NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIM GOMES; CATHERINE GOMES, 

Plaintiffs-Appellants, 

 v. 

SANTA CLARA COUNTY, 

Defendant-Appellee, 

and 

ROSHANDA BURNS; et al., 

Defendants.

No. 20-16799 

D.C. No. 5:18-cv-04191-EJD 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Edward J. Davila, District Judge, Presiding

Submitted June 15, 2021**

San Francisco, California

Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges.

Tim and Catherine Gomes appeal the district court’s grant of summary 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JUN 17 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

judgment for Santa Clara County and Bob Beck, a supervisory social worker with 

the County’s Department of Family and Children’s Services (“DFCS”). The 

Gomeses’ suit claimed the warrantless removal of their child, H.G., violated the 

Fourteenth Amendment.1

 We review a district court’s grant of summary judgment, 

including for qualified immunity, de novo. Torres v. Cty. of Madera, 648 F.3d 1119, 

1123 (9th Cir. 2011); Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1141 (9th 

Cir. 2021). 

1. The district court correctly held that Beck is entitled to qualified immunity 

for his role in removing H.G. without a warrant. Qualified immunity “shields federal 

and state officials from money damages unless a plaintiff pleads facts showing (1) 

that the official violated a statutory or constitutional right, and (2) that the right was 

clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 

U.S. 731, 735 (2011) (simplified). To be “clearly established, a right must be 

sufficiently clear that every reasonable official would have understood that what he 

is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) 

(simplified). 

1 On appeal, the Gomeses challenge only the district court’s grant of summary 

judgment on their Fourteenth Amendment claims (Claims 5, 7, 8, and 14) against 

the County and Beck for their warrantless removal of H.G. The Gomeses dismissed 

their constitutional claims against defendant Michael Shaheed below, and they do 

not raise any arguments related to the other three individual Defendants—Sarah 

Arana, Rashonda Burns, and Linda Hsiao. 
3 

The Fourteenth Amendment protects “the parent-child relationship from 

unwanted interference by the state.” Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 

788 (9th Cir. 2016). Social workers may not remove children from their parents 

“absent a warrant or exigent circumstances.” Id. at 791 (simplified). Exigent 

circumstances exist when “[s]erious allegations of abuse that have been investigated 

and corroborated” support “a reasonable inference of imminent danger” that the 

child “might again be [abused] during the time it would take to get a warrant.” 

Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1294–95 (9th Cir. 2007) (simplified). 

Here, hospital staff alerted DFCS and Beck to the Gomeses’ mistreatment of 

H.G., including specific instances that cast into doubt whether the days-old infant 

would be fed properly, kept warm, and protected from physical harm. For example,

the hospital reported that Tim had picked H.G. up by the neck and dangled her body, 

both parents had repeatedly left H.G. unswaddled to the point where her body 

temperature dropped, and both parents neglected to change H.G.’s diapers or feed 

her when needed. Social worker Katherine DiPaulo independently confirmed these 

accounts. Then, most importantly, the hospital alerted DFCS and Beck that H.G. 

would be discharged to her parents “momentarily.” Beck was understandably 

concerned about how the Gomeses would care for H.G. outside the hospital staff’s 

supervision. On these facts, Beck could reasonably believe that the child would face 
4 

an immediate risk of physical harm before he could successfully secure a warrant. 

See Rogers, 487 F.3d at 1294–95.

None of the precedents cited by the Gomeses establish that “the state of the 

law at the time of [the] incident provided fair warning to [Beck] that [his]

conduct was unconstitutional.” Jessop v. Cty. of Fresno, 936 F.3d 937, 940 (9th Cir. 

2019) (simplified); see Kirkpatrick, 843 F.3d at 793 (holding that it must be “beyond 

debate that the confluence of factors [in the present case] would not support a finding 

of exigency”). Those cases are materially distinguishable from this case because 

they do not involve the immediate risk of harm H.G. faced. See id. at 792 (hospital 

placed a “hold” preventing the child from being released to her mother); Rogers, 487 

F.3d at 1296 (social worker delayed acting for eighteen days after learning of 

neglect, and agency “classified the case as a ten-day response”); Mabe v. San 

Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1105, 1108 (9th Cir. 

2001) (social worker delayed one month after initial report and four days after 

interview confirming abuse before acting); Wallis v. Spencer, 202 F.3d 1126, 1131–

32, 1134, 1138–40 (9th Cir. 2000) (social workers removed child based on 

uncorroborated report of an impending Satanic sacrifice by an estranged relative 

with a history of “delusional disorders”); Ram v. Rubin, 118 F.3d 1306, 1311 (9th 

Cir. 1997) (social workers “acted on two-year-old allegations” with no change in 

circumstances). 
5 

The facts of this case, viewed in the light most favorable to the Gomeses, 

O’Doan v. Sanford, 991 F.3d 1027, 1032 (9th Cir. 2021), support a reasonable belief 

that H.G. faced an immediate risk of physical harm before Beck could obtain a 

warrant. And no “clearly established” prior case law would have led a “reasonable 

official” to have understood “that what he [was] doing violate[d the Constitution]” 

under the circumstances presented by the record. al-Kidd, 563 U.S. at 741

(simplified). We therefore do not reach the first prong of the qualified immunity 

inquiry, see Reichle, 566 U.S. at 664, and affirm the district court’s summary 

judgment for Beck on qualified immunity grounds on Claims 5 and 7.

2. We do not reach the Gomeses’ Monell claims against the County because 

the Gomeses waived these claims by not raising them in their opening brief. See 

Young v. State, 992 F.3d 765, 780 (9th Cir. 2021) (“We do not ordinarily consider 

matters on appeal that are not specifically and distinctly raised and argued in 

appellant’s opening brief.”) (simplified). Aside from sparse references to the 

County’s allegedly inadequate training for its social workers in its statement of facts, 

the opening brief never invokes Monell and fails to develop any arguments to 

support this generalized criticism. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th 

Cir. 1994). We accordingly affirm the district court’s grant of summary judgment 

for the County on the Gomeses’ Monell claims (Claims 8 and 14). 

AFFIRMED.