Fox et al v. Anderson et al

Filing 22

ORDER signed by Judge John A. Mendez on 9/23/11. The Court GRANTS Defendants' Motion to Dismiss the First and Second Claims as to Olmo, Om, Pike, and Walkup 16 WITH LEAVE TO AMEND. The Court GRANTS Defendants' Motion to dismiss Pike from the Third Claim WITH PREJUDICE. The Court DENIES Defendants' Motion to Dismiss Pike from the Fourth Claim under Fed.R.Civ.P. 12(b)(6), but, as indicated below, finds that Pike has quasi-judicial and qualified immunity as to this claim. Defendant s' Motion to Dismiss the Third and Fourth Claims as against Anderson, McAtee, and Cockerton is GRANTED WITH LEAVE TO AMEND. Defendants Olmo, Om, Pike, and Walkup are entitled to absolute immunity as to the Third Claim. Defendants Olmo, Om, Pike, and Walkup are entitled to quasi- judicial qualified immunity as to the Fourth Claim for relief. Plaintiffs shall have twenty (20) days from the date of this Order to file a Second Amended Complaint if they so desire. Otherwise, this case will proceed against the remaining Defendants on the First Amended Complaint. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 BARRY FOX, NARCISA FOX, individually and as parents and natural guardians and Guardians ad litem of A.F., D.F., S.F., and M.F., as minors, ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) COUNTY OF SACRAMENTO, SCOTT ) ANDERSON, RICH COCKERTON, ) BRENDAN MCATEE, ELISA OLMO, SOKA ) OM, JASON WALKUP, JOY PIKE, CITY ) OF RANCHO CORDOVA, JASMINE ) DELGADO, ) ) Defendants. ) ) Case No. 2:11-CV-00419 JAM-KJN ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‟ MOTON TO DISMISS 21 22 This matter comes before the Court on a Motion to Dismiss 23 Plaintiff‟s First Amended Complaint (Doc. #16) brought by 24 Defendants County of Sacramento, Scott Anderson, Rich Cockerton, 25 Brendan McAtee, Elisa Olmo, Soka Om, Jason Walkup, Joy Pike, and 26 City of Rancho Cordova (collectively “Defendants”). 27 the Court to dismiss certain claims and Defendants in the First 28 Amended Complaint(“FAC”, Doc. #14) filed by Plaintiffs Barry Fox, 1 Defendants ask 1 Narcisa Fox, individually and as parents and natural guardians and 2 Guardians ad litem of A.F., D.F., S.F., and M.F., minors, 3 collectively (“Plaintiffs”). 4 #17).1 Plaintiffs oppose the motion (Doc. 5 6 I. 7 FACTUAL AND PROCEDURAL BACKGROUND According to the FAC, on January 29, 2010, Narcisa Fox (“Mrs. 8 Fox”) delivered her two and a half year old son M.F. into the care, 9 custody, and control of his baby sitter, Defendant Jasmine Delgado 10 (“Delgado”) at Delgado‟s home. 11 telephone call from Delgado telling her that something was wrong 12 with M.F.‟s feet and that Mrs. Fox should pick up M.F. 13 Fox arrived at Delgado‟s mother‟s apartment, she found M.F. lying 14 on a sofa in the living room, with pants on, but without shoes or 15 socks. 16 large water blisters and detached skin on their tops. 17 Mrs. Fox that the redness, blistering, and detached skin on M.F.‟s 18 feet must have been caused by a bacterial infection. 19 That afternoon, Mrs. Fox received a When Mrs. M.F.‟s feet were pink to red in color and appeared to have Delgado told Mrs. Fox and Delgado took M.F. to the Doctors Center Medical 20 Group, Inc. in Fair Oaks. 21 Fox to take M.F. to the Shriners‟ Burn Center Hospital in 22 Sacramento. 23 physician that M.F.‟s injury was not from bacteria, but from a burn 24 caused by M.F.‟s feet being immersed in scalding hot liquid. 25 26 The attending physician directed Mrs. Mrs. Fox was told by a social worker and the attending At approximately 3:00 a.m. on January 30, 2010, Defendant Scott Anderson (“Anderson”) and Brendan McAtee (“McAtee”) placed 27 1 28 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for August 3, 2011. 2 1 the Minor Plaintiffs into temporary protective custody based on 2 suspected child abuse. 