                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


LELAND WHEELER, Individually and            No. 16-17375
as Successor in Interest of Deborah
Colbert,                                       D.C. No.
                  Plaintiff-Appellant,      5:16-cv-01953-
                                                RMW
                  v.

CITY OF SANTA CLARA, a municipal              OPINION
corporation; ANDREW MCGUIRE;
NICHOLAS BRONTE; ALAN WOLF;
MICHAEL J. SELLERS; DOES, 2
through 50,
              Defendants-Appellees.



     Appeal from the United States District Court
        for the Northern District of California
   Ronald M. Whyte, Senior District Judge, Presiding

          Argued and Submitted April 11, 2018
               San Francisco, California

                       Filed July 3, 2018
2             WHEELER V. CITY OF SANTA CLARA

      Before: M. Margaret McKeown and Kim McLane
    Wardlaw, Circuit Judges, and Gary S. Katzmann, * Judge.

                 Opinion by Judge Katzmann;
                Concurrence by Judge Wardlaw


                          SUMMARY **


                           Civil Rights

    The panel affirmed the district court’s dismissal of a
complaint brought pursuant to 42 U.S.C. § 1983, the
Americans with Disabilities Act, and the Rehabilitation Act
by the biological son of Deborah Colbert, who was killed by
police officers during a response to a 911 call.

    The district court dismissed the case, finding that
plaintiff had no legally cognizable interest in his relationship
with Colbert and that he was not a proper successor in
interest to her under California law because he had been
adopted by other parents as an infant.

    The panel held that California’s survival statute was
consistent with 42 U.S.C. § 1983, and thus applied to the
instant action. The panel held that because plaintiff
indisputably did not meet the requirements for standing
under California law, he could not assert § 1983 claims on

      *
      The Honorable Gary S. Katzmann, Judge for the United States
Court of International Trade, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
            WHEELER V. CITY OF SANTA CLARA                  3

behalf of Colbert. Further, although federal common law
applied to the Americans with Disabilities Act and
Rehabilitation Act claims, plaintiff was still not an
appropriate plaintiff for a survival action based on those
laws. Plaintiff also could not bring a claim for loss of
companionship with Colbert because they did not have the
kind of parent-child relationship entitled to this type of
constitutional protection. Finally, because no proper
plaintiff existed at the time of the district court’s ruling,
denying leave to amend the complaint was not an abuse of
discretion.

    Concurring, Judge Wardlaw stated that in holding that
plaintiff did not have a protected interest for the Fourteenth
Amendment loss of companionship claim, the panel
concluded only that he was unable to demonstrate that he had
a protected relationship with his biological mother. Judge
Wardlaw emphasized that this opinion does not hold that no
adopted-out child could prove he had a protected interest in
his relationship with his biological parent under the
Fourteenth Amendment.


                        COUNSEL

Sanjay S. Schmidt (argued), Law Office of Sanjay S.
Schmidt, San Francisco, California; Joseph S. May, Law
Office of Joseph S. May, San Francisco, California; for
Plaintiff-Appellant.

Jon A. Heaberlin (argued) and Saman N. Khan, Rankin
Stock Heaberlin, San Jose, California, for Defendants-
Appellees.
4               WHEELER V. CITY OF SANTA CLARA

                             OPINION

KATZMANN, Judge:

    This appeal poses questions regarding the interaction of
state statutes with various federal civil rights laws, the
survival after death of claims brought under those federal
laws, and the effect of adoption on Fourteenth Amendment
loss of companionship claims. Deborah Colbert died after a
confrontation with police. Her biological son, plaintiff
Leland Wheeler, seeks to assert claims on her behalf under
42 U.S.C. § 1983 and the Fourth Amendment, the
Americans with Disabilities Act (“ADA”), 1 and the
Rehabilitation Act (“RA”). 2      Wheeler also brings a
Fourteenth Amendment claim under § 1983 on his own
behalf for loss of companionship resulting from her death.
The district court dismissed the case, finding that Wheeler
had no legally cognizable interest in his relationship with
Colbert and that he was not a proper successor in interest to
her under California law because he had been adopted by
other parents as an infant. The district court also denied
leave to amend the complaint. We affirm.

          FACTUAL AND PROCEDURAL HISTORY

    The complaint in this case alleges as follows: Deborah
Colbert called 911 on April 13, 2014, and stated that she had
taken pills, drank heavily, and would use a baseball bat to
provoke the police to shoot her. Police officers were
dispatched to her residence in response to her call. One of
the officers had effectuated an involuntary mental health

    1
        42 U.S.C. § 12132.

    2
        29 U.S.C. § 794.
              WHEELER V. CITY OF SANTA CLARA                          5

detention on Colbert eight days prior. When another officer
obtained a key to Colbert’s apartment from a building
manager and attempted to enter, Colbert emerged from her
apartment holding a baseball bat. The officers shot Colbert,
and she died the following day from her resulting injuries.
Leland Wheeler is the biological son and only known living
relative of Colbert. He was adopted by other parents as an
infant, but alleges that he maintained a “close relationship
with Ms. Colbert during part of his childhood and throughout
his adult life.”

