Jose Murguia v. Langdon ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE MURGUIA, for himself and for the No. 1:19-cv-00942-DAD-BAM Estates of Mason and Maddox Murguia, 12 Plaintiff, 13 ORDER GRANTING DEFENDANTS’ v. MOTION TO DISMISS AND DENYING 14 DEFENDANTS’ MOTION FOR A MORE HEATHER LANGDON, et al., DEFINITE STATEMENT 15 Defendants. (Doc. Nos. 9, 12, 29) 16 17 18 This matter came before the court on motions to dismiss for failure to state a claim and a 19 motion for a more definite statement filed on behalf of defendants Tulare County Sheriff’s 20 Department (“TCSD”), Child Welfare Services (“CWS”), Deputy Lewis and Roxanna Torres 21 (collectively “county defendants”) and First Assembly of God Church of Visalia (“First 22 Assembly”). (Doc. Nos. 9, 12.) On November 5, 2019, a hearing on the county defendants and 23 defendant First Assembly’s motions to dismiss was held. Appearing telephonically at the hearing 24 were attorneys Robert Rees and Steven Beltran on behalf of plaintiffs; attorney Kathleen Taylor, 25 on behalf of the county defendants; attorney Leonard Herr, on behalf of defendant City of Visalia; 26 and attorney Michael Lehman, on behalf of defendant First Assembly. After the hearing, 27 defendant City of Visalia filed its own motion to dismiss, (Doc. No. 29), which the court took 28 under submission pursuant to Local Rule 230(g) on March 11, 2020. (Doc. No. 34.) For the 1 reasons set forth below, the court will grant defendants’ motions to dismiss with leave to amend 2 and deny the county defendants’ motion for a more definite statement. 3 BACKGROUND1 4 In the complaint plaintiffs allege the following. Plaintiff Jose Murguia and defendant 5 Heather Langdon had three sons during their marriage. (Doc. No. 1 (“Compl.”) at ¶¶ 30, 31.) 6 Defendant Langdon had a history of alcohol abuse, violence toward her children, and 7 hospitalizations for overdoses and attempted suicide. (Id. at ¶ 31.) In the past, CWS had opened 8 one or more investigations of Langdon for negligent care of her children, and her custodial rights 9 with respect to her sons had been restricted by CWS and the family law court. (Id.) Langdon had 10 filed to dissolve her marriage to plaintiff Murguia in August 2014. (Id. at ¶ 32.) In the years that 11 followed, Langdon had a CWS case opened against her for child abuse and multiple temporary 12 restraining orders issued against her, as well as suffered multiple arrests for drunk driving. (Id. at 13 ¶¶ 33–40.) Ultimately, plaintiff Murguia ended up with physical and legal custody of the 14 couples’ three sons, and Langdon was denied any visitation rights. (Id. at ¶ 40.) 15 In the Spring of 2017, plaintiff Murguia and Langdon began to see each other again and 16 Langdon became pregnant. (Id. at ¶ 41.) Their relationship continued to involve verbal and 17 physical abuse, with Langdon eventually being arrested for battery and having a temporary 18 restraining order and stay away order issued against her. (Id. at ¶¶ 42, 43.) On January 12, 2018, 19 Langdon gave birth to Mason and Maddox Murguia (collectively, “the decedents”).2 (Id. at ¶ 44.) 20 No formal custody order was entered with respect to the decedents. (Id.) On two occasions in 21 early 2018, Langdon was reported to CWS for being drunk while the decedents were in her care. 22 ///// 23 24 1 Due to its lengthy, verbose, and confusing nature, this factual background is the court’s best attempt to synthesize the factual allegations of the 131-page complaint. The court “cannot be 25 sure that [it] ha[s] correctly understood all the averments,” but if it has not, “plaintiffs have only themselves to blame.” McHenry v. Renne, 84 F.3d 1172, 1174 (9th Cir. 1996). 26 27 2 Because plaintiff Jose Murguia is bringing this action on behalf of himself and on behalf of the decedents’ estates, this order will refer to him individually as “plaintiff Murguia” and collectively 28 with the decedents as “plaintiffs.” 1 (Id. at ¶¶ 45, 46.) Although the decedents originally lived with Langdon and the three older boys 2 lived with plaintiff Murguia, all seven were living together in August 2018. (Id. at ¶¶ 44–47.) 3 On December 3 or 4, 2018, Langdon called First Assembly and falsely stated that her 4 oldest son had threatened to shoot up Linwood Elementary School. (Id. at ¶ 68.) First Assembly 5 reported the call to TCSD, which sent deputies to the Murguia home. (Id.) TCSD apparently 6 concluded that Langdon’s report was false and took no action. (Id.) On December 4, 2018 when 7 plaintiff Murguia came home from work, Langdon was acting erratic and shouting at him. (Id. at 8 ¶ 69.) He called 911 and described Langdon’s behavior. (Id.) Plaintiff Murguia asked the 911 9 responder for someone to get mental health help for Langdon. (Id.) Two TCSD deputies, 10 including defendant Lewis, responded to the call. (Id. at ¶ 70.) The TCSD deputies did not 11 consult with a supervisor or any other mental health experts to assess Langdon’s mental state. 12 (Id.) Instead, the TCSD deputies told plaintiff that since Langdon did not appear to be a threat to 13 herself or anyone else, they could not take any action. (Id.) The TCSD deputies also stated that if 14 Langdon threatened anybody or herself, to call them back and they would take her into custody 15 on a Welfare and Institutions Code (“WIC”) § 5150 hold. (Id.) Plaintiff Murguia told the TCSD 16 deputies that he was going to take the next day off work to get help for Langdon. (Id.) 17 On December 5, 2018, plaintiff Murguia again called 911 to report Langdon’s behavior. 