Rivera et al v. Cater et al

Filing 17

MEMORANDUM and ORDER re Defendants' 13 Motion to Dismiss signed by Senior Judge William B. Shubb on 4/4/2018: IT IS ORDERED that defendants' Motion to Dismiss the fifth and sixth claims of plaintiffs' Complaint be, and the same hereby is, GRANTED; AND IT IS FURTHER ORDERED that defendants' Motion to Dismiss the first, second, third, fourth, and seventh claims of plaintiffs' Complaint be, and the same hereby is, DENIED. Plaintiffs have twenty days from the date this Order is signed to file a First Amended Complaint, if they can do so consistent with this Order. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SIERRA RIVERA, individually
and as successor in interest
to JESSE ATTAWAY, Deceased;
BA, a minor, individually and
as successor in interest to
JESSE ATTAWAY, Deceased, by
and through MISTY RIVERA, as
Guardian ad Litem; and JIM
ATTAWAY, individually,

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CIV. NO. 2:18-56 WBS EFB

MEMORANDUM AND ORDER RE:
DEFENDANTS’ MOTION TO DISMISS

Plaintiffs,
v.
ANDREW CATER; BAO MAI; SCOTT
JONES; and COUNTY OF
SACRAMENTO,
Defendants.

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Plaintiffs Sierra Rivera and BA, the daughters of the

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late Jesse Attaway (“Attaway” or “decedent”), along with Jim

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Attaway, the father of the decedent, bring this case individually

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and on behalf of the decedent, alleging seven causes of action

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under 42 U.S.C. § 1983 and California law against Andrew Cater

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(“Cater”) and Bao Mai (“Mai”), deputy sheriffs of Sacramento

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County; Scott Jones (“Jones”), Sheriff of Sacramento County; and
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the County of Sacramento (“the County”).

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dismiss plaintiffs’ entire Complaint pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

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I.

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Defendants now move to

(Docket No. 13.)

Factual and Procedural Background
According to reports, at approximately 5:00 a.m. on

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September 23, 2016, Attaway entered a home in Fair Oaks,

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Sacramento.

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to the house and did not know the homeowner.

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homeowner discovered Attaway standing in the front room holding a

(Compl. (Docket No. 1) ¶ 17.)

(Id.)

The

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carton of milk.

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asked the homeowner for his car keys and pleaded for the

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homeowner not to harm him.

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thoughts that the police were after him and seemed to be

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experiencing a psychotic episode.

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Attaway left the home without further incident.

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any harm to the home or its residents, or threaten to do so.

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(Id.)

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(Id.)

He had no connection

When confronted by the homeowner, Attaway

(Id.)

Attaway expressed paranoid

(Id.)

After several minutes,
He did not cause

Attaway then attempted to enter a neighboring house

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through a partially open sliding glass door.

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confronted by two individuals, at which point Attaway backed away

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from the door while begging not to be hurt.

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Attaway did not cause any harm to this house or its residents,

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nor did he threaten to do so.

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(Id. ¶ 18.)

(Id.)

He was

Again,

Attaway’s behavior prompted multiple calls to 911.

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(Id. ¶ 19.)

None of the callers mentioned that Attaway had any

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weapons, and Attaway was in fact unarmed at all times.

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Deputies Cater and Mai were dispatched to respond to these calls.

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(Id.)

(Id.)

Cater and Mai found Attaway a few blocks away from where
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the 911 calls had been placed.

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ignored the deputies’ commands to come towards them.

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deputies therefore slowly followed Attaway in their car until he

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came to a stop.

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car and assumed “positions of cover.”

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(Id.)

(Id. ¶ 20.)

Attaway initially
(Id.)

The

At that point, the deputies exited their
(Id.)

The Complaint alleges that Attaway was unarmed and

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empty-handed throughout the entire incident.

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Complaint also acknowledges that the deputies claim that when

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Attaway turned to face them, he raised his hands in response to

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their commands and they mistook the wallet he was holding for a

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firearm.

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and at least one of the first shots hit Attaway.

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deputies contend that after Attaway was shot, he raised his hand

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again.

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shots at Attaway, and he was hit again.

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then fell to the ground and allegedly tried to raise his empty

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hands again.

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as he remained on the ground, and one of those shots fatally

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struck Attaway in the head.

(Id. ¶ 22.)

(Id.)

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However, the

Both deputies then fired their weapons,
(Id.)

The

At that point, the deputies fired another round of

(Id. ¶ 24.)

(Id. ¶ 23.)

Attaway

Both deputies again fired at Attaway

(Id.)

