Lim v. County of Tulare et al

Filing 8

FINDINGS and RECOMMENDATIONS that the Action Proceed Against Defendants Jennifer Menne and Melanie Huerta on Plaintiff's First Cause of Action and Plaintiff's Second Cause of Action and Defendants Child Protective Services of Tulare County and Lydia Suarez be Dismissed signed by Magistrate Judge Sheila K. Oberto on 11/19/2020. Referred to Judge Unassigned DJ. Objections to F&R due within 21 Days. (Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CASE NO. 1:20-cv-01049-NONE-SKO CHONG SOOK LIM, Plaintiff, 10 11 v. 12 13 14 CHILD PROTECTIVE SERVICES OF TULARE COUNTY; LYDIA SUAREZ; JENNIFER MENNE; and MELANIE HUERTA, 15 Defendants. FINDINGS AND RECOMMENDATIONS THAT THE ACTION PROCEED AGAINST DEFENDANTS JENNIFER MENNE AND MELANIE HUERTA ON PLAINTIFF’S FIRST CAUSE OF ACTION AND PLAINTIFF’S SECOND CAUSE OF ACTION AND DEFENDANTS CHILD PROTECTIVE SERVICES OF TULARE COUNTY AND LYDIA SUAREZ BE DISMISSED (Doc. 7) 16 OBJECTIONS DUE: 21 DAYS 17 18 I. 19 BACKGROUND On July 30, 2020, Plaintiff Chong Sook Lim, proceeding pro se, filed a civil rights action 20 pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the County of Tulare (the “County”) and 21 two unknown “officer[s], agent[s], and/or employee[s]” of the County. (Doc. 1.) Plaintiff also 22 23 24 25 26 27 28 filed an application to proceed in forma pauperis, which was granted on July 31, 2020. (Docs. 2 & 3.) On August 17, 2020, Plaintiff’s complaint was screened in accordance with 28 U.S.C. § 1915(e)(2). (See Doc. 4.) In a fourteen-page order, the undersigned found that Plaintiff did not adequately plead facts to state a claim under Section 1983 against any defendant and that her complaint implicated the Rooker–Feldman bar to jurisdiction. (See Doc. 4 at 6–13.) Plaintiff was 1 also advised that, as a pro se litigant, she is not entitled to attorney’s fees. (See id. at 4 n.1.) 2 Plaintiff was provided with the applicable legal standards so that she could determine if she would 3 like to pursue her case, and she was granted twenty-one (21) days leave to file an amended 4 complaint curing the pleading deficiencies identified in the order. (Id. at 13.) Plaintiff was 5 advised that any amended complaint should not include any argument or case authority and be free 6 of tracked changes, which had been included in her original complaint. (Id.) 7 Plaintiff filed a first amended complaint on September 4, 2020. (Doc. 5.) The undersigned 8 reviewed the amended complaint and issued a second screening order. (Doc. 6.) The second 9 screening order stated that, other than the removal of track changes and minor rewording of 10 headings, the allegations, claims, and prayer for relief were copied verbatim from the initial 11 complaint. (Doc. 6.) The undersigned concluded that Plaintiff’s first amended complaint did not 12 address, much less cure, any of the substantive pleading deficiencies identified in the Court’s first 13 screening order. (See id.) Plaintiff was served another copy of the first screening order and 14 granted one final opportunity to amend her allegations. (See id.) She was also cautioned that the 15 failure to file a second amended complaint in compliance with the Court’s screening orders would 16 result in a recommendation that this case be dismissed. (See id.) 17 On October 19, 2020, Plaintiff filed her second amended complaint against Defendant 18 “Child Protective Services of Tulare County” (“Tulare County CPS”), Lydia Suarez, Jennifer 19 Menne, and Melanie Huerta. (Doc. 7.) After screening Plaintiff’s second amended complaint, the 20 Court recommends that this action proceed against Defendants Menne and Huerta, and that 21 Plaintiff’s claims against Defendants Tulare County CPS and Suarez be dismissed without leave to 22 amend. 23 24 II. A. LEGAL STANDARDS Screening Requirement 25 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 26 each case, and shall dismiss the case at any time if the Court determines that the allegation of 27 poverty is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon 28 which relief may be granted, or seeks monetary relief against a defendant who is immune from 2 1 such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that a complaint fails to state a claim, 2 leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by 3 amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 4 The Court’s screening of a complaint under 28 U.S.C. § 1915(e)(2) is governed by the 5 following standards. A complaint may be dismissed as a matter of law for failure to state a claim 6 for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable 7 legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff 8 must allege a minimum factual and legal basis for each claim that is sufficient to give each 9 defendant fair notice of what plaintiff’s claims are and the grounds upon which they rest. See, 10 e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 11 F.2d 795, 798 (9th Cir. 1991) 12 A lack of subject matter jurisdiction may support finding that a complaint is frivolous. See 13 Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987). The Court similarly has a continuing duty to 14 determine whether it has subject matter jurisdiction. Fed. R. Civ. Proc. 12(h)(3). Federal question 15 jurisdiction exists over actions “arising under the Constitution, laws, or treaties of the United 16 States.” 