18 (Id. at ¶ 71–74.) County paramedics, the fire department, and TCSD deputies, including 19 defendant Lewis, responded. (Id. at ¶ 74.) Plaintiff Murguia described Langdon’s behavior to the 20 TCSD deputies, who could see Langdon acting strangely. (Id.) Nonetheless, neither TCSD 21 deputies nor their communication center conducted a database check. (Id.) Plaintiff Murguia told 22 the TCSD deputies that Langdon needed to be evaluated professionally. (Id. at ¶ 75.) Plaintiff 23 Murguia said he wanted to take Langdon to the hospital or a clinic for a mental evaluation, but the 24 TCSD deputies said they would not permit it. (Id.) Plaintiff Murguia reminded the TCSD 25 deputies of the previous night’s call and their promise to put Langdon under a psychiatric hold. 26 (Id.) A TCSD deputy told plaintiff Murguia to go outside and stay there. (Id.) Although the 27 county paramedics took the gurney inside, the TCSD deputies did not allow the county 28 paramedics to assess Langdon and instead told the paramedics to leave. (Id. at ¶ 76.) 1 While the TCSD deputies were still at the residence, plaintiff Murguia walked to the home 2 of Rosa, Langdon’s friend. (Id. at ¶ 77.) Plaintiff Murguia asked Rosa if she would take 3 Langdon to the hospital to get help, and Rosa agreed. (Id.) When Rosa got to the Murguia home, 4 there were two sheriff’s cars and three TCSD deputies. (Id. at ¶ 78.) The TCSD deputy outside 5 the home told Rosa she could enter the house and told plaintiff Murguia that he had to remain 6 outside. (Id.) A TCSD deputy inside the house told Rosa that Langdon had voluntarily agreed to 7 go to the hospital and was waiting for Rosa to take her. (Id.) The TCSD deputies told Rosa that 8 she, and not the TCSD deputies, should take Langdon to the hospital and that Rosa should then 9 take custody of the decedent children. (Id. at ¶ 80.) TCSD policy required the TCSD deputies to 10 give custody of the children to plaintiff Murguia, but TCSD deputies told Rosa to take the 11 decedent children from Langdon at the hospital. (Id.) Although Rosa agreed to take Langdon to 12 the hospital, Langdon insisted that they were instead taking the decedent children to church. (Id. 13 at ¶ 81.) The TCSD deputies were surprised to hear this. (Id. at ¶ 82.) Under TCSD policy, 14 where a person changes her mind about a voluntary mental evaluation, the TCSD deputy should 15 proceed with placing a hold on the individual. (Id.) The TCSD deputies agreed with Rosa that it 16 was not in the best interests of the decedents to be in Langdon’s custody. (Id. at ¶ 85.) TCSD 17 policy required the deputies to give plaintiff Murguia, as the non-arrested parent, custody of his 18 children. (Id.) Plaintiff Murguia begged the TCSD deputies to let him have custody and they 19 refused. (Id.) The TCSD deputies did not call CWS to detain the children. (Id.) Instead, TCSD 20 deputies shifted the burden to Rosa to protect the children. (Id.) 21 Defendant Langdon, Rosa, and the decedents walked to Rosa’s house. (Id. at ¶ 86.) 22 Plaintiff Murguia again asked the TCSD deputies not to let Langdon leave with the children and 23 to instead give him custody of them. (Id. at ¶ 88.) Plaintiff Murguia told the TCSD deputies the 24 decedents were not safe with Langdon and asked the deputies to stop Langdon from taking them. 25 (Id.) Instead, the TCSD deputies stopped plaintiff Murguia from following Langdon and the 26 decedents. (Id.) TCSD deputies told Rosa and plaintiff Murguia that the deputies were going to 27 let Langdon take the decedents. (Id.) After Langdon left with the children, TCSD deputies 28 stayed parked outside of the house for 30 minutes, watching plaintiff Murguia. (Id. at ¶ 89.) 1 Plaintiff Murguia was afraid that if he followed the decedents, the deputies would arrest 2 him. (Id.) 3 Langdon and Rosa took the decedents to First Assembly. (Id. at ¶ 91.) There, Langdon 4 told Pastor John Walker she was homeless, and the pastor found Lighthouse, a women’s shelter in 5 Tulare for Langdon. (Id. at ¶ 93.) Langdon then told Pastor Walker that she needed mental help. 6 (Id. at ¶ 94.) The pastor asked her if she would go to Cypress Mental Health Center for 7 evaluation and she agreed. (Id.) The pastor called Visalia Police Department (“VPD”), and when 8 the officers arrived, the pastor told them that Langdon wanted to go to Cypress Mental Health 9 Center to receive mental help. (Id. at ¶ 99.) VPD knew about the false report of the alleged 10 school threat, but the VPD officers did not take Langdon to Cypress Mental Health Center. (Id.) 11 Instead, they took her and the decedents to Lighthouse Shelter. (Id.) 12 At Lighthouse, Langdon’s behavior during her intake interview resulted in both an 13 ambulance and Tulare Police Department (“TPD”) being called multiple times. (Id. at ¶¶ 100, 14 102–06.) TPD Sergeant Garcia called the CWS Hotline and spoke with defendant Torres. (Id. at 15 ¶ 126.) Defendant Torres did not conduct an in-person investigation or perform the database 16 searches that would have revealed Langdon’s history of child abuse and domestic violence, as 17 well as her address and plaintiff Murguia’s availability to take custody of the children. (Id.) 18 Defendant Torres told Sergeant Garcia that CWS would not take the children unless TPD arrested 19 the mother or put a psychiatric hold on her. (Id. at ¶ 127.) Sergeant Garcia told Torres that 20 Langdon had been taken to a hospital for mental evaluation. (Id.) Defendant Torres told Garcia 21 that there were no resources for the mother, but CWS could place the children if the mother were 22 arrested. (Id.) Defendant Torres also said that CWS had no prior history regarding Langdon in 23 their system with respect to prior reports of child abuse or otherwise. (Id.) Defendant Torres did 24 not report Langdon’s history involving child abuse investigations or supervised visitations, nor 25 did she tell TPD that plaintiff Murguia was an available parent who could take the children. (Id.) 26 TPD officers took Langdon and the children to the Virginia Motor Lodge. (Id. at ¶ 128.) Early 27 the next morning, on December 6, 2018, a bystander called 911 as Langdon was screaming for 28 ///// 1 someone to call 911. (Id. at ¶ 129.) Paramedics responded and found the children on the hotel 2 bed. (Id.) Tragically, defendant Langdon had drowned them. (Id.) 3 On July 9, 2019, plaintiffs filed a 131-page complaint asserting fifty-four claims against 4 twenty-two defendants. (Compl.) On September 17, 2019, defendant First Assembly filed a 5 motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 9.) On September 6 26, 2019, the county defendants filed a motion to dismiss under Rules 8 and 12(b)(6), and in the 7 alternative, a motion for a more definite statement. (Doc. No. 12.) Plaintiffs filed their 8 opposition briefs on October 21, 2019. (Doc. Nos. 19, 20.) Defendant First Assembly and the 9 county defendants replied on October 29, 2019. (Doc. Nos. 23, 24.) On February 10, 2020, 10 defendant City of Visalia filed a motion to dismiss under Rules 8 and 12(b)(6). (Doc. No. 29.) 