FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC MUELLER; CORISSA D. 

MUELLER, husband and wife,

individually and on behalf of

Taige L. Mueller, a minor, and on

behalf of themselves and those

similarly situated,

Plaintiffs-Appellants,

v.

No. 11-35351 APRIL K. AUKER; BARBARA

HARMON; JANET A. FLETCHER; D.C. No.  KIMBERLY A. OSADCHUK; LINDA 1:04-cv-00399-BLW

RODENBAUGH; KARL B. KURTZ; KEN OPINION

DIEBERT,

Defendants,

and

CITY OF BOISE; DALE ROGERS; TED

SNYDER; TIM GREEN; RICHARD K.

MACDONALD; SAINT LUKE’S

REGIONAL MEDICAL CENTER, LTD.,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted

July 24, 2012—Boise, Idaho

Filed September 10, 2012

10845
Before: J. Clifford Wallace, Stephen S. Trott, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Trott

10846 MUELLER v. CITY OF BOISE
COUNSEL

Michael E. Rosman, Center for Individual Rights, Washington, D.C., for the plaintiffs-appellants.

Kirtlan G. Naylor, Naylor & Hales, P.C., Boise, Idaho; Keely

Elizabeth Duke and Richard E. Hall, Duke Scanlan Hall

PLLC, Boise, Idaho; and W. Christopher Pooser, Stoel Rives

LLP, Boise, Idaho, for the defendants-appellees.

10848 MUELLER v. CITY OF BOISE
James K. Dickinson, Ada County Prosecutor’s Office, Boise,

Idaho, for amicus curiae Ada County Prosecutor’s Office.

OPINION

TROTT, Circuit Judge:

Because the district court and the parties to this protracted

lawsuit—as well as the judges of this panel hearing the issues

for the second time—are well aware of its history, the trial

record, and the proceedings in district court, we refer to them

only as necessary to explain our decision. We have previously

published an opinion on a related issue in Mueller v. Auker,

576 F.3d 979 (9th Cir. 2009). That opinion exhaustively

unfurls the facts giving rise to this case.

We have jurisdiction over this timely appeal pursuant to 28

U.S.C. §§ 1291 and 1294(1), and we affirm. We address each

new issue in turn.

I

A

Qualified Immunity

[1] We begin our discussion of whether Detective Dale

Rogers and Officers Ted Snyder and Tim Green are entitled

to qualified immunity for their actions involving the interruption of Corissa Mueller’s parental rights with a review of that

important principle as reiterated by the Supreme Court in

recent cases.

“The doctrine of qualified immunity protects government officials ‘from liability for civil damages

insofar as their conduct does not violate clearly

MUELLER v. CITY OF BOISE 10849
established statutory or constitutional rights of which

a reasonable person would have known.’ ” Pearson

v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity “gives government officials breathing

room to make reasonable but mistaken judgments,”

and “protects ‘all but the plainly incompetent or

those who knowingly violate the law.’ ” Ashcroft v.

al-Kidd, 563 U.S. ___, ___ (2011) (slip op., at 12)

(quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)). “[W]hether an official protected by qualified immunity may be held personally liable for an

allegedly unlawful official action generally turns on

the ‘objective legal reasonableness’ of the action,

assessed in light of the legal rules that were ‘clearly

established’ at the time it was taken.” Anderson v.

Creighton, 483 U.S. 635, 639 (1987) (citation omitted).

Messerschmidt v. Millender, 565 U.S. ___, 132 S. Ct. 1235,

1244-45 (2012). The inquiry called for by this doctrine “must

be undertaken in the light of the specific context of the case,

not as a broad general proposition.” Brosseau v. Haugen, 543

U.S. 194, 198 (2004) (quoting Saucier v. Katz, 533 U.S. 194,

201 (2001) (internal quotation marks omitted)). Accordingly,

“the result [of this inquiry] depends very much on the facts of

each case.” Id. at 201. Finally, “[t]he contours of the right

must be sufficiently clear [in a particularized sense] that a reasonable official would understand that what he is doing violates that right.” Id. at 199 (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987) (internal quotation marks omitted)).