28 U.S.C. § 1331. 17 establishes federal question jurisdiction and “provides that federal jurisdiction exists only when a 18 federal question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar 19 Inc. v. Williams, 482 U.S. 386, 392 (1987) (citation omitted). 20 21 A. The well-pleaded complaint rule governs whether a complaint Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 22 Under Federal Rule of Civil Procedure 8(a), a complaint must contain “a short and plain 23 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). 24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 25 of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 26 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 27 determining whether a complaint states a claim on which relief may be granted, allegations of 28 material fact are taken as true and construed in the light most favorable to the plaintiff. See Love 3 In 1 v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Since Plaintiff is appearing pro se, the 2 Court must construe the allegations of [her] complaint liberally and must afford Plaintiff the 3 benefit of any doubt. See Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 4 1988). 5 allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a 6 civil rights complaint may not supply essential elements of the claim that were not initially pled.” 7 Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of 8 Regents, 673 F.2d 266, 268 (9th Cir. 1982)). However, “the liberal pleading standard . . . applies only to a plaintiff’s factual 9 Further, “a plaintiff’s obligation to provide the ‘grounds’ of [her] ‘entitle[ment] to relief’ 10 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 11 action will not do . . . . Factual allegations must be enough to raise a right to relief above the 12 speculative level.” See Twombly, 550 U.S. at 555 (internal citations omitted); see also Iqbal, 556 13 U.S. at 678 (To avoid dismissal for failure to state a claim, “a complaint must contain sufficient 14 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has 15 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 16 reasonable inference that the defendant is liable for the misconduct alleged.”) (internal citations 17 omitted). 18 2. Section 1983 19 Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 20 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 21 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 22 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 23 substantive rights but merely provides a method for vindicating federal rights elsewhere 24 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 25 (citing Graham v. Connor, 490 U.S. 386, 393–94 (1989)) (internal quotation marks omitted). It 26 states in relevant part: 27 28 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the 4 2 jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 3 42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must allege facts from which it 4 may be inferred (1) she was deprived of a federal right, and (2) a person or entity who committed 5 the alleged violation acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); 6 Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976). A plaintiff must show a causal connection 7 or link between the actions of the defendants and the deprivation alleged to have been suffered by 8 the plaintiff. See Rizzo v. Goode, 423 U.S. 362, 373–75 (1976). The Ninth Circuit has held that 9 “[a] person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 10 section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to 11 perform an act which he is legally required to do that causes the deprivation of which complaint is 12 made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (citation omitted). 1 III. 13 14 A. DISCUSSION Plaintiff’s Allegations 15 Plaintiff, who is of Korean descent and has limited ability to communicate in English, met 16 Dennis Ennslin through an online dating site for Mormons. (Doc. 7 (“SAC”) ¶ 13.) Plaintiff and 17 Mr. Ennslin were married and lived together for five months prior to separating. (Id.) Their brief 18 marriage yielded a child, Y.L., and the couple divorced in 2014. (Id.) Plaintiff alleges that in 19 2014, Mr. Ennslin placed false report to Tulare County CPS that Plaintiff was physically abusing 20 her 14-year-old daughter. (SAC ¶ 14.) This, according to Plaintiff, “set off a chain of Tulare 21 County CPS encounters” in 2014, 2015, 2017, and 2018, none of which resulted in the initiation of 22 a juvenile dependency hearing. (Id. ¶ 15.) 