Ellen Keates v. Michael Koile ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELLEN KEATES; A. K., a minor, No. 16-16568
through her parent and guardian
Ellen Keates, D.C. No.
Plaintiffs-Appellants, 2:15-cv-01270-NVW
v.
OPINION
MICHAEL KOILE; KAREN
HOWARD; GILLIAN VANESSE;
RITA GOMEZ; SARAH JENKINS;
KIMBERLY PENDER; JOANNA
LENSCHE; AND STEVE
ROUNTREE, individually as
employees with the State of
Arizona Child Protective
Services; CLARENCE H.
CARTER, individually as
Director, Arizona Department
of Economic Security; STATE OF
ARIZONA, a political entity;
UNKNOWN PARTIES, John and
Jane Does 1–5; Black Entities
1–5,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
2 KEATES V. KOILE
Argued and Submitted December 4, 2017
San Francisco, California
Filed March 6, 2018
Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit
Judges, and John D. Bates,* District Judge.
Opinion by Judge Ikuta
SUMMARY**
Civil Rights
The panel affirmed in part and reversed in part the district
court’s dismissal of an action against Child Protective
Services officers and employees alleging constitutional
violations arising from defendants’ actions in removing a
minor child A.K. from her mother’s custody following A.K.’s
hospitalization for depression and suicidal ideation, and
remanded.
The panel held that this Circuit’s case law clearly
establishes that the rights of parents and children to familial
association under the Fourteenth, First, and Fourth
Amendments are violated if a state official removes children
*
The Honorable John D. Bates, United States District Judge for the
District of Columbia, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KEATES V. KOILE 3
from their parents without their consent, and without a court
order, unless information at the time of the seizure, after
reasonable investigation, establishes reasonable cause to
believe that the child is in imminent danger of serious bodily
injury, and the scope, degree, and duration of the intrusion is
reasonably necessary to avert the specific injury at issue.
The panel held that the district court erred in dismissing
the familial association claim against defendants Koile and
Pender on the basis of qualified immunity. The panel held
that the operative complaint alleged sufficient facts to
establish that defendants violated plaintiffs’ constitutional
rights to familial association. The panel further determined
that a reasonable official in defendants’ position would have
known that the available information did not establish
reasonable cause to believe that A.K. was in imminent danger
of attempting to commit suicide, or that it was necessary to
separate her from her mother, transfer her to a treatment
center, and continue to detain her after medical professionals
concluded she was a low suicide risk.
The panel held that the district court did not err by
dismissing plaintiffs’ judicial deception claim. The panel
determined that it could not say that defendant’s statement in
the dependency petition was a deliberate falsehood or
constituted judicial deception in light of the specific context
of the case.
The panel held that there was sufficient evidence to make
a plausible allegation that defendants Lensche and Rountree
were integral participants in violating plaintiffs’
constitutional rights. As to the claims against four other
defendants, the panel held that the complaint did not offer any
plausible allegation that the defendants participated in the
4 KEATES V. KOILE
decision to interfere with plaintiffs’ constitutional rights, and
therefore the district court did not err in dismissing those
claims.
Finally, the panel held that the complaint did not allege
that the Director of the Arizona Department of Economic
Security was directly involved in the allegedly
unconstitutional conduct or that he had knowledge of the
constitutional deprivations and acquiesced in them. The
panel held that plaintiffs’ conclusory allegations that the
unconstitutional policies and procedures caused the
unconstitutional conduct did not suffice to state a claim of
supervisory liability.
COUNSEL
Geoff Morris (argued) and DeeAn Gillespie Strub, Gillespie
Shields Durrant & Goldfarb, Phoenix, Arizona, for Plaintiffs-
Appellants.
James B. Bowen (argued), Assistant Attorney General; Mark
Brnovich, Attorney General; Office of the Attorney General,
Phoenix, Arizona; for Defendants-Appellees.
OPINION
IKUTA, Circuit Judge:
Ellen Keates and her minor child, A.K., appeal the
dismissal of their claims against Michael Koile and other
officers and employees of what was then the Child Protective
Services (CPS) division of the Arizona Department of
KEATES V. KOILE 5
Economic Security (ADES), which allege (among other
things) violations of Keates’s and A.K.’s constitutional rights
to familial association.1 These claims all stem from CPS’s
actions to remove A.K. from her mother’s custody following
A.K.’s hospitalization for depression and suicidal ideation.
We conclude that certain of Keates’s and A.K.’s claims
against the defendants who allegedly participated in the
interference with familial association withstand the motion to
dismiss.
I
The operative complaint includes the following factual
allegations. In May 2013, A.K. was thirteen years old and
had been experiencing depression for four to six months, and
“[o]n occasion, she had suicidal ideations.” Ellen Keates is
the mother of A.K. On May 20, 2013, Keates took A.K. to
Christ Cares Clinic where A.K. told an employee that she was
sad and had contemplated suicide in the past, but stated that
she was not currently experiencing suicidal ideation. The
clinic employee referred A.K. to the emergency room at
Phoenix Children’s Hospital (PCH), where A.K. was seen by
a triage nurse and a doctor who ordered a psychological
consultation and evaluation by a social worker.
