Wright v. Southern Arizona Children's Advocacy Center ( 2022 )

1 WO 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 Brian Wright, et al., No. CV-21-00257-TUC-JGZ 9 Plaintiffs, ORDER 10 v. 11 Southern Arizona Children's Advocacy Center, et al., 12 Defendants. 13 14 This civil rights action arises out of an investigation into the alleged abuse of LAW, 15 a minor who was removed from school and subjected to an invasive physical examination 16 without the consent or knowledge of his parents. In their First Amended Complaint (FAC), 17 Plaintiffs LAW and his family members assert constitutional claims against the Town of 18 Sahuarita, the Sahuarita Police Department (SPD), and individual SPD officers1 (Sahuarita 19 Defendants); the Southern Arizona Department of Child Safety (AZDCS) and its 20 employees (AZDCS Defendants);2 and the Southern Arizona Children’s Advocacy Center 21 (SACAC or Advocacy Center) and its Director, Dr. Dale Woolridge. (Doc. 15 at 2.) The 22 1 SPD employees named in the FAC are Detective Thomas Johnston, Detective Christin 23 Pelayo, and Officer Melina Carrizosa. (Doc. 15 at 3–4.) 24 2 DCS employees named in the FAC are DCS Specialist Gerardo Talamantes, Supervisor Meghean Francisco, On-Going Case Manager Joana Encinas, Supervisor Jeannette 25 Sheldon, Supervisor Betina Noriega, Facilitator Brian Maldanado, South Region Program 26 Manager Michelle Orozco, and Supervisor Jason Dedmon. (Id. at 4–5.) The Court dismissed Jason Dedmon pursuant to the parties’ stipulation. (Doc. 34.) The 27 Court also dismissed Defendants Encinas and Sheldon from Claims Eighteen, Nineteen, and Twenty. (Id.) Defendant Maldanado is mentioned in the FAC, but Plaintiffs do not 28 allege any claims against Defendant Maldanado. Accordingly, the Court will dismiss Maldanado without prejudice. 1 Advocacy Center and Dr. Woolridge filed an answer to the FAC. (Docs. 25, 27.) Pending 2 before the Court are the motions to dismiss filed by the Sahuarita and AZDCS Defendants. 3 (Docs. 30, 37.) The motions, which are fully briefed, challenge the Court’s subject matter 4 jurisdiction and assert the defenses of issue preclusion and qualified immunity. (Docs. 30, 5 43, 60; Docs. 37, 55, 62.) 6 Oral Argument on the motions to dismiss was held on June 14, 2022. (Doc. 72.) 7 Before oral argument, Plaintiffs filed a Request for Judicial Notice of Adoption and two 8 Notices of Supplemental Authority. (Docs. 63, 68, 73.) The request for judicial notice is 9 also fully briefed. (Docs. 63, 64, 66.) 10 For the following reasons, the Court will grant the motions to dismiss in part and 11 deny the motions in part. The Court will grant the request for judicial notice. 12 LEGAL STANDARD 13 To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which 14 relief can be granted, “[f]actual allegations must be enough to raise a right to relief above 15 the speculative level, . . . on the assumption that all the allegations in the complaint are true 16 (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 17 (citations and internal quotation marks omitted). “While a complaint attacked by a Rule 18 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s 19 obligation to provide the grounds of his entitle[ment] to relief requires more than labels 20 and conclusions, and a formulaic recitation of the elements of a cause of action will not 21 do.” Id. (citations and internal quotation marks omitted). “[O]nce a claim has been stated 22 adequately, it may be supported by showing any set of facts consistent with the allegations 23 in the complaint.” Id. at 563. Dismissal is appropriate under Rule 12(b)(6) if the facts 24 alleged do not state a claim that is “plausible on its face.” Id. at 569. “A claim has facial 25 plausibility when the plaintiff pleads factual content that allows the court to draw the 26 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 27 Iqbal, 556 U.S. 662, 678 (2009). When assessing the sufficiency of the complaint, all well- 28 pleaded factual allegations are taken as true and construed in the light most favorable to 1 the nonmoving party, Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018), and all 2 reasonable inferences are to be drawn in favor of that party as well. Caltex Plastics, Inc. v. 3 Lockheed Martin Corp., 824 F.3d 1156, 1159 (9th Cir. 2016). 4 BACKGROUND3 5 Plaintiff LAW lives with his father, Brian Wright; his stepmother, Irlanda Wright; 6 his sibling LW; his stepsibling, MZ-G; and his halfsibling, MW. (Doc. 15 ¶¶ 10–14, 26.) 7 At the time of the events in this suit, LAW was a first-grade student at Copper View 8 Elementary School in the Sahuarita Unified School District. (Id. ¶ 27.) As a result of an 9 underlying medical condition, LAW was required to wear pull ups. (Id. ¶¶ 24, 27.) LAW’s 10 father, Mr. Wright, and the school agreed that, when LAW was at school, LAW would 11 report as needed to the school nurse, Jessica Mendez, who would change LAW’s pull ups. 12 (Id.) 13 On December 16, 2020, when the school nurse was changing LAW’s pull up, she 14 observed a bruise on LAW’s hamstring midway between the bottom of the buttock and the 15 knee. (Id. ¶ 37.) The mark looked like it could have been caused by a belt. (Id. ¶ 38.) 16 Mendez conferred with other school officials and, consistent with mandatory reporter 17 obligations, a call was made to AZDCS and SPD to report suspected child abuse. (Id. ¶¶ 18 38–39.) 19 SPD Officer Carrizosa and Detective Johnston responded to the school and observed 20 the marks on LAW. (Id. ¶¶ 40–42.) Without informing LAW’s parents, the officers “took 21 custody” of LAW and transported him to the Advocacy Center. (Id. ¶¶ 43–44.) The 22 Advocacy Center then took custody of LAW, at the direction of the officers, and 23 interviewed LAW while the officers observed the interview through a one-way mirror. (Id. 24 ¶ 46.) During the interview, LAW stated that his stepmother, Mrs. Wright, had recently hit 25 him with a belt. (Id. ¶ 47.) He also mentioned that his mother had hit him with a Hot Wheels 26 3 The facts included in this Background are taken from the FAC which is 79 pages long 27 and contains 299 allegations and 37 pages of attachments. (Doc. 15.) This Background Section is brief but additional factual allegations are included as necessary in the 28 discussion. The Court recognizes that in evaluating the motions to dismiss, the Court must accept the factual allegations in the FAC as true. See Twombly, 550 U.S. at 555. 1 track when he was four years old. (Id.) 2 The officers asked Dr. Woolridge to conduct a medical examination of LAW. (Id. ¶ 3 48.) Dr. Woolridge conducted an invasive examination, which Detective Johnston 4 documented and photographed. (Id. ¶¶ 53–54.) The medical exam of LAW documented 5 “multiple contusions — location & nature of lesions concerning for inflicted injury.” (Id. 6 ¶ 55.) The medical report described the original mark on the left hamstring as “wrapping 7 effect implies flexible nature of impact object” and “impact silhouette indicating nature 8 and shape of implement used.” (Id.) The report concluded, “contusions @ different stages 9 of healing suggests injury events over a series of days . . . .” (Id.) After the examination, 10 LAW was turned over to AZDCS Specialist Talamantes. (Id. ¶¶ 58–60.) 11 AZDCS staff determined that LAW was in imminent danger of physical abuse and 12 would not release LAW from its custody until the parents signed off on a “Present Danger 13 Plan.” (Id. ¶ 60.) Mr. Wright agreed to the Plan so that AZDCS would not seize LAW or 14 place him in foster care. (Id. ¶ 63.) The Plan required a safety monitor to live in the home 15 twenty-four seven and prohibited either parent from having contact with LAW in the 16 absence of the safety monitor. (Id. ¶ 60.) 17 During this same time period, SPD officers applied for and obtained a warrant to 18 search the Plaintiffs’ home for the belt or Hot Wheels racetrack, which might have made 19 the mark on LAW’s buttocks, as well as “[a]ny other fruits, instrumentalities or evidence 20 of” child abuse. (Id. ¶ 64.) The warrant was issued and officers subsequently searched the 21 home, separating the family during the execution of the search warrant. (Id. ¶ 65–67.) 