23 Plaintiff alleges that from 2014 through 2018, she was interviewed by Tulare County CPS 24 as part of an investigation of child abuse and requested a Korean interpreter be present. (Id. ¶ 16.) 25 According to Plaintiff, Defendants Jennifer Menne and Melanie Huerta, social worker employees 26 of the County of Tulare, “stated that they would conduct the investigation interviews in English 27 and provide a Korean interpreter later, if necessary.” (Id.) Plaintiff states that each interview with 28 Tulare County CPS was conducted without a Korean interpreter and that after the interview she 5 1 was asked to “sign a document confirming the interview was conducted in English, and explaining 2 that investigators could no longer be asked to provide interpretation services.” (Id. ¶ 17.) She 3 alleges that Defendants “denied her the services of an interpreter and failed to make reasonable 4 efforts to ascertain whether [she] needed the services of an interpreter,” and that Tulare County 5 CPS social workers “filed a report stating that they understood all of [] Plaintiff’s English,” which 6 they “wrongfully claimed ‘is excellent.’” (Id. ¶¶ 18, 21.) On July 12, 2018, after having “brought 7 two people from other community agencies” to “support Plaintiff’s need to be provided 8 interpretation services in Korean,” Tulare County CPS provided a Korean language interpreter via 9 telephone. (Id. ¶ 23.) According to Plaintiff, because she had been denied her right to an 10 interpreter, “inaccurate reports filed by [Tulare County] CPS contributed to Plaintiff’s ultimate 11 loss of full custody of the child, Y.L.” (Id. ¶ 24.) 12 Plaintiff further alleges that in 2017 she took Y.L. to a hospital, having noticed while 13 bathing the child that her vagina was swollen. (SAC ¶ 25.) According to Plaintiff, the hospital 14 doctor contacted the police and a report was made to Tulare County CPS. (Id.) Plaintiff alleges 15 on July 15, 2018, she took Y.L. to be examined for another vaginal irritation. (Id. ¶ 28.) As a 16 result of the examination, the physician assistant contacted Tulare County CPS and made a report 17 of suspected child abuse. (Id.) 18 Plaintiff alleges on July 30, 2018, Plaintiff and Mr. Ennslin appeared at a family court 19 hearing, at which Plaintiff was shown “a report sent to the family court judge by [Tulare County] 20 CPS,” which is alleged to be “part of the ‘confidential’ portion of the family court case file.” 21 (SAC ¶ 29.) According to Plaintiff, the report “contained a [sic] chock full of lies and omissions 22 of known exculpatory facts,” including that Y.L. was “coached” to make “statements indicating 23 she was suffering from child abuse” and that Plaintiff tried to kill Mr. Ennslin, and the report 24 “contained a request for custody orders.” (Id. ¶ 30.) Plaintiff alleges that Defendants Menne and 25 Huerta signed the report and sent the report to the family court knowing that the report “would be 26 presented as evidence and relied upon” by the court. (Id. ¶ 30–31.) 27 According to Plaintiff, on September 6, 2018, the family court held a hearing, at which the 28 court awarded “full legal and full physical custody” of Y.L. to Mr. Ennslin, and permitted Plaintiff 6 1 to have once-a-week two hour supervised visits with Y.L. for two hours. (SAC ¶ 32.) Plaintiff 2 alleges that she has not seen Y.L. since March 6, 2020, because the “supervised visitation provider 3 closed down” and she is now “limited to virtual visits.” (Id.) 4 court “reviewed and relied on the misrepresentations and requested custody orders” contained in 5 the report provided by Tulare County CPS in making its decisions in the case. (Id. ¶ 33.) Plaintiff 6 further alleges that Defendant Tulare County CPS has a “policy, custom, or practice of routinely 7 sending ex-parte communications to Family Court containing false representations and containing 8 requests for custody orders, in lieu of filing a juvenile dependency petition or presenting a warrant 9 affidavit.” (Id. ¶ 34.) Plaintiff alleges that the family 10 Plaintiff asserts a claim for “use of false and fabricated evidence” under Section 1983 11 against all defendants for violation of her “right to familial association guaranteed under . . . the 12 First and Fourteenth Amendments” to the U.S. Constitution as a result of Defendants Menne and 13 Huerta “sending a written ex parte communication to the family court misrepresenting Plaintiff’s 14 conduct and integrity in connection with a request for custody or visitation orders, or conspir[ing] 15 with others to commit the same.” (SAC ¶¶ 40, 43.) She also brings a Section 1983 claim against 16 all