Mammen et al v. County of Sacramento et al

Filing 57

ORDER signed by Judge John A. Mendez on 10/8/14. The Court GRANTS WITHOUT LEAVE TO AMEND Defendant CCL's Motion to Dismiss Plaintiff's fourth and fifth causes of action 51 . As Defendant CCL is not named in any of the remaining causes of action in Plaintiffs' TAC, the matter will proceed without Defendant CCL. (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 Guardian Ad Litem for
A.P.,

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Plaintiffs,
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No.

2:13-cv-01588 JAM AC

ORDER GRANTING DEFENDANT
COMMUNITY CARE LICENSING’S
MOTION TO DISMISS

v.
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COMMUNITY CARE LICENSING, et
al.,

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Defendants.

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Defendant Community Care Licensing (“CCL”)brings this

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Motion to Dismiss the fourth and fifth causes of action for

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discrimination and retaliation in Plaintiffs’ Third Amended

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Complaint (“TAC”)under Federal Rule of Civil Procedure 12(b)(6).

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For the reasons set forth below, CCL’s Motion to Dismiss is

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GRANTED WITH PREJUDICE. 1

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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 August 20, 2014.
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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiffs A.P., Robin Mammen and Larry Mammen filed their

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original Complaint on August 1, 2013, against CCL and several

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other defendants. Plaintiffs filed a First Amended Complaint and

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then a Second Amended Complaint (“SAC”).

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Court dismissed with leave to amend several causes of action in

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the Second Amended Complaint against CCL and Defendant Michelle

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Wong, and dismissed without leave to amend a single cause of

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action against both CCL and Defendant Wong.

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On June 9, 2014, the

Plaintiffs filed the TAC shortly thereafter.

The TAC

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includes the following two causes of action against CCL which are

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the subject of this motion to dismiss: a discrimination claim

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alleging a violation of Section 504 of the Rehabilitation Act, 29

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U.S.C. § 794; and a retaliation claim alleging a Title II

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violation of the Americans with Disabilities Act (“ADA), 42

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U.S.C. § 12132. The remaining claims in the TAC are asserted

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against other named defendants and not CCL. For this reason the

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Court need not address the first, second, third, sixth, seventh,

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eighth and ninth causes of action in the TAC.

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Plaintiffs allege that A.P. was removed from his birth

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parents at a young age due to abuse and neglect.

TAC ¶ 15.

On

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November 2, 2009, at age 3, A.P. was placed in the Mammen’s home,

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a certified Foster home of the St. Francis Foster Family Agency.

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Id. ¶¶ 25-26.

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A.P.’s biological parents’ rights and Ms. Mammen was appointed

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A.P.’s educational representative.

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2009 and August 2011, the Mammens sought and obtained medical

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evaluations and treatments for A.P.

On November 17, 2009, the Juvenile Court suspended

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Id. ¶ 27.

Id. ¶ 28.

Between November

In 2009, A.P. was

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diagnosed with Autism and was later diagnosed with Sensory

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Integration Disorder, Moderate Intellectual Disability, and ADHD.

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Id. ¶ 21.

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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.

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Id. ¶ 37.

A.P.’s case was transferred to a different
Id. ¶ 39.

The County

Id. ¶¶ 40-41.

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

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the 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. ¶ 43.

They filed an amended grievance on October 13, 2011.

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Id. ¶ 44.

The same day, Defendant Stephanie Lynch emailed

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another County Defendant about her concern that the Mammens were

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“wrapping [A.P.] like a burrito.”

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contacted CCL, a division of the California Department of Social

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Services which licenses and oversees foster family agencies.

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Defendant Lynch told CCL “this cannot be done” and CCL confirmed

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that the wrapping technique was a personal rights’ violation.

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Id.

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to investigate the allegation they had received that the “foster

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parent [was] violating the personal rights of foster child.”

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¶ 54.

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

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Id.

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(“CCR”) § 89372 with a finding of a personal rights’ violation of

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A.P.

