O'Neel v. City of Folsom ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 FAUN O’NEEL, individually and as No. 2:21-cv-02403 WBS DB Guardian Ad Litem for her 13 children B.T., A.O., D.O., and A.T., 14 ORDER RE: DEFENDANTS’ MOTION Plaintiffs, FOR JUDGMENT ON THE PLEADINGS 15 v. 16 CITY OF FOLSOM, a public entity; 17 SPENSER HEICHLINGER, an individual; MELANIE CATANIO, an 18 individual; LOU WRIGHT, an individual; [FNU] AUSTIN, an 19 individual; [FNU] HUSAR, an individual, DOE CITY OF FOLSOM 20 DEFENDANTS, individuals; COUNTY OF SACRAMENTO, a public entity; 21 DOE DCFAS DEFENDANTS, individuals; and DOES 1 through 22 10, inclusive, 23 Defendants. 24 25 ----oo0oo---- 26 Plaintiff Faun O’Neel, individually and on behalf of 27 her children B.T., A.O., D.O., and A.T. (collectively, 28 “plaintiffs”), brought this § 1983 action against the City of 1 Folsom (the “City”); various Folsom police officers; the County 2 of Sacramento; and various Sacramento Department of Child, Family 3 and Adult Services officials challenging defendants’ alleged 4 unlawful entry of O’Neel’s home and their alleged unlawful 5 seizure and removal of B.T., A.O., D.O., and A.T. (See First 6 Amended Complaint (“FAC”) (Docket No. 18).) Specifically, 7 plaintiffs assert claims for (1) warrantless seizure of children 8 under the Fourth Amendment and denial of due process under the 9 Fourteenth Amendment, (2) unlawful search under the Fourth 10 Amendment; (3) municipal liability; (4) false imprisonment; and 11 (5) intentional infliction of emotional distress. (Id. at ¶¶ 56- 12 110.) Defendants City of Folsom, Spenser Heichlinger, Melanie 13 Catanio, Lou Wright, [FNU] Austin, and [FNU] Husar now move for 14 judgment on the pleadings. (Mot. (Docket No. 23-1).)1 15 I. Factual and Procedural Background2 16 Plaintiff O’Neel is a resident of the County of 17 Sacramento and is married, with four minor children: B.T., A.T., 18 A.O., and D.O. (FAC at ¶¶ 1, 24, 26.) On December 20, 2020, 19 before the family left home to go to dinner, O’Neel asked D.O. to 20 put away some cookies so that the dog would not get to them while 21 the family was out. (Id. at ¶ 31.) When the family returned, 22 O’Neel saw that the cookies had not been put away and that the 23 24 1 Because only the City of Folsom and the Folsom police officer defendants are party to the instant motion, in this Order 25 the court uses “defendants” to refer only to the Folsom defendants, notwithstanding the fact that they are not the only 26 defendants in this action. 27 2 All facts described herein are as alleged in the First 28 Amended Complaint except as otherwise noted. 1 dog had eaten most of them and made a mess in the kitchen. (Id. 2 at ¶ 32.) O’Neel called D.O. over to clean up the mess, and 3 after he had done so she sent him to his room as a form of 4 discipline. (Id. at ¶ 33.) 5 At around 9:00 p.m., there was loud banging at the 6 front door, which O’Neel’s husband opened to find defendant 7 officers Heichlinger, Austin, and Husar standing at the entryway. 8 (Id. at ¶ 34.) They informed him that they were there to carry 9 out a welfare check on the children because B.T. had called 911 10 to ask whether grabbing a child by the neck was child abuse. 11 (Id. at ¶ 35.) Evidently, after being made to clean the kitchen, 12 D.O. had gone to B.T.’s room and falsely stated that O’Neel had 13 picked D.O. up by the neck and carried him to the kitchen. (Id.) 14 The officers then entered the home without O’Neel’s or 15 her husband’s consent and without a warrant. (Id. at ¶ 37.) 16 They ordered O’Neel and her husband to wake the children up so 17 they could be interviewed and proceeded to interview each child 18 outside the presence of O’Neel and her husband. (Id.) The 19 officers then photographed D.O., who had no marks or bruises on 20 him. (Id.) The officers then left without interviewing anyone 21 else who was at the home or providing any paperwork, contact 22 information, or any indication of what might happen next. (Id. 23 at ¶¶ 38-39.) 24 Plaintiffs allege that the following day, one or more 25 City officials contacted Sacramento Department of Child, Family 26 and Adult Services to file a report of suspected child abuse. 27 (Id. at ¶ 40.) Plaintiffs further allege that multiple City and 28 County defendants agreed to seize the four children from O’Neel’s 1 care and custody without seeking court authorization, despite the 2 lack of any imminent risk of serious bodily injury to any of the 3 children. (Id. at ¶ 41.) 4 Between the December 20, 2022 welfare check and 5 December 22, 2022, there were no further incidents involving the 6 children. (Id. at ¶ 42.) Plaintiffs also allege that no further 7 investigation occurred during this time. (Id.) Nevertheless, on 8 December 22, defendant officers Catanio, Wright, and Does 1 9 through 4 came to plaintiffs’ home and informed O’Neel that they 10 were there to seize all of the children and remove them from her 11 custody. (Id.) None of the defendants presented a warrant or 12 court order authorizing seizure of the children. (Id. at ¶ 43.) 