Santor v. Laster ( 2020 )

Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 1 of 30 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 LEANN SANTOR, CASE NO. 1:19-CV-1593 AWI SKO 9 Plaintiff ORDER ON DEFENDANTS’ MOTIONS 10 v. TO DISMISS 11 KATHRYN M. HARWELL, et al., (Doc. Nos. 18, 20) 12 Defendants 13 14 15 This case stems from the removal of Plaintiff Lean Santor’s (“Santor”) children by 16 personnel from the County of Stanislaus (“the County”) and the City of Newman Police 17 Department (“the City”). Santor alleges three causes of action under 42 U.S.C. § 1983 for 18 violations of the First and Fourteenth Amendments and for Monell liability. Currently before the 19 Court are two Rule 12(b)(6) motions, one by the City and one by the County and County 20 personnel. For the reasons that follow, the motions will be granted in part and denied in part. 21 22 RULE 12(b)(6) FRAMEWORK 23 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the 24 plaintiff’s “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A 25 dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the 26 absence of sufficient facts alleged under a cognizable legal theory. See Mollett v. Netflix, Inc., 27 795 F.3d 1062, 1065 (9th Cir. 2015). In reviewing a complaint under Rule 12(b)(6), all well- 28 pleaded allegations of material fact are taken as true and construed in the light most favorable to Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 2 of 30 1 the non-moving party, and all reasonable inferences are made in the non-moving party’s favor. 2 United States ex. rel. Silingo v. Wellpoint, Inc., 904 F.3d 667, 676 (9th Cir. 2018). However, 3 complaints that offer no more than “labels and conclusions” or “a formulaic recitation of the 4 elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Johnson 5 v. Federal Home Loan Mortg. Corp., 793 F.3d 1005, 1008 (9th Cir. 2015). The Court is “not 6 required to accept as true allegations that contradict exhibits attached to the Complaint, or matters 7 properly subject to judicial notice, or allegations that are merely conclusory, unwarranted 8 deductions of fact, or unreasonable inferences.” Seven Arts Filmed Entm’t, Ltd. v. Content Media 9 Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013). To avoid a Rule 12(b)(6) dismissal, “a 10 complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is 11 plausible on its face.” Iqbal, 556 U.S. at 678; Mollett, 795 F.3d at 1065. “A claim has facial 12 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 13 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; Somers 14 v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “Plausibility” means “more than a sheer 15 possibility,” but less than a probability, and facts that are “merely consistent” with liability fall 16 short of “plausibility.” Iqbal, 556 U.S. at 678; Somers, 729 F.3d at 960. The Ninth Circuit has 17 distilled the following principles for Rule 12(b)(6) motions: (1) to be entitled to the presumption 18 of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause 19 of action, but must contain sufficient allegations of underlying facts to give fair notice and to 20 enable the opposing party to defend itself effectively; (2) the factual allegations that are taken as 21 true must plausibly suggest entitlement to relief, such that it is not unfair to require the opposing 22 party to be subjected to the expense of discovery and continued litigation. Levitt v. Yelp! Inc., 23 765 F.3d 1123, 1135 (9th Cir. 2014). If a motion to dismiss is granted, “[the] district court should 24 grant leave to amend even if no request to amend the pleading was made . . . .” Ebner v. Fresh, 25 Inc., 838 F.3d 958, 962 (9th Cir. 2016). However, leave to amend need not be granted if 26 amendment would be futile or the plaintiff has failed to cure deficiencies despite repeated 27 opportunities. Garmon v. County of L.A., 828 F.3d 837, 842 (9th Cir. 2016). 28 2 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 3 of 30 1 BACKGROUND 2 From the Complaint, on May 8, 2018, Santor was spending the evening with her two 3 children (O.L. and A.L.)1 and their father at his mobile home. Santor smoked a small amount of 4 medical marijuana and the father had a small amount of beer. Santor chose to remain at the 5 mobile home with her two children, and the three of them slept in a bed. At some point in the 6 night, Santor awoke to find O.L. unresponsive with fluid coming out of his mouth. An ambulance 7 was summoned and O.L. arrived at the hospital at 2:00 a.m. on May 9, 2018. O.L. died. At 2:55 8 a.m., the emergency department noted that O.L. suffered acute cardiopulmonary arrest and the 9 treating physician, Dr. Coon, believed that O.L’s death was the result of Sudden Infant Death 10 Syndrome (“SIDS”). 11 At 4:15 a.m., Defendants Tanya Laster (“Laster”) and Margo Kilgore (“Kilgore”), social 12 workers from the County, arrived at the mobile home. They entered the mobile home without 13 permission and without a warrant. While on the premises, Laster and Kilgore observed numerous 14 empty beer cans and, outside, what they believed to be “some amount” of marijuana. 15 At 5:26 a.m., Kilgore and Laster met with hospital staff. The staff informed Laster and 16 Kilgore that O.L had arrived at the hospital without a heartbeat, had blood in his ear, and was cold, 17 stiff, unbreathing, and blue in the face and extremities. They were advised that Dr. Coon 18 suspected that O.L. had died of SIDS. Thereafter, they met with Dr. Coon.2 Dr. Coon explained 19 that O.L. appeared to have suffered acute cardiopulmonary arrest, there was a suspicion of SIDS, 20 there were no bruises or marks on O.L., and O.L. and A.L. appeared to be well cared for. 21 The social workers then interviewed Santor and the father. Although they were dealing 22 with the loss of their son, there is no indication that any medical professional, law enforcement 23 officer, or social worker believed that either Santor or the father were incapacitated or under the 24 1 A.L was born in 2016 and O.L was born in 2018. 25 2 The Complaint is somewhat ambiguous regarding who met the treating physician. Laster and Kilgore appear to have 26 been the investigating social workers and thus, were likely the ones who interviewed the physician. However, the Complaint alleges that “Defendant Social Workers” met with the physician, and the term “Defendant Social Workers” 27 refers to the six County social workers who are named as defendants in this case. It is highly unlikely that, in the early morning hours of May 9, 2018, all six social workers were investigating this single case. Because only Kilgore and 28 Laster were identified in the complaint and appear to have been the investigating social workers, the Court will read the Complaint as reasonably alleging that only Kilgore and Laster interviewed Dr. Coon, Santor, and the father. 3 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 4 of 30 1 influence of drugs or alcohol. Kilgore and Laster explained their concerns to Santor and the 2 father. 3 At 7:30 a.m., Laster, Kilgore, Juan Perez (“Perez”), and Joseph Greene (“Greene”) met at 4 their offices and determined to remove A.L. from the custody of Santor and the father. There was 5 no attempt to obtain a warrant for the removal of A.L. However, there was also no reasonable 6 basis for believing that A.L. was in imminent danger of sustaining serious bodily injury or death 7 within the time it would have taken the social workers to obtain a warrant for either the removal or 8 examination of A.L. There was no information that A.L had suffered any type of harm or abuse at 9 the hands of Santor, and she had never in fact abused A.L. or O.L. Kilgore, Laster, Greene, and 10 Perez3 conspired to allege false and fraudulent facts of imminent risk to substantiate their efforts to 11 remove A.L. Kilgore, Laster, Greene, and Perez knew that no reasonable judge would grant a 12 warrant on the facts and circumstances as they existed, particularly given the statements by the 13 hospital physician that A.L. and O.L. appeared well cared for and that O.L. appeared to have died 14 as a result of SIDS. Kilgore, Laster, Greene, and Perez enlisted the aid of the City to remove A.L. 15 Later on May 9, Laster and Kilgore, along with City police officers, without cause or a 16 warrant, seized, detained and removed A.L. from Santor’s care and delivered A.L. to the County 17 Department of Health and Human Services. The seizure was unlawful as there was no reasonable 18 or articulable evidence that suggested A.L. was in immediate danger at the hands of Santor. At the 19 time of seizure, A.L. was in good health, had no need of medical care, was not in a physical home 20 environment that posed a threat to her health and safety, and was in the presence of both her 21 parents and maternal grandparents. There was also no reason to believe that Santor was not 22 entitled to custody of A.L. or that Santor had committed a crime. When A.L. was removed, this 23 caused a strong and emotional outburst from Santor, as she was already grieving the loss of O.L. 24 3 As in previous allegations, the Complaint alleges that the “Defendant Social Workers” had no basis to believe that 25 A.L. was in imminent danger and had conspired to allege false and fraudulent facts. Again, the term “Defendant Social Workers” is defined in the Complaint to mean all six County social worker defendants. However, the 26 Complaint specifically alleged that Kilgore, Laster, Perez, and Greene met and determined to remove A.L. Because of this allegation, it seems that only Kilgore, Laster, Perez, and Greene would be conspiring against Santor. There are 27 no allegations regarding the other two County social worker defendants. Without allegations that expressly connect the other two County social worker defendants, particularly when allegations expressly connect four of the six social 28 workers to the decision to remove A.L., the Court will only read the Complaint as reasonably identifying conduct by Kilgore, Laster, Perez, and Greene. 