Sergio Momox-Caselis v. Tara Donohue

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SERGIO MOMOX-CASELIS, No. 19-15126

individually, as Guardian Ad Litem,

and as Special Administrator of the D.C. No.

estate of M.M. on behalf of Maria 2:16-cv-00054-

Momox-Caselis, APG-GWF

Plaintiff-Appellant,

and OPINION

MARIA MOMOX-CASELIS; NICOLASA

HERNANDEZ, as Special

Administrator of the estate of M.M.;

KRISTIN WOODS, Co-Special

Administrator of the Estate of M.M.,

Plaintiffs,

v.

TARA DONOHUE; LISA RUIZ-LEE;

KIM KALLAS; JEREMY LAW;

SHUUANDY ALVAREZ; LANI AITKEN;

OSCAR BENAVIDES; PATRICIA

MEYERS; COUNTY OF CLARK, a

political subdivision of the State of

Nevada,

Defendants-Appellees,

and

2 MOMOX-CASELIS V. DONOHUE

IRENE KOZIKI; CLARK COUNTY

DEPARTMENT OF FAMILY SERVICES;

ESTATE OF JOAQUIN JUAREZ-PAEZ;

BETH ANN NELSON; JOAQUIN

JUAREZ-PAEZ; MAIRA JUAREZ-PAEZ,

Defendants.

Appeal from the United States District Court

for the District of Nevada

Andrew P. Gordon, District Judge, Presiding

Argued and Submitted September 15, 2020

San Francisco, California

Filed February 3, 2021

Before: J. Clifford Wallace, Bridget S. Bade, and

Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Wallace

MOMOX-CASELIS V. DONOHUE 3

SUMMARY *

Civil Rights

The panel affirmed the district court’s summary

judgment in favor of individual employees of the Clark

County Department of Family Services and the County in an

action brought pursuant to 42 U.S.C. § 1983 and state law

alleging defendants wrongfully removed plaintiffs’ infant

daughter, M.M., from plaintiffs’ home, wrongfully removed

M.M. from her foster mother’s home, and then placed her in

a neglectful foster home that caused her death.

The panel first held that plaintiffs waived several

appellate arguments. Plaintiffs waived issues pertaining to

the district court’s denial of their request for leave to amend

their Second Amended Complaint and their countermotion

for summary judgment by failing to challenge the rulings in

their opening brief. Plaintiffs waived their claim alleging a

failure to train social workers or supervisors by failing to

argue the issue in opposition to the County’s summary

judgment motion or in their opening brief. Plaintiffs waived

their argument that defendant social worker Law was not

entitled to discretionary act immunity under Nevada law

because the argument was inconsistent with their prior

concession in district court. The panel therefore affirmed the

district court’s grant of discretionary act immunity to

defendant Law.

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 MOMOX-CASELIS V. DONOHUE

The panel affirmed the district court’s summary

judgment in favor of employees Ruiz-Lee and Donahue on

plaintiffs’ claim that they failed to train and supervise social

workers. Plaintiffs had failed to identify the procedures that

Ruiz-Lee or Donahue allegedly failed to follow and the

panel further noted that Donahue was not listed as a

defendant in the third claim of the Second Amended

Complaint alleging failure to train pursuant to § 1983. The

panel determined that plaintiffs’ assertion that the County

was liable for ratifying questionable Department policies

was waived because plaintiffs failed to present argument or

cite evidence in the record to support the argument.

The panel held that plaintiffs failed to present a genuine

dispute that M.M. was wrongfully removed from their home

or that defendants acted with deliberate indifference. The

panel noted that the County provided voluminous records of

the Department’s rigorous licensing and training policies

that foster parents had to complete. The panel further held

that neither the “special relationship” or the “state-created

danger” exceptions applied to overcome the hurdle that the

Due Process Clause does not confer an affirmative right to

governmental aid or impose a duty on the state to protect

individuals from third parties. The panel concluded that

plaintiffs’ arguments relied on supposition and a

mischaracterization of the evidence, while the County

presented voluminous evidence to refute plaintiffs’ claims.