In order to apply this doctrine correctly, which makes

allowance for some constitutional mistakes, it is useful to

revisit its purpose: 

Nor is it always fair, or sound policy, to demand

official compliance with statute and regulation on

10850 MUELLER v. CITY OF BOISE
pain of money damages. Such officials as police

officers or prison wardens, to say nothing of higher

level executives . . . who enjoy only qualified immunity, routinely make close decisions in the exercise

of the broad authority that necessarily is delegated to

them. These officials are subject to a plethora of

rules, “often so voluminous, ambiguous, and contradictory, and in such flux that officials can only comply with or enforce them selectively.” See P. Schuck,

Suing Government 66 (1983). In these circumstances, officials should not err always on the side of

caution. “[O]fficials with a broad range of duties and

authority must often act swiftly and firmly at the risk

that action deferred will be futile or constitute virtual

abdication of office.” Scheuer v. Rhodes, [416 U.S.

232, 246 (1974))].

Davis v. Scherer, 468 U.S. 183, 196 (1984) (second alteration

in original). We review the district court’s grant of summary

judgment de novo. Burke v. Cnty. of Alameda, 586 F.3d 725,

730 (9th Cir. 2009). “Viewing the evidence in the light most

favorable to the nonmoving party, we must determine whether

there are any genuine issues of material fact and whether the

district court correctly applied the relevant substantive law.”

Id. (internal quotation marks omitted).

With this framework in mind, we must decide whether, at

the time of Detective Rogers’s and Officers Snyder’s and

Green’s actions, it was “clearly established” that they were

violating (1) the Mueller’s Fourteenth Amendment’s liberty

interest in the care, custody, and control of their infant daughter Taige, and (2) Corissa Mueller’s Fourth Amendment right

against unreasonable search and seizure. In other words,

viewing the facts in the light most favorable to the Muellers,

did the officers have an objectively reasonable basis for fearing that Taige was in imminent danger and for causing her

parents to lose custody without a judicial hearing, and that “a

reasonable officer could have come to such a conclusion.”

MUELLER v. CITY OF BOISE 10851
Ryburn v. Huff, 565 U.S. ___, 132 S. Ct. 987, 992 (2012) (per

curiam).

B

The Constitutional Rights at Issue

There is no doubt that the Muellers have a liberty interest

in the “care, custody, and control of their child[ ].” Troxel v.

Granville, 530 U.S. 57, 65 (2000); Lehr v. Robertson, 463

U.S. 248, 256-57 (1983). It is also the case, however, that like

all constitutional rights, these rights are not absolute. Under

certain circumstances, these rights must bow to other countervailing interests and rights, such as the basic independent life

and liberty rights of the child and of the State acting as parens

patriae; and on occasion, this accommodation may occur

without a pre-deprivation hearing. As the Supreme Court has

said, a state “has an urgent interest in the welfare of the child

. . . .” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981);

see also J.B. v. Washington Cnty., 127 F.3d 919, 925, 927

(10th Cir. 1997) (parents’ liberty interest in the custody and

care of their children is balanced against the state’s “traditional and transcendent” interest in “acting as parens patriae”

to protect children); Thomason v. SCAN Volunteer Servs.,

Inc., 85 F.3d 1365, 1371 (8th Cir. 1996) (“[T]he liberty interest in familial relations is limited by the compelling government interest in the protection of minor children, particularly

in circumstances where the protection is considered necessary

as against the parents themselves.” (quoting Myers v. Morris,

810 F.2d 1437, 1462 (8th Cir. 1987) (internal quotation marks

omitted)).

When do the constitutional rights of parents step aside? “In

an emergency situation . . . when the children are subject to

immediate or apparent danger or harm.” Caldwell v. LeFaver,

928 F.2d 331, 333 (9th Cir. 1991). As we explained in Ram

v. Rubin, parents have a “constitutionally protected right to

the care and custody of [their] children” and cannot be “sum10852 MUELLER v. CITY OF BOISE
marily deprived of that custody without notice and a hearing,”

except where “the children [are] in imminent danger.” 118

F.3d 1306, 1310 (9th Cir. 1997) (citing Caldwell, 928 F.2d at

333); Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983)

(“When a child’s safety is threatened, that is justification

enough for action first and hearing afterward.”).

[2] With this context in mind, the issue before us, as correctly articulated by the district court, is whether on August

12, 2002, the law was clearly established that Detective Rogers (1) had to secure a judicial hearing for the Muellers before

seizing Taige for medical treatment, (2) should not have

declared that Taige was in imminent danger and caused her

custody to be transferred to the Department of Health and

Welfare, and (3) should not have temporarily confined

Corissa after seizing her daughter.

