Mammen et al v. County of Sacramento et al

Filing 101

ORDER signed by District Judge John A. Mendez on 4/25/17. The Court GRANTS in part and DENIES in part Defendants' MOTION for SUMMARY JUDGMENT 80 . (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 A.P. (a minor); ROBIN MAMMEN and LARRY MAMMEN individually and as Guardians ad litem for A.P., 13 Plaintiffs, 14 No. 2:13-cv-01588-JAM-DB ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. 15 16 17 COUNTY OF SACRAMENTO, STEPHANIE LYNCH, LUIS VILLA, MICHELLE CALLEJAS, DEBRA WILLIAMS, CRAIG LARKIN, RENAE RODOCKER, 18 Defendants. 19 Now before this Court is Defendants’ motion for summary 20 21 judgment, ECF No. 80, which Plaintiffs oppose, ECF No. 94. 22 March 7, 2017, the parties appeared for hearing, after which the 23 Defendants’ motion was taken under submission. 24 reasons, this motion is granted in part and denied in part. 25 /// 26 /// 27 /// 28 /// 1 On For the following 1 2 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND This case involves a dispute between the Mammens, a foster 3 family, and the County of Sacramento (“County”). But, at its 4 core, this case concerns A.P., a child diagnosed with autism and 5 mental retardation. 6 pediatrician approved a “sensory diet,” which refers to the type 7 and amount of sensory input a person receives throughout the day. 8 See Jambeck Decl., ECF No. 95-1 (“Ex. A”), at COS 4638-40. 9 Designed to address A.P.’s “sensory processing deficits, poor A.P.’s occupational therapist and his 10 self-regulation, self-injurious and aggressive behavior,” this 11 sensory diet includes “therapeutic listening,” a music program 12 with electronically modified music. 13 includes “activities [that] provide proprioceptive based input 14 (i.e., input “received through the muscles and joints [that] is 15 generally calming to the body”). 16 through fabric tubing,” “being ‘smashed’ like a sandwich in 17 beanbags,” “jumping,” and “pushing heavy [laundry] loads”). 18 Id. at COS 4638. It also Id. (for instance, “crawling It is one activity in A.P.’s sensory diet in particular that 19 triggered this lawsuit—the “wrapping” technique. 20 involved wrapping A.P. like a “burrito” in stretchy fabric or a 21 lightweight blanket. 22 wrapped A.P., the County prohibited the Mammens from using A.P.’s 23 entire sensory diet for two weeks, after which the County banned 24 only “wrapping.” 25 Material Fact (“UMF”), ECF No. 80-2, No. 100. 26 ECF No. 86. 27 28 See id. This technique Once the County learned Ms. Mammen See R. Mammen Dep. 93:18-94:21; Undisputed See also Ex. 24, The Mammens and A.P. (collectively, “Plaintiffs”) sue the County, Stephanie Lynch, Luis Villa, Michelle Callejas, Debra 2 1 Williams, Craig Larkin, and Renae Rodocker (collectively, 2 “Defendants”). 3 bring several claims: 4 training and supervision claim; (3) § 1983 Fourteenth Amendment 5 claims; (4) Rehabilitation Act § 504 claims; (5) ADA Title II 6 claims; (6) an ADA intimidation claim; (7) an Unruh Civil Rights 7 Act claim; (8) a negligence claim; and (9) an intentional 8 infliction of emotional distress claim. Third Am. Compl. (“TAC”), ECF No. 49. Plaintiffs (1) a Monell claim; (2) a § 1983 improper TAC at 1. 9 10 II. OPINION 11 A. Legal Standard 12 A court may grant summary judgment when a party shows that, 13 as to any claim or defense, “there is no genuine dispute as to 14 any material fact and the movant is entitled to judgment as a 15 matter of law.” 16 judgment, the non-movant must show that the parties dispute a 17 fact that could affect the case’s outcome. 18 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 19 Fed. R. Civ. P. 56(a). To withstand summary See Anderson v. Summary judgment involves burden shifting. Initially, the 20 moving party must show there is no genuine dispute as to 21 material fact, though it need not introduce affirmative 22 evidence. 23 (1986). 24 the pleadings and show that triable factual issues exist. 25 id. at 324. 26 See Celotex Corp. v. Catrett, 477 U.S. 317, 323 This shifts the burden to the non-movant to go beyond See When surveying the record for factual disputes, a court 27 must view the evidence in the light most favorable to the non- 28 movant and must not make credibility findings. 3 See Anderson, 1 477 U.S. at 255. 2 version of events if it is unreasonable or if the record plainly 3 contradicts it. 4 Cir. 1988). But a court need not adopt the non-movant’s See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th 5 B. Judicial Notice 6 Plaintiffs request judicial notice of Cal. Code Regs. tit. 7 22, sections 89372 and 89475.2. Req. For Judicial Notice, ECF 8 No. 97. 9 information, a court may judicially notice facts that reliable If the requesting party provides necessary supporting 10 sources can “accurately and readily” determine. 11 201(b)(2), (d). 12 notice request because it concerns undisputed public records. Fed. R. Evid. Here, the Court grants Plaintiffs’ judicial 13 C. Evidentiary Objections 14 In resolving a summary judgment motion, a court may 15 consider only admissible evidence. 