Finally, the panel held that the district court properly

decided the question of causation for the state negligence

claim as a matter of law rather than a matter of fact. As for

the wrongful death claim, plaintiffs addressed it in the

section title but did not cite any facts in the record or present

argument relating to the claim. The claim was therefore

waived.

MOMOX-CASELIS V. DONOHUE 5

In concurrently filed orders, the panel denied plaintiffs’

motion to supplement the record, but granted the motion to

seal the proposed supplemental record because the testimony

in the full deposition transcripts included information

relating to minor children.

COUNSEL

Adam Ganz (argued), and Marjorie Hauf, Ganz & Hauf, Las

Vegas, Nevada, for Plaintiffs-Appellants.

Felicia Galati (argued), Olson Cannon Gormley & Stoberski,

Las Vegas, Nevada, for Defendants-Appellees.

OPINION

WALLACE, Circuit Judge:

Sergio Momox-Caselis, Maria Momox-Caselis, and the

special administrators of M.M.’s estate (collectively, the

Momox-Caselis family) appeal from the district court’s

summary judgment in favor of individual employees of the

Clark County Department of Family Services (Department)

and the County (collectively, the County). Sergio and Maria

Momox-Caselis are the natural parents of deceased infant

M.M. The Department removed M.M. and her siblings from

their home in 2013 based on long-term neglect by the

parents. The County removed M.M. from her initial

placement after receiving a report that the foster parents had

abused another foster child, and it placed M.M. with new

foster parents, Joaquin and Maira Juarez-Paez (collectively,

the Juarez-Paez family). A few months after her new

placement, M.M. died from an overdose of allergy

6 MOMOX-CASELIS V. DONOHUE

medication administered by her foster father. Joaquin

Juarez-Paez committed suicide shortly thereafter, and his

suicide note stated that he had accidentally killed M.M.

The Momox-Caselis family sued Joaquin Juarez-Paez’s

estate, Maira Juarez-Paez, and various County officials

involved in the foster care system in Nevada state court. The

action was removed to federal district court pursuant to

28 U.S.C. § 1441 based on federal question jurisdiction due

to the inclusion of federal claims in the Momox-Caselis

family’s complaint. The Momox-Caselis family amended

its complaint twice, and it stipulated to the dismissal of

Joaquin Juarez-Paez’s estate, Maira Juarez-Paez, and

M.M.’s Department caseworker Irene Koziki from the

action. The Momox-Caselis family alleges M.M. was

wrongfully removed from its home, wrongfully removed

from her initial foster mother’s home, and placed in a

neglectful foster home that caused her death, in violation of

state and federal law, including the Due Process Clause.

After extensive discovery, the County moved for

summary judgment on all counts. The County argued that:

(1) it was necessary to remove M.M. from both her natural

parents and her initial foster home due to allegations against

each family of neglect and abuse; (2) the County had

properly trained its Department officials, and the Momox-

Caselis family could not identify inadequate training; (3) it

had properly trained and licensed the Juarez-Paez family;

(4) it had properly placed M.M. with the Juarez-Paez family;

(5) it had adequate policies in place to ensure the safety of

the children under the Department’s care, and the Momox-

Caselis family could not identify a specific policy that was

deficient; and (6) the Department had exercised adequate

supervision over M.M. and the Juarez-Paez family.