13 These officers entered the home without O’Neel’s or her husband’s 14 consent and ordered O’Neel and her husband to bring the children 15 to the officers so the children could be interviewed again. (Id. 16 at ¶ 44.) Catanio interviewed the children without parental 17 consent and outside of O’Neel’s presence. (Id. at ¶ 47.) 18 Plaintiffs allege that Catanio did not gain any new 19 information from the December 22 interviews of the children. 20 (Id. at ¶ 48.) Notwithstanding the lack of any indication any 21 child was at imminent risk of serious harm, after the interviews 22 the defendant officers removed all four children from O’Neel’s 23 home, drove the children to the Folsom Police Department, and 24 continued to interrogate the children. (Id. at ¶¶ 48-49.) 25 O’Neel’s mother sought to have the children placed in her care, 26 but defendants refused and instead decided to place the children 27 in non-relative foster care. (Id. at ¶¶ 50-52.) 28 Plaintiffs served a government claim against the City 1 on June 16, 2021, which the City rejected on June 24, 2021. (Id. 2 at ¶ 54.) Plaintiffs brought this action in this court on 3 December 24, 2021. (Docket No. 1.) 4 II. Legal Standard 5 “After the pleadings are closed -- but early enough not 6 to delay trial -- a party may move for judgment on the 7 pleadings.” Fed. R. Civ. P. 12(c). A Rule 12(c) motion may ask 8 for judgment on the basis of a plaintiff’s “[f]ailure to state a 9 claim upon which relief can be granted.” Fed. R. Civ. P. 10 12(h)(2)(B). “A Rule 12(c) motion for judgment on the pleadings 11 and a Rule 12(b)(6) motion to dismiss are virtually 12 interchangeable.”3 Sprint Telephony PCS, L.P. v. Cnty. of San 13 Diego, 311 F. Supp. 2d 898, 902 (S.D. Cal. 2004). “Because the 14 two motions are analyzed under the same standard, a court 15 considering a motion for judgment on the pleadings may give leave 16 to amend and ‘may dismiss causes of action rather than grant 17 judgment.’” Id. at 903 (citing William W. Schwarzer, et al., 18 Federal Civil Procedure Before Trial § 9:341 (2003); Moran v. 19 Peralta Cmty. Coll. Dist., 825 F. Supp. 891, 893 (N.D. Cal. 20 1993)). 21 As with a motion to dismiss made under Rule 12(b)(6), 22 23 3 “The motions differ in only two respects: ‘(1) the timing (a motion for judgment on the pleadings is usually brought 24 after an answer has been filed, whereas a motion to dismiss is typically brought before an answer is filed), and (2) the party 25 bringing the motion (a motion to dismiss may be brought only by the party against whom the claim for relief is made, usually the 26 defendant, whereas a motion for judgment on the pleadings may be 27 brought by any party).’” Lewis v. Russell, 838 F. Supp. 2d 1063, 1067 n.2 (E.D. Cal. 2012) (Shubb, J.) (quoting Sprint, 311 F. 28 Supp. 2d at 902-03). 1 the inquiry before the court is whether, accepting the 2 allegations in the complaint as true and drawing all reasonable 3 inferences in the plaintiff’s favor, the complaint has alleged 4 “sufficient facts . . . to support a cognizable legal theory,” 5 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001), and thereby 6 stated “a claim to relief that is plausible on its face,” Bell 7 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In deciding the 8 motion, the court must accept all factual allegations in the 9 complaint as true and construe them in the light most favorable 10 to the non-moving party. Fleming v. Pickard, 581 F.3d 922, 925 11 (9th Cir. 2009) (citing Turner v. Cook, 362 F.3d 1219, 1225 (9th 12 Cir. 2004)). Courts are not, however, “required to accept as 13 true allegations that are merely conclusory, unwarranted 14 deductions of fact, or unreasonable inferences.” Sprewell v. 15 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 16 III. Discussion 17 Defendants move for judgment on several of plaintiffs’ 18 claims, on multiple grounds. The court will address each in 19 turn. Because the court has discretion to consider a motion for 20 judgment on the pleadings as it would a motion to dismiss, and 21 because no evidence is currently before the court, the court 22 declines to grant judgment at this stage and will instead 23 consider whether the challenged claims merit dismissal. See 24 Sprint, 311 F. Supp. 2d at 903. 