Chen v. D'Amico ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 10 SUSAN CHEN, et al., CASE NO. C16-1877JLR 11 Plaintiffs, AMENDED ORDER GRANTING v. IN PART AND DENYING IN 12 PART STATE DEFENDANTS’ MOTION FOR SUMMARY NATALIE D’AMICO, et al., 13 JUDGMENT Defendants. 14 15 I. INTRODUCTION 16 Before the court is Defendants Washington State Department of Social and Health 17 Services (“DSHS”), Bill Moss, Kimberly R. Danner, and Jill Kegel’s (collectively, “State 18 Defendants”) motion for summary judgment. (MSJ (Dkt. # 189).) Plaintiffs Susan Chen 19 and J.L., a minor child, filed a response. (Chen Resp. (Dkt. # 204).) Plaintiff Naixiang 20 Lian joins Ms. Chen and J.L.’s response.1 (Lian Resp. (Dkt. # 201).) State 21 // 22 1 The court refers to Ms. Chen, Mr. Lian, and J.L. collectively as “Plaintiffs.” 1 Defendants filed a reply. (Reply (Dkt. # 219).) The court has considered the motion, the 2 parties’ submissions concerning the motion, the relevant portions of the record, and the 3 applicable law.2 Being fully advised, the court GRANTS in part and DENIES in part 4 State Defendants’ motion as set forth below. 5 II. BACKGROUND 6 This case involves a dispute about the removal of a minor child, J.L., from his 7 parents’ custody. J.L.’s parents, Ms. Chen and Mr. Lian, initially brought claims against 8 defendants affiliated with the City of Redmond (the “City Defendants”) and a number of 9 DSHS officials (“State Defendants”). (See FAC (Dkt. # 96) ¶¶ 132-286.) The court 10 granted summary judgment in favor of the City Defendants on May 24, 2019. (See 11 5/24/19 Order (Dkt. # 170) at 60.) The remaining State Defendants—Kimberly Danner, 12 Bill Moss, Jill Kegel, and DSHS— now move for summary judgment on Plaintiffs’ 13 remaining claims.3 14 // 15 // 16 // 17 // 18 // 19 2 No party requests oral argument (see MSJ at 1; Chen Resp. at 1; Lian Resp. at 1), and 20 the court finds oral argument unnecessary to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4). 21 3 The court has set forth its detailed factual background in several prior orders. (See, e.g., 5/24/19 Order at 2-16.) The court focuses here on the facts relevant to the State Defendants’ 22 present motion for summary judgment. 1 J.L.’s Hospital Visit and the Child Protective Services (“CPS”) Referral 2 On October 7, 2013,4 Ms. Chen took J.L. to see Dr. Kate Halamay at Pediatric 3 Associates Inc., P.S. (“Pediatric Associates”). (RED00351-53.5) Dr. Halamay had seen 4 J.L. previously. (See, e.g., RED00339.) According to the notes from the October 7 5 appointment, J.L. had been experiencing abdominal pain for around six weeks. 6 (RED00351.) Dr. Halamay recommended that Ms. Chen take J.L. to the 7 Gastroenterology (“GI”) department at Seattle Children’s Hospital (“SCH”), but Ms. 8 Chen declined, stating that “she has seen them for the past 14 months and they ‘have not 9 done anything for [J.L.]’” (RED00352.) Dr. Halamay’s notes show that J.L. visited the 10 SCH GI department only once in the prior year. (Id.) Ms. Chen then asked Dr. Halamay 11 to order a number of labs, but Dr. Halamay refused because she was “unfamiliar with 12 several of them and would not know how to interpret them.” (RED00353.) 13 On October 19, 2013, Ms. Chen and Mr. Lian took J.L. to Dr. Julie Ellner at 14 Mercer Island Pediatrics, in part hoping that Dr. Ellner would order the labs they were 15 seeking. (See RED00107; 1st Chen Decl. (Dkt. # 131) ¶ 27-28.) Dr. Ellner’s notes state 16 that Ms. Chen was worried that J.L. has a “severe problem with kidney or liver,” that he 17 was losing weight, and was eating poorly. (RED00107.) Ms. Chen told Dr. Ellner that 18 4 J.L.’s medical history prior to October 2013 is set forth in this court’s prior order on the 19 City Defendants’ summary judgment motion. (See 5/24/19 Order at 2-4.) 20 5 Documents cited solely as “REDXXXXX” are sealed documents that were part of Detective D’Amico’s investigative file for the investigation of Ms. Chen. (See 1st Lo Decl. (Dkt. # 132) (attaching unsealed exhibits); Dkt. # 133 (sealed exhibits).) These documents are 21 attached to the first declaration of T. Augustine Lo as exhibits B-L. Otherwise, the court refers to exhibits to the first declaration of T. Augustine Lo as “1st Lo Decl., ¶ XX, Ex. XX,” 22 regardless of whether the exhibits appear at docket number 132 or 133. 1 J.L. had laboratory tests at a hospital in New York, as well as an ultrasound, which 2 showed that there was something wrong with J.L.’s liver. (Id.) However, Ms. Chen did 3 not bring the lab results to Dr. Ellner; nor was she able to remember the doctor or the 4 hospital where the tests were performed. (Id.) Dr. Ellner referred J.L. to the emergency 5 room. (Id.) 6 Later that day, instead of going to the emergency room, Ms. Chen took J.L. to 7 Pediatric Associates. (See RED00356-58; D’Amico Decl. (Dkt. # 107) ¶ 3h, Ex. H 8 (“CPS Docs”) at RED00050-51.) Similar to Dr. Ellner, Dr. Roberta Winch at Pediatric 9 Associates told Ms. Chen to take J.L. to emergency care. (RED00358 (“IT IS VERY 10 IMPORTANT [J.L.] BE SEEN FOR FURTHER EVAL IN THE ED [emergency 11 department] AT SCH. I RECCOMEND [sic] THEY GO NOW. PARENTS AGREED 12 TO BE SEEN AT SCH ED AND SAID THEY WILL GO THERE NOW.”).) Ms. Chen 13 says that she did not understand Dr. Winch’s instruction. (See 1st Chen Decl. ¶ 27.) 14 Instead, Ms. Chen took J.L. to SCH’s urgent care to have lab work done. (Id.; 15 RED00853-55.) 16 Ms. Chen returned to SCH urgent care on October 20, 2013, to pick up J.L.’s lab 17 work. (1st Chen Decl. ¶ 28.) Once there, doctors told Ms. Chen that J.L.’s lab work was 18 abnormal, showing elevated levels of creatinine and blood urea nitrogen (“BUN”). (Id.) 19 Ms. Chen then took J.L. to SCH emergency care. (Id.; CPS Docs at RED00050-51.) 20 That day, Dr. Russell Migita in SCH’s emergency department examined J.L. and 21 performed additional tests, which showed J.L. improved since October 19, 2013, but that 22 his lab results were still “not normal.” (RED00370-75.) A nurse’s report states that J.L. 1 “seemed irritable, tired, limp.” (RED00805.) It also states that Ms. Chen “refused 2 transport or interpreter services. NOTE!! this child was a no show to the ED yest[erday] 3 for same issues, swollen abd[omen].” (Id.) 4 Dr. Migita expressed that J.L. “would benefit from having a coordinated workup 5 that includes endocrinology, gastroenterology, and nephrology.” (RED00374.) 6 However, Dr. Migita discharged J.L. from the hospital on October 20, 2013, because he 7 did not have “hypertensive emergency at this time and d[id] not meet the eminent risk 8 criteria for medical hold.” (See RED00374-75.) Dr. Migita released J.L. on the 9 understanding that Ms. Chen and Mr. Lian would follow-up with J.L.’s primary care 10 provider. (RED00374-75 (noting “Plan” to see Dr. Halamay “[w]ithin 1 to 3 days”).) 11 On October 23, 2013, Ms. Chen brought J.L. to see Dr. Gbedawo, a naturopathic 12 physician, who saw J.L. nine times between April 2013 and October 2013. (1st Chen 13 Decl. ¶ 31; Gbedawo Decl. (Dkt. # 158) ¶¶ 2, 7, 8.) Dr. Gbedawo understood that J.L. 14 had been to emergency and urgent care a few days earlier and that he had been 15 discharged “as non-emergent.” (Gbedawo Decl. ¶ 8.) At the appointment, Dr. Gbedawo 16 “did not recommend that [Ms. Chen] take J.L. to the emergency department.” (Id.) 17 Rather, he recommended that Ms. Chen take J.L. “to a nephrologist and a nutritionist for 18 additional consultations and ordered additional labs and imaging.” (Id.) 19 Later that day, Ms. Chen took J.L. to Dr. Halamay, as she had been instructed by 20 Dr. Migita. (1st Chen Decl. ¶ 32.) According to Dr. Halamay’s notes, Ms. Chen 21 “declined [a] phone interpreter although offered several times” and “refus[ed] to make 22 eye contact, t[ook] a long time to answer questions or refuse[d] to answer at all.” 1 (RED00397.) Dr. Hal Quinn at Mercer Island Pediatrics, who had seen J.L. previously, 2 called Dr. Halamay before the appointment. (RED00397; RED00105-06.) Dr. Quinn: 3 expressed great concern about this [patient] as well as family, feels that he his [sic] very sick, concern about failure to thrive, has lost several pounds 4 since April, concerned that family has been going from dr to dr but that pt is not actually receiving appropriate medical attention. 5 (RED00397.) Dr. Halamay noted that J.L. appeared “[v]ery tired” and continued to 6 “have distended abdomen,” though Ms. Chen said his condition was improving. 7 (RED00397.) Dr. Halamay also noted that Ms. Chen was confused about doctors’ 8 instructions from October 19 and 20 to take J.L. to certain specialists, and that the Chen 9 family “did not go to [ED] as recommended.” (Id.) Dr. Halamay recommended that Ms. 10 Chen admit J.L. to the hospital “at once” so that he could be seen by renal, endocrine, and 11 GI specialists. (Id.) Ms. Chen “refused to take [J.L.] for admission, even after [Dr. 12 Halamay] stated that [she] felt admission was medically necessary given his abdominal 13 distension, weight loss, and worsening lab values compared to those drawn a few weeks 14 ago.” (Id.) Dr. Halamay further noted that she spoke with Dr. Metz, a doctor on the SCH 15 Suspected Child Abuse Network (“SCAN”) team, “who again recommended admission 16 for this patient for coordination of care as well as to provide social support for the family 17 and also to determine if SCAN team involvement is necessary.” (Id.) 18 Dr. Halamay further recommended to Ms. Chen that they arrange an admission for 19 J.L. to coordinate several services, but Dr. Halamay’s notes indicate that Ms. Chen 20 “refused to take him for admission, even after [Dr. Halamay] stated that [he] felt 21 admission was medically necessary given [J.L.’s] abdominal distension, weight loss, and 22 1 worsening lab values compared to those drawn a few weeks ago.” (Id.) Ms. Chen 2 remarked “‘I have no confidence in [SCH]. . . . I will find my own specialists. This is a 3 waste of time and a waste of money. I have no time to sit in the hospital.’” (Id.) Given 4 Ms. Chen’s refusal, Dr. Halamay “again spoke [with] Dr. Metz who agreed that given 5 [J.L.]’s medical issues, if [Ms. Chen] does not agree to admission that it would be 6 appropriate to contact CPS.” (Id.) Dr. Halamay then told Ms. Chen again that he felt that 7 J.L.’s admission was medically necessary, and that if Ms. Chen did not admit J.L., that 8 Dr. Halamay would “have to contact CPS in order to ensure that [J.L.] receives proper 9 medical attention.” (Id.) Ms. Chen again refused to agree to admission, and according to 10 Dr. Halamay, “became angry, stood up, picked [J.L.] up and left the office.” (Id.) Dr. 11 Halamay then contacted CPS, and then contact SCH’s emergency department that J.L. 12 “may be coming in and that he needs to be admitted.” (Id.) 13 Ms. Chen recalls that she “felt as though Dr. Halamay and SCH were dismissive 14 and had not provided proper care for [J.L.]” (1st Chen Decl. ¶ 32.) Further, Ms. Chen 15 told Dr. Halamay at the October 23 appointment that she “would not go back to see [Dr. 16 Halamay] anymore” and that she “would make a complaint against her.” (Id.) 17 Late on the night of October 23, 2013, a CPS social worker, Kirk Snyder, arrived 18 at Plaintiffs’ home and took J.L. to SCH’s emergency department. (See RED00814; Plfs’ 19 MSJ (Dkt. # 141) at 7; but see 1st Chen Decl. ¶ 33 (stating that “[a]t [CPS]’s 20 recommendation, we took J.L. to SCH.”).) J.L. was seen on October 24, 2013, by Dr. 21 Virginia Sanders and Dr. Shannon Staples. (See RED00791.) According to Dr. 22 Sanders’s summary, J.L. showed a “failure to thrive . . . [and] gross malnutrition and 1 muscle wasting. Concern for medical cause of wasting vs. neglect.” (RED00792.) J.L. 2 was then admitted to SCH’s “general medicine service” to treat his malnutrition and 3 receive a SCAN consultation. (Id.) Dr. Sanders also wrote that “[g]iven mother’s 4 resistance to medical evaluation in this ill child, he is currently in state custody.” (Id.) 5 Dr. Sanders instructed lab tests and scheduled a follow-up with Dr. Kate Halamay. 6 (RED00793.) 7 While at SCH on October 24, 2013, providers gave J.L. Pedialyte even though Ms. 8 Chen told them that “whenever [J.L.] eats sugar his belly gets big.” (RED00927, 9 RED00930.) Ms. Chen also told the SCH providers that J.L. “cannot eat many foods, 10 including carbohydrates or sugar,” but Ms. Chen was unable to “identify any food that he 11 does eat.” (RED00927-28.) In addition, Ms. Chen interfered with providers’ attempts to 12 give J.L. Pedialyte. (D’Amico Decl. ¶ 3c, Ex. C (“D’Amico Report”) at RED00015.) 