4 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 5 of 30 1 The outburst was used by “Defendants” as pretext to detain her for involuntary treatment and 2 further keep A.L from Santor. 3 On May 11, 2018, County social workers Defendants David Granados (“Granados”) and 4 Maria Pasillas (“Pasillas”) drafted a Detention Report for the Stanislaus County Superior Court.4 5 The report was drafted in order to begin dependency proceedings. The Dependency Report is 6 relied upon by the Superior Court to determine whether continued detention is necessary. 7 Detention Reports are to be verified and are not to contain false information. Granados and 8 Pasillas included key false information including: (1) Santor consistently slept with her children 9 (including O.L.) on a twin sized bed (even though Santor slept in a much larger bed with ample 10 room for her children); (2) Santor’s newborn was found unresponsive as a result of co-sleeping 11 and later died (even though the cause of death was found to be Congestive Heart Failure); (3) there 12 was a marijuana pipe within easy access of A.L (even though the marijuana pipe was empty and 13 located outside the mobile home while the children were sleeping inside the mobile home); (4) 14 Santor has mental health issues (even though the emotional outburst was simply the result of being 15 emotionally upset by the loss of O.L. and the removal of A.L.); and (5) the residence that Santor 16 and the father shared has health and safety issues (even though Santor resides with her parents but 17 would occasionally visit the father with her children). These are only examples of the inaccurate 18 information that was included in the Dependency Report, not to mention the suppressed 19 exculpatory information. 20 21 I. COUNTY’S MOTION TO DISMISS 22 1. First Cause of Action – Unconstitutional Removal/Unwarranted Seizure 23 Defendants’ Argument 24 Defendants argue that Santor’s rights were not violated when A.L. was taken into custody. 25 The Complaint acknowledges essentially that O.L. was found dead with drugs and alcohol in close 26 proximity to him. Any reasonable social worker would have had serious concerns for the safety of 27 28 4 The Complaint merely identifies the “California Court.” Because the precise identity of the Court is not material, the court will view the Complaint as making allegations regarding the Stanislaus County Superior Court. 5 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 6 of 30 1 another child at the residence, particularly a 3 year old like A.L. This circumstance creates an 2 exigency, and no facts are alleged that would demonstrate that an exigency did not exist. 3 Alternatively, Defendants argue that they are entitled to qualified immunity. Although the 4 Ninth Circuit has articulated the standard by which a social worker may remove a child from her 5 parents’ custody without prior judicial authorization, that is, reasonable cause to believe that the 6 child is in imminent danger of suffering a serious injury, the Ninth Circuit has not defined 7 “reasonable cause” or “imminent danger.” In 2016 and 2018, the Ninth Circuit reviewed its case 8 law and held that, in the context of a social worker who removed a child within days of birth 9 where the newborn had traces of illegal drugs in its system and the mother had a history of drug 10 abuse, the law was not clearly established that removing the child without prior judicial approval 11 was unconstitutional. Given the state of the law as it existed at the time A.L. was removed, a 12 reasonable social worker would not clearly know that removing A.L. was unlawful. 13 Plaintiff’s Opposition 14 Santor argues that there is nothing in the Complaint that establishes, as a matter of law, 15 that A.L. was in any risk, let alone imminent risk of substantial physical injury. The Complaint 16 alleges that there was no sign of physical abuse to A.L., there was nothing to indicate that either 17 Santor or the father were intoxicated or incapable of taking care of A.L., and there is nothing that 18 indicates that the actions of either Santor or the father contributed to O.L.’s death. Rather, O.L. 19 died from SIDS. The law was sufficiently clear that any reasonable social worker would know 20 that there was no imminent danger facing A.L. when Defendants removed her from Santor’s care. 21 Legal Standards 22 a. Fourteenth Amendment – Familial Association 23 “Parents and children have a well-elaborated constitutional right to live together without 24 governmental interference.”5 Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000). “The 25 Fourteenth Amendment guarantees that parents will not be separated from their children without 26 5 The Fourth Amendment and Fourteenth Amendment protect the parent-child relationship from unwanted state 27 interference. Kirkpatrick v. County of Washoe, 843 F.3d 784, 788 (9th Cir. 2016). When a child is removed from a parent’s home, the parent’s right is protected by the Fourteenth Amendment and the child’s right is protected by the 28 Fourth Amendment. See id. at 789. However, “the tests under the Fourth and Fourteenth Amendment for when an official may remove a child from parental custody without a warrant are equivalent.” Id. . 6 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 7 of 30 1 due process of law except in emergencies.” Mabe v. San Bernardino County, Dep't of Pub. Soc. 2 Servs., 237 F.3d 1101, 1107 (9th Cir. 2001). Thus, government officials ordinarily are “required 3 to obtain prior judicial authorization before removing a child from the custody of her parent.” 4 Kirkpatrick v. County of Washoe, 843 F.3d 784, 790 (9th Cir. 2016) (en banc); see Mabe, 237 5 F.3d at 1106-07; Wallis, 202 F.3d at 1136. A government official may remove a child from a 6 parent’s custody without prior judicial authorization only if the official has “reasonable cause to 7 believe that the child is in imminent danger of serious bodily injury and that the scope of the 8 intrusion is reasonably necessary to avert that specific injury.” Rogers v. County of San Joaquin, 9 487 F.3d 1288, 1294 (9th Cir. 2007); Mabe, 237 F.3d at 1106; Wallis, 202 F.3d at 1138. Stated 10 differently, if “officials have reasonable cause to believe that the child is likely to experience 11 serious bodily harm in the time that would be required to obtain a warrant,” then officials may 12 remove a child without prior judicial authorization. Demaree v. Pederson, 887 F.3d 870, 878 (9th 13 Cir. 2018); Kirkpatrick, 843 F.3d at 790; Rogers, 487 F.3d at 1294. Three requirements can be 14 gleaned to satisfy this exception to the general rule requiring prior judicial authorization. First, the 15 injury or abuse to the child must be “articulable, imminent, and serious,” and the official’s 16 “reasonable cause” must be “cogent [and] fact-focused[.]” Demaree, 887 F.3d at 883-84. Second, 17 officials “cannot seize children suspected of being abused or neglected unless reasonable avenues 18 of investigation are first pursued.” Keates v. Kolie, 883 F.3d 1228, 1237 (9th Cir. 2018); Wallis, 19 202 F.3d at 1138. Third, “because the ‘scope of the intrusion’ must be ‘reasonably necessary to 20 avert’ a specific injury, the intrusion cannot be longer than necessary to avert the injury.” Keates, 21 883 F.3d at 1237; see Wallis, 202 F.3d at 1140-41. In sum, case law clearly establishes that “the 22 rights of parents and children to familial association under the [Constitution] are violated if a state 23 official removes children from their parents without their consent, and without a court order, 24 unless information at the time of the seizure, after reasonable investigation, establishes reasonable 25 cause to believe that the child is in imminent danger of serious bodily injury, and the scope, 26 degree, and duration of the intrusion are reasonably necessary to avert the specific injury a issue.” 27 Keates, 883 F.3d at 1237-38. The existence of reasonable cause, the sufficiency of an 28 investigation, and the scope of an intrusion are questions of fact. See Wallis, 202 F.3d at 1138-40. 7 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 8 of 30 1 b. Qualified Immunity 2 Qualified immunity applies when an official’s conduct does not violate clearly established 3 statutory or constitutional rights of which a reasonable person would have known. White v. Pauly, 4 137 S. Ct. 548, 551 (2017). “Officers are entitled to qualified immunity under § 1983 unless (1) 5 the officers violate a federal statutory or constitutional right, and (2) the unlawfulness of their 6 conduct was “clearly established at the time.