                            NOT FOR PUBLICATION                             FILED
                     UNITED STATES COURT OF APPEALS                         AUG 22 2019
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

PAMELA MOTLEY; et al.,                            No.    18-15171

                 Plaintiffs-Appellants,           D.C. No.
                                                  1:15-cv-00905-DAD-BAM
 v.

JOSEPH SMITH, Fresno Police Officer; et           MEMORANDUM*
al.,

                 Defendants-Appellees.

                    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.
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.


                                           2
The parties shall bear their own costs on appeal.

AFFIRM IN PART; REVERSE AND REMAND IN PART.




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