    Wheeler filed this action in his individual capacity and
on behalf of Colbert against the City of Santa Clara and
several Santa Clara police officers (“Santa Clara”). The
complaint also named as a plaintiff “John Doe 1,” described
as “the to-be-identified personal representative” of Colbert’s
estate. Colbert’s estate was not submitted to probate and no
personal representative was appointed. Wheeler asserted
two § 1983 claims on his own behalf: a Fourteenth
Amendment substantive due process claim for deprivation
of his right to a familial relationship with his biological
mother and a related Monell claim for supervisory liability. 3
Wheeler also asserted a Fourth Amendment excessive force
claim, a related Monell claim for supervisory liability, and
claims under the ADA and RA 4 on behalf of Colbert. Santa

    3
       Under Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658,
694 (1978), plaintiffs can bring suit against municipalities “when
execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an
entity is responsible under § 1983.” Wheeler brings such a claim against
Santa Clara here.
    4
       Specifically, Wheeler asserts that Colbert’s mental health
conditions qualified her for ADA and RA protection; that officers knew
6            WHEELER V. CITY OF SANTA CLARA

Clara moved to dismiss Wheeler’s substantive due process
claims and the claims asserted on Colbert’s behalf. Wheeler
requested leave to amend the complaint with the name of the
Colbert estate’s personal representative once one had been
appointed.

    Granting Santa Clara’s motion, the district court
dismissed all of the claims without leave to amend. The
court found that, although California’s survivorship law
prevented Wheeler from bringing claims on behalf of
Colbert, the statute was not inconsistent with § 1983. The
court also held that federal common law would not permit
him to bring the § 1983 and ADA and RA survivorship
claims. The court further determined that Wheeler lacked a
constitutionally protected interest in his relationship with
Colbert because their legal relationship had been severed.
Finally, the district court denied his request for leave to
amend as futile. Wheeler timely appealed.

                 STANDARDS OF REVIEW

    This court reviews de novo standing issues, In re
Zappos.com, Inc., 888 F.3d 1020, 1024 (9th Cir. 2018), and
orders granting a motion to dismiss for failure to state a
claim, Lloyd v. CVB Financial Corp., 811 F.3d 1200, 1205
(9th Cir. 2016). A denial for leave to amend is reviewed for
an abuse of discretion. Gompper v. VISX, Inc., 298 F.3d 893,
898 (9th Cir. 2002).




of her disabilities but failed to reasonably accommodate them in the
course of confronting her; and that this failure to accommodate her
disabilities caused her death.
               WHEELER V. CITY OF SANTA CLARA                        7

                            DISCUSSION

    Wheeler argues that the district court erred in dismissing
his case. He contends that (1) California’s survivorship law
undermines the deterrence and compensation goals of
§ 1983 because it would allow claims to abate when a civil
rights violation caused the decedent’s death; (2) federal
common law of survivorship permits Wheeler to assert
claims on behalf of Colbert; (3) the Fourteenth Amendment
protects the companionship interests of all biological
children and parents, regardless of the legal status of their
relationship; and (4) the court abused its discretion by not
allowing Wheeler to substitute an as yet nonexistent personal
representative for Colbert’s estate as plaintiff in this suit.

A. California’s Survival Statute Applies to Wheeler’s
   § 1983 Claims.

    Wheeler asserts that state survivorship law can fill
interstices where federal civil rights legislation does not
provide a survivorship regime only so long as state law is not
inconsistent with the purposes of the relevant federal civil
rights law.     He contends that because California’s
survivorship law allows claims to abate when a civil rights
violation causes the decedent’s death, its application would
undermine the deterrence and compensation goals of
§ 1983. 5 Therefore, he argues, the California survivorship

   5
       42 U.S.C. § 1983 provides, in relevant part:

              Every person who, under color of any statute,
          ordinance, regulation, custom, or usage, of any State
          or Territory or the District of Columbia, subjects, or
          causes to be subjected, any citizen of the United States
          or other person within the jurisdiction thereof to the
          deprivation of any rights, privileges, or immunities
8           WHEELER V. CITY OF SANTA CLARA

law is so inconsistent with § 1983 that recourse to federal
common law is warranted.

   “[T]he decision as to the applicable survivorship rule” in
a § 1983 action “is governed by 42 U.S.C. § 1988.”
Robertson v. Wegmann, 436 U.S. 584, 588 (1978). Section
1988(a) provides that:

       The jurisdiction in civil and criminal matters
       conferred on the district courts by the
       provisions of titles 13, 24, and 70 of the
       Revised Statutes for the protection of all
       persons in the United States in their civil
       rights, and for their vindication, shall be
       exercised and enforced in conformity with
       the laws of the United States, so far as such
       laws are suitable to carry the same into effect;
       but in all cases where they are not adapted to
       the object, or are deficient in the provisions
       necessary to furnish suitable remedies and
       punish offenses against law, the common
       law, as modified and changed by the
       constitution and statutes of the State wherein
       the court having jurisdiction of such civil or
       criminal cause is held, so far as the same is
       not inconsistent with the Constitution and
       laws of the United States, shall be extended

       secured by the Constitution and laws, shall be liable to
       the party injured in an action at law, suit in equity, or
       other proper proceeding for redress, except that in any
       action brought against a judicial officer for an act or
       omission taken in such officer’s judicial capacity,
       injunctive relief shall not be granted unless a
       declaratory decree was violated or declaratory relief
       was unavailable.
                  WHEELER V. CITY OF SANTA CLARA                    9

          to and govern the said courts in the trial and
          disposition of the cause, and, if it is of a
          criminal nature, in the infliction of
          punishment on the party found guilty.

(emphasis added). In short, § 1988(a) “directs courts to fill
gaps in certain federal actions with state law when state law
is not ‘inconsistent’ with federal law.” Guenther v. Griffin
Constr. Co., Inc., 846 F.3d 979, 982 (8th Cir. 2017). When
“resolving questions of inconsistency between state and
federal law raised under § 1988,” courts must consider
whether the state law conflicts with the federal and
constitutional provisions at issue and “whether application
of state law would be inconsistent with the federal policy
underlying the cause of action under consideration.”
Robertson, 436 U.S. at 590 (citations and internal quotation
marks omitted). “The policies underlying § 1983 include
compensation of persons injured by deprivation of federal
rights and prevention of abuses of power by those acting
under color of state law.” Id. at 590–91.

