Lim v. Child Protective Services of Tulare County ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CHONG SOOK LIM, CASE NO. 1:20-cv-01049-NONE-SKO 10 Plaintiff, FIRST SCREENING ORDER 11 (Doc. 1) v. 12 21-DAY DEADLINE COUNTY OF TULARE; UNKNOWN 13 PUBLIC EMPLOYEE 1; and UNKNOWN 14 PUBLIC EMPLOYEE 2, Defendants. 15 16 17 18 I. INTRODUCTION 19 A. Background 20 On July 30, 2020, Plaintiff Chong Sook Lim, proceeding pro se, filed a civil rights action 21 pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the County of Tulare (the “County”) and two 22 unknown “officer[s], agent[s], and/or employee[s]” of the County. (Doc. 1 (“Compl.”).) Plaintiff 23 also filed an application to proceed in forma pauperis, which was granted on July 31, 2020. (Docs. 24 2 & 3.) 25 Plaintiff’s complaint is now before the Court for screening. As discussed below, Plaintiff’s 26 allegations are insufficient to plead a cognizable claim under Section 1983. Plaintiff is granted leave 27 to file a first amended complaint and is provided the pleading requirements and legal standards 28 under which her claims will be analyzed. 1 B. Screening Requirement and Standard 2 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 3 each case, and shall dismiss the case at any time if the Court determines that the allegation of poverty 4 is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon which relief 5 may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 6 U.S.C. § 1915(e)(2). If the Court determines that a complaint fails to state a claim, leave to amend 7 may be granted to the extent that the deficiencies of the complaint can be cured by amendment. 8 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 9 The Court’s screening of a complaint under 28 U.S.C. § 1915(e)(2) is governed by the 10 following standards. A complaint may be dismissed as a matter of law for failure to state a claim 11 for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable 12 legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff 13 must allege a minimum factual and legal basis for each claim that is sufficient to give each defendant 14 fair notice of what plaintiff’s claims are and the grounds upon which they rest. See, e.g., Brazil v. 15 U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 16 (9th Cir. 1991). 17 C. Summary of the Complaint 18 Plaintiff, who is of Korean descent and has limited ability to communicate in English, met 19 Dennis Ennslin through an online dating site for Mormons. (Compl. ¶ 12.) Plaintiff and Mr. Ennslin 20 were married and lived together for five months prior to separating. (Id. ¶ 13.) Their brief marriage 21 yielded a child, Y.L., and the couple divorced in 2014. (Id.) 22 Plaintiff alleges that in 2014, Mr. Ennslin placed false report to the Tulare County Health & 23 Human Services Agency (“HHSA”) that Plaintiff was physically abusing her 14-year-old daughter. 24 (Compl. ¶ 14.) This, according to Plaintiff, “set off a chain of HHSA encounters” in 2014, 2015, 25 2017, and 2018, none of which resulted in the initiation of a juvenile dependency hearing. (Id. ¶ 26 15.) Plaintiff alleges that during these encounters the HHSA “denied Plaintiff the services of an 27 interpreter and failed to make reasonable efforts to ascertain whether Plaintiff needed the services 28 of an interpreter,” having provided an interpreter only once. (Id. ¶¶ 16–17.) 1 Plaintiff further alleges that in 2017 she took Y.L. to a hospital, having noticed while bathing 2 the child that her vagina was swollen. (Compl. ¶ 18.) According to Plaintiff, the hospital doctor 3 contacted the police and a report was made to HHSA. (Id.) Plaintiff alleges on July 15, 2018, she 4 took Y.L. to be examined for another vaginal irritation. (Id. ¶ 21.) As a result of the examination, 5 the physician assistant contacted HHSA and made a report of suspected child abuse. (Id.) 6 Plaintiff alleges on July 30, 2018, Plaintiff and Mr. Ennslin appeared at a family court 7 hearing, at which Plaintiff was shown “a report sent to the family court judge by HHSA,” which is 8 “part of the ‘confidential’ portion of the family court case file.” (Compl. ¶ 22.) According to 9 Plaintiff, the report “contained a chock full of lies and omissions of known exculpatory facts,” 10 including that Y.L. was “coached to make statements indicating she was suffering from child abuse” 11 and that Plaintiff tried to kill Mr. Ennslin, and the report “contained a request for custody orders.” 