The deputies claim to have found Attaway’s wallet

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approximately four feet away from his right foot after the

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shooting.

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eighteen rounds at Attaway.

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eleven, while Mai fired seven.

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between the first and last rounds of shots.

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(Id. ¶ 26.)

In total, the deputies fired at least
(Id. ¶ 27.)
(Id.)

Cater fired at least

Twelve seconds passed
(Id. ¶ 25.)

On January 1, 2018, plaintiffs filed this action,

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alleging violation of decedent’s Fourth Amendment right to be

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free from unreasonable seizure and excessive force pursuant to 42
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U.S.C. § 1983; violation of decedent’s rights under the

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California Constitution; negligence, wrongful death, assault, and

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battery pursuant to California State Common Law; failure to

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adequately train, supervise, and discipline police officers on

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the proper use of force pursuant to 42 U.S.C. § 1983; and

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violation of plaintiffs’ Fourteenth Amendment right of

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substantive due process pursuant to 42 U.S.C. § 1983.

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II.

Legal Standard

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On a Rule 12(b)(6) motion, the inquiry before the court

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is whether, accepting the allegations in the complaint as true

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and drawing all reasonable inferences in the plaintiff’s favor,

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the plaintiff has stated a claim to relief that is plausible on

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its face.

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plausibility standard is not akin to a ‘probability requirement,’

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but it asks for more than a sheer possibility that a defendant

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has acted unlawfully.”

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when the plaintiff pleads factual content that allows the court

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to draw the reasonable inference that the defendant is liable for

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the misconduct alleged.”

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pleaded complaint may proceed even if it strikes a savvy judge

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that actual proof of those facts is improbable.”

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v. Twombly, 550 U.S. 544, 556 (2007).

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III. Discussion

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A.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Id.

Id.

“The

“A claim has facial plausibility

Under this standard, “a well-

Bell Atl. Corp.

First Claim: Excessive Force Against Cater and Mai
Plaintiffs’ first cause of action asserts a claim

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against defendants Cater and Mai for violations of Attaway’s

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civil rights under 42 U.S.C. § 1983.

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a source of substantive rights, it provides a cause of action
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While § 1983 is not itself

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against any person who, under color of state law, deprives an

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individual of federal constitutional rights.

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Graham v. Connor, 490 U.S. 386, 393–94 (1989).

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allege that Cater and Mai violated Attaway’s right to be free

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from excessive force under the Fourth Amendment.

42 U.S.C. § 1983;
Here, plaintiffs

(Compl. ¶ 39.)

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1.

Excessive Force

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Defendants argue the Complaint fails to state a claim

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against Cater or Mai for use of excessive force because the facts

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demonstrate that the force used was objectively reasonable.

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(Defs.’ P. & A. (Docket No. 13-1) at 3.)

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conduct is objectively reasonable under the Fourth Amendment is a

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question of fact requiring consideration of factors such as “the

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nature and quality of the alleged intrusion on the individual’s

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Fourth Amendment interests,”

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citations omitted), as well as “(1) the severity of the crime at

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issue; (2) whether the suspect poses an immediate threat to the

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safety of the officers or others; and (3) whether the suspect

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actively resists detention or attempts to escape.”

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County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997) (citing

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Graham, 490 U.S. at 388).

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Whether an officer’s

Graham, 490 U.S. at 396 (internal

Liston v.

Here, it is undisputed that Cater and Mai used deadly

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force.

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plaintiffs argue the opposite.

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that there was any “severe” crime at issue1 or that Attaway posed

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While defendants argue that such force was reasonable,
As alleged, the facts do not show

Defendants argue that Attaway had committed a felony
home invasion/burglary of an inhabited dwelling, and that he
additionally attempted to steal a vehicle. However, residential
burglary is only committed when a person “enters any house . . .
with intent to commit . . . larceny or any felony.” People v.
Goode, 243 Cal. App. 4th 484, 488 (3d Dist. 2015). Here,
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any threat to the officers’ safety.

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throughout the entire incident and, despite what defendants

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argue, the complaint alleges that Attaway’s hands were empty

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throughout the entire incident as well.

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Further, despite Attaway’s initial failure to respond to the

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deputies’ orders, by the time the shooting occurred, the

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Complaint alleges that Attaway was no longer resisting the

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officers or otherwise attempting to escape.

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Attaway was unarmed

(Compl. ¶ 22-24.)

Accordingly, taking plaintiffs’ allegations as true,

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Attaway posed no danger to the officers, did nothing to provoke

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them, and there was no severe crime at issue.

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Solano County, 278 F.3d 1007, 1014 (9th Cir. 2002) (holding an

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officer’s use of force was excessive in the absence of any of the

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factors enumerated in Graham).