11 Plaintiffs filed their opposition on February 28, 2020. (Doc. No. 30.) Defendant City of Visalia 12 replied on March 10, 2020. (Doc. No. 33.) 13 LEGAL STANDARDS 14 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 15 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal 16 “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 17 under a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th 18 Cir. 2019) (citation omitted). A plaintiff is required to allege “enough facts to state a claim to 19 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 22 Iqbal, 556 U.S. 662, 678 (2009). 23 In resolving a Rule 12(b)(6) motion, “[a]ll allegations of material fact are taken as true 24 and construed in the light most favorable to the nonmoving party.” Naruto v. Slater, 888 F.3d 25 418, 421 (9th Cir. 2018) (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 26 2001)). However, the court need not accept as true allegations that are “merely conclusory, 27 unwarranted deductions of fact, or unreasonable inferences.” Sprewell, 266 F.3d at 988 (citations 28 omitted). Neither must the court “assume the truth of legal conclusions cast in the form of factual 1 allegations.” Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008) (citation 2 omitted). 3 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 4 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 5 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 6 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 7 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove 9 facts which it has not alleged or that the defendants have violated the . . . laws in ways that have 10 not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 11 459 U.S. 519, 526 (1983). 12 In ruling on such a motion, the court may consider material which is properly submitted as 13 part of the complaint, as well as documents that are not physically attached to the complaint if 14 their authenticity is not contested and the plaintiff’s complaint necessarily relies on them, and 15 matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001). 16 ANALYSIS 17 Defendants First Assembly, City of Visalia, and county defendants move to dismiss 18 plaintiffs’ complaint under Rule 12(b)(6) for failure to state a claim upon which relief can be 19 granted. 20 A. Federal Claims 21 Plaintiffs bring eighteen separate claims for violation of their constitutional rights to 22 familial companionship and decedents’ right to life under 42 U.S.C. § 1983. (Compl. at ¶¶ 130– 23 325.) Each of these claims is brought against individual defendants Lewis, Torres, Does 1–4, and 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 Does 5–8.3 Plaintiffs have also asserted Monell claims against defendants City of Visalia and 2 Tulare County. 3 1. Claims Against the Individual Defendants 4 Defendants move to dismiss the complaint, arguing that plaintiffs have failed to allege 5 facts sufficient to state a claim upon which relief could be granted. To succeed on a § 1983 6 claim, a plaintiff must allege and ultimately show that: (1) the conduct complained of was 7 committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff 8 of a federal constitutional or statutory right. Patel v. Kent Sch. Dist., 648 F.3d 965, 971–72 (9th 9 Cir. 2011) (citing Tatum v. City & County of San Francisco, 441 F.3d 1090, 1094 (9th Cir. 10 2006)). Relevant to plaintiffs’ claims here, the Ninth Circuit has explained as follows: 11 “[T]he general rule is that [a] state is not liable for its omissions.” Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th 12 Cir.2000). In that vein, the Fourteenth Amendment’s Due Process Clause generally does not confer any affirmative right to 13 governmental aid, even where such aid may be necessary to secure life, liberty, or property interests. DeShaney [v. Winnebago Cty. 14 Dep’t of Soc. Servs, 489 U.S. [189,] 196, 109 S. Ct. 998 [(1989)]. As a corollary, the Fourteenth Amendment typically “does not impose a 15 duty on [the state] to protect individuals from third parties.” Morgan v. Gonzales, 495 F.3d 1084, 1093 (9th Cir.2007). 16 There are two exceptions to this rule: (1) when a “special 17 relationship” exists between the plaintiff and the state (the special- relationship exception), DeShaney, 489 U.S. at 198–202, 109 S. Ct. 18 998; and (2) when the state affirmatively places the plaintiff in danger by acting with “deliberate indifference” to a “known or 19 obvious danger” (the state-created danger exception), L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996). If either exception applies, 20 a state’s omission or failure to protect may give rise to a § 1983 claim. 21 22 Id. 23 ///// 24 3 On October 4, 2019, the parties filed a stipulation and proposed order for plaintiffs to file an 25 amended complaint naming defendant Doe 5 as Visalia Police Officer Oscar Hernandez. (Doc. No. 15.) On March 5, 2020, the parties filed another stipulation and proposed order for plaintiffs 26 to file an amended complaint naming defendant Doe 1 as Tulare County Sherriff Sergeant Cerda. 27 (Doc. No. 32.) Because the pending motions to dismiss will be granted and plaintiffs are given leave to amend, the court will not give effect to the parties’ stipulations but instead directs 28 plaintiffs to file any amended complaint in accordance with those stipulations and this order. 