A.H. v. Sacramento County Dept. Child, Family and Adult Services ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 1] A.H., et al., No. 2:21-cv-00690-KJM-JDP 12 Plaintiffs, ORDER 13 v. 14 Sacramento County Dept. Child, Family and 15 Adult Services, et al., 16 Defendants. 17 Cynthia Martin and her three minor children, A.H., E.H., and C.G., through their guardian 18 | ad litem Mary E. James, bring this action after defendants temporarily took custody of the minors. 19 | Defendants Sacramento County Department of Child, Family and Adult Services and Brenda 20 | Bryant move to dismiss the claims against them. For the reasons below, the court grants the 21 | motion. 22 | I. BACKGROUND 23 Plaintiff Cynthia Martin (Martin) and nonparty Jeffrey Martin are the parents of minor 24 | plaintiffs: A.H., E.H., and C.G. Compl. [§ 4, 24, 31, ECF No. 1. In February 2019, A.H. fell at 25 | school and staff members inspected him for injury. /d. J] 23, 77(d). As part of the inspection the 26 | staff had A.H. strip naked without the consent and presence of Martin. /d. § 23. The inspection 27 | uncovered a burn on A.H.’s leg, which the staff believed Martin caused based on A.H.’s 28 | ///// 1 description of how the burn occurred. Id. at 23–24. A mandated reporter informed Child 2 Protective Services (CPS). Id. ¶ 23. 3 As a result, Martin was listed on the Child Abuse Central Index (CACI), id. ¶ 36, and 4 Brenda Bryant, a social worker with the Sacramento County Department of Child, Family and 5 Adult Services (DCFAS) went to the plaintiffs’ home to investigate, id. ¶¶ 6, 31. On her first visit 6 after this incident, Bryant told Jeffrey Martin he should seek full custody of the children but 7 following that meeting he moved to another state. Id. ¶ 31. When Bryant returned to the 8 plaintiffs’ home, she had a protective custody warrant for the minor plaintiffs. Id. ¶¶ 33–34. 9 Bryant removed A.H. from the home and left instructions for E.H., and C.G. to be dropped off at 10 the Children’s Receiving Home. Id. Eventually Martin regained custody of her children and the 11 court dismissed the case against her, but Martin’s name remains on the CACI list. Id. ¶ 38. 12 Plaintiffs maintain there was no reason for defendants to remove the children because any reports 13 of abuse were false. Id. ¶ 35. 14 Plaintiffs bring this action against DCFAS by and through CPS, Elk Grove Unified School 15 District, Bryant, Maas, and Does 1–25.1 See generally Compl. The plaintiffs sue the individual 16 defendants in their individual and official capacities. Id. ¶¶ 6 & 9. Plaintiffs bring five claims. 17 Under 42 U.S.C. § 1983 the plaintiffs allege: 1) unreasonable search and seizure in violation of 18 the Fourth Amendment against all defendants; 2) retaliation in violation of the First Amendment 19 against all defendants; 3) procedural and substantive due process violations under the Fourteenth 20 Amendment against Bryant and Maas and Does 1–25; and, 4) Monell liability against DCFAS, 21 CPS, and Elk Grove Unified School District. Under state law the plaintiffs allege intentional 22 infliction of emotional distress against all defendants. 23 ///// 1 The complaint identifies Does 1–25 as CPS and DCFAS employees, Compl. ¶¶ 7 & 12. If a defendant’s identity is unknown when the complaint is filed, plaintiffs have an opportunity through discovery to identify them. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). But the court will dismiss such unnamed defendants if discovery clearly would not uncover their identities or if the complaint would clearly be dismissed on other grounds. Id. at 642. The federal rules also provide for dismissing unnamed defendants that, absent good cause, are not served within 90 days of the complaint. Fed. R. Civ. P. 4(m). 1 Previously, Elk Grove Unified School District and Susanna Maas moved to dismiss, Mot. 2 ECF No. 7; Mem., ECF No. 7-1. The court granted the motion and dismissed Elk Grove Unified 3 School District and Maas over the plaintiffs’ opposition. Prev. Order (Sept. 20, 2021), ECF No. 4 20; Opp’n, ECF No. 9. 5 The remaining defendants now move to dismiss. Mot. to Dismiss, ECF No. 30. The 6 motion is fully briefed and submitted without oral argument. Opp’n, ECF No. 33; Reply, ECF 7 No. 34; Min Order, ECF No. 35. 