25 Certain claims brought by plaintiffs primarily concern 26 defendants’ alleged entry into plaintiffs’ home on December 20, 27 2020, whereas others primarily concern defendants’ alleged 28 conduct on December 22, 2020, including removing B.T., A.T., 1 A.O., and D.O. from their home. The court will first address 2 defendants’ arguments for dismissal of the former category of 3 claims, followed by those for dismissal of the latter category.4 4 A. Claims Based on December 20 Entry 5 1. Qualified Immunity 6 In the First Amended Complaint, plaintiffs claim 7 defendants are liable for unlawful searches of their home, based 8 on defendants’ alleged warrantless entries on December 20 and 22, 9 2022. (See FAC at ¶¶ 70-76.) Defendants argue that defendants 10 Heichlinger, Austin, and Husar are entitled to qualified immunity 11 as to their alleged unlawful entry on December 20, 2022. (Mot. 12 at 8.)5 13 In § 1983 actions, qualified immunity “protects 14 government officials ‘from liability for civil damages insofar as 15 their conduct does not violate clearly established statutory or 16 constitutional rights of which a reasonable person would have 17 4 In their motion, defendants argued that (1) plaintiffs’ 18 claims for damages were barred pursuant to California Government Code § 945.3 and (2) the court should abstain from exercising 19 jurisdiction over the action under Younger v. Harris, 401 U.S. 37 (1971), and its progeny, due to a criminal prosecution that was 20 pending against plaintiff O’Neel in state court. (Mot. at 3-5; see Reply at 2-5 (Docket No. 25).) However, the parties have 21 since notified the court that the pending criminal charge has 22 been dropped, and defendants state that they withdraw these two arguments. (Docket Nos. 27-29.) Accordingly, the court will not 23 address them in this Order. Because defendants’ request for judicial notice (Docket 24 No. 23-2) appears to pertain exclusively to these arguments, that request is denied as unnecessary to the resolution of the instant 25 motion. 26 5 Defendants have not raised qualified immunity as to 27 plaintiffs’ other claims, challenging defendants’ alleged unlawful entry of plaintiffs’ home and removal of the children on 28 December 22, 2020. (See Mot. at 8-9.) 1 known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting 2 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine 3 whether an officer is entitled to qualified immunity, the court 4 considers (1) whether there has been a violation of a 5 constitutional right and (2) whether the defendants’ conduct 6 violated “clearly established” federal law. Sharp v. Cnty. of 7 Orange, 871 F.3d 901, 909 (9th Cir. 2017) (citation omitted). 8 The court has discretion to decide which prong to address first 9 and, if analysis of one proves dispositive, the court need not 10 analyze the other. See Pearson, 555 U.S. at 236. Here, the 11 court will exercise its discretion to analyze the second prong 12 first: whether defendants’ conduct violated a clearly established 13 constitutional right. 14 “A right is clearly established when it is 15 ‘sufficiently clear that every reasonable official would have 16 understood that what he is doing violates that right.’” Rivas- 17 Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (quoting Mullenix 18 v. Luna, 577 U.S. 7, 11 (2015)). When determining whether a 19 right is clearly established, the court may not “define clearly 20 established law at a high level of generality.” Kisela v. 21 Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting Ashcroft v. Al- 22 Kidd, 563 U.S. 731, 742 (2011)). Rather, “[t]his inquiry must be 23 undertaken in light of the specific context of the case.” Rivas- 24 Villegas, 142 S. Ct. at 8 (citation and internal quotation marks 25 omitted). The inquiry is ordinarily made by “compar[ing] the 26 factual circumstances faced by the defendant to the factual 27 circumstances of prior cases to determine whether the decisions 28 in the earlier cases would have made clear to the defendant that 1 his conduct violated the law.” Sandoval v. Cnty. of San Diego, 2 985 F.3d 657, 674 (9th Cir. 2021). 3 Defendants argue that, on December 20, 2022, it was not 4 clearly established that officers’ warrantless entry into a home 5 in response to a 911 call reporting physical abuse of a child 6 therein violates the Fourth Amendment. (Mot. at 8-9.)6 They 7 also argue that the Ninth Circuit has recognized that such a 8 scenario may fall within the exigency exception to the Fourth 9 Amendment’s warrant requirement, showing that the 10 unconstitutionality of their alleged conduct was not clearly 11 established. (Id. at 9 (citing Jeffries v. Las Vegas Metro. 12 Police Dep’t, 713 F. App’x 549 (9th Cir. 2017); United States v. 13 Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005)).) 14 Plaintiffs argue that because neither of the Ninth 15 Circuit decisions defendants cite addressed qualified immunity, 16 they are irrelevant to whether the law at issue was clearly 17 established. (See Opp. at 16-17.) This misunderstands the 18 19 6 The First Amended Complaint alleges that these defendants “purposefully failed to seek and/or obtain a warrant, 20 knowing that insufficient grounds or evidence existed to support such application.” (FAC at ¶ 74.) However, it also alleges that 21 their entry into plaintiffs’ home was in response to a 911 call 22 by B.T. “ask[ing] whether grabbing a child by the neck was child abuse.” (Id. at ¶ 35.) 