16 F.3d 1032, 1036 (9th Cir. 2003). 17 rely on 22 facts containing inadmissible hearsay and six lacking 18 foundation. 19 Facts, ECF No. 96. 20 these objections. 21 objections are unavailing because they contest evidence that is 22 either immaterial or admissible. 23 of Univ. of California, 433 F. Supp. 2d 1110 (E.D. Cal. 2006). 24 The Court therefore overrules Plaintiffs’ evidentiary 25 objections. 26 27 28 D. See Fraser v. Goodale, 342 Plaintiffs argue Defendants See Pls.’ Resp. to Defendants’ Undisputed Material Defendants do not meaningfully respond to See Reply, ECF No. 98. But Plaintiffs’ See generally Burch v. Regents Discussion 1. Defendants Larkin and Callejas All of Plaintiffs’ claims against Defendants Larkin and 4 1 Callejas fail as a matter of law. 2 individual capacity faces liability only upon a sufficient 3 showing that he personally participated in the challenged 4 conduct. 5 At hearing, Plaintiffs conceded they have no evidence that 6 Defendants Larkin or Callejas participated in prohibiting A.P.’s 7 sensory diet or otherwise had an active role in approving 8 decisions challenged by Plaintiffs in this lawsuit. 9 Tr., ECF No. 100, at 4:13-14; 5:10-22. A defendant sued in his See Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010). See Hr’g Because Plaintiffs’ 10 evidence does not implicate either Defendant, the Court grants 11 summary judgment on all claims against them. 12 13 2. Abandonment A party cannot revisit abandoned theories on summary 14 judgment. 15 1026 (9th Cir. 2009). 16 full and fair opportunity to ventilate its views” on it and 17 instead “removes the issue from the case.” 18 citations and quotations marks omitted). 19 See Ramirez v. City of Buena Park, 560 F.3d 1012, A party abandons an issue when it “has a Id. (internal Defendants argue Plaintiffs abandoned “their claims that 20 A.P. was improperly deprived prescription medication, 21 institutionalized or threatened with institutionalization, 22 discriminated against based on his race, denied adoption or that 23 his adoption was unjustifiably delayed, and deprived required 24 funding, or that the Mammen Plaintiffs’ Fourteenth Amendment 25 rights were violated.” 26 Reply at 2. Defendants are partially correct. At hearing, Plaintiffs 27 conceded to abandoning their § 1983 improper training and 28 supervision claim (Second Claim) and Fourteenth Amendment 5 1 familial association claim (part of the Third Claim). 2 Tr. at 6:17-7:2. 3 claims. 4 discrimination or deprived funding causes of action, they did 5 not abandon those. 6 prescription deprivation, institutionalization, and adoption 7 denial are not claims, but rather arguments to support claims. 8 See generally TAC. 9 focuses on the claims, not the arguments, parties abandon. See Hr’g The Court grants summary judgment on these But, because Plaintiffs never specifically brought race Also, Plaintiffs’ assertions about A.P’s. This distinction is crucial. Ramirez Id. 10 at 1026. 11 in their summary judgment opposition without abandoning a claim. 12 Defendants’ abandonment argument as to these assertions fails. 13 14 So, Plaintiffs may, as they did here, omit arguments 3. Official Capacity When a plaintiff asserts a § 1983 claim against both a 15 municipal entity and a municipal official in his official 16 capacity, federal district courts routinely dismiss the latter 17 as duplicative. 18 2016 WL 319232, at *18 (E.D. Cal. Jan. 27, 2016)(citing cases). 19 Plaintiffs here assert their first and third § 1983 claims 20 against the County and official-capacity defendants. 21 18, 20. 22 claims brought in their first and third causes of action as 23 duplicative. 24 4. 25 26 Harmon v. Cty. of Sacramento, No. 12-cv-2758, See TAC at The Court dismisses Plaintiffs’ official-capacity Third Claim--Section 1983 Fourteenth Amendment a. Substantive Due Process The Fourteenth Amendment substantive due process clause 27 protects both “a foster child’s liberty interest in social 28 worker supervision” and the child’s liberty “from harm inflicted 6 1 by a foster parent.” 2 Servs., 630 F.3d 833, 842 (9th Cir. 2010). 3 assumes wardship of a child, the state owes the child, as part 4 of that person’s protected liberty interest, reasonable safety 5 and minimally adequate care . . . .” 6 omitted). 7 enjoyed a special relationship with the state and held a 8 protectable interest against any harm his foster parents might 9 inflict. See Tamas v. Dep’t of Soc. & Health “Once the state Id. (internal citation So, once Defendants placed A.P. in foster care, he 10 Courts apply a “deliberate indifference” standard to 11 substantive due process challenges in the foster care context. 12 Henry A. v. Willden, 678 F.3d 991, 1000 (9th Cir. 2012). 13 violate due process, state officials must act with such 14 deliberate indifference to the child’s liberty interest that 15 their actions “shock the conscience.” 16 451 F.3d 982, 991 (9th Cir. 2006) (internal citation omitted). 