Mammen et al v. County of Sacramento et al

Filing 46

ORDER signed by Judge John A. Mendez on 6/6/14 GRANTING 40 Motion to Dismiss; the Court DISMISSES WITH LEAVE TO AMEND: Plaintiffs fourth cause of action for discrimination and retaliation; Plaintiffs fifth cause of action for discrimination an d retaliation; and Plaintiffs claims against Defendant Wong in her individual capacity. The Court DISMISSES WITHOUT PREJUDICE but WITHOUT LEAVE TO AMEND in this action, Plaintiffs seventh cause of action for violation of 42 U.S.C. § 1985 against CCL and Defendant Wong in her official capacity for damages. State Defendants attorneys are hereby ordered to pay $150 in sanctions within 10 days of the date of this order. (Dillon, M)

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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 Guardian Ad Litem for
A.P.,

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Plaintiffs,
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v.

No.

13-cv-01588 JAM-AC

ORDER GRANTING THE STATE
DEFENDANTS’ MOTION TO DISMISS
AND SANCTIONING STATE
DEFENDANTS’ COUNSEL

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COMMUNITY CARE LICENSING, et
al.,

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Defendants.

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Defendants Community Care Licensing (“CCL”) and Michelle

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Wong (“Wong”) (collectively “State Defendants”) move to dismiss

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(Doc. ## 39, 40) all causes of action alleged against them in

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Plaintiffs’ Second Amended Complaint (“SAC”) (Doc. #35).

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Plaintiffs A.P., Larry Mammen, and Robin Mammen (collectively

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“Plaintiffs”) oppose the motion (Doc. #41) and State Defendants’

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replied (Doc. # 45). 1

For the reasons set forth below, the State

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for May 21, 2014.
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Defendants’ Motion to Dismiss is GRANTED.

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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

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Plaintiffs filed this action on August 1, 2013, against the

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State Defendants; the County of Sacramento (“County”), Stephanie

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Lynch, Luis Villa, Michelle Callejas, Debra Williams, Craig

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Larkin, Renae Rodocker (collectively the “County Defendants”);

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and Children’s Law Center.

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Court leave, Plaintiffs filed a First Amended Complaint (Doc.

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On November 18, 2013, pursuant to

#17).
On March 14, 2014, pursuant to a stipulation, Plaintiffs

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filed a SAC, the operative complaint, alleging ten causes of

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action: (1) 42 U.S.C. § 1983 Monell Liability against the County

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Defendants; (2) 42 U.S.C. § 1983 Improper Training and

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Supervision against the County; (3) 42 U.S.C § 1983 violation of

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14th Amendment against the County Defendants; (4) violation of

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Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, against

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the County and CCL; (5) Title II violation of the Americans with

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Disabilities Act (“ADA”), 42 U.S.C. § 12132,

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and CCL; (6) violation of the ADA Intimidation Clause against

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Stephanie Lynch and the County; (7) violations 42 U.S.C.

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§ 1985(2)-(3) against the County and CCL; (8) Unruh Civil Rights

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Act violation against the County; (9) negligence against the

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County Defendants; and (10) intentional infliction of emotional

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distress against the County Defendants (Doc. #35).

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2014, the State Defendants moved to dismiss the fourth, fifth,

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and seventh causes of action.

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against the County

On April 18,

According to the allegations in the SAC, A.P. was removed
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from his birth parents at a young age due to abuse and neglect.

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SAC ¶ 17.

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Mammen’s home, a certified Foster home of the St. Francis Foster

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Family Agency.

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Juvenile Court suspended A.P.’s biological parents’ rights and

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Ms. Mammen was appointed A.P.’s educational representative.

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¶ 29.

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and obtained medical evaluations and treatments for A.P. Id.

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¶ 30.

On November 2, 2009, at age 3, A.P. was placed in the

Id. ¶¶ 27-28.

On or about November 17, 2009, the

Id.

Between November 2009 and August 2011, the Mammens sought

In 2009, A.P. was diagnosed with Autism and was later

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diagnosed with Sensory Integration Disorder, Moderate

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Intellectual Disability, and ADHD.

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Id. ¶ 23.

