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Rachel SCANLON, et al., Plaintiffs, v. COUNTY OF LOS ANGELES, et al., Defendants.
ORDER RE: MOTION FOR JUDGMENT ON THE PLEADINGS (DKT. NO. 83)
The matter before the Court is Defendants County of Los Angeles (the “County”), Marisol Gonzalez (“Defendant Gonzalez”), Marisha Harris (“Defendant Harris”), Angela Hashizume (“Defendant Hashizume”), and Lourdes Olarte's (“Defendant Olarte”) motion for judgment on the pleadings (the “Motion”) as to the First, Fourth, and Fifth Claims for Relief of the First Amended Complaint (“FAC”). (See Dkt. No. 83 (Mot.).) The Motion is fully briefed. (See Dkt. No. 91 (Opp.); Dkt. No. 92 (Reply).)
Plaintiff Rachel Scanlon (“Plaintiff Scanlon”) and Plaintiff Steven Sawyer (“Plaintiff Sawyer”) (collectively, “Parent Plaintiffs”) are the parents and guardians ad litem of plaintiffs K.X. and G.X., who are minor children (collectively, the “minor children”). (Dkt. No. 29 (First Amended Complaint (“FAC”)) at ¶¶ 4-7.) Plaintiff K.X. was born with autism and occasionally engaged in harmful or self-injurious behaviors. (Id. at ¶ 43.) On September 15, 2017, Defendant Olarte, a social worker employed by the County, visited Parent Plaintiffs’ home to investigate reports that K.X. appeared intoxicated at school. (Id. at ¶¶ 35, 46.) Plaintiff Scanlon explained to Defendant Olarte that Parent Plaintiffs were treating K.X.’s symptoms with cannabis oil pursuant to a doctor's recommendation. (Id. at ¶ 49.) The cannabis oil was contained in a medicine bottle located on a high shelf in Parent Plaintiffs’ kitchen. (Id. at ¶ 58.)
Later that day, Plaintiff Scanlon received a phone call from G.X.’s school notifying her that individuals from the Department of Children and Family Services (“DCFS”) privately interviewed G.X. (Id. at ¶ 71.) Parent Plaintiffs did not consent to the interview of G.X., nor did Defendants request such consent. (Id. at ¶¶ 72-73.)
Parent Plaintiffs attended a meeting with Defendant Olarte, Defendant Harris, and Defendant Gonzalez at the offices of DCFS on September 19, 2017. (Id. at ¶¶ 76, 78, 120.) During the meeting, Defendant Olarte and Defendant Harris expressed their concern to Parent Plaintiffs about the use of cannabis oil to treat K.X.’s symptoms and the method of storage of the cannabis oil in Parent Plaintiffs’ house. (Id. at ¶¶ 87, 90-110.) Neither Defendant Olarte nor Defendant Harris expressed any concerns or questions about G.X. being the victim of neglect, abuse, or child abuse. (Id. at ¶ 88.)
Defendants obtained a warrant authorizing the removal of K.X. and G.X. on September 27, 2017. (Id. at ¶ 126.) The FAC alleges Defendant Olarte, Defendant Gonzalez, and Defendant Harris obtained the warrant by making fraudulent and misleading statements. (Id. at ¶¶ 127-32.) G.X. and K.X. were removed from their schools on September 28, 2017, and placed in separate foster homes. (Id. at ¶¶ 133, 143.) Parent Plaintiffs had no physical contact with G.X. and K.X. until their first court appearance on October 2, 2017, when a court ordered the minor children be returned to Parent Plaintiffs. (Id. at ¶¶ 146, 160.) In a hearing on December 7, 2017, a court dismissed the case with prejudice after concluding “there was no evidence of any abuse or neglect of either child[.]” (Id. at ¶¶ 165-66, 168.)
The FAC alleges six claims for relief: (1) violations of the First, Fourth, and Fourteenth Amendments against Defendant Olarte and Defendant Gonzalez arising from the interview of G.X. without the consent of Parent Plaintiffs (First Claim for Relief); (2) violations of the Fourth and Fourteenth Amendments against Defendant Olarte, Defendant Gonzalez, and Defendant Harris arising from the removal of the minor children by way of a fraudulent or misleading warrant (Second Claim for Relief); (3) violation of the Fourteenth Amendment right to be free from deception in the presentation of evidence to the court against all Defendants (Third Claim for Relief); (4) violations of the Fourth and Fourteenth Amendments against Defendant Olarte and Defendant Gonzalez arising from medical examinations conducted on the minor children while they were in the custody of the County (Fourth Claim for Relief); (5) a Monell claim against the County (Fifth Claim for Relief); and (6) intentional infliction of emotional distress against Defendant Olarte, Defendant Gonzalez, Defendant Harris, and Defendant Hashizume (Sixth Claim for Relief).