Notes from the triage nurse at PCH stated that A.K.
expressed feeling sad and depressed, admitted to having
suicidal ideation, “but denied having a plan to carry it out.”
Several hours later, Randy Call, a PCH employee, and Julie
1
The other defendants are Koile’s supervisor, Kimberly Pender, six
other CPS employees (Karen Howard, Gillian Vanesse, Rita Gomez,
Sarah Jenkins, Joanna Lensche, and Steve Rountree), and Clarence Carter,
Director of ADES.
6 KEATES V. KOILE
Kaplan, a PCH social worker, told Keates that A.K. could go
home if Keates provided a safety plan for A.K. Keates
offered several options, including having A.K. stay home
with her twelve-year old brother, having A.K. stay with a
neighbor, or dropping A.K. off at the public library. Call and
Kaplan rejected these options. Keates explained that she was
self-employed and staying at home would cost her some
business, but Keates nevertheless said she would stay home
with A.K.
Call and Kaplan then informed Keates that the decision
had been made to prevent A.K. from going home with
Keates, and that she was required to go to a mental hospital
for inpatient treatment. Keates stated that she lacked health
insurance to pay for inpatient treatment. When Call, Kaplan,
or another hospital staff person asked Keates for her contact
information, Keates said she was “unwilling to give PCH
agents information that could lead [her] to being billed for an
unnecessary, and increasingly costly, stay at PCH.” Keates
“furiously expressed her concern” to hospital staff that “PCH
was going to hold A.K. hostage until PCH received
information to bill [her].” Nevertheless, while talking to Call
and Kaplan, Keates did provide her name, phone number and
other contact information.
At some point after Keates had refused to provide contact
information for billing, “someone” from PCH called CPS to
report that “A.K. was suffering severe depression and had
attempted a suicide by strangulation on May 20, 2013.” PCH
staff told CPS that “inpatient care was necessary”—although
they had previously told Keates it was merely
recommended—and that Keates “was not able to enact a
safety plan.” Kaplan subsequently wrote a report stating that
“[b]ecause mother refused to provide any identifying
KEATES V. KOILE 7
information, other than [patient’s] name, CPS report was
made during assessment for fear that mother would take
[patient] and leave.” Randy Call spoke to or was referred to
CPS employees Joanna Lensche and Steve Rountree. CPS
employees Michael Koile, Kim Pender, and Gillian Vanesse
were also involved early in the investigation.
At the end of the discussion among Keates and PCH staff,
Kaplan told Keates that A.K. would be reassessed in the
morning and that Keates should go home and call PCH for
the results of the second assessment the next day. Keates
went home, but when she called the next morning, May 21,
she was told “there would be no second assessment and that
CPS had told PCH that Ms. Keates was not to have any
contact with A.K. and was not to come back to PCH.”
On the morning of May 21, Koile, a CPS case worker,
interviewed A.K. without Keates present and without
Keates’s consent. A.K. reported that her only complaint
about her mother was that she “yells, screams, and cusses.”
A.K. also told Koile that she had suicidal ideation in the past
but had not attempted suicide on May 20; the doctor at Christ
Cares Clinic had misunderstood her.
Later on May 21, around 11:45 A.M., Koile issued a
temporary custody notice (TCN) allowing him to take A.K.
away from Keates and put her into CPS custody. In preparing
and issuing this order, Koile collaborated with his colleagues,
Joanna Lensche and Steve Rountree, and had the advice,
consent and approval of his supervisor, Kim Pender. Keates
was not at the hospital at the time Koile issued the TCN. A
CPS case worker, Karen Howard, later wrote a letter to
Keates stating that CPS took custody of A.K. because Keates
did not have health insurance and was unwilling to share her
8 KEATES V. KOILE
contact information with PCH. Koile told PCH that Keates
was “prohibited from visiting A.K. during the remainder of
A.K.’s stay at PCH.”
A.K. was discharged from PCH on May 21, 2013. She
was strapped to a gurney and delivered by ambulance to
Aurora Behavioral Health System (ABHS) in Tempe,
Arizona. During intake at ABHS, Koile told the intake nurse
that A.K. had tried to commit suicide on May 20, 2013. But
A.K. told the intake nurse that she “did not have, at that time,
any [suicidal ideation]” and while “she had some [suicidal
ideation] over the course of the previous several months,” she
had no plan to commit suicide. She stated that “she was
depressed but she did not feel like she needed to be here” and
told the intake nurse that the doctor at Christ Cares Clinic
“misunderstood her in that A.K. had thoughts of choking
herself in the past, but that was a while ago and she did not
feel like that now.” The intake nurse at ABHS found A.K.’s
suicide risk to be low.
A.K. remained at ABHS despite the intake nurse’s
conclusion that she was low risk. A.K. expressed her desire
to go home and her anger at not being able to have any
contact with her mother. Nevertheless, Koile directed ABHS
not to allow Keates to have contact with A.K.