1 The special-relationship exception “applies when a state ‘takes a person into its custody 2 and holds him there against his will.’” Id. at 972 (quoting DeShaney, 489 U.S. at 200); see also 3 Henry A. v. Willden, 678 F.3d 991, 998 (9th Cir, 2012) (“[W]hen a custodial relationship exists 4 between the plaintiff and the State such that the State assumes some responsibility for the 5 plaintiff’s safety and well-being.”). “The types of custody triggering the exception are 6 ‘incarceration, institutionalization, or other similar restraint of personal liberty.’” Patel, 648 F.3d 7 at 972. “The special-relationship exception does not apply when a state fails to protect a person 8 who is not in custody.” Id. The other exception, the state-created danger exception, has two 9 requirements: (1) there must be “affirmative conduct on the part of the state in placing the 10 plaintiff in danger,” and (2) the state must act “with deliberate indifference to a known or obvious 11 danger.” Id. at 974 (internal quotations and citations omitted); see also Henry A., 678 F.3d at 12 1002; Kennedy v. Ridgefield, 439 F.3d 1055, 1062–64 (9th Cir. 2006). 13 Here, plaintiffs assert in the complaint a constitutional right to life and to familial 14 companionship and society. (See, e.g., Compl. at ¶¶ 131–32, 143–44, 156–57). The Ninth 15 Circuit recognizes that a parent has a Fourteenth Amendment liberty interest in the 16 companionship and society of his or her child, Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 17 2010), “and that a child’s interest in [their] relationship with a parent is sufficiently weighty by 18 itself to constitute a cognizable liberty interest.” Curnow By & Through Curnow v. Ridgecrest 19 Police, 952 F.2d 321, 325 (9th Cir. 1991) (internal citation and quotation marks omitted). 20 Likewise, “the First Amendment protects those relationships, including family relationships, that 21 presuppose ‘deep attachments and commitments to the necessarily few other individuals with 22 whom one shares not only a special community of thoughts, experiences, and beliefs but also 23 distinctively personal aspects of one’ s life.’” Lee, 250 F.3d at 685.4 24 ///// 25 4 The complaint does not clarify under which constitutional amendment plaintiffs are attempting 26 to bring their deprivation of familial companionship claims. However, in their oppositions to the 27 pending motions plaintiffs state that the claims arise under both the First and Fourteenth Amendments. (Doc. Nos. 19 at 20; 30 at 17.) Plaintiffs’ failure to identify the constitutional 28 amendment upon which they base their claim does not change the analysis. 1 Plaintiffs also allege that the individual defendants named in this action were acting under 2 color of state law. (Compl. at ¶¶ 5, 6, 7, 10, 14.) Thus, the sole issue posed by the pending 3 motions to dismiss this cause of action is whether plaintiffs have adequately alleged that any of 4 the individual defendants’ conduct deprived them of a constitutional right. Below, the court will 5 consider the claims brought against each group of individual defendants separately. 6 1. TCSD Deputies 7 Plaintiffs each bring a claim against defendant Lewis and Does 1 through 3 (collectively 8 hereafter, “TCSD deputies”). (See Compl. at ¶¶ 5, 130–64.) County defendants move to dismiss 9 that claim, arguing that plaintiffs have failed to allege an exception to the rule that failure to 10 protect an individual against private acts of violence does not constitute a violation of the Due 11 Process Clause of the Fourteenth Amendment. (Doc. No. 12 at 14.) 12 Here, plaintiffs do not allege that any parties to this action were taken into custody by the 13 TCSD deputies, which is a prerequisite of the special-relationship exception. Although plaintiffs 14 argue that “[t]he deputies promised Jose and Langdon to provide § 5150 help,” (Doc. No. 19 at 15 22), the other allegations of the complaint contradict this assertion. (See Compl. at ¶ 70) (alleging 16 that the officers would not take Langdon into custody on a Welfare & Institutions Code § 5150 17 hold unless she threatened to harm herself or another). Plaintiffs also contend that a special- 18 relationship was created once “[t]he deputies gave custody of the twins to a mentally unstable, 19 thrice-convicted child abuser and ordered Jose out of his own home,” but their complaint does not 20 allege that the decedents were ever in the custody of a TCSD deputy. (See Compl. at ¶¶ 66–89.) 21 Additionally, plaintiffs assert that by telling plaintiff Murguia to let Langdon go and by parking 22 outside Murguia’s home for 30 minutes, TCSD deputies restrained plaintiff Murguia through a 23 show of authority. (Doc. No. 19 at 23.) Even assuming arguendo that based on these allegations 24 plaintiff Murguia could be found to have effectively been in custody, application of the special- 25 relationship exception requires harm befalling the party in custody as distinguished from them 26 being deprived of their constitutional right. See, e.g., DeShaney, 489 U.S. at 199–200 (defining 27 the special-relationship exception as imposing a “duty to assume some responsibility for [the 28 custodied person’s] safety and general well-being”); Patel, 648 F.3d at 973 (listing cases 1 discussing whether compulsory school attendance can give rise to a special-relationship between 2 schools and students); J.P. by & through Villanueva v. County of Alameda, 803 F. App’x 106, 3 108 (9th Cir. 2020)5 (“The state-created danger exception “only applies in situations where the 4 plaintiff was directly harmed by a third party.”). Here, plaintiffs fail to allege in their complaint 5 that plaintiff Murguia was harmed, and there is no allegation that the decedent children were ever 6 in custody. 