Defendants moved to dismiss the initial complaint, which the Court granted-in-part with leave to amend.1 (See Dkt. No. 26.)
The Court has jurisdiction over this action under 28 U.S.C. § 1331.
III. LEGAL STANDARD
“Rule 12(c) is functionally identical to Rule 12(b)(6) and ․ the same standard of review is applied to motions brought under either rule.” United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (internal quotations marks omitted). Rule 12(b)(6) allows a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” To survive a motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). All well-pleaded facts are taken as true, with all reasonable inferences in favor of the plaintiff. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Labels, conclusions, or formulaic recitation of the elements of a cause of action will not suffice. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. A complaint must state “evidentiary facts which, if true, will prove [the claim].” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008).
A. First Claim for Relief
In the First Claim for Relief, Parent Plaintiffs and G.X. allege three constitutional violations against Defendant Olarte and Defendant Gonzalez arising from the interview of G.X. without the consent of Parent Plaintiffs: (1) a violation of the “right[ ] of familial association” under the Fourteenth Amendment, (2) an unreasonable search and seizure under the Fourth Amendment, and (3) a violation of the First Amendment right “to be free from unjustified, unreasonable, and unlawful interference in [Parent Plaintiff and G.X.’s] relationship.” (Id. at ¶¶ 172-174.)
Although the three constitutional violations are alleged in a single claim for relief, the Court analyzes each violation separately. See Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000) (“A claim is the ‘aggregate of operative facts which give rise to a right enforceable in the courts.’ [citation omitted].”). Defendants argue each claim is barred by qualified immunity. Moreover, Defendants argue the Fourteenth Amendment claim fails on the merits.
1. Fourth Amendment Violation
Defendants argue the violation of the Fourth Amendment asserted in the First Claim for Relief should be dismissed under the doctrine of qualified immunity. Government officials “are entitled to qualified immunity from damages unless Plaintiffs plead facts showing (1) that the officials violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Fazaga v. Federal Bureau of Investigation, 965 F.3d 1015, 1031 (9th Cir. 2020) (citation omitted; cleaned up). The Court is permitted to address either of the two prongs first in light of the circumstances of the case. Id. (citation omitted)
“For purposes of qualified immunity, a right is clearly established if, at the time of the challenged conduct, ‘the contours of a right are sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ” Id. (cleaned up; citation omitted) “This inquiry ․ must be undertaken in light of the specific context of the case, not as a broad general proposition.” Id. at 1031-32 (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). “[W]here the test for determining whether the right in question has been violated is framed as a standard, rather than a rule, officials are given more breathing room to make ‘reasonable mistakes.’ ” Id. at 1032 (citing Katz, 533 U.S. at 205, 121 S.Ct. 2151).
Defendants argue Defendant Olarte and Defendant Gonzalez are immune from liability under the Fourth Amendment for interviewing G.X. at school without the consent of Parent Plaintiffs pursuant to Capp v. County of San Diego, 940 F.3d 1046, (9th Cir. 2019). The Capp plaintiffs asserted the defendants violated the Fourth and Fourteenth Amendments when social workers interviewed the minor children without the consent of the father while they were at school. Id. at 1059. The Ninth Circuit affirmed the dismissal of the Fourth Amendment claim under the doctrine of qualified immunity, holding “the right of minor children to be free from unconstitutional seizures and interrogations by social workers has not been clearly established.” Id. The Circuit reasoned:
Plaintiffs rely on Greene v. Camreta, in which we held that social workers’ seizure and interrogation of a child, absent a warrant, a court order, exigent circumstances, or parental consent was unconstitutional. See 588 F.3d 1011, 1030 (9th Cir. 2009). The Supreme Court, however, vacated this portion of Greene, and in so doing expressly acknowledged that “[t]he point of vacatur is to prevent an unreviewable decision ‘from spawning any legal consequences,’ so that no party is harmed by what we have called a ‘preliminary’ adjudication.” Camreta v. Greene, 563 U.S. 692, 713, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 40-41, 71 S.Ct. 104, 95 L.Ed. 36 (1950)); see also id. (noting that a “constitutional ruling in a qualified immunity case is a legally consequential decision” and hence that “[v]acatur rightly ‘strips the decision below of its binding effect’ ” (quoting Deakins v. Monaghan, 484 U.S. 193, 200, 108 S.Ct. 523, 98 L.Ed.2d 529 [ ] (1988))).
