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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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A.P. (a minor); ROBIN MAMMEN
and LARRY MAMMEN individually
and as Guardians ad litem for
A.P.,
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Plaintiffs,
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No.
2:13-cv-01588-JAM-DB
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
v.
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COUNTY OF SACRAMENTO,
STEPHANIE LYNCH, LUIS VILLA,
MICHELLE CALLEJAS, DEBRA
WILLIAMS, CRAIG LARKIN, RENAE
RODOCKER,
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Defendants.
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Now before this Court is Defendants’ motion for summary
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judgment, ECF No. 80, which Plaintiffs oppose, ECF No. 94.
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March 7, 2017, the parties appeared for hearing, after which the
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Defendants’ motion was taken under submission.
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reasons, this motion is granted in part and denied in part.
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///
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On
For the following
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I.
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
This case involves a dispute between the Mammens, a foster
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family, and the County of Sacramento (“County”).
But, at its
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core, this case concerns A.P., a child diagnosed with autism and
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mental retardation.
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pediatrician approved a “sensory diet,” which refers to the type
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and amount of sensory input a person receives throughout the day.
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See Jambeck Decl., ECF No. 95-1 (“Ex. A”), at COS 4638-40.
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Designed to address A.P.’s “sensory processing deficits, poor
A.P.’s occupational therapist and his
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self-regulation, self-injurious and aggressive behavior,” this
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sensory diet includes “therapeutic listening,” a music program
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with electronically modified music.
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includes “activities [that] provide proprioceptive based input
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(i.e., input “received through the muscles and joints [that] is
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generally calming to the body”).
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through fabric tubing,” “being ‘smashed’ like a sandwich in
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beanbags,” “jumping,” and “pushing heavy [laundry] loads”).
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Id. at COS 4638.
It also
Id. (for instance, “crawling
It is one activity in A.P.’s sensory diet in particular that
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triggered this lawsuit—the “wrapping” technique.
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involved wrapping A.P. like a “burrito” in stretchy fabric or a
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lightweight blanket.
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wrapped A.P., the County prohibited the Mammens from using A.P.’s
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entire sensory diet for two weeks, after which the County banned
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only “wrapping.”
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Material Fact (“UMF”), ECF No. 80-2, No. 100.
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ECF No. 86.
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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
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Williams, Craig Larkin, and Renae Rodocker (collectively,
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“Defendants”).
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bring several claims:
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training and supervision claim; (3) § 1983 Fourteenth Amendment
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claims; (4) Rehabilitation Act § 504 claims; (5) ADA Title II
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claims; (6) an ADA intimidation claim; (7) an Unruh Civil Rights
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Act claim; (8) a negligence claim; and (9) an intentional
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infliction of emotional distress claim.
Third Am. Compl. (“TAC”), ECF No. 49.
Plaintiffs
(1) a Monell claim; (2) a § 1983 improper
TAC at 1.
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II.
OPINION
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A.
Legal Standard
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A court may grant summary judgment when a party shows that,
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as to any claim or defense, “there is no genuine dispute as to
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any material fact and the movant is entitled to judgment as a
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matter of law.”
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judgment, the non-movant must show that the parties dispute a
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fact that could affect the case’s outcome.
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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
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moving party must show there is no genuine dispute as to
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material fact, though it need not introduce affirmative
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evidence.
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(1986).
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the pleadings and show that triable factual issues exist.
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id. at 324.
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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
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must view the evidence in the light most favorable to the non-
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movant and must not make credibility findings.
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See Anderson,
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477 U.S. at 255.
2
version of events if it is unreasonable or if the record plainly
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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
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B.
Judicial Notice
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Plaintiffs request judicial notice of Cal. Code Regs. tit.
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22, sections 89372 and 89475.2.
Req. For Judicial Notice, ECF
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No. 97.
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information, a court may judicially notice facts that reliable
If the requesting party provides necessary supporting
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sources can “accurately and readily” determine.
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201(b)(2), (d).
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notice request because it concerns undisputed public records.
Fed. R. Evid.
Here, the Court grants Plaintiffs’ judicial
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C.
Evidentiary Objections
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In resolving a summary judgment motion, a court may
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consider only admissible evidence.
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F.3d 1032, 1036 (9th Cir. 2003).
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rely on 22 facts containing inadmissible hearsay and six lacking
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foundation.
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Facts, ECF No. 96.
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these objections.
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objections are unavailing because they contest evidence that is
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either immaterial or admissible.
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of Univ. of California, 433 F. Supp. 2d 1110 (E.D. Cal. 2006).
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The Court therefore overrules Plaintiffs’ evidentiary
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objections.
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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
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Callejas fail as a matter of law.
