IRVINE H. LEEN and ALETA LEEN v. Harold M. Thomas, an individual;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IRVINE H. LEEN and ALETA LEEN,
Plaintiffs-Appellants,
v.
HAROLD M. THOMAS, an individual; et
al.,
Defendants-Appellees.
No. 16-15916
D.C. No.
2:12-cv-01627-TLN-CMK
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted December 7, 2017
San Francisco, California
Before: LUCERO,** RAWLINSON, and OWENS, Circuit Judges.
Plaintiffs-appellants Irvine and Aleta Leen appeal from the district court’s
dismissal of their fourth amended complaint under Fed. R. Civ. P. 12(b)(6). As the
parties are familiar with the facts, we do not recount them here. We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
FILED
DEC 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
jurisdiction under 28 U.S.C. § 1291, and we vacate the judgment and remand the
case with instructions.
1. Generally, “a federal appellate court does not consider an issue not
passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). Because the
district court’s dismissal order omitted discussion of the Leens’ equal-protection
claim, we vacate the dismissal of that claim and return the case for further
proceedings. On remand, the district court should explain the grounds for its
decision to dismiss the equal-protection claim. Should the court conclude that the
Leens have plausibly pleaded a violation of their right to equal protection, it should
next consider whether that right was “clearly established,” White v. Pauly, 137 S.
Ct. 548, 551 (2017) (per curiam), and thus whether the defendants-appellees are
immune from suit for money damages, Reichle v. Howards, 566 U.S. 658, 664
(2012); see also, e.g., Gerhart v. Lake Cty., 637 F.3d 1013, 1024-25 (9th Cir.
2011).
2. In addition to the remand to address the Equal Protection Clause claim
more fully, we also vacate the dismissal of the Leens’ procedural and substantive
due-process claims. The district court dismissed these claims on the ground that
the Leens did not possess a constitutionally protected property interest in either
their water license or an amendment to that license. On remand, the district court
may wish to consider whether the Leens’ application for a change of point of

-- 2 of 4 --

3
diversion is different for due-process purposes from the water license underlying it.
See Morongo Band of Mission Indians v. State Water Res. Control Bd., 199 P.3d
1142, 1145 (Cal. 2009) (suggesting that a California water license is a property
interest protected by due process). The court should also consider that procedural
and substantive due-process claims are distinct causes of action. To succeed on a
substantive due-process claim, a plaintiff must plead and prove official conduct
that “shocks the conscience,” rather than merely a denial of process. Sylvia
Landfield Tr. v. City of Los Angeles, 729 F.3d 1189, 1195 (9th Cir. 2013); see also,
e.g., Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-47 (1998) (“[T]he substantive
component of the Due Process Clause is violated by executive action only when it
can properly be characterized as arbitrary, or conscience shocking, in a
constitutional sense.” (internal quotation marks omitted)).
Moreover, because of its holding on the threshold property-interest issue, the
district court did not address whether the Leens have plausibly pleaded the other
elements of a due-process violation or, assuming they had, whether the defendants-
appellees are entitled to qualified immunity from suit for such an alleged violation.
The court also did not have occasion to address whether the Leens have plausibly
pleaded individual liability against defendant-appellee Michael Ramsey. We
vacate the dismissal of the Leens’ due-process claims and remand the case so that
the district court may consider and address each of these issues in the first instance.

-- 3 of 4 --

4
Singleton, 428 U.S. at 120.
3. We express no opinion on whether the Leens have plausibly pleaded any
constitutional violation by any of the defendants-appellees or on whether the
defendants-appellees are entitled to qualified immunity. As to the second question,
“clearly established law” should not be defined “at a high level of generality,”
White, 137 S. Ct. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)),
and instead “must be ‘particularized’ to the facts of the case,” id. “We do not
require a case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.
4. Each party shall bear its own costs.
VACATED AND REMANDED.

-- 4 of 4 --