    Under California law, a cause of action is not lost by
reason of a plaintiff’s death. Cal. Code Civ. Proc. (“C.C.P.”)
§ 377.20. 6 C.C.P. § 377.30 provides that a survival action


   6
       In full:

          (a) Except as otherwise provided by statute, a cause of
          action for or against a person is not lost by reason of
          the person’s death, but survives subject to the
          applicable limitations period.

          (b) This section applies even though a loss or damage
          occurs simultaneously with or after the death of a
          person who would have been liable if the person’s
10               WHEELER V. CITY OF SANTA CLARA

can be maintained by the decedent’s “personal
representative” or “successor in interest.” The “successor in
interest” is defined as the beneficiary of the decedent’s estate
or “other successor in interest who succeeds to a cause of
action.” C.C.P. § 377.11. Adoption severs parent-child
relationships for purposes of intestate succession, as here.
Cal. Prob. Code § 6451. 7


            death had not preceded or occurred simultaneously
            with the loss or damage.

     7
         This statute provides that:

            (a) An adoption severs the relationship of parent and
            child between an adopted person and a natural parent
            of the adopted person unless both of the following
            requirements are satisfied:

            (1) The natural parent and the adopted person lived
            together at any time as parent and child, or the natural
            parent was married to or cohabiting with the other
            natural parent at the time the person was conceived
            and died before the person’s birth.

            (2) The adoption was by the spouse of either of the
            natural parents or after the death of either of the natural
            parents.

            (b) Neither a natural parent nor a relative of a natural
            parent, except for a wholeblood brother or sister of the
            adopted person or the issue of that brother or sister,
            inherits from or through the adopted person on the
            basis of a parent and child relationship between the
            adopted person and the natural parent that satisfies the
            requirements of paragraphs (1) and (2) of subdivision
            (a), unless the adoption is by the spouse or surviving
            spouse of that parent.
            WHEELER V. CITY OF SANTA CLARA                     11

    Both parties agreed that Wheeler was neither a personal
representative nor a successor in interest of Colbert, and thus
was barred from bringing claims on her behalf by
California’s survivorship statute. Wheeler claims, however,
that state survivorship law should not apply when the alleged
rights violation that is the subject of the suit caused the
decedent’s death, and cites Robertson v. Wegmann, 436 U.S.
584 (1978), for support. In Robertson, the Supreme Court
applied Louisiana’s survivorship law to a § 1983 action,
which caused the action to abate. Id. at 590–95 (“Under the
circumstances presented here, the fact that [plaintiff] was not
survived by one of several close relatives should not itself be
sufficient to cause the Louisiana survivorship provisions to
be deemed ‘inconsistent with the Constitution and laws of
the United States.’” (quoting 42 U.S.C. § 1988)). Wheeler
notes the Court explicitly “intimate[d] no view . . . about
whether abatement based on state law could be allowed in a
situation in which deprivation of federal rights caused
death,” which was not the case in Robertson. Id. at 594.

    Wheeler turns to Carlson v. Green, 446 U.S. 14 (1980),
for further support. There, the Supreme Court declined to
apply a state statute that would have barred survival of a
Bivens claim for a death allegedly caused by federal
officials. Id. at 23–25. The Court distinguished Robertson
on the bases that: (1) the Robertson decedent did not die as
a result of the alleged civil rights violation; and (2) § 1988
applied to the § 1983 action in Robertson but not to the
Bivens claims at issue in Carlson. Id. at 24 & n.11.
Additionally, in Chaudry v. City of Los Angeles, 751 F.3d
1096, 1103–05 (9th Cir. 2014), the Ninth Circuit held that

       (c) For the purpose of this section, a prior adoptive
       parent and child relationship is treated as a natural
       parent and child relationship.
12            WHEELER V. CITY OF SANTA CLARA

applying California law to prohibit the recovery of pain and
suffering damages was contrary to § 1983’s deterrence and
compensation policies and thus did not apply California law.
Wheeler cites several cases from other jurisdictions that
applied similar reasoning where recovery was limited or no
remedy was available to any survivors under state law. 8 In
the same vein, he submits that, because the alleged
constitutional violation caused the death of his biological
mother, California’s survival regime should not be applied
because it would abate Colbert’s Fourth Amendment and
Monell claims, and thus undermine the deterrence and
compensatory policies behind § 1983.

    We are unpersuaded by Wheeler’s arguments. As stated
in Robertson, which we determine is controlling here:

         Despite the broad sweep of § 1983, we can
         find nothing in the statute or its underlying
         policies to indicate that a state law causing
         abatement of a particular action should
         invariably be ignored in favor of a rule of
         absolute survivorship. . . . That a federal
         remedy should be available . . . does not
         mean that a § 1983 plaintiff (or his
         representative) must be allowed to continue
         an action in disregard of the state law to
         which § 1988 refers us. A state statute cannot
         be considered “inconsistent” with federal
         law merely because the statute causes the
         plaintiff to lose the litigation. If success of the
         § 1983 action were the only benchmark,

     8
     See Bass v. Wallenstein, 769 F.2d 1173 (7th Cir. 1985); McFadden
v. Sanchez, 710 F.2d 907 (2d Cir. 1983), cert. denied, 464 U.S. 961
(1983); Jaco v. Bloechle, 739 F.2d 239 (6th Cir. 1984).
            WHEELER V. CITY OF SANTA CLARA                 13

       there would be no reason at all to look to
       state law, for the appropriate rule would then
       always be the one favoring the plaintiff, and
       its source would be essentially irrelevant.
       But § 1988 quite clearly instructs us to refer
       to state statutes; it does not say that state law
       is to be accepted or rejected based solely on
       which side is advantaged thereby.