defendants for Monell liability, asserting that “Defendants, thought its entity [Tulare County] 17 CPS,” established or followed “policies, procedures, customs, and/or practices” of “separating 18 children from their parents without first obtaining a protective custody warrant in the absence of 19 exigent circumstances;” “sending ex parte written communications to family courts, containing 20 requests for custody or visitation orders, that do not meet the requirements for a warrant affidavit;” 21 and “presenting false and fabricated evidence to the family court, in connection with a pending 22 custody dispute, through ex parte written communications.” (SAC ¶ 50.) Plaintiff further alleges 23 that Defendants acted with “deliberate indifference in implementing a policy of inadequate 24 training and/or supervision, and/or by failing to train and/or supervise its officers, agents, 25 employees and state actors, in providing the constitutional protections guaranteed to individuals, 26 including those under Fourteenth Amendment, when performing actions related to the 27 investigation of child abuse.” (Id.) She seeks general and special damages, punitive damages, and 28 injunctive relief. (Id. at p. 12.) 7 1 A. First Cause of Action: “Use of False and Fabricated Evidence” 2 1. 3 Plaintiff asserts the first cause of action against Defendant Tulare County CPS and 4 Defendants “Lydia Huerta,” Jennifer Menne, and Melanie Huerta, in their individual capacities, 5 under Section 1983 for violation of her right to familial association as “guaranteed under . . . the 6 First and Fourteenth Amendment.” (SAC ¶¶ 3–5, 37.) As previously advised, a municipal 7 department of the County of Tulare such as CPS cannot be be a proper defendant in this Section 8 1983 action. See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) 9 (holding that the term “persons” for Section 1983 purposes does not encompass municipal 10 departments); see also Devine v. Fresno Cty. CPS, No. F-05-1408 REC LJO, 2006 WL 278590, at 11 *2 (E.D. Cal. Feb. 2, 2006) (finding Section 1983 claims Fresno County CPS are not cognizable 12 and dismissing them with prejudice). Thus, this claim against Defendant Tulare County CPS is 13 not cognizable. Defendants Tulare County CPS and Lydia Suarez 14 Plaintiff’s claim against Defendant “Lydia Huerta,” which the Court construes as a claim 15 intended to be asserted against named Defendant Lydia Suarez, also fails because Plaintiff does 16 not allege any facts that Defendant Suarez personally participated in the deprivation of Plaintiff’s 17 constitutional rights. An individual cannot be held liable on a civil rights claim unless the facts 18 establish the defendant's personal involvement in the constitutional deprivation or a causal 19 connection between the defendant's wrongful conduct and the alleged constitutional deprivation. 20 Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson, 588 F.2d at 743–44. Because 21 respondeat superior liability is inapplicable to Section 1983 suits, “a plaintiff must plead that each 22 Government-official defendant, through the official's own individual actions, has violated the 23 Constitution.” Id. Plaintiff may not hold Defendant Suarez liable for the alleged violation of her 24 right to familial association, as there are no allegations that she personally participated in that 25 violation—indeed there are no factual allegations made against Defendant Suarez at all. Thus, 26 under the Twombly standard, Plaintiff’s conclusory allegation that Defendant Suarez deprived 27 Plaintiff of her constitutional rights fails to state a claim upon which relief may be granted. 28 /// 8 1 2. 2 The Supreme Court has recognized that the Fourteenth Amendment’s Due Process Clause 3 protects the liberty interest “of parents in the care, custody, and control of their children.” Troxel 4 v. Granville, 530 U.S. 57, 65 (2000); see also Santosky v. Kramer, 455 U.S. 745, 753 (1982) 5 (discussing “the fundamental liberty interest of natural parents in the care, custody, and 6 management of their child”). The right of familial association is also protected by the First 7 Amendment. Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir. 2001). Defendants Menne and Huerta 8 “While a constitutional liberty interest in the maintenance of the familial relationship 9 exists, this right is not absolute. The interest of the parents must be balanced against the interests 10 of the state and, when conflicting, against the interests of the children.” Woodrum v. Woodward 11 Cty., Okl., 866 F.2d 1121, 1125 (9th Cir. 1989). The right to familial association has both a 12 substantive and a procedural component. Keates v. Koile, 883 F.3d 1228, 1236 (9th Cir. 2018). 