13 The doctors noted that Ms. Chen was “asked to leave” the hospital room “because of her 14 erratic and obstructionist behavior.” (RED00930.) However, after J.L. consumed several 15 ounces of Pedialyte, J.L. “reaccumulated significant abdominal distention,” which 16 required the doctors to use a catheter to relieve the distention. (Id.) 17 J.L. weighed 12.2 kilograms (26.9 pounds) when he was admitted to SCH on 18 October 24, 2013, which is the third percentile. (RED00814.) Carol Barber, a social 19 work consult, reported on that date that the attending physician gave J.L. Pedialyte and 20 J.L. drank it “hungrily.” (See 2d Lo Decl. (Dkt. # 215, 216 (sealed)) ¶ 43, Ex. 42.) She 21 also reported that “[o]n multiple occasions, when medical staff weren’t looking, the 22 // 1 mother took the Pedialyte away from the patient while patient was drinking it. Mother 2 continued to do this despite instruction from medical staff to allow patient to drink.” (Id.) 3 Dr. Metz of the CPS SCAN team prepared a report dated October 27, 2019, while 4 J.L. was still being treated at SCH. (RED00813-18.) The report noted that J.L was in the 5 third percentile for weight and third percentile for body-mass index, and that J.L. was 6 “severely malnourished.” (RED00816-17.) Dr. Metz wrote that “this could potentially 7 be due to his severe state of poor nutrition, although other etiologies must be ruled out.” 8 (RED00817.) After a review of some of J.L.’s medical history, Dr. Metz wrote: 9 It is concerning that patient’s mother has not followed through with the recommendations by multiple providers, both in the emergency department 10 at [SCH] as well as the outpatient setting. Mother’s behavior seems to be erratic and although she has sought care with multiple providers it does not 11 appear that she is following through with their recommendations. Regardless of [J.L.]’s mother’s intentions, it does seem that there is an element of neglect 12 given his current nutritional status. . . . I think it will be important to continue to obtain records from all of his providers that he has seen to try to further 13 elucidate what medications he has been on. It will be important while [J.L.] is in the hospital to see how he tolerates feeding and how his weight changes 14 given adequate nutrition. 15 (Id.) 16 Protective Custody and 72-Hour Dependency Hearing 17 The Seattle Police Department placed J.L. in protective custody on October 24, 18 2019, “due to immediate concerns of medical neglect,” and transferred custody to “field 19 worker Davis, who was present at the hospital.” (2d Lo Decl. ¶ 3, Ex. 2 (“Danner Case 20 File”) at 2-46; see also RED00002 (“J.L. was taken into protective custody by [the Seattle 21 6 Unless otherwise stated, the court cites to the page numbers provided by the court’s 22 electronic filing system. 1 Police Department] and turned over to [CPS].”); RED00814 (“[J.L.] was placed in 2 protective custody by the police department.”).) 3 Kimberly Danner, a CPS investigator, was assigned to J.L.’s case on the same day. 4 (Danner Case File at 4.) Ms. Danner’s notes state that Ms. Chen “caused so much 5 disturbance that staff had to call police and have her removed from the hospital.” (Id. at 6 3.) Another entry in the case file states that “[t]here are significant concerns about 7 mom’s mental health due to her recent behavior at [SCH] as well as at Pediatric 8 Associates.” (Id. at 4.) 9 Ms. Danner signed and filed a dependency petition October 25, 2013, in King 10 County Superior Court – Juvenile Court. (See 2d Lo Decl. ¶ 4, Ex. 3 (“Dependency 11 Petition”) at 2, 7.) In addition to largely repeating the medical history for J.L. described 12 in Ms. Danner’s notes, the Dependency Petition also states, in relevant part: 13 • Due to J.L.’s “extremely distended abdomen,” physicians at both Mercer Island 14 Pediatric and Pediatric Associates on October 19, 2013 “recommended the mother 15 take the child to the hospital immediately. The mother refused and left against 16 Medical Advice. The mother and child returned to [SCH] later that day. The 17 child’s labs had stabilized and the child was discharged.” (Id. at 4.) 18 • At Pediatric Associates on October 23, 2013, the physician reported that JL’s 19 condition had worsened. “The referrer stated the child needs to be admitted to 20 [SCH] immediately, and she directed parents to do so. Mother did not take the 21 child [J.L.] after this visit, and only did so later in the evening when the parents 22 were directed to take the child to the hospital.” (Id.) 1 • “All health care providers who have been contacted by the Department and Law 2 Enforcement to date have reported concerns that the mother is ‘doctor shopping’, 3 seeking medical care that the child does not need, and also not following through 4 on medical care that is recommended by medical care providers.’” (Id.) 5 • “Not only did the child suffer life-threatening physical conditions related to 6 malnourishment, but [SCH] physician [sic] reported to the social worker that the 7 child’s delay in speech and social skills may be caused by malnourishment and 8 social deprivation.” (Id.) 9 • “The parents continue to be very evasive with questions asked by health care 10 providers and the Department about previous health care.” (Id.) 11 • Information is being gathered by “the [SCH] SCAN team to attempt to determine 12 if the medical neglect was a case of mother’s obstructing medical care, or if the 13 maltreatment is related to a more insidious mental health crisis being experienced 14 by the mother. According to [SCH] staff, based on preliminary information 15 gathered, the mother was at the very least obstructing needed medical care for the 16 child.” (Id. at 5.) 17 • “At this time, the Department has grave concerns about both parents and their 18 ability to safely parent these two children.” (Id.) 19 A 72-hour dependency hearing was held from October 28 to October 30, 2013, to 20 determine if J.L. should be placed in out-of-home care pending a final dependency 21 determination. (See FAC ¶ 59.) An interpreter was present at the hearing (See, e.g., 2d 22 Chen Decl. ¶ 4, Ex. 2 (10/28/13 Hearing Tr.) at 2-14.) At the hearing, Ms. Danner 1 testified that J.L.’s health care providers “continue to have concerns about gross 2 malnourishment.” (10/28/13 Hearing Tr. at 4.) Dr. Migita testified that J.L. presented 3 with gross malnutrition. (See 2d Chen Decl. ¶ 4, Ex. 3 (10/29/13 Hearing Tr.) at 2.) Dr. 4 Migita further testified that upon admission to SCH on October 24, 2019, “lab values 5 indicated that he was potentially entering into acute renal failure presumably from lack of 6 fluid intake.” (See id.) Dr. Migita stated that while in SCH’s care, J.L. “seems quite 7 content while eating” and did not show signs of spitting out food. (See id. at 4.) Dr. 8 Migita also testified that J.L.’s behavior could be explained by “reactive attachment 9 disorder, anxiety related diagnoses, or PTSD, as well as autism,” but “we’ve witnessed 10 enough social engagement to become less concerned about autism and more concerned 11 about a reactive attachment issue or an anxiety issue.” (See id. at 8.) 12 Dr. Green and Dr. Gbedawo provided testimony in support of Ms. Chen. (See 13 Barbara Decl. (Dkt. # 191 (sealed)) ¶ 2, Ex. A at 14-15.) Commissioner Mark Hillman 14 stated on the record that he “didn’t even know [J.L.] was autistic until [he] heard from 15 Dr. Green.” (10/28/13 Hearing Tr. at 14.) Commissioner Hillman heard testimony 16 “through the mother’s exhibit, that [J.L.] has not gained any weight for approximately 17 one year.” (2d Chen Decl. ¶ 4, Ex. 1 (10/30/13 Hearing Tr.) at 7.) 18 Commissioner Hillman further stated that “[t]he autism report that I read, it 19 seemed to support a diagnosis of autism” for J.L. (2d Chen Decl. ¶ 4, Ex. 1 (10/30/13 20 Hearing Tr.) at 5.) It was “unfortunate that Dr. Migita apparently didn’t get provided 21 with a copy of that report or have access to that report,” and the court was “very hopeful 22 that Dr. Migita will get a copy of that within 24 hours.” (Id.) The court addressed the 1 potential effect of autism on J.L.’s weight: “It may be because, as an autistic child, he 2 has problems digesting and absorbing food, but I have evidence that since his admission 3 into Children’s Orthopedic Hospital, he has been eating almost every food they give him 4 with no apparent distress and he has gained 1.8 pounds.” (Id. at 8.) The court did not 5 fault Ms. Chen for taking J.L. to Dr. Green or a naturopath, but based on J.L.’s failure to 6 gain weight for a year, followed by gaining 1.8 pounds in one week at SCH, in addition 7 to his being diagnosed with malnourishment, meant that DSHS had met its burden to 8 show reasonable cause that keeping J.L. with his parents could create substantial harm.7 9 (Id. at 8-9.) The court ordered out-of-home placement and visitations. (See Barbara 10 Decl. ¶ 2, Ex. A at 20.) 11 Commissioner Hillman noted uncertainty regarding “whether the mother or father 12 has actually fed [J.L.] all of the food that Dr. Green and Dr. Gbedawo wanted them to be 13 feeding him.” (10/30/13 Hearing Tr. at 12.) However, Commissioner Hillman also 14 stated “[t]he one thing that shelter care will show us, frankly, is whether [J.L.] will 15 continue to show improvement on his weight as well as improvement on the symptoms of 16 his autism . . . the shelter care period is going to show us whether we’re going to have a 17 long-term improvement on his nutrition. Because if Dr. Gbedawo is right, he may show 18 7 DSHS also sought out-of-home placement for L.L., J.L.’s brother. (See Dependency 19 Petition.) At the close of the hearing, Commissioner Hillman concluded that DSHS had not met its burden to show reasonable cause that allowing L.L. to remain in his parents’ custody would 20 create a substantial threat, and denied the Dependency Petition with respect to L.L. on that basis. (10/30/13 Hearing Tr. at 6.) However, the court placed conditions on the parents, including that “there will be no medical appointments for [L.L.], unless that appointment is disclosed to the 21 department at least 48 hours in advance, including the time of the appointment and the provider, unless it is a bona fide emergency,” in which case the parents must notify DSHS “where he went, 22 why he went and who he saw within 24 hours after that appointment.” (Id. at 6-7.) 1 improvement for a little bit and then he’s going to turn around because the GI problems 2 are going to come back in. And if the GI problems come back in outside the parents’ 3 care, well, guess what?” (Id. at 11-12.) 4 Post-Hearing Investigation and Foster Care 5 Ms. Danner did not pass Dr. Green’s autism report to Dr. Migita, but Rosalyn 6 Dilorio with the Attorney General’s Office (“AGO”) emailed Dr. Migita on October 21, 7 2013, telling him that the court “wanted you to get the Autism report from Lakeside 8 Autism Center. I think Kim is going to get that to you.” (2d Lo Decl. ¶ 8, Ex. 7 at 2.) 9 On November 3, 2013, J.L. weighed in at 14.6 kilograms (32.19 pounds), up from the 10 12.2 kilograms (26.9 pounds) he weighed on October 24, 2013. (RED01126.) 11 Ms. Danner completed an investigative assessment and emailed it to, among 12 others, David Peterson and Jill Kegel, on November 15, 2013. (2d Lo Decl. ¶ 6, Ex. 5 13 (“Investigative Assessment”) at 1.) The Investigative Assessment states that the “[i]nitial 14 referral was [a] 24-hour response referral, made by health care providers, alleging that the 15 parents had been advised by the provider to take the child to the ER immediately, and had 16 not.” (Id. at 7.) It reports that J.L. “has been diagnosed with Autism by the Lakeside 17 Clinic; however, the attending doctor at Children’s reports that they suspect an 18 attachment disorder, and also believe that a lot of what the child is experiencing with 19 developmental delays is due to gross malnourishment and social deprivation.” (Id. at 6.) 