22 During the search, officers required LW and MZ-G to change into their swimsuits, and 23 MZ-G to disrobe and expose his genitals and buttocks. (Id. ¶ 67.) Officers seized two belts 24 and a Hot Wheels set. (Id. ¶ 68.) Later that night, SPD determined there was no probable 25 cause to bring charges against either parent and closed its investigation. (Id. ¶ 69.) 26 On December 27, 2020, after its own investigation, AZDCS Specialist Talamantes 27 filed a sworn application for ex parte seizure of LAW. (Id. ¶ 77.) The order was issued and 28 LAW was temporarily removed from his home. (Id. ¶¶ 78–79.) AZDCS subsequently filed 1 a Petition for Dependency. (Id. ¶ 87.) From January 2021 through October 2021, the matter 2 was adjudicated in the Juvenile Court, and certain restrictions were imposed, limiting Mr. 3 and Mrs. Wright’s contact with LAW. (Id. ¶¶ 90–102.) On April 18, 2021, LAW was 4 returned to the Wright’s home, but was removed again in June when the safety monitor 5 was not present in the home. (Id. ¶¶ 104–05, 112–20.) Thereafter LAW was placed in 6 various locations, including a group home, until June 25, 2021, when he was returned 7 home. (Id. ¶¶ 121–136.) Plaintiffs allege that, during this time period, AZDCS obstructed 8 their efforts to reunify with LAW. (Id. ¶¶ 95, 97, 99, 100.) 9 On August 19, 2021, AZDCS recommended that the Safety Plan be lifted and the 10 Dependency action be dismissed, but on August 26, the Department reversed its position, 11 stating it intended to continue the Dependency and continue legal custody and control of 12 LAW. (Id. ¶¶ 141–42.) Plaintiffs allege that, on no grounds whatsoever, Defendants then 13 obstructed the return of legal custody and control of LAW to his parents for the next 50 14 days. (Id. ¶ 143.) 15 In their First Amended Complaint, Plaintiffs allege violations of their constitutional 16 rights by Sahuarita, SPD, and SPD employees (Claims One to Four, Ten to Fourteen, and 17 Twenty-Three), and by AZDCS and its employees (Claims Fifteen to Twenty-Three). (Id. 18 ¶¶ 144–161, 207–295.) Plaintiffs also seek declaratory and injunctive relief against 19 Sahuarita (Claim Twenty-Three), alleging that the Advocacy Center Protocols are facially 20 unconstitutional. (Id. ¶ 298.)4 21 DISCUSSION 22 In addressing the Defendants’ motions to dismiss, the Court first considers 23 Defendants’ arguments related to subject matter jurisdiction, standing, and issue 24 preclusion. (Doc. 30 at 18; Doc. 37 at 8–15.) The Court then considers Defendants’ 25 qualified immunity challenges and arguments that the FAC’s factual allegations are 26 insufficient to state a claim. (Doc. 30 at 10–18; Doc. 37 at 15–30.) 27 4 Plaintiffs’ claims against the Advocacy Center and Dr. Wooldridge (Claims Five to Nine, 28 Twenty-Three) are not at issue in the pending motions. (See Doc. 15 ¶¶ 168–206, 295–99; Docs. 25, 27.) 1 I. Subject Matter Jurisdiction 2 A. Lack of Standing 3 Plaintiffs allege familial association and due-process claims under the First and 4 Fourteenth Amendments in Claims Fifteen to Twenty-Two. (Doc. 15 ¶¶ 232–94.) 5 Defendants argue that Mrs. Wright, LW, MG-Z, and MW lack standing to assert such 6 claims. (Doc. 30 at 18; Doc. 37 at 8.) Defendants state that, historically, the Supreme Court 7 holdings on familial association claims involve biological families, and Plaintiffs have 8 failed to allege any facts that would otherwise give standing to LAW’s stepmother and 9 stepsiblings. (Doc. 37 at 9.) Defendants also argue that, as a sibling, LW does not have a 10 protected liberty interest in LAW’s companionship. (Id. at 8–9.) 11 Standing under Article III of the Constitution is a limitation on a district court’s 12 subject matter jurisdiction and is properly addressed in a motion to dismiss under Rule 13 12(b)(1). Catacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). The injury in fact 14 requirement of standing requires plaintiffs to show that they suffered “an invasion of a 15 legally protected interest.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). 16 1. Irlanda Wright 17 Under the Fourteenth Amendment, “a parent has a constitutionally protected liberty 18 interest in the companionship . . . of his or her child.” Ward v. City of San Jose, 967 F.2d 19 280, 283 (9th Cir. 1991) (citing Kelson v. City of Springfield, 767 F.2d 651, 655 (9th Cir. 20 1985)). But “even biological parents must maintain consistent involvement in a child’s life 21 and participation in child-rearing activities for their relationship to be entitled to Fourteenth 22 Amendment protections.” Wheeler v. City of Santa Clara, 894 F.3d 1046, 1058 (9th Cir. 23 2018). The First Amendment similarly protects “certain intimate human relationships.” 24 Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th Cir. 1995) (quoting Roberts v. 25 United States Jaycees, 468 U.S. 609, 617–18, (1984)). The First Amendment right of 26 association “protects those relationships, including family relationships, that presuppose 27 ‘deep attachments and commitments to the necessarily few other individuals with whom 28 one shares not only a special community of beliefs but also distinctly personal aspects of 1 one’s life.’” Bd. of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545– 2 46 (1987) (internal citation omitted). 3 Plaintiffs acknowledge that Mrs. Wright was not LAW’s parent at the time of the 4 events giving rise to the claims, but argue that the allegations that LAW’s father was 5 married to Mrs. Wright and that she had nearly completed the process of adopting LAW 6 are sufficient to establish standing. (Doc. 55 at 7.) The Court disagrees. 7 Plaintiffs’ factual allegations do not establish that Mrs. Wright had an intimate 8 relationship with LAW. Plaintiffs fail to allege facts showing the nature or length of the 9 relationship or certain basic elements that are traditionally recognized as characteristic of 10 family. See Wheeler, 894 F.3d at 1058 (finding no standing in absence of allegations that 11 the biological parent had “raised [the child], otherwise resumed responsibility for his 12 upbringing, or even maintained consistent contact with him during childhood.”). The fact 13 that Mrs. Wright is now LAW’s legal parent5 does not change the Court’s conclusion. 14 Plaintiffs have failed to show that Mrs. Wright was LAW’s parent or had a protected 15 interest at the time of the alleged injury.6 Because Plaintiffs’ allegations do not establish 16 that she had a legally protected interest as LAW’s stepparent, the Court will dismiss Mrs. 17 Wright’s familial association claims in Claims Two, Four, and Fifteen to Twenty-Three. 18 2. LAW’s Siblings 19 Binding precedent precludes Plaintiffs’ argument that LAW’s siblings have 20 standing to assert familial association claims. See Ward v. San Jose, 967 F.2d 280, 283–84 21 22 5 Plaintiffs request that the Court take judicial notice of Mrs. Wright’s recent adoption of LAW, a request that Defendants oppose. (Docs. 63, 64.) The Court will grant the motion 23 for judicial notice. In evaluating a motion to dismiss for failure to state a claim, “courts must consider the complaint in its entirety, as well as . . . matters of which a court may take 24 judicial notice.” See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Under Fed. R. Evid. 201, a court may take judicial notice at any stage of the proceedings 25 “as long as the facts noticed are not subject to reasonable dispute.” Skilstaf, Inc. v. CVS 26 Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012). Defendants do not dispute the authenticity of the adoption order. 27 6 The Court also rejects Plaintiffs’ argument that Mrs. Wright’s claims should be allowed 28 to proceed to discovery; the information needed to establish standing is in the Plaintiffs’ possession. 1 (9th Cir. 1991) (concluding sibling does not have a cognizable constitutional interest to 2 assert a loss of familial association claim as to another sibling); see also J.P. by and through 3 Villanueva v. Cnty. of Alameda, 803 Fed. App’x 106, 109 (9th Cir. 2020) (unpublished) 4 (“In Ward v. San Jose [], we explicitly ruled that siblings do not possess a cognizable liberty 5 interest to assert a loss of familial association claim under the Fourteenth Amendment. No 6 basis exists to disregard this precedent simply because the claim is raised under the First 7 Amendment rather than the Fourteenth Amendment.”). Accordingly, the Court will dismiss 8 with prejudice the familial association claims brought by LAW’s sibling, stepsibling, and 9 halfsibling in Claims Seventeen to Eighteen and Twenty to Twenty-Three. 