On May 22, 2013, Koile interviewed Keates, who told
him that A.K. did not attempt suicide on May 20. The next
day, Koile informed ABHS that he had concluded that Keates
was unable to care for A.K. and that a dependency petition
would be filed. The Arizona Department of Economic
Security filed a dependency petition on behalf of CPS on May
24, 2013. The petition stated that A.K. attempted suicide on
May 20, 2013.
KEATES V. KOILE 9
Koile told Keates that A.K. would be required to receive
“intensive outpatient treatment at ABHS” and that if Keates
“could not make financial arrangements for that care, A.K.
was not going home.” On May 29, 2013, A.K. was
discharged from ABHS, which again assessed her as having
a low risk for suicide. ABHS told Keates that A.K. did not
need intensive outpatient treatment, and that it “rarely ever
provides such treatment.”
After she was discharged from ABHS, A.K. was placed
in a foster home. She did not receive intensive outpatient
treatment or her prescribed psychotropic drugs. She was
placed in a shelter when her foster mother went on vacation
and was later placed in a group home. The group home
initially failed to transport A.K. to high school, where she had
been accepted into the honors program, and only later
provided transportation pursuant to a court order. After
spending nearly four months outside of her mother’s custody,
A.K. returned home on September 12, 2013. The dependency
petition was dismissed on November 26, 2013.
Keates, on behalf of herself and A.K., filed this action in
state court, and the defendants removed the case to federal
court. Keates filed the operative complaint, which alleged
that the defendants had violated Keates’s and A.K.’s
constitutional rights to familial association under the First,
Fourth, and Fourteenth Amendments and the right to be free
from deliberately falsified evidence in dependency
proceedings, among other claims. The complaint also alleged
various state law claims.
The district court dismissed Keates’s constitutional claims
with prejudice on the ground that all defendants were entitled
to qualified immunity. The district court concluded that
10 KEATES V. KOILE
Koile did not violate Keates’s and A.K.’s constitutional rights
to familial association because Koile had reasonable cause to
believe that A.K. was in imminent danger of serious bodily
injury, and the scope of the intrusion was reasonably
necessary to avert that injury. Further, the district court held
that the complaint did not allege facts sufficient to establish
that Koile presented deliberately fabricated evidence to the
juvenile court. It remanded the remaining state claims to
state court. Keates and A.K. timely appealed.
II
We review a district court’s grant of a motion to dismiss
and issues of qualified immunity de novo. Price v. Hawaii,
939 F.2d 702, 706 (9th Cir. 1991). The district court had
jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291.
At the motion-to-dismiss stage, we take all well-pleaded
factual allegations in the complaint as true, construing them
“in the light most favorable to the nonmoving party,” Silvas
v. E*Trade Mortg. Corp., 514 F.3d 1001, 1003 (9th Cir.
2008), and then determine “whether they plausibly give rise
to an entitlement to relief,” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009).
This appeal raises an additional wrinkle because the
district court granted the motion to dismiss largely on the
ground that defendants were entitled to qualified immunity.
Determining claims of qualified immunity at the motion-to-
dismiss stage raises special problems for legal decision
making. See Kwai Fun Wong v. United States, 373 F.3d 952,
956–57 (9th Cir. 2004). On the one hand, we may not
dismiss a complaint making “a claim to relief that is plausible
KEATES V. KOILE 11
on its face.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). But on the other
hand, defendants are entitled to qualified immunity so long as
“their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The Supreme Court has emphasized that this is a low bar,
explaining that “[q]ualified immunity gives government
officials breathing room to make reasonable but mistaken
judgments about open legal questions.” Ashcroft v. al-Kidd,
563 U.S. 731, 743 (2011). Indeed, “[w]hen properly
applied,” qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Id.
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Balancing these competing rules, when a district court
dismisses a complaint for failure to state a claim based on a
qualified immunity defense, we consider whether the
complaint alleges sufficient facts, taken as true, to support the
claim that the officials’ conduct violated clearly established
constitutional rights of which a reasonable officer would be
aware “in light of the specific context of the case.” Mullenix
v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting
Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)).
If the operative complaint “contains even one allegation of a
harmful act that would constitute a violation of a clearly
established constitutional right,” then plaintiffs are “entitled
to go forward” with their claims. Pelletier v. Fed. Home
Loan Bank of San Francisco, 968 F.2d 865, 872 (9th Cir.
1992). But our decision at the motion-to-dismiss stage sheds
little light on whether the government actors might ultimately
be entitled to qualified immunity “were the case permitted to
proceed, at least to the summary judgment stage” and the
12 KEATES V. KOILE
court is presented with facts providing context for the
challenged actions. Kwai Fun Wong, 373 F.3d at 957.
III
Because the operative complaint here was dismissed on
qualified immunity grounds, we must determine whether
Keates and A.K.’s complaint pleads a plausible claim that
withstands a qualified immunity defense. We review a grant
of qualified immunity de novo. Prison Legal News v.
Lehman, 397 F.3d 692, 698 (9th Cir. 2005).