7 Plaintiffs’ complaint also fails to allege facts supporting application of the state-created 8 danger exception. Plaintiffs ague that defendants played a role in increasing the vulnerability of 9 the decedent children because plaintiff Murguia was restrained and “the deputies let Langdon, a 10 mentally unstable person with a history of child cruelty, have the twins and ordered Jose, the 11 capable parent, to stay away.” (Doc. No. 19 at 23–24.) However, according to the complaint, 12 there was no formal custody order regarding the decedent children, and at the time of these events 13 they lived with both plaintiff Murguia and Langdon. (Compl. at ¶¶ 44, 48.) In other words, the 14 complaint lacks allegations of affirmative conduct on the part of TCSD deputies. Rather, the 15 children were always in Langdon’s custody and it cannot be alleged that the deputies placed them 16 there. See Enyart ex rel. Chally v. Kerper, No. CIV. 97-1725, 1999 WL 803319, at *5 (D. Or. 17 Oct. 8, 1999) (finding the state was not liable under the state-created dangers exception because 18 the state did not place plaintiff, who was sexually abused while in the custody of her convicted 19 sex offender father, in her father’s custody in violation of his probation); DeShaney, 489 U.S. at 20 190 (“No [affirmative duty to protect] existed here, for the harms petitioner suffered occurred not 21 while the State was holding him in its custody, but while he was in the custody of his natural 22 father, who was in no sense a state actor.”) 23 Because the complaint does not allege facts supporting a cognizable failure to protect 24 claim against the TCSD deputies, their motion to dismiss claims one through three against them 25 will be granted. 26 ///// 27 5 Citation to this and all other unpublished Ninth Circuit opinions in this order is appropriate 28 pursuant to Ninth Circuit Rule 36-3(b). 1 2. CWS Employees 2 Plaintiffs also bring claims one through three against defendant Torres and Doe 4 3 (collectively hereafter, “CWS employees”). (See Compl. at ¶¶ 6, 130–64.) Similar to their 4 arguments as to the TCSD deputies, county defendants argue that plaintiffs have failed to allege 5 facts supporting application of an exception to the rule against liability for failure to act as to the 6 CWS employees. (Doc. No. 12 at 14.) 7 In opposing this aspect of the motion to dismiss, plaintiffs clarify that their claim against 8 the CWS defendants is based on a state-created danger theory. According to plaintiffs, the 9 decedent children’s vulnerability to harm at the hands of their mother was increased because 10 defendant Torres had a duty to make an in-person investigation, evaluate all risk factors, and 11 convey Langdon’s negative history to TPD. (Doc. No. 19 at 23.) The children were in their 12 mother’s custody before and after defendant Torres failed to act and the complaint does not 13 allege that the children were ever in CWS’s custody. It therefore cannot be asserted that 14 defendant Torres affirmatively placed the decedents in danger under the facts alleged. See 15 Kerper, 1999 WL 803319 at *5; DeShaney, 489 U.S. at 190. 16 As with TCSD deputies, plaintiffs have failed to allege that they were deprived of a 17 constitutional right by CWS’s failure to act. The court will therefore dismiss claims one through 18 three as to the CWS employees. 19 3. VPD Officers 20 Plaintiffs bring claims seven through nine against Does 5 through 8 (collectively hereafter, 21 “VPD officers”), individuals who were employed as police officers by the City of Visalia. (See 22 Compl. at ¶¶ 9, 213–39.) In moving to dismiss those claims, defendant City of Visalia argues that 23 plaintiffs have failed to allege facts showing a denial of substantive due process based on a failure 24 of those defendants to act.6 25 6 In its motion to dismiss, defendant City of Visalia argues that “[t]he pleadings do not specify whether the due process claims are based on substantive or procedural due process.” (Doc. No. 26 29-1 at 14.) In their opposition, plaintiffs respond that both are alleged. (See Doc. No. 30 at 18.) 27 This is one of several instances in which plaintiffs have clearly formulated the legal theories underlying their claims for the first time in their oppositions to the pending motions. Plaintiffs’ 28 allegations against TCSD deputies and VPD officers are nearly identical, (compare Compl. at 1 Plaintiffs assert in their complaint that they were deprived of their right to life and familial 2 companionship because VPD officers left the decedent children “with their mentally unstable 3 mother, without getting her any professional evaluation or treatment.” (Id. at ¶ 215.) Plaintiffs 4 further contend that “[o]nce Langdon agreed to go to the mental health clinic, VPD officers were 5 duty bound to take her to the hospital even if she changed her mind.” (Id.) According to the 6 complaint, “the law and City policy required VPD officers to leave the twins with Jose, their 7 father, unless there was a court order to the contrary, and there was none.” (Id. at ¶ 217.) 8 These allegations, however, are insufficient to state a cognizable claim that VPD officers 9 deprived plaintiffs of their right to life and familial companionship. In their opposition to the 10 pending motion, plaintiffs argue that their complaint alleges facts supporting application of both 11 the special-relationship and the state-created danger exceptions to the rule against liability for 12 omissions or failures to act on the part of public officials. (Doc. No. 30 at 19–20.) Notably, 13 however, plaintiffs have simply failed to allege that any party involved in this tragic incident was 14 taken into custody and held by authorities against their will. See Patel, 648 F.3d at 972. As 15 plaintiffs allege in their complaint, the decedent children were “left” in their mother’s custody. 