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 7 (2018); White, 137 S.Ct. at 551. “Clearly established” means that the statutory or constitutional 8 question was “beyond debate,” such that every reasonable official would understand that what he 9 is doing is unlawful. See Wesby, 138 S.Ct. at 589; Vos v. City of Newport Beach, 892 F.3d 1024, 10 1035 (9th Cir. 2018). This is a “demanding standard” that protects “all but the plainly 11 incompetent or those who knowingly violate the law.” Wesby, 138 S.Ct. at 589 (citing Malley v. 12 Briggs, 475 U.S. 335, 341 (1986)). To be “clearly established,” a rule must be dictated by 13 controlling authority or by a robust consensus of cases of persuasive authority. Id.; see also Perez 14 v. City of Roseville, 882 F.3d 843, 856-57 (9th Cir. 2018) (noting that Ninth Circuit precedent is 15 sufficient to meet the “clearly established” prong of qualified immunity). In examining whether a 16 rule/right is clearly established, courts are to define the law to a “high degree of specificity,” and 17 not “at a high level of generality.” Wesby, 138 S.Ct. at 590. The key question is “whether the 18 violative nature of particular conduct is clearly established” in the specific context of the case. 19 Vos, 892 F.3d at 1035 (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)). Although it is not 20 necessary to identify a case that it is “directly on point,” generally the plaintiff needs to identify a 21 case where an officer acting under similar circumstances was held to have violated federal right. 22 Wesby, 138 S. Ct. at 577; Vos, 892 F.3d at 1035; Shafer v. City of Santa Barbara, 868 F.3d 1110, 23 1118 (9th Cir. 2017). Whether a constitutional right was violated is generally a question of fact 24 for the jury, but whether a right was clearly established is a question of law for the judge. Morales 25 v. Fry, 873 F.3d 817, 823 (9th Cir. 2017). 26 Discussion 27 a. Constitutional Violation 28 At the time A.L. was removed from Santor, it appears that Laster and Kilgore were aware 8 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 9 of 30 1 of O.L’s death, had been to the father’s mobile home, had spoken with medical personnel, and had 2 spoken with Santor and the father. It is reasonable at this stage to infer that the information 3 obtained by Laster and Kilgore is the same information that is alleged in the Complaint. Viewing 4 the allegations in the light most favorable to Santor and making all reasonable inferences in her 5 favor, see Silingo, 904 F.3d at 676, Laster and Kilgore saw an unknown quantity of empty beer 6 cans inside the mobile home and observed what they believed to be “some amount” of marijuana 7 outside the trailer. They learned that the father had consumed a small amount of beer that evening 8 and that Santor had consumed a small amount of medical marijuana, and they observed that 9 neither Santor nor the father appeared to be intoxicated or incapable of caring for A.L. They 10 learned that O.L. died of SIDS/an acute cardiac episode, but that O.L appeared to be otherwise 11 well cared for and had no signs of abuse. A.L. also appeared well cared for and had no signs of 12 abuse. Finally, they would have learned that A.L. did not reside with the father at his mobile 13 home, rather, A.L. resided with Santor at the home of Santor’s parents. Santor and her children 14 would only occasionally spend time at the father’s mobile home. 15 Under these circumstances, the Court agrees with Santor that A.L. was not facing an 16 imminent threat of serious injury or abuse at the time she was removed from Santor’s residence. 17 O.L. died of natural causes, not from neglect or any kind of abuse. There is nothing from the 18 Complaint that remotely links O.L.’s death with a danger that A.L. also faced.6 Santor and the 19 father did not consume controlled substances to the point of intoxication or to the point that they 20 could not care for A.L., and there are no allegations that suggest that Santor was otherwise 21 incapable of caring for A.L. Assuming marijuana was found outside the mobile home, there is no 22 indication that A.L would have had access to it. Further, empty beer cans or a messy mobile home 23 does not represent an imminent threat of a serious physical injury to A.L. Finally, A.L. did not 24 reside at the residence where beer cans and marijuana were observed. A.L. and Santor resided 25 with Santor’s parents at the parents’ home. It was only the father who resided in the mobile home, 26 and Santor and A.L. on occasion would visit and spend time with the father at the mobile home. 27 6 In fact, information from the California Department of Public Health indicates that A.L., who was going on 3 years 28 of age, was under no threat from SIDS. “SIDS is the sudden unexplained death of an infant under one year of age.” https://www.cdph.ca.gov/programs/cfh/dmcah/SIDS/Pages/Default.aspx (emphasis added0. 9 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 10 of 30 1 Any potential dangers that might be arguably be deemed significant existed at the mobile home, 2 not at A.L.’s actual residence. 3 Therefore, the Complaint quite plausibly alleges that there was no threat that was so 4 imminent and grave that prior judicial authorization could not be procured. Empty beer cans 5 inside, and “some amount” of marijuana outside, of a mobile home that is visited “occasionally” 6 by a child with supervision, combined with a younger sibling’s natural cause of death that had 7 nothing to do with beer cans or “some amount” of marijuana, does not demonstrate an imminent 8 and serious risk of injury to that child. Because the allegations show the absence of reasonable 9 cause to believe that a serious injury was imminent, dismissal is not appropriate.7 10 b. Qualified Immunity 11 About one month prior to the events giving rise to this lawsuit, the Ninth Circuit denied 12 qualified immunity to social workers who removed children from their parents’ home without 13 prior judicial authorization because the parents had taken photographs of the children’s exposed 14 buttocks. See Demaree, 887 F.3d at 874. In relevant part, the Ninth Circuit explained: 15 When evaluating qualified immunity claims, “[w]e do not require a case directly on point, but existing precedent must have placed the statutory or constitutional 16 question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). It is “beyond debate,” id., that existing Ninth Circuit precedent establishes that children 17 can only be taken from home without a warrant to protect them from imminent physical injury or molestation in the period before a warrant could be obtained. 18 See Mabe, 237 F.3d at 1108-09. The clearly established case law requires articulable, imminent, and serious physical injury or physical abuse to children to 19 justify removing them from their parents' home without a judicial order. There was no such injury identified here. 20 Put another way, to say a child can be removed only if x is likely to happen 21 necessarily means she cannot be removed if there is no indication that x is likely to happen. That there is no case law concerning a situation in which y, but not x, may 22 be likely to happen does not make the rule setting the standards for removal any less clear—the rule is that only a reasonable fear of x, not y, can provide a 23 constitutional basis for exigent removal. 24 Here, the rule remains that there can be no removal without a court order “absent evidence that the child was in imminent danger of serious bodily injury.” 25 Kirkpatrick, 843 F.3d at 792. The risk identified here simply does not meet that standard, as it does not involve physical injury or abuse. 26 7 27 The Court notes that, viewing the allegations in the light most favorable to Santor, the allegations suggest that the investigation was finished in a matter of hours and thus, not particularly thorough. An inadequate/unreasonable 28 investigation will undercut the existence of “reasonable cause.” See Keates, 883 F.3d at 1237; Wallis, 202 F.3d at 1138-40. 10 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 11 of 30 ..... 1 We do not here deal with a “general proposition, for example, that an unreasonable 2 search or seizure violates the Fourth Amendment,” which “is of little help in determining whether the violative nature of particular conduct is clearly 3 established.” al-Kidd, 563 U.S. at 742. Instead, we have here a very specific line of cases, culminating in Rogers and Mabe, which identified and applied law clearly 4 establishing that children may not be removed from their homes without a court order or warrant absent cogent, fact-focused reasonable cause to believe the 5 children would be imminently subject to physical injury or physical sexual abuse. Rogers, the last in the series before the events in this case, summarized that law and 6 explained why qualified immunity was inapplicable: “Prior to the events in question, we had repeatedly held that a family’s rights were violated if the children 7 were removed absent an imminent risk of serious bodily harm. A reasonable social worker would need nothing more to understand that she may not remove a child 8 from [his or her] home on the basis of a [situation] that does not present such a risk.” 487 F.3d at 1297. Mabe, Rogers, and their predecessors thus gave clear 9 notice of the law to social workers responsible for protecting children from sexual abuse and families from unnecessary intrusion. 10 Id. at 883-84.8 11 Demaree’s analysis applies here. Defendants never clearly articulate what threat A.L. 12 actually faced by remaining in Santor’s care. A.L. was in good health, had no signs of abuse, did 13 not have ready access to the discovered marijuana (assuming that marijuana was actually found), 14 and did not reside at the mobile home with the father. Further, the apparent cause of O.L.’s death 15 appears to have no relation to A.L. in terms of A.L.’s wellbeing and care. The injury or abuse to 16 the child must be “articulable, imminent, and serious,” and the official’s “reasonable cause” must 17 be “cogent [and] fact-focused[.]” Id. The allegations in the Complaint clearly defeat both 18 requirements. As Demaree explained, without a basis, i.e. reasonable cause, to believe that an 19 imminent risk of serious injury is present such that prior judicial authorization cannot be timely 20 obtained, no reasonable social worker can conclude that removal without prior judicial approval is 21 lawful. Since the allegations show that there was no imminent, articulable, serious threat to A.L., 22 Demaree defeats Defendants’ request for qualified immunity. 