In determining whether a government official is entitled
to qualified immunity, we consider two different questions:
(1) whether, “[t]aken in the light most favorable to the party
asserting the injury, . . . the facts alleged show the officer’s
conduct violated a constitutional right”; and (2) if so,
“whether the right was clearly established.” Saucier v. Katz,
533 U.S. 194, 201 (2001), overruled on other grounds by
Pearson v. Callahan, 555 U.S. 223, 236–42 (2009).
A
The operative complaint’s primary claim is that the
defendants violated Keates’s and A.K.’s rights to familial
association. Therefore, we begin by looking to our case law
to delineate the scope of the constitutional right to familial
association at issue in this case. This right is entirely judge-
made; it does not appear in the text of the Constitution itself.
Nor have courts been entirely clear regarding the source of
the right; they have variously relied on the Fourteenth, First,
and Fourth Amendments.
KEATES V. KOILE 13
The Fourteenth Amendment prohibits states from
depriving “any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV § 1. The Supreme
Court has stated that “the interest of parents in the care,
custody, and control of their children—is perhaps the oldest
of the fundamental liberty interests recognized by this Court.”
Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality
opinion); see also Santosky v. Kramer, 455 U.S. 745, 753
(1982) (addressing the “Court’s historical recognition that
freedom of personal choice in matters of family life is a
fundamental liberty interest protected by the Fourteenth
Amendment”). Courts have characterized the right to familial
association as having both a substantive and a procedural
component. While the right is a fundamental liberty interest,
see, e.g., Rosenbaum v. Washoe County, 663 F.3d 1071, 1079
(9th Cir. 2011); Smith v. City of Fontana, 818 F.2d 1411,
1418 (9th Cir. 1987), overruled on other grounds by
Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir.
1999) (en banc), officials may interfere with the right if they
“provide the parents with fundamentally fair procedures,”
Santosky, 455 U.S. at 753–54.
The First Amendment also protects “family relationships,
that presuppose ‘deep attachments and commitments to the
necessarily few other individuals with whom one shares not
only a special community of thoughts, experiences, and
beliefs but also distinctively personal aspects of one’s life.’”
Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir. 2001)
(quoting Board of Dirs. v. Rotary Club, 481 U.S. 537, 545
(1987)). This right was first identified in Roberts v. United
States Jaycees, which indicated that protecting intimate
relations “from unwarranted state interference” was necessary
to safeguard “the ability independently to define one’s
identity that is central to any concept of liberty.” 468 U.S.
14 KEATES V. KOILE
609, 619 (1984). The Court subsequently confirmed that “the
First Amendment protects . . . family relationships.” Board
of Dirs., 481 U.S. at 545. Accordingly, we have held that
claims under both the First and Fourteenth Amendment for
unwarranted interference with the right to familial association
could survive a motion to dismiss. See Lee, 250 F.3d at 686.
In addition to the Fourteenth and First Amendment rights
to familial association, “[w]e evaluate the claims of children
who are taken into state custody under the Fourth
Amendment right to be free from unreasonable seizures rather
than the Fourteenth Amendment right to familial
association.” Kirkpatrick v. County of Washoe, 792 F.3d
1184, 1189 (9th Cir. 2015), on reh’g en banc, 843 F.3d 784
(9th Cir. 2016) (internal quotation marks omitted); see also
Wallis v. Spencer, 202 F.3d 1126, 1137 n.8 (9th Cir. 2000)
(holding that the childrens’ claims “should properly be
assessed under the Fourth Amendment”). Despite the
different constitutional source of the right, we have held that
“the same legal standard applies in evaluating Fourth and
Fourteenth Amendment claims for the removal of children.”
Wallis, 202 F.3d at 1137 n.8.
We have woven these constitutional threads into a
discrete constitutional right in cases where state officials
remove children from parents without consent or due process.
Our cases hold that the Fourteenth, First, and Fourth
Amendments provide a guarantee “that parents will not be
separated from their children without due process of law
except in emergencies.” Mabe v. San Bernardino Cty., Dep’t
of Pub. Soc. Servs., 237 F.3d 1101, 1107–09 (9th Cir. 2001).
Officials may not remove children from their parents without
a court order unless they have “information at the time of the
seizure that establishes reasonable cause to believe that the
KEATES V. KOILE 15
child is in imminent danger of serious bodily injury.” Rogers
v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir.
2007) (internal quotation marks omitted). Such “reasonable
cause” arises, for example, where there is evidence of
imminent abuse after sufficient investigation. Thus “[s]erious
allegations of abuse that have been investigated and
corroborated” may give rise to a reasonable inference that
children “might again be beaten or molested during the time
it would take to get a warrant” unless the official takes the
children into temporary custody. Id. at 1294–95. Lack of
health insurance, by contrast, does not provide a reasonable
cause to believe a child is in imminent danger. Id. at 1296.
An official “cannot seize children suspected of being
abused or neglected unless reasonable avenues of
investigation are first pursued.” Wallis, 202 F.3d at 1138; see
id. (quoting BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir.
1986), for the proposition that an officer has a duty to “make
a thorough investigation and exercise reasonable judgment
before invoking the awesome power of arrest and detention”).