Id. ¶ 45.

Defendant Lynch

On November 8, 2011, a CCL investigator visited the Mammens

Id.

The investigator presented findings that “the foster

Ms. Mammen was cited under 22 California Code of Regulation

Id.

This CCL violation was raised as a concern in A.P.’s
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adoption process, and resulted in a delay in the process.

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¶¶ 67-68.

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¶ 15.

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

Id.
Id.

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II.

OPINION

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A.

Discrimination

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Title II of the ADA prohibits a public entity from

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discriminating against a qualified individual with a disability

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on the basis of disability.

42 U.S.C. § 12132 (1994); Weinreich

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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:

To state a claim, a plaintiff must allege the following

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

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Similarly, under Section 504 of the Rehabilitation Act, a

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plaintiff must show: “(1) he is an ‘individual with a

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disability’; (2) he is ‘otherwise qualified’ to receive the

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benefit; (3) he was denied the benefits of the program solely by

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reason of his disability; and (4) the program receives federal

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financial assistance.”

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original).

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504, “courts have applied the same analysis to claims brought

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under both statutes.”

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F.3d 1041, 1045 n. 11 (9th Cir. 1999) (citations omitted).

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

Because Title II of the ADA was modeled on Section

Zukle v. Regents of Univ. of Cal., 166

Defendant argues that Plaintiffs have failed to allege that
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CCL discriminated against A.P. by reason of his disability.

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at 12.

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find a personal rights’ violation for conduct that violated CCR

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§ 89475.2 and, “[r]egardless of whether A.P. had a disability,

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the Mammens’ use of the wrapping technique would have violated

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[the terms of the CCR].”

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“[b]ut for A.P.’s severe disability, the [wrapping technique]

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would have been unnecessary and Ms. Mammen would never have been

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cited by CCL.”

Mot.

Rather, Defendant argues, CCL was required by statute to

Opp. at 8.

Mot. at 13.

Plaintiffs respond that

Therefore, Plaintiffs argue, “it

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categorically is because of A.P.’s disability that the State took

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the action it did.”

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Opp. at 8.

Plaintiffs’ use of a “but for” causation test is

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unconvincing.

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reason of his disability,” Plaintiffs must allege that the

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disability was a “motivating factor” in the CCL citation.

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v. California Dep't of Veterans Affairs, 560 F.3d 1042, 1048 (9th

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Cir. 2009).

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not all “but for” causes are also “motivating factors.”

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example, “but for” A.P.’s residing in California, CCL would not

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have been prompted to investigate the wrapping technique.

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course, it cannot be said that CCL’s finding of a personal

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rights’ violation was “by reason of” A.P.’s residence in

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California.

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To establish that A.P. was denied services “by

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Thus, the “but for” causation test is far too broad:
For

Of

Rather, the “motivating factor” behind CCL’s finding of a

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personal rights’ violation was the fact that the wrapping

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technique violated the regulations it was legally required to

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enforce.

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was required to make an onsite inspection of the Mammens’ home

Under California Health and Safety Code § 1538(c), CCL

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after it was notified of the complaint by County Defendant Lynch.

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The regulations that CCL was required to apply include the

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provision that “[u]nder no circumstances shall postural supports

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include tying, depriving, or limiting a ‘child’ from use of hands

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or feet.”

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is a direct violation of § 89475.2’s prohibition on limiting a

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child’s use of his hands or feet.

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a personal rights’ violation was not “by reason of” A.P.’s

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disability: rather, CCL would have made the same statutorily-

Cal. Code of Regs. § 89475.2.

The wrapping technique

Accordingly, CCL’s finding of

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required finding regardless of whether or not A.P. had a

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disability.

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Plaintiffs’ attempt to analogize the wrapping technique to a

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“belted high chair [or] a seat belt” misreads the relevant

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regulations.

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face, would prohibit the use of any “restraints” on a child,

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including belted high chairs or seat belts.