23 Defendants rely on Kirkpatrick and Dunkle v. Dale, 729 F. App’x 616 (9th Cir. 2018) to 24 argue that qualified immunity is appropriate. Both Kirkpatrick and Dunkle involved the removal 25 of newborns where the mothers were known to take illegal drugs and illegal drugs were detected 26 in the newborns. See Dunkle, 729 F. App’x at 616-17; Kirkpatrick, 843 F.3d at 786-87. 27 8 28 The Court notes that the Ninth Circuit denied qualified immunity to the social workers in both Mabe and Rogers. See Rogers, 487 F.3d at 1297; Mabe, 23\ F.3d at 1108-09. 11 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 12 of 30 1 Kirkpatrick found that qualified immunity was appropriate because, although the removal was 2 unconstitutional, “no case had addressed the level of risk of physical harm at issue where a 3 potentially abusive mother is in the hospital but could leave with the child[.]” Demaree, 887 F.3d 4 at 883 (discussing and distinguishing Kirkpatrick, 843 F.3d at 793). Dunkle merely followed 5 Kirkpatrick and granted qualified immunity because the events that were at issue had taken place 6 several years prior to Kirkpatrick. See Dunkle, 729 F. App’x at 617. 7 Kirkpatrick and Dunkle’s qualified immunity analyses focused on a particular fact pattern, 8 as explained in Demaree. That fact pattern is nowhere close to this case. No illegal drugs were 9 detected in A.L’s system, the use of medical marijuana was at least legal under California law, 10 there was no indication of any abuse to or injury against A.L., and Santor had already returned to 11 her residence (not the father’s mobile home) when Defendants removed A.L. from Santor’s 12 custody. The qualified immunity analysis of Demaree, not Kirkpatrick (and certainly not Dunkle), 13 controls for purposes of this motion.9 Kirkpatrick and Dunkle do not aid Defendants. 14 Dismissal on the basis of qualified immunity is inappropriate. 15 2. Second Cause of Action – Judicial Deception 16 Defendants’ Argument 17 Defendants argue that dismissal is appropriate because, although the Complaint identifies 18 false statements, there are no allegations that describe causation. That is, the Complaint is silent 19 as to whether the alleged false statements had any impact on the state court’s actions, or even if 20 the state court considered the statements. 21 Plaintiff’s Opposition 22 Santor argues that Granados and Pasillas intentionally misrepresented facts to the state 23 court which resulted in the continued removal of A.L. The misrepresentations were perjury. No 24 reasonable social worker could believe that such perjury/misrepresentation is lawful. To the 25 extent that the allegations are unclear, Santor requests leave to amend. 26 9 27 Qualified immunity may be raised during the motion to dismiss, summary judgment, and trial stages. See Behrens v. Pelletier, 516 U.S. 299, 306-08 (1996); Eddy v. Virgin Islands Water & Power Auth., 256 F.3d 204, 210 n.3 (3d Cir. 28 2001); see also Marks v. Clarke, 102 F.3d 1012, 1017 n.8 (9th Cir. 1996). 12 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 13 of 30 1 Legal Standard 2 The Ninth Circuit recognizes claims based on a state official’s false statements made 3 during the course of legal proceedings. See Keates, 883 F.3d at 1240; Chism v. Washington, 661 4 F.3d 380, 386 (9th Cir. 2011). A claim of judicial deception has two elements: (1) an official’s 5 deliberate falsehood or reckless disregard for the truth, and (2) but for the dishonesty, the judicial 6 action at issue would not have occurred. See Chism, 661 F.3d at 386; Liston v. County of 7 Riverside, 120 F.3d 965, 973 (9th Cir. 1997); see also Keates, 883 F.3d at 1240. “If a state official 8 ‘submitted an affidavit that contained statements he knew to be false or would have known were 9 false had he not recklessly disregarded the truth . . . he cannot be said to have acted in a reasonable 10 manner, and the shield of qualified immunity is lost.’” Keates, 883 F.3d at 1240 (quoting Chism, 11 661 F.3d at 393). 12 Discussion 13 After review, the Court agrees with Defendants. The Complaint identifies a list of 5 non- 14 exclusive falsehoods that were allegedly made by Granados and Pasillas as part of the Detention 15 Report. The Court will accept that the statements are false and were deliberately or recklessly 16 made. However, the Complaint does not allege that the state court proceedings led to the 17 continued separation of A.L. from Santor or that such a result was because of the 18 misrepresentations made by Granados and Pasillas.10 Cf. Chism, 661 F.3d at 386. Additional 19 allegations are necessary to plausibly demonstrate harm and causation. Given these deficiencies, 20 no plausible claim is stated and dismissal is appropriate. 21 3. Third Cause of Action – Monell Liability 22 Defendants’ Argument 23 Defendants argue that, because there was no constitutional violation, there is no Monell 24 liability. Defendants also argue that the allegations that support Monell liability are threadbare at 25 best and devoid of any factual allegations that suggest that the County has a long-standing policy 26 of detaining or removing children from their parents. There are also no factual allegations that 27 10 28 The opposition indicates that the result of the state court proceedings was the continued separation of A.L. from Santor, but the Complaint does not actually make that allegation. 13 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 14 of 30 1 demonstrate either deliberate indifference by the County or that show that any policy was the 2 moving force behind a constitutional violation. Therefore, the claim should be dismissed. 3 Plaintiff’s Opposition 4 Santor argues that under Ninth Circuit precedent, a Monell claim is sufficient even if it is 5 based on nothing more than a bare allegation that an officer’s conduct was done pursuant to an 6 official policy, custom, or practice. Santor also argues that she has identified the policies at issue 7 and does not need to identity who commenced the policies. 8 Legal Standard 9 Municipalities are considered “persons” under 42 U.S.C. § 1983 and therefore may be 10 liable for causing a constitutional deprivation. Monell v. Department of Soc. Servs., 436 U.S. 658, 11 690 (1978); Castro v. County of L.A., 797 F.3d 654, 670 (9th Cir. 2015). A municipality, 12 however, “cannot be held liable solely because it employs a tortfeasor or, in other words, a 13 municipality cannot be held liable under [42 U.S.C. § 1983] under a respondeat superior theory.” 14 Monell, 436 U.S. at 691; see Castro, 797 F.3d at 670. Liability only attaches where the 15 municipality itself causes the constitutional violation through “execution of a government’s policy 16 or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to 17 represent official policy.” Monell, 436 U.S. at 694; Price v. Sery, 513 F.3d 962, 966 (9th Cir. 18 2008). Municipal liability may be premised on: (1) conduct pursuant to a formal or expressly 19 adopted official policy; (2) a longstanding practice or custom which constitutes the “standard 20 operating procedure” of the local government entity; (3) a decision of a decision-making official 21 who was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly 22 be said to represent official policy in the area of decision; or (4) an official with final 23 policymaking authority either delegating that authority to, or ratifying the decision of, a 24 subordinate. See Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014); Price, 513 25 F.3d at 966. 26 A failure to train or inadequate training may form the basis for municipal liability under § 27 1983 where the training or failure to train amounts to deliberate indifference to the rights of the 28 persons with whom the municipality’s employees come into contact. Flores v. County of L.A., 14 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 15 of 30 1 758 F.3d 1154, 1158 (9th Cir. 2014); Long v. County of L.A., 442 F.3d 1178, 1186 (9th Cir. 2 2006). Under such a theory, the “issue is whether the training program is adequate and, if it is not, 3 whether such inadequate training can justifiably be said to represent municipal policy.” Long, 442 4 F.3d at 1186. A municipality is deliberately indifferent when the need for more or different action 5 is “so obvious, and the inadequacy [of the current procedure] so likely to result in the violation of 6 constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately 7 indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989); Mortimer v. Baca, 8 594 F.3d 714, 723 (9th Cir. 2010). 9 Allegations of Monell liability involving a policy, practice, or custom will be sufficient for 10 purposes of Rule 12(b)(6) where they: (1) identify the challenged policy/custom; (2) explain how 11 the policy/custom is deficient; (3) explain how the policy/custom caused the plaintiff harm; and 12 (4) reflect how the policy/custom amounted to deliberate indifference, i.e. show how the 13 deficiency involved was obvious and the constitutional injury was likely to occur. McFarland v. 14 City of Clovis, 163 F.Supp.3d 798, 802 (E.D. Cal. 2016); Young v. City of Visalia, 687 F. Supp. 15 2d 1141, 1149-50 (E.D. Cal. 2009). A policy, practice, or custom causes harm when it is the 16 “moving force” behind the constitutional violation, a causation standard that entails both causation 17 in fact and proximate causation. Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 18 2013). 19 Relevant Allegations 20 The Complaint alleges that the County had the following policies that were the moving 21 force behind Santor’s injuries: (1) “detaining and/or removing children from the care of their 22 parent(s) without providing the parent(s) with adequate notice of their removal or an opportunity 23 to be heard,” (2) “removing and detaining children from their parents beyond a reasonable period 24 after the basis for detention is negated,” (3) “inadequate training, and/or by failing to train its 25 officers, agents, and employees, in providing the Constitutional protections guaranteed to 26 individuals, including those under the First and Fourteenth Amendment, when performing actions 27 related to the removal of children from the care of their parents, child abuse investigations, and/or 28 dependency type proceedings,” and (4) “[allowing] the removal and detention of a child from their 15 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 16 of 30 1 parents where there is no warrant obtained and there are no exigent circumstances present.” See 2 Complaint ¶¶ 51, 55. 3 Discussion 4 Initially, Santor is incorrect to cite pre-Iqbal Ninth Circuit cases for the proposition that a 5 “bare allegation” of Monell liability is sufficient. In the same year as Iqbal, 2009, this Court 6 found that the “bare allegation” pleading standard was incompatible with Iqbal and no longer 7 viable. See Young, 687 F.Supp.2d at 1148. The Ninth Circuit itself confirmed this conclusion in 8 2012. See AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 637-38 (9th Cir. 2012) (noting 9 that Twombly and Iqbal “appl[y] to Monell claims and should govern future pleadings”). Santor’s 10 reliance on a legal proposition that has been defunct for a decade is improper. The Court will 11 apply the Iqbal standard to the four policies identified in the Complaint. 12 The first policy alleged is one of detaining and/or removing children from their parents 13 without providing the parents with notice or an opportunity to be heard. This is sufficient to 14 identify the policy. However, the remaining three pleading requirements are not met. The 15 Constitution permits the removal of a child from her parents’ care without a warrant only under 16 the “reasonable cause” exception described above, i.e. reasonable cause to believe that there is an 17 imminent danger of serious injury to the child. See Keates, 883 F.3d at 1236; Rogers, 487 F.3d at 18 1294; Wallis, 202 F.3d at 1138. Since no warrant was obtained, the Defendants could remove 19 A.L. only if “reasonable cause” existed. See Wallis, 202 F.3d at 1130-31, 1138. However, the 20 cases discussing the “reasonable cause” exception do not include any requirement that parents be 21 given prior notice or an opportunity to be heard. Because notice and an opportunity to be heard 22 are not part of the “reasonable cause” exception, it is unclear how the identified policy is deficient, 23 how it represents a deliberate indifference to Santor’s rights, and how it could have caused Santor 24 any harm. Therefore, there is no plausible Monell claim alleged based on the first policy. See 25 McFarland, 163 F.Supp.3d at 802; Young, 687 F.Supp.2d at 1149-50. 26 The second policy alleged is one of removing and detaining children from their parents 27 beyond a reasonable period after the basis for detention is negated. This policy has the same type 28 of deficiency as the first policy. The only harm to Santor that is adequately identified in the 16 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 17 of 30 1 Complaint is the initial removal of A.L., which was done in the absence of a warrant and 2 “reasonable cause.” The Complaint does not allege how long A.L. was kept apart from Santor, 3 nor does the Complaint allege any constitutional violation based on a theory that A.L. and Santor 4 were kept apart for an “unreasonable period of time.” The second policy has no readily 5 ascertainable relationship to the facts of this case. Given the disconnect between facts alleged and 6 the identified policy, the Complaint fails to identify how this policy is deficient, how it represents 7 a deliberate indifference to Santor’s rights, and how it caused Santor any harm. Therefore, there is 8 no plausible claim alleged based on the second policy. See McFarland, 163 F.Supp.3d at 802; 9 Young, 687 F.Supp.2d at 1149-50. 10 The allegations regarding the third policy are not particularly clear. Santor is attempting to 11 allege a training based claim, and it appears that Santor may be complaining about either the 12 complete absence of training or that the provided training was somehow inadequate. 13 To the extent that Santor complains that the provided training was inadequate, she fails to 14 identify how the training was inadequate. There are many ways that training may be inadequate, 15 including reliance on incorrect legal propositions. McFarland, 163 F.Supp.3d at 803. Simply 16 alleging that training was “deficient” or “inadequate” is conclusory and does not support a 17 plausible claim. See id. at 803, 806; Young, 687 F.Supp.2d at 1149-50. Further, there are no 18 allegations that describe how the inadequate training caused Santor’s injuries or reflect deliberate 19 indifference to her rights. Therefore, there is no plausible claim alleged with respect to 20 “inadequate training.” See id. 21 To the extent that Santor complains that there was a complete absence of training regarding 22 constitutional protections, the Court is satisfied that a plausible Monell claim is alleged. The 23 individual defendants are all social workers. It is clear that County social workers will investigate 24 possible instances of child abuse and will confront situations in which removal of a child from 25 parental custody is warranted. However, the Constitution provides limits on the ability of a social 26 worker to remove a child from parental custody, particularly in the absence of a warrant and 27 “reasonable cause.” See Wallis, 202 F.3d at 1130-31, 1138. Given the obvious frequency with 28 which social workers investigate instances of child abuse, the failure to provide those workers 17 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 18 of 30 1 with any training regarding the constitutional protections afforded to both parents and children 2 reflects deliberate indifference to the rights of the entire community. Cf. id. Further, although the 3 Complaint generally alleges causation, given that A.L. was removed from Santor’s custody in the 4 absence of a warrant and without “reasonable cause,” the complete absence of training regarding 5 constitutional protections can readily be seen as a moving factor in Santor’s harm. Therefore, 6 there is a plausible claim alleged with respect to an “absence of training.”11 See Lucas v. City of 7 Visalia, 2010 U.S. Dist. LEXIS 35631, *15-*18 (E.D. Cal. Apr. 8, 2010). 8 Lastly, the fourth policy identified is one that allows the removal or detention of children 9 from their parents in the absence of both a warrant and “reasonable cause.” For the most part, the 10 Complaint adequately identifies a policy.12 Furthermore, although there are no express allegations 11 that explain how the policy is deficient or how the policy reflects deliberate indifference, the 12 description of the policy itself demonstrates both deficiency and deliberate indifference. This is so 13 because the policy reflects a per se constitutional violation by essentially eliminating the 14 “reasonable cause” exception to the warrant/judicial authorization requirement. In 2001, Wallis 15 recognized not only the importance of child abuse investigations, but also the importance of 16 familial rights: 17 [I]t is important to emphasize that in the area of child abuse, as with the investigation and prosecution of all crimes, the state is constrained by the 18 substantive and procedural guarantees of the Constitution. The fact that the suspected crime may be heinous - whether it involves children or adults - does not 19 provide cause for the state to ignore the rights of the accused or any other parties. Otherwise, serious injustices may result. In cases of alleged child abuse, 20 governmental failure to abide by constitutional constraints may have deleterious long-term consequences for the child and, indeed, for the entire family. Ill- 21 considered and improper governmental action may create significant injury where no problem of any kind previously existed. 22 23 11 The Court notes that the third policy discusses actions “related to removal of children from the care of their parents, child abuse investigations, and/or dependency type proceedings.” The factual allegations in the Complaint implicate 24 the first two actions, removing children and investigating abuse. However, there are no plausible claims or factual allegations that sufficiently implicate “dependency type proceedings” or harm suffered by Santor in connection with 25 “dependency type proceedings.” Therefore, at a minimum, Santor could not have been harmed from a failure to train social workers regarding “dependency type proceedings.” If Santor wishes to pursue a Monell claim relating to 26 “dependency type proceedings,” additional allegations are necessary to plausibly allege such a claim. 