16 (Compl. at ¶ 215.) Although VPD officers allegedly took Langdon to Lighthouse Shelter and left 17 her and the children there, (id. at ¶ 99), this factual allegation is insufficient, even if proven, to 18 establish that they were taken into “custody” for purposes of establishing a special relationship 19 between the decedents and the police. The complaint fails to suggest that this interaction was in 20 any way involuntary, since it is alleged that Langdon had requested a place to stay. Under the 21 facts alleged in the complaint, it cannot be said that the VPD officers undertook a special 22 relationship with respect to the decedent children. See Campbell v. State of Washington Dep’t of 23 Soc. & Health Servs., 671 F.3d 837, 844 (9th Cir. 2011) (“The state’s performance of the very 24 ¶¶ 130–64 with id. at ¶¶ 213–39), yet procedural due process as a basis for this claim was never 25 raised until defendant City of Visalia mentioned it months after the first round of briefing. Plaintiffs now argue that a procedural due process claim is alleged because VPD officers failed to 26 conduct a mandatory psychological assessment of defendant Langdon under WIC § 5150. (Doc. 27 No. 30 at 21.) As defendant City of Visalia correctly notes, there is no mandatory duty to conduct a § 5150 assessment. (Doc. No. 33 at 4.) See also Cal. Welf. & Inst. Code § 5150(a) (stating that 28 a peace officer may cause a person to be taken in for an assessment). 1 acts for which an individual voluntarily enters state care does not transform the custodial 2 relationship into an involuntary one.”); Patel, 648 F.3d at 974 (“In the case of a minor child, 3 custody does not exist until the state has so restrained the child’s liberty that the parents cannot 4 care for the child’s basic needs.”). 5 For this same reason, the complaint fails to allege facts sufficient to find the state-created 6 danger exception applicable. As noted above, under the facts alleged in the complaint, the 7 decedent children were always in their mother’s custody and Langdon was never in VPD’s 8 custody. VPD officers therefore played no affirmative role in placing the decedent children in 9 greater danger than they otherwise faced. See DeShaney, 489 U.S. at 190; Kerper, 1999 WL 10 803319 at *5. Thus, the court concludes that plaintiffs have not alleged sufficient facts to state a 11 cognizable claim for deprivation of the right to life and familial companionship under the Due 12 Process Clause. Claims seven through ten will therefore be dismissed. 13 2. Monell Claims Against the City of Visalia and Tulare County 14 Plaintiffs bring claims four through six against defendant Tulare County (see Compl. at 15 ¶¶ 165–212), and claims ten through twelve against defendant City of Visalia (see id. at ¶¶ 240– 16 72). In moving to dismiss those claims, defendants Tulare County and City of Visalia argue that 17 plaintiffs have failed to allege sufficient facts to state a cognizable Monell claim against them. 18 (Doc. Nos. 12 at 17–18; 29-1 at 19–21.) 19 It is well-established that “a municipality cannot be held liable solely because it employs a 20 tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat 21 superior theory.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 692 (1978); see 22 also Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997). 23 In order to establish liability for governmental entities under Monell, a plaintiff must prove (1) that [the plaintiff] possessed a 24 constitutional right of which [s]he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate 25 indifference to the plaintiff’s constitutional right; and, (4) that the policy is the moving force behind the constitutional violation. 26 27 Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (internal citations and quotation 28 marks omitted). 1 A Monell claim can be established in one of three ways. First, a local government may be 2 held liable for “an expressly adopted official policy.” Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 3 2004). Second, a public entity may be held liable for a “longstanding practice or custom.” 4 Thomas v. Cty. of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014). Such circumstances may arise 5 when, for instance, the public entity “fail[s] to implement procedural safeguards to prevent 6 constitutional violations” or when it fails to adequately train its employees. Tsao v. Desert 7 Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (citing Oviatt v. Pearce, 954 F.2d 1470, 1477 8 (9th Cir. 1992)); see also Connick v. Thompson, 563 U.S. 51, 61 (2011) (“A municipality’s 9 culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to 10 train.”); Flores v. County of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014) (requiring a 11 plaintiff asserting a Monell claim based on a failure to train to allege facts showing that 12 defendants “disregarded the known or obvious consequence that a particular omission in their 13 training program would cause municipal employees to violate citizens’ constitutional rights”) 14 (internal brackets omitted) (quoting Connick, 563 U.S. at 61)). “Third, a local government may 15 be held liable under § 1983 when ‘the individual who committed the constitutional tort was an 16 official with final policy-making authority’ or such an official ‘ratified a subordinate’s 17 unconstitutional decision or action and the basis for it.’” Clouthier v. Cty. of Santa Clara, 591 18 F.3d 1232, 1250 (9th Cir. 2010) (quoting Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 19 1992)), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1070 (9th 20 Cir. 2016) (en banc). 21 Defendants Tulare County and City of Visalia both argue that plaintiffs have not alleged 22 the existence of any specific policies in place or of ratification of an unconstitutional action. 23 (Doc. Nos. 12 at 18; 29-1 at 19–20.) Defendant City of Visalia also argues that plaintiffs have 24 failed to allege facts showing a failure to train on its part. (Doc. No. 29-1 at 20–21.) In opposing 25 the pending motion to dismiss, plaintiffs argue that both Tulare County and City of Visalia had a 26 pattern or practice of its officers violating constitutional rights, which arose from a failure to 27 properly train the officers on official county policies for dealing with someone suffering from a 28 mental crisis. (Doc. Nos. 19 at 25–26; 30 at 18.) Because plaintiffs’ Monell claims against 1 defendants Tulare County and City of Visalia are based on nearly identical allegations, the court 2 will assess them together. 