C

Analysis

[3] In declaring the infant Taige to be in “imminent danger” of serious bodily injury pursuant to the Idaho Child Protective Act, Detective Rogers relied on the opinions of

qualified medical professionals: the board-certified emergency room doctor treating the infant, Dr. Richard Macdonald; and a board-certified pediatrician, Dr. Noreen Womack,

with whom the treating physician had conferred. Dr. Womack

recommended contacting a social worker should Corissa continue to refuse treatment for her daughter. In taking her

daughter to the emergency room, Corissa’s goal was the same

as her husband’s, her personal physician’s, Detective Rogers’s, Dr. Macdonald’s, and Dr. Womack’s: to rule out, inter

alia, meningitis, a serious medical condition capable of causing an infant’s death or permanent brain injury. As Eric Mueller explained in his deposition, going to the emergency room

“would be the safe thing to do.” In his deposition, Eric attributed a similar state of mind to Detective Rogers: concern

MUELLER v. CITY OF BOISE 10853
about Taige’s health. The medical standard of care Corissa’s

naturopathic physician told Corissa she would encounter in

the emergency room was the administration of antibiotics and

a lumbar spinal tap, a standard also designed to protect the

patient. On the facts of this case, we conclude that Detective

Rogers’s declaration of “imminent danger” was objectively

reasonable.

The district court summarized its analysis of this issue as

follows:

This lack of clearly established law is most apparent in Detective Rogers’ imminent danger analysis.

He was confronted with a physician insisting (1) that

the treatments be done, (2) that they be done quickly,

(3) that they constituted the standard of care, (4) that

the risk of foregoing treatments outweighed the risks

of treatment, (5) that the treatments would completely eliminate any danger to Taige, and (6) that if

Corissa left with Taige untreated, Taige’s condition

could deteriorate so quickly that she could suffer

serious injury or die before Corissa could return to

the hospital.

In this situation, no clearly established law existed

to guide Detective Rogers. The phrase “imminent

danger” has not been given any detailed definition,

either by Wallis [v. Spencer, 202 F.3d 1126 (9th Cir.

2000)] or any other case, that could have guided

Detective Rogers. 

Reviewing this analysis de novo, see Burke, 586 F.3d at 730,

we conclude that it is amply supported by the record. 

[4] In arriving at this conclusion, the district court stated

that “[t]he Court’s research, and the parties’ briefing do not

reveal any cases which have laid out the constitutional guidelines for resolving parental [non-religious] objections to medi10854 MUELLER v. CITY OF BOISE
cal treatment . . . .” Five years later, the Muellers still have

not provided us with any cases specific enough to the emergency room facts and circumstances of this case to advance

their cause. We have not uncovered a decision identifying a

Fourteenth Amendment violation “on facts even roughly comparable to those present in this case.” Ryburn, 565 U.S. at

___, 132 S. Ct. at 990. Nowhere can we find any clearly

established law which would have required a judicial hearing

before Detective Rogers or the Department of Health and

Welfare took the actions that they did when facing these dangers.

When examined at the level of specificity mandated by

Brosseau, Wallis, as we discussed at length in our previous

opinion, is “manifestly distinguishable.” Mueller, 576 F.3d at

995-96. To repeat: “This inquiry ‘must be undertaken in [the]

light of the specific context of the case, not as a broad general

proposition.’ ” Id. at 994 (quoting Saucier v. Katz, 533 U.S.

at 201). In effect, the Muellers ask us to repeat the analytical

mistake we made in Brosseau, where we approached this

issue based upon general tests and abstract constitutional

propositions instead of focusing on the precise factual scenario confronted by the officers. 543 U.S. at 199-200. In fact,

Wallis, the Muellers’ principal case, stands for the unremarkable proposition that parents and children can be separated

“without due process of law . . . in an emergency.” Wallis,

202 F.3d at 1136.

Idaho law permits a police officer to place a child in shelter

care without a court order when necessary to prevent serious

physical injury. I.C. § 16-1612 (since renumbered as I.C.

§ 16-1608). The Muellers’ late assertion in their reply brief

that this law is “obviously unconstitutional” is of no help to

them on this issue, because at the time the disputed decisions

were made, no clearly established law existed to that effect.

Moreover, the existence of a state statute authorizing an official’s disputed conduct weighs in that official’s favor, so long

MUELLER v. CITY OF BOISE 10855
as the statute itself does not offend the Constitution, and I.C.

§ 16-1612 does not. Caldwell, 928 F.2d at 334.

Detective Rogers was in no position to second guess Dr.