27 12 The Complaint alleges that the County “[has] a policy, or lack thereof, that allows for the removal . . . .” It is unknown what Santor means by “lack thereof.” Because it cannot be determined with sufficient certainty what is 28 meant by “lack thereof,” there is no plausible claim stated in relation to the “lack thereof” language. The remainder of the Court’s analysis will focus on the allegation that the County has a policy. 18 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 19 of 30 1 Wallis, 202 F.3d at 1130-31. In recognition of the importance of the right of parents and children 2 to live together, “[o]fficials may remove a child from the custody of its parents without prior 3 judicial authorization only if the information they possess at the time of the seizure is such as 4 provides reasonable cause to believe that the child is in imminent danger of serious bodily injury 5 and hat the scope of the intrusion is reasonably necessary to avert that specific injury.” Id. at 1138 6 (emphasis added). Therefore, the deficiency in the fourth policy is obvious and the deliberate 7 indifference to constitutional rights (that have been clearly recognized for over two decades) is 8 plain. Finally, the Complaint generally alleges causation. Given the unconstitutional nature of the 9 policy and what happened to Santor, i.e. the removal of A.L. without prior judicial authorization 10 and without “reasonable cause,” causation is also obvious. Accordingly, the factual allegations 11 combined with the identification of this particular policy are sufficient to state a plausible claim.13 12 4. Kathryn Hartwell and Stanislaus County Community Services Agency 13 Defendants’ Argument 14 Defendants argue that that Stanislaus County Community Services Agency (“SCCSA”) is 15 merely a department of Stanislaus County. Because Stanislaus County is a named defendant, it is 16 unnecessary and superfluous to keep the SCCSA in this case. Defendants also argue that there are 17 insufficient allegations against Kathryn Harwell. Harwell’s name is identified in the caption of the 18 Complaint, but the only other reference to Harwell is that she established and/or followed policies 19 which caused the violation of Santor’s constitutional rights. There are no allegations that identify 20 Harwell’s employer, title, or actual conduct that may form the basis of any liability. 21 Plaintiff’s Opposition 22 Santor does not address the arguments made regarding SCCSA. 23 13 The Court notes that the City has argued that there is a contradiction between the allegation that a policy existed that 24 allowed for the removal of children without a warrant and without “reasonable cause” and the allegation that the social workers conspired to allege false and fraudulent facts of imminent risk because they knew no reasonable judge 25 would authorize the removal of A.L from Santor. The City argues that there is tension because the conspiracy allegation could be read as indicating that the social workers knew of the necessary requirements for a removal 26 without a warrant, but nevertheless acted against policy. However, the allegation could also be read as indicating that the social workers knew about the constitutional protections and conspired to try to meet those constitutional 27 standards. That is, the allegation could be read as addressing only constitutional standards, particularly because County policy is nowhere mentioned in the conspiracy allegation. See Complaint at ¶ 23. Under this reading, there is 28 no inconsistency. Further, Rule 8(d) permits inconsistency with respect to claims and defenses, and the inconsistency extends to both factual and legal allegations. See Lucas v. City of Visalia, 726 F.Supp.2d 1149, 1159 (E.D. Cal. 2010). 19 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 20 of 30 1 With respect to Harwell, Santor alleges that Harwell is the director of SCCSA and was 2 responsible for establishing and maintaining the policies that every County social worker must 3 follow. Because of Harwell’s failure to require compliance with laws regarding the removal of 4 children without a warrant, Santor was harmed. Santor requests leave to amend the complaint to 5 add necessary factual allegations regarding Harwell. 6 Discussion 7 a. SCCSA 8 The County is a named defendant in this case, and the SCCSA is a department/sub-unit of 9 the County. Naming the SCCSA as a separate party is at a minimum redundant. See McFarland, 10 163 F.Supp.3d at 808. Because the County is already a named defendant, there is no utility in 11 keeping the SCCSA as a party. Therefore, the Court will dismiss the SCCSA from this case. See 12 id. 13 b. Harwell 14 Santor’s opposition concedes that there are insufficient allegations against Harwell and 15 requests leave to amend. It is unclear, however, in what capacity Santor wishes to sue Harwell. 16 If Santor means to pursue claims against Harwell in her official capacity, then amendment 17 is unnecessary. As the director of SCCSA, Harwell is a County employee. Because the County is 18 already a party, and an official capacity suit against a municipal employee is really a suit against 19 the municipal employer, see Butler v. Elle, 281 F.3d 1014, 1023 n.8 (9th Cir. 2002), adding an 20 “official capacity” claim against Harwell would be redundant.14 Center for Bio-Ethical Reform, 21 Inc. v. Los Angeles Cnty Sheriff’s Dept., 533 F.3d 780, 799 (9th Cir. 2015); McFarland, 163 22 F.Supp.3d at 808. Therefore, no amendment will be permitted that has the effect of naming 23 Harwell as a defendant in her official capacity. 24 If Santor means to pursue claims against Harwell in her individual capacity, then it is 25 possible that Santor can allege non-redundant claims. Cf. Butler, 281 F.3d at 1023 n.8 (discussing 26 14 27 To the extent Santor may be attempting to allege Monell liability because Harwell has final policy making authority and she adopted a policy, then Santor can simply allege that theory and identify Harwell as the relevant official. 28 Because the County is already a party, it would not be necessary to add Harwell as a party. 20 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 21 of 30 1 the difference between individual and official capacity claims). There is no vicarious liability 2 under § 1983. Keates, 883 F.3d at 1242. A defendant may be held liable as a supervisor if there 3 exists either: (1) her personal involvement in the constitutional deprivation, or (2) a sufficient 4 causal connection between the supervisor’s wrongful conduct and the constitutional violation. Id. 5 at 1242-43; Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011). If Santor has sufficient 6 information to plausibly allege an individual capacity supervisory liability claim against Harwell, 7 then Santor may include such a claim in an amended complaint. 8 5. Conclusion 9 The County Defendants have moved to dismiss all claims against them. 10 As to the first cause of action, the Complaint plausibly alleges a Fourteenth Amendment 11 violation. The allegations also demonstrate that qualified immunity cannot be granted at this time. 12 Therefore, the first cause of action will not be dismissed. 13 As to the second cause of action, the Complaint fails to allege that the state court 14 proceedings led to the continued separation of A.L. from Santor or that such a result was because 15 of the misrepresentations made by Granados and Pasillas. Therefore, dismissal is appropriate. 16 However, because it is likely that Santor can correct these deficiencies, dismissal will be with 17 leave to amend. 18 As to the third cause of action, there are four policies identified. The first policy is 19 deficient because it adds a requirement that is not part of the “reasonable cause” exception to 20 removal without prior judicial approval. Because the identified policy is contrary to law, 21 dismissal without leave to amend of any Monell claim based on that policy is appropriate. The 22 second identified policy is deficient because the policy has no clear relationship to the facts or 23 constitutional violation that are pled in the Complaint. Because it is not clear that amendment 24 would be futile, dismissal with leave to amend is appropriate. The third policy can be read as 25 alleging the complete absence of training regarding constitutional protections. So reading the third 26 policy, a plausible claim is stated and dismissal is inappropriate. However, the third policy can 27 also be read as merely alleging “inadequate training.” That allegation does not state a plausible 28 claim because it is nothing more than a conclusory allegation, which makes dismissal appropriate. 21 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 22 of 30 1 Because it is not clear that amendment would be futile, dismissal will be with leave to amend. 2 The fourth identified policy supports a plausible claim; thus, dismissal is improper. 3 As to SCCSA, that entity is an arm of Stanislaus County. Because the County is already a 4 defendant, SCCSA is redundant and will be administratively dismissed from this case. 5 Finally, no plausible claims are alleged against Harwell. Permitting amendment to allege 6 official capacity claims would be redundant since the County is already a party. However, it is 7 unclear whether personal capacity claims against Harwell can be alleged. Therefore, all claims 8 against Harwell will be dismissed, but with leave to amend to allege individual capacity claims. 