MOMOX-CASELIS V. DONOHUE 7

The Momox-Caselis family responded with its own

motion for partial summary judgment, as well as a request to

amend the complaint. The Momox-Caselis family

maintained that there were genuine disputes of material facts

and disagreed with portions of the County’s Statement of

Undisputed Facts. The district court denied the Momox-

Caselis family’s motion to amend as futile, granted the

County’s summary judgment motion, and held that the

Momox-Caselis family had failed to present evidence to

support its claims. The district court also held that while the

special relationship or state-created danger doctrine in

relation to the due process claim could apply, there was not

a genuine dispute of material fact that would rise to the level

of deliberate indifference by the County. As for the

remaining failure to train claim and state negligence claims,

the district court held that the Momox-Caselis family failed

to present evidence of failure to train, negligently created

policies, or skewed reporting, and the County was entitled to

discretionary act immunity. The Momox-Caselis family

appeals from the summary judgment.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

Reviewing the district court’s summary judgment de novo,

Sandoval v. Cty. of Sonoma, 912 F.3d 509, 515 (9th Cir.

2018), we affirm.

I.

The Department removed M.M. and her siblings from

their home in 2013 based on long-term neglect by their

natural parents. After, a state court judge in the County’s

Family Division approved the removal. The Department first

placed M.M. with the Hernandez family. The Hernandez

family had previously adopted foster children, and it was

fostering another child in addition to M.M. The Hernandez

family had been licensed to foster children for several years,

8 MOMOX-CASELIS V. DONOHUE

but they also had a long history of licensing issues, reports,

and complaints. In May 2014, M.M.’s foster brother

reported to the Department that their foster father was

physically abusive with the children and often used his hands

or a belt for discipline. The Department removed M.M. from

the Hernandez home, and the Hernandez family’s license

was eventually revoked.

In June 2014, the County placed M.M. in the only

available foster home. Maira and Joaquin Juarez-Paez, new

foster parents, took M.M. into their home with their foster

son. The Juarez-Paez family had received a license to foster

children in May 2014. Maira took care of the children in the

evening, while Joaquin took care of them during the day.

Social workers visited approximately once a month to check

on M.M. and to ensure that the Juarez-Paez home continued

to be a safe environment. Yet in the last two to three weeks

of M.M.’s life, Joaquin struggled with his underlying health

issues, and he required more assistance from Maira. On

M.M.’s final day in October 2014, Joaquin gave her too

much of her allergy medicine, and she died from the

overdose. Joaquin committed suicide shortly thereafter. The

County eventually returned the remaining Momox-Caselis

children to their natural parents.

II.

We review summary judgments de novo. Sandoval,

912 F.3d at 515. Summary judgment is appropriate if there

is no genuine dispute of material fact, and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

However, if the nonmoving party contests summary

judgment, the alleged factual dispute must be both genuine

and material to the nonmoving party’s claims. See id. We

view justifiable inferences in the light most favorable to the

nonmoving party; however, the nonmoving party “may not

MOMOX-CASELIS V. DONOHUE 9

rest upon mere allegations or denials of [its] pleading.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)

(citations omitted); Fed. R. Civ. P. 56(e).

Therefore, the existence of “some alleged factual dispute

between the parties will not defeat an otherwise properly

supported motion for summary judgment.” Liberty Lobby,

Inc., 477 U.S. at 247–48 (emphasis omitted). The

nonmoving party must produce specific facts, by affidavit or

other evidentiary materials, to show that there is a genuine

issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(c)(1).

“Only disputes over facts that might affect the outcome of

the [action] under the governing law will properly preclude

the entry of summary judgment” for purposes of materiality.

Liberty Lobby, Inc., 477 U.S. at 248. An issue is genuine if

“a reasonable jury could return a verdict for the nonmoving

party.” Id.

III.

The Momox-Caselis family has waived several appellate

arguments. These arguments were either not raised before

the district court, are inconsistent with positions employed

there, or are presented without argument.