12 (Id. ¶ 23.) Plaintiff alleges that the two unknown HHSA employees named as defendants signed the 13 report and sent the report to the family court knowing that the report “would be presented as 14 evidence and relied upon” by the court. (Id. ¶ 23–24.) 15 According to Plaintiff, on September 6, 2018, the family court held a hearing, at which the 16 court awarded “full legal and full physical custody” of Y.L. to Mr. Ennslin, and permitted Plaintiff 17 to have once-a-week two hour supervised visits with Y.L. for two hours. (Compl. ¶ 25.) Plaintiff 18 alleges that she has not seen Y.L. since March 6, 2019, because the “supervised visitation provider 19 closed down” and she is now “limited to virtual visits.” (Id.) Plaintiff alleges that the family court 20 “reviewed and relied on the misrepresentations and requested custody orders” contained in the report 21 provided by HHSA in making its decisions in the case. (Id. ¶ 26.) Plaintiff further alleges that 22 Defendant County has a “policy, custom, or practice of routinely sending ex-parte communications 23 to Family Court containing false representations and containing requests for custody orders, in lieu 24 of filing a juvenile dependency petition or presenting a warrant affidavit.” (Id. ¶ 27.) 25 Plaintiff asserts a claim for “warrantless seizure” under Section 1983 for violation of her 26 “right to familial association guaranteed under . . . the First, Fourth, and Fourteenth Amendments” 27 to the U.S. Constitution as a result of the defendant unnamed HHSA employees’ “sending a written 28 ex parte communication to the family court containing false and fabricated evidence in connection 1 with a request for custody and visitation orders, or conspir[ing] with others to commit the same.” 2 (Compl. ¶¶ 31, 34.) She also brings a Section 1983 claim against Defendant County for Monell 3 liability, asserting that Defendant established or followed “policies, procedures, customs, and/or 4 practices” of “separating children from their parents without first obtaining a protective custody 5 warrant in the absence of exigent circumstances;” “sending ex parte written communications to 6 family courts, containing requests for custody or visitation orders, that do not meet the requirements 7 for a warrant affidavit;” and “presenting false and fabricated evidence to the family court, in 8 connection with a pending custody dispute, through ex parte written communications.” (Compl. ¶ 9 44.) Plaintiff further alleges that the County acted with “deliberate indifference in implementing a 10 policy of inadequate training and/or supervision, and/or by failing to train and/or supervise its 11 officers, agents, employees and state actors, in providing the constitutional protections guaranteed 12 to individuals, including those under the Fourth and Fourteenth Amendments, when performing 13 actions related to the investigation of child abuse.” (Id.) She seeks general and special damages, 14 punitive damages, and injunctive relief.1 (Id. at p. 12.) 15 For the reasons discussed below, Plaintiff has not stated any cognizable claims, but may be 16 able to amend to correct the deficiencies in her pleading. Thus, the Court provides the pleading and 17 legal standards for the claims on which Plaintiff is attempting to proceed and leave to file a first 18 amended complaint. 19 D. Pleading Requirements 20 1. Federal Rule of Civil Procedure 8(a) 21 Under Federal Rule of Civil Procedure 8(a), a complaint must contain “a short and plain 22 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 24 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 25 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In determining 26 whether a complaint states a claim on which relief may be granted, allegations of material fact are 27 28 1 Plaintiff also requests attorney’s fees. Pro se litigants are not entitled to an award of attorney’s fees under 42 U.S.C. 1 taken as true and construed in the light most favorable to the plaintiff. See Love v. United States, 2 915 F.2d 1242, 1245 (9th Cir. 1989). Since Plaintiff is appearing pro se, the Court must construe 3 the allegations of [her] complaint liberally and must afford Plaintiff the benefit of any doubt. See 4 Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). However, “the 5 liberal pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitzke v. Williams, 6 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply 7 essential elements of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 8 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 9 1982)). 