23 At oral argument, counsel for plaintiff noted that the First Amended Complaint alleges the 911 call was framed as a 24 question, rather than as an explicit accusation of abuse. On this basis, he contended that the court cannot conclude, based on 25 that allegation, that defendants had reason to believe abuse actually occurred. Even viewing the allegations in the light 26 most favorable to plaintiffs, however, the court cannot agree. A 27 question as to the lawfulness of conduct as specific as was referenced here -- “grabbing a child by the neck” –- clearly 28 gives rise to an inference that such conduct occurred. 1 qualified immunity analysis, however, as the question is whether 2 existing precedent would have made clear to a reasonable officer 3 that their conduct was unconstitutional, not whether previous 4 cases had themselves proscribed or allowed such conduct on 5 qualified immunity grounds. See Pearson, 555 U.S. at 231; 6 Sandoval, 985 F.3d at 674. Likewise, although plaintiffs argue 7 in their opposition, and maintained at oral argument, that the 8 warrant requirement for entries of the home was clearly 9 established by the text of the Fourth Amendment and precedent 10 interpreting it, (see Opp. at 16), this frames the right at too 11 high a level of generality. See Kisela, 138 S. Ct. at 1152. 12 Rather, “the clearly established law must be ‘particularized’ to 13 the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 14 (2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). 15 When asked at oral argument for the case which would 16 most clearly establish the unlawfulness of defendants’ alleged 17 warrantless entry into plaintiffs’ home on December 20, 2020, 18 counsel for plaintiffs cited the court to Bonivert v. City of 19 Clarkston, 883 F.3d 865 (9th Cir. 2018), which plaintiffs also 20 cite in their opposition brief. (See Opp. at 16.) Bonivert, 21 however, involved circumstances meaningfully different from those 22 alleged here. There, officers broke the plaintiff’s window to 23 force their way into his home, without a warrant, after the 24 plaintiff had repeatedly and physically denied them access. 883 25 F.3d at 870-71, 875. By the time the officers arrived, the 26 victims of the alleged domestic disturbance “had safely departed 27 the home,” establishing that they were in no danger. See id. at 28 868. Here, although plaintiffs allege O’Neel’s husband 1 “protested” when defendants entered their home, they do not 2 allege defendants used force to gain entry. (See FAC at ¶¶ 34- 3 37.) More significantly, based on plaintiffs’ allegations that 4 defendants came because of a 911 call asking if “grabbing a child 5 by the neck was child abuse,” the First Amended Complaint gives 6 no indication that defendants were aware that any victims or 7 potential victims of domestic violence were no longer in the home 8 at the time they arrived. (See id.) 9 Moreover, Bonivert reaffirmed that the emergency 10 exception to the warrant requirement applies where “police 11 respon[ding] to reports of domestic violence” have “an 12 objectively reasonable basis for believing” that warrantless 13 entry is necessary “to render emergency assistance to an injured 14 occupant or to protect an occupant from imminent injury.” 883 15 F.3d at 876-77 (quoting Brigham City v. Stuart, 547 U.S. 398, 403 16 (2006)); see id. at 874 (“No question has been raised, or 17 reasonably could be, about the authority of the police to enter a 18 dwelling to protect a resident from domestic violence.”) (quoting 19 Georgia v. Randolph, 547 U.S. 103, 118 (2006)). It also noted 20 that the exigency exception may apply when officers respond to 21 reports of domestic violence and “the . . . victim is still in 22 the home.” Id. at 878 (quoting United States v. Martinez, 406 23 F.3d 1160, 1164 (9th Cir. 2005)). Thus, if anything, Bonivert 24 suggests that Heichlinger, Austin, and Husar’s conduct here, as 25 alleged in the First Amended Complaint, was in fact lawful. It 26 does not clearly establish the unconstitutionality of defendants’ 27 alleged conduct here. 28 Plaintiffs have thus not identified, nor is the court 1 aware of, any precedent that existed as of December 20, 2020 2 clearly establishing that a warrantless entry into the home in 3 response to a 911 call alleging physical abuse of a child 4 violates the Fourth Amendment. Accordingly, the court will grant 5 qualified immunity to defendants Heichlinger, Austin, and Husar 6 as to plaintiffs’ claim alleging unlawful entry on December 20, 7 2020. 8 B. Claims Based on December 22 Entry and Removal 9 1. Procedural Due Process Claim 10 Defendants also challenge plaintiffs’ procedural due 11 process claim, which challenges defendants’ alleged unlawful 12 removal of the children, contending that plaintiffs have failed 13 to identify a protected liberty interest of which they were 14 deprived, as is necessary to state such a claim. (Mot. at 6.) 