3 did not have a warrant when they entered Plaintiffs‟ home. 4 Plaintiffs allege that Anderson and McAtee On or before February 3, 2010, Defendants Elisa Olmo (“Olmo”) 5 and Soka Om (“Om”), signed a document entitled “Detention Report” 6 and filed it with the Sacramento Superior Court‟s Juvenile 7 Division. 8 and misleading statements including the claims that the child was 9 dropped off by Mrs. Fox with the condition being present and that 10 it buried exculpatory evidence concerning Delgado‟s statement on 11 page 7. 12 Fox was defensive in his demeanor. 13 in the preparation and filing of Juvenile Dependency Petitions. 14 Dependency Hearings began on February 3, 2010. 15 2010, the Juvenile Court, after hearing testimony from Delgado, 16 A.F., Mr. Fox, and Mrs. Fox, allowed A.F. and D.F. to return to the 17 family home. 18 M.F. would join him upon his release from the hospital. 19 Juvenile Court imposed supervised visitation between Parent 20 Plaintiffs and S.F. and M.F. 21 Plaintiffs allege the Detention Report contained false The Detention Report also contained allegations that Mr. The Detention Report resulted On February 18, S.F. was ordered to remain in a separate home and The On March 18, 2010, Walkup and Pike signed the 22 Jurisdiction/Disposition Report (“JDR”) which reiterated all of the 23 previous allegations in the Detention Report except that Mrs. Fox 24 dropped off the child with Delgado with the condition already being 25 present. 26 M.F. indicated he had been burned by Delgado‟s mother, a summary of 27 a follow-up interview with Delgado, a summary of an interview with 28 Delgado‟s mother, and an interview with the consulting physician at The JDR also included a summary of the statement in which 3 1 Shriners in which he said that the blisters would have manifested 2 within 15 to 20 minutes of M.F.‟s exposure to the scalding liquid. 3 On March 25, 2010, the Juvenile Court dismissed the Juvenile 4 Dependency Petitions without prejudice and restored the parental 5 rights of the Parent Plaintiffs. 6 On February 14, 2011 Plaintiffs filed a Complaint (Doc. #1). 7 Defendants filed a Motion to Dismiss (Doc. #8), but instead of 8 opposing the Motion to Dismiss, on May 2, 2011, Plaintiffs filed an 9 Amended Complaint (Doc. #14) without asking leave of the Court.2 10 The FAC alleges eight causes of action: 1) violation of Plaintiffs‟ 11 Fourth Amendment rights for the unlawful entering into Plaintiffs‟ 12 home without a warrant and in the absence of exigent circumstances; 13 2) the unlawful taking of minor children without a warrant and in 14 the absence of exigent circumstances; 3) depriving Plaintiffs of 15 due process by failing to disclose relevant exculpatory evidence 16 and by misrepresenting facts in the Juvenile Dependency Petitions, 17 and by deliberate indifference to the rights of Plaintiffs to a 18 fair and honest hearing; 4) suppression and misrepresentation of 19 evidence and the continued separation of Plaintiffs and the 20 continued removal of the minor plaintiffs from their home in 21 violation and in deliberate indifference to Plaintiffs‟ due process 22 2 23 24 25 26 27 28 In Defendants‟ introduction in their Motion to Dismiss, they state that Plaintiffs filed the FAC on May 2, 2011, when the last day for Plaintiffs to file an amended pleading without leave of the court was on April 28, 2011. Plaintiffs counter that because the initial motion was served by Notice of Electronic filing, Rule 6(d) adds three (3) days to the twenty-one (21) day period proscribed by Rule 15(a)(1)(B) for a total of twenty-four (24) days. See F.R. Civ. P. 6(d). Applying the day-counting proceedings of Rule 6(a), the 24th day following April 7, fell on Sunday, May 1, 2011. Thus, pursuant to Rule 6(a)(1)(C), the last day for filing and service of the FAC was extended through Monday, May 2, 2011. See F.R. Civ. P. 6(a). The Court finds that the FAC was timely filed. 4 1 rights under the Fourteenth Amendment; 5) Monell claim against the 2 county; 6)Monell claim against the city; 7) injunction against 3 county and city; and 8) negligence against Delgado. 