17 The deliberate indifference must be towards a known or obvious 18 risk of harm. 19 show (1) an objectively substantial risk of harm and (2) the 20 officials knew or should have known of that risk. 21 1001 (citing Tamas, 630 F.3d at 844). 22 second element by showing either (a) the official actually 23 inferred that risk of harm or (b) a reasonable official would 24 have done so. 25 of harm is “obvious,” courts can assume the official knew about 26 it. 27 28 To See Brittain v. Hansen, See Tamas, 630 F.3d at 844. The plaintiff must See id. at A plaintiff meets the See id. (internal citation omitted). If a risk See id. (internal citation omitted). Here, Plaintiffs claim the County and Defendants Lynch, Villa, Williams, and Rodocker violated A.P.’s substantive due 7 1 process rights. 2 judgment for Defendants as to the Mammens’ due process claim 3 because they lack standing: 4 nor “prospective adoptive” parental status creates a cognizable 5 liberty interest. 6 (9th Cir. 2004); Olvera v. Cty. of Sacramento, 932 F. Supp. 2d 7 1123, 1142 (E.D. Cal. 2013) (citing California law). 8 may raise this claim. 9 See TAC at 20. The Court grants summary Neither “de facto” parental status See Miller v. California, 355 F.3d 1172, 1176 Only A.P. A.P. alleges Defendants prevented him from receiving 10 “appropriate care and treatment” when they “rushed to judgment” 11 and “removed medically recommended therapies” that help his 12 “behavior and development,” which abridged “his constitutional 13 right to care” for his “disabilities.” 14 TAC ¶¶ 84-85, 96, 124. Defendants argue they did not violate A.P.’s substantive 15 due process rights because local law obligated them to 16 intervene. 17 Regs. tit. 22 section 89372(a)(8), the anti-restraint rule, 18 which prohibits foster parents from placing a foster child “in 19 any restraining device other than as specified in section 20 89475.2, Postural Supports and Protective Devices.” 21 8. 22 See Mem., ECF No. 80-1, at 8. They cite Cal. Code See Mem. at Defendants also cite County policy to defend their conduct, 23 arguing that the policy also outlaws the Mammens’ techniques. 24 See Ex. 52, ECF No. 80-4, at COS 4965-66 (prohibiting 25 unconventional mental health treatments for children including 26 “Rebirthing Therapy, Holding Therapy, Quiet Play Program, Strong 27 Sitting Time Out, isolation, forced exercise, and other 28 techniques which humiliate or cause emotional pain to 8 1 children”); Ex. 53, ECF No. 80-4, at COS 4967-68 (prohibiting 2 unconventional mental health treatments involving “traditional 3 psychoanalytic theories in conjunction with touch therapy”); Ex. 4 54, ECF No. 80-4, at COS 4969-70 (prohibiting “any coercive 5 methods of restraint” or “other interventions utilizing 6 adaptations of holding or touch”). 7 the social workers realized A.P.’s sensory diet endangered him, 8 they stopped his therapy altogether. 9 18:10 (citing Ex. 24). 10 Defendants concede that once See Hr’g Tr. at 17:16- Yet A.P. contends that, by restricting his entire sensory 11 diet (rather than just the “wrapping”), “Defendants were 12 deliberately indifferent to the self-harm [he] inflicts without 13 appropriate sensory interventions.” 14 Hawkins, A.P.’s occupational therapist, noted his self-harming 15 tendencies when prescribing his sensory diet. 16 4638 (explaining A.P. “frequently demonstrates behaviors 17 indicative of sensory processing deficits, poor self-regulation, 18 self-injurious and aggressive behaviors, and difficulty calming 19 himself”). 20 A.P.’s propensity towards self-harm. 21 (advising A.P. should continue with his therapy as Ms. Hawkins 22 prescribed “to prevent self harm,” especially because 23 “medications so far have failed to help him”). 24 these known risks, the County prohibited A.P.’s recommended 25 therapies entirely for a period of time. 26 See Opp’n at 8. Ms. See Ex. A at COS A.P.’s neurologic pediatrician approved and affirmed See id. at COS 4639-40 Yet, despite See Opp’n at 9. The Court finds that A.P. has created a genuine dispute as 27 to a material fact with respect to this claim. 28 about A.P.’s serious medical needs. 9 Defendants knew Ex. A at COS 4590 (CAPS 1 Short-Term Assessment), COS 4638 (Hawkins’s letter recommending 2 sensory diet), COS 4639-40 (pediatrician’s letters approving 3 sensory diet). 4 treatment they claimed jeopardized A.P.’s safety), Defendants 5 restricted his entire sensory diet for nearly two weeks. 6 Mammen Dep. 93:18-94:21 (testifying that defendants Lynch, 7 Williams, and Rodocker told Mammens they could not use sensory 8 diet, and Williams and Rodocker reiterated this during home 9 visit); UMF No. 100 (Williams and Rodocker home visit with But, rather than prohibiting only wrapping (the See R. 10 Mammens on 9/23/2011). 11 inform Ms. Mammen, for the first time, she may use sensory diet 12 except for wrapping). 13 See also Ex. 24 (on 10/6/2011 Defendants This raises a triable issue regarding substantive due 14 process concerns. 15 case applying the deliberate indifference standard to foster 16 children. 