UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE MURGUIA, for himself and for No. 21-16709 the Estates of Mason and Maddox Murguia, D.C. No. Plaintiff-Appellant, 1:19-cv-00942- DAD-BAM v. HEATHER LANGDON; COUNTY OPINION OF TULARE; LEWIS, Deputy at Tulare County Sheriff Department; ROXANNA TORRES, Social Worker at the Child Welfare Service; CITY OF TULARE; GARCIA, Sergeant at Tulare Police Department; FIRST ASSEMBLY OF GOD OF VISALIA; CERDA, Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Argued and Submitted December 6, 2022 Pasadena, California

Filed March 14, 2023 2 MURGUIA V. LANGDON

Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan Christen, Circuit Judges.

Opinion by Judge Bea; Partial Dissent by Judge Ikuta

SUMMARY *

Civil Rights

In an action brought pursuant to 42 U.S.C. § 1983 involving the application of the “state-created danger” doctrine in the context of a welfare check, the panel reversed in part and vacated in part the district court’s dismissal of Plaintiffs’ action for failure to state a claim, and remanded. According to the First Amended Complaint, Plaintiff Jose Murguia called 911 seeking emergency mental health assistance for Heather Langdon, with whom he lived and had five children. This call set in motion a chain of events that ultimately led to the death of Langdon’s and Jose’s ten- month-old twin sons, at Langdon’s own hand. Over the course of that day, Langdon interacted with three groups of law enforcement officers. First, Tulare County Sheriff’s Department Deputies Lewis and Cerda arrived at the Murguia home where they separated Jose from Langdon, leaving her with the twins; the deputies then allowed Langdon and a neighbor (Rosa) to take the twins to * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MURGUIA V. LANGDON 3

a church and prevented Jose from following. Second, a City of Visalia police officer drove Langdon and the twins from the church to a women’s shelter. Third, City of Tulare police officers, acting in part based on information provided by a County of Tulare social worker, transported Langdon and the twins from the shelter to a motel to spend the night. Left unsupervised at the motel where she continued to suffer from a mental health crisis, Langdon drowned the twins. The panel first made clear that the only two exceptions to the general rule against failure-to-act liability for § 1983 claims presently recognized by this court were the special- relationship exception and the state-created danger exception. The panel therefore rejected Plaintiffs’ assertion that the failure to comply with a legally required duty, without more, can give rise to a substantive due process claim. The panel further held that the district court correctly held that the special-relationship exception did not apply here because Defendants did not have custody of the twins. The panel next held that Plaintiffs’ state-created danger claim against deputies Lewis and Cerda failed because Plaintiffs failed to allege facts from which one could plausibly conclude that Defendants created or enhanced any danger to the twins. The panel could not say, however, that amendment would be futile given Plaintiffs’ vague allegations and because the district court applied an incorrect “custody” standard—asking whether the twins were in Langdon’s custody before and after Lewis and Cerda intervened rather than asking whether the twi