10 Further, “a plaintiff’s obligation to provide the ‘grounds’ of [her] ‘entitle[ment] to relief’ 11 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 12 action will not do . . . . Factual allegations must be enough to raise a right to relief above the 13 speculative level.” See Twombly, 550 U.S. at 555 (internal citations omitted); see also Iqbal, 556 14 U.S. at 678 (To avoid dismissal for failure to state a claim, “a complaint must contain sufficient 15 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has 16 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 17 reasonable inference that the defendant is liable for the misconduct alleged.”) (internal citations 18 omitted). 19 2. Section 1983 20 Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other 21 federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 22 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. 23 Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of substantive 24 rights but merely provides a method for vindicating federal rights elsewhere conferred.” Crowley 25 v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 26 490 U.S. 386, 393–94 (1989)) (internal quotation marks omitted). It states in relevant part: 27 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 28 be subjected, any citizen of the United States or other person within the jurisdiction 1 Constitution and laws, shall be liable to the party injured in an action at law, suit in 2 equity, or other proper proceeding for redress. 3 42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must allege facts from which it 4 may be inferred (1) she was deprived of a federal right, and (2) a person or entity who committed 5 the alleged violation acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Williams 6 v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976). A plaintiff must show a causal connection or link 7 between the actions of the defendants and the deprivation alleged to have been suffered by the 8 plaintiff. See Rizzo v. Goode, 423 U.S. 362, 373–75 (1976). The Ninth Circuit has held that “[a] 9 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of section 10 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an 11 act which he is legally required to do that causes the deprivation of which complaint is made.” 12 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (citation omitted). 13 II. DISCUSSION 14 A. First Cause of Action: “Warrantless Seizure” 15 Plaintiff asserts the first cause of action against “Tulare Health & Human Services Agency 16 (‘HHSA’).” (Compl. p. 6.) It does not appear, however, that HHSA is a named defendant in this 17 case.2 (See id. ¶ 3.) Nor could HHSA, as a municipal department of the County, be a proper 18 defendant in this Section 1983 action. See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 19 (N.D.Cal.1996) (holding that the term “persons” for Section 1983 purposes does not encompass 20 municipal departments). 21 Assuming Plaintiff is instead seeking to assert this claim against the two unknown HHSA 22 employees, she asserts a violation of her right to familial association as “guaranteed under . . . the 23 First, Fourth, and Fourteenth Amendment.” (Compl. ¶ 31.) The Supreme Court has recognized that 24 the Fourteenth Amendment’s Due Process Clause protects the liberty interest “of parents in the care, 25 custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65 (2000); see also 26 Santosky v. Kramer, 455 U.S. 745, 753 (1982) (discussing “the fundamental liberty interest of 27 28 2 This lack of clarity is compounded by the inclusion of track changes throughout the complaint. (See Compl. pp. 2– 1 natural parents in the care, custody, and management of their child”). The right of familial 2 association is also protected by the First Amendment.3 Lee v. City of Los Angeles, 250 F.3d 668, 3 685 (9th Cir. 2001). 