20 It also states that the parents “have remained completely unwilling to talk to [the social 21 worker] about anything that doesn’t involve visitation, including their parenting 22 practices.” (Id.) 1 On November 12, 2013, Ms. Chen filed a motion for revision of the court’s shelter 2 care order. (Barbara Decl. ¶ 2, Ex. A at 36.) At the time, Ms. Chen did not have access 3 to updated medical records Ms. Chen had requested from Ms. Danner. (2d Chen Decl. 4 ¶ 73.) Ms. Chen hired a new attorney, Linda Lillivek, who appeared on November 14, 5 2013. (2d Chen Decl. ¶ 74; Barbara Decl. ¶ 2, Ex. A at 42.) Ms. Lillivek requested 6 production of updated medical records from the state, but was unable to obtain them 7 before the 30-day hearing. (Id.) Ms. Chen contends that if she had access to the updated 8 records, she could have brought the fact that J.L. lost weight while in foster care to the 9 court’s attention. (Id.) DSHS filed its response on November 20, 2013. (Id. at 44.) In 10 its response, DSHS noted that J.L. was doing much better in SCH’s case, and that he “has 11 gained approximately 1.8 pounds in seven days”. (Id. at 50.) DSHS represented that 12 shelter care was warranted because “[i]n the care of his parents, [J.L.] was starving, 13 malnourished, wasting, and had potential kidney failure, a compromised liver, abnormal 14 thyroid levels, abnormal white blood cell count, a failure to thrive, and he suffered harm 15 to his brain and development all due to malnutrition.” (Id. at 58.) The court denied the 16 motion to revise the shelter care order. (See id. at 72; 2d Chen Decl. ¶ 73.) 17 In a November 25, 2013, email to Ms. Danner, David Peterson, the DSHS social 18 worker initially assigned to J.L.’s case, acknowledged that J.L. “gained 4lbs while 19 hospitalized at Children’s but has lost 2lbs since going into foster care.” (See 2d Lo Decl. 20 ¶ 34, Ex. 33 at 4.) Mr. LaRaus responded: “First off we need to figure out how it is that 21 the kid lost 2lbs while in foster care – that really makes it hard to blame mom’s 22 mistreatment for his low weight before he was admitted to the hospital.” (Id. at 2.) 1 Ms. Danner’s involvement lessened as the case was handed from Mr. Peterson to 2 Ms. Kegel. Ms. Kegel first learned about J.L.’s case when she reviewed Ms. Danner’s 3 Investigative Assessment. (2d Lo Decl. ¶ 2, Ex. 1 (“Kegel Dep.”) at 80:22-81:3.) At her 4 deposition, Ms. Kegel could not remember whether she met with Mr. Peterson during the 5 transfer of the case. (Id. at 72:24-73:2.) She also reviewed the Dependency Petition and 6 the shelter care order but did not receive a copy of the shelter care hearing transcript. (Id. 7 at 85:22-25, 87:8-12.) She maintained contact with Dr. Quinn, but does not remember 8 talking to Dr. Migita, Dr. Green, or Dr. Gbedow. (Id. at 89:20-90:14.) 9 Ms. Chen asserts that Ms. Kegel was frequently demeaning and uncaring towards 10 Ms. Chen. (See id. ¶¶ 94-97.) Ms. Chen contends that Ms. Kegel prevented her from 11 attending a neurodevelopmental evaluation for J.L. at SCH, even though several of J.L.’s 12 providers, including Drs. Ivy Chung and Brooke Greiner, advocated that Ms. Chen 13 should be allowed to participate. (See 2d Chen Decl. ¶ 98.) Ms. Chen also alleges that 14 DSHS violated a court order by failing to provide a copy of J.L.’s autism evaluation to 15 SCH providers “within 24 hours,” leading to inaccurate reports. (See id.; but see 16 10/31/13 Hearing Tr. at 5 (Commissioner Hillman stating that he is “very hopeful” that 17 Dr. Migita would receive a copy of Dr. Green’s autism report within 24 hours); 2d Lo 18 Decl. ¶ 8, Ex. 7 (AGO writing in an October 31, 2013, email to Dr. Migita that the court 19 “wanted you to get the Autism Report from Lakeside Autism Center. I think Kim is 20 going to get that to you.”).) 21 Ms. Chen also contends that Ms. Kegel “did not tell the truth” when she “did not 22 report, for example, that J.L. had lost two pounds in his placement, that DSHS was aware 1 of and communicating about information suggesting I was not to blame, that J.L.’s skills 2 had significantly regressed to the dismay of his providers, or that he had been kicked out 3 of the daycare DSHS put him in, for behavior he did not have before.” (See 2d Chen 4 Decl. ¶ 102.) 5 On January 23, 2014, Ms. Kegel wrote to Detective D’Amico and informed her 6 that J.L. was receiving “OT and ABA therapy to assist with the autism . . . his parents are 7 not cooperating with any services and have tried to interfere again.” (See 2d Lo Decl. 8 ¶ 35, Ex. 34.) On February 3, 2014, Ms. Kegel wrote in a DSHS placement referral that 9 J.L. “has been diagnosed with Autism . . . [he] is receiving Occupational therapy and 10 ABA therapy to address his developmental and autistic needs.” (See 2d Lo Decl. ¶ 50, 11 Ex. 49.) On February 6, 2014, Dr. Greiner wrote to David LaRaus, copying a number of 12 others including Ms. Kegel, stating that the “doctor’s recommendations lack key services 13 that children with autism receive . . . J.L. has autism and it is not a subtle presentation of 14 autism. He needs and deserves the usual recommended services and supports for 15 treatment of autism.” (See 2d Lo Decl. ¶ 37, Ex. 36 at 3.) Ms. Kegel responded to clarify 16 that the recommendations “are in addition to the services [J.L.] is already 17 receiving. . . . No one is saying that [J.L.] doesn’t have autism or that he needs less 18 intensive services.” (See id. at 2.) Ms. Kegel responded a second time to clarify that 19 “there have been some questions from providers about whether [J.L.] is on the ASD 20 based on his immediate presentation before them – or if he could have delays that stem 21 from another cause. However [DSHS] is not taking the position at this time that he is not 22 // 1 ASD, we are just seeking input from all possible sources on appropriate services.” (See 2 id.) 3 Ms. Chen contends that J.L. suffered from not receiving proper care for his autism 4 and GI issues while in foster care. (2d Chen Decl. ¶ 45.) She describes a number of 5 behavioral issues J.L. developed while in foster care, including biting, screaming, and 6 hitting. (2d Chen Decl. ¶ 42.) Ms. Chen states that a number of those issues continued 7 after J.L. was returned. (See id.) Ms. Chen also contends that DSHS cancelled and 8 postponed visitations on several occasions and put unfair restrictions on the visits when 9 they did occur. (See 2d Chen Decl. ¶ 78-89, Ex. 13.) Ms. Chen alleges further that 10 DSHS did “not follow up on the initial concerns of the dependency court.” (2d Chen 11 Decl. ¶ 106.) She further alleges that by November 2013, DSHS was aware of 12 information that raised doubts about whether this was a child abuse case, but did not 13 return J.L. regardless. (Id.) 14 Termination of Dependency Petition 15 Ms. Chen and Mr. Lian separated “because [their] relationship had been broken as 16 a result of J.L.’s removal and related events.” (2d Chen Decl. ¶ 40.) Although Ms. Kegel 17 opposed the move, J.L. was placed in Mr. Lian’s care on July 25, 2014. (See 2d Lo Decl. 18 ¶¶ 18, 20, Exs. 17, 19.) The dependency trial was originally set for June 2014. (2d Lo 19 Decl. ¶ 22, Ex. 21.) On May 24, 2014, the AGO filed a motion to continue the 20 dependency trial because of discovery delays. (Chen Decl. ¶ 77.) 21 On August 27, 2014, Mr. LaRaus emailed Ms. Chen’s attorney, Lorraine Roberts, 22 and stated that DSHS was not willing to concede that the parents did nothing wrong, but 1 if the parents would agree to certain conditions, DSHS would dismiss the Dependency 2 Petition. (2d Lo Decl. ¶ 16, Ex. 15 at 2.) On September 10, 2014, after interviewing Dr. 3 Quinn and other witnesses, Ms. Roberts emailed Mr. LaRaus, conveyed that even the 4 State’s witnesses were supporting Ms. Chen, and demanded Mr. LaRaus dismiss the 5 petition without conditions. (2d Lo Decl. ¶ 18, Ex. 17 at 3.) The State decided to dismiss 6 the Dependency Petition on September 12, 2014. (2d Lo Decl. ¶ 18, Ex. 17 at 2.) Mr. 7 LaRaus told Ms. Roberts that J.L. was returned to his father’s care on July 25, 2014 and 8 that there were no complaints about his care so far, and that Dr. Quinn now admits that 9 his conclusion that Ms. Chen failed to take J.L. to the hospital on October 20, 2013 was 10 incorrect. (2d Lo Decl. ¶ 18, Ex. 17 at 2.) The “founded” determination was changed to 11 “unfounded” shortly thereafter. (2d Lo Decl. ¶ 19, Ex. 18.) 12 III. ANALYSIS 13 State Defendants now move for summary judgment on Plaintiffs’ remaining 14 claims. (See generally MSJ.) First, State Defendants argue they are entitled to summary 15 judgment on Plaintiffs’ 42 U.S.C. § 1983 claims for damages (Counts V, VI, and VII) on 16 the grounds that Plaintiffs “suffered no constitutional rights violations, the individual 17 State Defendants enjoy qualified immunity, and the individual State Defendants enjoy 18 testimonial immunity.”8 (Id. at 4.) Second, State Defendants argue that they are entitled 19 to summary judgment on Plaintiffs’ state law claims (Counts IX, X, and XI) because 20 8 In a single sentence, State Defendants also contend that Plaintiffs’ 42 U.S.C. § 1983 21 damages claims are time-barred. (See MSJ at 4.) State Defendants include no argument or authority in support of this contention. (See generally MSJ.) Accordingly, the court does not 22 address it. 1 Plaintiffs “cannot establish the essential elements of their claims.” (Id.) Third, State 2 Defendants argue they are entitled to summary judgment on Plaintiffs’ 42 U.S.C. § 1983 3 claim for injunctive relief (Count XII) because “Plaintiffs have failed to satisfy the 4 requirements of Ex Parte Young and cannot establish entitlement to injunctive relief.” 5 (Id.) Plaintiffs’ response states that “Plaintiffs are not disputing dismissal of Count XII 6 (injunctive relief).” (Chen Resp. at 15.) Accordingly, the court GRANTS summary 7 judgment in favor of State Defendants on Count XII. 8 Before addressing the substance of State Defendants’ summary judgment motion, 9 the court addresses State Defendants’ challenge to several of Plaintiffs’ witness 10 declarations. 11 A. Motions to Strike Declaration Testimony 12 State Defendants move to strike the “expert opinions” contained in several of 13 plaintiffs’ witness declarations on the basis that Plaintiffs have not disclosed any expert 14 witnesses in this case. (See Reply at 2 (citing Green Decl. (Dkt. # 129); Greiner Decl. 15 (Dkt. # 134); Chung Decl. (Dkt. # 156); Gbedawo decl. (Dkt. # 158); Park-Adams Decl. 16 (Dkt. # 202); Shapovalova Decl. (Dkt. # 205); Chan Decl. (Dkt. # 209); Sinclair Decl. 17 (Dkt. # 212); Haase Decl. (Dkt. # 213)).) In response, Plaintiffs argue that these are fact 18 witnesses who were “directly involved in the relevant events and are testifying from 19 personal knowledge.” (See Chen MFL (Dkt. # 221); Chen Surreply (Dkt. # 221-1).) 9 20 9 Plaintiffs filed motions for leave to file surreplies in part to contend that all of the 21 witnesses whose declarations State Defendants move to strike are fact witnesses who were “directly involved in the relevant events and are testifying from personal knowledge.” (See 22 Chen MFL (Dkt. # 221); Chen Surreply (Dkt. # 221-1); Lian MFL (Dkt. # 223); Lian Surreply 1 Federal Rule of Civil Procedure 26(a)(2)(B) provides, in relevant part, that the 2 disclosure of an expert witness “must be accompanied by a written report—prepared and 3 signed by the witness.” Fed. R. Civ. P. 26(a)(2)(B). Rule 37(c)(1) provides that “[i]f a 4 party fails to provide information or identify a witness as required by Rule 26(a) or (e), 5 the party is not allowed to use that information or witness to supply evidence on a 6 motion, at a hearing, or at a trial, unless the failure was substantially justified or is 7 harmless.” Fed. R. Civ. P. 37. “The determination of whether a failure to disclose is 8 justified or harmless is entrusted to the broad discretion of the district court.” S.F. Bay 9 Area Rapid Transit Dist. v. Spencer, No. 04-04632-SI, 2007 WL 421336, at *4 (N.D. 10 Cal. Feb. 5, 2007); Auto. Indus. Pension Tr. Fund v. Tractor Equip. Sales, Inc., 73 F. 11 Supp. 3d 1173, 1181-82 (N.D. Cal. 2014), aff’d, 672 F. App’x 685 (9th Cir. 2016). 12 Rule 26(a)(2)(A) requires a party to “disclose to the other parties the identity of 13 any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 14 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A); see also Fed. R. Evid. 701(a) (“If a witness is 15 not testifying as an expert, testimony in the form of an opinion is limited to one that is . . . 16 rationally based on the witness’s perception.”). Although “other circuits have held that 17 treating physicians are experts that must be properly disclosed under . . . Rule . . . 