Further, because the “scope of the intrusion” must be
“reasonably necessary to avert” a specific injury, the intrusion
cannot be longer than necessary to avert the injury. Id. at
1140–41 (indicating that children could be held away from
their parents only for so long as the emergency existed).
In Wallis v. Spencer, for instance, we considered a claim
brought by parents and their two young children against the
City of Escondido after police officers seized their children
without a court order. Id. at 1131. The seizure occurred after
the mother’s institutionalized and severely mentally ill sister
told her therapist that her brother-in-law was planning to
sacrifice his young son to Satan on the Fall Equinox. Id. The
therapist reported this threat, which ultimately made its way
16 KEATES V. KOILE
to the police, who entered the family’s home around midnight
and took custody of the children and transported them to a
county institution. Id. at 1132–34. Without parental presence
or consent, the children were taken to a local hospital where
they were subjected to internal body cavity examinations to
determine whether abuse had occurred. Id. at 1135. They
remained in state custody for two and a half months before
being returned to their parents. Id. at 1134.
Proceeding under the Fourteenth Amendment (as to the
claims of the parents) and the Fourth Amendment (as to the
claims of the children), but applying the same legal standard,
see id. at 1137 n.8, Wallis held that there were genuine issues
of material fact as to whether the police had reasonable cause
to believe that the children “faced an immediate threat of
serious physical injury or death,” and whether “the actions
taken by the officers—removing the children from their
mother and placing them in an institution—exceeded the
permissible scope of the action necessary to protect them
from that immediate threat,” id. at 1138 (emphasis omitted).
There were triable issues of fact as to whether the officers had
pursued reasonable avenues of investigation, and whether
“the scope and degree of the state interference was justified
by the alleged exigency.” Id. at 1140. In particular, because
the police had no information that the alleged sacrifice plot
extended beyond the Equinox, there was a genuine issue of
material fact “as to whether the emergency continued to exist
for more than the brief day or two following the time of the
children’s seizure.” Id. Wallis did not address the question
whether the City could be held liable for detention of the
children after their removal was approved by a juvenile court.
Id. at 1141.
 KEATES V. KOILE 17
In sum, our case law clearly establishes that the rights of
parents and children to familial association under the
Fourteenth, First, and Fourth Amendments are violated if a
state official removes children from their parents without
their consent, and without a court order, unless information
at the time of the seizure, after reasonable investigation,
establishes reasonable cause to believe that the child is in
imminent danger of serious bodily injury, and the scope,
degree, and duration of the intrusion are reasonably necessary
to avert the specific injury at issue.
B
Turning to the first of the two qualified immunity
inquiries, we must now determine whether the operative
complaint alleges sufficient facts, accepted as true and
construed in the light most favorable to Keates and A.K., to
establish that Koile and the other defendants violated
Keates’s and A.K’s constitutional rights to familial
association. For the reasons that follow, we conclude that the
allegations are sufficient to state “a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570).
Based on the allegations in the complaint, Koile’s
exercise of authority over A.K. interfered with Keates’s
relationship with A.K. First, on May 21, Koile detained A.K.
at PCH and had hospital staff inform Keates that she could
not have contact with her daughter or take her home. Further,
Koile interfered with the right of familial association by
issuing a TCN on May 21, and transporting A.K. strapped to
a gurney by ambulance to ABHS the same day, where she
was held without her parent’s consent and without a court
order. See Wallis, 202 F.3d at 1134–35.
18 KEATES V. KOILE
These actions would not constitute a violation of Keates’s
and A.K.’s rights to familial association if the defendants had
information at the time of the seizure, after reasonable
investigation, giving rise to a reasonable cause to believe that
A.K. was in imminent danger of serious bodily injury, and if
the scope of the intrusion was reasonably necessary to
prevent serious bodily injury. See id. at 1138. Based on the
allegations of the complaint, however, these requirements
were not met. Although Koile could have given weight to the
call from “someone” at PCH on May 20 stating that A.K. had
tried to commit suicide, the allegations in the complaint
establish that Koile did not undertake a reasonable
investigation as to whether A.K. was in imminent danger due
to her mother’s presence. According to the complaint, Koile
did not corroborate the PCH call to CPS or obtain other
medical opinions on whether A.K. was at risk. Because both
Keates and A.K. repeatedly informed Koile that A.K. was not
actively suicidal, a reasonable official in Koile’s position
would have known that further investigation was necessary.
Moreover, after Koile issued a TCN and transferred A.K. to
ABHS, the intake nurse at ABHS determined that A.K. was
“low-risk” for suicide, further undercutting any reasonable
belief that A.K. was in imminent danger. Nevertheless, the
complaint alleges that A.K. was detained at ABHS at least
two more days before Koile sought a court order. See id. at
1140 (stating that “the scope and degree of the state
interference” must be “justified by the alleged exigency”).
The complaint further alleges facts plausibly indicating
that Koile had sufficient time to obtain a warrant. See
Rogers, 487 F.3d at 1294. On May 20, when Koile first
talked to A.K., she was in a hospital and under medical
supervision. According to the complaint, Keates did not
attempt to remove A.K. from PCH but allowed her to stay
KEATES V. KOILE 19
overnight and merely called for a status report the next day.