10 B. Application of Rooker-Feldman Doctrine 11 AZDCS Defendants assert Plaintiffs’ claims for violation of due process under the 12 First and Fourteenth Amendments are barred by the Rooker-Feldman doctrine because the 13 Plaintiffs are seeking federal appellate review of the state court dependency proceedings. 14 (Doc. 37 at 14.) Under the Rooker-Feldman doctrine, “a federal district court does not have 15 subject matter jurisdiction to hear a direct appeal from the final judgment of a state court.” 16 Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003). Claims are barred under the doctrine 17 “when the federal plaintiff both asserts as her injury legal error or errors by the state court 18 and seeks as her remedy relief from the state court judgment.” Kougasian v. TMSL, Inc., 19 359 F.3d 1136, 1140 (9th Cir. 2004) (emphasis in original). 20 The Rooker-Feldman doctrine does not bar Plaintiffs’ claims. First, Plaintiffs allege 21 their injuries were caused by the Defendants’ actions, not by errors made by the state court. 22 Second, Plaintiffs do not seek relief from any state court judgment or order. Rather, 23 Plaintiffs seek damages from the Defendants. Thus, dismissal on this ground is not 24 warranted. 25 II. Issue Preclusion 26 AZDCS Defendants assert Plaintiffs’ claims are barred by issue preclusion because 27 Plaintiffs had a full and fair opportunity to litigate the sufficiency of the ex parte removal 28 order, the taking of temporary custody, the repeated orders to keep LAW in temporary 1 custody, LAW’s dependency adjudication, and other findings regarding services 2 implemented by AZDCS to reunify the family. (Doc. 37 at 11.) Defendants note that 3 Plaintiffs were appointed counsel and were able to ask for and have contested evidentiary 4 hearings regarding those issues. (Id.) Further, AZDCS Defendants assert that the parties 5 actually did litigate these issues and a final judgment was entered against Plaintiffs Mr. 6 Wright and LAW. (Id. at 14.) 7 “[A] federal court considering whether to apply issue preclusion based on a prior 8 state court judgment must look to state preclusion law.” McInnes v. California., 943 F.2d 9 1088, 1092–93 (9th Cir. 1991); see also Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 933 10 (9th Cir. 2001). Under Arizona law, issue preclusion applies when “a fact was actually 11 litigated in a previous suit, a final judgment was entered, and the party against whom the 12 doctrine is to be invoked had a full opportunity to litigate the matter and actually did litigate 13 it and the fact was essential to the prior judgment.” Crosby-Garbotz v. Fell in and for Cnty. 14 of Pima, 434 P.3d 143, 146 (Ariz. 2018) (cleaned up). “The party contending that an issue 15 has been conclusively litigated and determined in a prior action has the burden of proving 16 that contention.” Airfreight Exp. v. Evergreen Air Ctr., Inc., 158 P.3d 232, 238 (Ariz. Ct. 17 App. 2007) (quoting Restatement (Second) of Judgments § 27 cmt. F (1982)). 18 AZDCS Defendants fail to establish that Plaintiffs actually litigated during the state 19 court dependency proceedings the issues presented in their federal complaint. Defendants 20 describe the continuous-review process created by the Arizona legislature and the Arizona 21 Supreme Court, but Defendants do not show that Plaintiffs challenged, or could have 22 challenged, in this process and in the dependency proceedings, the alleged violations of 23 their constitutional rights asserted in the case at bar. Defendants cite numerous § 1983 cases 24 where federal courts held that a probable cause claim was precluded by the state court’s 25 determination of that claim in a separate state court action. (See Doc. 62 at 12.) However, 26 in each of those cases, the court pointed to the specific state court proceeding in which the 27 plaintiff had challenged probable cause and the state court had resolved the challenge. 28 Defendants fail to make such a showing here. In fact, at oral argument, defense counsel for 1 AZDCS stated only that Plaintiffs had ample opportunity to present evidence to the 2 Juvenile Court and “presumably” they did that. Dismissal based on issue preclusion is thus 3 unwarranted. 4 III. Qualified Immunity 5 Both the AZDCS and the Sahuarita Defendants seek to dismiss all constitutional 6 claims against them on qualified immunity grounds. (Doc. 30 at 10–18; Doc. 37 at 15–26.) 7 Applying the qualified immunity doctrine, Defendants argue that Plaintiffs fail both to 8 plead a constitutional violation and to show an alleged violation of clearly established law. 9 (Doc. 30 at 10–18; Doc. 37 at 15–26.) 10 “Qualified immunity shields a police officer from liability for civil damages under 11 Section 1983 ‘unless the officer violated a clearly established constitutional right.’” 12 Williamson v. National City, 23 F.4th 1146, 1151 (9th Cir. 2022) (internal citation omitted). 13 A defendant may properly raise qualified immunity in a motion to dismiss. Keates v. Kolie, 14 883 F.3d 1228, 1235 (9th Cir. 2018) (discussing the standard of review for qualified 15 immunity on a motion to dismiss). On a motion to dismiss for qualified immunity, the court 16 “consider[s] two different questions: (1) whether, taken in the light most favorable to the 17 party asserting the injury, the facts alleged show the officer’s conduct violated a 18 constitutional right; and (2) if so, whether the right was clearly established.” Id. at 1235 19 (cleaned up). The two prongs of the qualified immunity test “raise legal issues” for a court 20 to decide. Plumhoff v. Rickard, 572 U.S. 765, 773 (2014). A court has discretion in deciding 21 which of the two prongs of the analysis should be addressed first in light of the 22 circumstances of the particular case. Pearson v. Callahan, 555 U.S. 223, 242 (2009). 23 “To be clearly established, ‘[t]he contours of the right must be sufficiently clear that 24 a reasonable official would understand that what he is doing violates that right.’” Rice v. 25 Morehouse, 989 F.3d 1112, 1125 (9th Cir. 2021) (quoting Anderson v. Creighton, 483 U.S. 26 635, 640(1987)). “The Supreme Court has repeatedly cautioned courts not to define clearly 27 established law at a high level of generality.” Sharp v. Cnty. of Orange, 871 F.3d 901, 911 28 (9th Cir. 2017). While there need not be a case directly on point, “existing precedent must 1 have placed the statutory or constitutional question beyond debate.” White v. Pauly, 580 2 U.S. 73, 73 (2017). To meet its burden, a plaintiff must identify “a case where an officer 3 acting under similar circumstances as [the defendant] was held to have violated the [law].” 4 Id. “[T]he prior precedent must be ‘controlling’—from the Ninth Circuit or Supreme 5 Court—or otherwise be a ‘consensus’ of courts outside the relevant jurisdiction.” Sharp, 6 871 F.3d at 911 (internal citation omitted). 7 A. Claims One and Two 8 In Claim One, Plaintiff LAW alleges Officer Carrizosa and Detective Johnston 9 violated his Fourth Amendment rights by seizing and searching him at his school, 10 transporting him to the Advocacy Center, participating in the forensic exam at the Center, 11 and continuing to detain him at the Center. (Doc. 15 ¶¶ 144–49.) In Claim Two, Plaintiffs 12 Mr. and Mrs. Wright allege that the same conduct by Carrizosa and Johnston violated their 13 First and Fourteenth Amendment right to familial association.7 (Id. ¶¶ 150–55.) 14 1. Medical Examination of LAW 15 Plaintiffs allege that Detective Johnston and Officer Carrizosa authorized and 16 participated in SACAC’s invasive medical examination of LAW’s genital and rectal areas, 17 without parental consent. (Id. ¶¶ 53–54, 152.) Plaintiffs cite Wallis v. Spencer, 202 F.3d 18 1126, 1141 (9th Cir. 2000) and Mann v. County of San Diego, 907 F.3d 1154, 1161 (9th 19 Cir. 2018), in support of their assertion that such conduct violated clearly established law. 20 (Doc. 43 at 11, 14–15.) In Wallis, the Ninth Circuit held: 21 Barring a reasonable concern that material physical evidence might dissipate or that some urgent medical problem exists requiring immediate medical 22 attention, the state is required to notify parents and to obtain judicial approval 23 before children are subjected to investigatory physical exams. 