8 II. LEGAL STANDARD 9 A party may move to dismiss for “failure to state a claim upon which relief can be 10 granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint lacks a 11 “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. 12 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court 13 assumes all factual allegations are true and construes “them in the light most favorable to the 14 nonmoving party.” Steinle v. City & Cnty. of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 15 2019). If the complaint’s allegations do not “plausibly give rise to an entitlement to relief,” the 16 motion must be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 17 A complaint need contain only a “short and plain statement of the claim showing that the 18 pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,” Bell Atl. 19 Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned 20 accusations; “sufficient factual matter” must make the claim at least plausible. Iqbal, 556 U.S. 21 at 678. In the same vein, conclusory or formulaic recitations of elements do not alone suffice. Id. 22 (quoting Twombly, 550 U.S. at 555). This evaluation of plausibility is a context-specific task 23 drawing on “judicial experience and common sense.” Id. at 679. 24 III. ANALYSIS 25 A. Official Capacity 26 The plaintiffs sue Bryant in both her official and individual capacity. Compl. ¶ 6. The 27 defendants move to dismiss the claims against Bryant in her official capacity as redundant of the 28 suit against DCFAS. Mot. at 4. Plaintiffs oppose, relying on case law addressing supervisory 1 liability and qualified immunity. Opp’n at 5. However, neither body of case law addresses the 2 issue here. Because “[a]n official capacity suit against a municipal officer is equivalent to a suit 3 against the entity. . . . the court may dismiss the officer as a redundant defendant” when the 4 officer is sued in her official capacity. Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cnty. 5 Sheriff Dep’t, 533 F.3d 780, 799 (9th Cir. 2008) (citations omitted). Thus, to the extent Bryant is 6 sued in her official capacity, the claims are redundant, and the court dismisses them without leave 7 to amend. However, plaintiffs may still be able to allege claims against Bryant in her individual 8 or personal capacity to the extent consistent with the discussion below. 9 B. Fourth Amendment 10 Next, the defendants move to dismiss the plaintiffs’ Fourth Amendment claim for 11 unreasonable search and seizure. Mot. at 4. 12 Regarding Martin, defendants argue she may not allege a Fourth Amendment violation 13 because she was not subject to search or seizure. Id. In response, the plaintiffs cite Safford 14 Unified Sch. Dist. No. 1 v. Redding (Safford), 557 U.S. 364 (2009), a case in which a “mother 15 sued a school alleging that the strip search the school subjected her daughter to was in violation of 16 the [Fourth] Amendment . . . .” Opp’n at 6. While it was the mother who filed the suit, the 17 relevant claim was an alleged violation of the minor daughter’s Fourth Amendment rights. 18 Safford, 557 U.S. at 369. The court does not read Safford as allowing a mother to assert her own 19 Fourth Amendment claim based on the defendant’s search of her child. To the extent the mother 20 was involved in asserting her daughter’s claim, it was likely in her capacity as guardian ad litem, 21 a role Martin is not filling here. See Prev. Order at 4. There is no basis for finding Martin can 22 assert her children’s rights vicariously given the personal nature of Fourth Amendment rights. 23 See Rakas v. Illinois, 439 U.S. 128, 133–34 (1978) (citation omitted). As an unreasonable search 24 or seizure is an essential element of a § 1983 claim alleging a violation of the Fourth Amendment 25 right to be free from search, see Karam v. City of Burbank, 352 F.3d 1188, 1193 (9th Cir. 2003), 26 Martin’s Fourth Amendment claim is dismissed with leave to amend, if possible, within the 27 confines of Rule 11. See Fed. R. Civ. P. 11(b); Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma 28 Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013) (“Courts may decline to grant leave to amend only if 1 there is strong evidence of ‘undue delay, bad faith or dilatory motive on the part of the movant, 2 repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the 3 opposing party by virtue of allowance of the amendment, [or] futility of amendment, etc.’” 4 (citation omitted)). 