                                                                          FILED
                            NOT FOR PUBLICATION                            DEC 16 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ALICE DELA CRUZ,                                 No. 08-17136

              Plaintiff - Appellant,             D.C. No. 1:06-CV-00037

  v.
                                                 MEMORANDUM *
TOM PALACIOS, in his personal
capacity; SANTIAGO TUDELA, in his
personal capacity; ANDREW SANTOS, in
his personal capacity,

              Defendants - Appellees.



                   Appeal from the United States District Court
                  for the District of the Northern Mariana Islands
                  Alex R. Munson, Chief District Judge, Presiding

                      Argued and Submitted October 13, 2010
                                Honolulu, Hawaii


Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.

       Plaintiff-Appellant Alice Dela Cruz (“Dela Cruz”) appeals the adverse grant of

summary judgment in her 42 U.S.C. § 1983 action for deprivation of familial



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
association and interference with a property interest in the body of her deceased son,

Donald Sewell (“Sewell”). We affirm.

Familial Association Claim

      As Dela Cruz correctly notes, the proper standard for evaluating her § 1983

claim for deprivation of familial association based on the loss of her son is the

Fourteenth Amendment’s stringent “shocks the conscience” standard. Porter v.

Osborn, 546 F.3d 1131, 1137-38 (9th Cir. 2008). Where, as here, “an officer

encounters fast paced circumstances presenting competing public safety obligations,”

only actions demonstrating that the officer acted with a “purpose to harm” unrelated

to legitimate law enforcement objectives will suffice to establish a claim. Id. at 1139-

40.

      Dela Cruz produced no colorable evidence that defendant police officer Andrew

Santos (“Santos”) acted with an intent to harm Sewell, other than to stop an attack on

himself or innocent bystanders. Even construing the facts in the light most favorable

to her, Dela Cruz has not shown that Santos acted with a “purpose to harm.” Id. at

1139. Summary judgment for Santos and his superior, defendant Santiago Tudela,

was therefore proper.

      Nor are we required to remand to the district court for consideration of the

claim under the Porter standard. Dela Cruz was on notice that she must come forward


                                           2
with all her evidence to support her claim. See Celotex Corp. v. Catrett, 477 U.S. 317,

326 (1986); Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 & n.4 (9th

Cir. 1998) (although district court applied wrong standard, “if [it] correctly

determined [the officer’s] actions were objectively reasonable, it follows that [the]

conduct did not offend the more stringent standard applicable to substantive due

process claims”).

      The district court also acted within its gatekeeping discretion in excluding the

affidavit of Claudio Norita because of reliability defects. See Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579, 593-95, 597 (1993). See also Fed. R. Evid. 702.

      Having failed to raise it in her opening brief, Dela Cruz has waived her

argument that the district court erred in deeming admitted defendants’ requests for

admissions. Randle v. Crawford, 578 F.3d 1177, 1184 (9th Cir. 2009).

Claim for Interference with Property Interest

      To prevail on her § 1983 claim and overcome defendant Tom Palacios’s

(“Palacios”) assertion of qualified immunity, Dela Cruz was required to show that

Palacios violated “clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). This traditionally involved a two-step inquiry requiring determination of

whether a constitutional right existed and was violated before determining whether the


                                          3
right was clearly established at the time of the alleged violation. See Saucier v. Katz,

533 U.S. 194, 201 (2001). However, where it is impractical or would require unduly

extensive constitutional analysis, courts need not adhere to the rigid order of the

traditional qualified immunity analysis. Pearson v. Callahan, 129 S. Ct. 808, 818

(2009).

      Dela Cruz does not point to any authority establishing a constitutional property

right or interest of the breadth she claims. State statutory and common law do not

support her claim. Whatever the status and scope of a property interest in the

immediate possession of the body of a close relative, in the context of a lawful

ongoing investigation, no such right was clearly established at the time of the alleged

deprivation. Having failed to establish a necessary element of her § 1983 case, Dela

Cruz’s claim necessarily fails, and summary judgment for Palacios on qualified

immunity grounds was proper. See Celotex Corp., 477 U.S. at 322-23.

      Dela Cruz argues for the first time on appeal that the Morgue Operating Policy

under which Palacios acted was not a valid regulation. Because the validity of the

regulation would only be relevant to the § 1983 analysis if the right Dela Cruz claimed

was clearly established, we need not address the argument.

      AFFIRMED.




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