13 While the right is a fundamental liberty interest, officials may interfere with the right if they 14 “provide the parents with fundamentally fair procedures[.]” Keates, 883 F.3d at 1236 (internal 15 citations omitted). On the other hand, “official conduct that ‘shocks the conscience’ in depriving 16 parents of [a relationship with their children]” is cognizable as a violation of substantive due 17 process. Capp v. County of San Diego, 940 F.3d 1046, 1060 (9th Cir. 2019) (quoting Wilkinson v. 18 Torres, 610 F.3d 546, 554 (9th Cir. 2010)). 19 Here, Plaintiff pleads that Defendants Jennifer Menne and Melanie Huerta, Tulare County 20 CPS employees, deprived her of a Korean interpreter at their interviews, which resulted in the 21 filing of “inaccurate reports” that “contributed” to the loss of full custody of her child Y.L. (SAC 22 ¶ 24.) Plaintiff alleges that one “ex parte report,” signed by Defendants Menne and Huerta, 23 contained false statements and omitted “known exculpatory facts” that were relied on by the 24 family court in deciding to award of full legal and physical custody of Plaintiff’s child to her 25 father Mr. Ennslin. (SAC ¶¶ 30–32.) The undersigned finds that, liberally construed, these 26 allegations are sufficient to state a cognizable Section 1983 familial association claim against 27 Defendants Menne and Huerta. See Hardwick v. Cty. of Orange, 844 F.3d 1112, 1116 (9th Cir. 28 2017); Thornton v. Cty. of Los Angeles, No. CV 16-08482 TJH (AGRx), 2017 WL 11504794, at 9 1 *2 (C.D. Cal. June 27, 2017) (“Thornton is not barred, however, from bringing civil rights claims 2 alleging illegal acts and omissions by a social worker during state dependency proceedings.”); 3 Lahey v. Contra Costa Cty. Dep’t of Children & Family Servs., No. C01-1075 MJJ, 2004 WL 4 2055716, at *9 (N.D. Cal. Sept. 2, 2004) (“In this case, Plaintiffs . . . attempt to demonstrate a 5 series of legal wrongs perpetrated by Defendants that led to several unfavorable custody decisions, 6 but Plaintiffs do not seek in this suit to overturn the custody arrangements . . . . Even though a 7 favorable decision in federal court would undermine the credibility of the state court decision, the 8 Rooker–Feldman doctrine, as recently explained by the Ninth Circuit in Noel, does not bar 9 jurisdiction in this case.”). 10 B. Second Cause of Action: “Monell Related Claims” 11 Plaintiff alleges a Section 1983 claim pursuant to Monell v. Dep’t of Social Servs., 436 12 U.S. 658 (1978), against Defendants Tulare County CPS, “Lydia Huerta,” Jennifer Menne, and 13 Melanie Huerta. In Monell, the Supreme Court held that, because there is no respondeat superior 14 liability under Section 1983, “a local government may not be sued under § 1983 for an injury 15 inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy 16 or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to 17 represent official policy, inflicts the injury that the government as an entity is responsible under § 18 1983.” 436 U.S. at 690–94. To establish liability under Monell, a plaintiff must satisfy four 19 conditions: “(1) that he [or she] possessed a constitutional right of which he was deprived; (2) that 20 the [local governmental entity] had a policy; (3) that this policy amounts to deliberate indifference 21 to the plaintiff’s constitutional right; and (4) that the policy is the moving force behind the 22 constitutional violation.” Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (citation and 23 internal quotation marks omitted). A government entity may be held liable for “constitutional 24 deprivations visited pursuant to governmental ‘custom’ even though such a custom has not 25 received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. 26 at 690–91. 27 “The custom or policy must be a deliberate choice to follow a course of action . . . made 28 from various alternatives by the official or officials responsible for establishing final policy with 10 1 respect to the subject matter in question.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1075 (9th 2 Cir. 2016) (en banc) (internal citations and quotation marks omitted). It must be so “persistent and 3 widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 4 (2011). Put another way, the practice must have been going on for a sufficient amount of time, 5 “frequency and consistency that the conduct has become a traditional method of carrying out 6 policy.” Trevino v. Gates, 99 F. 3d 911, 918 (9th Cir. 1996). By itself, “[p]roof of a single 7 incident of unconstitutional activity is not sufficient to impose liability under Monell . . . .” City of 8 Oklahoma City v. Turtle, 471 U.S. 808, 823–24 (1985). Additionally, to establish that a county is 9 responsible, “a plaintiff must show that the ‘policy or custom’ led to the plaintiff’s injury.” Castro, 10 833 F.3d at 1073. 