5 Regarding the minor plaintiffs, defendants argue that although the minor plaintiffs were 6 taken into protective custody, the seizure was pursuant to a valid warrant. Mot. at 5. “[T]he 7 Fourth Amendment safeguards children’s ‘right . . . to be secure in their persons . . . against 8 unreasonable . . . seizures’ without a warrant.” Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 789 9 (9th Cir. 2016) (quoting U.S. Const. amend. IV). It “protects a child’s right to be free from 10 unreasonable seizure by a social worker.” Dees v. Cnty. of San Diego, 960 F.3d 1145, 1154 (9th 11 Cir. 2020) (citation omitted), cert. denied sub nom., 141 S. Ct. 1501 (2021). “Under the Fourth 12 Amendment, government officials are ordinarily required to obtain prior judicial authorization 13 before removing a child from the custody of her parent.” Kirkpatrick, 843 F.3d at 790. A 14 warrantless seizure is only permissible if done based on a reasonable belief “the child is in 15 imminent danger of serious bodily injury and that the scope of the intrusion is reasonably 16 necessary to avert that specific injury.” Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000). 17 Here, as the complaint itself alleges, Bryant obtained a warrant before taking custody of 18 the children. Compl. ¶ 33. Warrants––and the affidavits supporting them––are entitled to “a 19 presumption of validity.” Franks v. Delaware, 438 U.S. 154, 171 (1978) (discussing search 20 warrants). A warrant may be invalidated if the defendant engaged in judicial deception to obtain 21 it. See Keates v. Koile, 883 F.3d 1228, 1240 (9th Cir. 2018). A judicial deception claim requires 22 a showing that “(1) the defendant official deliberately fabricated evidence and (2) the deliberate 23 fabrication caused the plaintiff’s deprivation of liberty.” Id. The plaintiffs allege the defendants’ 24 conduct lacked “any sufficient factual or legal basis.” Compl. ¶ 46. But the complaint does not 25 include factual allegations about the warrant’s validity or “whether [Bryant] obtained that warrant 26 by either making false statements or withholding material information.” Brown v. Alexander, No. 27 13-1451, 2016 WL 829071, at *5 (N.D. Cal. Mar. 3, 2016). The court dismisses the Fourth 28 Amendment claim as asserted by the minor plaintiffs with leave to amend. 1 C. First Amendment 2 Next, the defendants move to dismiss the plaintiffs’ First Amendment retaliation claim. 3 Mot. at 5. A First Amendment retaliation claim requires plaintiff to show: (1) “the plaintiff was 4 engaged in constitutionally protected activity”; (2) “the defendant’s actions caused the plaintiff to 5 suffer an injury that would chill a person of ordinary firmness from continuing to engage in that 6 activity”; and (3) “the defendant’s adverse action was substantially motivated as a response to the 7 plaintiff's exercise of constitutionally protected conduct.” Corales v. Bennett, 567 F.3d 554, 563 8 (9th Cir. 2009) (citation omitted). The plaintiffs are correct that temporal proximity between a 9 protected activity and the alleged retaliatory action can support such a claim. Opp’n at 8; Bello- 10 Reyes v. Gaynor, 985 F.3d 696, 702 (9th Cir. 2021). However, the issue at bar is whether the 11 complaint features an allegation of protected activity. The complaint contains factual allegations 12 to support a retaliation claim against the now dismissed defendant Elk Grove Unified School 13 District, as Martin filed a complaint against the school district before the actions giving rise to 14 this case took place. Compl. ¶¶ 39–40, 50–51. However, with regards to Bryant, the complaint 15 only claims that “Bryant removed the children . . . in retaliation” after Martin “questioned 16 Bryant’s authority and bases for removal of her children.” Id. ¶ 53. 