4 move to dismiss certain claims and certain individual defendants in 5 the FAC (Doc. #16). Defendants 6 7 8 9 10 II. A. OPINION Legal Standard 1. Motion to Dismiss A party may move to dismiss an action for failure to state a 11 claim upon which relief can be granted pursuant to Federal Rules of 12 Civil Procedure 12(b)(6). 13 court must accept the allegations in the complaint as true and draw 14 all reasonable inferences in favor of the plaintiff. 15 Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by 16 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 17 322 (1972). 18 are not entitled to the assumption of truth. 19 129 S. Ct. 1937, 1950 (2009), citing Bell Atlantic Corp. v. 20 Twombly, 550 U.S. 544, 555 (2007). 21 a plaintiff needs to plead “enough facts to state a claim to relief 22 that is plausible on its face.” 23 Dismissal is appropriate where the plaintiff fails to state a claim 24 supportable by a cognizable legal theory. 25 Police Department, 901 F.2d 696, 699 (9th Cir. 1990). 26 In considering a motion to dismiss, the Scheuer v. Assertions that are mere “legal conclusions,” however, Ashcroft v. Iqbal, To survive a motion to dismiss, Twombly, 550 U.S. at 570. Balistreri v. Pacifica Upon granting a motion to dismiss for failure to state a 27 claim, the court has discretion to allow leave to amend the 28 complaint pursuant to Federal Rules of Civil Procedure 15(a). 5 1 “Dismissal with prejudice and without leave to amend is not 2 appropriate unless it is clear . . . that the complaint could not 3 be saved by amendment.” 4 316 F.3d 1048, 1052 (9th Cir. 2003). 5 6 2. Eminence Capital, L.L.C. v. Aspeon, Inc., Section 1983 Plaintiff‟s claims against Defendants are brought under 42 7 U.S.C. § 1983. To prevail in a § 1983 civil action against state 8 actors for the deprivation of 9 10 11 12 13 14 15 rights, privileges, or immunities secured by the Constitution and laws, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. Accordingly, the conduct complained of must have deprived the plaintiff of some right, privilege or immunity protected by the Constitution or laws of the United States. 16 Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 17 2005) (internal citations omitted). 18 B. 19 20 Claims for Relief 1. First and Second Claims for Relief Defendants argue that the First and Second Claims for Relief 21 should be dismissed against Olmo, Om, Pike, and Walkup, 22 collectively (“CPS Defendants”), for failure to set forth specific 23 facts. 24 for Relief does not purport to state claims against the CPS 25 Defendants who are identified by their true names, except to the 26 extent that it may later be discovered that one or more of the 27 named CPS Defendants was a DOE defendant. 28 that the Second Claim does not purport to state a claim against In their opposition, Plaintiffs admit that the First Claim 6 Plaintiffs further admit 1 anyone other than the three named defendant police officers. 2 The Court‟s Status (Pre-trial Scheduling) Order dismisses “all 3 DOE or other fictitiously-named defendants.” Status (Pre-trial 4 Scheduling) Order at 2:17-18 (hereinafter “Scheduling Order”). 5 Plaintiffs request that the DOE Defendants not be dismissed until 6 the pre-trial conference, after discovery is conducted, because 7 they will not know, for example, the actual identity of the CPS 8 workers, if any, who participated in the taking of the Minor 9 Plaintiffs from their home without a warrant. Plaintiffs‟ argument 10 regarding DOE defendants (whom the Court has already dismissed), 11 is, as Defendants argue, an attempt to circumvent their failure to 12 plead specific facts implicating these four CPS Defendants. 13 If, during discovery, Plaintiffs discover the identities of 14 additional defendants, they may file a motion to amend the 15 complaint. Should the motion to amend be opposed on statute of 16 limitations or waiver grounds, the Court will take up those 17 arguments at that time. 18 in the First and Second Claims setting forth specific facts 19 concerning the CPS Defendants, the Court GRANTS Defendants‟ motion 20 to dismiss the First and Second claims for relief as to Olmo, Om, 21 Pike, and Walkup WITH LEAVE TO AMEND. 