Macdonald. Even were we to assume with hindsight that the

doctor’s assessment was wrong, to attribute such a professional error in judgment to Detective Rogers would be manifestly inappropriate. The Muellers admit it was objectively

reasonable for Detective Rogers to accept the doctor’s opinion

over Corissa’s. The Supreme Court has instructed that “reasonableness ‘must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight’ and that ‘[t]he calculus of reasonableness must

embody allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances that

are tense, uncertain, and rapidly evolving.’ ” Ryburn, 565

U.S. at ___, 132 S. Ct. at 992 (alteration in original) (quoting

Graham v. Connor, 490 U.S. 386, 396-97 (1989)). When

Taige’s temperature spiked at 1:40 a.m., time became of the

essence, and it was at that point that Detective Rogers made

his decision. Mueller, 576 F.3d at 985. The district court correctly observed that the term “imminent danger” has not been

given any detailed definition . . . that could have guided

Detective Rogers. Contrary to the Muellers’ arguments, Wallis does not require that to justify a declaration of imminent

danger, the imminent danger must be likely to occur. See 202

F.3d at 1138. Even if our later case Rogers v. County of San

Joaquin, 487 F.3d 1288 (9th Cir. 2007) imposes such a

requirement, Rogers could not have made any potential

unlawfulness “apparent in light of preexisting law” in 2002.

See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996).

[5] The Muellers also argue that although “Rogers was

entitled to consider [Dr.] MacDonald’s medical opinion,” he

was not entitled to rely on the doctor’s “legal opinion.” However, Detective Rogers made his own decision as to imminent

danger. That decision had legal consequences, but it was

rationally based on the objective facts of the situation.

10856 MUELLER v. CITY OF BOISE
[6] In summary, Detective Rogers, along with Officers

Snyder and Green (who made no decisions at all), are entitled

to qualified immunity from this lawsuit. Ironically, it has

taken ten years of litigation to arrive at this conclusion.

D

The Fourth Amendment

[7] The Fourth Amendment usually requires an officer to

have a warrant issued upon probable cause before seizing

someone, but “neither probable cause nor a warrant is

required when ‘special needs, beyond the normal need for law

enforcement, make the warrant and probable-cause requirement impracticable.’ ” Yin v. California, 95 F.3d 864, 869

(9th Cir. 1996) (quoting Veronica Sch. Dist. v. Acton, 515

U.S. 646, 653 (1995)). In these “special needs” cases, we

“dispense[ ] with the probable cause and warrant requirements

and simply appl[y] a balancing test to determine if a search

or seizure is reasonable and thus constitutional.” Yin, 95 F.3d

at 869.

[8] Under the circumstances of this case, the officers’ separation of Corissa Mueller from her daughter while medical

procedures were being performed in an emergency room was

demonstrably reasonable. As the district court correctly ruled,

this separation was necessary to maintain order in the hospital

and to ensure that Taige’s treatment was not interrupted, a

distinct possibility caused by Mrs. Mueller’s opposition to the

procedures and her admittedly agitated state of mind. Eric

Mueller describes his wife at this moment as “hysterically

crying.” This separation occurred not in a public place, but in

a high-pressure location involving seriously ill and injured

patients and delicate medical procedures. Persons who go to

an emergency room are entitled by federal law to privacy,

Health Insurance Portability and Accountability Act of 1996

(HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996), and

not to be bothered or endangered by others while they are

MUELLER v. CITY OF BOISE 10857
there. We find unpersuasive the Muellers’ argument that

Corissa should not have been taken temporarily to the privacy

of a small room while doctors performed their duties. No

clearly established law prohibited such action. See Trevino, 99

F.3d at 916-17. The district court’s ruling was correct. Thus,

we conclude that the officers are entitled to qualified immunity with regard to Corissa’s Fourth Amendment claim.

II

Dr. Rosen’s Testimony

[9] The Muellers take issue with the district court’s decision pursuant to Federal Rule of Evidence 702 to admit the

testimony of Dr. Peter Rosen on behalf of Dr. Macdonald.

Federal Rule of Evidence 702 requires that expert testimony

be “the product of reliable principles and methods.” Fed. R.

Civ. P. 702(c). The Muellers argue that Dr. Rosen’s opinion

was based solely on “clinical instinct,” which they argue is

not a reliable basis for expert testimony under Rule 702. We

review the district court’s admission of expert testimony for

abuse of discretion. United States v. Cordoba, 104 F.3d 225,

229 (9th Cir. 1997). 