On August 17, 2011, reunification services were terminated

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due to failures on the part of A.P.’s biological parents, and in

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September 2011, the Mammens sought to make A.P.’s home with them

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permanent.

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unit in the County, the adoptions unit.

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pursued institutionalization of A.P. Id. ¶¶ 42-43.

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September 29, 2011, the Mammens filed a grievance with the

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Sacramento County disability compliance office alleging

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violations of the ADA and Olmstead v. L.C., 527 U.S. 581 (1999).

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Id. ¶ 45.

They filed an amended grievance on or about October

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13, 2011.

Id. ¶ 46.

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emailed another County Defendant about her concern that the

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Mammens were “wrapping [A.P.] like a burrito.”

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Defendant Lynch contacted CCL to say “this cannot be done” and

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she stated that CCL confirmed that this was a personal rights

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violation.

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Id. ¶ 29.

A.P.’s case was transferred to a different
Id. ¶ 41.

The County
On or about

The same day, Defendant Stephanie Lynch

Id. ¶ 47.

Id.

On or about November 8, 2011, a CCL investigator visited the
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Mammens to investigate the allegation they had received that the

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“foster parent is violating the personal rights of foster child.”

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Id. ¶ 56.

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parent admitted she used wrapping technique to calm her child.”

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Id.

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(“CCR”) Section 89372 with a finding of a personal rights

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violation of A.P.

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concern in A.P.’s adoption process. Id. ¶¶ 69-70.

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delay in the adoption process.

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The investigator presented findings that “the foster

Mrs. Mammen was cited under 22 California Code of Regulation

Id.

This CCL violation was raised as a
This caused

Id.

Plaintiffs adopted A.P. on October 31, 2012.

Id. ¶ 17.

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II.

OPINION

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A.

Fourth and Fifth Causes of Action

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State Defendants argue that the fourth cause of action for

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violation of Section 504 of the Rehabilitation Act and the fifth

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cause of action for violation of Title II of the ADA should be

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dismissed because Plaintiffs have failed to allege sufficient

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facts.

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mischaracterize their claims and evidence.

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Plaintiffs argue that the State Defendants

Plaintiffs’ fourth and fifth causes of action are separated

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into two claims: (1) discrimination under the ADA and

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Rehabilitation Act and (2) retaliation under the acts.

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parties devote several pages to whether Plaintiffs were permitted

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to use the “wrapping technique” on A.P.

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not address these specific arguments because they are not

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necessary for the determination of either claim.

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However, the Court need

Discrimination

Title II of the ADA prohibits a public entity from
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Both

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discriminating against a qualified individual with a disability

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on the basis of disability.

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v. L.A. County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.

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1997).

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elements:

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42 U.S.C. § 12132 (1994); Weinreich

To state a claim, a plaintiff must allege the following

(1) he is a “qualified individual with a disability”;
(2) he was either excluded from participation in or
denied the benefits of a public entity’s services,
programs or activities, or was otherwise discriminated
against by the public entity; and (3) such exclusion,
denial of benefits, or discrimination was by reason of
his disability.

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Weinreich, 114 F.3d at 978 (emphasis in original).

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under Section 504 of the Rehabilitation Act, a plaintiff must

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show: “(1) he is an ‘individual with a disability’; (2) he is

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‘otherwise qualified’ to receive the benefit; (3) he was denied

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the benefits of the program solely by reason of his disability;

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and (4) the program receives federal financial assistance.”

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(citing 29 U.S.C. § 794) (emphasis in original).

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II of the ADA was modeled on Section 504, “courts have applied

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the same analysis to claims brought under both statutes.”

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v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir.

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1999) (citations omitted).

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Similarly,

Id.

Because Title

Zukle

The State Defendants argue that they did not exclude A.P. or

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deny him a benefit because of his disability.

Plaintiffs argue

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that the ADA and Rehabilitation Act are not limited to exclusion

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and denial of benefits because the acts also prohibit

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discrimination.

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against A.P. when it obstructed his access to services prescribed

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by professionals, collaborated with CCL [sic] against A.P.’s

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family to find an unfounded ‘personal rights’ violation and took

According to Plaintiffs, “CCL discriminated

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the position that A.P. should be denied a permanent home based

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upon his disability.”