26, . . . 18 // 19 20 (Dkt. # 223-1).) No response to a motion to strike “shall be filed unless requested by the court.” See id. LCR 7(g)(4). Plaintiffs’ surreplies are styled as responses to the State Defendants’ motions to strike contained in their reply brief. (See Chen Surreply; Lian Surreply.) 21 Nevertheless, they contain argument that Plaintiffs could not have included in their responsive briefing, and the court finds them helpful to its disposition of the State Defendants’ motions to 22 strike. Accordingly, the court GRANTS Plaintiffs leave to file their surreplies. 1 [the Ninth Circuit] has not.” Hoffman v. Lee, 474 F. App’x 503, 505 (9th Cir. 2012) 2 (internal citation omitted). 3 So long as these witnesses testify solely as percipient witnesses, Plaintiffs are not 4 required to disclose treating medical providers as expert witnesses. See id. (“We hold 5 that [the doctor] testified only as a percipient witness and thus need not have been 6 disclosed as an expert.”). Further, a district court properly admits the testimony of a 7 party’s treating medical provider, even if the party has not disclosed the provider as an 8 expert witness, so long as each of the treating medical provider’s opinions “addresses his 9 [or her] thoughts on particular actions that he [or she] took in his [or her] treatment of 10 [the party].” See id. 11 Thus, consistent with Hoffman, the court will permit Plaintiffs’ disclosed treating 12 medical providers to testify as percipient witnesses about their diagnosis and treatment of 13 J.L. and/or Ms. Chen and to any opinions formed during the course of treatment. See 14 Haro v. GGP-Tucson Mall LLC, No. CV-17-00285-TUC-JAS, 2019 WL 369269, at *4 15 (D. Ariz. Jan. 30, 2019) (considering treating physicians as lay witnesses and allowing 16 them to “testify regarding their diagnosis and treatment” of the plaintiff); Walker v. 17 Spina, No. CIV 17-0991 JB/SCY, 2019 WL 145626, at *19 (D. N.M. Jan. 9, 2019) (“A 18 treating physician does not need to be certified as an expert witness and may testify as a 19 lay witness ‘if he or she testifies about observations based on personal knowledge, 20 including the treatment of the party.’”) (quoting Guerrero v. Meadows, 646 F. App’x 21 597, 602 (10th Cir. 2016)). 22 // 1 However, a physician’s testimony as a percipient witness does not extend to the 2 issue of causation. The Ninth Circuit has held that “a physician’s assessment of the cause 3 of an injury is expert testimony.” United States v. Urena, 659 F.3d 903, 908 (9th Cir. 4 2011) (citing United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir.2005) (“Her 5 diagnosis of the injury itself . . . would be permissible lay testimony, but her statement 6 about the cause of the injury was, as she admitted, a ‘hypothesis.’ And the ability to 7 answer hypothetical questions is the essential difference between expert and lay 8 witnesses.” (internal quotation and alteration omitted)); Wills v. Amerada Hess Corp., 9 379 F.3d 32, 46 (2d Cir.2004) (holding that, where the cause of an injury would not be 10 obvious to a lay juror, expert testimony is required)). 11 In sum, the court GRANTS in part and DENIES in part State Defendants’ motion 12 to exclude opinion testimony from Plaintiffs’ disclosed treating medical providers. 13 Although these witnesses may not opine on matters outside of their personal knowledge 14 of Plaintiffs,10 including causation, these witnesses may testify as percipient witnesses 15 concerning their personal experience with Plaintiffs.11 16 // 17 // 18 10 Accordingly, the court disregards any portions of the treating providers’ declarations 19 that constitute causation testimony. 20 11 State Defendants also move to strike declaration testimony on the grounds that it is inadmissible speculation, hearsay, or character evidence. (See Reply at 3.) As the contested testimony would not change the court’s rulings on State Defendants’ motion for summary 21 judgment, the court denies State Defendants’ motion to strike declaration testimony on the basis that it is speculation, hearsay, or character evidence, without prejudice to raising the same 22 objections at trial. 1 B. Summary Judgment Standard 2 Summary judgment is appropriate if the evidence, when viewed in the light most 3 favorable to the non-moving party, demonstrates “that there is no genuine dispute as to 4 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 5 P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cty. of L.A., 6 477 F.3d 652, 658 (9th Cir. 2007). A fact is “material” if it might affect the outcome of 7 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is 8 “‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for the 9 non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) 10 (citing Anderson, 477 U.S. at 248-49). 11 The moving party bears the initial burden of showing there is no genuine issue of 12 material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. 13 at 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can 14 show the absence of an issue of material fact in two ways: (1) by producing evidence 15 negating an essential element of the nonmoving party’s case, or (2) by showing that the 16 nonmoving party lacks evidence of an essential element of its claim or defense. Nissan 17 Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). 18 The court is “required to view the facts and draw reasonable inferences in the light 19 most favorable to the [non-moving] party.” Scott v. Harris, 550 U.S. 372, 378 (2007). 20 The court may not weigh evidence or make credibility determinations in analyzing a 21 motion for summary judgment because these are “jury functions, not those of a judge.” 22 Anderson, 477 U.S. at 249-50. Nevertheless, the nonmoving party “must do more than 1 simply show that there is some metaphysical doubt as to the material facts . . . . Where 2 the record taken as a whole could not lead a rational trier of fact to find for the 3 nonmoving party, there is no genuine issue for trial.” Scott, 550 U.S. at 380 (internal 4 quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 5 475 U.S. 574, 586-87 (1986)). “Conclusory allegations unsupported by factual data 6 cannot defeat summary judgment.” Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074, 7 1078 (9th Cir. 2003). Nor can a party “defeat summary judgment with allegations in the 8 complaint, or with unsupported conjecture or conclusory statements.” Hernandez v. 9 Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). 10 C. Absolute Immunity 11 Individual State Defendants contend that they enjoy absolute immunity for their 12 “discretionary, quasi-prosecutorial decisions to institute court dependency proceeds [sic] 13 to take custody away from [the] parents.” (See MSJ at 8 (quoting Miller v. Gammie, 335 14 F.3d 889, 898 (9th Cir. 2003).) They further contend that Ms. Kegel enjoys absolute 15 witness immunity for her declarations “filed in connection with the dependency 16 proceedings.” (See id. at 9.) 17 Plaintiffs respond that the “scope of absolute immunity for social workers is 18 extremely narrow,” and absolute immunity does not apply to discretionary or 19 investigatory actions. (Chen Resp. at 20 (quoting Miller, 335 F.3d at 897-898).) 20 Plaintiffs contend that the individual State Defendants’ actions consisted primarily of 21 investigating and acting as witnesses, activities that are not covered by absolute 22 immunity. (See id. at 20-21.) 1 In reply, State Defendants contend that Ms. Danner has absolute immunity for her 2 “quasi-prosecutorial” decisions to file petitions for dependency. (See Reply at 8-9.) 3 They further contend that Ms. Kegel enjoys absolute immunity “when filing updates with 4 the court.” (See id. at 9.) 5 Absolute immunity protects “individuals performing functions necessary to the 6 judicial process” from suit. See Miller, 335 F.3d at 895-96. Absolute immunity “shields 7 only those who perform a function that enjoyed absolute immunity at common law.” See 8 id. at 897 (citing Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435-36 (1993)). 9 Absolute immunity’s protections depend solely on “the specific function performed, and 10 not the role or title of the official.” Id. at 897. 11 The law of absolute immunity for social workers has evolved in recent years. For 12 example, Ninth Circuit opinions previously held that “social workers are entitled to 13 absolute immunity for the initiation and pursuit of dependency proceedings, including 14 their testimony offered in such proceedings.” See Mabe v. San Bernardino Cty., Dept. of 15 Pub. Soc. Servs., 237 F.3d 1101, 1109 (9th Cir. 2001) (citing Meyers v. Contra Costa Cty 16 Dep’t of Soc. Servs., 812 F.2d 1158-59 (9th Cir. 1987)). Additionally, prior opinions 17 held that social workers “enjoy absolute, quasi-judicial immunity when making post- 18 adjudication custody decisions pursuant to a valid court order.” Id. (quoting Babcock v. 19 Tyler, 884 F.2d 497, 503 (9th Cir. 1987) (overruled in part by Safouane v. Fleck, 226 F. 20 App’x 753, 762 (9th Cir. 2007)). However, several of those decisions were overruled “by 21 subsequent Supreme Court decisions to the extent [they] granted absolute prosecutorial 22 // 1 immunity to social workers for duties beyond which prosecutors were rendered immune 2 at common law.” See Safouane, 226 F. App’x at 762 (citing Miller, 335 F.3d at 897). 3 The Ninth Circuit, following Supreme Court precedent, has since defined the 4 categories of activity covered by absolute immunity more narrowly. Under current 5 precedent, “[a]bsolute immunity is available only if the social worker’s ‘activity or 6 function’ . . . was part and parcel of presenting the state’s case as a generic advocate.” 7 Cox v. Dept. of Soc. & Health Servs., 913 F.3d 831, 838 (9th Cir. 2019) (quoting 8 Hardwick v. Cty. of Orange, 844 F.3d 1112, 1115 (9th Cir. 2017)). Actions taken 9 “during or to initiate [dependency] proceedings” remain covered by absolute immunity. 10 See Safouane, 226 F. App’x at 762; see also Miller, 335 F.3d at 898 (noting that “the 11 critical decision to institute proceedings to make a child a ward of the state is functionally 12 similar to the prosecutorial institution of a criminal proceeding.”)). “[T]he initiation and 13 pursuit of child-dependency proceedings [are] prosecutorial in nature and warrant 14 absolute immunity on that basis.” Miller, 335 F.3d at 896 (citing Meyers, 812 F.2d at 15 1157). 16 However, “decisions and recommendations as to the particular home where a child 17 is to go or as to the particular foster parents who are to provide care” are “decisions and 18 recommendations that are not functionally similar to prosecutorial or judicial decisions” 19 and are “not protected by absolute immunity.” Safouane, 226 F. App’x at 767-68. Social 20 workers “are not afforded absolute immunity for their investigatory conduct, 21 discretionary decisions or recommendations.” Id. (holding that social workers were not 22 entitled to qualified immunity for deciding a visitation location because it was “was 1 within the social workers’ discretion” and was not dictated by the court) (quoting Tamas 2 v. Dep’t of Soc. & Health Servs., State of Wash., 630 F.3d 833, 842 (9th Cir. 2010)). 3 Additionally, even in the context of dependency proceedings, social workers are 4 not entitled to absolute immunity for claims that they “fabricated evidence during an 5 investigation or made false statements in a dependency petition affidavit that they signed 6 under penalty of perjury, because such actions aren’t similar to discretionary decisions 7 about whether to prosecute.” Costanich v. Dept. of Soc. & Health Servs., 627 F.3d 1101, 8 1109 (9th Cir. 2010) (quotation omitted). “[U]nless the social worker’s activity has the 9 requisite connection to the judicial process, only qualified immunity is available.” Id. 10 (citing Meyers, 812 F.2d at 1158); see also Meyers, 812 F.2d at 1157 (holding that a child 11 services worker enjoyed absolute immunity for “bringing dependency proceedings” and 12 for “the testimony he gave during the dependency proceedings,” but not for allegedly 13 ordering a child “to stay away from his home until after the hearing before the juvenile 14 court”). In applying these above principles, “the district court [is] obligated to examine 15 the functions” the social workers performed. Miller, 335 F.3d at 898. In doing so, “the 16 defendants bear the burden of showing that their respective common-law functional 17 counterparts were absolutely immune.” Id. 18 The court first concludes that Ms. Danner is absolutely immune from claims based 19 on her actions to initiate the dependency proceedings for both J.L. and L.L., including the 20 decision to sign and file the Dependency Petition. (See Dependency Petition.) Second, 21 Ms. Danner and Ms. Kegel are absolutely immune from claims based on actions they 22 // 1 took in their roles as in-court advocates for the State in the dependency case. See 2 Hardwick, 844 F.3d at 1115 (holding that absolute immunity applies to actions that are 3 “part and parcel of presenting the state’s case as a generic advocate”). 