Id. at 1059-60.
Here, the FAC asserts a violation of the Fourth Amendment that is identical to the claim asserted in Capp: an allegedly unreasonable seizure due to social workers’ investigatory interview of a minor child without the consent of the parent or exigent circumstances. (See FAC at ¶¶ 71-75, 172.) Because Capp was decided after the interview of G.X., the right at issue could not have been clearly established for purposes of qualified immunity. Fazaga, 965 F.3d at 1031 (ruling right must be “clearly established” at the time of the challenged conduct).2
2. First Amendment Violation
The FAC alleges Defendant Olarte and Defendant Gonzalez violated the First Amendment right of Parent Plaintiffs and G.X. “to be free from unjustified, unreasonable, and unlawful interference in their relationship.” (FAC at ¶ 174.) Defendants move for judgment on the pleadings for this claim on the ground that the legal standard for a First Amendment familial association claim is not “clearly established,” and alternatively that the FAC fails to meet the pleading standard of such a claim. (Mot. at p. 21:2-27:27.) Rather than addressing Defendants’ argument, Plaintiffs’ Opposition attempts to recharacterize their First Amendment claim as alleging retaliation in violation of the First Amendment. (See Opp. at p. 11:16-13:11.)
“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss.” Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (citations omitted, italics in original). Because the standard for a motion for judgment on the pleadings is the same as the standard for a motion to dismiss, See Gen. Dynamics C4 Sys., Inc., 637 F.3d at 1054 n.4, the Court similarly disregards attempts to recharacterize the FAC based on the arguments of the Opposition.
Here, the FAC alleges a violation of the First Amendment “right[ ] to be free from unjustified, unreasonable, and unlawful interference in [the] relationship” between Parent Plaintiffs and G.X. (FAC at ¶ 174.) This language tracks that of the Ninth Circuit, which has held “[t]he First Amendment also protects ‘family relationships, that presuppose deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.’ ” Keates v. Koile, 883 F.3d 1228, 1236 (9th Cir. 2018) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir. 2001)) (internal quotation marks omitted). In contrast, the Opposition relies on Ariz. Students Ass'n v. Ariz. Bd. of Regents, in which the Ninth Circuit held that the First Amendment protects against retaliation by public officials.3 Ariz. Students' Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016). Although the FAC alleges Defendant Olarte and Defendant Gonzalez interviewed G.X. “in retaliation and for that reason that she did not feel she received the cooperation and respect [of] [Defendant Scanlon]” (FAC at ¶ 173), it is entirely unclear that this allegedly retaliatory animus forms the basis of Defendants’ liability under the First Amendment.4
Moreover, in Keates, the Ninth Circuit reversed the dismissal of Section 1983 claim alleging a violation of familial rights under the First Amendment, arising in part from the interview of a minor child by social workers without the consent of the child's parents that resulted in the child's removal without a court order. Keates, 883 F.3d at 1232-33, 1236-37. The Ninth Circuit held:
[O]ur case law clearly establishes that the rights of parents and children to familial association under the Fourteenth, First, and Fourth Amendments are violated if a state official removes children from their parents without their consent, and without a court order, unless information at the time of the seizure, after reasonable investigation, establishes reasonable cause to believe that the child is in imminent danger of serious bodily injury, and the scope, degree, and duration of the intrusion are reasonable necessary to avert the specific injury at issue.
Id. at 1237-38. Unlike Keates, here the minor children were not removed from Parent Plaintiffs custody until Defendant Olarte and Defendant Gonzalez obtained a warrant authorizing removal. (FAC at ¶ 126.) Moreover, Plaintiffs cite no case in which the Supreme Court or a Circuit court has held the right to familial association is violated if a minor child is interviewed without the consent of the parents and subsequently removed by order of a court.
Therefore, the Court concludes the law is not clearly established the familial rights under the First Amendment of Plaintiffs were violated.
3. Fourteenth Amendment Violation
Plaintiffs allege Defendant Olarte and Defendant Gonzalez violated the Fourteenth Amendment right of familial association arising from the interview of G.X. without the consent of Parent Plaintiffs. (FAC at ¶ 172.) Defendants argue the Fourteenth Amendment claim fails on the merits and, alternatively, is barred by qualified immunity.