Robertson, 436 U.S. at 590, 593 (emphasis added). Wheeler
has proffered no subsequent authority or argument that
overcomes this teaching of the Supreme Court. We note that
we have previously applied state survivorship law to § 1983
actions where the decedent’s death was caused by the
alleged constitutional violation and allowed such claims to
abate. See, e.g., Hayes v. Cnty. of San Diego, 736 F.3d 1223,
1229 (9th Cir. 2013) (holding that decedent’s daughter failed
to properly allege that she was her father’s personal
representative or successor in interest under California law);
Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d
365, 369–70 (9th Cir. 1998) (noting that in § 1983 actions,
plaintiffs can assert Fourth Amendment claims on a
decedent’s behalf but have the burden of demonstrating that
state law authorizes them to do so and holding that the
district court did not err in dismissing the case for lack of
standing under Nevada law).

    Additionally, California’s survivorship law is expansive
– permitting either a personal representative or successor in
interest to bring a claim on behalf of a decedent – and thus
claims should rarely abate for lack of a proper plaintiff. See
Robertson, 436 U.S. at 591–92 (holding that, because few
people are not survived by one of the close relatives included
in Louisiana’s survivorship law and that the limitations
included in the statute were reasonable, none of § 1983’s
14          WHEELER V. CITY OF SANTA CLARA

policies would be undermined if the plaintiff’s action
abated). Indeed, Colbert’s claims could have been asserted
by a personal representative, had one been appointed
properly during the statute of limitations period. Therefore,
California’s survival statute is not inconsistent with § 1983
and applies to this action.

B. Wheeler Cannot Assert Colbert’s ADA and RA Claims.

    Unlike § 1983, Congress did not provide a scheme for
survivorship of ADA or RA claims after death. Santa Clara
contends that § 1988 should be applied and that the
California survivorship law should govern those claims.
Wheeler argues that because the text of § 1988 appears to
limit its application to specified civil rights laws – which do
not include the ADA or RA – § 1988 does not apply and that,
therefore, this court should use federal common law rather
than state law. Moreover, Wheeler contends that because
“remedial” claims survive under federal law and Colbert’s
ADA and RA claims are remedial, Colbert’s claims must
survive as well.

    It is a fundamental canon that where the “statutory text
is plain and unambiguous,” a court “must apply the statute
according to its terms.” Carcieri v. Salazar, 555 U.S. 379,
387 (2009). Further, the “doctrine of expressio unius est
exclusio alterius ‘as applied to statutory interpretation
creates a presumption that when a statute designates certain
persons, things, or manners of operation, all omissions
should be understood as exclusions.’” Silvers v. Sony
Pictures Entm’t, Inc., 402 F.3d 881, 885 (9th Cir. 2005) (en
banc) (quoting Boudette v. Barnette, 923 F.2d 754, 756–57
(9th Cir. 1991)). According to the text of 42 U.S.C.
§ 1988(a) itself, the provision applies to “civil and criminal
matters” brought under the “provisions of titles 13, 24, and
70 of the Revised Statutes,” which do not include the ADA
               WHEELER V. CITY OF SANTA CLARA                         15

and RA. 42 U.S.C. § 1988(a). 9 “If [the ADA or the RA] had
been contained within one of these three Titles, it would fall
within Section 1988(a). Of course, [they were] enacted
almost a century after the Revised Statutes. [They were]
never codified in its Titles 13, 24 or 70.” Revock v. Cowpet
Bay W. Condo. Ass’n, 853 F.3d 96, 106 (3d Cir. 2017).
Therefore, by its terms, § 1988(a) does not apply to the ADA
and RA.

    This conclusion is buttressed by the legislative history of
§ 1988. After Congress in 1874 amended § 1988 so that it
was generally applicable to Title “Civil Rights” of the
Revised Statutes – that is, the Reconstruction-era civil rights
statutes which are now 42 U.S.C. §§ 1981, 1982 and 1983 –
it never again amended 1988(a). Revock, 853 F.3d at 106–

   9
       According to the References in Text for § 1988(a):

          Title 13 of the Revised Statutes, referred to in subsec.
          (a), was in the original “this Title” meaning title 13 of
          the Revised Statutes, consisting of R.S. §§ 530 to
          1093. For complete classification of R.S. §§ 530 to
          1093 to the Code, see Tables.

          Title 24 of the Revised Statutes, referred to in subsec.
          (a), was in the original “Title ‘Civil Rights,’ ” meaning
          title 24 of the Revised Statutes, consisting of R.S.
          §§ 1977 to 1991, which are classified to sections 1981
          to 1983, 1985 to 1987, and 1989 to 1994 of this title.
          For complete classification of R.S. §§ 1977 to 1991 to
          the Code, see Tables.