15 However, in the First Amended Complaint, plaintiffs allege they 16 were unlawfully deprived of “[t]he right to familial 17 association,” (FAC at ¶¶ 57-58), and the Ninth Circuit has 18 recognized that this right “is a fundamental liberty interest,” 19 Keates v. Koile, 883 F.3d 1228, 1236 (9th Cir. 2018) (citations 20 omitted); see also Troxel v. Granville, 530 U.S. 57, 65 (2000) 21 (plurality opinion) (“[T]he interest of parents in the care, 22 custody, and control of their children [ ] is perhaps the oldest 23 of the fundamental liberty interests recognized by this Court.”); 24 Santosky v. Kramer, 455 U.S. 745, 753 (1983) (noting the “Court’s 25 historical recognition that freedom of personal choice in matters 26 of family life is a fundamental liberty interest protected by the 27 Fourteenth Amendment”). Accordingly, the court rejects this 28 asserted basis for dismissal of plaintiffs’ procedural due 1 process claim. 2 Defendants also argue, however, that the children 3 cannot maintain a procedural due process claim based on their 4 allegedly unlawful separation from O’Neel. (Mot. at 6.) They 5 point to the Ninth Circuit’s statement that federal courts 6 “evaluate the claims of children who are taken into state custody 7 under the Fourth Amendment right to be free from unreasonable 8 seizures rather than the Fourteenth Amendment right to familial 9 association.” Keates, 883 F.3d at 1236 (citation omitted). 10 Plaintiffs do not address this argument, even though in their 11 opposition they reiterate their intent to maintain “a procedural 12 due process claim for the warrantless seizure of the children 13 that arises under the Fourteenth Amendment and applies to all 14 Plaintiffs.” (Opp. at 15 n.2 (Docket No. 24).) 15 The Ninth Circuit has repeatedly made clear, however, 16 that although “parents ‘have a well-elaborated constitutional 17 right to live’ with their children that ‘is an essential liberty 18 interest protected by the Fourteenth Amendment[ ],’” children 19 must bring claims challenging the failure of “government 20 officials . . . to obtain prior judicial authorization before 21 removing a child from the custody of their parent” under the 22 Fourth Amendment. Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 23 789-90 (9th Cir. 2016) (en banc) (quoting Wallis v. Spencer, 202 24 F.3d 1126, 1136 (9th Cir. 1999)); see id. (noting complaint 25 alleged defendants deprived child of both “the right to be free 26 from unreasonable searches and seizures” and “the right to be 27 with her parents,” and analyzing both under the Fourth 28 Amendment). Because plaintiffs identify no contrary authority 1 establishing that B.T., A.O., D.O., and A.T. may maintain a 2 procedural due process claim separate and apart from their Fourth 3 Amendment claim, those plaintiffs’ procedural due process claims 4 will be dismissed. 5 C. Fourth Amendment Claim 6 Defendants next argue that plaintiffs’ first claim for 7 relief asserts a Fourth Amendment claim on behalf of O’Neel that 8 cannot be supported because plaintiffs have not alleged O’Neel 9 was personally subjected to any unlawful seizure. (Mot. at 7.) 10 As the First Amended Complaint indicates, however, and as 11 plaintiffs make clear in their opposition, the challenged 12 allegations do not include a Fourth Amendment claim on behalf of 13 O’Neel. (See FAC at ¶¶ 57-63 (alleging a Fourth Amendment 14 violation only as to the children); Opp. at 15 & n.2.) Because 15 the First Amended Complaint does not include the claim defendants 16 challenge, the court cannot dismiss it. 17 D. Seizure of Children 18 Plaintiffs’ first and fourth claims are asserted 19 against several defendants, including defendants Wright, 20 Heichlinger, Austin, and Husar. (FAC at 12, 20-21.) Defendants 21 argue these claims should be dismissed as against these four 22 defendants because, although in these claims plaintiffs allege 23 these defendants both violated plaintiffs’ procedural due process 24 rights and falsely imprisoned them in the course of removing 25 B.T., A.O., D.O., and A.T. from their home and from O’Neel, (see 26 id. at ¶¶ 61, 97), the First Amended Complaint does not actually 27 allege these defendants were present during or participated in 28 the removal of the children. (Mot. at 7.) 1 Plaintiffs do not address this argument in their 2 opposition, and defendants appear for the most part to be 3 correct. The factual allegations in the First Amended Complaint 4 state that defendants Heichlinger, Austin, and Husar entered 5 plaintiffs’ home to perform a welfare check on December 20, 2022, 6 and that defendants Catano, Wright, and Does 1 through 4 came on 7 December 22, 2022 and participated in the removal of the 8 children. (See FAC at ¶¶ 29-38, 42-49.) The First Amended 9 complaint does not allege that there was any overlap between the 10 officers present on December 20 and those present on December 22. 11 (See id.) Accordingly, plaintiffs fail to allege facts 12 indicating that defendants Heichlinger, Austin, and Husar 13 participated in the removal of B.T., A.O., D.O., and A.T. on 14 December 22. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 15 1989) (“Liability under section 1983 arises only upon a showing 16 of personal participation by the defendant.”); Sprewell, 266 F.3d 17 at 988. But as noted, the First Amended Complaint does allege 18 that defendant Wright was present on December 22 and participated 19 in the removal of the children. Accordingly, the court will 20 dismiss plaintiffs’ Count One and Four claims as to defendants 21 Heichlinger, Austin, and Husar, but not as to defendant Wright. 22 E. Municipal Liability Claim 23 Defendants also seek dismissal of plaintiffs’ claim for 24 municipal liability as against the City.7 (Mot. at 9.) To state 25 a § 1983 claim against a municipality, a plaintiff must allege 26 27 7 Plaintiffs also assert a municipal liability claim against defendant County of Sacramento, which is not a party to 28 the instant motion. 1 “(1) that he possessed a constitutional right of which he was 2 deprived; (2) that the municipality had a policy; (3) that this 3 policy ‘amounts to deliberate indifference’ to the plaintiff’s 4 constitutional right; and (4) that the policy is the ‘moving 5 force behind the constitutional violation.’” Oviatt ex rel. 6 Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting 7 City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)). The 8 existence of such a “policy” may be shown through a variety of 9 means, including by (1) “prov[ing] the existence of a widespread 10 practice that, although not authorized by written law or express 11 municipal policy, is so permanent and well settled as to 12 constitute a custom or usage with the force of law,” City of St. 13 Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion) 14 (citation and internal quotation marks omitted), and 15 (2) demonstrating that the municipality failed to adequately 16 train employees so as to avoid the constitutional violations that 17 occurred, see Harris, 489 U.S. at 388. 18 Plaintiffs argue the existence of an unlawful policy is 19 adequately pled because the First Amended Complaint alleges the 20 City had a “long standing practice and custom” of removing 21 children from their parents without performing a reasonable 22 investigation and without cause to believe the children were in 23 such imminent danger as to justify a failure to obtain a warrant 24 for seizure of the children. (FAC at ¶ 86.) They similarly 25 allege the City had a longstanding practice and custom of 26 removing all children from a home after determining that any 27 child there is at risk, without performing an individualized 28 investigation into whether the other children are also 1 sufficiently at risk to justify removal. (Id. at ¶ 88.) In 2 support of these alleged practices and customs, plaintiffs 3 identify seven cases brought in this court or in state court that 4 they contend involved the unlawful removal of children under 5 circumstances similar to those alleged here. (Id. at ¶ 90.) 6 Each of these cases, however, appears to involve claims 7 against the County of Sacramento, rather than against the City of 8 Folsom, (id.), a point that plaintiffs do not dispute (see Opp. 9 at 17-20) and that plaintiffs’ counsel conceded at oral argument. 10 Accordingly, these cases do not create a plausible inference that 11 the City maintains the alleged practices and customs plaintiffs 12 identify, because plaintiffs’ citation of them does not amount to 13 an allegation that the City has previously operated under the 14 alleged practices and customs, as would be necessary to make them 15 “long standing.” See Hyun Ju Park v. City & Cnty. of Honolulu, 16 952 F.3d 1136, 1142 (9th Cir. 2020) (to state a claim for 17 municipal liability based on custom or practice, plaintiff “must 18 ordinarily point to a pattern of prior, similar violations of 19 federally protected rights”); Perryman v. City of Pittsburg, 545 20 F. Supp. 3d 796, 800-01 (N.D. Cal. 2021) (considering prior 21 incidents in deciding whether municipal liability claim 22 adequately identified unlawful practice or custom); Hughey v. 23 Drummond, 2:14-cv-00037 TLN AC, 2017 WL 590265, at *6 (E.D. Cal. 24 Feb. 14, 2017) (same); Bagley v. City of Sunnyvale, 16-cv-02250 25 LHK, 2017 WL 344998, at *15 (N.D. Cal. Jan. 24, 2017) (dismissing 26 municipal liability claim because plaintiff failed to “allege any 27 facts that indicate that the [city’s] police force is regularly 28 taking actions involving excessive force or unlawful arrests” and 1 instead “only [pled] actions related to his own arrest and 2 prosecution”). 3 Plaintiffs also contend the First Amended Complaint 4 states a claim for municipal liability based on a failure-to- 5 train theory. (Opp. at 19.) It alleges: 6 Based on the duties charged to City of Folsom . . . related to the nature of work (child abuse 7 investigations) which is a usual and recurring situation with which [its] employees are engaged, the 8 failure to adequately train [its] employees evinced by the conduct of removing Plaintiff Faun O’[N]eel’s 9 children as factually alleged in this case . . . make[s] it reasonable to believe -- and plaintiffs 10 allege -- that the . . . [City is] deliberately indifferent to the constitutional rights of familial 11 association enjoyed by parents and children . . . and that [its] failure to provide adequate training of 12 employees such as the individually named Defendants herein was the moving force behind the removal of the 13 minor children in this suit and the constitutional violations related thereto . . . . 