FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CLAUDIA HERRERA; CESAR ORTIZ, No. 20-55054 Plaintiffs-Appellants, D.C. No. v. 8:17-cv-00069- JVS-KES LOS ANGELES UNIFIED SCHOOL DISTRICT, a public entity; JOSE HUERTA; JOSE LOPEZ; DOES; LOS OPINION ANGELES UNIFIED SCHOOL DISTRICT, Defendants-Appellees, and COUNTY OF LOS ANGELES, Defendant. Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Argued and Submitted August 30, 2021 Pasadena, California Filed December 1, 2021 Before: Sandra S. Ikuta, Mark J. Bennett, and Ryan D. Nelson, Circuit Judges. Opinion by Judge R. Nelson 2 HERRERA V. LAUSD SUMMARY * Civil Rights The panel affirmed the district court’s order granting summary judgment to defendants on a claim for deprivation of familial relationship, brought under 42 U.S.C. § 1983 by the parents of a disabled high school student who drowned while on a field trip to a pool. The panel held that the Fourteenth Amendment’s Due Process Clause generally does not provide an affirmative right to government aid, but a state’s failure to protect may give rise to a § 1983 claim under the state-created danger exception, which applies when the state affirmatively places the plaintiff in danger by acting with deliberate indifference to a known or obvious danger. The panel held that following Kingsley v. Hendrickson, 576 U.S. 389 (2015), and Castro v. Cty. of L.A., 833 F.3d 1060 (9th Cir. 2016) (en banc), an objective deliberate-indifference standard has been applied in excessive force and detention cases, but this court has continued to apply a subjective standard in all state-created danger claims and in non-detainee failure-to-protect claims. The panel therefore applied a subjective standard. Plaintiffs contended that a school aide was deliberately indifferent because he recognized an unreasonable risk to their son and intended to expose him to that risk without regard for the consequences when (1) the boy returned to the pool after entering the locker room area and (2) earlier in the day when the aide allowed the boy to go to the pool, did not * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. HERRERA V. LAUSD 3 enter the pool to watch him, and lost sight of him for at least a few minutes. The panel held that these facts, viewed in the light most favorable to plaintiffs, did not constitute deliberate indifference under the subjective test. The panel addressed additional claims in an accompanying memorandum disposition. COUNSEL Holly N. Boyer (argued) and Kathleen J. Becket, Esner Chang & Boyer, Pasadena, California; Michael S. Carrillo and Luis A. Carrillo, Carrillo Law Firm LLP, South Pasadena, California; for Plaintiffs-Appellants. Joseph R. Zamora (argued), Law Offices of Joseph R. Zamora, Santa Monica, California; Rudulfo F. Ruiz, Vanderford & Ruiz LLP, Pasadena, California; for Defendants-Appellees. OPINION R. NELSON, Circuit Judge: Erick Ortiz, an autistic high school student, drowned while on a field trip in June 2014. The district court …
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