          Title 70 of the Revised Statutes, referred to in subsec.
          (a), was in the original “Title ‘Crimes,’ ” meaning title
          70 of the Revised Statutes, consisting of R.S. §§ 5323
          to 5550. For complete classification of R.S. §§ 5323 to
          5550, see Tables.
16             WHEELER V. CITY OF SANTA CLARA

07. “Congress’ inaction with regard to Section 1988(a)
stands in contrast to its frequent amendment of Section
1988(b),” which was amended as recently as 2000 to add the
Religious Land Use and Institutionalized Persons Act of
2000 to the statutes enumerated in that subsection relating to
attorney’s fees. Id. at 107; see 42 U.S.C. § 1988,
Amendments.          In short, § 1988(a) explicitly and
unambiguously includes only certain civil rights statutes and
omits others, such as the ADA and RA. We hold, as have
other circuits 10 and some district courts 11 – including those
within the Ninth Circuit 12 – that a plain reading of the statute
     10
       See, e.g., Guenther v. Griffin Constr. Co., Inc., 846 F.3d 979, 982
(8th Cir. 2017) (holding that 42 U.S.C. § 1988 did not apply and that
survival of the action was governed by federal common law); Revock,
853 F.3d at 105 (3d Cir. 2017) (“[W]e conclude that Section 1988(a)
does not apply to the issue of whether a Fair Housing Act claim survives
the death of a party. Rather, we apply a uniform rule of federal common
law.”); Fleming v. U.S. Postal Service AMF O’Hare, 27 F.3d 259, 262
(7th Cir. 1994) (holding that the 42 U.S.C. § 1988(a) does not apply to
two modern civil rights statutes -- Title VII and the Rehabilitation Act of
1973 -- because “these statutes are not affected by 42 U.S.C. § 1988(a)”).
    11
       See, e.g., Kulling v. Grinders for Indus., Inc., 115 F. Supp. 2d 828,
845 (E.D. Mich. 2000) (declining to apply § 1988(a) because “the ADEA
lacks any provision analogous to § 1988, which expressly invites the
courts to look to state law where federal law is ‘deficient’”); Kettner v.
Compass Group USA., Inc., 570 F. Supp. 2d 1121, 1128 (D. Minn.
2008).
     12
       See, e.g., Lopez v. Regents of Univ. of Cal., 5 F. Supp. 3d 1106,
1118–20 (N.D. Cal. 2013) (holding that: (1) § 1988(a)’s text plainly and
unambiguously does not extend to Title IX actions; and (2) no evidence
supports an inference that § 1988(a)’s limitations are due to legislative
oversight in failing to update § 1988); Prescott v. Rady Children’s
Hosp.-San Diego, 265 F. Supp. 3d 1090, 1101 (S.D. Cal. 2017)
(following Lopez and determining that federal common law applies to
survival actions derived from the Affordable Care Act).
               WHEELER V. CITY OF SANTA CLARA                          17

leads to the conclusion that § 1988(a) does not extend to
laws unenumerated in its text. Therefore, we are in
agreement with Wheeler that because the ADA and RA are
not listed in § 1988(a), California’s survivorship law does
not govern his claims under those statutes.

    In so ruling, we have considered that some circuits do
apply § 1988(a) to civil rights statutes not explicitly listed.13
However, we are not persuaded by their doing so. None of
those opinions engage in any analysis of the actual statutory
language of § 1988(a). Rather, they proceed apparently
“under the unsupported assumption that it applies broadly to
any and all actions that could be characterized as sounding
in ‘civil rights.’” Lopez v. Regents of Univ. of Cal.,
5 F. Supp. 3d 1106, 1118 (N.D. Cal. 2013) (quoting Kettner
v. Compass Group USA., Inc., 570 F. Supp. 2d 1121, 1131–
32 (D. Minn. 2008)).

    Having determined that § 1988 does not apply to the
ADA and RA, we now address Wheeler’s further contention
that a uniform federal common law rule of survivorship

    13
        See, e.g., Slade for Estate of Slade v. U.S. Postal Serv., 952 F.2d
357, 360 (10th Cir. 1991) (holding that § 1988(a) governs survival of
Title VII actions); J.S. ex rel. Duck v. Isle of Wight Cnty. Sch. Bd.,
402 F.3d 468, 474 (4th Cir. 2005) (holding that because the RA is a civil
rights statute, § 1988 governs the applicable statute of limitations);
Holmes v. Texas A&M Univ., 145 F.3d 681, 684 (5th Cir. 1998) (holding
that § 1988(a) governs the selection of the applicable statute of
limitations for the ADA and RA); see also Hutchinson on Behalf of
Baker v. Spink, 126 F.3d 895, 898 (7th Cir. 1997) (“[W]hether by
incorporation through federal common law or more directly (a question
we need not resolve here), state law governs the survival of statutory
civil rights actions like the ADA claim asserted in Count II of the
complaint.”) (citing Slade, 952 F.2d at 360). These cases summarily
conclude that § 1988(a) applies to all civil rights legislation without
discussing the textual limitations of § 1988(a).
18          WHEELER V. CITY OF SANTA CLARA

should be applied. “As Congress has not provided statutory
guidance, we resolve the survival issue according to federal
common law,” Revock, 853 F.3d at 108, “when, as here,
there is no expression of contrary [Congressional] intent.”
Guenther, 846 F.3d at 982 (citation omitted). When
addressing a particular legislative gap, a federal court’s
determination whether to fashion a nationwide uniform
federal rule or to adopt state law as the federal rule of
decision “is a matter of judicial policy ‘dependent upon a
variety of considerations always relevant to the nature of the
specific governmental interests and to the effects upon them
of applying state law.’” United States v. Kimbell Foods,
Inc., 440 U.S. 715, 728 (1979) (quoting United States v.
Standard Oil Co., 332 U.S. 301, 310 (1947)) (discussing
how courts should “fill the interstices of federal
legislation”). “[S]tate law should not be incorporated where
doing so would ‘frustrate specific objectives of the federal
programs.’” Guenther, 846 F.3d at 982–83 (quoting Kamen
v. Kemper Fin. Servs., Inc., 500 U.S. 90, 98 (1991)).