14 15 (FAC at ¶ 82.) More specifically, plaintiffs allege the City 16 fails to train officers as to “the full considerations that . . . 17 law enforcement personnel must evaluate and the standards that 18 must be met . . . for the removal or separation of a child from 19 his or her parents to be lawful under the U.S. Constitution . . . 20 and the circumstances that can make removal of a child both 21 ‘truly exigent’ and done without violating a famil[y’s] rights.” 22 (Id. at ¶ 83.) They further allege the City takes no measures 23 “to ‘audit’ the efficacy of the trainings [it] do[es] provide 24 employees,” such that the City renders itself incapable of 25 knowing “whether or not the employees are . . . actually 26 understanding or comprehending the gravamen” of any training the 27 City does provide. (See id. at ¶ 84.) 28 The court agrees that the First Amended Complaint 1 adequately states a claim for municipal liability based on a 2 failure to train. Based on plaintiffs’ allegations, at least at 3 the pleading stage, this appears to be one of those rare cases in 4 which, “in light of the duties assigned to specific officers or 5 employees[,] the need for more or different training is so 6 obvious, and the inadequacy so likely to result in the violation 7 of constitutional rights, that the policymakers of the city can 8 reasonably be said to have been deliberately indifferent to the 9 need.” Harris, 489 U.S. at 390. Specifically, the need for a 10 municipality to provide adequate training regarding the Fourth 11 Amendment requirement to obtain a warrant when removing children 12 from their home, and regarding the exceptions thereto, should be 13 obvious to any municipality that maintains a police department, 14 as officers may sometimes come to believe such removal is 15 permitted for the children’s protection. 16 Here, plaintiffs plausibly allege that defendants 17 Heichlinger, Austin, and Husar came to their home and interviewed 18 the children on December 20, 2022, and that defendants Catanio 19 and Wright -- officers of the same police department as 20 Heichlinger, Austin, and Husar -- returned two days later, with 21 no warrant, to remove all four children. (See FAC at ¶¶ 34-43.) 22 Although plaintiffs also allege that Catanio and Wright 23 interviewed the children later during their visit on December 22, 24 they allege that upon arrival, these officers informed O’Neel 25 that they had come to take the children. (Id. at ¶¶ 42-44, 47.) 26 Thus, viewing the allegations in the light most favorable to 27 plaintiffs, the December 22 interviews did not form the basis of 28 the decision to remove the children without a warrant. Rather, 1 the allegations indicate that Catanio and Wright came to 2 plaintiffs’ home on December 22 for the specific purpose of 3 seizing the children, based solely on what defendants had learned 4 on December 20, and without any subsequent contact with O’Neel or 5 the children. They allegedly did so without having obtained a 6 warrant during the intervening two-day period, even though such a 7 period would have been ample time to obtain one. 8 These allegations give rise to a plausible inference 9 that the City failed to adequately train its officers on the 10 requirement that they obtain a warrant prior to removing children 11 from their homes and on the limited applicability of exceptions 12 to that requirement, including that to constitute a valid 13 exception, any emergency or exigency must afford officers 14 insufficient time to obtain a warrant. See Kirkpatrick v. Cnty. 15 of Washoe, 843 F.3d 784, 792 (9th Cir. 2016) (en banc) (“[I]t 16 [i]s well-settled that a child c[an]not be removed without prior 17 judicial authorization absent evidence that the child [i]s in 18 imminent danger of serious bodily injury.”). Because “[C]ity 19 policymakers know to a moral certainty that their police officers 20 will be required” to address domestic violence, including by 21 separating abused children from abusive parents, and because the 22 City has vested its officers with the authority to effectuate 23 such separations, the need to adequately train officers “in the 24 constitutional limitations on [such conduct] can be said to be 25 ‘so obvious,’ that failure to do so” could give rise to municipal 26 liability if plaintiffs’ allegations are proven true. Harris, 27 489 U.S. at 390 n.10. 