Merits of the Fourteenth Amendment claim
“To establish a substantive due process claim, a plaintiff must, as a threshold matter, show a government deprivation of life, liberty, or property.” Capp, 940 F.3d at 1060 (quoting Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998)). The parties do not dispute that parents and children have a liberty interest in the companionship and society of one another, which is protected by the Fourteenth Amendment. (Compare Mot. at p. 16:4-9 with Opp. at p. 8:5-11.) Moreover, Defendants concede that “conscience-shocking conduct that deprives parents of a relationship with their children is cognizable as an injury to these familial association rights under the Fourteenth Amendment.” (Mot. at p. 16:10-13 (citing Capp, 940 F.3d at 1060).) Defendants argue, however, that those liberty interests are not implicated solely by virtue of the interview of a minor child without the consent of his or her parents.
In Capp, the Ninth Circuit held that a violation of the “fundamental rights to familial association and due process” does not occur when the plaintiffs failed to allege that the parent “actually lost custody of his children as a result of Defendants’ alleged misconduct.” Capp, 940 F.3d at 1060. The Ninth Circuit held that the father's subjection to an investigation regarding the alleged mistreatment of his children “alone is not cognizable as a violation of the liberty interest in familial associations,” but must be accompanied by the loss of custody of the children. Id. In Dees v. County of San Diego, 960 F.3d 1145, 1153 (9th Cir. 2020) (citation omitted), the Ninth Circuit explained that “Capp plainly holds that a cause of action [under the Fourteenth Amendment] does not lie where the social worker is accused of seizing a child and the parent has not ‘actually lost’ control over the child.”
Defendants concede that the FAC alleges the Parent Plaintiffs lost custody of the minor children. (Mot. at p. 16:23-26.) Defendants argue, however, that Plaintiffs fail to allege they lost custody of the minor children as a result of the interview of G.X. Defendants contend that the Second Claim for Relief alleges the minor children were unlawfully removed due to false statements, omissions, and misleading statements made in the warrant application, while the First Claim for Relief does not tie the interview of G.X. with the removal of the minor children. (See FAC at ¶¶ 130-32, 172, 177.) Rather than addressing the merits of this argument or distinguishing Capp and Dees based on the actual removal of the minor children in this case, Plaintiffs instead argue Dees is of limited precedential value because those plaintiffs are currently seeking a rehearing of the case en banc. (Opp. at p. 9:7-10:12.) Plaintiffs contend the Fourteenth Amendment claim should be evaluated under Doe v. Heck, 327 F.3d 492, 520 (7th Cir. 2003), an out-of-circuit opinion. (Opp. at p. 10:13-14:8).
Here, the FAC does not allege the minor children were removed from the Parent Plaintiffs due to the interview of G.X. Rather, Plaintiffs allege the children were removed due to false and misleading statements submitted in support of the removal warrant. (See FAC at ¶ 183.) The Opposition confirms that Plaintiffs allege a violation of the Fourteenth Amendment based upon the investigation alone (i.e., without tying the investigation to the removal of the minor children), as Plaintiffs argue that it “is extremely dangerous” when “parents do not have a right to decide, or know, when their children are interviewed at school[.]” (Opp. at p. 10:1-6.) As discussed above, this theory of Fourteenth Amendment liability is expressly foreclosed by Capp and Dees. See Dees, 960 F.3d at 1153. Moreover, Plaintiffs fail to explain why this Court should rely on the Seventh Circuit's opinion in Heck, 327 F.3d at 520, when binding Ninth Circuit authority exists.
Defendants argue the Fourteenth Amendment claim is barred by the doctrine of qualified immunity because the law was not clearly established under Dees, 960 F.3d at 1152.
In Dees, the Ninth Circuit held that “to establish a Fourteenth Amendment claim based on a minor being separated from his or her parents, plaintiffs must establish an actual loss of custody occurred; the mere threat of separation or being subject to an investigation, without more, is insufficient.” Id. at 1152. This holding, the Ninth Circuit explained, was based on “[r]eading Capp and Mann together.” Id. As discussed above, Capp held that a claim premised on the interrogation of a minor child without the consent of his or her parents does not in itself violate the Fourteenth Amendment. Capp, 940 F.3d at 1060. In Mann v. County of San Diego, 907 F.3d 1154, 1160-61 (9th Cir. 2018), the Ninth Circuit held that “parents’ Fourteenth Amendment substantive due process rights” were violated when the state performs “medical examinations [on their minor child] without notifying the parents about the examinations and without obtaining either parents’ consent or judicial authorization.”