17 standard, it involved child molestation—a concern not at issue 18 here. The more relevant case is Willden, which neither party 19 cites. There, the Ninth Circuit analyzed a County’s alleged 20 failure to provide foster children adequate medical care under 21 Tamas’s deliberate indifference standard. 22 1000-01. 23 Both parties discuss Tamas, a Ninth Circuit Although Tamas establishes the relevant legal Willden, 678 F.3d at In Willden, several foster children sued the state, the 24 county, and various state and county officials under § 1983 for 25 violating their substantive due process rights. 26 The foster children alleged, in part, the defendants did not 27 give them necessary medical care. 28 foster child “became seriously ill with an impacted colon,” yet 10 Id. at 997. See id. at 996. Indeed, one 1 “the County failed to approve a colonoscopy or other treatment 2 measures, despite repeated requests from [the foster child’s] 3 doctor and his foster parent.” 4 Circuit reversed the district court’s dismissal, concluding that 5 plaintiffs stated a claim because “[a] reasonable official would 6 have understood that failing to authorize [the foster child’s] 7 medical treatment despite knowledge of his serious illness and 8 repeated requests from his treating physician amounted to 9 deliberate indifference to a serious medical need.” 10 Id. Applying Tamas, the Ninth Willden, 678 F.3d at 1001. 11 Despite the differences in procedural posture (pleading in 12 Willden, summary judgment here) and duration without treatment 13 (months in Willden, 13 days here), Willden remains instructive: 14 A foster child states a claim under the deliberate indifference 15 standard when he alleges the municipality knew about his serious 16 medical condition yet failed to provide him adequate medical 17 care. 18 evidence that Defendants knew about his self-harming behavior. 19 See Ex. A at COS 4638-40. 20 Defendants prohibited his entire sensory diet. 21 Dep. 93:18-94:21; UMF No. 100. 22 See id. at 1001. A.P. makes this showing. He offers And he offers evidence that See R. Mammen See also Ex. 24. In short, A.P. has created a triable issue about whether 23 Defendants were deliberately indifferent to the self-harm A.P. 24 inflicts without his sensory diet. 25 indifference” prong, A.P. has submitted sufficient evidence 26 showing there was an objectively substantial risk of harm. 27 to the second prong, “[a] reasonable official would have 28 understood” that removing A.P.’s entire sensory diet for two 11 As to the first “deliberate As 1 weeks, despite knowing about his serious condition and repeated 2 requests from his foster parents to use this diet, “amounted to 3 deliberate indifference to a serious medical need.” 4 Willden, 678 F.3d at 1001. 5 find for Plaintiffs on this claim. 6 summary judgment on A.P.’s substantive due process claim as to 7 defendants Rodocker, Lynch, and Williams. 8 9 See At minimum, a reasonable juror could The Court therefore denies But the Court grants summary judgment on this claim as to defendant Villa. A.P. sues Villa in his individual capacity, 10 but offers no evidence that Villa personally participated in the 11 alleged misconduct. 12 shows Villa was involved only with enforcing the County’s anti- 13 wrapping policy, not the decision to prohibit A.P.’s sensory 14 diet. 15 October 13, 2011, one week after Defendants informed Ms. Mammen 16 she could use A.P.’s sensory diet except for wrapping. 17 A at COS 4635. 18 process claim against Villa based on A.P.’s two-week total 19 sensory diet deprivation fails as a matter of law. 20 That is because none exists. The record Defendant Lynch first told Villa about A.P.’s case on See also Ex. 24. See Ex. So, A.P.’s substantive due And, finally, the Court grants summary judgment for the 21 County on this claim because it duplicates A.P.’s Monell claim. 22 See infra Part II.D.5. 23 24 b. Equal Protection A.P. also brings a Fourteenth Amendment § 1983 claim 25 against all Defendants under an equal protection theory. See 26 TAC at 20-21. 27 “recommended keeping him from permanency, while his sister’s 28 matter was approved for permanency” and that “[t]here was no He alleges Defendants stalled his adoption and 12 1 non-discriminatory reason for this disparate treatment.” 2 ¶¶ 119-20. 3 Id. The equal protection clause prohibits any state from 4 denying any person within its jurisdiction the equal protection 5 of the laws, see U.S. Const. amend. XIV, § 1, and requires that 6 the state treats all persons similarly situated alike, see City 7 of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). 8 For equal protection claims based on mental disabilities, courts 9 assess whether the government’s alleged disparate treatment was 10 “rationally based” on a legitimate state interest. 11 440-42. See id. at 12 Defendants argue A.P.’s disparate treatment claim fails 13 because A.P. (given his severe disability) is not “similarly 14 situated” to his sister. 