22 /// 23 /// 24 25 2. Since there are currently no allegations Third and Fourth Claims for Relief Concerning CPS Defendant Pike 26 Defendants seek dismissal of the Third and Fourth Claims 27 against CPS Defendant Pike (“Pike”) on the grounds that these 28 claims contain no specific allegations of wrong doing by Pike with 7 1 respect to the investigation or preparation of the Detention 2 Report. 3 any action by Defendant Pike. Accordingly, Defendants‟ Motion to 4 Dismiss this claim against Pike is GRANTED WITH PREJUDICE. 5 Plaintiffs confirm that the Third claim does not allege As to the Fourth Claim, Plaintiffs argue that while they do 6 not know the full role Pike played in the CPS investigation or in 7 the preparation of the Detention Report or Jurisdiction/Disposition 8 Report (“JDR “), Pike signed the JDR which allegedly reiterated all 9 but one of the false statements in the Detention Report and failed 10 to point out the falsity of the omitted statement in support of a 11 recommendation that the petitions be dismissed without prejudice to 12 their refilling. 13 the complaint as true and draw all reasonable inferences in favor 14 of the plaintiff, 15 overruled on other grounds by Davis v. Scherer, 468 U.S. 183 16 (1984), the plaintiff must set forth specific facts as to each 17 individual defendant‟s causal role in the alleged constitutional 18 deprivation, Leer v. Murphy, 866 F.2d 628, 633 (9th Cir. 1988). 19 While the court must accept the allegations in Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), In the Fourth Claim, Plaintiffs allege that Pike signed the 20 JDR which allegedly contained false statements and failed to 21 explain the omission of a false statement. These allegations are 22 sufficient to maintain this claim at this time and therefore 23 Defendants‟ Motion to Dismiss Pike from the Fourth Claim for 24 failure to state a claim is DENIED. 25 26 27 28 3. Third and Fourth Claims for Relief Concerning Defendants Anderson, McAtee, and Cockerton Defendants next argue that in the Third and Fourth Claims Plaintiffs fail to plead specific facts as to the causal role of 8 1 Defendants Anderson, McAtee, and Cockerton, collectively (“Officer 2 Defendants”), in the preparation of the Detention Report, juvenile 3 dependency proceeding petitions, JDR or the continued removal of 4 minors during the juvenile proceedings. 5 Anderson is only named to the extent that the Detention Report 6 included minimal references to him. 7 dismissal of these claims, arguing that but for the wrongful taking 8 of the children by the police, there would have been no Detention 9 Report and no JDR. 10 Defendants point out that Plaintiffs oppose the Plaintiffs reliance on Wallis v. Spencer, 202 F.3d 1126 (9th 11 Cir. 2000) is misplaced and does not save these claims as to these 12 Officer Defendants. Plaintiffs‟ attenuated theory of causation 13 wholly ignores the independent actions and roles played by the 14 Officer Defendants and the CPS Defendants. The FAC does not allege 15 that the Officer Defendants participated in the preparation of any 16 reports or proceedings continuing the separation of the minors from 17 their parents. 18 Plaintiffs cannot state a claim against the Officer Defendants for 19 violation of their rights in connection with the dependency 20 proceedings. 21 and Fourth Claims as against Anderson, McAtee, and Cockerton is 22 GRANTED WITH LEAVE TO AMEND. 23 24 4. Without alleging these requisite specific facts, Accordingly, Defendants‟ Motion to Dismiss the Third Immunity for CPS Defendants OLMO, OM, PIKE, and WALKUP 25 Defendants argue that the CPS Defendants are entitled to 26 absolute, qualified, and/or quasi-judicial immunity for the Third 27 and Fourth Claims. 