The Muellers concede that Dr. Rosen is well-credentialed

in this field of medicine, and that he has had a distinguished

career and extensive experience. About this, there can be no

dispute. Dr. Rosen is a board-certified emergency room physician with over forty years of practice. In addition to being a

prolific author, he was then a professor of emergency medicine at Harvard Medical School and the University of Arizona

School of Medicine.

The essence of Dr. Rosen’s opinion was as follows:

What was, was the presentation of the child who

looked ill, acted ill, and had a history of not behaving normally. She was lethargic. She was not feeding

10858 MUELLER v. CITY OF BOISE
properly, and she did not have a normal initial physical examination. It was that constellation of presentation, history, and findings as to what convinced me

that she was a patient who needed a mandatory fever

workup and that the risk of a serious bacterial infection that Dr. Macdonald cited was very accurate.

Dr. Rosen also believed on the basis of the medical records

that Taige probably did arrive at the hospital with a serious

infection and that Dr. Macdonald’s prompt administration of

fluids and antibiotics “prevented her from developing a serious sepsis syndrome [including meningitis] from which she

could not have recovered, causing her to die or leaving her

permanently damaged.” He credited Dr. Macdonald with acting appropriately under the circumstances, and offered his

opinion that Dr. Macdonald’s risk assessment regarding Taige

was valid. Here, he explained the role and value of an experienced doctor’s “clinical instinct,” upon which an emergency

medicine “must often rely.” 

In medicine, when we see a patient and when

we’re trying to figure out what’s wrong with them,

we sort of make a list in our head of what could be

wrong, what could be causing the problem, what do

I have to evaluate for and what do I have to treat.

Emergency physicians take a little bit different

approach than other physicians, because other physicians have time to sort of sit back and think about

things and look things up and compare things. We

have to make decisions very quickly, and we have to

make lots of decisions all at once, all at the same

time with very little information.

So we make a differential diagnosis or a list of

possibilities in our head. And we put—at the top of

that list we put the worst thing it could be. What is

the thing that could kill the person? What is the thing

MUELLER v. CITY OF BOISE 10859
that could damage the person? What do I have to

treat now and not miss? And then sort of work down

the list to more likely things, but less concerning

things. 

[10] Contrary to the presentation of the Appellants’ counsel at oral argument, clinical instinct is a well-recognized and

accepted aspect of current medical practice. The precept

encompasses what experience adds to scientific knowledge

and training. Clinical instinct as a diagnostic and treatment

tool is not new. 

The district court made its decision to admit Dr. Rosen’s

testimony and opinions after careful, painstaking, and

thoughtful consideration. This decision was legally sound and

an appropriate exercise of discretion. As the court correctly

summarized the situation, Dr. Macdonald’s diagnosis that

Taige had a serious bacterial infection was “a judgment call

based on clinical instinct and made under time pressure.” 

The district court reconsidered the admissibility of Dr.

Rosen’s testimony in the Muellers’ post-trial motion for a

new trial. As part of that thorough process, Dr. Rosen was

recalled as a witness by video, and his trial testimony was

again examined in the light of the Muellers’ specific objection

to it. As a result of this process, the court was again satisfied

that Dr. Rosen’s expert witness testimony was directly relevant to the central disputed issue of whether Dr. Macdonald

“falsely exaggerated the risk to Taige Mueller in order to

deprive the Muellers of their parental rights.”

In the end, the court relied on our opinion in Primiano v.

Cook, 598 F.3d 558 (9th Cir. 2010), in deciding that Dr.

Rosen’s testimony was relevant and admissible under Rule

702. In that case, we said:

“Despite the importance of evidence based medicine,

much of medical decision-making relies on judgment

10860 MUELLER v. CITY OF BOISE
—a process that is difficult to quantify or even to

assess qualitatively. Especially when a relevant

experience base is unavailable, physicians must use

their knowledge and experience as a basis for weighing known factors along with the inevitable

uncertainties” to “mak[e] a sound judgment.”

Id. at 565 (alteration in original) (quoting Harrison’s Principles of Internal Medicine 3 (Dennis L. Kasperet et al. eds.,

16th ed. 2005)).

[11] In summary, the district court did not err or abuse its

discretion in admitting the proffered testimony of Dr. Peter

Rosen pursuant to Federal Rule of Evidence 702 or in denying

the Muellers’ motion on this issue for a new trial. Dr. Rosen’s

testimony plainly assisted the jury in understanding the evidence and in determining the validity of Dr. Macdonald’s risk

assessment. Also, Dr. Rosen’s opinion testimony was relevant

with respect not only to the substantive issues before the jury,

but also as direct rebuttal to the Muellers’ expert, Dr. Eugene

Shapiro. Once admissible, the weight to be given to Dr.