15 maintain that A.P. and his sister were similarly situated 16 because both were the Mammens’ foster children, but only his 17 sister received unrestricted medical services. 18 See Mem. at 9. The Court agrees with Defendants. But Plaintiffs See Opp’n at 10. First, A.P. and his 19 sister were not similarly situated. Both were foster children 20 in the Mammen home, but A.P.’s medical condition meaningfully 21 differed from his sister’s—and Plaintiffs recognize this. 22 Jambeck Decl., ECF No. 95-6 (“Ex. F”), at COS 2084 (“MP is a 6 23 year old female . . . AP is a 5 year old male with special 24 needs.”). Second, the government survives rational basis 25 scrutiny. Defendants need only show a legitimate government 26 interest to support A.P.’s disparate treatment. 27 just that. 28 his own safety. See They have done Defendants restricted A.P.’s medical services for See Mem. at 10-11 (discussing anti-wrapping 13 1 rule). 2 children’s safety is an illegitimate government interest. 3 cite only McCollum v. California Dep’t of Corrs. & Rehab., 4 involving a prison’s chaplaincy program. 5 2011). 6 Plaintiffs’ argument. 7 recommended sensory diet and A.P.’s pediatrician’s approval) 8 does not diminish the “rational relationship between the 9 disparity of treatment and some legitimate governmental Plaintiffs have not shown that concern for foster They 647 F.3d 870 (9th Cir. This factually distinct case does not advance And their evidence (Ms. Hawkins’s 10 purpose.” 11 531 U.S. 356, 367 (2001) (emphasizing “the result of Cleburne is 12 that States are not required by the Fourteenth Amendment to make 13 special accommodations for the disabled, so long as their 14 actions toward such individuals are rational”). 15 See Garret v. Bd. of Trs. of the Univ. of Alabama, Simply put, because Plaintiffs do not “negative any 16 reasonably conceivable state of facts that could provide a 17 rational basis classification,” the Court grants Defendants’ 18 motion for summary judgment on A.P.’s equal protection claim. 19 20 5. First Claim--Monell A.P. brings a Monell claim against both the County and the 21 individual County employees. 22 can survive only against the County. 23 Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). 24 Here, Plaintiffs cite no authority supporting their theory that 25 these individual defendants may face Monell liability. 26 Court therefore grants summary judgment on A.P.’s Monell claim 27 as against Defendants Lynch, Rodocker, Villa, and Williams. 28 See TAC at 18. But a Monell claim See generally Monell v. The To succeed on a Monell claim against a county, a plaintiff 14 1 must show the county had a policy or custom that violated his 2 federally protected rights. 3 must show (1) the county deprived him of a federal 4 constitutional right; (2) the county had a policy; (3) the 5 policy amounted to deliberate indifference to his constitutional 6 right; and (4) the policy is the moving force behind the 7 constitutional violation. 8 U.S. 378, 389-91 (1989). 9 element by showing (1) an express municipal policy, such as an Id. at 694-95. So, a plaintiff See City of Canton v. Harris, 498 A plaintiff may satisfy the second 10 ordinance, regulation, or policy statement; (2) a “widespread 11 practice that, although not authorized by written law or express 12 municipal policy, is ‘so permanent and well settled as to 13 constitute a custom or usage’ with the force of law”; or (3) the 14 decision of a person with “final policymaking authority.” 15 City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 127 (1988) 16 (internal citation omitted). 17 Cincinnati, 475 U.S. 469, 481—83 (1986). 18 A.P. has done that. See See also Pembaur v. City of As discussed above, he raises a 19 factual dispute about whether the County’s enforcing its anti- 20 wrapping policy (which restricted A.P.’s sensory diet for nearly 21 two weeks) violated his substantive due process rights. 22 A.P. not only meets his initial burden to prove this claim, but 23 also rebuts Defendants’ arguments against it. 24 summary judgment on A.P.’s Monell claim against the County. 25 26 27 6. Thus, The Court denies Fourth Claim--Rehabilitation Act § 504 A.P. brings this claim against the County, alleging disability discrimination and retaliation. 28 15 See TAC at 23-24. 1 a. 2 Disability Discrimination Rehabilitation Act § 504 prohibits disability 3 discrimination in all federally funded programs. See 29 U.S.C. 4 § 794. 5 (1) he is handicapped; (2) he is otherwise qualified for the 6 benefit or services sought from the organization; (3) he was 7 denied the benefit of services because of his handicap; and 8 (4) the benefit program is at least partially federally funded. 9 See Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). To establish a § 504 violation, a plaintiff must show 10 Equally important, failing to reasonably accommodate can amount 11 to discrimination under the Act. 12 581, 592 (1999); Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 13 2002). 