28 9 1 a. Absolute Immunity for the Third Claim 2 Defendants argue that the CPS Defendants are entitled to 3 absolute immunity in connection with the preparation and filing of 4 the Detention Report. 5 contained false statements and suppressed exculpatory evidence. 6 Specifically, Plaintiffs point to the statement that the child was 7 dropped off by the mother with the condition already being present. 8 Plaintiffs argue that the Detention Report It is well settled that social workers have absolute immunity 9 when they make “discretionary, quasi-prosecutorial decisions to 10 institute court dependency proceedings to take custody away from 11 parents.” 12 Cir. 2008) (en banc) (per curium) (quoting Miller v. Gammie, 335 13 F.3d 889, 898 (9th Cir. 2003) (en banc)). 14 functions, such as commencing investigations and initiating 15 proceedings against parents who may have abused their children, are 16 afforded absolute immunity because these actions are functionally 17 equivalent to that of a prosecutor. 18 Dep‟t of Social Services, 812 F.2d 1154, 1157 (9th Cir. 1987). 19 social workers are not entitled to absolute immunity from claims 20 that they fabricated evidence during an investigation or made false 21 statements because such actions are not similar to discretionary 22 decisions about whether to prosecute. Beltran v. Santa Clara Cnty., 514 F.3d 906, 908 (9th Social workers‟ Meyers v. Contra Costa Cnty. But Beltran, 514 F.3d at 908. 23 Here, Plaintiffs‟ Third Claim alleges that a reasonable 24 investigation by the CPS defendants would have prevented the 25 inclusion of false and/or misleading statements in the Detention 26 Report. 27 injuries at the time the Detention Report was filed. 28 physician‟s notes stated that “it [was] not clear what happened However, it was unclear who was responsible for M.F.‟s 10 The attending 1 when the mother took the child from the baby sitters [sic.] house.” 2 Id. at ¶ 54. 3 upon the physician‟s opinions at the time they filed the Detention 4 Report on February 3, 2010. 5 6 7 8 9 Plaintiffs further allege that CPS Defendants relied Id. The social worker must make a quick decision based on perhaps incomplete information as to whether to commence investigations and initiate proceedings against parents who may have abused their children. The social worker‟s independence, like that of a prosecutor, would be compromised were the social worker constantly in fear that a mistake could result in a time-consuming and financially devastating civil suit. 10 Meyers, 812 F.2d at 1157. 11 the CPS Defendants deliberately or recklessly made false statements 12 or omissions that were material. 13 1117 (9th Cir. 2004) (“To support a § 1983 claim of judicial 14 deception, a plaintiff must show that the defendant deliberately or 15 recklessly made false statements or omissions that were material to 16 the finding of probable cause.”). 17 the CPS Defendants included statements that were ultimately 18 established as incorrect. 19 Plaintiffs proffer no allegations that See KRL v. Moore, 384 F.3d 1105, Plaintiffs instead allege that Plaintiffs‟ allegation that the CPS Defendants failed to 20 include exculpatory evidence is also not persuasive. 21 exculpatory statement to Anderson on January 30, 2010 was placed on 22 page 7 of the Detention Report. 23 preferred it to be at the beginning of the report, Plaintiffs 24 provide no further allegations that the CPS Defendants withheld 25 exculpatory evidence. 26 Delgado‟s While Plaintiffs would have Because Plaintiffs do not allege that the CPS Defendants 27 deliberately or recklessly made false statements and they do not 28 point to exculpatory evidence that was in fact withheld from 11 1 Plaintiffs, the CPS Defendants are entitled to absolute immunity 2 for the Third Claim for relief. 3 4 5 b. Qualified Immunity for the Third Claim Because the Court found that the CPS Defendants have absolute 6 immunity for the Third Claim, there is no need to reach the issue 7 of whether the CPS Defendants would also have qualified immunity 8 for that claim. 