Generally, we do not consider arguments raised for the

first time on appeal. Smith v. Marsh, 194 F.3d 1045, 1052

(9th Cir. 1999). This rule is subject to three exceptions:

(1) there are exceptional circumstances why the issue was

not raised in the trial court; (2) the new issue arises while the

appeal is pending because of a change in the law; or (3) the

issue presented is a pure question of law and the opposing

party will suffer no prejudice as a result of the failure to raise

the issue in the trial court. Raich v. Gonzales, 500 F.3d 850,

868 (9th Cir. 2007). We have also held that a cursory

10 MOMOX-CASELIS V. DONOHUE

mention of an issue in a footnote without citation to legal

authority is insufficient for purposes of appellate

consideration, United States v. Strong, 489 F.3d 1055, 1060

n. 4 (9th Cir. 2007), as are matters not specifically and

distinctly raised and argued in the opening brief, Padgett v.

Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).

The Momox-Caselis family did not raise several issues

with the district court that it now offers to us or it has

modified its arguments to account for the district court’s

summary judgment. First, its appeal does not present

argument regarding the district court’s denial of its request

to amend nor its countermotion for summary judgment. The

Momox-Caselis family sought leave to amend its Second

Amended Complaint to correct its first claim’s erroneous

reliance on the Fifth Amendment rather than the Fourth

Amendment. The district court rejected the request as futile

in its summary judgment order, although it nonetheless

considered the substantive argument as if it had been raised

pursuant to the Fourth Amendment. The Momox-Caselis

family did not challenge this ruling in its opening brief, and

this issue is, therefore, waived.

Second, the third claim in the Second Amended

Complaint alleges a failure to train social workers or

supervisors. As in the district court, the Momox-Caselis

family does not identify the alleged deficiencies in the

Department’s training of its social workers or supervisors.

The Momox-Caselis family did not argue that the County

failed to train its social workers and supervisors in its

opposition to the County’s summary judgment motion, and

it did not argue the issue in its opening brief. Consequently,

the Momox-Caselis family waived appeal of the district

court’s ruling on the third claim.

MOMOX-CASELIS V. DONOHUE 11

Third, in response to the district court’s ruling on their

state law claims, the Momox-Caselis family modified the

nature of its claims against several defendants, as discussed

below. The fourth claim in the Second Amended Complaint

alleges various claims of negligence relating to M.M.’s

placement and supervision in the Juarez-Paez home. The

Department asserted that they were entitled to discretionary

act immunity under Nevada law. See Nev. Stat. § 41.032.2;

Ransdell v. Clark Cnty., 192 P.3d 756, 762 (Nev. 2008) (en

banc). In the district court, the Momox-Caselis family

conceded that “a large part of Law’s investigation and

recommendations [were] discretionary in nature.” Yet it

argued that he “skewed” his investigative findings that led to

M.M.’s removal from the initial foster family’s home and

that doing so was not discretionary. The district court held

that Law was entitled to discretionary act immunity.

In this court, the Momox-Caselis family argues that Law

is not entitled to discretionary act immunity because

gathering information and preparing a recommendation

were ministerial tasks and did not involve policy

considerations. This argument is inconsistent with their

prior concession in district court. We, therefore, hold that

this argument has been waived because it was not presented

to the district court, and we affirm the district court’s grant

of discretionary act immunity to Law.

The Momox-Caselis family has also changed its

argument regarding its state law claims related to training

County employees. In the district court, the Momox-Caselis

family argued that discretionary act immunity did not apply

to County director Lisa Ruiz-Lee and licensing manager

Tara Donohue because they created policy for the

Department. The district court granted summary judgment

in favor of Ruiz-Lee and Donohue, not on the ground of

12 MOMOX-CASELIS V. DONOHUE

discretionary act immunity, but because of the lack of

“argument or evidence” as to “what these defendants

allegedly did wrong.” On appeal, the Momox-Caselis family

refocuses its argument to Ruiz-Lee’s and Donohue’s alleged

failure to train and supervise social workers. Yet it again

fails to identify the procedures that Ruiz-Lee or Donohue

failed to ensure the social workers, including Defendant

Law, followed. Moreover, Donohue is not listed as a

defendant in the third claim of the Second Amended

Complaint alleging failure to train pursuant to § 1983. Thus,

we affirm the district court’s grant of summary judgment in

favor of Ruiz-Lee and Donohue.