Here, the law was not clearly established that the Fourteenth Amendment is violated when state officials interview a child without the consent of his or her parents. Dees, Capp, and Mann are the primary authority in support of Plaintiffs’ theory, but each was decided after the interview of G.X. and are therefore inapposite. See Cmty. House, Inc. v. City of Boise, 623 F.3d 945, 967 (9th Cir. 2010) (“To determine whether a right was clearly established, a court turns to the Supreme Court and Ninth Circuit law existing at the time of the alleged act.”). The cases cited by Plaintiffs are distinguishable, either because they define the right at issue too broadly or not at all, see, e.g., Troxel v. Granville, 530 U.S. 57, 60, 67, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (holding Washington statute permitting non-parents to obtain child visitation rights violates the fundamental right of parents to make decisions concerning the care, custody, and control of their children); Hodgson v. Minn., 497 U.S. 417, 455, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (holding unconstitutional a state law requiring both parents to receive notice before a minor obtains an abortion); Parham v. J.R., 442 U.S. 584, 606-07, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (holding due process does not afford minors committed to state mental health hospitals by their parents the right to an adversarial hearing); Lee v. City of Los Angeles, 250 F.3d 668, 683-84 (9th Cir. 2001) (holding Fourteenth Amendment right to be free from mistaken incarceration after the lapse of a certain amount of time was violated where mentally incompetent man was extradited out-of-state); or involve factual situations materially distinguishable from the present case, see, e.g., James v. Rowlands, 606 F.3d 646, 655 (9th Cir. 2010) (holding “Fourteenth Amendment's protection of parents’ rights requires officials to notify a parent with shared legal custody of a transfer in a minor's physical custody when the officials have encouraged and facilitated that transfer”); Wallis v. Spencer, 202 F.3d 1126, 1137 (9th Cir. 2000) (reversing summary judgment of constitutional claim challenging seizure and removal of children from their parents’ custody pursuant to a non-existent court order).
B. Fourth Claim for Relief
In the Fourth Claim for Relief, the FAC alleges a violation of the Fourth Amendment and Fourteenth Amendment against Defendant Olarte and Defendant Gonzalez arising from medical and/or mental health examinations given to K.X. and G.X. without prior notice to the Parent Plaintiffs while the minor children were in the care of the County. (FAC at ¶ 192.) The Fourth Claim for Relief of the FAC is identical to the Fourth Claim for Relief of the initial Complaint. (Compare FAC at ¶¶ 192-195 with Dkt. No. 1 (Compl.) at ¶¶ 189-192.) In ruling on a motion to dismiss the Complaint, the Court dismissed the Fourth Claim for Relief “without prejudice per the parties’ agreement.” (Dkt. No. 26 (Order RE Motion to Dismiss) at p. 10:8-9.)
Defendants move the Court to adjudicate this claim in favor of Defendants under Fed. R. Civ. P. 12(c) “for purposes of housekeeping,” based on Defendants’ understanding “that the inclusion of this claim in the FAC was inadvertent.” (Mot. at p. 29:2-9.) Plaintiffs neither oppose nor address the motion to dismiss the Fourth Claim for Relief. (See Opp. at p. 14:12-14 (“Plaintiffs request that Defendants’ Motion for Judgment on the Pleadings as to the First and Fifth [C]laims for Relief be denied.”).)
C. Fifth Claim for Relief
The Fifth Claim for Relief alleges a Monell claim against the County for maintaining “policies, practices, customs, and/or the non-existence or inadequate training of ․ social workers” that were the “moving force” behind the alleged constitutional violations asserted in the First, Second, Third, and Fourth Claims for Relief. (FAC at ¶ 196.)
“A valid claim of municipal liability under Monell v. Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 ․ (1978) requires a showing that the individual's constitutional violation ‘implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by [the municipality's] officers.’ ” Palmerin v. City of Riverside, 794 F.2d 1409, 1415 (9th Cir. 1986) (brackets in original). “[A]bsent any constitutional violations by the individual defendants, there can be no Monell liability.” Id. (citation omitted)
Defendants move the Court to dismiss the Fifth Claim for Relief to the extent it alleges violations of the Fourteenth Amendment and First Amendment arising from the interview of G.X. without the consent of Parent Plaintiffs. Defendants argue dismissal is warranted under Palmerin, as Plaintiffs failed to plead violations of the First Amendment and Fourteenth Amendment as a matter of law. In the Opposition, Plaintiffs fail to address this argument and instead argue the FAC adequately alleges a policy, practice, or custom, but request leave to amend if the motion for judgment on the pleadings is granted.