4 However, the State Defendants do not enjoy absolute immunity for (1) their 5 investigations, (2) allegedly making false statements or fabricating evidence, or (3) 6 making discretionary decisions related to J.L.’s care while he was in the State’s custody. 7 See Tamas, 630 F.3d at 842 (noting that absolute immunity is not afforded for a social 8 worker’s “investigatory conduct, discretionary decisions or recommendations.”); 9 Patterson v. Ariz. Dep’t of Econ. Sec, 689 F. App’x 565, 566 (9th Cir. 2017) (“[S]ocial 10 workers are not entitled to absolute immunity from claims they fabricated evidence 11 during an investigation or made false statements in a dependency petition affidavit that 12 they signed under penalty of perjury.”). These actions are entitled only to a 13 determination of qualified immunity. Accordingly, the court GRANTS in part and 14 DENIES in part the State Defendants request for summary judgment on the basis of 15 absolute immunity. 16 D. Qualified Immunity 17 The State Defendants maintain they enjoy qualified immunity because they acted 18 reasonably when faced with a “complex medical situation” in which several medical 19 professionals opined that J.L. was failing to thrive, was malnourished, and was 20 “wasting.” (See MSJ at 9.) In determining whether a government employee is entitled to 21 qualified immunity, the court must decide: (1) whether the facts that the plaintiff alleges 22 assert a violation of a constitutional right; and (2) whether the right at issue was “clearly 1 established” at the time the defendant engaged in the misconduct. Pearson v. Callahan, 2 555 U.S. 223, 232 (2009) (discussing Saucier v. Katz, 533 U.S. 194, 201 (2001)). To 3 determine whether a right was clearly established, “the standard is one of fair warning: 4 where the contours of the right have been defined with sufficient specificity that a state 5 official had fair warning that [his] conduct deprived a victim of his rights, [he] is not 6 entitled to qualified immunity.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) 7 (quotation marks and citation omitted). “The contours of the right must be sufficiently 8 clear that a reasonable official would understand that what he is doing violates that right.” 9 See id. 10 Further, a state official’s liability under 42 U.S.C. § 1983 is predicated on his 11 ‘integral participation’ in the alleged violation.” Blankenhorn v. Cty of Orange, 485 12 F.3d 463, 481 n.12 (9th Cir. 2007) (quoting Chuman v. Wright, 76 F.3d 292, 294-95 (9th 13 Cir. 1996)). “[I]ntegral participation does not require that each officer’s actions 14 themselves rise to the level of a constitutional violation.” Boyd v. Benton Cty., 374 F.3d 15 773, 780 (9th Cir. 2004). “But it does require some fundamental involvement in the 16 conduct that allegedly caused the violation.” Blankenhorn, 485 F.3d at 481 n.12 (citing 17 Boyd, 374 F.3d at 780). Where a “genuine issue of material fact exists that prevents a 18 determination of qualified immunity at summary judgment, the case must proceed to 19 trial.” Bonivert v. Clarkson, 883 F.3d 865, 871-72 (9th Cir. 2017). Courts may consider 20 the two prongs of the qualified immunity analysis in any order. See Chism v. 21 Washington, 661 F.3d 380, 386 (9th Cir. 2011). 22 // 1 With the above principles in mind, the court analyzes Plaintiffs’ 42 U.S.C. § 1983 2 claims in turn to determine (1) whether they assert the deprivation of a constitutional 3 right supported by evidence in the record, and (2) if so, whether the right was clearly 4 established at the time State Defendants allegedly violated it. 5 1. Due Process 6 Plaintiffs’ substantive due process and procedural due process claims have 7 substantial factual overlap. Plaintiffs allege that State Defendants “wrongfully initiated, 8 facilitated, maintained, and failed to timely terminate the dependency actions regarding 9 J.L. and L.L.” by “[p]ossessing but failing to disclose . . . information indicating that 10 J.L.’s physical condition was due to medical problems outside Ms. Chen and Mr. Lian’s 11 control . . . information indicating that neither J.L. nor L.L. were at risk of imminent 12 harm in their own home . . . [and] information indicating that J.L.’s condition was not 13 solely attributable to Ms. Chen and Mr. Lian’s care.” (See FAC ¶ 188, 201.) Plaintiffs 14 contend that by doing so, State Defendants violated Ms. Chen’s and Mr. Lian’s 15 “protected liberty interests under the United States Constitution in the companionship and 16 society of their children, including the right to live with and care for their children . . . .” 17 (See FAC ¶ 192.) Plaintiffs further allege that State Defendants “deprived Plaintiffs of 18 their legal right to due process of law by, inter alia, depriving them of an unbiased 19 tribunal with a full and fair record of evidence pertaining to the dependency proceedings 20 regarding J.L. and L.L.” (See id. ¶ 204.) 21 “A claim of interference with the parent/child relationship may be brought as 22 either a procedural due process claim or a substantive due process claim.” Ninth Circuit 1 Model Civil Jury Instructions § 3.2 cmt. (citing Smith v. City of Fontana, 818 F.2d 1411, 2 1419 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 3 F.3d 1037, 1039 n.9 (9th Cir. 1999)). Although the allegations of substantive and 4 procedural due process overlap, they are analyzed “under a distinct standard.” Ninth 5 Circuit Manual of Model Civil Jury Instructions § 3.2 comment. 6 a. Substantive Due Process 7 State Defendants contend that they are entitled to qualified immunity on Plaintiffs’ 8 substantive due process claims because nothing they did amounts to “egregious conduct 9 or the use of force,” or actions that “shock[] the conscience.” (See MSJ at 7 (quoting 10 Ninth Circuit Manual of Model Civil Jury Instructions § 3.2 comment (quoting Gantt v. 11 City of L.A., 717 F.3d 702, 707 (9th Cir. 2013))).) On procedural due process, State 12 Defendants contend that they are entitled to qualified immunity because (1) the Seattle 13 Police Department originally took J.L. into protective custody, (2) legitimate medical 14 concerns about J.L. justified interference in the parent-child relationship, (3) the King 15 County Superior Court ordered that J.L. be removed from his parents, and (4) “[a]t all 16 stages of the shelter care proceedings, Ms. Chen and Mr. Lian had notice and an 17 opportunity to be heard, had access to counsel, and had interpreters provided or 18 proceedings delayed until interpreters were available.” (See MSJ at 7.) State Defendants 19 also point to this court’s prior order that held that City Defendants had probable cause to 20 charge Ms. Chen with criminal mistreatment, which they contend means “there was also 21 probable cause to initiate a dependency to protect J.L. and L.L.” (Id. (citing 5/24/19 22 Order at 25).) 1 In response, Plaintiffs rely heavily on Lesley v. DSHS, 921 P.2d 1066 (Wash. Ct. 2 App. 1996), which they describe as “a seminal case involving facts closely analogous to 3 those here.” (See Chen Resp. at 15, 27 (citing Lesley, 921 P.2d at 267-70).) In that case, 4 the Washington Court of Appeals held that a DSHS social worker was not entitled to 5 qualified immunity when he failed to confirm a provider’s incorrect diagnosis that a mark 6 on a child was a bruise and not a birthmark before removing the child from her parents’ 7 custody. Lesley, 921 P.2d at 267. Plaintiffs contend that “[a]t least since Lesley, if not 8 before, DSHS and its employees have known that the failure to seek a clarifying 9 diagnosis, and the making of disparaging and prejudicial comments based on biased or 10 partial information, which prolong the separation of parents and children, is conduct that 11 violates the right of family unity.” (See Chen Resp. at 23 (citing Lesley, 921 P.2d at 12 279).) 13 In reply, State Defendants contend that “Plaintiffs have done exactly what the 14 Supreme Court has cautioned against doing when considering due process claims— 15 defining the establish[ed] right at the highest level rather than applied to the facts of the 16 case.” (Reply at 9.) Instead, State Defendants “submit the relevant question . . . is 17 whether all reasonable socials [sic] workers confronted with conflicting medical 18 opinions, including medical opinions from recognized experts in child abuse and neglect 19 would have known their conduct violated plaintiffs’ constitutional rights when they 20 elected to protect the child, even if that resulted in out-of-home placement.” (Id.) State 21 Defendants argue that “[q]ualified immunity exists for exactly cases like this one. . . . It is 22 undisputed J.L. had serious medical conditions, that he had lost weight over the course of 1 a year, that his bodily functions were abnormal, and that numerous medical care 2 providers expressed serious concerns about his well-being.” (See id.) “It is further 3 undisputed that J.L.’s weight climbed while he was in the hospital and, with a brief 4 exception of fluctuation, trended upward throughout his time in foster care.” (See id. at 5 9-10.) 6 “[T]o establish a substantive due process claim a plaintiff must . . . show a 7 government deprivation of life, liberty, or property.” Costanich, 627 F.3d at 1110 8 (quoting Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998)). To rise to the 9 level of a constitutional due process violation actionable under 42 U.S.C. § 1983, “state 10 officials must act with such deliberate indifference to the liberty interest that their actions 11 ‘shock the conscience.’” Id. at 844 (quoting Brittain v. Hansen, 451 F.3d 982, 991 (9th 12 Cir. 2006) (citation omitted)). “Conduct that ‘shocks the conscience’ is ‘deliberate 13 indifference to a known or so obvious as to imply knowledge of, danger.’” Id. (quoting 14 Kennedy v. City of Ridgefield, 439 F.3d 1055, 1064 (9th Cir. 2006) (citation and internal 15 quotation marks omitted)). 16 Portions of Plaintiffs’ substantive due process claims are barred by the fact that 17 Ms. Danner or Ms. Kegel were not involved in the alleged conduct, and by absolute 18 immunity. See supra § III.C. As to the initial seizure of J.L., it was done by the Seattle 19 Police Department, Ms. Danner was not yet on the case, and Ms. Kegel had not yet been 20 hired by DSHS. (See Danner Case File at 2-4; RED00002 (“J.L. was taken into 21 protective custody by [the Seattle Police Department] and turned over to [CPS].”); 22 RED00814 (“[J.L.] was placed in protective custody by the police department.”).) 1 Furthermore, as discussed above, Ms. Danner’s decision to file a Dependency Petition 2 and advocate for dependency before the court is covered by absolute immunity. See 3 supra § III.C. 4 Accordingly, the conduct that remains for the court to evaluate through the lens of 5 qualified immunity is limited to Ms. Danner’s and Ms. Kegel’s investigations and 6 discretionary decisions regarding J.L.’s placement and care while in DSHS custody. 7 With that in mind, the court concludes that even viewed in the light most favorable to 8 Plaintiffs, Plaintiffs have not submitted evidence of State Defendants’ conduct that rises 9 to the level of a substantive due process violation. 10 Ms. Danner originally became involved with Plaintiffs’ family when she was 11 obligated to respond to three salient facts: (1) several medical providers who directly 12 treated J.L., in the span of a few days, found J.L., a three-year-old boy, with a “distended 13 abdomen” (RED00397) and “gross malnutrition and muscle wasting” (RED00792); (2) 14 on October 23, 2013, Ms. Chen “refused to take [J.L.] for admission, even after [Dr. 15 Halamay] stated that [she] felt admission was necessary given his abdominal distension, 16 weight loss, and worsening lab values” (RED00397); and (3) even after J.L. went to the 17 hospital, Ms. Chen had to be asked to leave the room “because of her erratic and 18 obstructionist behavior” (RED00930). Ms. Danner responded to several medical 19 professionals that all agreed that J.L. faced a life-threatening medical emergency and that 20 Ms. Chen was an obstacle to J.L. receiving the potentially life-saving care he needed. 