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individual capacity faces liability only upon a sufficient
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showing that he personally participated in the challenged
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conduct.
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At hearing, Plaintiffs conceded they have no evidence that
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Defendants Larkin or Callejas participated in prohibiting A.P.’s
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sensory diet or otherwise had an active role in approving
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decisions challenged by Plaintiffs in this lawsuit.
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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’
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evidence does not implicate either Defendant, the Court grants
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summary judgment on all claims against them.
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2.
Abandonment
A party cannot revisit abandoned theories on summary
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judgment.
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1026 (9th Cir. 2009).
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full and fair opportunity to ventilate its views” on it and
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instead “removes the issue from the case.”
18
citations and quotations marks omitted).
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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
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A.P. was improperly deprived prescription medication,
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institutionalized or threatened with institutionalization,
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discriminated against based on his race, denied adoption or that
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his adoption was unjustifiably delayed, and deprived required
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funding, or that the Mammen Plaintiffs’ Fourteenth Amendment
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rights were violated.”
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Reply at 2.
Defendants are partially correct.
At hearing, Plaintiffs
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conceded to abandoning their § 1983 improper training and
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supervision claim (Second Claim) and Fourteenth Amendment
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familial association claim (part of the Third Claim).
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Tr. at 6:17-7:2.
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claims.
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discrimination or deprived funding causes of action, they did
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not abandon those.
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prescription deprivation, institutionalization, and adoption
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denial are not claims, but rather arguments to support claims.
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See generally TAC.
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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.
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at 1026.
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in their summary judgment opposition without abandoning a claim.
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Defendants’ abandonment argument as to these assertions fails.
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So, Plaintiffs may, as they did here, omit arguments
3.
Official Capacity
When a plaintiff asserts a § 1983 claim against both a
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municipal entity and a municipal official in his official
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capacity, federal district courts routinely dismiss the latter
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as duplicative.
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2016 WL 319232, at *18 (E.D. Cal. Jan. 27, 2016)(citing cases).
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Plaintiffs here assert their first and third § 1983 claims
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against the County and official-capacity defendants.
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18, 20.
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claims brought in their first and third causes of action as
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duplicative.
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4.
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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
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protects both “a foster child’s liberty interest in social
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worker supervision” and the child’s liberty “from harm inflicted
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by a foster parent.”
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Servs., 630 F.3d 833, 842 (9th Cir. 2010).
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assumes wardship of a child, the state owes the child, as part
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of that person’s protected liberty interest, reasonable safety
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and minimally adequate care . . . .”
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omitted).
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enjoyed a special relationship with the state and held a
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protectable interest against any harm his foster parents might
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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
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Courts apply a “deliberate indifference” standard to
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substantive due process challenges in the foster care context.
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Henry A. v. Willden, 678 F.3d 991, 1000 (9th Cir. 2012).
13
violate due process, state officials must act with such
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deliberate indifference to the child’s liberty interest that
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their actions “shock the conscience.”
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451 F.3d 982, 991 (9th Cir. 2006) (internal citation omitted).
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The deliberate indifference must be towards a known or obvious
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risk of harm.
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show (1) an objectively substantial risk of harm and (2) the
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officials knew or should have known of that risk.
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1001 (citing Tamas, 630 F.3d at 844).
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second element by showing either (a) the official actually
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inferred that risk of harm or (b) a reasonable official would
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have done so.
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of harm is “obvious,” courts can assume the official knew about
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it.
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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
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process rights.
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judgment for Defendants as to the Mammens’ due process claim
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because they lack standing:
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nor “prospective adoptive” parental status creates a cognizable
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liberty interest.
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(9th Cir. 2004); Olvera v. Cty. of Sacramento, 932 F. Supp. 2d
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1123, 1142 (E.D. Cal. 2013) (citing California law).
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may raise this claim.
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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
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“appropriate care and treatment” when they “rushed to judgment”
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and “removed medically recommended therapies” that help his
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“behavior and development,” which abridged “his constitutional
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right to care” for his “disabilities.”
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TAC ¶¶ 84-85, 96, 124.
Defendants argue they did not violate A.P.’s substantive
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due process rights because local law obligated them to
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intervene.
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Regs. tit. 22 section 89372(a)(8), the anti-restraint rule,
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which prohibits foster parents from placing a foster child “in
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any restraining device other than as specified in section
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89475.2, Postural Supports and Protective Devices.”
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8.
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See Mem., ECF No. 80-1, at 8.
They cite Cal. Code
See Mem. at
Defendants also cite County policy to defend their conduct,
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arguing that the policy also outlaws the Mammens’ techniques.