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that the State Defendants knew about A.P.’s disability and their

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conduct was based on his disability because they violated

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Olmstead integration.

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rel. Zimring, the Supreme Court held that “unjustified isolation”

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in an institution can, in certain circumstances, be “properly

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regarded as discrimination based on disability.”

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597 (1999).

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Opp. at 11.

Further, Plaintiffs argue

Opp. at 16-17.

In Olmstead v. L.C. ex

527 U.S. 581,

However, as Defendants argue, there are no allegations

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against the State Defendants for violation of Olmstead

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integration in the SAC; all Olmstead allegations are against the

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County Defendants.

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also Reply at 9.

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show that the State Defendants discriminated against A.P. “by

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reason of his disability” or “solely by reason of his disability”

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as required under the ADA and the Rehabilitation Act

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respectively.

Compare SAC ¶ 133 with SAC ¶¶ 134-135; see
Nor have Plaintiffs alleged any other facts to

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Because Plaintiffs have failed to properly allege that A.P.

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was discriminated against by the State Defendants because of his

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disability, the Court grants this motion to dismiss their fourth

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and fifth causes of action for discrimination.

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able to clarify their claim and allege the requisite facts;

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therefore, the Court grants Plaintiffs leave to amend.

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2.

Plaintiffs may be

Retaliation

The State Defendants also argue that Plaintiffs have only

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alleged facts to support a claim for retaliation against the

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County Defendants not them.

See Mot. at 15.
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Plaintiffs,

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disagree, arguing that they engaged in protected activity and the

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State Defendants retaliated by investigating and citing them.

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An individual who advocated on behalf of a person with a

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disability has standing to assert a claim for retaliation under

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the Rehabilitation Act and Title II of the ADA.

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Riverside Cnty. Office of Educ., 584 F.3d 821, 825-27 (9th Cir.

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2009).

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show that he or she acted to protect his or her rights, that an

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adverse action thereafter was taken against him or her, and that

Barker v.

“[T]o state a claim for retaliation, a plaintiff must

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a causal link exists between the two events.”

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Harrington, C 12-03533 LB, 2013 WL 132465, at *5 (N.D. Cal. Jan.

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9, 2013) (citing Pardi v. Kaiser Foundation Hospitals, 389 F.3d

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840, 849 (9th Cir. 2004)).

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protected activities and adverse acts sufficiently raises an

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inference of a causal link.

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Smith v.

The temporal proximity between

Pardi, 389 F.3d at 850.

Here, Plaintiffs allege that on or about October 13, 2011,

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they filed an amended grievance alleging that the County violated

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the ADA and Olmstead.

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County informed CCL about the wrapping technique and then, the

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State instituted an investigation.

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argues that the temporal proximity is sufficient to establish

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causation.

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investigation because of the County’s communication not because

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of Plaintiffs’ grievances.

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required to make an onsite inspection of the home within 10 days

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after receiving a complaint.

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§ 1538(a), (b), and (c).

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temporal proximity, the allegations themselves negate the causal

SAC ¶¶ 45-46, 131.

The same day, the

Id. ¶¶ 47, 56.

Plaintiff

However, based on these allegations, CCL conducted an

Moreover, CCL was statutorily

See Cal. Health and Saf. Code

Therefore, even though there is

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link.
Accordingly, the Court grants the State Defendants’ motion

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to dismiss Plaintiffs’ fourth and fifth causes of action for

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retaliation.

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Plaintiffs’ claim is not clearly futile.

The Court grants Plaintiffs leave to amend because

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B.

Seventh Cause of Action

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State Defendants argue that Plaintiffs’ seventh cause of

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action for conspiracy under 42 U.S.C. § 1985 should be dismissed

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for failure to state a claim and because they are immune from

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suit under the Eleventh Amendment.

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§ 1985(3) claim cannot be maintained against the State of

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California.

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the individual defendant Wong can be maintained.

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request leave to amend as to Wong.

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Plaintiffs concede that a

However, they argue that a § 1985(3) claim against
Plaintiffs also

Opp. at 22.