4 “While a constitutional liberty interest in the maintenance of the familial relationship exists, 5 this right is not absolute. The interest of the parents must be balanced against the interests of the 6 state and, when conflicting, against the interests of the children.” Woodrum v. Woodward Cty., Okl., 7 866 F.2d 1121, 1125 (9th Cir. 1989). The right to familial association has both a substantive and a 8 procedural component. Keates v. Koile, 883 F.3d 1228, 1236 (9th Cir. 2018). While the right is a 9 fundamental liberty interest, officials may interfere with the right if they “provide the parents with 10 fundamentally fair procedures[.]” Keates, 883 F.3d at 1236 (internal citations omitted). On the 11 other hand, “official conduct that ‘shocks the conscience’ in depriving parents of [a relationship 12 with their children]” is cognizable as a violation of substantive due process. Capp v. County of San 13 Diego, 940 F.3d 1046, 1060 (9th Cir. 2019) (quoting Wilkinson v. Torres, 610 F.3d 546, 554 (9th 14 Cir. 2010)). 15 Here, the factual predicate(s) for Plaintiff’s Section 1983 familial association claim is 16 unclear. For example, Plaintiff captions the claim “warrantless seizure,” but there are no factual 17 allegations that any defendant “seized” Y.L. from Plaintiff’s custody. Instead, Plaintiff pleads that 18 the family court awarded custody of Y.L. to Mr. Ennslin, apparently in the context of a custody 19 dispute. (See Compl. ¶ 25.) Even if there were such factual allegations, Plaintiff could not state a 20 claim for a violation of the Fourth Amendment, as such claim is properly asserted by the child who 21 was seized. See Wallis v. Spencer, 202 F.3d 1126, 1137 n.8 (9th Cir.2000) (a claim by parents 22 regarding the unconstitutional removal of children is properly assessed under the First and 23 Fourteenth Amendment standard for interference with the right to family association, while a claim 24 by the child who was seized is assessed under the Fourth Amendment.). 25 In addition to alleging that HHSA employees sent a written ex parte communication 26 containing false and fabricated evidence to the family court, Plaintiff pleads facts relating to the 27 28 3 First Amendment rights to familial association are “measured by the same standard as Fourteenth Amendment rights 1 alleged denial of an interpreter at meetings with HHSA representatives in 2014, 2015, 2017, and 2 2018. It is not clear whether Plaintiff is intending to base her Section 1983 familial association due 3 process claim on these allegations, and, if so, against which defendant she brings such claim. To 4 the extent Plaintiff intends to proceed with a claim based on the alleged denial of an interpreter, she 5 must take care to ensure that such claim is not barred by the two-year statute of limitations that 6 applies in Section 1983 cases.4 See Ambrose v. Coffey, 696 F. Supp. 2d 1119, 1131 (E.D. Cal. 2010 7 (“[I]n California, the statute of limitations for Section 1983 claims is two years.”). 8 B. Rooker–Feldman Doctrine 9 Plaintiff’s Section 1983 familial association claim may implicate the Rooker–Feldman 10 doctrine and this Court’s subject matter jurisdiction. Under the Rooker–Feldman doctrine, “a party 11 losing in state court is barred from seeking what in substance would be appellate review of the state 12 judgment in a United States District Court based on the losing party’s claim that the state judgment 13 itself violates the loser’s federal rights.” Johnson v. DeGrandy, 512 U.S. 997, 1005–06 (1994) 14 (citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983), and Rooker v. 15 Fidelity Trust Co., 263 U.S. 413, 416 (1923)). Review of state court decisions may only be 16 conducted in the United States Supreme Court. Feldman, 460 U.S. at 476 & 486; Rooker, 263 U.S. 17 at 416; see also 28 U.S.C. § 1257. The Rooker–Feldman jurisdictional bar applies even if the 18 complaint raises federal constitutional issues. Feldman, 460 U.S. at 486. More specifically, the bar 19 applies if the challenge to the state court decision is brought as a Section 1983 civil rights action. 20 See Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995). 21 “[A] federal district court dealing with a suit that is, in part, a forbidden de facto appeal from 22 a judicial decision of a state court must refuse to hear the forbidden appeal. As part of that refusal, 23 it must also refuse to decide any issue raised in the suit that is ‘inextricably intertwined’ with an 24 issue resolved by the state court in its judicial decision.” Doe v. Mann, 415 F.3d 1038, 1043 (9th 25 Cir. 2005) (quoting Noel v. Hall, 415 F.3d 1145, 1158 (9th Cir. 2003)). The Rooker–Feldman 26 4 Plaintiff also refers in her complaint to the unnamed defendant HHSA employees having “conspired” with others to 27 violate her constitutional rights. (See, e.g., Compl. ¶ 34.) To the extent Plaintiff intends to assert a claim for conspiracy under Section 1983, she must “allege [some] facts to support the existence of a conspiracy among the defendants.” 