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to allege a plausible Fourth Amendment violation by Cater and

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Mai.

See Robinson v.

Thus, the Complaint is sufficient

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2.

Qualified Immunity

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Defendants argue that if the court does not dismiss

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plaintiffs’ Fourth Amendment claim on the ground that the force

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used was reasonable, the claim must nonetheless be dismissed

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because Mai and Cater are entitled to the defense of qualified

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immunity.

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plaintiffs concede that the facts demonstrate entry, but nothing
indicates intent to commit larceny or any felony. Defendants
also argue that Attaway violated Vehicle Code § 10851, which
prohibits the driving or taking of a vehicle without the consent
of the owner. However, the facts as alleged show that Attaway
asked the homeowner for his keys, not that Attaway was attempting
to take the car without permission. Accordingly, no severe or
violent crimes had been committed, particularly none that would
justify the use of deadly force.
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To determine whether an official is entitled to

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qualified immunity, a court may begin with the question of

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whether, “[t]aken in the light most favorable to the party

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asserting the injury, do the facts alleged show the officer’s

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conduct violated a constitutional right?”

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U.S. 194, 201 (2001), rev’d on other grounds by Pearson v.

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Callahan, 55 U.S. 223, (2009).

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the constitutional right the officer’s conduct violated was a

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clearly established right.

Id.

Saucier v. Katz, 533

The court must also ask whether

If the court finds the

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constitutional right was clearly established such that a

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reasonable officer would be aware that his or her conduct was

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unconstitutional, then the officer is not entitled to qualified

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immunity.

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Pearson, 55 U.S. at 232.
As discussed above, taking plaintiffs’ allegations as

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true, the force used by Cater and Mai in shooting Attaway, taking

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him to the ground, and continuing to shoot him after he allegedly

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posed no danger would not be reasonable.

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allegations establish a constitutional violation, and the court

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must next consider whether the officers’ conduct violated a

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clearly established right.

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Thus, the factual

For the purposes of qualified immunity, “clearly

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established” means that “[t]he contours of the right must be

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sufficiently clear that a reasonable official would understand

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that what he is doing violates that right.”

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Creighton, 483 U.S. 635, 640 (1987).

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official action is protected by qualified immunity unless the

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very action in question has previously been held unlawful, but it

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Anderson v.

“This is not to say that an

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is to say that in the light of pre-existing law the unlawfulness

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must be apparent.”

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Id.

The Supreme Court has determined that an unprovoked use

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of force is unreasonable under the Fourth Amendment in the

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absence of any resistance, attempt at flight, danger to the

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officer, or any other exigent circumstance.

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at 397.

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unarmed individual who was not posing any threat, refusing to

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cooperate, or attempting to escape.

See Graham, 490 U.S.

As alleged, Cater and Mai used deadly force on an

Every reasonable police

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officer would know that continuously shooting an unarmed, non-

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threatening person at least eighteen times, even after he was

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wounded, on the ground, and not posing any danger, would

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constitute the unlawful use of excessive force.

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this preliminary stage of the proceedings, the facts as pled do

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not entitle the officers to qualified immunity, and the court

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will deny defendants’ Motion to Dismiss plaintiffs’ first claim.

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B.

Therefore, at

Second Claim: Bane Act Against Cater, Mai, and the

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County

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1.

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The Bane Act, codified at California Civil Code § 52.1,

Claim Against Cater and Mai

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creates a civil cause of action for damages against any person

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who interferes, or attempts to interfere, by threats,

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intimidation, or coercion, with the exercise or enjoyment of a

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person’s constitutional or statutory rights.

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§ 52.1.

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valid claim under the Bane Act because plaintiffs have not

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alleged separate facts showing that Deputies Cater and Mai

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threatened, intimidated, or coerced the decedent.

See Cal. Civ. Code

Defendants assert that the Complaint fails to state a

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Generally, establishing an excessive force claim under

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the Fourth Amendment also satisfies the elements of section 52.1.

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See Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013)

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(explaining that “the elements of the excessive force claim under

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Section 52.1 are the same as under § 1983.”).

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because plaintiffs have sufficiently stated a claim that the

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officers used excessive force in violation of the Fourth

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Amendment, as discussed above, the Complaint states a valid claim

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under the Bane Act as well.

Accordingly,

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2.

Claim Against the County

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Defendants’ sole argument with regard to the Bane Act

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as alleged against the County is that because plaintiffs fail to

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state a Bane Act claim against Cater and Mai, there is no

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liability against the County under a respondeat superior theory.