    Courts have consistently applied a uniform federal law
to the survival of various federal claims. See Revock,
853 F.3d at 108–09 (discussing cases where courts applied a
uniform rule of survivorship to various types of federal
claims). We apply a uniform federal rule of survivorship
here as well, as “Congress declared its interest in passing the
ADA was to ‘provide a clear and comprehensive national
mandate’ with ‘clear, strong, consistent, [and] enforceable
standards’ to address the ‘serious and pervasive social
problem’ of disability-based discrimination on a case-by-
case basis.” Guenther, 846 F.3d at 983 (emphasis in
Guenther) (quoting 42 U.S.C. § 12101(a)(2), (b)(1)–(2)).
Likewise, the RA was enacted “to ensure that the Federal
Government plays a leadership role in promoting the
employment of individuals with disabilities, especially
            WHEELER V. CITY OF SANTA CLARA                19

individuals with significant disabilities,” in order “to
empower individuals with disabilities to maximize
employment, economic self-sufficiency, independence, and
inclusion and integration into society.” 29 U.S.C. § 701(b).

    With regard to the content of a uniform federal rule, we
note that under federal common law, federal claims typically
survive a decedent’s death if they are remedial in nature and
not penal. Ex parte Schreiber, 110 U.S. 76, 80 (1884) (“At
common law, actions on penal statutes do not survive.”);
Revock, 853 F.3d at 109; Kilgo v. Bowman Transp., Inc.,
789 F.2d 859, 876 (11th Cir. 1986); E.E.O.C. v. Timeless
Invests., Inc., 734 F. Supp. 2d 1035, 1056–57 (E.D. Cal.
2010); Lopez, 5 F. Supp. 3d at 1119–20 (“Claims for non-
economic compensatory damages in the form of pain and
suffering, emotional distress, and the like, are not punitive
and therefore survived [plaintiff]’s death.”). Here, the
purposes of the ADA and RA are remedial: the goals of both
acts were to promote the rights of disabled individuals and
to provide compensation when they experienced
discrimination. 42 U.S.C. § 12101; 29 U.S.C. § 701; see
also Guenther, 846 F.3d at 984 (discussing the ADA’s
“broad remedial purpose”). Therefore, the ADA and RA
compensatory claims do not abate due to Colbert’s death,
although the punitive claims do. See Guenther, 846 F.3d at
986 (citing Kettner, 570 F. Supp. 2d at 1133–34) (holding
that remedial ADA claims survive).

    That being said, Wheeler cannot bring his asserted ADA
and RA claims on behalf of Colbert. He has provided no
authority supporting the proposition that an individual
without a legal relationship to the decedent – such as an
adopted-out biological child – could bring survival claims
under a uniform federal law. Wheeler’s case stands in
marked contrast to others where the legal status of the
20            WHEELER V. CITY OF SANTA CLARA

familial relationship or the decedent’s estate was not
disputed, nor was their ability to bring any claims that
survived the decedent. 14 As Wheeler has provided no
support for his argument, we will refrain from expanding the
limits of who federal common law would permit to bring
suit. See Washington v. Glucksberg, 521 U.S. 702, 720
(1997). For these reasons, we affirm dismissal of the ADA
and RA claims.

C. Wheeler Cannot Assert Fourteenth Amendment Claims
   for Loss of Colbert’s Companionship.

    Wheeler states – and Santa Clara agrees – that no federal
case law addresses the Fourteenth Amendment liberty
interests of a decedent’s adopted-out biological child.
Wheeler contends, however, that his relationship with
Colbert can support a Fourteenth Amendment loss of
companionship claim. We are not persuaded by Wheeler’s
arguments.

    A decedent’s parents and children generally have the
right to assert substantive due process claims under the
Fourteenth Amendment. Hayes, 736 F.3d at 1229–30;
Moreland, 159 F.3d at 371. Even though state law typically
governs legal familial relationships – including the
inheritance of property, adoption, child custody, marriage,
and divorce – the Federal Constitution in some cases
supersedes state law and provides greater protection for

     14
        See, e.g., Guenther, 846 F.3d at 981 (special administrator of
decedent’s estate continuing ADA action on his behalf); Revock,
853 F.3d at 103 n.6 (personal representative substituted for deceased
plaintiff according to Fed. R. App. Proc. 43(a)); Kilgo, 789 F.2d at 864
(substitution of husband who was the personal representative of
decedent’s estate); Prescott, 265 F. Supp. 3d at 1100 (permitting mother
to bring Title IX claims as her decedent child’s representative).
            WHEELER V. CITY OF SANTA CLARA                   21

certain family relationships. Lehr v. Robertson, 463 U.S.
248, 256–58 (1983) (discussing the Fourteenth Amendment
rights of an unwed biological father); see also Smith v.
Fontana, 818 F.2d 1411, 1419 (9th Cir. 1987) (holding that
loss of companionship claims can be asserted even after a
child reaches the age of majority), overruled on other
grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037,
1040 n.1 (9th Cir. 1999). In the context of parent-child
relationships specifically, the Supreme Court has
emphasized that the rights of parents are a counterpart of the
responsibilities they have assumed: “the mere existence of a
biological link does not merit equivalent constitutional
protection.” Lehr, 463 U.S. at 261. Judicially enforceable
Fourteenth Amendment interests require enduring
relationships reflecting an assumption of parental
responsibility and “stem[] from the emotional attachments
that derive from the intimacy of daily association, and from
the role it plays in promoting a way of life through the
instruction of children.” Id. at 256–61; see also Kirkpatrick
v. Cnty. of Washoe, 843 F.3d 784, 789 (9th Cir. 2016)
(discussing the Fourteenth Amendment rights of an unwed
biological father). Although case law mostly addresses this
issue from the perspective of the parent’s rights rather than
the child’s, children’s Fourteenth Amendment rights to
companionship with their parents have been interpreted as
reciprocal to their parents’ rights. Fontana, 818 F.2d at
1418–19; see also Hayes, 736 F.3d at 1229. In sum, even
biological parents must maintain consistent involvement in
a child’s life and participation in child-rearing activities for
their relationship to be entitled to the Fourteenth
Amendment protections at issue here.