Rosen’s testimony was for the jury to determine. Primiano,

598 F.3d at 565.

III

The Dismissal of the Case Against St. Luke’s

The district court did not err in dismissing the Muellers’

§ 1983 claims against St. Luke’s without leave to amend,

because it was clear that amendment would be futile. “Dismissal without leave to amend is improper unless it is clear,

upon de novo review, that the complaint could not be saved

by any amendment.” Manzarek v. St. Paul Fire & Marine Ins.

Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (internal quotation

marks omitted).

[12] On de novo review, we conclude that the district court

correctly granted St. Luke’s Federal Rule of Civil Procedure

MUELLER v. CITY OF BOISE 10861
12(b)(6) motion to dismiss without leave to amend. See id. St.

Luke’s did not become a state actor simply because it complied with state law requiring its personnel to report possible

child neglect to Child Protective Services. State law does not

amount to an actionable hospital policy. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 838 (9th Cir.

1999); see also Brown v. Newberger, 291 F.3d 89, 93 (1st Cir.

2002) (concluding that a doctor did not become a state actor

by filing a report of suspected child abuse as required by state

law). Moreover, St. Luke’s medical standard of care under

these circumstances isn’t a policy either. Neither did social

worker Bob Condon’s testimony establish any actionable policy on the part of St. Luke’s. In fact, the record conclusively

demonstrates that no appropriate amendment to the complaint

could overcome these obvious problems. See Manzarek, 519

F.3d at 1034. The hospital’s conduct in question was not

fairly attributable to the State.

IV

A

Section 1983 Conspiracy

[13] All viable claims against Dr. Macdonald went for

determination to the jury, including the Muellers’ claim that

he was liable to them pursuant to 42 U.S.C. § 1983. Contrary

to the Muellers’ assertions, the substantive claims against Dr.

Macdonald were not dismissed by way of summary judgment.

As the district court correctly observed, the Muellers’ case

depended in large part upon proving as a major premise that

“Dr. Macdonald falsely exaggerated the risk to Taige Mueller

in an effort to use Detective Rogers’ [sic] statutory authority

to deprive the Muellers of their parental rights.” The jury

rejected this theory in its answer to a question put to it in a

special verdict. To the question, “Did Dr. Macdonald make a

false report of child neglect regarding Taige Mueller knowing

that said report was false?”, the jury answered “No.” Instruc10862 MUELLER v. CITY OF BOISE
tion 15, about which the Muellers now complain, was not

plain error. See Hunter v. Cnty. of Sacramento, 652 F.3d

1225, 1230 (9th Cir. 2011).

B

Battery

[14] We conclude that the district court properly dismissed

the Muellers’ battery claim against Dr. Macdonald. We

review de novo the district court’s decision granting Dr. Macdonald’s Federal Rule of Civil Procedure 50(a) motion for

judgment as a matter of law. Torres v. City of Los Angeles,

548 F.3d 1197, 1205 (9th Cir. 2008). Because Dr. Macdonald

had explicit consent from Taige’s legal guardian at the time,

the State of Idaho, to treat her, his treatment under Idaho law

cannot be a battery. Neal v. Neal, 125 Idaho 617, 622; 873

P.2d 871, 876 (1994). The Muellers’ assertion that any consent by the State was vitiated by Dr. Macdonald’s alleged

“false statements” or failure to disclose relevant information

is refuted by the record. See id. at 622, 873 P.2d at 876. In our

review of this issue, we must view the evidence in the light

most favorable to Dr. Macdonald, and draw all reasonable

inferences in favor of him. Torres, 548 F.3d at 1205. We

repeat that the jury found in a special verdict that he did not

knowingly make a false report of child neglect. Inferences

must have roots in the evidence. The inference the Muellers

ask us to make does not.

V

The Jury Instructions

[15] We review de novo jury instructions challenged as a

misstatement of the law, and the formulation of jury instructions for abuse of discretion. Gilbrook v. City of Westminster,

177 F.3d 839, 860 (9th Cir. 1999). “Jury instructions must be

formulated so that they fairly and adequately cover the issues

MUELLER v. CITY OF BOISE 10863
presented, correctly state the law, and are not misleading.”