“[T]he unlikely possibility” that Keates might “unexpectedly
abscond” with A.K. does not “justify dispensing with the
warrant requirement.” See Kirkpatrick v. County of Washoe,
843 F.3d 784, 792 (9th Cir. 2016) (en banc). Although PCH
was concerned about Keates’s lack of health insurance and
her ability to pay for treatment, such a concern does not give
rise to an imminent danger that would allow the state to
dispense with obtaining a court order. Rogers, 487 F.3d at
1296.
Finally, the complaint plausibly indicates that Koile
exceeded the scope of any intrusion necessary to protect A.K.
See Wallis, 202 F.3d at 1140. Based on the allegations in the
complaint, there was no basis for preventing Keates from
having contact with A.K. According to the complaint, A.K.’s
only concern about her mother was that she “yells, screams,
and cusses”; nothing in the complaint indicates that Keates
was involved in any past or planned future abuse of A.K. or
that contact with Keates would lead to injury. See id. at
1140–41. There was also no basis for requiring A.K. to be
strapped to a gurney when she was transported to ABHS,
because nothing in the complaint suggests A.K. posed an
imminent danger to herself that might justify such restraints.
Detaining A.K. at ABHS also exceeded the necessary scope
of any intrusion because ABHS’s assessment made clear that
any threat of immediate harm had dissipated. See id. at 1140.
Accordingly, we conclude that the operative complaint
plausibly alleges that Koile violated Keates’s and A.K.’s
rights to familial association.2
2
Although the complaint is not entirely clear, it indicates that at some
point after defendants filed a dependency petition in Arizona state court
on May 24, 2013, the court issued an order making A.K. a temporary ward
20 KEATES V. KOILE
Turning to the second prong of the qualified immunity
inquiry, “whether the right was clearly established,” Saucier,
533 U.S. at 201, we must determine whether it was so clear
that Koile’s actions violated Keates’s and A.K.’s rights to
familial association that any reasonable officer “would have
understood that what he is doing violates [those] right[s].”
Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal
quotation marks and alteration omitted). “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. We must undertake this
inquiry “in light of the specific context of the case, not as a
broad general proposition.” Mullenix, 136 S. Ct. at 308
(quoting Brosseau, 543 U.S. at 198).
Koile argues that the facts alleged in the complaint show
that a reasonable officer in Koile’s position would not have
known that his specific actions violated Keates’s and A.K.’s
constitutional rights. Koile argues that he acted reasonably
because he was told by “qualified medical providers” at PCH
that A.K. was actively suicidal and needed inpatient
treatment. According to Koile, this information, along with
allegations in the complaint that the care provider at Christ
Cares Clinic referred A.K. to the emergency room, that
Keates refused to provide contact information because she
believed that the hospital was attempting to hold A.K.
of the state, and did not terminate this condition until November 25, 2013.
We have previously left open the question whether an official defendant
could be “held liable for any detention of [a child] after [the child’s]
removal was approved by the juvenile court.” Wallis, 202 F.3d at 1141.
Because Keates has not fully addressed this issue in her briefs, we leave
it to the district court on remand to determine whether events after the date
of the juvenile court hearing violated Keates’s and A.K.’s constitutional
rights.
KEATES V. KOILE 21
hostage until it obtained information for billing, and that CPS
was concerned that A.K.’s mother would remove A.K. from
care if CPS did not act immediately, shows that Koile was
reasonable in taking immediate action to protect A.K. and to
insure that she got the care that heath care professionals said
that she needed.
We disagree, because Koile’s arguments are not
supported by the complaint. Most important, nothing in the
complaint indicates that qualified medical professionals at
PCH advised CPS that A.K. was actively suicidal; it states
only that “someone from PCH” called CPS with that
information and with the recommendation that inpatient care
was necessary. The complaint alleges that Keates and A.K.
arrived at PCH Emergency voluntarily on the advice of Christ
Cares Clinic, and does not allege that the clinic warned PCH
that A.K. was in imminent danger. Nor does the complaint
contain facts establishing that a reasonable officer in Koile’s
situation would have been concerned that Keates might take
A.K. home against medical advice. The complaint alleges
that Keates did provide Call and Kaplan with her contact
information, and that Keates left A.K. in the hospital
overnight and merely called in the next morning. Further,
there is no allegation in the complaint that Koile was aware
of Kaplan’s report that PCH was concerned that “mother
would take [patient] and leave.”
Accordingly, based solely on the facts alleged in the
complaint construed in favor of Keates and A.K., a
reasonable official in Koile’s position would know the
available information did not establish reasonable cause to
believe that A.K. was in imminent danger of attempting to
commit suicide, or that it was necessary to separate her from
her mother, transfer her to ABHS, and continue to detain her
22 KEATES V. KOILE
after medical professionals at ABHS concluded she was a low
suicide risk. Therefore, we conclude that the operative
complaint alleges facts that allow us “to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. The district court therefore
erred in dismissing the familial association claim against
Koile and Pender on the basis of qualified immunity.
