                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 15 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

N. L., a minor, by and through his Guardian     No.   16-56019
ad litem and all others similarly situated
Guardian Ad Litem Jacqueline Arce,              D.C. No.
                                                2:15-cv-07200-AB-FFM
                Plaintiff-Appellant,

 v.                                             MEMORANDUM*

CHILDRENS HOSPITAL LOS ANGELES;
CHILDRENS HOSPITAL LOS ANGELES
MEDICAL GROUP,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andre Birotte, Jr., District Judge, Presiding

                     Argued and Submitted February 8, 2018
                              Pasadena, California

Before: GRABER and HURWITZ, Circuit Judges, and MARBLEY, ** District
Judge.

      N.L., a minor suing through his guardian ad litem, appeals the district court’s



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
Rule 12(b)(6) dismissal of this putative class action raising 42 U.S.C. § 1983 claims

against Children’s Hospital Los Angeles and Children’s Hospital Los Angeles

Medical Group (collectively “CHLA”). The operative complaint alleges that CHLA

violated N.L.’s constitutional rights by conducting an invasive forensic medical

examination for signs of child abuse without judicial authorization and without his

parents’ knowledge or consent. The district court held that the pleading did not state

a claim under § 1983 because it did not plausibly allege that CHLA acted under color

of state law. We have jurisdiction, 28 U.S.C. § 1291, and reverse and remand.

      1. The factual allegations in the operative complaint, which we must take as

true in the context of a motion to dismiss, Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam), give rise to a plausible inference that CHLA acted under color of state

law, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The pleading plausibly

alleges that, in performing an intrusive forensic examination of N.L., CHLA was not

providing medical treatment but instead was exercising its discretion to collaborate

with county government in the laudable endeavor of investigating child abuse, a

potential crime. See West v. Atkins, 487 U.S. 42, 54–55 (1988) (concluding that a

private physician who assists the state in carrying out a governmental function is a

state actor); Dennis v. Sparks, 449 U.S. 24, 27 (1980) (holding that a private

defendant can act under color of state law if it is a “willful participant in joint action

with the State or its agents”).


                                            2
         2. We of course today express no opinion on the validity of N.L.’s claims, or

on whether, even if CHLA is shown to be a state actor, it is entitled to qualified

immunity. Nor do we address today other possible deficiencies in the first amended

complaint. We hold only that the complaint’s allegations that CHLA acted under

color of state law are sufficient to survive a motion to dismiss for failure to state a

claim.

         REVERSED and REMANDED.




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