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However, because the court disagrees and finds that the Bane Act

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claim does not fail as alleged against Cater and Mai, the court

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similarly will not dismiss this claim as to the County.

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C.

Third Claim: Negligence/Wrongful Death

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1.

Claim Against Cater and Mai

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Plaintiffs’ claim for negligence/wrongful death is

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based upon the officers’ alleged breach of their “duty of care in

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their use of deadly force” that they owed to Attaway.

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48.)

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a legal duty to use due care; (2) a breach of that duty; and (3)

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injury that was proximately caused by the breach.”2

(Compl. ¶

A negligence claim requires a plaintiff to establish: “(1)

Knapps v.

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In this case, there is no debate regarding whether the
Complaint properly alleges proximate cause.
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City of Oakland, 647 F. Supp. 2d 1129, 1164 (N.D. Cal. 2009)

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(citing Ladd v. County of San Mateo, 12 Cal. 4th 913, 917

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(1996)).

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Under California law, “peace officers have a duty to

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act reasonably when using deadly force.”

Hayes v. County of San

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Diego, 57 Cal. 4th 622, 629 (2013) (citing Munoz v. Olin, 24 Cal.

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3d 629, 634 (1979)).

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to act reasonably in this situation.

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the facts in the light most favorable to plaintiffs, the force

Therefore, Cater and Mai had a legal duty
As discussed above, viewing

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used by Cater and Mai in shooting Attaway, and continuing to

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shoot him after he allegedly posed no danger, would not be

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reasonable.

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that the officers had a duty and breached that duty.

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plaintiffs have pled a negligence claim and the court will deny

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defendants’ Motion to Dismiss as to this claim.

Accordingly, plaintiffs have sufficiently alleged
Therefore,

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2.

Claim Against the County

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Plaintiffs allege a direct liability theory of

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negligence against the County for breaching an alleged duty to

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“properly train defendants Cater and Mai regarding proper

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tactics, commands and warnings and on their duty to refrain from

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using reasonable force.”

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plaintiffs concede, that there is no statutory basis under

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California law for declaring a public entity directly liable for

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negligence.

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plaintiffs will not be permitted to proceed to the jury against

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the County on their negligence claim premised on a theory of

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direct liability.

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(Compl. ¶ 49.)

Defendants argue, and

(Pls.’ Opp’n (Docket No. 14) at 6.)

Therefore,

However, plaintiffs also allege the County “is liable
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for the wrongful acts of defendant deputies Cater and Mai

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pursuant to California Government code section 815.2(a), which

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provides that a public entity is liable for the injuries caused

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by its employees within the scope of employment if the employee’s

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act would subject him or her to liability.”

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Johnson v. Shasta County, 83 F. Supp. 3d 918, 936 (E.D. Cal.

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2015) (“A county can be held liable for negligence of an employer

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under California Government Code § 815.2.”) (citing Robinson, 278

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F.3d at 1016).

(Compl. ¶ 52.)

See

Defendants do not address this argument in their

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Motion to Dismiss or in their Reply.

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plaintiffs’ negligence claim against the County is based on

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California Government Code § 815.2., it will not dismissed.

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D.

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Therefore, to the extent

Fourth Claim: Assault and Battery/Wrongful Death
Against Cater, Mai, and the County

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“The law governing a state law claim for battery is the

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same as that used to analyze a claim for excessive force under

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the Fourth Amendment.”

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1248 (N.D. Cal. 2015); Edson v. City of Anaheim, 63 Cal. App. 4th

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1269, 1273 (4th Dist. 1998).

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have sufficiently asserted an excessive force claim, as discussed

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above, they have also sufficiently pleaded a claim for battery,

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and therefore the court will deny the Motion to Dismiss as to

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this claim.

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E.

Warren v. Marcus, 78 F. Supp. 3d 1228,

Accordingly, because plaintiffs

Fifth Claim: Municipal Liability (Ratification)
Against Jones and the County
Plaintiffs allege that Sheriff Jones and the County are

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liable for the actions of Cater and Mai based on a theory of

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ratification.

A municipality may be held liable for a
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constitutional violation under the theory of ratification if an

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authorized policymaker approves a subordinate’s decision and the

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basis for it.

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However, “mere failure to overrule a subordinate’s actions,

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without more, is insufficient to support a § 1983 claim.”

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393.

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more” than a single failure to discipline or the fact that a

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policymaker concluded that the officer’s actions were in keeping

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with the applicable policies and procedures: the plaintiff must

Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004).

Id. at

For there to be ratification, there must be “something

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show that the decision was the product of a “conscious,

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affirmative choice” to ratify the conduct in question.