Brewer v. City of Napa, 210 F.3d 1093, 1097 (9th Cir. 2000).

The jury instructions and the district court’s rulings in relation

to them, examined in the light of the issues and viewed as a

whole, were complete, clear, correct, and adequate to allow

the Muellers to pursue all their theories of liability.

First, the Muellers argue that the court was required to

direct the jury that there is a presumption that the parents

acted reasonably. They are mistaken because the Muellers’

reasonableness is irrelevant to the question put to the jury:

whether Taige was in imminent danger. See Wallis, 202 F.3d

at 1138.

Next, the Muellers contend that the jury instructions erroneously put the burden on them to show an absence of imminent danger. However, in a claim brought under 42 U.S.C.

§ 1983 “the plaintiff carries the ultimate burden of establishing each element of his or her claim.” Pavao v. Pagay, 307

F.3d 915, 919 (9th Cir. 2002). Because the Muellers’ claims

arise under section 1983 the jury instructions properly placed

the burden on the Muellers.

Next, the Muellers argue that the jury instructions erroneously failed to mention the officers’ duty to conduct a reasonable investigation. If there was any error here, it was

harmless. The jury instructions mentioned most of the issues

the Muellers contend should have been investigated. They

argue the officers should have investigated the risks of treatment, how long it takes to obtain a warrant, and whether Mr.

Mueller would have consented. All but the last of these were

already included in the instructions as factors for the jury to

consider. As to the remaining factor, our prior opinion in this

case ruled that the officers were not liable for failing to contact Mr. Mueller. Mueller, 576 F.3d at 995-97.

Next the Muellers argue that the jury instructions incorrectly listed as an optional factor—rather than a required

10864 MUELLER v. CITY OF BOISE
element—whether there was time to obtain a warrant. While

our cases have discussed whether there is time to hold a hearing and obtain a warrant, see, e.g., Rogers, 487 F.3d at 1294,

this factor has never supplanted the central question, which is

whether the child is in “imminent danger.”

VI

Motion for New Trial

We review the denial of a motion for new trial for abuse of

discretion. DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213, 1218

(9th Cir. 2010). “A district court may grant a new trial only

if the jury verdict is contrary to the clear weight of the evidence.” Id. “The district court’s denial of a motion for a new

trial is reversible only if the record contains no evidence in

support of the verdict or if the district court made a mistake

of law.” Id. (internal quotation marks omitted).

[16] The Muellers’ claim that the district court erroneously

denied their motion for a new trial is unsupported by the

record. The Muellers argue that the jury implicitly found that

Dr. Macdonald’s conduct could not be attributed to St. Luke’s

and argue that this implicit finding is against the weight of the

evidence, which, they argue, establishes that he was an apparent agent of St. Luke’s. The jury’s failure to find that Dr.

Macdonald was an “apparent agent” of St. Luke’s was not

against the weight of evidence. See id. The evidence was such

as to permit a reasonable factfinder to decide as this jury did.

Although the Muellers argue that the district court abused its

discretion “because the law requires some notice that the specific doctor in question . . . was an independent contractor,”

Idaho has not expressly adopted such a rule. See Jones v.

HealthSouth Treasure Valley Hosp., 147 Idaho 109, 116, 206

P.3d 473, 480 (2009). And, as we have already discussed, the

court did not err in allowing the jury to hear Dr. Rosen’s testimony. Thus, we conclude that the district court did not abuse

MUELLER v. CITY OF BOISE 10865
its discretion in denying the Muellers’ motion for a new trial.

See DSPT Int’l, Inc., 624 F.3d at 1218.

VII

Failure to Train 

We review de novo the district court’s judgment as a matter

of law in favor of the City of Boise with regard to the Muellers’ claim of failure properly to train its officers. Torres, 548

F.3d at 1205. 

[17] The court properly granted judgment as a matter of

law against the Muellers’ failure to train claim. To establish

this claim, the Muellers had to “present[ ] . . . evidence of

prior incidents” of the same character that would have made

City officials “aware of the situation such that the [City] could

reasonably be said to have been deliberately indifferent to the

need for further training.” Merrit v. Cnty. of Los Angeles, 875

F.2d 765, 771 n.10 (9th Cir. 1989) (internal quotation marks

and alteration omitted).