Here, Plaintiffs allege Monell violations arising from conduct outside the scope of the First Claim for Relief, such as “the repeated making of false representations, submission of misrepresentations, and omissions of exculpatory information to the juvenile court during the juvenile dependency proceedings.” (See FAC at ¶ 198.) Therefore, the Court DENIES the motion for judgment on the pleadings as to the Fifth Claim for Relief. However, as discussed above, the Court finds Plaintiffs have not sufficiently alleged claims for violation of the First and Fourteenth Amendments in the First Claim for Relief. Therefore, these allegations cannot support Plaintiffs’ Monell claim.
The Court GRANTS-IN-PART the motion for judgment on the pleadings, as follows:
• The Court GRANTS the motion for judgment on the pleadings as to the First Claim for Relief.
• The Court GRANTS the motion for judgment on the pleadings as to the Fourth Claim for Relief based upon the parties’ prior agreement. (See Dkt. No. 26 at p. 10:8-9.)
• The Court DENIES the motion for judgment on the pleadings as to the Fifth Claim for Relief, except as to First and Fourteenth Amendment violations arising from the interview of G.X. without the consent of Parent Plaintiffs.
Therefore, claims remaining in this action are: the Second Claim for Relief (removal by fraudulent warrant), Third Claim for Relief (right to be free from deception in presentation of evidence to the court); portions of the Fifth Claim for Relief (Monell) for which the Motion has been denied; and the Sixth Claim for Relief (intentional infliction of emotional distress).
IT IS SO ORDERED.
1. The Court dismissed without prejudice a claim for violation of “due process” arising from the removal of the minor children by way of false and misleading statements in the warrant application on the ground that Plaintiffs did not specify whether the claim was for violation of substantive or procedural due process. (Dkt. No. 26 at p. 6:14-7:2.) The Court dismissed the fourth claim for relief (discussed below) without prejudice per the agreement of the parties. (Id. at p. 10:8-9.) The Court denied the motion to dismiss the First, Second, Fifth, and Sixth Claims for Relief. (See generally id.)
2. Plaintiffs argue “there are several Circuit Court opinions wherein a school interview of a minor was held to be a seizure under the Fourth Amendment,” relying in part on Greene v. Camreta, 588 F.3d 1011, 1022 (9th Cir. 2009). The portions of Greene cited by Plaintiffs were vacated by the United States Supreme Court, and the Ninth Circuit has held that portion of Greene should not be cited as precedent for purposes of determining whether a right is “clearly established” for purposes of qualified immunity. Capp, 940 F.3d at 1059-60. Plaintiffs cite Prison Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005) for the proposition that courts may consider unpublished opinions in determining whether the law is “clearly established.” However, that case does not address whether the court may consider vacated opinions for the same purposes. The other cases on which Plaintiffs rely, Stoot v. City of Everett, 582 F.3d 910, 918 (9th Cir. 2009); Jones v. Hunt, 410 F.3d 1221, 1225-26 (10th Cir. 2005); and Words of Faith Fellowship, Inc. v. Rutherford Cty. Dep't of Social Servs., 329 F. Supp. 2d 675, 686-87 (W.D.N.C. 2004), were decided before Capp and therefore cannot have clearly established the law in light of the holding of Capp.
3. “To bring a First Amendment retaliation claim, the plaintiff must allege that (1) it engaged in constitutionally protected activity; (2) the defendant's actions would ‘chill a person of ordinary firmness’ from continuing to engage in the protected activity; and (3) the protected activity was a substantial motivating factor in the defendant's conduct[.]” Ariz. Bd. of Regents, 824 F.3d at 867.
4. Moreover, the Court did not construe identical language in the initial complaint as asserting a claim for retaliation under the First Amendment. (See Dkt. No. 27 (Order RE Motion to Dismiss) at p. 4:1-5:2 (discussing only “G.X.’s right to be free from unreasonable search and seizures, and the parents’ right to familial association.”); see also Dkt. No. 1 (Compl.) at ¶¶ 173-174.)
CONSUELO B. MARSHALL, UNITED STATES DISTRICT JUDGE
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Docket No: Case No.: 2:18-cv-7759-CBM-AS
Decided: October 21, 2020
Court: United States District Court, C.D. California.
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