21 Under the circumstances, the court concludes that no reasonable jury could conclude that 22 Ms. Danner’s actions “shock the conscience.” 1 Plaintiffs make a number of allegations to support their substantive due process 2 claim against Ms. Danner. First, they allege that after the 72-hour hearing, Ms. Danner 3 “did not conduct an investigation consistent with DSHS policies and procedures or that 4 addressed the Court’s concerns.” (See Chen Resp. at 6.) Plaintiffs contend that Ms. 5 Danner’s Investigative Assessment “largely repeated the same allegations identified in 6 the [Dependency Petition] and concluded that the allegations of Negligent Treatment or 7 Maltreatment of J.L. were founded.” (Chen Resp. at 6 (citing 2d Lo Decl. ¶¶ 4, 7, Exs. 3, 8 6).) Second, Plaintiffs contend that Ms. Danner failed to deliver the autism report to Dr. 9 Migita, who did not have the report prior to his testimony at the 72-hour hearing, and did 10 not arrange for Dr. Migita to speak with Dr. Green or the parents. (See Chen Resp. at 11 6-7.) Third, Plaintiffs contend that Ms. Danner stated that J.L. gained almost two pounds 12 while in the hospital, and “continues to gain weight in foster care,” when in fact J.L. lost 13 two pounds in four days while in SCH’s care, and “lost another 1.5 lbs. by November 14 20,” 2013, while in foster care—despite Commissioner Hillman’s interest in J.L.’s weight 15 in out-of-home care, and Ms. Danner’s admission that it would be important to note that 16 J.L. lost weight in foster care. (See Chen Resp. at 7.) 17 Although Plaintiffs’ allegations raise questions about Ms. Danner’s investigation, 18 the court finds that even viewing the facts in the light most favorable to Plaintiffs, no 19 reasonable jury could conclude that Ms. Danner’s conduct “shocks the conscience.” Ms. 20 Danner’s Investigative Assessment was completed roughly two weeks after the 72-hour 21 dependency hearing. (See Investigative Assessment at 1.) The assessment included 22 J.L.’s autism diagnosis, but also stated that the provider at SCH suspected an attachment 1 disorder, and that J.L.’s health issues are “due to gross malnourishment and social 2 deprivation.” (See id. at 6.) Although Plaintiffs take issue with the SCH provider’s 3 diagnosis, they do not explain how including providers’ competing views in Ms. 4 Danner’s Investigative Assessment constitutes “egregious” conduct by Ms. Danner that 5 “shocks the conscience.” 6 Second, although Ms. Danner did not directly present the Lakeside Autism Report 7 to Dr. Migita, Dr. Migita was made aware of the report the day after the hearing 8 concluded. Ms. Dilorio of the AGO emailed Dr. Migita on October 21, 2013, telling him 9 that “the court ‘wanted you to get the Autism report from Lakeside Autism Center. I 10 think Kim is going to get that to you.’” (2d Lo Decl. ¶ 8, Ex. 7 at 2.) 11 Third, SCH records show that J.L.’s weight when admitted to SCH on October 24, 12 2013 was 12.2 kilograms, increased to 14.6 kilograms on November 3, 2013, then 13 decreased to 13.7 kilograms by November 7, 2013. (2d Lo Decl. ¶ 45, Ex. 44.) 14 However, there is no evidence that Ms. Danner’s potentially inaccurate statement in the 15 Investigative Assessment shows a “deliberate indifference to a known or so obvious as to 16 imply knowledge of, danger.” Tamas, 630 F.3d at 844 (quoting Kennedy v. City of 17 Ridgefield, 439 F.3d 1055, 1064 (9th Cir. 2006) (citation and internal quotation marks 18 omitted)). Plaintiffs provide no evidence that Ms. Danner was aware of J.L.’s weight but 19 decided to report it inaccurately, or was deliberately ignorant of it. (See generally Chen 20 Resp.); Tamas, 630 F.3d at 844. Furthermore, Plaintiffs’ contention that Ms. Danner 21 should have included the November 20, 2013, weight in her Investigative Assessment is 22 // 1 without merit, because Ms. Danner’s Investigative Assessment was already complete at 2 that time. (See Investigative Assessment.) 3 Additionally, Ms. Chen’s own exhibit at the shelter care hearing showed that J.L. 4 had not gained any weight for an entire year prior to the shelter care hearing. (See 5 10/30/13 Hearing Tr. at 7.) Moreover, Plaintiffs do not dispute that they weighed J.L. 6 during visitations, and thus his weight was not a secret that Ms. Danner or Ms. Kegel was 7 failing to disclose. (See generally Chen Resp.) 8 Plaintiffs also assert that Ms. Kegel violated their substantive due process rights 9 by failing to conduct an adequate investigation and by failing to share objective evidence 10 of J.L.’s condition with his parents. (See Chen Resp. at 7). Plaintiffs also contend that 11 Ms. Kegel failed to heed the advice of doctors and therapists who had worked with J.L. 12 (See Chen Resp. at 8). Third, Plaintiffs contend that Ms. Kegel failed to provide Ms. 13 Chen with medical records from SCH. (See Chen Resp. at 3.). Fourth, Plaintiffs argue 14 that Ms. Kegel failed to ensure J.L. was doing well in foster care and ignored signs that 15 he was not. (See Chen Resp. at 12). 16 Like Plaintiffs’ allegations against Ms. Danner, the court concludes that no 17 reasonable jury could conclude that Ms. Kegel’s alleged conduct violates Plaintiffs’ 18 substantive due process rights. The evidence Plaintiffs have submitted shows, at most, 19 that Ms. Kegel did not fully investigate J.L.’s health conditions with all of J.L.’s 20 multitude of health providers—many of whom had competing views. Additionally, even 21 if the court credits Ms. Chen’s testimony that J.L.’s condition declined while in State 22 // 1 custody, it does not follow that Ms. Kegel was “deliberately ignorant” of imminent 2 danger to J.L. 3 The court further concludes that even if there was a genuine dispute of material 4 fact about a substantive due process violation, Plaintiffs have not met their burden to 5 persuade the court that a substantive due process right as Plaintiffs describe it is clearly 6 established. Plaintiffs’ reliance on Lesley is misplaced. (See Chen Resp. at 15, 27 (citing 7 Lesley, 921 P.2d at 267-70).) In Lesley, the court held that a DSHS social worker was not 8 entitled to qualified immunity when he failed to confirm a provider’s incorrect diagnosis 9 that a mark on a child was a bruise and not a birthmark before removing the child from 10 her parents’ custody. See Lesley, 921 P.2d at 267. In contrast to Lesley, J.L. was already 11 removed from his parents’ custody by the Redmond Police Department when DSHS 12 became involved. (See Danner Case File at 2-4.) 13 More importantly, Lesley is no longer—and likely never was—good law with 14 respect to qualified immunity. In a subsequent case in the same court, the court declined 15 to follow Lesley because it believes “that it is contrary to United States Supreme Court 16 precedent requiring that a clearly established constitutional right be established with 17 particularity based on prior decisional law.” Petcu v. State, 86 P.3d 1234, 1249 (citing 18 Saucier, 533 U.S. at 200-01). In doing so, the Washington Court of Appeals stated that 19 the Lesley court “assumed, without analysis, that a constitutional ‘family unity right’ was 20 well established.” Id. (citing Lesley, 921 P.2d at 1074-75). The court rejected Lesley’s 21 generalized formulation of the right at stake because it “falls short of the inquiry 22 necessary to ensure that a state official had notice that his or her conduct would violate a 1 constitutional right.” See id. It then noted that the Washington Court of Appeals has 2 previously held that “there is no well-established constitutional right to the 3 companionship of children whom one abused or neglected, and thus made dependent, 4 according to a final and appealable dependency judgment.” Id. at 1250 (quoting Miles, 6 5 P.3d at 121). The court acknowledged that the finding that the parent had sexually 6 abused the child was ultimately overturned. See id. However, the court held this fact did 7 not negate qualified immunity, because “when [the social worker] investigated, there was 8 reasonable cause to believe that [the parent] had sexually abused [the child].” See id. 9 Similarly, here, Commissioner Hillman found reasonable cause to believe that Ms. Chen 10 medically neglected J.L. (See 10/30/13 Hearing Tr. at 8.) And similarly, here, the fact 11 that DSHS later changed the “founded” determination to “unfounded” does not eliminate 12 qualified immunity for the State Defendants’ prior actions. (See 2d Lo Decl. ¶ 19, Ex. 13 18.) 14 Aside from Lesley, Plaintiffs do not cite to a single case in which a court has held 15 that a social worker was not entitled to qualified immunity for a substantive due process 16 claim based on allegations like those before the court here. (See generally Chen Resp.) 17 At the time Ms. Danner and Ms. Kegel took on this case, there was no clearly established 18 substantive due process right to the return of one’s child subsequent to a court’s 19 reasonable cause finding. 20 Plaintiffs also rely on Wallis v. Spencer, 202 F.3d 1126, 1132 (9th Cir. 2000). 21 (See Chen Resp. at 22.) In Wallis, police officers responded to a tip from “a mental 22 patient who had a long history of delusional disorders and was confined to a mental 1 institution[, who] told her therapist a fantastic tale of Satanic witchcraft within her family 2 and an impending child sacrifice.” Wallis, 202 F.3d at 1131. Officers, “evidently acting 3 on the basis of a non-existent court order, seized the children, aged two and five, placed 4 them in a county-run institution, and several days later, without obtaining judicial 5 authorization and without notifying their parents, took them to a hospital for the 6 performance of highly intrusive anal and vaginal physical examinations.” Id. The court 7 noted that the facts of that case “were extraordinary in every sense of the word.” See id. 8 at 1140. 9 The facts of Wallace are far afield from the facts in this case, and they cannot be 10 lumped together neatly as two cases in which “investigators relied on weak and suspect 11 evidence to justify removal of [a] child.” (See Chen Resp. at 22.) Here, in contrast to 12 Wallace, J.L. was removed from his parents’ custody not by the State Defendants but by 13 the Redmond Police Department, and based on reports from several different medical 14 providers who had evaluated J.L. in person. See RED00002 (“J.L. was taken into 15 protective custody by [the Seattle Police Department] and turned over to [CPS].”); 16 RED00814 (“[J.L.] was placed in protective custody by the police department.”).) 17 Additionally, unlike in Wallis, here DSHS acted in response to a valid court order finding 18 reasonable cause after a three-day hearing with testimony from all sides. 19 For the reasons stated above, the court concludes that the State Defendants are 20 entitled to summary judgment on Plaintiffs’ substantive due process claims on the basis 21 of qualified immunity. 22 // 1 b. Procedural Due Process 2 Parents have a procedural due process claim where “a state official removes 3 children from their parents without their consent, and without a court order, unless 4 information at the time of the seizure, after reasonable investigation, establishes 5 reasonable cause to believe that the child is in imminent danger of serious bodily injury, 6 and the scope, degree, and duration of the intrusion are reasonably necessary to avert the 7 specific injury at issue.” Keates v. Koile, 883 F.3d 1228, 1237-38 (9th Cir. 2018). 8 Additionally, “deliberately fabricating evidence in civil child abuse proceedings violates 9 the Due Process clause of the Fourteenth Amendment when a liberty or property interest 10 is at stake.” Costanich, 627 F.3d at 1107-08. However, “mere allegations that 11 [d]efendants used interviewing techniques that were in some sense improper, or that 12 violated state regulations, without more, cannot serve as the basis for a claim under 13 § 1983.” Costanich, 627 F.3d at 1111 (quoting Devereaux v. Abbey, 263 F.3d 1070, 1076 14 (9th Cir. 2001) (en banc)). 