without rational basis, treated [them] differently


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from others similarly situated.” N. Pacifica LLC v. City of Pacifica, 526 F.3d 478,

486 (9th Cir. 2008) (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)

(per curiam)). But “[t]he class-of-one doctrine does not apply to forms of state

action that ‘by their nature involve discretionary decisionmaking based on a vast

array of subjective, individualized assessments.’” Towery v. Brewer, 672 F.3d

650, 660 (9th Cir. 2012) (quoting Engquist v. Or. Dep’t of Agric., 553 U.S. 591,

603 (2008)).

      Adewundmi’s actions on behalf of CPS fall squarely within the category of

subjective, individualized assessments that are not susceptible to a “class of one”

challenge. A CPS employee “must take into account the individual personalities

and interpersonal relationships of [parents and children] in the [home]. The close

relationship between the [parent] and [child], and the varied needs and interests

involved in the [child welfare] context, mean that considerations . . . that would be

unreasonable as grounds for ‘arm’s-length’ government decisions (e.g., zoning,

licensing) may well justify different treatment of a [parent].” Engquist, 553 U.S. at

604. Therefore, Plaintiffs cannot establish an equal protection violation based on a

“class of one” theory.

3.    Plaintiffs waived any due process claim by failing to adequately raise it

before the district court in their opposition to Adewundmi’s motion for summary


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judgment. See United States v. Shaltry (In re Home America T.V.-Appliance

Audio, Inc.), 232 F.3d 1046, 1052 (9th Cir. 2000). Even if we were to overlook

this waiver, there is no evidence in the record to support a due process claim.

      J.K.G. stated that Like struck her and that she was afraid of returning home.

Both examining physicians’ reports supported the conclusion that J.K.G. had been

beaten, although they differed as to the extent of J.K.G.’s injuries. School officials

also reported that J.K.G. had bruising across the bridge of her nose and open

wounds consistent with fingernails. Under these circumstances, any jury would

have found it reasonable for Adewundmi to direct the police to take J.K.G. into

temporary protective custody and keep her there until the next day when Galario

signed the voluntary foster custody agreement. See White ex rel White v. Pierce

Cnty., 797 F.2d 812, 815–16 (9th Cir. 1986) (finding neighbor’s report that child

had severe welts on his back combined with parent’s denial of abuse and attempt to

conceal evidence established reasonable cause). Because Plaintiffs failed to

provide evidence of a constitutional violation, Adewundmi is entitled to qualified

immunity.

      REVERSED AND REMANDED.




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