28 Buckey v. Cty. of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). Conclusory allegations regarding the existence of a 1 doctrine applies not only to final state court orders and judgments, but to interlocutory orders and 2 non-final judgments issued by a state court as well. Doe & Assoc. Law Offices v. Napolitano, 252 3 F.3d 1026, 1030 (9th Cir. 2001). 4 Notwithstanding the foregoing, “for Rooker–Feldman to apply, a plaintiff must seek not only 5 to set aside a state court judgment; he or she must also allege a legal error by the state court as the 6 basis for that relief.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004). “If, on the 7 other hand, a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an 8 adverse party, Rooker–Feldman does not bar jurisdiction.” Noel, 341 F.3d at 1164. “A plaintiff 9 alleging extrinsic fraud on a state court is not alleging a legal error by the state court; rather, he or 10 she is alleging a wrongful act by the adverse party.” Kougasian, 359 F.3d at 1140–41. “Extrinsic 11 fraud is ‘conduct which prevents a party from presenting [her] claim in court.’” Ragan v. Cty. of 12 Humboldt Dept. of Health & Human Servs., Case No. 16-cv-05580-RS, 2017 WL 878083, at *4 13 (N.D. Cal. Mar. 6, 2017) (quoting Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981) ). 14 Here, Plaintiff’s complaint does not contain enough information for the Court to make a 15 conclusive determination of whether Rooker–Feldman bars jurisdiction over her Section 1983 16 familial association claim. For example, while she is not explicitly seeking relief from the family 17 court’s custody orders, Plaintiff does seek unspecified injunctive relief (see Compl. p. 12) that could 18 be construed as directed to those orders. See Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th Cir. 19 2003) (whether the federal plaintiff’s claims are independent from the state court decision is 20 determined by looking to the relief the plaintiff seeks.). 21 In addition, the nature of Plaintiff’s allegations may necessarily implicate review of the 22 family court’s custody order. See, e.g., Tali v. Liao, 18-cv-00330-LHK, 2018 WL 5816171, at *3– 23 4 (N.D. Cal. Nov. 5, 2018) (Plaintiff alleged that the defendants “conspired and lied to illegally 24 remove [his] child from his care and sought “general and punitive damages, as well as injunctive 25 relief”; the court dismissed with prejudice because the plaintiff’s “allegations of Defendants’ 26 purported misconduct are inexorably intertwined with the state court custody decision [ ] [such that] 27 ‘adjudication of the federal claims would undercut the state ruling.’”); Ismail v. Cty. of Orange, No. 28 SACV 10-00901 VBF (AJW), 2012 WL 1642210, at *13 (C.D. Cal. Mar. 21, 2012) (“The Rooker– 1 Feldman doctrine bars plaintiff’s claims that [the county social worker] presented malicious, false, 2 fabricated, inaccurate, or biased recommendations, reports, or testimony to the juvenile court 3 because those claims are inextricably intertwined with the orders of the juvenile court and the court 4 of appeal regarding A.I.’s status as a dependent of the court, his placement after removal from 5 plaintiff’s home, plaintiff’s visitation, reunification services, plaintiff’s parental rights, and other 6 matters adjudicated in the dependency case.”). See also id. at *14 (“In attacking the credibility and 7 sufficiency of the recommendations, reports, and evidence [the county social worker] presented to 8 the state court, plaintiff’s complaint constitutes a de facto appeal of the state court’s orders and 9 judgments in the dependency case. Plaintiff cannot obtain review of, or relief from, those orders in 10 this court.”) (collecting cases). But see Alcala v. Murphy, No. 2:19-cv-00969-KJM-CKD (PS), 2019 11 WL 5288325, at *1 (E.D. Cal. Oct. 18, 2019) (“Plaintiffs can state section 1983 claims against state 12 officers, such as social workers involved in family-court proceedings, which do not directly attack 13 the state court judgment.”) (citing Hardwick v. Cty. of Orange, 844 F.3d 1112, 1116 (9th Cir. 2017) 14 (allowing a section 1983 action to proceed against social workers for allegedly providing perjured 15 testimony in a dependency proceeding that resulted in a mother losing custody)); Thornton