9 10 II. THE CITY’S MOTION 11 Defendant’s Argument 12 The City argues that the Complaint improperly lumps all Defendants together. The 13 allegations are so broad that lumping the Defendants together makes it nearly impossible for the 14 City to file a response. The only allegation regarding the City that can possibly be gleaned is that 15 some of the social worker defendants requested law enforcement to stand by as the social workers 16 took A.L. into custody. Santor should be required to make particular allegations as to the conduct 17 of the City that is at issue. The City also argues that the Monell allegations against it are 18 insufficient. There are no policies that are specifically ascribed to the City, and the Complaint 19 makes only threadbare and generic allegations. 20 Plaintiff’s Opposition 21 Santor argues that the first cause of action alleges that City police officers acted under 22 color of law and in a personal capacity. Further, the Complaint alleges that both City and County 23 actors violated her Fourteenth Amendment rights to live with A.L. when the City police officers 24 participated in the removal of A.L. without a warrant and without “reasonable cause.” Therefore, 25 there is a plausible § 1983 claim alleged. Santor also argues that the she has properly alleged 26 Monell liability. The Complaint alleges that the City established policies and procedures 27 regarding the removal of children that did not safeguard constitutional protections and that those 28 policies where the moving force behind Santor’s injuries. 22 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 23 of 30 1 Discussion 2 1. First Cause of Action 3 There is no plausible cause of action against the City in the first cause of action. 4 Municipalities like the City are responsible for constitutional violations “only when ‘an action [is 5 taken] pursuant to [an] official municipal policy of some nature’ caused the violation.” Castro, 6 797 F.3d at 670 (emphasis added) (quoting Monell, 436 U.S. at 691). The first cause of action 7 contains no allegations regarding policies, customs, or practices, rather, the allegations focus on 8 the actual seizure of A.L. and the alleged insufficient basis for the seizure. Presumably Santor 9 intends to identify the City officers who participated in the seizure of A.L. and pursue individual 10 claims against those officers. Santor can do so at this point through the use of Doe pleading if she 11 does not know the names of the officers who were involved. However, the City is not a proper 12 substitute for its individual police officers, otherwise respondeat superior liability will effectively 13 be invoked. The § 1983 claims against the City are to be confined to Monell claims. See id. 14 Because the first cause of action is not a Monell claim, dismissal of the City is appropriate. 15 2. Third Cause of Action – Monell 16 The third cause of action lumps three defendants together (Harwell, the County, and the 17 City) without linking a specific policy to a specific defendant. Assuming that Santor is attempting 18 to allege that the City maintains the identical policies as the County, there are significant 19 problems. 20 First, with respect to the first and second policies (removal of a child without parental 21 notice and opportunity to be heard and maintaining removal for an unreasonable period of time), 22 neither policy has any clear relationship to the facts of this case in general or the specific conduct 23 of City police officers. As discussed above, notice and an opportunity to be heard are not part of 24 the “reasonable cause” exception for removal without a warrant. Cf. Keates, 883 F.3d at 1236; 25 Rogers, 487 F.3d at 1294; Wallis, 202 F.3d at 1138. Since the “reasonable cause” exception is the 26 only basis upon which the removal of A.L. can be defended, the absence of notice and an 27 opportunity to be heard could not have caused Santor any injury. Further, there are no allegations 28 that explain how long A.L was kept away from Santor or under what circumstances and through 23 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 24 of 30 1 what procedures the removal was sustained. Additionally, there are no allegations that link any 2 continued separation of A.L from Santor to any actions by City personnel. Cf. Yousefian v. City 3 of Glendale, 779 F.3d 1010, 1016 (9th Cir. 2015) (holding that there is no Monell liability if no 4 governmental actor/employee violated a plaintiff’s constitutional rights). Therefore, the first and 5 second identified policies do not plausibly allege Monell liability against the City. 6 With respect to the third and fourth policies, the Court’s analysis is generally the same as 7 the analysis with respect to the County. Potential Monell claims are stated with respect to a policy 8 that permits the removal of a child in contravention of Wallis (i.e. without prior judicial 9 authorization and without “reasonable cause”) and the absence of any training regarding the 10 constitutional protections that families enjoy in connection with child removals. No plausible 11 claim is stated with respect to general allegations of “inadequate training.” See McFarland, 163 12 F.Supp.3d at 803, 806. 13 The Court concludes that no potential Monell claims are stated with respect to the third and 14 fourth policies because the Complaint does not plausibly allege that the City police officers 15 violated Santor’s constitutional rights. Without a constitutional violation by an employee of a 16 governmental entity, there is no Monell liability. Yousefian, 779 F.3d at 1016. The actions of the 17 City police officers were fundamentally different from the actions of the County social workers. 18 Two of the social workers (Laster and Kilgore) actively investigated Santor and her family 19 (including visual observations of A.L. and Santor and discussions with medical personnel) but did 20 not uncover abuse or imminent danger, and four social workers (Laster, Kilgore, Greene, and 21 Perez) conferred and agreed to remove A.L. from Santor without prior judicial authorization or 22 “reasonable cause.” Thus, as described above, the Complaint plausibly alleges that County 23 employees violated Santor’s Fourteenth Amendment rights. With respect to the City police 24 officers, however, the Complaint alleges that some of the social workers enlisted the aid and 25 assistance of City police officers (names and numbers unknown) in the removal of A.L., that City 26 police officers (along with Laster and Kilgore) knew that there was no “reasonable cause” because 27 A.L was in the presence of both parents and her maternal grandparents at the time of the removal, 28 and that the social workers removed A.L. with the assistance of the City police. See Complaint ¶¶ 24 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 25 of 30 1 24-28. Specific allegations regarding the City officers are not made, and there are no details as to 2 how the City police officers’ assistance was enlisted by the social workers. The Complaint does 3 not explain what the officers knew or were told about the proposed removal including the grounds 4 for it, whether the officers made any independent assessments in support of removal, and does not 5 explain what exactly the City police officers did at the removal other than “assist” and apparently 6 take Santor into custody under Cal. Civ. Code § 5150. See id. 7 This lack of specifics regarding the City officers is problematic. In Sjurset v. Button, the 8 Ninth Circuit addressed allegations against police officers who entered a home to remove children 9 from their parents’ custody without a warrant and allegedly without “reasonable cause.” See 10 Sjurset v. Button, 810 F.3d 609, 613-14 (9th Cir. 2015). The officers removed the children at the 11 direction of county social workers. See id. at 613. At the time of the removal, the officers did not 12 participate in the decision to remove the children, rather that decision was made prior to the 13 officers’ entry, and the police officers made no independent judgments as to whether “reasonable 14 cause” existed to remove the children. Id. The Ninth Circuit held that the officers’ actions were 15 not clearly unconstitutional under Wallis and Boyd v. Benton County, 374 F.3d 773 (9th Cir. 2004) 16 because the officers did not participate in the decision to remove the children and did not act as a 17 collective team with the social workers in planning and carrying out the removal. See id. at 618- 18 19. Instead, the officers made no independent judgments or decisions regarding the removal and 19 merely assisted the social workers to effectuate the removal. See id. at 620. The officers’ conduct 20 was consistent with “well established precedent, which holds that ‘[l]aw enforcement officers and 21 agencies are entitled to rely on one another to a certain extent.’” Id. at 621 (quoting Guerra v. 22 Sutton, 783 F.2d 1371, 1375 (9th Cir. 1986)). The officers were not required to challenge the 23 removal determination, but they also could not “blindly rely on the existence of a protective 24 custody determination.” Id. at 620-21. However, the officers had knowledge of key details that 25 had also informed the social workers’ decision to remove the children without a warrant. See id. 26 at 621-22. Given these considerations, the Ninth Circuit determined that the officers were entitled 27 to qualified immunity. See id. at 622. Sjurset has been read to mean that it is possible for law 28 enforcement officials to rely on a social worker’s removal decision, even if the removal decision 25 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 26 of 30 1 was wrong. See Birair v. Flam, 809 F. App’x 394, 394 (9th Cir. 2020) (“[In Sjurset,] we held that 2 officers are entitled to rely on a child welfare agency employee’s removal decision.”). 