15 State Defendants are entitled to qualified immunity with respect to Plaintiffs’ 16 procedural due process claims because “information at the time of the seizure, after 17 reasonable investigation, establishe[d] reasonable cause to believe that [J.L. was] in 18 imminent danger of serious bodily injury, and the scope, degree, and duration of the 19 intrusion [were] reasonably necessary to avert the specific injury at issue.” See Keates, 20 883 F.3d at 1237-38. Putting aside the fact that the Seattle Police Department, not the 21 State Defendants, put J.L. into protective custody, State Defendants were faced with 22 sufficient information to establish reasonable cause that J.L. was in imminent danger. 1 Further, Plaintiffs received robust process throughout the dependency case. 2 Plaintiffs had notice of and were present with an attorney at the 72-hour dependency 3 hearing, along with an interpreter. (See, e.g., 10/28/13 Hearing Tr. at 2-14.) The court 4 heard testimony from witnesses both in favor of and against out-of-home placement for 5 J.L., including the medical provider whose autism diagnosis had not yet been provided to 6 Dr. Migita. (See generally 10/28/13 Hearing Tr.; 10/29/13 Hearing Tr.; 10/30/13 Hearing 7 Tr.) The court evaluated testimony, including an exhibit from Ms. Chen herself, that J.L. 8 had not gained any weight for approximately one year. (See 10/30/13 Hearing Tr. at 7.) 9 The court specifically considered and weighed the potential effect of autism on J.L.’s 10 weight against the potential effect of medical neglect. (See id. at 8 (“It may be because, 11 as an autistic child, he has problems digesting and absorbing food, but I have evidence 12 that since his admission into Children’s Orthopedic Hospital, he has been eating almost 13 every food they give him with no apparent distress and he has gained 1.8 pounds.”).) The 14 court did not fault Ms. Chen for taking J.L. to Dr. Green or a naturopath, but based on 15 J.L.’s failure to gain weight for a year, followed by gaining 1.8 pounds in one week at 16 SCH and his malnourishment diagnosis, the court concluded that DSHS showed 17 reasonable cause that keeping J.L. with his parents could create substantial harm. (See id. 18 at 8-9.) 19 Plaintiffs were also represented by counsel in filing a motion for revision of 20 shelter care order and up to the point where the State decided to drop the case. (See 21 Barbara Decl. ¶ 2, Ex. A at 36; 2d Lo Decl. ¶ 18, Ex. 17.) Plaintiffs complain of delays, 22 // 1 but the court is aware of no authority under which a short continuance constitutes a due 2 process violation. 3 Plaintiffs’ remaining allegations that touch on procedural due process involve 4 allegations that State Defendants made false statements or omitted key information in 5 their presentations to the court. (See generally Chen Resp.) As discussed above, Ms. 6 Danner and Ms. Kegel are entitled to absolute immunity for their advocacy for the State 7 before the court in the dependency case, unless they deliberately fabricated evidence. See 8 supra § III.C. Plaintiffs contend that Ms. Danner made “many false or misleading 9 allegations” in the Dependency Petition. (See Chen Resp. at 3.) However, none rise to 10 the level of deliberate fabrication. The primary false statement on which Plaintiffs base 11 their argument is the statement that Ms. Chen refused to take J.L. to emergency care on 12 October 20, 2013. (See Dependency Petition (“The mother refused . . . against [m]edical 13 [a]dvice.”).) The statement was ultimately revealed to be incorrect. (See 2d Lo Decl. 14 ¶ 18, Ex. 17 at 2.) However, no reasonable juror could find that this statement was a 15 “deliberate fabrication” by the State Defendants. First, the statement originated from a 16 medical provider, Dr. Halamay. (See RED00397 (stating that the Chen family “did not 17 go to [the emergency department] as recommended.”).) Second, Dr. Halamay testified at 18 the shelter care hearing. (See Barbara Decl. ¶ 2, Ex. A at 16.) Third, the gravity of the 19 statement’s inaccuracy is offset at least in part by the fact that Ms. Chen in fact did refuse 20 to take J.L. to emergency care just three days later, on October 23, 2013, until a social 21 worker arrived at her house. (See RED00397; RED00814; 1st Chen Decl. ¶ 33.) 22 // 1 For the reasons stated above, the court concludes that the State Defendants are 2 entitled to summary judgment on Plaintiffs’ procedural due process claims on the basis of 3 qualified immunity. 4 c. Unlawful Seizure 5 A substantial portion of Plaintiffs’ Fourth Amendment claim is based on State 6 Defendants’ actions when they “initiated, facilitated, and maintained the dependency 7 actions regarding J.L. and L.L.” (See FAC ¶¶ 210, 213.) However, as discussed above, 8 “the initiation and pursuit of child-dependency proceedings [are] prosecutorial in nature 9 and warrant absolute immunity on that basis.” Miller, 335 F.3d at 896 (citing Meyers, 10 812 F.2d at 1157)). Accordingly, Ms. Danner and Ms. Kegel are absolutely immune 11 from Plaintiffs’ Fourth Amendment claims based on these actions, and the court need not 12 address them through the lens of qualified immunity. 13 Plaintiffs also contend that State Defendants violated their Fourth Amendment 14 rights by taking L.L. and J.L. “from the custody and care of their parents without 15 probable cause and based on false and incomplete evidence.” (FAC ¶ 215.) Plaintiffs 16 assert that “[w]hen children are seized by the state, their claims are assessed under the 17 Fourth Amendment.” (Chen Resp. at 22.) 18 “The Fourth Amendment guarantees that parents will not be separated from their 19 children without due process of law except in emergencies.” Doe v. Lebbos, 348 F.3d 20 820, 827 (9th Cir. 2003), overruled on other grounds by Beltran v. Santa Clara Cty., 514 21 F.3d 906 (9th Cir. 2008) (quoting Mabe, 237 F.3d at 1107). “Officials may remove a 22 child from the custody of [his or her] parent without prior judicial authorization only if 1 the information they possess at the time of the seizure is such as provides reasonable 2 cause to believe that the child is in imminent danger of serious bodily injury and that the 3 scope of the intrusion is reasonably necessary to avert that specific injury.” Doe, 348 4 F.3d at 827 (quoting Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000)). 5 Although Plaintiffs refer generally to the Fourth Amendment right described 6 above, they do not explain how Ms. Danner or Ms. Kegel’s actions constitute a Fourth 7 Amendment violation. See Blankenhorn, 485 F.3d at 481 n.12 (“[A] state official’s 8 liability under section 1983 is predicated on his integral participation in the alleged 9 violation.”) (internal quotation omitted). Police officers, not DSHS, originally placed 10 J.L. into protective custody. (See Danner Case File at 2-4; RED00002 (“J.L. was taken 11 into protective custody by [the Seattle Police Department] and turned over to [CPS].”); 12 RED00814 (“[J.L.] was placed in protective custody by the police department.”).) 13 The 72-hour dependency hearing occurred on October 28-30, 2013, while J.L. 14 was still being treated at SCH for malnourishment and dehydration. At the hearing, 15 Commissioner Hillman concluded that DSHS showed reasonable cause to remove J.L. 16 from his parents’ custody. (See 10/30/13 Hearing Tr. at 8.) Plaintiffs do not explain how 17 Ms. Danner was an integral participant in any “seizure” of J.L. under these 18 circumstances. (See generally Resp.) Moreover, Ms. Kegel had not even been assigned 19 to the case at the time of the dependency hearing. (See Kegel Dep. at 80:22-81:3.) 20 To the extent Plaintiffs’ theory—unexplained in their briefing—is that Ms. Danner 21 and Ms. Kegel “seized” J.L. after he was already lawfully in state custody by court order, 22 by failing to disclose information that tends to show that Ms. Chen was mistreating J.L. 1 less than the evidence originally showed, the court will not entertain it. Plaintiffs do not 2 provide any authority under which this alleged conduct constitutes an unlawful seizure 3 under the Fourth Amendment, and the court is aware of none. Accordingly, the State 4 Defendants are entitled to summary judgment on qualified immunity grounds with 5 respect to Plaintiffs’ Fourth Amendment claim. 6 Having concluded that Ms. Danner and Ms. Kegel are entitled to absolute 7 immunity for their advocacy in the dependency proceedings, and qualified immunity on 8 all three of Plaintiffs’ 42 U.S.C. § 1983 claims, the court GRANTS summary judgment in 9 favor of State Defendants on all of Plaintiffs’ Section 1983 claims.12 10 E. Plaintiffs’ State Law Claims 11 1. Negligent Investigation 12 There is no common law cause of action for negligent investigation under 13 Washington law. Ducote v. State, Dep’t of Soc. & Health Servs., 186 P.3d 1081, 1082 14 (Wash. Ct. App. 2008), aff’d, 222 P.3d 785 (Wash. 2009) (citing Dever v. Fowler, 816 15 P.2d 1237, 1242 (Wash. Ct. App. 1991)). However, the Washington Supreme Court has 16 determined that RCW 26.44.050 creates a private right of action based on “DSHS’s 17 statutory duty to investigate child abuse.” See id. (citing Bennett v. Hardy, 784 P.2d 18 19 12 Plaintiffs do not make any argument with respect to Bill Moss and do not describe any conduct of his that shows him to be an integral participant in this case. (See generally Chen 20 Decl.) Additionally, Plaintiffs present no argument that any abstract role Mr. Moss played violated a well-established and specifically defined constitutional right or that Mr. Moss had any role in the allegations that relate to Plaintiffs’ state law claims. Accordingly, the court concludes 21 that Mr. Moss is entitled to qualified immunity on Plaintiffs’ Section 1983 claims, and further concludes that Plaintiffs have not met their burden to show a genuine dispute of fact that Mr. 22 Moss is liable for any of Plaintiffs’ state law claims. 1 1258, 1261-62 (Wash. 1990); Tyner v. Dep’t of Soc. & Health Servs., 1 P.3d 1148, 1155 2 (Wash. Ct. App. 2000)). That statute provides: 3 [U]pon the receipt of a report concerning the possible occurrence of abuse or neglect, the law enforcement agency or the department must investigate and 4 provide the protective services section with a report in accordance with chapter 74.13 RCW, and where necessary to refer such report to the court. 5 RCW 26.44.050. The Washington Supreme Court further held that “the duty to use 6 reasonable care in investigating allegations of child abuse is owed to a child’s parents, 7 even those suspected of abusing their own children.” Tyner, 1 P.3d at 1155. 8 “A negligent investigation claim is available only when law enforcement or DSHS 9 conducts an incomplete or biased investigation that ‘resulted in a harmful placement 10 decision.’” McCarthy v. Cty. of Clark, 376 P.3d 1127, 1134 (Wash. Ct. App. 2016) 11 (quoting M.W. v. Dep’t of Soc. & Health Servs., 70 P.3d 954, 955 (Wash. 2003). “A 12 harmful placement decision includes ‘removing a child from a nonabusive home, placing 13 a child in an abusive home, or letting a child remain in an abusive home.’” Id. (quoting 14 M.W., 70 P.3d at 960). To prevail on a negligent investigation claim, “the claimant must 15 prove that the allegedly faulty investigation was a proximate cause of the harmful 16 placement.” See Petcu, 86 P.3d at 1244. 17 “A negligent investigation may be the cause in fact of a harmful placement even 18 when a court order imposes that placement.” McCarthy, 376 P.3d at 1135 (citing Tyner, 19 1 P.3d at 1156). “Liability in this situation depends upon what information law 20 enforcement or DSHS provides to the court.” Id. (citing Tyner, 1 P.3d at 1157-58). “A 21 court order will act as a superseding cause that cuts off liability ‘only if all material 22 1 information has been presented to the court.’” Id. (quoting Tyner, 1 P.3d at 1158 2 (holding that whether a social worker failed to inform the court that he had determined 3 the allegations against a parent were unfounded was material was a question of fact for 4 the jury)). Additionally, the materiality of an investigator’s failure to interview “key 5 collateral sources” is a question of fact for the jury. See id. at 1158-59. 