17 “[T]he law is settled that as a general matter the First Amendment prohibits government 18 officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for 19 speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). At present, the court cannot 20 ascertain how Martin “questioned” Bryant, whether Martin’s questioning amounted to criticism, 21 and if Martin was otherwise engaged in speech protected by the First Amendment. The 22 complaint contains “no allegations that [Martin’s] questioning was published to anyone,” Mot. 23 at 6, in contrast to Capp v. County of San Diego, 940 F.3d 1051 (9th Cir. 2019). In Capp, the 24 father of two minor children alleged a plausible First Amendment retaliation claim against the 25 County’s Health and Human Services Agency, which investigated him for abusing and neglecting 26 his children after he sent a letter criticizing the Agency employees for interviewing the children 27 without his consent, in which he also threatened legal action. Id. at 1051, 1058. Furthermore, 28 this claim appears to be asserted by all the plaintiffs, but there is no hint that the minors engaged 1 in any First Amendment conduct at all. The court dismisses the First Amendment claim with 2 leave to amend. 3 D. Fourteenth Amendment 4 The defendants also move to dismiss the Fourteenth Amendment claim asserted by the 5 plaintiffs. Mot at 6. The plaintiffs assert violations of both “procedural and substantive due 6 process.” Compl. ¶ 56. 7 Starting with procedural due process, to state a claim plaintiffs must plead “(1) a 8 protectible liberty or property interest . . . and (2) a denial of adequate procedural protections.” 9 Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005). “[P]arents ‘have a well- 10 elaborated constitutional right to live’ with their children that ‘is an essential liberty interest 11 protected by the Fourteenth Amendment’s guarantee that parents and children will not be 12 separated by the state without due process of law except in an emergency.’” Kirkpatrick, 13 843 F.3d at 789 (citations omitted) (quoting Wallis, 202 F.3d at 1136). The plaintiffs allege they 14 did not receive “fundamentally fair, orderly, and just judicial proceeding[s].” Compl. ¶ 56. 15 However, this conclusory statement does not demonstrate exactly what procedural protections the 16 plaintiffs were entitled to and denied. Additionally, the plaintiffs allude to Bryant’s making false 17 statements throughout her investigation, but it is unclear whether she made statements that 18 amount to judicial deception, which could potentially provide a basis for a procedural due process 19 claim. See Keates, 883 F.3d at 1241. The plaintiffs’ procedural due process claim is dismissed 20 with leave to amend if possible. 21 Turning to substantive due process, to the extent this claim is asserted by the minor 22 plaintiffs the Ninth Circuit has held that the claims of children taken into custody are properly 23 evaluated under the Fourth Amendment. Id. at 1236 (observing courts evaluate such claims 24 “under the Fourth Amendment right to be free from unreasonable seizures rather than the 25 Fourteenth Amendment right to familial association”). Any claim of substantive due process by 26 the minor plaintiffs based on their right to familial association is dismissed without leave to 27 amend. See Sonoma Cnty., 708 F.3d at 1117 (“Courts may decline to grant leave to amend [ ] if 28 there is strong evidence of ‘. . . futility of amendment, etc.’”). 1 As far as Martin is concerned, “[i]t is well established that a parent has a fundamental 2 liberty interest in the companionship and society of his or her child and that the state’s 3 interference with that liberty interest without due process of law is remediable under 42 U.S.C. 4 § 1983.” Crowe v. Cnty. of San Diego, 608 F.3d 406, 441 (9th Cir. 2010) (citations and 5 alterations omitted). “To amount to a violation of substantive due process, however, the harmful 6 conduct must ‘shock the conscience’ or ‘offend the community’s sense of fair play and 7 decency.’” Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1079 (9th Cir. 2011) (alterations 8 omitted) (quoting Rochin v. California, 342 U.S. 165, 172–73 (1952)). The parties agree “the 9 shock the conscience” standard applies here. Mot. at 8; Opp’n at 8. Whether a defendant’s 10 conduct shocks the conscience turns on the facts of the case. See Moreland v. Las Vegas Metro. 