11 The Supreme Court has also held that a municipality may be liable if, with respect to a 12 claim based on improper training of employees, the “failure to train amounts to deliberate 13 indifference to the rights of persons with whom the [employees] come into contact.” City of 14 Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). “[T]he failure to provide proper training may 15 fairly be said to represent a policy for which the [municipal entity] is responsible, and for which 16 the [municipal entity] may be held liable if it actually causes injury.” Id. at 390. Finally, there 17 must be a direct causal link between a failure to properly train and the alleged constitutional 18 deprivation. Id. at 385. 19 1. 20 As set forth above, Plaintiff cannot maintain a Section 1983 claim against Defendant 21 Tulare County CPS. See Vance, 928 F. Supp. at 996; Devine, 2006 WL 278590, at *2. However, 22 even if Plaintiff’s allegations were construed as against the County of Tulare (the “County”), 23 Plaintiff fails to provide sufficient allegations to state Monell claims. For example, she alleges 24 that the County is liable for violating her Fourteenth Amendment rights because it “act[ed] with 25 deliberate indifference in implementing a policy of inadequate training and/or supervision, and/or 26 by failing to train and/or supervise its officers, agents, employees and state actors, in providing the 27 constitutional protections guaranteed to individuals, including those under the Fourth and 28 Fourteenth Amendments, when performing actions related to the investigation of child abuse.” Defendant Tulare County CPS 11 1 (SAC ¶ 50.) Contrary to these conclusory allegations, however, the alleged “false and fabricated 2 evidence” contained in a single ex parte report submitted by County employees to the family court 3 do not raise a reasonable inference that the County was deliberately indifferent to such 4 transgression or the need to adequately train its employees to avoid it. 5 Plaintiff’s allegations that the County is liable under Section 1983 due to its “policy, 6 custom, or practice of presenting false and fabricated evidence to the family court, in connection 7 with a pending custody dispute, through ex parte written communications” (SAC ¶ 50) is similarly 8 conclusory. She fails to plead any facts demonstrating the existence of any such policy or 9 widespread practice, and instead appears to base the claim on the single incident that happened to 10 her. In addition, it is not clear that allegations regarding the County’s “policy, custom, or practice 11 of separating children from their parents without first obtaining a protective custody warrant in the 12 absence of exigent circumstances” bears any relationship to the underlying constitutional 13 deprivation claimed in the case, because there are no facts pleaded showing that any defendant 14 “separated” Y.L. from her parents and took her into “protective custody.” See Castro, 833 F.3d at 15 1075 (“The ‘first inquiry in any case alleging municipal liability under § 1983 is the question 16 whether there is a direct causal link between a municipal policy or custom and the alleged 17 constitutional deprivation.’”) (quoting City of Canton, 489 U.S. at 385). Plaintiff has therefore not 18 stated a cognizable claim under Section 1983 against Defendant Tulare County CPS nor as 19 reasonably construed against the County of Tulare. 20 2. 21 Finally, Plaintiff’s Monell claims against individual Defendants “Lydia Huerta” (Lydia Defendants Suarez, Menne, and Huerta 22 Suarez, Jennifer Menne, and Melanie Huerta also fail. 23 Defendants Suarez, Menne, and Huerta in their individual capacities are best construed as claims 24 for supervisory liability. See Starr, 652 F.3d at 1205–06. “A defendant may be held liable as a 25 supervisor under § 1983 if there exists either (1) his or her personal involvement in the 26 constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful 27 conduct and the constitutional violation.” Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 28 2012) (quotation marks omitted). Supervisory liability is liability whereby plaintiffs can attempt 12 Plaintiff’s Monell claims against 1 to “hold supervisors individually liable in § 1983 suits when culpable action, or inaction, is 2 directly attributed to them.” Starr, 652 F.3d at 1205. “Supervisory liability exists even without 3 overt personal participation in the offensive act if supervisory officials implement a policy so 4 deficient that the policy itself is a repudiation of constitutional rights and is the moving force of 5 the constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (quotation marks 6 omitted). 7 Plaintiff pleads no facts showing that Defendant Suarez personally participated in the 8 alleged constitutional violation, as mentioned above, nor does she plead facts showing any causal 9 connection to the alleged violation. As to Defendants Menne and Huerta, Plaintiff’s basis for her 10 supervisory liability claim is unclear, as she does not specify to which defendant(s) her allegations 11 apply. (See SAC ¶¶ 48–51 (pleading “Defendants, including by and through its entity CPS, 12 breached its [sic] duties and obligations…”) (emphasis added).) 