24 202 F.3d at 1141 (cleaned up). In Mann, the Ninth Circuit reiterated this principle, holding 25 that the Fourth and Fourteenth Amendments are violated when a child is subjected to an 26 7 “[T]he Fourteenth, First, and Fourth Amendment provide a guarantee ‘that parents will 27 not be separated from their children without due process of law except in emergencies.” Keates, 883 F.3d at 1236. “Despite the different constitutional source of the right . . . the 28 same legal standard applies.” Id. Therefore, the Court’s analysis of Plaintiffs’ Fourth Amendment claims applies equally to their First and Fourteenth Amendment claims. 1 investigatory physical exam without parental notice or consent, unless destruction of 2 evidence is possible or there is an immediate medical need. 907 F.3d at 1161 (quoting 3 Wallis, 202 F.3d at 1141). 4 The Court agrees that Wallis and Mann clearly establish that Officer Carrizosa and 5 Detective Johnston’s alleged involvement in the search of LAW would violate the 6 Plaintiffs’ constitutional rights. According to the allegations in the First Amended 7 Complaint, the officers did not notify the parents, obtain their consent, or obtain a judicial 8 order before requesting and observing the forensic physical examination of LAW. (Doc. 9 15 ¶ 152.) Here there is no suggestion that the exam was warranted because physical 10 evidence might dissipate or that an urgent medical problem required immediate medical 11 attention. Indeed, the officers already had taken photographs of the bruises and there are 12 no factual allegations suggesting an urgent medical need. (Id. ¶ 42.) See Mann, 907 F.3d at 13 1163 (noting that the destruction of evidence exception is not justified where state officials 14 had already photographed a bruise on a child). In such circumstances, reasonable officers 15 would have known that they were violating clearly established law. See Rice, 989 F.3d at 16 1125. Notably, Defendants do not specifically assert qualified immunity as to the physical 17 examination of LAW. 18 2. Search and Seizure of LAW at School and Transport to and 19 Interview of LAW at Advocacy Center 20 Plaintiffs fail to identify clearly established law that would have alerted Detective 21 Johnston and Officer Carrizosa that they would commit a constitutional violation by 22 searching and seizing LAW at his school, and transferring him to and interviewing him at 23 SACAC. Plaintiffs cite two district court cases: Dees v. County of San Diego, 302 F. Supp. 24 3d 1168 (S.D. Cal. Oct. 10, 2017), and Rabinovitz v. City of Los Angeles, 287 F. Supp. 3d 25 939 (C.D. Cal. 2018). District court cases are not controlling authority. Sharp, 871 F.3d at 26 911. In addition, the Dees court’s finding of an unconstitutional seizure was reversed by 27 the Ninth Circuit, and qualified immunity was not at issue. See Dees v. Cnty. of San Diego, 28 960 F.3d 1145, 1154–55 (9th Cir. 2020). Rabinovitz is also unhelpful. Contrary to the 1 Plaintiffs’ argument, the district court there concluded that a law enforcement officer was 2 entitled to qualified immunity because neither the Supreme Court nor the Ninth Circuit had 3 addressed the Fourth Amendment’s application to a law enforcement officer’s in-school 4 detention and interrogation of a suspected child abuse victim. Rabinovitz, 287 F. Supp. 3d 5 at 947–48 (“[L]aw enforcement’s authority to detain and interview—in a private area on a 6 school campus—a minor who is a suspected victim of child abuse, without a warrant or 7 court order or presence of exigent circumstances, is undecided.”). Indeed, only one year 8 before the events giving rise to the present case, the Ninth Circuit Court held that the right 9 of minor children to be free from unconstitutional seizures and interrogations by 10 government officials at school had not been clearly established. See Capp v. Cnty. of San 11 Diego, 940 F.3d 1046, 1059 (9th Cir. 2019). 12 Plaintiffs also cite cases for the general proposition that the Fourth Amendment 13 requires a showing of probable cause prior to certain search and seizures. (Doc. 43 at 8.) 14 None of the cited authority, however, presents circumstances similar to the questioning and 15 search of LAW at his school, or to his transport and interview at SACAC. These cases do 16 not place the constitutional questions raised in Plaintiffs’ claims “beyond debate.” See 17 White, 580 U.S. at 73. 18 The Court will require Defendants Johnston and Carrizosa to answer Claims One 19 and Two with respect to the allegations that they authorized and participated in a forensic 20 examination of LAW in violation of the Constitution. The remaining allegations in Claims 21 One and Two will be dismissed with prejudice. 22 B. Claims Three and Four 23 In Claims Three and Four, Plaintiffs LAW, Mr. Wright, and Mrs. Wright allege that 24 the policy and protocol of the Town of Sahuarita “is unconstitutional on its face, as 25 authorizing such unconsented interrogations, seizures, transport, detention and invasive 26 medical examinations, in the absence of notice to the parents of the right to attend and deny 27 consent; and without the Town Council’s agents first submitting a sworn application on 28 probable cause to, and securing a warrant from, a disinterested magistrate.” (Doc. 15 ¶ 159; 1 see also id. ¶ 16.) Plaintiffs allege that Detective Johnston and Officer Carrizosa acted 2 pursuant to Sahuarita’s unconstitutional protocols, and that previous medical examinations 3 were conducted under the protocols. (Id. ¶ 158.) Plaintiffs attach to the First Amended 4 Complaint the Pima County Protocols for The Multidisciplinary Investigation of Child 5 Abuse (Sixth ed., 2014) at issue. (Docs. 15-1, 15-2.) The protocols, however, do not include 6 any policy similar to what Plaintiffs allege has been adopted by the Town of Sahuarita. 7 “Where the complaint makes conclusory allegations that are contradicted by 8 documents referred to or incorporated in the complaint, a court may decline to accept such 9 conclusory allegations as true.” J.K.J. v. City of San Diego, 17 F.4th 1247, 1254 (9th Cir. 10 2021) (cleaned up). Here, Plaintiffs’ allegation that the Town of Sahuarita’s protocols are 11 unconstitutional on their face is conclusory and contradicted by Plaintiffs’ supporting 12 documentation of the policy. Plaintiffs fail to point to any language in the protocols which 13 authorizes interrogations, seizures, or medical exams of suspected victims of child abuse 14 without parental consent. In fact, the Protocols specifically require that law enforcement 15 “conduct an impartial investigation within the bounds of statutory requirements and case 16 law.” (Doc. 15-2 at 5.) Because Plaintiffs do not plausibly allege that the Town of Sahuarita 17 had a facially unconstitutional policy that caused the constitutional violations in this case, 18 the Court will dismiss with prejudice Claims Three and Four.8 19 C. Claim Eleven 20 In Claim Eleven, Plaintiffs Mr. Wright, Mrs. Wright, LW, and MZ-G assert a 21 Fourteenth Amendment claim of judicial deception. (Doc. 15 ¶¶ 212–19.) Plaintiffs allege 22 that: Detective Pelayo intentionally included, in his sworn affidavit in support of an 23 application for a search warrant of Plaintiffs’ home, falsehoods and misrepresentations; 24 Detective Pelayo omitted material exculpatory facts; and Detective Johnston agreed to 25 26 8 In Claim Twenty-Three, Plaintiffs seek a declaratory judgment against the Town Council, similarly alleging that the Protocols under which Defendants conducted the medical 27 examination of LAW are facially unconstitutional. (Doc. 15 ¶¶ 295–99.) As Plaintiffs have failed to identify any Town policy or protocol permitting a medical examination of a minor, 28 without notice to or consent of the parents, the Court will dismiss Claim Twenty-Three as to Sahuarita, for failure to state a claim. 