Petition for Writ of Certiorari — Sergio Momox-Caselis, et al., Petitioners v. Tara Donohue, et al.

Supreme Court briefAug 26, 2021

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In the Supreme Court of the United States

___________

SERGIO MOMOX-CASELIS, individually and as Guardian Ad Litem for MARIA

MOMOX-CASELIS; and SERGIO MOMOX-CASELIS and KRISTIN WOODS as CoSpecial Administrators of the estate of M.M.; PETITIONERS

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

___________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_________________

PETITION FOR A WRIT OF CERTIORARI

_________________

MARJORIE HAUF, ESQ.

Counsel of Record

H&P LAW

8950 W. Tropicana Ave., Ste. 1

Las Vegas, NV 89147

(702) 598-4529

mhauf@courtroomproven.com

QUESTION PRESENTED

Whether the Ninth Circuit Court of Appeals departed from the accepted and

usual course of the standards established by this Court in Anderson v. Liberty

Lobby, 477 U.S. 242 (1986) for reviewing an order granting summary judgment

such that this Court’s exercise of its supervisory power is warranted?

RELATED PROCEEDINGS

United States District Court (D. Nev.):

Momox-Caselis v. Juarez-Paez, Case No. 2:16-cv-00054-APG-GWF

(Dec. 26, 2018)

United States Court of Appeals (9th Cir.):

Momox-Caselis v. Donohue, No. 19-15126 (Feb. 3, 2021)

Momox-Caselis v. Donohue, No. 19-15126 (Mar. 29. 2021)

(order denying petition for rehearing en banc)

TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, 477 U.S. 242 (1986) .................................................. 6, 7, 8

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................. 7

L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996) ......................................................... 7

Tolan v. Cotton, 572 U.S. 650, 651 (2014) .................................................................... 7

Statutes

28 U.S.C. § 1254(1) ........................................................................................................ 6

42 U.S.C. § 1983 ............................................................................................................. 6

Rules

Rule 56(c) ....................................................................................................................... 6

In the Supreme Court of the United States

___________

SERGIO MOMOX-CASELIS, individually and as Guardian Ad Litem for MARIA

MOMOX-CASELIS; and SERGIO MOMOX-CASELIS and KRISTIN WOODS as CoSpecial Administrators of the estate of M.M.; PETITIONERS

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

___________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_________________

PETITION FOR A WRIT OF CERTIORARI

_________________

Petitioners respectfully petition for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion in the court of appeals (App., infra, App-1) is reported at 987

F.3d 835. The district court’s order granting respondents’ motion for summary

judgment (App., infra, App-23) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on February 3, 2021. A

petition for rehearing was denied on March 29, 2021 (App., infra, App-47). This

petition is timely pursuant to this Court’s order entered March 19, 2020, extending

all filing deadlines to 150 days after orders denying timely petitions for rehearing.

Petitioners invoke this Court’s jurisdiction under 28 U.S.C. § 1254(1).

STATEMENT

This petition arises from the court of appeals’ affirmance of an order granting

summary judgment against Petitioners in violation of the Rule 56(c) standards

established by this Court in Anderson v. Liberty Lobby, 477 U.S. 242 (1986).

Petitioners Sergio Momox-Caselis and Maria Momox-Caselis (the “MomoxCaselis’s”) are the natural born parents of deceased infant M.M., who died while

under the care and supervision of Respondents. Respondents consist of individual

employees of the Clark County Department of Family Services (the “Department

Members”) and Clark County, Nevada (the “County”) (collectively, “Respondents”).

Within a few months of the Respondents placing M.M. in the care of

inexperienced and overwhelmed foster parents Joaquin and Maria Juarez (the

“Juarezes”), M.M. died due to an overdose of Loratadine. (App., infra, App-89-190,

321-327, 500 and 512). Her death was ruled a homicide, and Joaquin Juarez

subsequently committed suicide and left a note admitting to the murder of M.M.

(App., infra, App-295-307, 321-327 and 512). Petitioners filed a lawsuit against

Respondents in the United States District Court for the District of Nevada alleging

violations of 42 U.S.C. § 1983 for the (1) improper placement of M.M. in a dangerous

home after removal from her prior foster home where she was safe, (2) Respondents’

deliberate indifference, and (3) failure to properly train or supervise the individual

Respondents. Respondents also asserted a state law negligence and wrongful death

claim. The district court granted summary judgment against Petitioners, and

Petitioners appealed that order to the Ninth Circuit Court of Appeals.