6 In addition to concealment of a material fact, “negligent failure to discover 7 information may subject the State to liability even after adversarial proceedings have 8 begun.” Id. at 1156. In Tyner, the court reversed a grant of summary judgment for a 9 social worker where the social worker determined that the allegations against the plaintiff 10 were unfounded, concluding that the fact that the social worker reached this conclusion 11 was “a fact that might have been relied on by the court in making its decision.” See id. at 12 1158. The court also found that whether the caseworkers’ alleged failure to “interview 13 collateral sources, and in turn fail[ure] to deliver the information to the court that these 14 sources would have provided” were material facts was a question for the jury. See id. at 15 1158-59. 16 State Defendants do not contest that DSHS changed its finding of Ms. Chen’s 17 medical neglect from “founded” to “unfounded,” in what a State witness described as a 18 rare occurrence. (See generally Mot.; Reply; 2d Lo Decl. ¶ 29, Ex. 28 (“Allison-Noone 19 Dep.”) at 78:6-81:22.) Accordingly, the court concludes that there are questions of 20 material fact as to whether a “harmful placement decision” was made when J.L. was 21 removed from “a non-abusive home.” See McCarthy, 376 P.3d at 1134 (quoting M.W., 22 70 P.3d at 955). 1 State Defendants contend that Commissioner Hillman’s shelter care order operates 2 as a superseding cause of out-of-home placement for J.L. (See MSJ at 12-13.) Plaintiffs 3 respond that State Defendants failed to present material information to the court. (See 4 Chen Resp. at 16.) Additionally, Plaintiffs contend that DSHS is liable for negligent 5 investigation after the shelter care order because each time DSHS moved J.L. to a new 6 foster home counts as an additional “harmful placement.” (Chen Resp. at 17.) 7 Here, viewing the facts in the light most favorable to Plaintiffs, they have 8 identified facts that a jury could deem material prior to Commissioner Hillman’s October 9 30, 2013, shelter care order. First, a jury could determine that Ms. Danner’s failure to 10 discuss J.L.’s care with his remaining treating providers prior to the shelter care hearing 11 constitutes a material failure to interview collateral sources. Although Dr. Green and Dr. 12 Gbedawo were present at the hearing and testified in favor of Ms. Chen, the court cannot 13 conclude as a matter of law that interviewing J.L.’s other medical providers did not 14 preclude material information from reaching Commissioner Hillman. And while 15 Commissioner Hillman heard testimony from Dr. Green regarding J.L.’s autism, 16 interviews with J.L.’s other providers may have confirmed the autism more clearly before 17 the hearing, and may have changed Dr. Migita’s testimony that suggested medical 18 neglect, not autism, was the cause of J.L.’s medical issues. 19 Second, the Dependency Petition stated that Ms. Chen refused to take J.L. to the 20 emergency department on October 20, 2013, a determination that ultimately was 21 determined to be incorrect. (See Dependency Petition.) Whether this incorrect 22 determination was due to Ms. Danner’s negligence or to another cause, and whether it 1 was a material fact that would have changed Commissioner Hillman’s determination, are 2 fact questions for the jury. 3 However, the court agrees with State Defendants that J.L.’s placements in 4 subsequent foster homes following his initial placement cannot constitute additional 5 harmful placement decisions. Although Plaintiffs contend that J.L. regressed in foster 6 care, they make no allegations constituting abuse by the foster parents. (See generally 7 Chen Resp.); M.W., 70 P.3d at 955 (“A harmful placement decision includes removing a 8 child from a nonabusive home, placing a child in an abusive home, or letting a child 9 remain in an abusive home.”). Accordingly, the only harmful placement decision at issue 10 in this case is the removal of J.L. from his nonabusive home as a result of the 11 Dependency Petition and the shelter care order. Therefore, the only portion of Plaintiffs’ 12 negligent investigation claim that can survive summary judgment relates to Ms. Danner’s 13 investigation prior to Commissioner Hillman’s October 30, 2013 shelter care order. 14 Additionally, because Ms. Kegel was not involved with J.L.’s case until after the shelter 15 care order was issued, the court GRANTS State Defendants summary judgment on 16 Plaintiffs’ negligent investigation claim against Ms. Kegel. The court further agrees that 17 Ms. Danner cannot be held liable for negligent investigation if the information she is 18 accused of omitting was before Commissioner Hillman through another witness. See 19 Petcu, 86 P.3d at 1246. 20 Finally, the court disagrees with State Defendants that an expert witness is 21 required to determine the standard of care Ms. Danner should have followed during her 22 investigation of J.L.’s case. (See MSJ at 14.) State Defendants cite to no case that 1 requires an expert witness for a negligence case against a social worker, and the court 2 concludes that the jury is capable of deciding whether Ms. Danner conducted “an 3 incomplete or biased investigation” without expert testimony. (See generally MSJ); 4 Tyner, 1 P.3d at 1155 (holding that social workers have a “duty [to a child’s parents] to 5 use reasonable care in investigating allegations of child abuse”). 6 In sum, the court concludes that there a genuine dispute of material fact as to 7 whether Ms. Danner and DSHS made a “harmful placement decision” by removing J.L. 8 from a nonabusive home. The court further concludes that the shelter care order is a 9 superseding cause unless material facts were withheld from the court. As a result, at trial, 10 Plaintiffs must prove that Ms. Danner’s failure to interview additional collateral sources 11 or to provide accurate information regarding the October 20, 2013, emergency 12 department visit were material to Commissioner Hillman’s decision. The court GRANTS 13 in part and DENIES in part the State Defendants’ summary judgment motion with respect 14 to Plaintiffs’ negligent investigation claims. 15 2. IIED 16 The burden of proof on an IIED claim is stringent. See Lyons v. U.S. Bank Nat. 17 Ass’n, 336 P.3d 1142, 1151 (Wash. 2014). To prevail on an IIED claim, “a plaintiff must 18 prove (1) outrageous and extreme conduct by the defendant, (2) the defendant’s 19 intentional or reckless disregard of the probability of causing emotional distress, and (3) 20 actual result to the plaintiff of severe emotional distress.” Steinbock v. Ferry Cty. Pub. 21 Util. Dist. No. 1, 269 P.3d 275, 282 (Wash. Ct. App. 2011). 22 // 1 “The first element requires proof that the conduct was ‘so outrageous in character, 2 and so extreme in degree, as to go beyond all possible bounds of decency, and to be 3 regarded as atrocious, and utterly intolerable in a civilized community.’” Lyons, 336 4 P.3d at 1151 (quoting Robel v. Roundup Corp., 59 P.3d 611, 619 (Wash. 2002); Dicomes 5 v. State, 782 P.2d 1002, 1012 (Wash. 1989)). “The question of whether certain conduct 6 is sufficiently outrageous is ordinarily for the jury, but it is initially for the court to 7 determine if reasonable minds could differ on whether the conduct was sufficiently 8 extreme to result in liability.” Id. (quoting Dicomes, 782 P.2d at 1013.) “It is for the 9 court to determine whether on the evidence severe emotional distress can be found; it is 10 for the jury to determine whether, on the evidence, it has in fact existed.” Id. (quoting 11 Restatement (Second) of Torts § 46 (Am. Law Inst. 1965)). 12 Plaintiffs’ IIED claim fails on the first element. Without opining on how Ms. 13 Danner and Ms. Kegel could have done their jobs better, no reasonable jury could find 14 that their actions were so outrageous in character, and so extreme in degree, as to go 15 beyond “all possible bounds of decency.” See, e.g., Waller v. State, 824 P.2d 1225, 1235 16 (Wash. Ct. App. 1992) (“While it is true that substantial evidence has shown that the 17 caseworkers were in error when they believed Frances’ allegations, the caseworkers were 18 supported in part by the expert opinions of therapists. Thus, their conduct cannot be said 19 to have been outrageous.”). Accordingly, the court GRANTS summary judgment in 20 favor of State Defendants on Plaintiffs’ IIED claim. 21 // 22 // 1 3. Negligent Infliction of Emotional Distress 2 Negligent infliction of emotional distress is a narrowly construed tort that is 3 limited to “those individuals who are most likely to be severely impacted by ‘the shock 4 caused by the perception of an especially horrendous event.’” Bylsma v. Burger King 5 Corp., 293 P.3d 1168, 1175 (Wash. 2013) (quoting Colbert v. Moomba Sports, Inc., 176 6 P.3d 497, 502 (Wash. 2008)). The “horrendous event” must encompass “conditions 7 analogous to seeing a ‘crushed body’ . . . or hearing ‘cries of pain [or] dying words.’” Id. 8 (quoting Colbert, 176 P.3d at 504). A cause of action based on bystander negligent 9 infliction of emotional distress occurs only “where a plaintiff witnesses the victim’s 10 injuries at the scene of an accident shortly after it occurs and before there is [a] material 11 change in the attendant circumstances.” Colbert, 176 P.3d at 503 (quoting Hegel v. 12 McMahon, 960 P.2d 424, 429 (Wash. 1998)). 13 Additionally, a plaintiff must prove: “(1) the emotional distress is within the 14 scope of foreseeable harm of the negligent conduct, (2) the plaintiff reasonably reacted 15 given the circumstances, and (3) objective symptomatology confirms the distress.” Repin 16 v. State, 392 P.3d 1174, 1184 (Wash. Ct. App. 2017) (citing Bylsma, 293 P.3d at 17 1170-71)). 18 “[T]o satisfy the objective symptomology requirement . . . a plaintiff’s emotional 19 distress must be susceptible to medical diagnosis and proved through medical evidence.” 20 Hegel v. McMahon, 960 P.2d 424, 431 (Wash. 1998). The plaintiff must provide 21 “objective evidence regarding the severity of the distress, and the causal link between the 22 observation at the scene and the subsequent emotional reaction.” Id. 1 Here, Plaintiffs fail to create a genuine dispute of material fact on two elements. 2 First, Plaintiffs do not identify an “especially horrendous event” akin to “seeing a crushed 3 body . . . or hearing cries of pain or dying words.” (See generally Resp.) Second, 4 Plaintiffs cannot prove causation with the evidence submitted to the court. Plaintiffs 5 provide evidence of objective symptomology from treating providers. (See, e.g., Chan 6 Decl. ¶ 18 (“Ms. Chen continues to suffer from clinical depression and anxiety.”).) 7 However, Plaintiffs disclosed no expert witnesses in this case, and therefore are unable to 8 provide competent causation evidence. See supra § III.A; see also Urena, 659 F.3d at 9 908 (“[A] physician’s assessment of the cause of an injury is expert testimony.”); 10 Henderson, 409 F.3d at 1300 (“Her diagnosis of the injury itself . . . would be permissible 11 lay testimony, but her statement about the cause of the injury was, as she admitted, a 12 ‘hypothesis.’ And the ability to answer hypothetical questions is the essential difference 13 between expert and lay witnesses.” (internal quotation and alteration omitted)); Wills, 379 14 F.3d at 46 (holding that, where the cause of an injury would not be obvious to a lay juror, 15 expert testimony is required)). 16 Accordingly, the court GRANTS summary judgment in favor of the State 17 Defendants on Plaintiffs’ claim for negligent infliction of emotional distress. 18 IV. CONCLUSION 19 For the reasons set forth above, the court GRANTS in part and DENIES in part the 20 State Defendants’ motion for summary judgment (Dkt. # 189); GRANTS summary 21 judgment in full in favor of Defendants Bill Moss and Jill Kegel; GRANTS summary 22 judgment in favor of Defendants Kimberly Danner and Washington State Department of 1 Social and Health Services with the exception of Count IX: Negligent Investigation; 2 GRANTS in part and DENIES in part State Defendants’ motion to strike portions of 3 Plaintiffs’ declarations; GRANTS Ms. Chen’s and Mr. Lian’s motions to file surreplies 4 (Dkt. ## 221, 223); and ORDERS Ms. Chen and Mr. Lian to file the surreplies found at 5 docket numbers 221-1 and 223-3 on the docket within seven (7) days of the date of this 6 order. 7 Dated this 20th day of December, 2019. 8 A 9 10 JAMES L. ROBART United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22