    In this case, Colbert surrendered Wheeler for adoption as
an infant – choosing to legally sever her relationship with
him and to give up all rights and responsibilities related to
22          WHEELER V. CITY OF SANTA CLARA

his care – and he was adopted by other parents. In his
complaint, Wheeler asserts that he had a “close relationship
with Ms. Colbert during part of his childhood and throughout
his adult life.” That allegation is not sufficient to support a
loss of companionship claim in the case before us. Few close
relationships – even between blood relatives – can serve as
a basis for asserting Fourteenth Amendment loss of
companionship claims. See Ward v. City of San Jose,
967 F.2d 280, 284 (9th Cir. 1991) (finding siblings could not
maintain a claim for loss of their brother’s companionship).
Wheeler does not allege that Colbert raised him, otherwise
resumed responsibility for his upbringing, or even
maintained consistent contact with him during his
childhood. See Lehr, 463 U.S. at 261–62 (holding that
biological father’s failure to have significant custodial,
personal, or financial relationship with his daughter and to
pursue legal ties to her until she reached age two meant that
he was not entitled to full Fourteenth Amendment protection
of his relationship with her).

    Without citation to any authority, Wheeler asserts that in
light of evolving parenting and childrearing arrangements,
this court should find that his relationship with Colbert
constitutes a foundation for a loss of companionship claim
despite his adoption as an infant. We decline that invitation.
In doing so, we acknowledge that there has been an
evolution in both adoption practices and “non-traditional”
relationships and that the appropriate case may net a
different result. We confine our holding to the case before
us, arising from the particular nature of Wheeler and
Colbert’s relationship as alleged. Questions concerning all
adopted-out children or those raised in non-traditional
family arrangements are not before us today. Nor should this
opinion be read to foreclose a case involving a true parent-
            WHEELER V. CITY OF SANTA CLARA                  23

child relationship in a different context where a
constitutionally protected right may exist.

    In short, the relationship between Colbert and Wheeler,
as alleged here, did not have the structure of parental
relationships protected by the Fourteenth Amendment. See
Smith v. Org. of Foster Families for Equal. & Reform,
431 U.S. 816, 844–45 (1977) (emphasizing “the role
[parenting] plays in promoting a way of life through the
instruction of the children”) (citation and internal quotation
marks omitted); Glona v. Am. Guar. & Liab. Ins. Co.,
391 U.S. 73, 74–75 (1968) (holding that mother could
recover for wrongful death of illegitimate, dependent child);
Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“The private
interest here, that of a man in the children he has sired and
raised, undeniably warrants deference and, absent a
powerful countervailing interest, protection.” (emphasis
added)). Wheeler failed to state a viable claim under the
Fourteenth Amendment for loss of companionship with
Colbert, and thus the district court’s determination of this
issue is affirmed.

D. The District Court Did Not Abuse Its Discretion by
   Denying Leave to Amend.

    Wheeler contends that the district court abused its
discretion when it refused to grant leave to amend the
complaint. He argues that denying him the opportunity to
open an estate in probate, name a representative, and replace
the “John Doe 1” personal representative with the newly
appointed one is erroneous because the personal
representative of Colbert’s estate would be a proper plaintiff.
Furthermore, Wheeler alleges that the court did not discuss
the request for leave to amend the complaint in its order.
24          WHEELER V. CITY OF SANTA CLARA

    We do not discern merit in Wheeler’s contention; the
court did discuss the request for leave to amend the
complaint in its order, stating that the request was denied as
futile. Leave to amend may be denied if the proposed
amendment is futile or would be subject to dismissal.
Carrico v. City and Cnty. of San Francisco, 656 F.3d 1002,
1008 (9th Cir. 2011). In survival actions, plaintiffs have the
burden to prove proper standing. See Hayes, 736 F.3d at
1228–29.

    Even assuming arguendo that Wheeler could have been
appointed the personal representative, he was not Colbert’s
personal representative at the time of dismissal. Further,
Wheeler provides no authority that suggests a “John Doe,”
as yet nonexistent personal representative plaintiff can serve
as a placeholder for hypothetical proper plaintiffs.

    In any event, the newly named personal representative
would be a new party for purposes of the relation-back
doctrine, and relating back would be time-barred. Because
§ 1983 has no specific statute of limitations, federal courts
borrow state statute of limitations for personal injury actions.
Lukovsky v. City and Cnty. of San Francisco, 535 F.3d 1044,
1048 (9th Cir. 2008) (citing Taylor v. Regents of Univ. of
Cal., 993 F.2d 710, 711 (9th Cir. 1993)) (borrowing
California’s statute of limitations for personal injury actions
in § 1983 suits). Because California’s statute of limitations
for personal injury actions is two years, it would have been
too late for the newly appointed personal representative to
assert claims on Colbert’s behalf under California law.
C.C.P. § 335.1; see MacEachern v. City of Manhattan
Beach, 623 F. Supp. 2d 1092, 1101–02 (C.D. Cal. 2009)
(plaintiff’s survival action in §1983 case was time-barred
where she had not perfected her representative capacity to
bring the survival claim and the limitations period had lapsed
               WHEELER V. CITY OF SANTA CLARA                          25

in the interim). 15 Thus, amending the complaint would have
been futile. For these reasons, the district court did not abuse
its discretion in denying leave to amend.