Finally, in connection with their claim that the

Department was deliberately indifferent to M.M.’s safety

and well-being, for the first time on appeal the Momox-

Caselis family asserts that the County is liable because it

ratified questionable Department policies and procedures.

However, it fails to present argument or cite evidence in the

record to support the assertion. Thus, the ratification

argument is waived.

Ultimately, the Momox-Caselis family’s reply to the

various waiver issues did not list an exception to the waiver

rule or present any argument.

IV.

The Second Amended Complaint alleges civil rights

violations pursuant to 42 U.S.C. § 1983 (claims one, two,

and three), negligence (claims four and five), and wrongful

death (claim six). The Momox-Caselis family argues that

the district court erred because it decided questions of fact as

matters of law. However, each of the Momox-Caselis

family’s asserted factual disputes are either resolved by the

record or are insufficient to create a genuine dispute of

MOMOX-CASELIS V. DONOHUE 13

material fact on its claims. As discussed above, the Momox-

Caselis family’s third claim of failure to train has been

waived whereas its fifth claim of state-law negligence was

effectively dismissed when it stipulated to the dismissal of

Maira Juarez-Paez and Joaquin’s estate from its action.

Accordingly, only four claims remain. We next affirm the

district court’s ruling on the remaining claims.

A.

The Momox-Caselis family’s first section 1983 claim

alleges that Clark County violated the Momox-Caselis

family’s Fifth and Fourteenth Amendment rights when the

Department seized their children, including M.M., “without

warning and without any immediate threat from Plaintiffs.”

In the district court, the County characterized this claim as

based on M.M.’s seizure and argued such a claim is properly

based on the Fourth rather than the Fifth Amendment. The

County did not mention the Fourteenth Amendment claim.

Yet the district court granted summary judgment in favor of

the County because the district judge concluded it “pointed

out an absence of evidence to support the plaintiff’s first

claim.” The district court further found that the Momox-

Caselis family did not identify the applicable law, explain

how the County violated either M.M.’s parents’ Fourteenth

Amendment rights or M.M.’s Fourth Amendment rights, or

cite any evidence that would raise a genuine dispute about

the propriety of the County’s actions.

“The Fourteenth Amendment guarantees that parents

will not be separated from their children without due process

of law except in emergencies.” Mabe v. San Bernadino

Cnty. Dep’t. of Public Soc. Servs., 237 F.3d 1101, 1107 (9th

Cir. 2001). “[T]he state may not remove children from their

parents’ custody without a court order unless there is

specific, articulable evidence that provides reasonable cause

14 MOMOX-CASELIS V. DONOHUE

to believe that a child is in imminent danger of abuse.”

Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000).

Whether reasonable cause to believe exigent circumstances

existed, “and the related questions, are all questions of fact

to be determined by a jury.” Wallis, 202 F.3d at 1138 (citing

McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984)).

“Summary judgment in favor of the defendants is improper

unless, viewing the evidence in the light most favorable to

the plaintiffs, it is clear that no reasonable jury could

conclude that the plaintiffs’ constitutional rights were

violated.” Id.

On appeal, the Momox-Caselis family argues that

summary judgment on its first claim was improper because

whether M.M. was appropriately removed from her family

has “hardly been established as a matter of law.” However,

as in the district court, the Momox-Caselis family again fails

to identify the applicable law. Additionally, the Second

Amended Complaint alleges a Fourteenth Amendment

violation based on M.M.’s removal from her natural parents,

but it does not allege any facts related to her removal from

that home. Furthermore, on appeal, the Momox-Caselis

family still fails to identify any facts related to M.M.’s

removal from her natural parents’ home.

The County argues that the Department “appropriately

removed” M.M. from her parents’ home due to neglect

because Maria left the children, aged two to twelve,

unsupervised at least twice when Sergio was out of town.