1 those facts. (Id. ¶¶ 214, 217.) Plaintiffs allege that the false information and 2 misrepresentations gave the application the false appearance of probable cause, resulting 3 in the issuance of the warrant. (Id. ¶¶ 216, 218.) 4 “[J]udicial deception may not be employed to obtain a search warrant.” KRL v. 5 Moore, 384 F.3d 1105, 1117 (9th Cir. 2004) (citing Franks v. Delaware, 438 U.S. 154, 6 155–56 (1978)). To demonstrate that law enforcement officers obtained a warrant through 7 judicial deception, a plaintiff must make a showing “that the defendant deliberately or 8 recklessly made false statements or omissions that were material to the finding of probable 9 cause.” Ewing v. City of Stockton, 588 F.3d 1218, 1223 (9th Cir. 2009) (quoting KRL, 384 10 F.3d at 1117); Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir. 2002). If a party sufficiently 11 alleges a reckless or intentional disregard for the truth, the court must determine the 12 materiality of the allegedly false statements by purging those statements and determining 13 whether what remains justifies issuing the warrant. Ewing, 588 F.3d at 1224. Similarly, 14 “[i]f the officer omitted facts required to prevent technically true statements in the affidavit 15 from being misleading, the court determines whether the affidavit, once corrected and 16 supplemented, established probable cause.” Id. Probable cause means “there is a fair 17 probability that contraband or evidence of a crime will be found in a particular place.” 18 Illinois v. Gates, 462 U.S. 213, 238 (1983). 19 According to Plaintiffs, the operative facts sworn to by Detective Pelayo in his 20 affidavit in support of the warrant included: 21 On December 16, 2020, while working, a student caretaker for student in 22 need at a school in Sahuarita witnessed marks on a six-year-old-male student while changing the child’s diaper. The marks observed were below the 23 buttocks. When the child was questioned by the caretaker of how he obtained 24 those marks, the child deflected and would not give details on how they were obtained. 25 26 Law enforcement was contacted and the child was taken for a forensic interview. During the forensic interview, the child disclosed that he was hit 27 by his mother, quote unquote, with a small brown belt, as well as Hot Wheels 28 track. A medical exam was conducted on the minor by Dr. Woolridge, who advised that the minor had several episodes of bruising on his person. Upon 1 speaking with the miner’s (sic) father, he disclosed his knowing that the minor’s stepmother hit the minor last night. 2 3 (Doc. 15 ¶ 214.) Plaintiffs allege Detective Pelayo mispresented that: (1) LAW “deflected” 4 questions about the “marks” found on him and “would not give details on how they were 5 obtained”; (2) implied that LAW reported his mother recently hit him with both a “brown 6 belt” and a “Hot Wheels track”; and (3) falsely stated that Mr. Wright disclosed that Mrs. 7 Wright “hit” LAW the night before.9 (Id. ¶ 215.) Plaintiffs allege Detective Pelayo omitted 8 the facts that: (1) school staff were only concerned with the single mark on the left 9 hamstring because the other marks were known to be common “little boy bruises” that 10 predated December 16, 2020; (2) LAW stated that the last time Mrs. Wright spanked him 11 was five days earlier; and (3) there were many contradictions in LAW’s interview as set 12 out in Paragraph 47 of the FAC.10 (Id.) 13 9 The FAC is internally inconsistent as to whether Mrs. Wright hit LAW the night before. 14 The FAC alleges both that the affidavit contained the false statement that Mr. Wright disclosed that Mrs. Wright “hit” LAW the night before, (Doc. 15 ¶ 215), and also the 15 allegation that Mrs. Wright did hit LAW the night before. (See id. ¶ 33.) 16 10 In Paragraph 47, Plaintiffs allege: 17 In the interview, LAW again reiterated that he did not remember how he got 18 the mark, that it did not hurt; that when his parents spanked him it did not cause pain; stated that his mother had hit him with a Hot Wheels track when 19 he was four (4) years old; and once hit him with a belt when he was five (5) years old. He denied his parents ever causing a bruise or mark on him. When 20 asked when was the last time his mother spanked him, he recounted in some detail an incident five (5) days earlier when she had caught him and MZ-G 21 stealing some granola and spanked him on his bottom with her open hand. 22 He also stated he felt safe at home, except for his sister, LW, who, he stated, MZ-G protected him from, that LW scratched MZ-G and that he, LAW, had 23 punched her “like 30 times on the back” to make her stop. The interviewer did not follow up on that volunteered information, but left the room. She 24 returned after conferring with Defendants, and began questioning LAW again about the events of five (5) days before. This time LAW stated that his 25 mom spanked him with a belt, contradicting the previous statement. 26 (Id. ¶ 47.) In its analysis, the Court does not consider the FAC’s further allegation that there 27 may be other falsehoods and omissions that are not in the FAC. (Id. ¶ 215; Doc. 43 at 17.) The Court looks only to the well-pleaded factual allegations contained in the complaint. 28 Twombly, 550 U.S. at 555. 1 Taking Plaintiffs’ allegations as true, if the alleged misrepresentations were purged 2 from the affidavit and relevant11 omitted information were added, probable cause remained 3 for issuance of the search warrant. Detective Pelayo’s reimagined affidavit would have 4 included the following information: a student caretaker for a student in need witnessed 5 marks on the six-year-old child’s leg below the buttocks; the marks were not there the day 6 prior; during the forensic interview, the child gave inconsistent explanations for the marks 7 and reported that he was hit by his mother in the past with a small brown belt and a Hot 8 Wheels track; the child also reported that his mother had spanked him five days earlier, 9 with her open hand or a belt, for stealing granola; and Dr. Woolridge’s forensic medical 10 exam of the child found that the child had several episodes of bruising on his person. These 11 facts evidence a fair probability that a belt or Hot Wheels racetrack, or other 12 instrumentalities which might have made the mark on LAW’s body, could be found in the 13 Wright’s home. (Id. ¶ 64.) See Illinois v. Gates, 462 U.S. 213, 230 (1983) (noting probable 14 cause is to be determined by the totality of the circumstances and means a fair probability, 15 not certainty). Accordingly, the Court will dismiss Claim Eleven with prejudice. Plaintiffs 16 have failed to plead a constitutional violation of judicial deception, and it does not appear 17 that they can do so given that their own factual allegations support a finding of probable 18 cause. See Ewing, 588 F.3d at 1224. 19 D. Claim Ten 20 In Claim Ten, Plaintiffs allege that Detectives Johnston and Pelayo, based on the 21 facts known to them at the time, lacked probable cause to seek a search warrant, and no 22 reasonable officer knowing the facts would have sought a warrant. (Doc. 15 ¶ 210.) In their 23 statement of Claim Ten, Plaintiffs do not include facts to support these conclusory 24 allegations. (Id. ¶¶ 207–11.) Rather, Plaintiffs incorporate the preceding 206 paragraphs 25 and 55 pages, and ask the Court to examine the entire complaint for support for the claim. 26 27 11 The fact that school staff’s concern was limited to the single mark on LAW’s left hamstring is of little significance, particularly in light of Dr. Woolridge’s findings that “the 28 minor had several episodes of bruising on his person,” and the injury was consistent with being hit with a flexible object. 1 (Id. ¶ 207; Doc. 43 at 15–17.) In their Response to the Motion to Dismiss, Plaintiffs assert 2 “[f]acts known to the Defendants on the afternoon of December 16th are set out in the FAC 3 and substantially addressed supra.” (Doc. 43 at 15.)12 4 The Court will dismiss Claim Ten for failure to state a claim. As set forth in its 5 discussion of Claim Eleven above, Plaintiffs’ own factual allegations are sufficient to 6 support the state court’s finding of probable cause to issue the search warrant. Therefore, 7 the Court will dismiss Claim Ten with prejudice. 