UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DESIREE MARTINEZ, No. 22-16335

Plaintiff-Appellant, D.C. No. 1:15-cv-00683- v. DAD-SKO CHANNON HIGH, OPINION Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted August 22, 2023 San Francisco, California

Filed January 26, 2024 Before: Patrick J. Bumatay, Lucy H. Koh, and Roopali H. Desai, Circuit Judges.

Opinion by Judge Desai; Concurrence in Judgment by Judge Bumatay 2 MARTINEZ V. HIGH

SUMMARY *

Qualified Immunity/State-Created Danger Doctrine

The panel affirmed the district court’s summary judgment order granting qualified immunity to Channon High, a City of Clovis police officer, in an action brought pursuant to 42 U.S.C. § 1983 by Desiree Martinez, alleging that Officer High violated her due process rights under the state-created danger doctrine when she disclosed Martinez’s confidential domestic violence report to Martinez’s abuser Kyle Pennington, another Clovis police officer. The panel first determined that the district court did not abuse its discretion by entertaining Officer High’s successive summary judgment motion on remand from this court’s decision in Martinez’s prior interlocutory appeal. Addressing the merits, the panel held that Officer High violated Martinez’s due process rights. Although state actors generally are not liable for failing to prevent the acts of private parties, an exception to this rule—the “state- created danger” exception—applies where the state affirmatively places the plaintiff in danger by acting with deliberate indifference to a known or obvious danger. Here, Officer High’s affirmative conduct of disclosing Martinez’s confidential complaint to Pennington, whom Officer High knew was an alleged abuser, placed Martinez in actual, foreseeable danger. Officer High also acted with deliberate indifference toward the risk of future abuse, given that she

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MARTINEZ V. HIGH 3

knew Pennington was violent and under investigation for domestic violence. The panel nevertheless held that Officer High was entitled to qualified immunity because it was not clearly established in 2013 that Officer High’s conduct violated Martinez’s substantive due process rights. The panel clarified that going forward, an officer is liable under the state-created danger doctrine when the officer discloses a victim’s confidential report to a violent perpetrator in a manner that increases the risk of retaliation against the victim. Concurring in the judgment, Judge Bumatay agreed with the majority’s conclusion that Officer High was properly afforded an opportunity to file a successive summary judgment motion and that she was entitled to qualified immunity based on the lack of any clearly established law. Because no clearly established law existed at the time of the incident, it was unnecessary to reach whether Martinez’s allegations against Officer High amount to a claim under the state-created danger doctrine.

COUNSEL Kevin G. Little (argued), Law Office of Kevin G. Little, Fresno, California, for Plaintiff-Appellant. Suzanne M. Nicholson (argued), Suzanne M. Nicholson Attorney at Law, Sacramento, California; Bruce D. Praet, Ferguson Praet & Sherman, Santa Ana, California; for Defendant-Appellee. 4 MARTINEZ V. HIGH