v. Cty. 16 of Los Angeles, No. CV 16-08482 TJH (AGRx), 2017 WL 11504794, at *2 (C.D. Cal. June 27, 17 2017) (“Thornton is not barred, however, from bringing civil rights claims alleging illegal acts and 18 omissions by a social worker during state dependency proceedings.”); Lahey v. Contra Costa Cty. 19 Dep’t of Children & Family Servs., No. C01-1075 MJJ, 2004 WL 2055716, at *9 (N.D. Cal. Sept. 20 2, 2004) (“In this case, Plaintiffs . . . attempt to demonstrate a series of legal wrongs perpetrated by 21 Defendants that led to several unfavorable custody decisions, but Plaintiffs do not seek in this suit 22 to overturn the custody arrangements . . . . Even though a favorable decision in federal court would 23 undermine the credibility of the state court decision, the Rooker–Feldman doctrine, as recently 24 explained by the Ninth Circuit in Noel, does not bar jurisdiction in this case.”). It is also unclear 25 whether Plaintiff had an opportunity to challenge the HHSA-submitted report at the September 6, 26 2018, hearing before the family court.5 See, e.g., Benavidez v. Cty. of San Diego, No. 3:18-cv-0558- 27 5 To the extent that Plaintiff did challenge the report before the family court, the doctrine of issue preclusion may be 28 implicated instead of Rooker-Feldman. See Tye v. Cty. of Orange, Case No. 8:18-cv-00544-RGK-KES, 2020 WL 1 CAB-(AGS), 2019 WL 581647, at *5 n.4 (S.D. Cal. Feb. 12, 2019). 2 C. Second Cause of Action: “Monell Related Claims” 3 In Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978), the Supreme Court held that, 4 because there is no respondeat superior liability under Section 1983, “a local government may not 5 be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when 6 execution of a government’s policy or custom, whether made by its lawmakers or by those whose 7 edicts or acts may fairly be said to represent official policy, inflicts the injury that the government 8 as an entity is responsible under § 1983.” Monell, 436 U.S. at 690–94. To establish liability under 9 Monell, a plaintiff must satisfy four conditions: “(1) that he [or she] possessed a constitutional right 10 of which he was deprived; (2) that the [local governmental entity] had a policy; (3) that this policy 11 amounts to deliberate indifference to the plaintiff’s constitutional right; and (4) that the policy is the 12 moving force behind the constitutional violation.” Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 13 1992) (citation and internal quotation marks omitted). A government entity may be held liable for 14 “constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom 15 has not received formal approval through the body’s official decisionmaking channels.” Monell, 16 436 U.S. at 690–91. 17 “The custom or policy must be a deliberate choice to follow a course of action . . . made 18 from various alternatives by the official or officials responsible for establishing final policy with 19 respect to the subject matter in question.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1075 (9th 20 Cir. 2016) (en banc) (internal citations and quotation marks omitted). It must be so “persistent and 21 widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). 22 Put another way, the practice must have been going on for a sufficient amount of time, “frequency 23 and consistency that the conduct has become a traditional method of carrying out policy.” Trevino 24 v. Gates, 99 F. 3d 911, 918 (9th Cir. 1996). By itself, “[p]roof of a single incident of unconstitutional 25 activity is not sufficient to impose liability under Monell . . . .” City of Oklahoma City v. Turtle, 26 471 U.S. 808, 823–24 (1985). Additionally, to establish that a county is responsible, “a plaintiff 27 must show that the ‘policy or custom’ led to the plaintiff’s injury.” Castro, 833 F.3d at 1073. 28 The Supreme Court has also held that a municipality may be liable if, with respect to a claim 1 based on improper training of employees, the “failure to train amounts to deliberate indifference to 2 the rights of persons with whom the [employees] come into contact.” City of Canton, Ohio v. Harris, 3 489 U.S. 378, 388 (1989). “[T]he failure to provide proper training may fairly be said to represent 4 a policy for which the [municipal entity] is responsible, and for which the [municipal entity] may 5 be held liable if it actually causes injury.” Id. at 390. Finally, there must be a direct causal link 6 between a failure to properly train and the alleged constitutional deprivation. Id. at 385. 