They also cite the Family Division judge’s decision granting

the Department custody of the children. However the

parties’ briefing does not address the legal authority that

governs the Momox-Caselis family’s Fourteenth

Amendment claim. It does not address whether the way she

was removed comported with due process. Even if the state

MOMOX-CASELIS V. DONOHUE 15

family court found the removal itself appropriate, the

briefing does not explain why that decision necessarily

means that the way the children were removed from the

home complied with due process.

The Momox-Caselis family, therefore, fails to present a

genuine dispute that M.M. was wrongfully removed from its

home. We hold that its first section 1983 claim fails.

B.

Their second section 1983 claim is asserted against all

defendants and alleges that Department official policy or

longstanding unofficial practice led to due process violations

against M.M., namely: (1) the improper licensure of the

Juarez-Paez family; (2) improper placement of M.M. into its

custody; and (3) failure to supervise the placement. These

assertions go against the record, and the Momox-Caselis

family does not point to a specific Department policy or

practice that violated M.M.’s due process rights. Also, it has

inconsistently argued that the Department did not follow its

policies and failed to discipline employees who flouted

policies. As a result, the Momox-Caselis family does not

present a viable Monell claim against the County. See

Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S.

658, 691 (1978). Instead, the County provided voluminous

records of the Department’s rigorous licensing and training

process that the Juarez-Paez parents had to complete before

obtaining their license to foster children. While there may

be factual disputes on some narrow issues, they are not

genuine disputes of material fact that would save the second

section 1983 claim from summary judgment.

16 MOMOX-CASELIS V. DONOHUE

1.

Most importantly, the Momox-Caselis family fails to

prove that the Department acted with deliberate indifference.

The Momox-Caselis family contended that either the

“special relationship” exception or the “state-created

danger” exception applies to overcome the hurdle that the

Due Process Clause does not confer an affirmative right to

governmental aid or impose a duty on the state to protect

individuals from third parties. See Kent Sch. Dist., 648 F.3d

at 971 (citation omitted). We hold that neither exception

applies under the facts of this appeal.

The “special relationship” exception applies when there

is a custodial relationship between the plaintiff and the State,

such that the State assumes some responsibility for the

plaintiff’s safety and well-being. Id. The exception applies

to children in foster care. Tamas v. Dep’t of Soc. & Health

Servs., 630 F.3d 833, 844–47 (9th Cir. 2010) (clarifying that

the proper standard for determining whether a foster child’s

due process rights have been violated is “deliberate

indifference”). To qualify for the exception under the

deliberate indifference standard, the Momox-Caselis family

must prove: (1) there was an objectively substantial risk of

harm; (2) the Department was subjectively aware of facts

from which an inference could be drawn that a substantial

risk of serious harm existed; and (3) the Department either

actually drew that inference or a reasonable official would

have been compelled to draw that inference. Id. at 845.

Deliberate indifference is “a stringent standard of fault,

requiring proof that a municipal actor disregarded a known

or obvious consequence of his action.” Connick v.

Thompson, 563 U.S. 51, 61 (2011) (citation omitted).

The “state-created danger” exception is available when

the State “affirmatively places the plaintiff in danger by

MOMOX-CASELIS V. DONOHUE 17

acting with ‘deliberate indifference’ to a ‘known and

obvious danger.’” Kent Sch. Dist., 648 F.3d at 971–72

(citation omitted). To establish that the Department

affirmatively placed M.M. in danger, the Momox-Caselis

family must demonstrate that: (1) the Department took

affirmative actions that placed M.M. in danger she otherwise

would not have faced; (2) the danger was known or obvious;

and (3) the Department acted with deliberate indifference to

that danger. Henry A. v. Willden, 678 F.3d 991, 1002 (9th

Cir. 2012). The Supreme Court has held that negligence is

insufficient to prove a due process violation. Daniels v.

Williams, 474 U.S. 327, 328 (1986) (holding that “the Due

Process Clause [of the Fourteenth Amendment] is simply not

implicated by a negligent act of an official causing

unintended loss of or injury to life, liberty, or property”)

(emphasis in original). The special relationship exception

and state-created danger exception analyses share factors;

therefore, we examine the facts and address the factors in

unison.