14 accommodate disabilities unless doing so would fundamentally 15 alter the nature of the service, program, or activity. 16 Olmstead, 527 U.S. at 592. See Olmstead v. L.C., 527 U.S. A public entity must make reasonable modifications to 17 A.P. alleges the County violated the Rehabilitation Act 18 because it (1) lacked an Olmstead Plan to ensure people with 19 disabilities receive services in the least restrictive 20 environment; 1 (2) used A.P.’s severe disability as a factor in 21 his adoptability; (3) failed to investigate treatment methods 22 autism experts prescribed before restricting A.P.’s entire 23 sensory diet; (4) prohibited A.P. from receiving appropriate 24 services, worsening his condition; and (5) interfered with Ms. 25 1 26 27 28 In Olmstead, the Supreme Court held that states must not unnecessarily segregate people with disabilities, ensuring that these individuals receive services in the most integrated setting appropriate to their needs. See id. at 599 (explaining that the “least restrictive environment” means a setting least restrictive to the disabled person’s personal liberty). 16 1 Mammen’s attempts to give A.P. therapeutic services. 2 ¶ 131. 3 See TAC In support of its motion on this claim, the County argues 4 that although it lacks a policy entitled “Olmstead”, the County 5 incorporated Olmstead’s requirements by always keeping A.P. in 6 the least restrictive environment available. 7 In response, A.P. maintains the County failed to engage in an 8 interactive process with the Mammens that would have allowed for 9 reasonable accommodation. See Opp’n at 12. See Mem. at 15-16. In reply, the 10 County reiterates that it could not accommodate A.P.’s needs 11 (i.e., allow wrapping) without violating the law. 12 3. 13 The Court agrees with the County. See Reply at First, it is undisputed 14 A.P. always remained in the least restrictive environment. See 15 UMF No. 26 (A.P. placed in Mammen foster home); UMF No. 31 16 (County never removed A.P. from Mammens’ custody); UMF No. 32 17 (A.P. never placed in institution); UMF No. 155 (finalized 18 adoption with Mammens). 19 sufficiently interacted with Plaintiffs: 20 officials met with the Mammens to discuss A.P.’s sensory diet. 21 See UMF No. 100 (Rodocker and Williams’s Mammen home visit); R. 22 Mammen Dep. 93:18-94:21 (defendants Lynch, Williams, and 23 Rodocker told Mammens they could not use sensory diet). 24 also UMF Nos. 102-103 (Team Decisional Meeting with Mammens 25 discussing wrapping technique); Ex. 24 (state court hearing 26 where Ms. Mammen informed she could use sensory diet except 27 wrapping); UMF No. 115 (parties meet and confer regarding 28 wrapping technique and other protocols in A.P.’s sensory diet Second, the Court finds the County 17 Several County See 1 2 subject to Juvenile Court’s order). And, finally, Plaintiffs produce no evidence that a 3 reasonable accommodation was possible. 4 Defendants’ reliance on California’s anti-restraint rule, 5 arguing that a potential exception applies: 6 wrapping technique is a “postural support” or “protective 7 device.” 8 anti-restraint rule). 9 Plaintiffs rebuke Namely, that the See Opp’n at 12 (citing exception to California’s Not so. The wrapping technique is not a postural support 10 because wrapping involves “tying, depriving, or limiting a 11 ‘child’ from use of hands or feet.” 12 section 89475.2(1) (describing what a postural support is not). 13 Nor is the wrapping technique a “protective device” because 14 protective devices cannot prohibit mobility. 15 tit. 22, section 89475.2(2). 16 Defendants’ argument that they did not deny Plaintiffs’ request 17 because of A.P.’s disability; they denied this treatment because 18 of safety concerns and clearly defined state law restrictions. 19 In sum, the Court grants summary judgment on A.P.’s § 504 20 disability discrimination claim against the County. 21 22 b. Cal. Code Regs., tit. 22, Cal. Code Regs., These definitions also bolster Retaliation Although A.P. brought a § 504 retaliation claim, he did not 23 address it in opposition. See generally Opp’n (discussing only 24 disability discrimination). 25 maintained that the retaliation claim standard mirrors that of 26 A.P.’s disability discrimination claim, and so, to the extent 27 the County retaliated against the Mammens, it also retaliated 28 against A.P. At hearing, Plaintiffs’ counsel See Hr’g Tr. at 8:24-9:12. This argument is 18 1 without merit. 2 supporting retaliation against A.P.—the only plaintiff bringing 3 a § 504 retaliation claim—the Court grants summary judgment for 4 the County on this claim. 5 7. 6 Because Plaintiffs cite no authority or evidence Fifth Claim--ADA Title II A.P. also brings an ADA Title II claim against the County, 7 alleging disability discrimination and retaliation. 8 26. 9 10 a. TAC at 24- Disability Discrimination A.P.’s ADA Title II disability discrimination claim does 11 not survive summary judgment. 