11 Police Dep’t, 159 F.3d 365, 372 (9th Cir. 1998). 12 Actions that “shock the conscience” are “arbitrary,” Collins v. Harker Heights, 503 U.S. 13 115, 128 (1992), “egregious,” “deliberate,” “unjustifiable by any government interest,” Cnty. of 14 Sacramento v. Lewis, 523 U.S. 833, 846–50 (1998), “brutal,” “offensive,” Breithaupt v. Abram, 15 352 U.S. 432, 435 (1957), deny rights “implicit in the concept of ordered liberty,” and violate the 16 “decencies of civilized conduct,” Rochin, 342 U.S. at 169, 173. “Conduct which was not 17 intentional, but rather was deliberately indifferent, may nevertheless rise to the conscience- 18 shocking level in some circumstances.” Cotta v. Cnty. of Kings, 79 F. Supp. 3d 1148, 1177 (E.D. 19 Cal. 2015), aff’d in part, rev’d in part, 686 F. App’x 467 (9th Cir. 2017) (unpublished). 20 Negligent conduct does not shock the conscience. Woodrum v. Woodward Cnty., 866 F.2d 1121, 21 1126 (9th Cir. 1989). 22 Here, the plaintiffs’ current allegations regarding defendants’ actions do not identify 23 conduct so horrific as to shock the conscience. See Kulya v. City & Cnty. of San Francisco, No. 24 06-6539, 2008 WL 4415116, at *7 (N.D. Cal. Sept. 26, 2008) (granting defendants summary 25 judgment where defendant social worker’s conduct did not shock the conscience when “the 26 agency determined that a further investigation was warranted and, having placed the child in the 27 mother’s care, erred on the side of caution in not returning the child to the previous custody 28 schedule which would have required placing [the minor] back in the care of his father, against 1 whom an investigation was pending”); cf. Kelson v. City of Springfield, 767 F.2d 651, 652–53 2 (9th Cir. 1985) (finding behavior shocks conscience where defendants left boy alone in school 3 bathroom with gun after he attempted to rob his teacher of spare change and then showed vice 4 principal suicide note); Cotta, 79 F.Supp.3d at 1177–79 (collecting cases). Viewed in light of the 5 applicable case law, the factual allegations do not show Bryant’s conduct rose above mere 6 negligence. The complaint also does not plead the defendants’ actions otherwise amounted to an 7 “unwarranted interference” with plaintiffs’ Fourteenth Amendment right to familial association. 8 Cf. Crowe, 593 F.3d at 876. The court dismisses Martin’s substantive due process claim, but with 9 leave to amend. 10 E. Monell Liability 11 Next, the defendants argue the plaintiffs’ claim for Monell liability must be dismissed. 12 Mot. at 10. Municipal governments are only liable for “their own illegal acts” under § 1983 and 13 Monell v. Department of Social Services, 436 U.S. 658 (1978). Pembaur v. Cincinnati, 475 U.S. 14 469, 479 (1986) (emphasis omitted). Ultimately, to establish municipal liability under Monell, a 15 plaintiff must prove: “(1) that [the plaintiff] possessed a constitutional right of which [s]he was 16 deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate 17 indifference to the plaintiff’s constitutional right; and, (4) that the policy is the moving force 18 behind the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th 19 Cir, 2011) (citation omitted). 20 Even if the plaintiffs adequately alleged an underlying constitutional violation, the Monell 21 claim could not survive this motion to dismiss. There are four ways a plaintiff can show a 22 municipal policy exists to establish Monell liability. The plaintiff can show: (1) “an official 23 policy;” (2) ratification by a “final policymaker;” (3) “a failure to train, supervise, or discipline;” 24 or (4) “a pervasive custom or practice”.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 25 602–03 (9th Cir. 2019). The plaintiffs appear to rely only on the fourth method. See Opp’n at 9. 26 In stating their Monell claim, plaintiffs describe at a high level of generality “policies, customs, 27 and practices” they claim caused their injuries. Compl. ¶¶ 64–65. For example, the plaintiffs 28 allege without more the DCFAS has a policy of “keeping investigations open despite a lack of 1 probable cause.” Id. ¶ 65(b). “Liability for improper custom may not be predicated on isolated or 2 sporadic incidents; it must be founded upon practices of sufficient duration, frequency and 3 consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. 