8 E. Claim Twelve 9 In Claim Twelve, Plaintiffs LW and MZ-G assert claims for the search and seizure 10 of LW and MZ-G at their home. (Doc. 15 ¶¶ 220–23.) The minor Plaintiffs allege that 11 Detectives Johnston and Pelayo violated their Fourth Amendment right to privacy because 12 the detectives had them disrobe into their swimsuits, took pictures, and directed MZ-G to 13 expose his genitals and buttocks without probable cause, a warrant, or parental consent. 14 (Id. ¶¶ 67, 222.)13 Plaintiffs argue that even if there was probable cause to search LAW, 15 there was no probable cause that LW and MZ-G were being abused. (Doc. 43 at 18.) 16 Notably, Paragraph 67 of the FAC also states that Mr. Wright agreed to Detective 17 Johnston’s request that LW and MZ-G change into their swimsuits. (Doc. 15 ¶ 67.) 18 Defendants do not assert qualified immunity as to this claim. (See Docs. 30, 60.) 19 12 The Court should not have to analyze the 206 preceding paragraphs and guess which of 20 the factual allegations contained in those paragraphs Plaintiffs rely on in support of Claim Ten. Plaintiffs must plead “a short and plain statement of the claim showing that the pleader 21 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In Claim Ten, Plaintiffs have not done so. 22 Incorporating the entire complaint and failing to connect the factual allegations to the claim violates Rule 8 and warrants dismissal of the claim. See Schwartz v. Bank of America, 2013 23 WL 12132070, *3 (D. Haw. Jan. 7, 2013) (collecting cases); A.B. v. Hilton Worldwide Holdings Inc., 484 F. Supp. 3d 921, 943 (D. Or. Sept. 8, 2020). 24 13 The FAC contains some contradictory allegations with regard to the seizure and search 25 of LW and MZ-G at their home. Paragraph 67 states that Mr. Wright agreed to Detective 26 Johnston’s request that LW and MZ-G change into their swimsuits. (Doc. 15 ¶ 67.) The same paragraph alleges that only MZ-G was required to expose his genitals for a 27 photograph. (Id.) But Paragraph 222 implies that LW was also required to disrobe and be photographed – without probable cause, a warrant, or parental consent. (Id. ¶ 222.) 28 1 Plaintiffs have sufficiently pled an unconstitutional search and seizure of MZ-G, 2 and a reasonable officer would have known that such a search would violate MZ-G’s rights 3 because the warrant was limited to search of the home. (Doc. 15 ¶ 64.) In addition, as stated 4 above, physical exams requiring a minor to disrobe and expose his genitals violates the 5 Fourth Amendment if the officers lack parental consent or a court order. See Mann, 907 6 F.3d at 1165 (noting that physical investigatory exams include exams where the “[c]hildren 7 are forced to undress and are inspected, by strangers, in their most intimate, private areas”). 8 Therefore, the detectives should have known that requiring MZ-G to disrobe and expose 9 his buttocks and genitals during the execution of the search warrant was unreasonable 10 under the Fourth Amendment and violated clearly established law. Accordingly, 11 Defendants Johnston and Pelayo must answer this claim as it relates to the search of MZ- 12 G. 13 Plaintiffs have not sufficiently pled this claim as it relates to LW. Plaintiffs allege 14 that Mr. Wright agreed to the Detectives’ request that MZ-G and LW change into their 15 swimsuits. (Doc. 15 ¶ 67.) Plaintiffs further allege that Detectives Johnston and Pelayo— 16 without parental consent, a court order, or probable cause—only directed MZ-G to expose 17 his genitals and stand for a photograph. (Id. ¶¶ 67, 222) There is no allegation that the 18 Detectives did the same for LW. Claim Twelve as it relates to LW is therefore dismissed 19 with prejudice. 20 F. Claims Thirteen and Fourteen 21 In Claims Thirteen and Fourteen, Plaintiffs allege First and Fourteenth Amendment 22 loss of familial association claims. (Doc. 15 ¶¶ 224–31.) In Claim Thirteen, Plaintiffs allege 23 that Detectives Johnston and Pelayo separated the parents from the children and detained 24 the children and parents while the officers were executing the search warrant of the home. 25 (Id.) Defendants seek to dismiss this claim arguing, among other things, that Plaintiffs fail 26 to identify clearly established law that separating individuals during a search warrant is 27 unconstitutional. (Doc. 30 at 10.) Plaintiffs fail to point to any clearly established law in 28 response to Defendants’ argument. (Doc. 43 at 19.) In addition, the Supreme Court has 1 held that police officers have the authority to detain persons during the execution of a 2 search when the person is “an occupant of [the address to be searched] at the time of the 3 search.” Muehler v. Mena, 544 U.S. 93, 98 (2005) (three legitimate law enforcement 4 interests provide substantial justification for detaining an occupant: preventing flight in the 5 event that incriminating evidence is found; minimizing the risk of harm to the officers; and 6 facilitating the orderly completion of the search, as detainees’ self-interest may induce 7 them to open locked doors or locked containers to avoid the use of force). The Court will 8 thus dismiss Claim Thirteen with prejudice. 9 Claim Fourteen is a familial association claim arising from Detective Johnston and 10 Pelayo’s alleged search and seizure of LW and MZ-G during the search of the Wright’s 11 family home. (Doc. 15 ¶¶ 228–31.) During this search, the Detectives allegedly directed 12 MZ-G, but not LW, to disrobe and expose his genitals and buttocks for examination and a 13 photograph. (Id. ¶¶ 67, 222.) As discussed above in Part III.A (Claim Two) and III.E 14 (Claim Twelve), these alleged facts sufficiently state a claim for unreasonable search and 15 seizure. Further, Mrs. Wright had a constitutionally protected liberty interest through her 16 mother-child relationship with MZ-G. See Ward, 967 F.2d at 283. Defendants Johnston 17 and Pelayo must therefore answer Claim Fourteen but only as it relates to Mrs. Wright and 18 MZ-G. 19 G. Claim Fifteen 20 In Claim Fifteen, Mr. Wright, Mrs. Wright, and LAW allege a loss of familial 21 association claim under the First and Fourteenth Amendments based on AZDCS 22 employees’ securing a safety plan on December 16, 2020, by coercion. (Doc. 15 ¶ 232– 23 48.) Plaintiffs allege that AZDCS Specialist Talamantes knew and concluded that there 24 was no physical abuse of LAW but despite this knowledge and with his superior’s approval, 25 Talamantes lied to Mr. Wright regarding LAW’s alleged injuries and falsely informed him 26 that if he did not agree to the immediate voluntary safety plan, AZDCS would immediately 27 take custody of his children. (Id. ¶¶ 244–47.) Plaintiffs state, as a direct result of the lies 28 and coercion, Mr. Wright executed the voluntary safety plan and relinquished his right to 1 the control of his children’s upbringing, which required that a safety monitor be present at 2 all times in the home. (Id. ¶ 248.) AZDCS Defendants argue that Plaintiffs’ allegations fail 3 to state a constitutional claim and that they are entitled to qualified immunity because no 4 defendant violated clearly established law. (Doc. 37 at 16–18.) The Court agrees. Plaintiffs’ 5 allegations are conclusory and therefore insufficient to show that Talamantes’ alleged lie 6 to Mr. Wright violated a constitutional right of Mr. Wright or LAW. In addition, Plaintiffs 7 fail to point to cases which clearly establish such a right.14 Plaintiffs fail to identify binding 8 precedent which would have alerted Talamantes that his allegedly inadequate investigation 9 or coerced safety plan that allowed the Wright family to live together but with restrictions, 10 would violate the Plaintiffs’ constitutional rights. Accordingly, the Court will dismiss 11 Claim Fifteen with prejudice. 