13 supervisory liability claim against Defendants Menne and Huerta is based on their participation in 14 the alleged constitutional violation, that claim is duplicative of the first cause of action and not 15 cognizable as a separate claim. To the extent that it is based upon their making or implementation 16 of “policies, procedures, customs, and/or practices” established by Tulare County CPS, those 17 “policies, procedures, customs, and/or practices” are wholly conclusory and are not buttressed by 18 any allegations of fact, as discussed above. Duenas v. Cty. of Imperial, No. 14CV-2460-L(KSC), 19 2015 WL 12656291, at *4 (S.D. Cal. Mar. 9, 2015) (dismissing claim based on allegations of a 20 “speculative list of various policies” without allegations of underlying facts). Moreover, Plaintiff 21 fails to plead any facts that Defendants Menne and/or Huerta had, much less exercised, the right to 22 control others such that liability could attach under Monell. See Monell, 436 U.S. at 694 n.58. 23 C. To the extent Plaintiff’s Leave to Amend Will Not Be Recommended 24 When dismissing claims in a complaint, the Ninth Circuit has stated that “leave to amend 25 should be granted unless the district court determines that the pleading could not possibly be cured 26 by the allegation of other facts.” Bly–Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) 27 (internal quotation marks omitted); Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. (9th Cir. 1996). 28 However, once the court has already granted a plaintiff leave to amend a complaint, the court’s 13 1 discretion in determining whether to allow additional opportunities to amend is particularly broad. 2 Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 794 (9th Cir. 2012) (quoting Miller v. 3 Yokohama Tire Corp., 358 F.3d 616,622 (9th Cir. 2004)); Chodos v. West Publishing Co., 292 4 F.3d 992, 1003 (9th Cir. 2002). 5 The undersigned finds that further amendment of Plaintiff’s claims against Defendant 6 Tulare County CPS, her claims against Defendant Lydia Suarez, and her Monell claims is not 7 appropriate in this case. First, since claims against Tulare County CPS are cognizable, the Court 8 undersigned that leave to amend these claims would be futile. Next, when dismissing the prior 9 complaints, the undersigned advised Plaintiff that any second amended complaint must be based 10 on a cognizable legal theory that would support her claims and that she must allege facts showing 11 what each named defendant did that led to the deprivation of her constitutional rights. (See Docs. 12 4 & 6.) Plaintiff has been given several opportunities to plead facts sufficient to establish what 13 role the individual defendants had in her alleged constitutional deprivation but has been unable to 14 do so as to Defendant Suarez. Plaintiff has also repeatedly demonstrated that she is unable to 15 marshal facts sufficient to constitute a cognizable Monell claim. The addition of more detailed 16 factual allegations or revision of Plaintiff’s claims will not cure the defects of her second amended 17 complaint. Thus, the undersigned declines to give any further leave to amend and recommends 18 dismissal of Plaintiff’s Monell-based Section 1983 claims, her claims against Defendant Child 19 Protective Services of Tulare County, and her claims against Defendant Lydia Suarez. 20 IV. CONCLUSION AND RECOMMENDATIONS 21 For the reasons set forth more fully above, the Court RECOMMENDS that (1) Plaintiff be 22 allowed to proceed on the Section 1983 familial association claim in her first cause of action 23 against Defendants Jennifer Menne and Melanie Huerta; (2) Plaintiff’s Monell-based Section 1983 24 claims in her second cause of action be dismissed; and (3) Defendants Lydia Suarez and Child 25 Protective Services of Tulare County be dismissed. 26 These findings and recommendations are submitted to the district judge assigned to this 27 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty-one 28 (21) days of service of this recommendation, any party may file written objections to these 14 1 findings and recommendations with the Court and serve a copy on all parties. The document 2 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 3 district judge will review the magistrate judge’s findings and recommendations pursuant to 28 4 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 5 time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 6 Cir. 2014). 7 8 9 10 IT IS SO ORDERED. Dated: November 19, 2020 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 .

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