JACKIE CHAGOLLA, Parent on behalf of B.C. on behalf of P.C. v. Liz Vullo;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACKIE CHAGOLLA, Parent on behalf of
B.C. on behalf of P.C.,
Plaintiff-Appellant,
v.
LIZ VULLO; et al.,
Defendants-Appellees,
and
AZ DCS; et al.,
Defendants.
No. 20-15078
D.C. No. 2:17-cv-01811-DGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Chagolla’s request for oral
argument, set forth in the reply brief, is denied.
FILED
JAN 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Jackie Chagolla appeals pro se from the district court’s summary judgment
in her 42 U.S.C. § 1983 action alleging federal claims. We have jurisdiction under
28 U.S.C. § 1291. We review de novo. Kohler v. Bed Bath & Beyond, LLC,
780 F.3d 1260, 1263 (9th Cir. 2015). We affirm.
The district court properly granted summary judgment on Chagolla’s due
process claim against defendant Solis stemming from the removal of Chagolla’s
children from her custody because Chagolla failed to raise a genuine dispute of
material fact as to whether Solis lacked reasonable cause to believe the children
were in imminent danger of serious bodily injury. See Demaree v. Pederson, 887
F.3d 870, 878-79 (9th Cir. 2018) (explaining circumstances in which officials may
constitutionally remove children from their parents temporarily without prior
judicial authorization).
The district court properly granted summary judgment on Chagolla’s due
process claim against defendant Solis related to Solis’s investigation because
Chagolla failed to raise a triable dispute as to whether the alleged conduct shocked
the conscience. See Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101,
1111 (9th Cir. 2010) (“The Court has repeatedly spoken of the cognizable level of
executive abuse of power as that which shocks the conscience.” (citation and
internal quotation marks omitted)); Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th
Cir. 2001) (en banc) (no due process right to have a child abuse investigation

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carried out in a particular way or have witnesses interviewed in a particular
manner).
The district court properly granted summary judgment on Chagolla’s
defamation-plus claim against defendants Solis, Ward, and Holya because
Chagolla failed to raise a triable dispute as to whether the contested statements
were provably false assertions of fact. See Crowe v. County of San Diego, 608
F.3d 406, 443 (9th Cir. 2010) (“In order to fall outside the scope of First
Amendment protection, an alleged defamatory statement must contain a provably
false factual connotation.” (citation and internal quotation marks omitted)).
The district court properly granted summary judgment on Chagolla’s § 1983
claims against defendant Vullo because Chagolla failed to raise a triable dispute as
to whether Vullo acted under color of state law. See Kirtley v. Rainey, 326 F.3d
1088, 1092-96 (9th Cir. 2003) (explaining that a § 1983 plaintiff must show the
defendant “acted under color of state law” and the tests to determine state action;
the central question is whether the alleged constitutional violation is fairly
attributable to the government).
To the extent the district court erred by determining that the Arizona
Department of Child Safety (“DCS”) was not a party, any error was harmless
because Chagolla’s claims against DCS are barred by the Eleventh Amendment.
See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“[I]n

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the absence of consent a suit in which the State or one of its agencies or
departments is named as the defendant is proscribed by the Eleventh
Amendment.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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