12 violation, a plaintiff must show (1) he has a qualifying 13 disability; (2) defendants excluded him from or discriminated 14 against him within a public service, program, or activity; (3) 15 because of his disability. 16 also 42 U.S.C. § 12131. 17 disability discrimination claims as ADA Title II disability 18 discrimination claims. 19 (explaining “no significant difference in the analysis of rights 20 and obligations created by” the ADA and § 504). 21 § 504 claim does not survive summary judgment, his ADA Title II 22 discrimination claim fails as well. 23 1152 n.7. 24 this claim. 25 26 To establish an ADA Title II See Lovell, 303 F.3d at 1052. See Courts apply the same analysis to § 504 See Vinson, 288 F.3d 1145, 1152 n.7 Because A.P.’s See Vinson, 288 F.3d at The Court grants summary judgment for the County on b. Retaliation A.P. brings an ADA retaliation claim against the County. 27 For the same reasons his § 504 retaliation claim fails, A.P.’s 28 ADA Title II retaliation claim also fails. 19 The Court grants 1 summary judgment on this claim. 2 8. 3 Seventh Claim--Unruh Act A.P. brings an Unruh Civil Rights Act claim against the 4 County. 5 A.P.’s ADA Title II claim fails to survive summary judgment, his 6 derivative Unruh Act claim also fails. 7 § 51(f) (explaining that violating the ADA also violates the 8 Unruh Act). 9 See TAC at 27 (citing Cal. Civ. Code § 51). 9. Because See Cal. Civ. Code Sixth Claim--ADA Intimidation 10 The Mammens bring an ADA intimidation claim against the 11 County and defendant Lynch, alleging that, after the Mammens 12 filed an ADA grievance complaint, see TAC ¶ 149, these 13 defendants intimidated the Mammens by threatening to remove all 14 children from the Mammen home and threatening to stop A.P.’s 15 adoption, see TAC ¶¶ 69-70, 72, 123. 16 provision prohibits the coercion, intimidation, or interference 17 of any individual’s participation in or enjoyment of any right 18 that the ADA chapter grants or protects. 19 § 12203(b). 20 a. 21 The ADA’s intimidation See 42 U.S.C. Lynch Defendants contend that the Mammens’ intimidation claim 22 fails against Lynch because “[t]here is no individual liability 23 for retaliation under the ADA or the Rehabilitation Act,” Mem. 24 at 17, and so “the retaliation claim as asserted against 25 Stephanie Lynch in her individual capacity must fail,” id. at 26 18. 27 28 Defendants’ argument is irrelevant. First, Defendants mischaracterize the Mammens’ claim as “retaliation” (rather than 20 1 intimidation). 2 against Ms. Lynch: 3 County, and the Mammens brought an intimidation claim against 4 the County and Lynch. 5 hinge their argument on non-binding cases regarding individual 6 liability for retaliation claims. 7 issue is not before this Court. 8 addressed whether individual liability even applies in ADA and 9 § 504 retaliation claims, see Brenneise v. San Diego Unified The Mammens did not bring a retaliation claim A.P. brought a retaliation claim against the See TAC at 23-26. Second, Defendants See Mem. at 17-18. That The Ninth Circuit has not 10 Sch. Dist., No. 08-cv-28, 2009 WL 1308757, at *8 (S.D. Cal. May 11 8, 2009) (admitting that the Ninth Circuit has not addressed 12 this issue), let alone whether individual liability applies to 13 ADA intimidation claims. 14 Court should extend non-binding ADA retaliation claim precedents 15 to the ADA intimidation context here. 16 not met their initial burden to show the Mammens’ intimidation 17 claim against Lynch fails as a matter of law. 18 summary judgment on this claim against Lynch. 19 b. Nor do Defendants explain why the In short, Defendants have The Court denies County 20 Defendants also contend this ADA intimidation claim fails 21 against the County, explaining that Defendants had legitimate, 22 non-pretextual reasons for their conduct. See Mem. at 18. 23 Again, because Defendants mischaracterize the Mammens’ 24 claim as retaliation (rather than intimidation), Defendants 25 apply the wrong standard. 26 that the Fair Housing Act—not Title VII—is the better textual 27 analogue for ADA intimidation claims. 28 (9th Cir. 2003) (denying summary judgment on ADA intimidation Brown v. City of Tucson makes clear 21 336 F.3d 1181, 1188-91 1 claim after concluding district court erred in applying 2 McDonnell-Douglas framework). 3 brings an ADA intimidation claim, the plaintiff must show he 4 “suffered a distinct and palpable injury” or “direct harm” 5 because of coercion, intimidation, threats, or interference. 6 See id. at 1192-93. Under Brown, when a plaintiff 7 Defendants bear the initial burden of discrediting a claim— 8 only then does the Court scrutinize the evidence supporting that 9 claim. See Celotex Corp., 477 U.S. at 323-24. Because 10 Defendants erroneously characterize the Mammens’ claim as 11 retaliation and cite the wrong standard, they do not meet their 12 initial burden, and the Court need not scrutinize the evidence 13 as to this claim. 14 Mammens’ ADA intimidation claim as to the County. 