                                                                              FILED
                            NOT FOR PUBLICATION
                                                                               APR 30 2020
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROBERT MANN, Sr.; et al.,                        No.   19-15483

              Plaintiffs-Appellants,             D.C. No.
                                                 2:17-cv-01201-WBS-DB
 and

ZACHARY MANN; WILLIAM MANN,                      MEMORANDUM*

              Plaintiffs,

 v.

SACRAMENTO POLICE
DEPARTMENT; SAMUEL D. SOMERS,
Jr.,

              Defendants,

 and

JOHN C. TENNIS; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                        Argued and Submitted April 14, 2020
                             San Francisco, California

Before: GOULD and CHRISTEN, Circuit Judges, and LASNIK,** District Judge.

      Plaintiffs-Appellants Robert Mann, Sr., Vern Murphy-Mann, and Deborah

Mann appeal from the district court’s order granting Defendants-Appellees’ motion

to dismiss in a § 1983 action alleging deprivation of their First Amendment right to

familial association with their adult brother. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we reverse and remand.1

      A prior panel reviewed an interlocutory appeal in this case and concluded

that Plaintiffs’ initial complaint failed to adequately allege facts showing that they

had a constitutionally protected relationship with the decedent. See Mann v. City

of Sacramento, 748 F. App’x 112 (9th Cir. 2018) (“Mann II”). In accordance with

General Order 4.3.a, the memorandum disposition provided a concise explanation

of its decision, but we recognize that the explanation may have caused confusion

on remand.

      As relevant here, Mann II concluded that Plaintiffs’ complaint did not allege

facts establishing a First Amendment right of familial or intimate association, as


      **
             The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
       1
         Because the parties are familiar with the facts and procedural history of
this case, we do not recite them here.
                                           2
recognized in Board of Directors of Rotary International v. Rotary Club of Duarte,

481 U.S. 537, 545 (1987), and its progeny. 748 F. App’x at 114. We stated that

even if Plaintiffs’ complaint met Rotary Club’s standard, their intimate-association

claims would be foreclosed by Ward v. City of San Jose, 967 F.2d 280, 283–84

(9th Cir. 1991). Ward held that a decedent’s adult siblings lacked “a cognizable

liberty interest in their brother’s companionship” under the substantive Due

Process Clause of the Fourteenth Amendment. Id. Ward did not discuss

cohabitation. Nevertheless, because Mann II stated that Ward barred intimate-

association claims by “adult, non-cohabitating siblings,” 748 F. App’x at 115, the

Mann II decision was interpreted on remand as requiring that Plaintiffs plead facts

demonstrating their cohabitation with the decedent to sustain their First

Amendment intimate-association claim.

      We conclude that Mann II’s statement that Ward “would” foreclose

Plaintiffs’ First Amendment claim “even if” they had pleaded sufficient facts, see

id., is dicta. See Trent v. Valley Elec. Ass’n, Inc., 195 F.3d 534, 537 (9th Cir.

1999). First, Ward did not create a cohabitation requirement or purport to govern

First Amendment claims; Ward addressed only Fourteenth Amendment intimate-

association claims brought by adult siblings. See Ward, 967 F.2d at 284.




                                           3
      Second, Mann II cited the Rotary Club line of cases in addressing the

sufficiency of Plaintiffs’ First Amendment allegations, and it recognized that

cohabitation was one of several objective indicia that courts may consider when

assessing whether Plaintiffs were deprived of their intimate-association right. 748

F. App’x at 114; see also Rotary Club of Duarte, 481 U.S. at 545; Keates v. Koile,

883 F.3d 1228, 1236 (9th Cir. 2018); Lee v. City of Los Angeles, 250 F.3d 668,

685-86 (9th Cir. 2001); Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th Cir.

1995).

      Finally, Mann II could not have held that Ward forecloses Plaintiffs’ First

Amendment claim because it expressly decided that the district court could allow

Plaintiffs to amend on remand. See 748 F. App’x at 115. If Ward controlled the

First Amendment analysis, amendment would have been futile because no

amendment could change the fact that Plaintiffs are the decedent’s adult siblings.

We therefore remand for consideration of Plaintiffs’ First Amendment claim under

the standard set forth in Rotary Club and its progeny. 481 U.S. at 545; Keates, 883

F.3d at 1236; Lee, 250 F.3d at 685-86.

      REVERSED and REMANDED.




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