3 As applied to this case, the Court cannot tell whether the City police officers did anything 4 different than the officers is Sjurset. The Complaint’s allegations simply seem to indicate that the 5 officers were requested to assist in a removal because the social workers asked them to do so. 6 Without more specifics regarding the City police officers (such as their involvement with the 7 planning of the removal, whether they exercised independent judgment with respect to the removal 8 decision, what they knew or were told about the need for removal, and what they did at the scene), 9 the allegations are insufficient to place the officers’ conduct outside of Sjurset and the general rule 10 that, to a certain extent, police officer may rely on the determinations of child welfare agencies. 11 It is true that the Complaint argues that the Defendants knew that “reasonable cause” did 12 not exist because A.L. was in the presence of Santor, the father, and her maternal grandparents. 13 However, O.L. had died while in the collective care (albeit a temporary collective care) of Santor 14 and the father while at the father’s mobile home. Thus, the purpose of the removal appears to 15 have been to separate A.L. from both Santor and the father. Because Santor and the father were 16 also present, the mere fact that the grandparents were present would not necessarily indicate to the 17 City police officers that no danger was imminent.15 18 Additionally, the first cause of action alleges that “Defendants” conspired to 19 unconstitutionally remove A.L. See Complaint ¶ 34. It is possible to allege a § 1983 conspiracy. 20 Klingele v. Eikenberry, 849 F.2d 409, 413 (9th Cir. 1988). A conspiracy is “a combination of two 21 or more persons who, by some concerted action, intend to accomplish some unlawful objective for 22 the purpose of harming another . . . .” Vieux v. East Bay Reg’l Park Dist., 906 F.2d 1330, 1343 23 (9th Cir. 1990). A § 1983 conspiracy requires inter alia the existence of an agreement or meeting 24 of the minds to violate constitutional rights, but the agreement need not be overt and can be 25 inferred from circumstantial evidence. Crowe v. County of San Diego, 608 F.3d 406, 440 (9th 26 15 27 The Court agrees that the presence of the grandparents is significant, particularly for the claims against the social workers. Nevertheless, without further allegations regarding the knowledge and actions of the City police officers, the 28 mere presence of the grandparents is not enough to plausibly show that the City police officers knew that “reasonable cause” did not exist. 26 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 27 of 30 1 Cir. 2010). A complaint must allege “specific facts” to support the existence of a conspiracy. 2 Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929 (9th Cir. 2004); Buckey v. County of L.A., 3 968 F.2d 791, 794 (9th Cir. 1992); Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989). 4 An unadorned conclusory allegation of a conspiracy without factual specificity is insufficient to 5 allege a conspiracy. See Karim-Panahi v. Los Angeles Police Dep’t., 839 F.2d 621, 626 (9th Cir. 6 1988); Burns, 883 F.2d at 821; Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 7 1989); see also Olsen, 363 F.3d at 929. 8 Here, there are insufficient specific factual allegations that support the existence of a 9 conspiracy between the social workers and the City police officers. The Complaint does not 10 adequately describe agreements between the City police officers or expressly allege that the City 11 police officers shared in the common goal of violating Santor’s constitutional rights. Further, as 12 discussed above, the fact that A.L. was in the custody of Santor, the father, and the maternal 13 grandparents would not alone show the City police officers that there was no “reasonable cause.” 14 While the Complaint alleges that the social workers enlisted the aid of the City police officers to 15 remove A.L., that act by itself does not support the inference that a conspiracy existed. Sjurset 16 shows that police officers may assist social workers in the emergency removal of a child and that 17 the officers are not required to review and contest every aspect of the social workers’ investigation 18 and conclusions. See Sjurset, 810 F.3d at 620-21. Given the nature of any emergency removal of 19 a child from parental custody, requesting the presence of law enforcement personnel during the 20 actual removal would appear to be a prudent thing to do and not unusual. Cf. id. Therefore, 21 without adequate specific facts, the Complaint makes only a conclusory allegation of conspiracy 22 that fails to cross the line from “possible” to “plausible.” See Twombly, 550 U.S. at 556-57; see 23 also Olsen, 363 F.3d at 929; Burns, 883 F.2d at 821; Woodrum, 866 F.2d at 1126. 24 In sum, while there are potentially viable Monell claims, the allegations do not sufficiently 25 distinguish the City officers from the Sjurset officers and thus, do not plausibly indicate that the 26 City officers violated Santor’s rights. See Birair, 809 F. App’x at 394. The absence of a 27 constitutional violation dooms any possible Monell claim. See Yousefian, 779 F.3d at 1016. 28 Dismissal of the third cause of action is appropriate. 27 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 28 of 30 1 3. Conclusion 2 The City moves to dismiss all claims against it. 3 As to the first cause of action, there are no policies, practices, or customs identified, rather, 4 only a general act of “assisting” is ascribed to unknown City police officers. In the absence of a 5 policy, practice or custom, the City cannot be liable. Monell claims should be alleged against the 6 City as a cause of action that is separate and distinct from the claims against City personnel who 7 are being sued in their individual capacities. Therefore, no plausible claim is alleged against the 8 City and dismissal of the first cause of action without leave to amend is appropriate. 9 As to the third cause of action, no plausible claims are stated. Dismissal of the third cause 10 of action is “globally” appropriate because the allegations do not plausibly indicate that any City 11 employee violated Santor’s rights. In terms of leave to amend, leave to amend will be granted 12 with respect to the second, third, and fourth identified policies to correct the various deficiencies 13 identified in this order. Any Monell claim based on the first identified policy will be dismissed 14 without leave to amend because amendment would be futile. Any Monell claims against the City 15 should be alleged as a separate stand-alone claim. 16 Finally, any amended complaint should be cognizant of two pleading practices that are 17 frowned upon. First, the amended complaint should avoid lumping all Defendants together, 18 wherever possible. A complaint should explain how each defendant participated in or is liable for 19 each constitutional violation allegedly committed. See Greer v. City of Highland Park, 884 F.3d 20 310, 315-16 (6th Cir. 2018); Bryson v. Gonzales, 534 F.3d 1282, 1290 (10th Cir. 2008). Because 21 broad allegations against numerous defendants do not provide the defendants with adequate notice 22 of the plaintiff’s contentions, the amended complaint should clearly identify which Defendants 23 performed which acts/how each defendant violated Santor’s constitutional rights. See Flores v. 24 EMC Mortg. Co., 997 F.Supp.2d 1088, 1103 (E.D. Cal. 2014); Sheffield v. Orius Corp., 211 25 F.R.D. 411, 415 (D. Or. 2002). Second, while a cause of action in a complaint may incorporate by 26 reference specific and relevant prior paragraphs, the incorporation of all prior paragraphs is an 27 improper practice. See Weiland v. Palm Beach Cnty., 792 F.3d 1313, 1321-23 (11th Cir. 2015); 28 Deerpoint Grp., Inc. v. Agrigenix LLC, 345 F.Supp.3d 1207, 1234 n.15 (E.D. Cal. 2018). 28 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 29 of 30 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The County’s motion to dismiss (Doc. No. 20) is: 4 a. DENIED as to the first cause of action and the third cause of action based on the 5 fourth identified policy and the part of the third identified policy involving the 6 complete absence of training; 7 b. GRANTED as to the second cause of action and the third cause of action based on 8 the second identified policy and the part of the third identified policy involving 9 “inadequate training,” and those claims are DISMISSED with leave to amend; 10 c. GRANTED as to the third cause of action for the first identified policy and that 11 claim is DISMISSED without leave to amend; 12 d. Defendant Stanislaus County Community Services Agency is DISMISSED without 13 leave to amend as a redundant defendant; 14 e. Defendant Kathryn Hartwell is DISMISSED from this case with leave to amend to 15 allege personal capacity claims only; 16 2. The City’s motion to dismiss (Doc. No. 18) is GRANTED; 17 a. The first cause of action and the third cause of action for liability based on the first 18 identified policy are DISMISSED without leave to amend; 19 b. The remainder of the third cause of action is DISMISSED with leave to amend; 20 3. Within twenty-one (21) days of service of this order, Plaintiff may file an amended 21 complaint that complies with the analyses of this order; 22 4. If Plaintiff fails to file a timely amended complaint, then leave to amend shall be 23 automatically revoked without further order, and Defendants shall file an answer within 24 twenty-eight (28) days of service of this order. 25 IT IS SO ORDERED. 26 27 Dated: August 24, 2020 SENIOR DISTRICT JUDGE 28 29 Case 1:19-cv-01593-AWI-SKO Document 30 Filed 08/25/20 Page 30 of 30 1 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 30