24
See Ex. 52, ECF No. 80-4, at COS 4965-66 (prohibiting
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unconventional mental health treatments for children including
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“Rebirthing Therapy, Holding Therapy, Quiet Play Program, Strong
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Sitting Time Out, isolation, forced exercise, and other
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techniques which humiliate or cause emotional pain to
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children”); Ex. 53, ECF No. 80-4, at COS 4967-68 (prohibiting
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unconventional mental health treatments involving “traditional
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psychoanalytic theories in conjunction with touch therapy”); Ex.
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54, ECF No. 80-4, at COS 4969-70 (prohibiting “any coercive
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methods of restraint” or “other interventions utilizing
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adaptations of holding or touch”).
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the social workers realized A.P.’s sensory diet endangered him,
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they stopped his therapy altogether.
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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
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diet (rather than just the “wrapping”), “Defendants were
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deliberately indifferent to the self-harm [he] inflicts without
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appropriate sensory interventions.”
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Hawkins, A.P.’s occupational therapist, noted his self-harming
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tendencies when prescribing his sensory diet.
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4638 (explaining A.P. “frequently demonstrates behaviors
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indicative of sensory processing deficits, poor self-regulation,
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self-injurious and aggressive behaviors, and difficulty calming
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himself”).
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A.P.’s propensity towards self-harm.
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(advising A.P. should continue with his therapy as Ms. Hawkins
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prescribed “to prevent self harm,” especially because
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“medications so far have failed to help him”).
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these known risks, the County prohibited A.P.’s recommended
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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
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to a material fact with respect to this claim.
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about A.P.’s serious medical needs.
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Defendants knew
Ex. A at COS 4590 (CAPS
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Short-Term Assessment), COS 4638 (Hawkins’s letter recommending
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sensory diet), COS 4639-40 (pediatrician’s letters approving
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sensory diet).
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treatment they claimed jeopardized A.P.’s safety), Defendants
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restricted his entire sensory diet for nearly two weeks.
6
Mammen Dep. 93:18-94:21 (testifying that defendants Lynch,
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Williams, and Rodocker told Mammens they could not use sensory
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diet, and Williams and Rodocker reiterated this during home
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visit); UMF No. 100 (Williams and Rodocker home visit with
But, rather than prohibiting only wrapping (the
See R.
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Mammens on 9/23/2011).
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inform Ms. Mammen, for the first time, she may use sensory diet
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except for wrapping).
13
See also Ex. 24 (on 10/6/2011 Defendants
This raises a triable issue regarding substantive due
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process concerns.
15
case applying the deliberate indifference standard to foster
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children.
17
standard, it involved child molestation—a concern not at issue
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here.
The more relevant case is Willden, which neither party
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cites.
There, the Ninth Circuit analyzed a County’s alleged
20
failure to provide foster children adequate medical care under
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Tamas’s deliberate indifference standard.
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1000-01.
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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
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county, and various state and county officials under § 1983 for
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violating their substantive due process rights.
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The foster children alleged, in part, the defendants did not
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give them necessary medical care.
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foster child “became seriously ill with an impacted colon,” yet
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Id. at 997.
See id. at 996.
Indeed, one
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“the County failed to approve a colonoscopy or other treatment
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measures, despite repeated requests from [the foster child’s]
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doctor and his foster parent.”
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Circuit reversed the district court’s dismissal, concluding that
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plaintiffs stated a claim because “[a] reasonable official would
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have understood that failing to authorize [the foster child’s]
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medical treatment despite knowledge of his serious illness and
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repeated requests from his treating physician amounted to
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deliberate indifference to a serious medical need.”
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Id.
Applying Tamas, the Ninth
Willden,
678 F.3d at 1001.
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Despite the differences in procedural posture (pleading in
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Willden, summary judgment here) and duration without treatment
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(months in Willden, 13 days here), Willden remains instructive:
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A foster child states a claim under the deliberate indifference
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standard when he alleges the municipality knew about his serious
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medical condition yet failed to provide him adequate medical
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care.
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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
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Defendants were deliberately indifferent to the self-harm A.P.
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inflicts without his sensory diet.
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indifference” prong, A.P. has submitted sufficient evidence
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showing there was an objectively substantial risk of harm.
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to the second prong, “[a] reasonable official would have
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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.
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find for Plaintiffs on this claim.
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summary judgment on A.P.’s substantive due process claim as to
7
defendants Rodocker, Lynch, and Williams.
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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
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alleged misconduct.
12
shows Villa was involved only with enforcing the County’s anti-
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wrapping policy, not the decision to prohibit A.P.’s sensory
14
diet.
15
October 13, 2011, one week after Defendants informed Ms. Mammen
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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
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County on this claim because it duplicates A.P.’s Monell claim.
22
See infra Part II.D.5.
23
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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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