However, “[o]ur denial of qualified immunity at this stage of
the proceedings does not mean that this case must go to trial.”
O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016). As we
have previously noted, “[o]nce an evidentiary record has been
developed through discovery, defendants will be free to move
for summary judgment based on qualified immunity.” Id.
IV
We now turn to Keates’s and A.K.’s claim that the
defendants violated their due process right to be free from
deliberately false statements during juvenile court
proceedings. In order to prevail on a judicial deception claim,
a plaintiff must prove that “(1) the defendant official
deliberately fabricated evidence and (2) the deliberate
fabrication caused the plaintiff’s deprivation of liberty.”
Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017). If a
state official “submitted an affidavit that contained statements
he knew to be false or would have known were false had he
not recklessly disregarded the truth, . . . he cannot be said to
have acted in a reasonable manner, and the shield of qualified
immunity is lost.” Chism v. Washington State, 661 F.3d 380,
393 (9th Cir. 2011) (quoting Branch v. Tunnell, 937 F.2d
1382, 1387 (9th Cir. 1991)).
We again begin by determining whether the operative
complaint alleges sufficient facts, accepted as true and
KEATES V. KOILE 23
construed in the light most favorable to Keates and A.K., to
establish that their due process rights were violated. The
complaint makes a single factual allegation supporting this
claim, namely that the dependency petition used to obtain a
court order “falsely stated that A.K. attempted suicide on
May 20, 2013 even though A.K. specifically told Mr. Koile,
PCH employees, or agents, and ABHS employees, or agents,
that she did not attempt a suicide on May 20, 2013 and at any
time in the recent past.” The complaint does not, however,
provide a basis for concluding that Koile’s inclusion of the
statement that A.K. attempted suicide was a deliberate
falsehood. The complaint states that “someone” at PCH
reported to CPS that “A.K. was suffering severe depression
and had attempted a suicide by strangulation on May 20,
2013,” and a reasonable officer in Koile’s position could have
given more weight to this information from the hospital than
to the denials from Keates and A.K.
It is a closer question whether the statement in the
dependency petition that A.K. attempted suicide was made
with reckless disregard for the truth. By the time the
dependency petition was filed on May 24, Koile should have
been aware of ABHS’s diagnosis on May 21 that A.K. was at
low risk for suicide and he would have had time to investigate
the PCH report about A.K.’s suicide attempt. Nevertheless,
ABHS’s prediction of A.K.’s suicide risk in the future does
not directly contradict the statement from “someone” at PCH
that A.K. had attempted suicide on May 20. Given that
qualified immunity is intended to give officials “breathing
room to make reasonable but mistaken judgments,” Al-Kidd,
563 U.S. at 743, we conclude that the complaint did not
plausibly allege that Koile knew or recklessly disregarded the
truth when he included this statement in the dependency
petition.
24 KEATES V. KOILE
Accordingly, even assuming all the allegations in the
complaint are true, we cannot say that Koile’s statement in
the dependency petition was a deliberate falsehood or
constituted judicial deception, “in light of the specific context
of the case,” Mullenix, 136 S. Ct. at 308. Therefore, the
district court did not err in granting the motion to dismiss this
claim.
V
We next turn to Keates’s and A.K’s arguments that the
district court erred in dismissing the claims against Carter,
Howard, Vanesse, Gomez, Jenkins, Lensche and Rountree.
These defendants cannot be held liable for a constitutional
violation under 42 U.S.C. § 1983 unless they were integral
participants in the unlawful conduct. Chuman v. Wright,
76 F.3d 292, 295 (9th Cir. 1996). We have held that
defendants can be liable for “integral participation” even if
the actions of each defendant do not “rise to the level of a
constitutional violation.” Boyd v. Benton County, 374 F.3d
773, 780 (9th Cir. 2004). In Boyd, for instance, the plaintiff
brought suit under § 1983 against city and county police
officers for injuries incurred when the police threw a flash-
bang device into an apartment prior to a search. Although a
single officer threw the device into the apartment, we held
that the other officers involved in the operation were “integral
participants” because: (1) they stood armed behind the
individual deploying the flash-bang; (2) “the use of the flash-
bang was part of the search operation in which every officer
participated in some meaningful way”; and (3) “every officer
was aware of the decision to use the flash-bang, did not object
to it, and participated in the search operation knowing the
flash-bang was to be deployed.” Id. Accordingly, we
concluded that the participating officers could be liable for
KEATES V. KOILE 25
the constitutional violation. Id. We reached a different
conclusion in Sjurset v. Button, 810 F.3d 609 (9th Cir. 2015).
In that case, where the decision to remove children from their
parents’ home was made by a state agency, and there were no
facts suggesting that police officers who actually removed the
children were “privy to any discussions, briefings or
collective decisions” made by the agency “in its protective-
custody determination,” we held that the police officers could
not be held liable for violating the family’s constitutional
rights. Id. at 619.