3 The Ninth Circuit has made clear that Monell claims “may not simply recite the elements 4 of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice 5 and to enable the opposing party to defend itself effectively.” AE ex rel. Hernandez v. County of 6 Tulare, 666 F.3d 631, 637 (9th Cir. 2012). In addition, some district courts have required 7 plaintiffs to also identify the particular policy or custom that caused the constitutional violation 8 without resorting to conclusory allegations. See, e.g., Johnson v. Cate, No. 1:10-cv-00803-AWI, 9 2012 WL 1076209, at *3 (E.D. Cal. Mar. 29, 2012) (requiring plaintiff to “describ[e] in detail a 10 county policy that was the moving force behind the alleged constitutional violations”). Other 11 courts have adopted a more lenient pleading standard, holding that while a complaint must 12 include a sufficient quantum of factual material to plausibly suggest the existence of a policy or 13 custom, the policy or custom itself need not be specifically alleged, or may be alleged only in a 14 general fashion. See Duenez v. City of Manteca, No. CIV. S-11-1820 LKK, 2012 WL 4359229, 15 at *9 (E.D. Cal. Feb. 23, 2012) (“Plaintiffs need not articulate the intricacies of the alleged policy 16 further at the pleading stage.”). 17 In any event, a complaint must contain sufficient factual allegations to plausibly suggest a 18 policy or custom, as opposed to merely random, unconnected acts of misconduct. Collectively, 19 the factual allegations of a complaint asserting a Monell claim must “give the defendant fair 20 notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555; see 21 also Thomas v. City of Galveston, Texas, 800 F. Supp. 2d 826, 843–44 (S.D. Tex. 2011) 22 (“Allegations that provide such notice could include, but are not limited to, past incidents of 23 misconduct to others, multiple harms that occurred to the plaintiff himself, misconduct that 24 occurred in the open, the involvement of multiple officials in the misconduct, or the specific topic 25 of the challenged policy or training inadequacy.”). Thus, “[a] complaint alleging a Monell claim 26 must pair general averments of a policy or custom with particular examples.” Estate of Osuna v. 27 Cty. of Stanislaus, 392 F. Supp. 3d 1162, 1175 (E.D. Cal. 2019) (internal citation and quotation 28 marks omitted). 1 Here, the allegations of plaintiffs’ complaint fail to satisfy this pleading standard. 2 Plaintiffs vaguely allege that defendants Tulare County and the City of Visalia “permitted, 3 encouraged, tolerated, and knowingly acquiesced to an official pattern and practice of [TCSD] 4 deputies, [including] Deputy Lewis, [and VPD Officers] violating constitutional rights of the 5 public, including Jose and the twins.” (Doc. Nos. 19 at 25; 30 at 23; see also Compl. at ¶¶ 173– 6 76, 242–44, 255–57, 268–69.) Plaintiffs do allege that defendant Tulare County’s customs “at 7 CWS were so inadequate that Ms. Torres dismissed Sergeant Garcia with a phone call, instead of 8 making the state-mandated in-person investigation and retrieving information from CLETS and 9 CWS’ own records.” (Compl. at ¶ 174.) However, plaintiffs have not alleged any prior instances 10 of alleged misconduct by defendants Tulare County or the City of Visalia. Thus it remains 11 unclear from the allegations of the complaint in what way defendants have allegedly adopted a 12 pattern or practice of this behavior. Additionally, the complaint summarily alleges that these 13 actions occurred due to a lack of personnel training on city and county policies. (See, e.g., id. at 14 ¶¶ 173, 174 and 244 (alleging that defendant Tulare County failed to properly train CWS 15 personnel and to ensure that they could properly identify and investigate children in danger). 16 However, a failure to train claim requires plaintiffs to allege deliberate indifference, or “a 17 ‘conscious’ or ‘deliberate’ choice on the part of a municipality in order to prevail on a failure to 18 train claim.’” Flores, 758 F.3d at 1158 (internal citations omitted). The complaint lacks any such 19 allegations against either defendant. 20 The vague descriptions of the policies and customs at issue, paired with the lack of any 21 examples of either defendant having any of the policies or customs that plaintiffs allege, are 22 insufficient to place defendants on notice of the nature of the claims against them and allow them 23 to prepare an adequate defense. Thus, the court will dismiss claims four through six against 24 defendant Tulare County and claims ten through twelve against defendant City of Visalia. 25 B. State Claims 26 This case was originally filed in this court based on federal question jurisdiction. (See 27 Doc. No. 2 at 1.) The court has concluded that defendants’ motions to dismiss must be granted as 28 to plaintiffs’ federal claims, leaving only state law causes of action remaining against them. Once 1 all federal claims have been dismissed from a case, whether to retain jurisdiction over any 2 remaining state law claims is left to the discretion of the district court.7 See 28 U.S.C. 3 § 1367(c)(3); Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997); Moore v. Kayport 4 Package Exp., Inc., 885 F.2d 531, 537 (9th Cir. 1989). Generally, if federal claims are dismissed 5 prior to trial, state law claims should be remanded to state court “both as a matter of comity and 6 to promote justice between the parties, by procuring for them a surer-footed reading of applicable 7 law.” United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); see also Carnegie-Mellon Univ. 8 v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are 9 eliminated before trial, the balance of factors to be considered . . . will point toward declining to 10 exercise jurisdiction over the remaining state-law claims.”); Acri, 114 F.3d at 1000. If the court 11 declines to exercise supplemental jurisdiction over the state-law claims in a case initially filed in 12 federal court, the court must dismiss those claims without prejudice. See Carnegie-Mellon Univ., 13 484 U.S. at 350–51 (“When the balance of these factors indicates that a case properly belongs in 14 state court, . . . the federal court should decline the exercise of jurisdiction by dismissing the case 15 without prejudice . . . [where] the plaintiff [has] filed his suit in federal court, remand [is] not an 16 option.”); Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994). The factors 17 to be weighed are “the values of judicial economy, convenience, fairness, and comity.” Id. at 18 350. 