As a preliminary matter, pursuant to the SAC, the seventh

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cause of action is not alleged against Wong; Plaintiffs’ claim is

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against the County of Sacramento and CCL.

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Nevertheless, the Court will address the State Defendants’

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immunity argument to determine whether leave to amend is

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appropriate.

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See SAC ¶¶ 151-156.

“[A] State entity possesses Eleventh Amendment immunity from

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individual suits arising under § 1985.”

Wells v. Bd. of Trustees

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of California State Univ., 393 F. Supp. 2d 990, 996 (N.D. Cal.

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2005) (citing Austin v. State Indus. Ins. Sys., 939 F.2d 676 (9th

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Cir.1991); Mitchell v. Los Angeles Cmty. College Dist., 861 F.2d

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198, 201 (9th Cir. 1988)).

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Eleventh Amendment immunity when they are sued in their official

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capacities.

Individual defendants also enjoy

Mitchell, 861 F.2d at 201-02.
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“Such suits ‘are, in

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essence, actions against the governmental entity of which the

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officer is an agent.’”

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F.2d 1344, 1350 (9th Cir. 1982)).

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Oakland Unified Sch. Dist., C-99-5123 JCS, 2000 WL 33376299 (N.D.

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Cal. Apr. 17, 2000).

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“that the holding in this matter is limited to the specific facts

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of this case: Plaintiff seeks to hold the individual defendants

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liable in their individual capacities for conspiracy under

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§ 1985(3) and under § 1986.”

Id. (quoting Jackson v. Hayakawa, 682
Plaintiffs rely on O.H. v.

However, in O.H., the court made clear

O.H., 2000 WL 33376299, at *8

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(emphasis added).

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Defendant Wong in her official capacity.

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Therefore, O.H. does not apply against

Accordingly, the Court dismisses the seventh cause of action

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based on Eleventh Amendment immunity without prejudice.

Freeman

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v. Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999)

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(noting that “[t]he Eleventh Amendment is a limit on federal

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courts’ jurisdiction” and “[d]ismissals for lack of jurisdiction

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‘should be . . . without prejudice so that a plaintiff may

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reassert his claims in a competent court.’”)

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denies Plaintiffs’ request for leave to amend this cause of

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action against Defendant Wong in her official capacity for

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damages.

Further, the Court

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C.

Defendant Wong

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The State Defendants also argue that Defendant Wong should

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be dismissed because Plaintiffs have failed to allege any causes

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of action against her and she is erroneously listed as the

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Director of CCL. Mot. at 20.

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a claim against Defendant Wong, the Court dismisses her as a

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defendant.

Because Plaintiffs have not alleged

The Court, however, grants Plaintiffs leave to amend
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their claims against Wong, except as discussed above, because the

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complaint may be saved by amendment.

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D.

Page Limits Sanctions

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Having reviewed the State Defendants’ Reply (Doc. #45) to

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Plaintiffs’ Opposition to the Motion to Dismiss, the Court finds

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that Counsel has failed to comply with the Court’s Order on Page

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Limits (Doc. #4-2).

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are ordered to pay a sanction in the amount of $150.00 ($50.00

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per page for the three pages over the page limit) within ten (10)

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Accordingly, the State Defendants’ attorneys

days of the date of this order.

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III.

ORDER

For the reasons set forth above, the Court DISMISSES WITH
LEAVE TO AMEND:
(1) Plaintiffs’ fourth cause of action for discrimination
and retaliation;
(2) Plaintiffs’ fifth cause of action for discrimination and
retaliation; and
(3)

Plaintiffs’

claims

against

Defendant

Wong

in

her

individual capacity.
The Court DISMISSES WITHOUT PREJUDICE but WITHOUT LEAVE TO

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AMEND in this action, Plaintiffs’ seventh cause of action for

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violation of 42 U.S.C. § 1985 against CCL and Defendant Wong in

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her official capacity for damages.

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State Defendants’ attorneys are hereby ordered to pay $150
in sanctions within ten (10) days of the date of this order.
IT IS SO ORDERED.
Dated: June 6, 2014

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