28 This conclusion finds strong support in the Ninth 1 Circuit’s decision in Kirkpatrick v. County of Washoe. There, in 2 reviewing a grant of summary judgment, the court concluded that 3 “evidence that [defendant officials] violated [the minor 4 plaintiff’s] Fourth Amendment rights” by removing him without a 5 warrant, “in conjunction with . . . testimony that the County had 6 no policy of obtaining warrants before removing children from 7 parental custody and that it was [officials]’ regular practice to 8 remove children regardless of the risk of imminent bodily 9 harm, raises more than a spectre of deliberate indifference by 10 [the] County.” 843 F.3d at 796. 11 Kirkpatrick was “therefore a case in which the 12 municipality’s ‘inadequacy [was] so likely to result in the 13 violation of constitutional rights’ that a jury could reasonably 14 find § 1983 liability without needing a pattern of violations to 15 find the County culpable.” Id. (quoting Harris, 489 U.S. at 16 390). “Given the work performed by [the defendant officials],” 17 the court reasoned, “the need for [the County] to train its 18 employees on the constitutional limitations of separating parents 19 and children [wa]s ‘so obvious’ that its failure to do so [wa]s 20 ‘properly characterized as deliberate indifference to the 21 constitutional rights’ of . . . County families.” Id. (quoting 22 Harris, 489 U.S. at 390 & n.10) (alterations adopted). 23 According to the First Amended Complaint, Catanio and 24 Wright came to plaintiffs’ home after three other officers had 25 come to interview the children two days earlier, giving rise to a 26 plausible inference that the visits and removal were to at least 27 some degree collaborated upon within the police department. The 28 failure of the officers to obtain a warrant for the removal of 1 the children despite this collaboration plausibly suggests that 2 responsibility for this failure rests at a higher level than that 3 of the individual defendants in this case. Based on plaintiffs’ 4 allegations, and drawing all permissible inferences in their 5 favor, the court concludes the First Amended Complaint states a 6 claim for municipal liability, and the motion will be denied as 7 to this claim. 8 F. Intentional Infliction of Emotional Distress Claim 9 Finally, defendants seek dismissal of plaintiffs’ fifth 10 claim, alleging intentional infliction of emotional distress. To 11 state such a claim, “a plaintiff must show: (1) outrageous 12 conduct by the defendant; (2) the defendant’s intention of 13 causing or reckless disregard of the probability of causing 14 emotional distress; (3) the plaintiff’s suffering severe . . . 15 emotional distress; and (4) actual and proximate causation.” 16 Huntingdon Life Scis., Inc. v. Stop Huntingdon Animal Cruelty 17 USA, Inc., 129 Cal. App. 4th 1228, 1259 (4th Dist. 2005). 18 Plaintiffs adequately plead these elements. They 19 allege that defendants, by virtue of the alleged warrantless 20 removal of B.T., A.O., D.O., and A.T. from their mother and home 21 on December 22, 2020, acted outrageously and “with reckless 22 disregard for the possibility of [causing] severe emotional 23 distress to Plaintiffs,” in fact caused plaintiffs to suffer 24 severe emotional distress due to the separation, and actually and 25 proximately caused the distress by personally effectuating the 26 removal. (FAC at ¶¶ 104-09.) 27 This claim, however, suffers from the same flaw as with 28 plaintiffs’ other claims challenging defendants’ alleged conduct 1 during the December 22 visit to plaintiffs’ home, in that it 2 asserts liability against defendants Heichlinger, Austin, and 3 Husar even though the First Amended Complaint includes no factual 4 allegations stating that these defendants were in fact present on 5 that date. (See FAC at ¶¶ 42-49, 104-09.)8 Accordingly, 6 plaintiffs’ intentional infliction of emotional distress claim 7 will be dismissed as against defendants Heichlinger, Austin, and 8 Husar. 9 IT IS THEREFORE ORDERED that defendants’ Motion for 10 Judgment on the Pleadings (Docket No. 23-1), construed as a 11 motion to dismiss, be, and the same hereby is, GRANTED IN PART 12 and DENIED IN PART as follows: 13 • Plaintiffs B.T., A.O., D.O., and A.T.’s Count One 14 claim, to the extent that it alleges violation of these 15 plaintiffs’ procedural due process rights under the 16 Fourteenth Amendment, is DISMISSED; 17 • All plaintiffs’ Count One, Count Two, Count Four, and 18 Count Five claims are DISMISSED as to defendants 19 Heichlinger, Austin, and Husar; 20 • Defendants’ motion is DENIED in all other respects. 21 Plaintiffs have twenty days from the date of this Order to file a 22 second amended complaint, if they can do so consistent with this 23 Order. 24 25 8 Although in their motion defendants also contend that Heichlinger, Austin, and Husar’s alleged conduct on December 20, 26 2022 is not “outrageous” as a matter of law, the First Amended 27 Complaint specifies that plaintiffs’ claim for intentional infliction of emotional distress is based on the alleged removal 28 of the children on December 22, 2022. (See id. at ¶ 104.) een en nnn 1 | Dated: July 15, 2022 bette 2d. □□ 5 WILLIAMB.SHUBB i (ssti—(‘CS™~™~C~S UNITED STATES DISTRICT JUDGE 3 4 5 6 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24