12 H. Claims Sixteen to Eighteen 13 In Claims Sixteen to Eighteen, Plaintiffs assert claims under the First and Fourteenth 14 Amendments. (Doc. 15 ¶¶ 249–66.) Plaintiffs allege Talamantes and other AZDCS 15 employees knew that continuing the investigation into the Wright family was unjustified, 16 and thus AZDCS lacked probable cause to obtain a removal order. (Id.) Plaintiffs further 17 allege that Talamantes and AZDCS employees still obtained a removal order, the execution 18 of which harmed the Plaintiffs, by knowingly misrepresenting and omitting material facts 19 when applying for the order. (Id.) Claim Sixteen focuses on AZDCS employees allegedly 20 obtaining the removal order without probable cause. (Id. ¶¶ 249–59.) Claim Seventeen 21 14 In support of their claim, Plaintiffs allege that Talamantes’ investigation did not comply 22 with Arizona law, and assert that the Court must look to Arizona law for its determination of whether the officers were on notice that they were violating the Constitution, i.e., that 23 Arizona law can be a basis for clearly established law. (Doc. 55 at 18.) But Talamantes’ alleged failure to conduct the full and proper investigation required by Arizona law does 24 not amount to a constitutional violation. The cases relied on by Plaintiffs are not to the contrary. In Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1131 (9th 25 Cir. 2002), the court noted that the state-wide “protocol clearly suggested that using pepper 26 spray against nonviolent protestors was excessive.” Id. (emphasis added). However, the court looked to controlling federal law for its determination of whether a constitutional 27 violation—use of excessive force—occurred. Id. at 1130–31. This case, and others cited by Plaintiffs, demonstrate that state law and policy may provide notice to an officer that 28 specific conduct is unconstitutional, but a violation of state law does not in and of itself constitute a constitutional violation or show clearly established federal law. 1 centers on AZDCS employees allegedly using judicial deception to obtain the order. (Id. 2 ¶¶ 260–63.) Claim Eighteen addresses the alleged harm AZDCS employees caused the 3 Wright family by executing the order. (Id. ¶¶ 264–66.) 4 Defendants argue Plaintiffs fail to state a claim. Defendants assert that Plaintiffs’ 5 factual allegations are conclusory and that Plaintiffs fail to plead with particularity the 6 alleged false or omitted statements. (Doc. 37 at 16–17.) Defendants contend that when the 7 conclusory allegations are omitted from the claims, all that is left is the simple performance 8 of statutorily prescribed duties. (Id.) Defendants assert that their performance of statutory 9 duties does not constitute a constitutional violation because they are entitled to qualified 10 immunity while performing statutory duties. (Id. at 18.) In addition, Defendants argue that 11 even if Plaintiffs alleged facts to support a claim for the violation of constitutional rights, 12 Plaintiffs cannot demonstrate that such rights were clearly established. (Id.) 13 A person has a “right to be free from judicial deception in securing [a] removal 14 order.” Greene v. Camreta, 588 F.3d 1011, 1034 (9th Cir. 2009).15 A claim of judicial 15 deception involves fraud on the court and the other party, therefore, Plaintiffs “must state 16 with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). In addition, a 17 judicial deception claim and the invocation of qualified immunity requires the Court to 18 determine “whether the affidavit, once corrected and supplemented, establishes probable 19 cause.” Ewing, 588 F.3d at 1224. As a result, in pleading their claim, Plaintiffs must 20 provide the Court with the alleged facts that AZDCS should have presented in the 21 application for a removal order, so the Court can consider whether the corrected 22 information would have supported a finding of probable cause. 23 The Court agrees that Plaintiffs’ factual allegations in support of Claims Sixteen, 24 Seventeen, and Eighteen are conclusory16 and do not comply with Rule 9’s particularity 25 15 Defendants would not have absolute immunity with respect to a claim that they made false statements in support of the removal order. See Beltran v. Santa Clara Cnty., 514 F.3d 26 906, 908 (9th Cir. 2008). 27 16 For example, the FAC alleges that Talamantes made “the following false statements and 28 misrepresentations,” and then recites whole paragraphs from the application for the 1 standard. Due to these deficiencies the Court cannot evaluate whether probable cause for a 2 removal order would exist in the absence of the alleged false statements by Defendants. 3 Plaintiffs allege that certain material facts should have been included in the application, 4 including the facts that there had been no previous reports of child abuse against either 5 parent, the other siblings felt safe at home, and the nurse observed no concerning marks on 6 LAW prior to December 16, 2020. (Id. ¶ 256.) Yet these facts are not necessarily material 7 and do not, on their face, undermine a finding of probable cause. See Ewing, 588 F.3d at 8 1224 (noting the court must determine the materiality of the allegedly false statements by 9 purging those statements and determining whether what remains justifies issuing the 10 warrant). 11 Because Plaintiffs fail to identify the specific statements they allege are false, the 12 Court cannot properly consider the application to determine whether it establishes probable 13 cause. For the same reason, the Court cannot consider whether Plaintiffs allege sufficient 14 facts to show that AZDCS employees engaged in judicial deception or that the execution 15 of the removal order unlawfully harmed the Plaintiffs. Accordingly, the Court will dismiss 16 Claims Sixteen to Eighteen without prejudice. 17 I. Claims Nineteen and Twenty 18 In Claims Nineteen and Twenty, Plaintiffs allege claims of judicial deception and 19 loss of familial association related to the judicial deception. (Doc. 15 ¶¶ 267–80.) Plaintiffs 20 allege that Talamantes and Francisco provided false statements and omitted materials facts 21 in the petition for dependency, including the supporting documents.17 (Id. ¶¶ 269, 272–76.) 22 Plaintiffs allege that, based on these documents, the juvenile court reaffirmed its ex parte 23 order of removal and ordered that AZDCS continue its custody of LAW. (Id. ¶ 273.) 24 Defendants assert that Plaintiffs’ conclusory allegation—that that the falsehoods and 25 removal order. (Doc. 15 ¶ 255.) The FAC fails to identify which parts of the statements are 26 false or how the statements are misleading, and some of the statements are undeniably true, for example, that the SPD executed a search warrant on the family home. (Id.) 27 17 Plaintiffs also again generally allege misrepresentations in the initial ex parte removal 28 order. (Doc. 15 at 69.) Because this claim is addressed in Claims Sixteen to Eighteen, the Court will not address it again in Claims Nineteen and Twenty. 1 omitted facts are “material”—is insufficient to state a claim. (Doc. 37 at 17.) 2 As stated above, to establish judicial deception, Plaintiffs must show, in part, that 3 the alleged dishonesty is material to the determination of probable cause. See Ewing, 588 4 F.3d at 1224. To determine the materiality of the allegedly false statements, a plaintiff must 5 show that, after purging those statements, what remains does not justify issuing the warrant. 6 See id. Plaintiffs merely allege the legal conclusion that all of the misrepresentations and 7 falsehoods are material and do not allege facts showing that, but for the dishonesty, the 8 issuing court would not have ordered the continuation of the removal of LAW. (Doc. 15 ¶ 9 269; Doc. 55 at 24–26.) Further, even where they list alleged misrepresentations and 10 falsehoods, Plaintiffs still fail to allege specific facts showing the presented statements 11 were misrepresentations or false.18 Because it is Plaintiffs’ burden to show a violation 12 occurred, the Court will dismiss Claims Nineteen and Twenty without prejudice. 