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Therefore, Plaintiffs argue, CCL’s decision to selectively

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enforce the regulation in this case can only be explained by a

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discriminatory animus.

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provides: “[e]xcept for postural supports and protective devices

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as provided in this section, the caregiver shall not restrain or

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use any restraining devices on a ‘child.’”

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89475.2.

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defined as “any physical or mechanical item that is attached or

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next to the body of a “child” that a “child” cannot remove easily

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and keeps the “child” from moving freely as specified in Section

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89475.2, Postural Supports and Protective Devices.”

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Regs.

Opp. at 7.

Plaintiffs argue that § 89475.2, on its

Opp. at 7.

Opp. at 7.

In relevant part, § 89475.2

Cal. Code Regs. §

Elsewhere in the Code, a “restraining device” is

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Cal. Code

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§ 89201 (emphasis added).

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cross-reference to § 89475.2 suggests that “restraining devices”

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are only prohibited if they run afoul of § 89475.2.

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chairs or seat belts do not violate the terms of § 89475.2;

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conversely, the wrapping technique violates § 89475.2’s

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prohibition on restraining devices that deprive or limit a

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child’s use of his hands or feet.

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grant CCL the wide discretion argued by Plaintiffs, and CCL did

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not selectively enforce the regulations in this case.

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Although inartfully drafted, the

Belted high

Therefore, § 89475.2 did not

Plaintiffs’ argument that Defendant’s conduct violated

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Olmstead and “as a result [its] actions must be deemed to have

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occurred by reason of A.P.’s disability” also fails.

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v. L.C. ex rel. Zimring, the Supreme Court held that “unjustified

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isolation” in an institution can, in certain circumstances, be

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“properly regarded as discrimination based on disability.”

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U.S. 581, 597 (1999).

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references to any Olmstead violations in Plaintiff’s TAC are

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[only] directed against County Defendant.”

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June 9, 2014 Order, this Court rejected Plaintiffs’ Olmstead

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argument on precisely these grounds: “there are no allegations

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against [CCL] for violation of Olmstead integration in the SAC;

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all Olmstead allegations are against the County Defendants.”

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Order at 6.

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this case, there are no allegations to support an inference that

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the State Defendant committed an Olmstead violation.

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have not remedied this deficiency in the TAC.

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In Olmstead

527

As Defendant notes, however, “[a]ll

Reply at 7.

In its

Therefore, even assuming Olmstead is relevant to

Plaintiffs

Plaintiffs’ remaining allegations as to CCL are also
insufficient to state a claim for discrimination.
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Plaintiffs

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make the following three conclusory allegations: (1) “Defendants

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County and CCL took the position that A.P. should be denied a

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permanent home based on his disability, thus advocating for a

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deprivation solely based on A.P.’s disability”; (2) CCL “took

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actions to intimidate Mrs. Mammen for trying to protect A.P.’s

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federal rights”; and (3) “CCL’s actions violated the parents’

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rights in that it interfered with their ability to care for and

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treat their adoptive son.”

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other factual support in the TAC, these allegations are thread-

TAC ¶¶ 132, 141, 142.

Absent any

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bare assertions that CCL engaged in discrimination.

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and Iqbal, such “legal conclusions” are not entitled to the

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presumption of truth.

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(2009) (citing Bell Atlantic Corp. v. Twombly, 556 U.S. 662, 570

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(2007)).

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claim for discrimination in violation of the ADA or section 504

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of the Rehabilitation Act and dismisses this cause of action as

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to CCL.

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B.

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Post-Twombly

Ashcroft v. Iqbal, 556 U.S. 662, 678

The Court finds that Plaintiffs have failed to state a

Retaliation

Plaintiffs’ claim for retaliation must be dismissed,

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according to CCL, because Plaintiffs have failed to adequately

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allege a causal link between a protected activity and an adverse

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action taken by Defendant.

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that Plaintiffs have made substantially the same allegations in

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the TAC as those made in the SAC, which the Court found

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insufficient to state a claim for retaliation.