2.

The Momox-Caselis family argues that M.M. was in

foreseeable danger in the Juarez-Paez home, but the

Department was deliberately indifferent to the red flags

presented by the Juarez-Paez family’s application to be

foster parents. However, these alleged red flags are either

exaggerated or mistaken. For example, the Momox-Caselis

family speculates that the Department licensed the Juarez-

Paez family based, in part, on information about another

family because the licensing file includes notes incorrectly

stating that the Juarez-Paez family had two children or were

expecting twins. Yet they do not cite any evidence

indicating that the Department relied upon these notes when

making the licensing determination. In particular,

18 MOMOX-CASELIS V. DONOHUE

Defendant Aitken knew that the Juarez-Paez family had no

children and could not conceive.

In addition, the Juarez-Paez family completed training

and obtained its license in May 2014. Thus, the Momox-

Caselis family’s repeated arguments that M.M. was placed

with the Juarez-Paez family before they were trained and

licensed are incorrect. The Momox-Caselis family relies on

Defendants’ failure to check the medication logs, which

indicated that Joaquin inconsistently logged the

administration of M.M.’s allergy medication, as evidence of

deliberate indifference to a substantial risk of harm to M.M.

They did not present this argument to the district court and,

thus, we do not consider it. See Smith v. Marsh, 194 F.3d

1045, 1052 (9th Cir. 1999) (stating that the court generally

does not consider arguments raised for the first time on

appeal). The Momox-Caselis family’s assumption that

Joaquin was actively or frequently taking narcotics is

unsubstantiated.

The Department also submitted evidence that it

contacted numerous foster homes after it removed M.M.

from the Hernandez home, and the Juarez-Paez family was

the only available home at the time. The Department

provided evidence of its supervision of, and guidance to, the

Juarez-Paez family once M.M. was placed with it. Finally,

while the Momox-Caselis family points to the Department’s

placement of more than one child under the age of two with

the Juarez-Paez family as evidence of deliberate

indifference, the governing county resolution states that the

goal of placing only one toddler in a foster home at a time is

an aspirational goal, not a requirement. Regardless, Nevada

state regulation permitted the placement. Nev. Admin. Code

§ 424.160(4) (2014).

MOMOX-CASELIS V. DONOHUE 19

The Department has argued that M.M.’s death at the

hands of Joaquin was unforeseeable, and it was unaware of

any facts that indicated M.M. would face a substantial risk

of harm in the Juarez-Paez home. Maira and Joaquin’s

general health status and medications were disclosed to the

Department, and an examining physician declared that their

health would not inhibit their ability to parent foster children.

There is a genuine dispute about whether the Department

and its employees were aware that Maira and Joaquin had

been in a car accident and they both occasionally used

narcotic pain relief during flare-ups. However, this does not

overwhelm the other evidence in the record. Joaquin only

experienced physical difficulties in the final weeks before

M.M.’s death and his suicide, and Maira never notified the

Department that Joaquin was struggling. The Department

could not be deliberately indifferent to a situation of which

it had no knowledge. Joaquin’s physical health did not

present a substantial risk of harm to M.M, particularly not

the risk that he would overdose M.M. with her allergy

medication.

The Momox-Caselis family takes issue with Joaquin’s

initial failure to disclose his criminal history on his foster

application, but the Department confirmed that Joaquin’s

criminal record was limited to possession of false

identification and working without a work card because he

was not a U.S. citizen. His criminal history and immigration

status also did not pose a substantial risk of harm to M.M.,

because he did not have a violent record and non-U.S.

citizens may foster children. The Momox-Caselis family

argues that Joaquin’s immigration status interfered with his

ability to obtain subsidies for childcare, but this is not

relevant to the substantial risk of harm analysis and ignores

that Maira is a U.S. citizen and capable of obtaining such

subsidies.