13 J. Claim Twenty-One 14 In Claim Twenty-One, Plaintiffs allege a First and Fourteenth Amendment claim of 15 familial association. (Doc. 15 ¶¶ 281–86.) Plaintiffs allege that AZDCS Defendants 16 Cheldon, Encinas, Noriega, and Orozco falsified facts, intentionally obstructed the Wright 17 family’s unification efforts, and acted with deliberate indifference towards the Plaintiffs’ 18 constitutional right to familial association. (Id.) 19 Defendants argue that Plaintiffs do not have a constitutional right to be free from 20 child abuse investigations and that Plaintiffs fail to allege facts showing how the AZDCS 21 investigation violated their constitutional rights. (Doc. 30 at 16–18.) Defendants also argue 22 that, even if Plaintiffs adequately plead the violation of their constitutional rights, qualified 23 immunity precludes their claim because no clearly established law prohibits the alleged 24 18 For instance, Plaintiffs allege that the statement “The marks and bruises were in different 25 stages of healing which indicated different instances of physical discipline” is a 26 misrepresentation, falsehood, or material omission. (Doc. 15 ¶ 269.) However, Plaintiffs fail to allege facts showing how this statement is false or a misrepresentation, particularly 27 in light of other facts Plaintiffs allege, such as “LAW stated that his mom spanked him with a belt” and “[Dr. Woolridge] concluded ‘contusions @ different stages of healing 28 suggests injury events over a series of days.’” (See id. ¶¶ 47, 55.) Plaintiffs cannot support Claim Twenty-One with conclusory statements that lack the support of factual contentions. 1 conduct for which Plaintiffs seek relief. (Id.) 2 For clearly established law, Plaintiffs cite Walter v. County of San Diego, 2020 WL 3 7024660 (S.D. Cal. Nov. 30, 2020) and Armor v. Arizona, 2009 WL 529326 (D. Ariz. Feb. 4 27, 2009). (Doc. 55 at 26–29.) These cases are not controlling precedent that can be a basis 5 for clearly established law, see Sharp, 871 F.3d at 911, and these cases are distinguishable 6 from the alleged facts of this case. 7 In Walter, the plaintiffs alleged that the department of child safety was obstructing 8 the family’s reunification efforts. 2020 WL 7024660, at *10. The plaintiffs in that case, 9 however, alleged a First Amendment retaliation claim and a Fourteenth Amendment failure 10 to protect claim. Id. at *7–10. In Claim Twenty-One, Plaintiffs do not raise retaliation or 11 failure to protect claims. 12 In Armor, the plaintiffs alleged Arizona officials released a child out of state before 13 any dependency hearing and without a completed application under the Interstate Compact 14 on the Placement of Children (ICPC). 2009 WL 529326 at *7–8. Although the district court 15 found that the plaintiff stated a procedural due-process claim in that case, this decision is 16 also dissimilar. See White, 580 U.S. at 73 (noting a plaintiff must point to a case where an 17 officer was acting under similar circumstances). Unlike the pending case, the plaintiffs in 18 Armor alleged a familial association claim based on the complete lack of a hearing and the 19 state’s failure to comply with the ICPC. 2009 WL 529326 at *7. In addition, while the 20 plaintiffs in Armor generally alleged that state officials obstructed justice, those allegations 21 were related to a fraud and common-law deceit claim, not a familial association claim. Id. 22 at *18. 23 Accordingly, the Court will dismiss this claim, with prejudice, for Plaintiffs’ failure 24 to show a violation of clearly established law. 25 K. Claim Twenty-Two 26 In Claim Twenty-Two, Plaintiffs allege this claim is to vindicate the right of free 27 expression and the right to petition for redress of government. (Doc. 15 ¶¶ 287–94.) During 28 the dependency proceedings, Plaintiffs allege that Mr. Wright filed a complaint to the 1 Ombudsman’s office for redress of AZDCS’s actions in this case. (Id. ¶ 289.) Plaintiffs 2 further allege that Encinas retaliated against Mr. Wright and falsified facts in response to 3 Mr. Wright’s petition for remedy and expression of agency corruption. (Id. ¶ 290.) 4 Plaintiffs also allege that Encinas did so with Defendant Sheldon, Noriega, and Orozco’s 5 approval or direction. (Id.) Plaintiffs assert that Mr. Wright’s expressions of concern for 6 the actions taken by Defendants and the filing of his complaint are protected speech. (Id. ¶ 7 291.) Plaintiffs then allege the specific acts Defendants took in retaliation, discussed in 8 more detail below. (Id. ¶¶ 284, 290, 292.) AZDCS Defendants assert that Plaintiffs fail to 9 state a claim of retaliation. (Doc. 37 at 29.) The Court disagrees. 10 It is clearly established that “[a] reasonable official would have known that taking 11 the serious step of threatening to terminate a parent’s custody of his children, when the 12 official would not have taken this step absent her retaliatory intent, violates the First 13 Amendment.” Capp v. Cnty. of San Diego, 940 F.3d 1046, 1058–59 (9th Cir. 2019). To 14 state a retaliation claim, a plaintiff must allege “that (1) he was engaged in a constitutionally 15 protected activity, (2) the defendant’s actions would chill a person of ordinary firmness 16 from continuing to engage in the protected activity and (3) the protected activity was a 17 substantial or motivating factor in the defendant’s conduct.” O’Brien v. Welty, 818 F.3d 18 920, 932 (9th Cir. 2016). First, it is well settled that “voicing criticism of [an] agency’s 19 conduct—is constitutionally protected.” Capp, 940 F.3d at 1054. Mr. Wright alleges that 20 he engaged in such conduct. (Doc. 15 ¶¶ 289, 291.) Second, it is also well established that 21 “[t]he threat of losing custody of one’s children is a severe consequence that would chill 22 the average person from voicing criticism of official conduct.” Id. Mr. Wright alleges that 23 the Defendants intentionally took actions to keep LAW out of Mr. Wright’s custody and 24 obstructed his efforts to reunify with LAW. (Id. ¶¶ 290, 292.) Third, the “mere existence 25 of a legitimate motive . . . is insufficient to mandate dismissal.” Capp, 940 F.3d at 1054. 26 While the agency may have been acting in an advocate role as a party representing the bests 27 interests of the child, Plaintiffs sufficiently allege that Defendants took the retaliatory 28 actions in direct response to Mr. Wright’s speech. (Id. ¶ 292.) Capp, 940 F.3d at 1055 1 (noting that the defendant’s retaliatory motive is difficult to prove and may be inferred 2 from “a chronology of events”). Accordingly, Mr. Wright has sufficiently plead a violation 3 of a clearly established right against retaliation. The Court, however, will dismiss all the 4 other Plaintiffs from this claim as no allegations are made related to them. 5 CONCLUSION 6 Although the Court concludes at this stage of the proceedings that some of the 7 defendants are not entitled to qualified immunity, “that does not necessarily mean that this 8 case will progress to trial.” Id. at 1059. “Once an evidentiary record has been developed 9 through discovery, defendants will be free to move for summary judgment based on 10 qualified immunity.” O’Brien, 818 F.3d at 936. 11 For the foregoing reasons, 12 IT IS ORDERED: 13 1. Town of Sahuarita Defendants’ Motion to Dismiss Plaintiffs’ First Amended 14 Complaint (Doc. 30) is GRANTED in part and DENIED in part. 15 2. AZDCS Defendants’ Motion to Dismiss and Alternative Motion for More Definite 16 Statement (Doc. 37) is GRANTED in part and DENIED in part. 17 3. Plaintiffs’ Request for Judicial Notice of Adoption (Doc. 63) is GRANTED. 18 4. The following defendants must answer the following claims within 21 days of this 19 Order: 20 a. Defendants Johnston and Carrizosa must partially answer, as to their 21 authorization and involvement in the medical exam, Plaintiff LAW and Mr. 22 Wright’s Claims One and Two. 23 b. Defendants Johnston and Pelayo must answer MZ-G’s Claim Twelve. 24 c. Defendants Johnston and Pelayo must answer Claim Fourteen as it relates 25 to Mrs. Wright and MZ-G. 26 d. Defendants Sheldon, Encinas, Noriega, and Orozco must answer Mr. 27 Wright’s Claim Twenty-Two. 28 5. Claims Sixteen, Seventeen, Eighteen, Nineteen, and Twenty are DISMISSED 1 without prejudice. 2 6. Claims One, Two, Twelve, Fourteen, and Twenty-Two are partially DISMISSED 3 with prejudice. 4 7. Claims Three, Four, Ten, Eleven, Thirteen, Fifteen, and Twenty-One are 5 DISMISSED with prejudice 6 8. Defendants Maldanado and Town of Sahuarita are DISMISSED without 7 prejudice. 8 Dated this 30th day of September, 2022. 9 10 □ pote Soipe 1 ; Honorable Jennife ve Zipps United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 28 -