On appeal, the court of appeals affirmed the order granting summary

judgment in contravention of the Rule 56(c) standards established by this Court.

First, the court of appeals incorrectly found that Petitioners waived their right to

argue that Respondents were deliberately indifferent by ratifying questionable

policies and procedures by raising it for the first time on appeal. (App., infra, App12). This argument was in fact raised and argued before the district court. (App.,

infra, App-435-440).

Second, the court of appeals repeatedly weighed the evidence, which it may

not do on summary judgment, and construed it in favor of the moving party rather

than Petitioners, the non-moving parties. For example, the court of appeals found

that there was no genuine issue of material fact regarding Respondents’ deliberate

indifference because Respondents produced “voluminous records” of their “rigorous

licensing and training process.” (App., infra, App-15). This finding ignored the

evidence Petitioners presented that (1) these processes were not followed, (2) the

Juarezes were improperly licensed under these procedures, (3) the Juarezes were

not supervised, and (4) the voluminous record was conspicuously missing certain

policies and procedures that would have protected M.M. (App., infra, App-122-123,

192, 196, 222-236, 240-247, 352-356, 409, 476-479, 482, 485-490 and 492-503).

The court of appeals further found that Petitioners did not establish facts

sufficient to bring the case with in the “state-created danger” exception to the Due

Process clause’s general limitation on extending affirmative rights to governmental

aid or imposing duties upon the state to protect individuals from third parties. See

L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996). Specifically, the court of appeals

disregarded Petitioners’ evidence that the licensing file raised multiple red flags,

including, but not limited to, improper waivers of certain licensing requirements,

errors in the file, missing information, inaccurate statements on the face of the

application, and instead held that there was no genuine dispute of material fact

because there was no evidence Respondents relied upon these facts when placing

M.M. with the Juarezes. (App., infra, App-1-22, 122-123, 192, 196, 222-236, 240247, 352-356, 409, 476-479, 482, 485-490 and 492-503). This raises an inference in

favor of Respondents, the moving party, which directly contravenes the standards

established by this Court in Anderson v. Liberty Lobby, 477 U.S. 242 (1986).

The court of appeals denied Petitioners’ request for rehearing. This writ

petition follows.

REASONS FOR GRANTING THE PETITION

This Court has discretion to grant of writ of certiorari. U.S. Sup. Ct. R. 10.

Certiorari is appropriate when a court “has so far departed from the usual and

accepted course of judicial proceedings, or sanctioned such a departure for a lower

court . . .” Id. at 10(a).

Exercising its discretion, this Court has previously granted writs of certiorari to

establish the relevant standards for the courts to follow in granting summary

judgment. See Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Celotex Corp. v.

Catrett, 477 U.S. 317 (1986). Since these seminal opinions, this Court has granted

writs of certiorari to enforce the application of its established summary judgment

standards. See, e.g., Tolan v. Cotton, 572 U.S. 650, 651 (2014) (granting certiorari

because “the Fifth Circuit failed to adhere to” this Court’s “axioms” when deciding a

motion for summary judgment).

In Anderson, this Court clarified that a genuine issue of material fact sufficient

to preclude summary judgment exists if there is a factual “dispute[] over facts that

might affect the outcome of the suit under the governing law.” Anderson, 477 U.S.

at 248. To make this determination, this Court instructed the lower courts to

determine whether “a reasonable jury could return a verdict for the nonmoving

party.” Id. This Court further instructed that “[t]he evidence of the nonmovant is

to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.

Accordingly, it is not a “judge’s function” to “weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.” Id.

at 249.

These standards were not followed by either the district court or the court of

appeals. Instead, the court of appeals repeatedly weighed the evidence, and

construed it in favor of the moving party rather than Petitioners, the non-moving

party. The court of appeals found that there was no genuine issue of material fact

regarding Respondents’ deliberate indifference because Respondents produced

“voluminous records” of their “rigorous licensing and training process,” (App., infra,

App-15), while ignoring the evidence Petitioners presented that (1) these processes

were not followed, (2) the Juarezes were improperly licensed under these

procedures, (3) the Juarezes were not supervised, and (4) the voluminous record was

conspicuously missing certain policies and procedures that would have protected

M.M. (App., infra, App-122-123, 192, 196, 222-236, 240-247, 352-356, 409, 476-479,

482, 485-490 and 492-503). This is a clear departure from the usual and accepted

course of proceedings. Anderson, 477 U.S. at 249, 255.

The court of appeals further found that Petitioners did not establish facts

sufficient to bring the case within the “state-created danger” exception to the Due