9 c. Quasi-Judicial Immunity for the Fourth Claim 10 Plaintiffs‟ Fourth Claim alleges that the CPS Defendants 11 failed to complete a reasonable investigation from February 4, 2010 12 until March 18, 2010, the date the JDR was filed. 13 recommended that the Juvenile Dependency Petitions against 14 Plaintiffs be dismissed without prejudice. 15 the CPS Defendants have quasi-judicial immunity because during this 16 time period, the Juvenile Court issued two court orders mandating 17 that the minors remain separated from Plaintiffs based on findings 18 that continuance in the parents‟ home was contrary to their 19 welfare. 20 quasi-judicial immunity for all actions taken in response to the 21 Juvenile Court‟s orders. 22 The JDR Defendants argue that Defendants argue that the CPS Defendants are entitled to Plaintiffs counter that they are not suing the CPS Defendants 23 for obeying the Juvenile Court‟s orders, but because the CPS 24 Defendants inserted false statements into the Detention Report and 25 reiterated all but one of those statements in the JDR and refused 26 to admit the falsity of the statements or to point out that the 27 false statements had been removed. 28 defendants suppressed the evidence concerning the burn-to-blister 12 Plaintiffs allege the CPS 1 time, until it was no longer possible to suppress it, and they 2 recommended and obtained a dismissal without prejudice. 3 When social workers obey court orders, they have quasi- 4 judicial immunity. See Coverdell v. Dep‟t of Social & Health 5 Servs., 834 F.2d 758, 765 (9th Cir. 1987) (holding that a CPS 6 worker be accorded absolute quasi-judicial immunity from liability 7 stemming from the worker‟s apprehension of a child pursuant to a 8 valid court order); McConnell v. Lassen Cnty., No. S-05-0909, 2007 9 WL 1931603, *10 (E.D. Cal. June 29, 2007) (holding Defendant social 10 worker did not have unilateral authority to return children to 11 parents while children were under the jurisdiction of the Juvenile 12 Court, and also held that social workers enjoy absolute, quasi- 13 judicial immunity when making post-adjudication custody decisions 14 pursuant to a valid court order). 15 have quasi-judicial immunity for their actions relating to the 16 Juvenile Court‟s orders and the continued separation of the minors 17 from their Plaintiff parents from February 2, 2010-March 18, 2010. 18 Accordingly, the CPS Defendants Concerning the content of the JDR, the CPS Defendants do not 19 have quasi-judicial immunity for the preparation of the JDR because 20 they were not acting under the direction of the Juvenile Court. 21 The CPS Defendants also do not have absolute immunity for the JDR, 22 unlike the Detention Report, because the Detention Report was 23 compiled to institute court proceedings whereas the JDR was 24 prepared after the detention hearing, in the CPS Defendants‟ 25 investigative capacities. 26 decisions and recommendations that are not functionally similar to 27 prosecutorial or judicial functions, only qualified, not absolute 28 immunity is available. When social workers “make discretionary Miller, 335 F.3d at 898. 13 1 While the Court finds that the CPS Defendants do not have 2 quasi-judicial or absolute immunity with respect to the allegations 3 in the Fourth Claim concerning the content of the JDR, Defendants 4 also argue that the CPS Defendants have qualified immunity with 5 respect to preparing the JDR. 6 The doctrine of qualified immunity shields public officials 7 sued in their individual capacity from monetary damages, unless 8 their conduct violates “clearly established” law of which a 9 reasonable public officer would have known. Saucier v. Katz, 533 10 U.S. 194, 199 (2001). 11 The court must make a two-step inquiry in deciding the issue 12 of qualified immunity. 13 must determine whether, under the facts alleged, taken in the light 14 most favorable to the plaintiff, a violation of a constitutional 15 right occurred. 