4 Gates, 99 F.3d 911, 918 (9th Cir. 1996). In simply listing vaguely characterized policies, the 5 plaintiffs neglect to allege any specific policies or incidents, other than those that occurred in this 6 case, to demonstrate a widespread custom. The court dismisses the Monell claim with leave to 7 amend. 8 F. Intentional Infliction of Emotional Distress 9 Lastly, the defendants seek to dismiss the claim for intentional infliction of emotional 10 distress (IIED). Mot. at 9. An IIED under California law requires: (1) extreme and outrageous 11 conduct by the defendant; (2) with the intention of causing emotional distress or reckless 12 disregard of the probability of causing emotional distress; (3) plaintiff’s suffering of severe 13 emotional distress; and (4) actual and proximate causation of plaintiff’s emotional distress by 14 defendant’s conduct. See Christensen v. Superior Court, 54 Cal.3d 868, 903 (1991). Sufficiently 15 outrageous conduct rises to a level exceeding the bounds usually tolerated in civilized society. 16 Simo v. Union of Needletrades, Indus. & Textile Employees, Sw. Dist. Council, 322 F.3d 602, 622 17 (9th Cir. 2003). 18 Here, the plaintiffs allege that “Bryant engaged in an inappropriate and leading interview 19 of [the] [m]inor [p]laintiffs . . . .” Compl. ¶ 77(a). Plaintiffs also allege Bryant “made false 20 statements to support allegations of child abuse . . .”, said she would not remove the younger 21 minors if Jeffery Martin got sole custody of them, and “maintained the juvenile dependency case 22 with unfounded allegations.” Id. ¶¶ 77(b)–(c). In opposing the motion to dismiss this claim, the 23 plaintiffs do not cite any case law and the court has found none supporting the position that these 24 allegations can support a IIED claim. The absence of any detailed description of Bryant’s 25 interviews with the children prevents the court from finding there is a plausible allegation that her 26 conduct was extreme or outrageous. 27 The misrepresentations of a social worker may in some cases support an IIED action. 28 While the facts do not perfectly mirror the case before this court, one example is D.C. by & 1 through Cabelka v. County. of San Diego, 445 F. Supp. 3d 869 (S.D. Cal. 2020). In that case, 2 Cabelka accepted custody of foster child based on the false representations of county social 3 workers that the child had no psychological or behavioral issues. Id. at 878. But the defendants 4 knew this representation was false as they were aware this child was “difficult [ ] to place in part 5 because of his medical issues and in part because of his behavioral and psychological problems 6 which included violent outbursts and sexualized behaviors.” Id (quoting Compl.). Cabelka 7 ultimately made several reports to defendants that the child had “viewed child pornography” and 8 sexually assaulted three other children in the home, inflicting serious trauma. Id. at 879. The 9 court found Cabelka and the minor plaintiffs plausibly alleged an IIED claim against the 10 defendants because county social workers misrepresented the child’s history, refused to remove 11 him after the assaults, and told Cabelka not to report the assaults to the police. Id. at 900–01. In 12 the instant case, plaintiffs allege the social worker, Bryant, inflicted the trauma. At first glance, 13 this distinction would seem to make plaintiffs’ IIED claim stronger than that in Cabelka. 14 However, the degree and nature of the harm inflicted during the interview and removal process is 15 not as severe as that caused by defendants in Cabelka. In particular, the plaintiffs do not include 16 any meaningful allegations about what emotional distress the children suffered or Bryant’s intent. 17 At this time the court finds the factual allegations are insufficient to show the defendants’ conduct 18 rose to the level of extreme or outrageous, or caused the plaintiffs’ severe emotional distress. The 19 court dismisses this claim with leave to amend. 20 IV. CONCLUSION 21 The court grants the defendants’ motion to dismiss (ECF No. 30). Plaintiffs shall file 22 any amended complaint within 21 days of this order. 23 IT IS SO ORDERED. 24 DATED: March 22, 2022.