20 MOMOX-CASELIS V. DONOHUE

In addition, Maira and Joaquin’s need for additional

childcare was occasional and predominately arose during the

last week preceding M.M.’s death, and they chose not to

apply for subsidized daycare. There is a genuine dispute

about whether they had been advised by the Department that

they did not qualify for subsidized daycare due to Joaquin’s

immigration status or whether Maira assumed that was the

case. Regardless, the lack of subsidized childcare did not

pose a substantial risk of harm to M.M., because her foster

parents took shifts to ensure that she and her foster brother

were constantly supervised. The Juarez-Paez family was

also permitted to use babysitters, pay for daycare, or use

respite care as needed.

There is no evidence that the Juarez-Paez family was

consistently overwhelmed by their foster care duties.

Instead, Maira expressed an interest in fostering M.M.’s

siblings so that the children could be together. Joaquin’s

occasional overwhelm was limited to when both foster

children were demanding attention and he did not know

whom to go to first. The Momox-Caselis family also argues

that the failure to attempt reunification between the Momox-

Caselis children and their natural parents amounted to

deliberate indifference to a risk of substantial harm to M.M.,

but the Momox-Caselis family does not explain this point

and it is not included in the Second Amended Complaint.

We hold that the Momox-Caselis family’s second

section 1983 due process claim fails, and we do not consider

their arguments challenging qualified immunity.

C.

As for their fourth and sixth claims brought pursuant to

Nevada law, the Momox-Caselis family argues that there

were genuine issues of material fact that the district court

MOMOX-CASELIS V. DONOHUE 21

ignored. We disagree. The district court properly decided

the question of causation for the negligence claim as a matter

of law rather than a matter of fact. As for its wrongful death

claim, the Momox-Caselis family addresses it in the section

title but it does not cite any facts in the record or present

argument relating to the claim. The claim is, therefore,

waived.

Under Nevada law, in order to prove a negligence claim,

the Momox-Caselis family must prove: (1) the County owed

a duty of care to M.M.; (2) the County breached that duty;

(3) the breach was the legal cause of M.M.’s death; and

(4) M.M. and her survivors suffered damages. See

Scialabba v. Brandise Const. Co., Inc., 112 Nev. 965, 968

(Nev. 1996). The district court held that it could not properly

consider the negligence factors because the Momox-Caselis

family failed to provide sufficient evidence or argument so

that it could identify breach or causation by the County. The

district court also held that the County and the individual

employees were entitled to discretionary act immunity. The

record supports both holdings.

We also hold that Joaquin’s actions qualified as an

intervening cause of M.M.’s death, so that the negligence

claim fails on that ground as well. See Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (holding that there cannot

be a genuine issue of material fact where the nonmoving

party fails to make a sufficient showing to establish the

existence of an essential element). The improper

administration of the allergy medicine was either intentional

or accidental. If intentional, Joaquin committed a crime by

killing M.M. and his action is a superseding cause even if the

County had been negligent in creating the situation by

placing M.M. with the Juarez-Paez family. Bower v.

Harrah’s Laughlin, Inc., 125 Nev. 470, 491–92 (Nev. 2009)

22 MOMOX-CASELIS V. DONOHUE

(observing that the originally negligent party is only liable

for a third party’s intentional tort or crime if it was

foreseeable). Even if accidental, the Momox-Caselis family

has not presented evidence of foreseeability. As discussed

above, it was unforeseeable that Joaquin would overdose

M.M. on her allergy medication specifically or even

generally harm her.

V.

The Momox-Caselis family has waived its new

arguments raised on appeal. The district court’s summary

judgment was appropriate because the Momox-Caselis

family failed to carry its burden or present evidence of a

genuine dispute of material fact. Its arguments relied on

supposition and a mischaracterization of the evidence, while

the County presented voluminous evidence to refute the

Momox-Caselis family’s claims.

AFFIRMED.