                           CONCLUSION

    California’s survival statute is consistent with 42 U.S.C.
§ 1983, and thus applies to the instant action. As Wheeler
indisputably does not meet the requirements for standing
under California law, he cannot assert § 1983 claims on
behalf of Colbert. Further, although federal common law
applies to the ADA and RA claims, Wheeler is still not an
appropriate plaintiff for a survival action based on those
laws. Wheeler also cannot bring a claim for loss of
companionship with Colbert because they did not have the
kind of parent-child relationship entitled to this type of
constitutional protection. Finally, because no proper
plaintiff existed at the time of the district court’s ruling,
denying leave to amend the complaint was not an abuse of
discretion. Therefore, we affirm the district court’s decision.

    AFFIRMED.




    15
        Wheeler contends that MacEachern is distinguishable because
that plaintiff was only bringing suit in her individual capacity. While the
plaintiff in that case had failed to properly plead her representative
capacity and had not complied with California’s procedural requirements
for establishing that she was the decedent’s successor in interest, she was
pursuing Fourth Amendment survival claims and the MacEachern court
analyzed her standing in that light. MacEachern, 623 F. Supp. 2d at
1101–02. Thus, the case is on point.
26          WHEELER V. CITY OF SANTA CLARA

WARDLAW, Circuit Judge, concurring in opinion:

    While Wheeler does not and cannot allege a viable claim,
I wish to emphasize what this opinion does not hold. We do
not hold that no adopted-out child could prove he had a
protected interest in his relationship with his biological
parent under the Fourteenth Amendment. We no longer live
in a world of conventional families with two heterosexual
parents and only one mother. Some children have two
mothers in a same-sex marriage; some children have two
mothers because their heterosexual parents got divorced and
remarried; and in fact, there are some children who have
even more than two mothers. The intimate relationship
between a parent and child is not limited by number; it is a
practice, dependent on intimacy and association over time.
Whether we approve or disapprove of these developing
alternative family structures is irrelevant. There is no reason
why an adopted-out child could not have had a “deeply
loving and interdependent relationship” with both his
adoptive and his biological mother under other
circumstances. Spielman v. Hildebrand, 873 F.2d 1377,
1384 (10th Cir. 1989) (quoting Smith v. Org. of Foster
Families For Equal. & Reform, 431 U.S. 816, 844 (1977)
(“OFFER”)).

    As the Supreme Court has said, “the importance of the
familial relationship, to the individuals involved and to the
society, stems from the emotional attachments that derive
from the intimacy of daily association, and from the role it
plays in promoting a way of life through the instruction of
children, as well as from the fact of blood relationship.”
OFFER, 431 U.S. 816, 844 (1977) (quoting Wisconsin v.
Yoder, 406 U.S. 205, 231–33 (1972)) (original alterations
omitted). The Fourteenth Amendment is not constrained by
state laws governing legal relationships. Instead, it is the
            WHEELER V. CITY OF SANTA CLARA                   27

actual relationship that society recognizes as worthy of
respect and protection, that animates the constitutional
claim. Lehr v. Robertson, 463 U.S. 248, 259–62 (1983). In
an earlier era, our law focused on legal formalities before
actual relationships. For example, the fathers of illegitimate
children once lacked secure, constitutionally recognized
rights. Homer H. Clark, The Law of Domestic Relations in
the United States, § 21.2 (2d ed. 1987); see also Stanley v.
Illinois, 405 U.S. 645, 657–58 (1972).

    That was yesterday. The moral consensus that insisted
on confining procreation within marriage has dissipated
along with traditional notions of parent and child. And both
the Supreme Court and the Circuit Courts have expanded
familial protections based on the special, intimate and loving
relationship between parent and child. Glona v. Am.
Guarantee & Liab. Ins. Co., 391 U.S. 73, 74–75 (1968);
Stanley, 405 U.S. at 651; Moore v. City of East Cleveland,
431 U.S. 494 (1977) (extending Supreme Court principles
protecting the parental role in raising children to protect a
broader set of relationships within the family structure and
invalidating under substantive due process a zoning
ordinance preventing grandmother and grandson from living
together in certain circumstances); Strandberg v. City of
Helena, 791 F.2d 744 (9th Cir. 1986) (holding that parents
have constitutional rights to loss of companionship of adult
children); Spielman, 873 F.2d at 1385 (holding that pre-
adoptive parents have a sufficient liberty interest to be
afforded some level of due process protection). “This
principle rests on a practical recognition that biology and
association can together establish a relationship between
father and child that may be essential to the happiness of
both,” even if the formality of a legal relationship is missing.
Pena v. Mattox, 84 F.3d 894, 899 (7th Cir. 1996).
28          WHEELER V. CITY OF SANTA CLARA

    As we noted, the loss of companionship under the
Fourteenth Amendment applies as equally to a child’s loss
of a parent as it does to a parent’s loss of a child. Smith v.
City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987),
overruled on other grounds by Hodgers-Durgin v. de la
Vina, 199 F.3d 1037 (9th Cir. 1999); see Curnow By &
Through Curnow v. Ridgecrest Police, 952 F.2d 321, 325
(9th Cir. 1991). In fact, in Smith, we reasoned that a child’s
interest is likely stronger than a parent’s interest because
parents can have more biological children whereas children
cannot have more than one set of biological parents. Smith,
818 F.2d at 1418 n.10. The cases that exclude other blood
relatives from asserting a Fourteenth Amendment claim for
loss of companionship do not preclude biological parents or
children from asserting this claim. See Ward v. City of San
Jose, 967 F.2d 280, 283–84 (9th Cir. 1991) (siblings do not
have a constitutional right to loss of companionship).

    Thus, in holding that Wheeler does not have a protected
interest, we conclude only that he was unable to demonstrate
that he had a protected relationship with his mother.