16 constitutional right was clearly established at the time of the 17 violation. 18 Saucier, 533 U.S. at 200. First, the court Id. If so, the court must then ask whether the Id. Initially, the Supreme Court in Saucier held that these two 19 inquiries must be decided in rigid order. Saucier, 533 U.S. at 20 200. 21 of a constitutional right occurred before it could evaluate whether 22 the right was clearly established. 23 “there are cases in which it is plain that a constitutional right 24 is not clearly established but far from obvious whether in fact 25 there is such a right,” the Supreme Court recently relaxed the 26 order of analysis. 27 In Pearson, the Court held that the Saucier analysis may be 28 addressed in either order if the second step is clearly dispositive That is, a district court had to resolve whether a violation Recognizing, however, that Pearson v. Callahan, 555 U.S. 223, 237 (2009). 14 1 2 and can address the matter efficiently. Id. at 241-42. It is clearly established that a parent has a constitutionally 3 protected interest in the custody or care of his or her children. 4 Santosky v. Kramer, 455 U.S. 745, 753 (1982). 5 constitutional interest is not absolute. 6 situation, a state agency may remove children from their parents‟ 7 custody when the children are subject to immediate or apparent 8 danger or harm. 9 1991). 10 However, this In an emergency Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir. While Plaintiffs allege that CPS should have discovered and 11 revealed that the statement that the child was dropped off by the 12 mother with the condition already being present was false, the 13 amount of time it would take for the burns to blister, and that 14 Delgado‟s mother burned the child, before 3:00 a.m. on January 30, 15 2010 when the Minor Plaintiffs were taken or before February 2, 16 2010 when the Detention Report was prepared and filed, these 17 allegations do not demonstrate that the CPS Defendants‟ conduct 18 “violated „clearly established statutory or constitutional rights 19 of which a reasonable person would have known‟ or was otherwise 20 inconsistent with a standard of „objective legal reasonableness.‟” 21 Miller, 846 F.2d at *1 (citing Harlow v. Fitzgerald, 457 U.S. 800, 22 818-19 (1982)). 23 statements in the JDR that were blatantly false or fabricated. 24 JDR contained exculpatory evidence and resulted in the dismissal of 25 charges against the Parent Plaintiffs. 26 the CPS Defendants did not violate Plaintiffs‟ clearly established 27 constitutional rights and are protected by qualified immunity from 28 the Fourth Claim. Furthermore, Plaintiffs do not point to any 15 The Thus, the Court finds that 1 III. ORDER 2 For the reasons set forth above, 3 The Court GRANTS Defendants‟ Motion to Dismiss the First and 4 5 6 7 Second Claims as to Olmo, Om, Pike, and Walkup WITH LEAVE TO AMEND. The Court GRANTS Defendants‟ Motion to dismiss Pike from the Third Claim WITH PREJUDICE. The Court DENIES Defendants‟ Motion to Dismiss Pike from the 8 Fourth Claim under Fed.R.Civ.P. 12(b)(6), but, as indicated below, 9 finds that Pike has quasi-judicial and qualified immunity as to 10 11 this claim. Defendants‟ Motion to Dismiss the Third and Fourth Claims as 12 against Anderson, McAtee, and Cockerton is GRANTED WITH LEAVE TO 13 AMEND. 14 15 16 17 18 Defendants Olmo, Om, Pike, and Walkup are entitled to absolute immunity as to the Third Claim. Defendants Olmo, Om, Pike, and Walkup are entitled to quasijudicial qualified immunity as to the Fourth Claim for relief. Plaintiffs shall have twenty (20) days from the date of this 19 Order to file a Second Amended Complaint if they so desire. 20 Otherwise, this case will proceed against the remaining Defendants 21 on the First Amended Complaint. 22 23 24 IT IS SO ORDERED. Dated: September 23, 2011 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 25 26 27 28 16

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