7 Here, Plaintiff fails to provide sufficient allegations to state Monell claims against the 8 County. For example, she alleges that the County is liable for violating her Fourteenth Amendment 9 rights because it “act[ed] with deliberate indifference in implementing a policy of inadequate 10 training and/or supervision, and/or by failing to train and/or supervise its officers, agents, employees 11 and state actors, in providing the constitutional protections guaranteed to individuals, including 12 those under the Fourth and Fourteenth Amendments, when performing actions related to the 13 investigation of child abuse.” (Compl. ¶ 44.) Contrary to these conclusory allegations, however, 14 the alleged “false and fabricated evidence” contained in a single report submitted by HHSA 15 employees to the family court do not raise a reasonable inference that the County was deliberately 16 indifferent to such transgression or the need to adequately train its employees to avoid it. 17 Plaintiff’s allegations that the County is liable under Section 1983 due to its “policy, custom, 18 or practice of presenting false and fabricated evidence to the family court, in connection with a 19 pending custody dispute, through ex parte written communications” (Compl. ¶ 44) is similarly 20 conclusory. She fails to plead any facts demonstrating the existence of any such policy or 21 widespread practice, and instead appears to base the claim on the one alleged incident that happened 22 to her. In addition, it is not clear that allegations regarding the County’s “policy, custom, or practice 23 of separating children from their parents without first obtaining a protective custody warrant in the 24 absence of exigent circumstances” bears any relationship to the underlying constitutional 25 deprivation claimed in the case, because, as indicated above, there are no facts pleaded showing that 26 any defendant “separated” Y.L. from her parents and took her into “protective custody.” See Castro, 27 833 F.3d at 1075 (“The ‘first inquiry in any case alleging municipal liability under § 1983 is the 28 question whether there is a direct causal link between a municipal policy or custom and the alleged 1 constitutional deprivation.’”) (quoting City of Canton, 489 U.S. at 385.). 2 III. CONCLUSION AND ORDER 3 As noted above, the Court will provide Plaintiff with an opportunity to amend her claims 4 and cure, to the extent possible, the identified deficiencies. Lopez, 203 F.3d at 1130. Plaintiff may 5 not change the nature of this suit by adding new, unrelated claims in her amended complaint. 6 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 7 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 8 the named defendant did that led to the deprivation of her constitutional rights, Iqbal, 556 U.S. at 9 678–79. It should also establish this Court’s subject matter jurisdiction over her claims. Although 10 accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the 11 speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted); however, Plaintiff need not 12 give any legal arguments or cite to any cases in her complaint.6 Finally, Plaintiff is advised that an 13 amended complaint supersedes the original complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 927 14 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s amended complaint must be “complete in itself 15 without reference to the prior or superseded pleading,” Rule 220, Local Rules of the United States 16 District Court, Eastern District of California, and be free of track changes. 17 Based on the foregoing, it is HEREBY ORDERED that: 18 1. Plaintiff is granted leave to file a first amended complaint; and 19 2. Within twenty-one (21) days from the date of service of this order, Plaintiff must file 20 a first amended complaint curing the deficiencies identified by the Court in this order, 21 or a notice of voluntary dismissal. 22 If Plaintiff fails to file an amended complaint in compliance with this order, the undersigned 23 will recommend to the assigned district judge that this action be dismissed for failure to state 24 a claim and to obey a court order. 25 IT IS SO ORDERED. 26 27 28 6 The amended complaint should not include, for example, any argument or case authority directed to whether the 1 Dated: August 14, 2020 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28