19 Because the court is not persuaded that plaintiffs have any federal claims, the court will 20 not consider the merits of plaintiffs’ state law claims at this time. The court will therefore defer 21 ///// 22 ///// 23 ///// 24 ///// 25 7 The court acknowledges that defendants City of Tulare, Sergeant Garcia, Officer Davis, and 26 Officer Valencia answered the complaint on October 18, 2019 (Doc. No. 17), and there are 27 federal claims against those defendants. (Compl. at ¶¶ 273–325.) Although the court has not yet considered those claims, plaintiffs are warned that the district court has discretion to sua sponte 28 dismiss for failure to state a claim. See Barnard v. U.S. Gov’t, 635 F. App’x 388 (9th Cir. 2016). 1 its determination as to whether it will retain supplemental jurisdiction over plaintiffs’ remaining 2 state law claims until it can determine whether plaintiffs can state any federal claims.8 3 C. Leave to Amend 4 In addition to asserting that the complaint should be dismissed, county defendants and 5 defendant City of Visalia argue that any dismissal should be with prejudice. (Doc. Nos. 12 at 35; 6 29-1 at 8.) Defendant City of Visalia argues that the complaint reveals on its face that 7 amendment will not cure its defects. (Doc. No. 29-1 at 8.) 8 Federal Rule of Civil Procedure 15 instructs courts to “freely give leave when justice so 9 requires” and that rule is “to be applied with extreme liberality.” Eminence Capital, LLC v. 10 Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). Nevertheless, leave to amend need not be 11 granted where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) 12 produces an undue delay in litigation; or (4) is futile. See Amerisource Bergen Corp. v. Dialysist 13 W., Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citing Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 14 1999)). “Prejudice to the opposing party is the most important factor.” Jackson v. Bank of Haw., 15 902 F.2d 1385, 1387 (9th Cir. 1990) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 16 U.S. 321, 330–31 (1971)). 17 Here, the court does not find that granting further leave to amend would be futile. As 18 discussed above, the undersigned has concluded that the complaint is deficient due to the 19 insufficiency of the factual allegations. However, while the court expresses no opinion on the 20 matter, it is at least conceivable that the deprivations of constitutional rights alleged in the 21 complaint could survive a motion to dismiss if pled sufficiently. Accordingly, plaintiffs will be 22 granted thirty days from the date of service of this order in which to file a first amended 23 complaint, should they wish to do so. 24 8 The court also notes that any applicable statute of limitations under state law has been tolled 25 during the pendency of this action. See 28 U.S.C. § 1367(d) (tolling the limitation period for any claim asserted in a federal action by way of supplemental jurisdiction both while the claim is 26 pending “and for a period of 30 days after it is dismissed unless State law provides for a longer 27 tolling period”); Artis v. District of Columbia, ____U.S. ___, ___, 138 S. Ct. 594, 598 (2018) (“We hold that § 1367(d)’s instruction to ‘toll’ a state limitations period means to hold it in 28 abeyance, i.e., to stop the clock.”). wMOADS 2 LDV TEAL RAINE RAMU OOP Oe OY OU VI Cl 1 Plaintiffs are, however, cautioned to comply with Rule 8’s requirements. Rule 8(a)(2) 2 | requires a pleading to contain “a short and plain statement of the claim showing that the pleader is 3 | entitled to relief.” “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). 4 | After considerable time, the court was able to separate the relevant factual allegations from the 5 | irrelevant ones. But as explained at the hearing on the motion, plaintiffs’ 131-page complaint is 6 | not the type of complaint contemplated by the Federal Rules of Civil Procedure. See Kassman v. 7 | Bank of Am., No. 2:16-cv-00425-JAM-CKD, 2016 WL 4126727, at *1 (E.D. Cal. Aug. 3, 2016) 8 | (‘The FAC is unnecessarily lengthy and repetitive, and it lacks “simple, concise, and direct” 9 | allegations.”). Because plaintiffs devote substantial space to an overview and a background, the 10 | complaint is “mostly ‘narrative ramblings’ and ‘storytelling’” McHenry, 84 F.3d at 1176. In 11 | other words, 12 The Complaint .. . says “too much.” The allegations are at times rambling and repetitive and are interspersed with unnecessary legal 13 conclusions. A complaint is not a brief. 14 | Fournerat v. Veterans Admin., No. EDCV 19-0961 AB (AS), 2019 WL 8810110, at *3 (C.D. Cal. 15 | Dec. 19, 2019) (emphasis added). Plaintiffs are granted leave to amend but must comply with 16 | Rule 8’s requirements or risk having the complaint dismissed with prejudice. See McHenry, 84 17 | F.3d at 1176. 18 CONCLUSION 19 For the reasons set forth above: 20 1. Defendants’ motions to dismiss (Doc. Nos. 9, 12, 29) are granted; 21 2. Plaintiffs’ complaint (Doc. No. 1) is dismissed with leave to amend; 22 3. Defendants’ motion for a more definite statement (Doc. No. 12) is denied; and 23 4. Any first amended complaint that plaintiffs elect to file in this action shall be filed 24 within thirty (30) days after the issuance of this order. 25 | IT IS SO ORDERED. me □ 26 ft ff ja £3 Dated: _ June 30, 2020 eee Te — 27 UNITED STATES DISTRICT JUDGE 28 20