15 16 10. The Court denies summary judgment on the Eighth Claim--Negligence A.P. alleges all Defendants negligently breached their duty 17 to care for him “when they deprived him of prescribed services, 18 interfered with his parents’ ability to care for him and kept 19 him from being part of a permanent family.” 20 Although the TAC lists all Plaintiffs on this claim, Plaintiffs’ 21 counsel clarified at hearing that this is only A.P.’s claim. 22 See Hr’g Tr. at 10:10-16. 23 TAC ¶ 160. Defendants attempt to invoke statutory immunity under 24 section 820.2. See Mem. at 20-21. 25 § 820.2 (“[A] public employee is not liable for an injury 26 resulting from his act or omission where the act or omission was 27 the result of the exercise of the discretion vested in him.”). 28 This immunity also applies to public entities. 22 See also Cal. Gov. Code See Cal. Gov. 1 Code § 815.2(b). 2 a social worker’s pre-adoption work is discretionary activity. 3 See Mem. at 21 (citing Ronald S. v. Cty. of San Diego, 16 Cal. 4 App. 4th 887, 897 (1993)). 5 Defendants argue immunity applies here because The Court disagrees. California courts “rejected a 6 semantic inquiry into the meaning of discretionary and based 7 [their] approach on the reason or purpose for granting immunity 8 to the public employee and entity in this area.” 9 of Orange, 3 Cal. App. 3d 1053, 1057 (1970). Elton v. Cty. Recognizing the 10 fine “line between the immune ‘discretionary’ decision and the 11 unprotected ministerial act,” Elton concluded that section 820.2 12 immunizes public employees’ discretionary acts and omissions 13 only if they “involve basic policy decisions.” 14 Elton also held that immunity applies only where the public 15 employee consciously exercised discretion while committing the 16 allegedly negligent act. 17 Id. at 1057-58. See id. at 1058. This case is analogous to Elton because the gravamen of 18 Plaintiffs’ TAC does not concern pre-adoption work per se; it 19 concerns A.P.’s care after Defendants placed him in the Mammens’ 20 foster home. 21 decision to classify a child as a dependent child is 22 discretionary, the actual placement of the child in a foster 23 home and the administration of her care therein do not rise to 24 the level of policy decisions protectable by statutory immunity. 25 See Elton, 3 Cal. App. 3d at 1058. 26 administration of A.P.’s care after they placed him in the 27 Mammen foster home, Plaintiffs raise a triable issue as to 28 section 820.2’s applicability. See generally TAC. So, although the initial By contesting Defendants’ The Court denies summary 23 1 judgment on A.P.’s negligence claim. 2 11. 3 Ninth Claim--Intentional Infliction of Emotional Distress 4 Plaintiffs ninth and final claim is for intentional 5 infliction of emotional distress (“IIED”) against all Defendants. 6 TAC at 29. 7 sought to place A.P. in an institutional setting without any 8 regard for his bond with his de facto parents” and “falsely and 9 maliciously accused the Mammens of neglecting and abusing A.P. . 10 They allege Defendants “intentionally and maliciously . . caus[ing] emotional duress and stress.” 11 TAC ¶¶ 167, 169. Defendants argue their reasonable and appropriate response 12 to their concerns about A.P.’s safety does not amount to 13 “extreme” or “outrageous” conduct. 14 disagree, relying primarily on Ms. Mammen’s testimony about the 15 County employees’ “accusations and unfounded statements and 16 threats to remove all children if the Mammens would not sign the 17 corrective action plans.” 18 omitted). 19 See Mem. at 21. Plaintiffs Opp’n at 18-19 (internal citations Defendants arguments are more persuasive. First, A.P.’s 20 claim fails because the record shows Defendants directed their 21 allegedly outrageous conduct towards the Mammens, not towards 22 A.P. 23 the Mammens). 24 offer no case law showing Defendants’ reach the high standard of 25 “extreme or outrageous conduct.” 26 elements of an IIED claim). 27 lack of evidence to support this claim, and Plaintiffs do not 28 meet their burden to rebut this showing, the Court grants See Opp’n at 18-19 (discussing only what Defendants said to Second, the Mammens’ claim fails because they See id. (citing only the So, because Defendants illuminate a 24 1 Defendants’ motion on this claim. 2 323-24. See Celotex Corp., 477 U.S. at 3 4 5 III. ORDER For the reasons set forth above, the Court GRANTS in part 6 and DENIES in part Defendants’ motion for summary judgment. 7 Summary judgment is granted on all claims and as to defendants 8 Larkin and Callejas with the exception that the following claims 9 will proceed to trial: 10 • 11 12 Claim); • 13 14 17 18 19 A.P.’s substantive due process claim as to Defendants Rodocker, Lynch, and Williams only (Third Claim); • 15 16 A.P.’s Monell claim against the County only (First The Mammens’ ADA intimidation claim as against the County and Defendant Lynch (Sixth Claim); • A.P.’s negligence claim against all Defendants Lynch, Rodocker, Villa, Williams and the County (Eighth Claim). IT IS SO ORDERED. Dated: April 25, 2017 20 21 22 23 24 25 26 27 28 25

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