On a motion to dismiss, we must determine whether the
complaint plausibly alleges that each of the defendants was
an integral participant in the violation of Keates’s and A.K.’s
rights to familial association. The complaint alleges that
Lensche and Rountree, who were employees of CPS, spoke
to Randy Call, a PCH employee who informed Keates that
A.K. was not allowed to leave, and that Lensche and
Rountree “collaborated in the issuance of the TCN.” These
allegations, though sparse, indicate that Lensche and
Rountree were aware of A.K.’s situation at PCH and
participated in a meaningful way in a collective decision to
issue a TCN. The TCN was central to the alleged
constitutional violation, as it was the basis for Koile’s seizure
and removal of A.K. to ABHS. Accordingly, we conclude
that this is sufficient—though just barely—to make a
plausible allegation that Lensche and Rountree were integral
participants in violating Keates’s and A.K.’s constitutional
rights. Therefore, the district court erred in finding that the
operative complaint failed to state a claim against Lensche
and Rountree.
The complaint’s allegations against Howard, Vanesse,
Gomez, and Jenkins are insufficient, however, to show
26 KEATES V. KOILE
integral participation. For example, the complaint alleges
that PCH employees spoke to CPS supervisor Gillian Vanesse
on the morning of May 21, and that she was otherwise
“involved early in the investigation.” There is no allegation,
however, that Vanesse “collaborated in the issuance of the
TCN.” The complaint also alleges that social worker Karen
Howard sent a letter to Keates in September 2013, stating that
CPS took custody of A.K. because Keates lacked insurance
and did not willingly share her contact information with PCH.
This occurred months after CPS initially took custody of
A.K., however, and the complaint does not allege any
participation by Howard before then. Nor does the complaint
make any specific allegations regarding Gomez or Jenkins.
Because the complaint does not offer any plausible allegation
that any of these CPS employees participated in the decision
to interfere with Keates’s and A.K.’s constitutional rights, the
district court did not err in dismissing the claims against
them.3
Finally, the complaint alleges that Carter was an “official
policymaker” for CPS and “was responsible for
[implementation] of those policies in a manner that violated
Plaintiffs’ constitutional rights.” Further, the complaint
alleges that “all or some of the unconstitutional actions or
conduct . . . are the direct result of the unconstitutional
policies, procedures and practices promulgated by Defendant
3
Keates’s argument that she should be excused from making the
necessary factual allegations because she was not in a position to know all
relevant factual details of the defendants’ involvement in the removal
decision is unavailing. See Iqbal, 556 U.S. at 678–79 (holding that “only
a complaint that states a plausible claim for relief survives a motion to
dismiss” and the federal rules allowing notice pleading “do not unlock the
doors of discovery for a plaintiff armed with nothing more than
conclusions.”).
KEATES V. KOILE 27
Carter.” The complaint does not allege that Carter knew of
or was directly involved in the decisions leading to CPS
taking custody of A.K.
Because vicarious liability is inapplicable to § 1983 suits,
“a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. at 676. A
supervisory official may be held liable under § 1983 only “if
there exists either (1) his or her personal involvement in the
constitutional deprivation, or (2) a sufficient causal
connection between the supervisor’s wrongful conduct and
the constitutional violation.” Starr v. Baca, 652 F.3d 1202,
1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642,
646 (9th Cir. 1989) (internal quotation marks omitted)). Even
if a supervisory official is not directly involved in the
allegedly unconstitutional conduct, “[a] supervisor can be
liable in his individual capacity for his own culpable action or
inaction in the training, supervision, or control of his
subordinates; for his acquiescence in the constitutional
deprivation; or for conduct that showed a reckless or callous
indifference to the rights of others.” Id. at 1208 (quoting
Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.
1998)). Therefore, the claim that a supervisory official knew
of unconstitutional conditions and “culpable actions of his
subordinates” but failed to act amounts to “acquiescence in
the unconstitutional conduct of his subordinates” and is
“sufficient to state a claim of supervisory liability.” Id.
The complaint here does not allege that Carter was
directly involved in the allegedly unconstitutional conduct or
that he had knowledge of the constitutional deprivations and
acquiesced in them. Rather, the complaint makes conclusory
allegations that Carter promulgated unconstitutional polices
28 KEATES V. KOILE
and procedures which authorized the particular conduct in
this case and thus directly caused Koile’s allegedly
unconstitutional conduct. These allegations do not suffice to
state a claim of supervisory liability. A court is “not bound
to accept as true a legal conclusion couched as a factual
allegation,” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555), or “an unadorned, the-defendant-
unlawfully-harmed-me accusation,” id. Because the
conclusory allegations in the complaint are speculative and do
not state a plausible claim for relief against Carter, the district
court did not err in dismissing him.
VI
We reverse the district court’s dismissal of Keates’s and
A.K.’s claim for violation of their constitutional right to
familial association on qualified immunity grounds, affirm
the district court’s dismissal of their claim for violation of
their due process right to be free from deliberately false
statements in state court dependency proceedings, reverse the
dismissal of the claim that Lensche and Rountree violated
their constitutional right to familial association, and affirm
the dismissal of that claim against Carter, Vanesse, Howard,
Gomez, and Jenkins. Each party will bear their own costs on
appeal.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.