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Plaintiffs argue that the temporal proximity between the Mammen’s

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grievance and the CCL investigation warrants a reasonable

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inference that one event caused the other.

Mot. at 16.

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Specifically, CCL argues

Mot. at 17.

Opp. at 13.

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An individual who has 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

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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.

Barker v.

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

Smith v.

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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 activity and an adverse act may, under certain

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circumstances, raise an inference of a causal relationship.

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Pardi, 389 F.3d at 850.

Temporal proximity between a

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Plaintiffs allege that, on October 13, 2011, the Mammens

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filed an amended grievance with “the Sacramento county disability

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compliance office alleging that CPS’s actions and decisions

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regarding A.P.’s case were in violation of the ADA and Olmstead.”

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TAC ¶¶ 43-44.

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inform them of the Mammens’ use of the wrapping technique.

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45.

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Mammens’ home on November 8, 2011.

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That same day, two CPS workers called CCL to
TAC ¶

CCL subsequently initiated an investigation, visiting the
TAC ¶ 54.

In its June 9, 2014 Order, the Court made the following
finding:
“[B]ased on [identical allegations in the Second
Amended Complaint], CCL conducted an investigation
because of the County’s communication not because of
Plaintiffs’ grievances. Moreover, CCL was statutorily
required to make an onsite inspection of the home
within 10 days after receiving a complaint. See Cal.
Health and Saf. Code § 1538(a), (b), and (c).
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Therefore, even though there is temporal proximity, the
allegations themselves negate the causal link.”
Order at 7.

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After making this finding, the Court granted Plaintiffs leave to
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amend their complaint.

Order at 8.

However, the only relevant

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addition to the TAC is a single sentence that CCL’s “wrongful
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citation was in retaliation for Plaintiffs’ exercise of their
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rights under the ADA and Section 504 of the Rehabilitation act to
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advocate for interventions that were recommended by their medical
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provider.”

This conclusory allegation is insufficient to

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overcome the fact that Plaintiffs’ (unchanged) allegations
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continue to negate the causal link: the CCL investigation was
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prompted by its communication with the County – and its statutory
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duty to investigate the potential violation – not by Plaintiffs’
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filing of a grievance.

TAC ¶¶ 45, 54.

Plaintiffs’ suggestion

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that the communication between the County and CCL entailed
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anything other than a report of a potential personal rights’
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violation has no factual support in the TAC.

Opp. at 13.

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Accordingly, Plaintiffs have failed to state a claim against CCL
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for retaliation in violation of the ADA and section 504 of the
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Rehabilitation Act.
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C.

Leave to Amend

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Plaintiffs have had multiple opportunities to amend their
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complaint to properly state their claims against CCL and have
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repeatedly been unable to do so successfully.

In opposing this

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motion to dismiss, Plaintiffs have also attempted to reargue
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legal theories that have been rejected by the Court.

See Opp. at

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proximity that was expressly rejected in the Court’s June 9, 2014

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Order).

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amend their claims against CCL would be futile and, therefore,

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CCL’s Motion to Dismiss Plaintiffs’ fourth and fifth causes of

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action is GRANTED WITHOUT LEAVE TO AMEND.

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Placer Cnty., 2011 WL 1302240 (E.D. Cal. Mar. 31, 2011) report

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and recommendation adopted, 2011 WL 1739914 (E.D. Cal. May 4,

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2011) (dismissing claims with prejudice where the plaintiff had

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multiple prior opportunities to amend her complaint).

Providing Plaintiffs with yet another opportunity to

See, e.g., Rhodes v.

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III.

ORDER

The Court GRANTS WITHOUT LEAVE TO AMEND Defendant CCL’s

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Motion to Dismiss Plaintiffs’ fourth and fifth causes of action.

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As Defendant CCL is not named in any of the remaining causes of

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action in Plaintiffs’ TAC, the matter will proceed without

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Defendant CCL:

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IT IS SO ORDERED.

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Dated: October 8, 2014

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