The Muellers presented four “prior incidents” to support

their claim. These incidents were insufficient to put the City

on notice such that it could reasonably be said to have been

deliberately indifferent to the need for further training. The

Muellers rely exclusively on reports and affidavits prepared

by officers, rather than complaints by the parents or other evidence that may have flagged these training problems for the

City. See City of Canton v. Harris, 489 U.S. 378, 398-99

(1989). Without ruling on the merits of these incidents, these

reports show officers taking measured steps to respond to lifeor-death threats to infants. Nothing in these reports would

have alerted a reviewing supervisor that the officers’ training

was so inadequate that the City can be said to have been

deliberately indifferent to the need for training.

10866 MUELLER v. CITY OF BOISE
VIII

The Protective Order

We “review the grant or denial of a motion to quash a subpoena for abuse of discretion.” In re Cal. Pub. Util. Comm’n,

892 F.2d 778, 780 (9th Cir. 1989). “Such abuses must be

unusual and exceptional; we will not merely substitute our

judgment for that of the trial judge.” Premium Serv. Corp. v.

Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975).

[18] The district court’s handling of the court’s protective

order granted to the Ada County Prosecutor’s Office was not

defective. The prosecutor’s complete file was turned over to

and examined by the court. The court in camera concluded

that the prosecutor’s file did not contain anything of significance, a point conceded during oral argument; and no adequate showing of relevance has yet been offered by the

Muellers. They made no effort to subpoena or to depose the

persons who were no longer in the prosecutor’s office who

were responsible for the material in the file, and they made no

effort to include the file under seal in the record. Given this

record, we cannot conclude that the district court abused its

discretion in granting the protective order to the Ada County

Prosecutor’s Office. See In re Cal. Pub. Util. Comm’n, 892

F.2d at 780. Furthermore, the Muellers have not made the requisite showing that they were prejudiced by the district court’s

handling of the protective order. See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 886 (9th Cir. 2002).

IX

Class Certification

We “review a district court’s order denying class certification for an abuse of discretion.” Vinole v. Countrywide Home

Loans, Inc., 571 F.3d 935, 939 (9th Cir. 2009).

MUELLER v. CITY OF BOISE 10867
[19] The Muellers argue that “class certification is particularly appropriate when membership will be determined in the

future, and the challenge is to a continuing policy.” The fatal

defect in this argument is that the Muellers have not identified

either a generic policy or a refusal to act on the part of any

of the defendants that would be subject to the broad equitable

relief they seek. See Fed. R. Civ. P. 23(b). Moreover, their

request for class certification presents itself as an attempt to

represent persons not yet involved in a case or controversy,

and it lacks any showing of commonality, typicality, or adequacy of representation. Wal-Mart Stores, Inc. v. Dukes, 564

U.S. ___, 131 S. Ct. 2541, 2551-57 (2011). “[T]o the extent

that [the Muellers] seek[ ] to represent a class of parents who

might in the future have their children removed, [they] lack[ ]

standing.” Caldwell, 928 F.2d at 335. The broad relief sought

by the Muellers is properly addressed as a matter of policy to

the legislature, not the courts. Thus, we conclude that the district court’s decision to deny the Muellers class certification

was correct.

CONCLUSION

As best, this case involves a series of nighttime emergency

room judgments and decisions made under pressure about

which people might differ. At the end of the day, however, a

jury of their peers decided on the basis of a full and fair airing

of their evidence that the Muellers had not proved their case.

Doctors nowadays—especially in emergency rooms—and

police officers face daunting challenges, one of which is state

law requiring them to report to state authorities possible child

abuse, endangerment, or neglect. Their failure to do so lands

them in serious trouble. Also, a doctor’s failure to recognize

possible meningitis is equally problematic—as we discover

from the testimony of Dr. Shapiro, the Muellers’ expert witness.

Society has seen fit to qualify parental rights in certain circumstances in favor of the life and liberty rights of a child.

10868 MUELLER v. CITY OF BOISE
When the statutory due process used to actualize a child’s

right as recognized by state law comes into play, understandably parents will be upset. This case illustrates the validity of

Justice Rehnquist’s observation in Santosky v. Kramer, 455

U.S. 745, 771 (1982) (Rehnquist, J. dissenting), that “[s]tate

intervention in domestic relations has always been an

unhappy but necessary feature of life in our organized society.” If anything, the completed record shows that Dr. Macdonald exercised his best judgment in an emergency setting in

favor of ensuring an infant’s safety from the very peril that

caused her mother to take her in the middle of the night to a

hospital emergency room. This is hardly the stuff of which a

cognizable civil rights violation can be made. 

AFFIRMED.

MUELLER v. CITY OF BOISE 10869