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v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992).

Gillette

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Here, plaintiffs do not allege that Sheriff Jones was

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present at the time Attaway was shot, but instead merely allege

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that Jones and the County “approved, tolerated, and/or ratified

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the deputies’ conduct in shooting Attaway by determining the

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shooting was reasonable, justified and within policy.”

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61.)

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against the County or Jones based on ratification.

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have not identified any facts suggesting that the single failure

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to discipline the officers rose to the level of ratification, nor

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that Jones’ decision qualified as an affirmative choice to ratify

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the deputies’ conduct.

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adequate basis for municipal liability, and this claim must be

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dismissed.3

(Compl. ¶

These allegations are insufficient to state a § 1983 claim
Plaintiffs

Accordingly, plaintiffs have not pled an

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In the alternative, defendants argue that the claims
against Sheriff Jones must be dismissed because they are
duplicative of the claims against the County. (Defs.’ P. & A. at
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F.

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Sixth Claim: Municipal Liability (Failure to Train)
Against the County

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Plaintiffs allege that the County “failed to properly

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and adequately train defendant deputies Cater and Mai regarding

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the use of physical force.”

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failure to train an employee who has caused a constitutional

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violation can be the basis for § 1983 liability where the failure

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to train amounts to deliberate indifference to the rights of

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persons with whom the employee comes into contact.”

(Compl. ¶ 66.)

“A municipality’s

Long v.

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County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006); see

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also City of Canton v. Harris, 489 U.S. 378, 388, (1989).

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To meet this standard, “the need for more or different

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training [must be] so obvious, and the inadequacy so likely to

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result in the violation of constitutional rights, that the

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policymakers of the city can reasonably be said to have been

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deliberately indifferent to the need.”

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at 389.

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fault, requiring proof that a municipal actor disregarded a known

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or obvious consequence of his action.”

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U.S. 51, 61 (2011).

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‘failure to train’ employees to go forward under § 1983 on a

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lesser standard of fault would result in de facto respondeat

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superior liability on municipalities--a result [the Supreme

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Court] rejected in Monell.”

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City of Canton, 489 U.S.

“[D]eliberate indifference is a stringent standard of

Connick v. Thompson, 563

“[P]ermitting cases against cities for their

City of Canton, 489 U.S. at 391-92.

Here, plaintiffs allege that the County was

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14.) However, the court need not reach this issue because it is
dismissing this claim on other grounds.
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“deliberately indifferent to the obvious consequences of its

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failure to train its officers adequately,” and that said failure

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“caused the deprivation of Attaway’s rights.”

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Plaintiffs further allege that the County “acted with

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intentional, reckless and callous disregard for Attaway’s

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constitutional rights and thereby directly and proximately caused

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the injuries and damages suffered by plaintiffs.”

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However, the Complaint does not explain what the County’s

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training consisted of, whether there were prior similar acts or

(Compl. ¶¶ 66-67.)

(Id. ¶ 69.)

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any other indications that there was a need for more or different

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training, or whether the alleged inadequacy was likely to result

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in constitutional violations.

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plead these facts, which are necessary to meet the high standard

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for deliberate indifference, it is insufficient to state a valid

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§ 1983 claim against the County under the theory of inadequate

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training.

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G.

Because the Complaint does not

Seventh Claim: Substantive Due Process Against Cater
and Mai
Plaintiffs’ seventh cause of action, also brought under

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42 U.S.C. § 1983, alleges that defendants violated plaintiffs’

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Fourteenth Amendment substantive due process rights to familial

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relationship with Attaway when defendants caused Attaway’s

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wrongful and untimely death.

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(Compl. ¶ 71.)

“The right to familial association . . . is a

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fundamental liberty interest protected under the substantive due

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process clause of the Fourteenth Amendment.”

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Civ. No. 1:15-905 DAD, 2016 WL 6988597, at *4 (E.D. Cal. Nov. 29,

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2016) (citing Rosenbaum v. Washoe County, 663 F.3d 1071, 1079
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Motley v. Smith,

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(9th Cir. 2012)).

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conscience” is cognizable as a due process violation of the right

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to familial association.

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(9th Cir. 2008).

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Only official conduct that “shocks the

Porter v. Osborn, 546 F.3d 1131, 1137

Whether a particular defendant’s conduct “shocks the

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conscience” is determined by the nature of the surrounding

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circumstances.

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an “obviously and easily detectable mistake . . . that they had

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time to detect and correct,” a deliberate indifference standard

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may apply to determine whether the officer’s conduct shocks the

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conscience.

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fast paced circumstances presenting competing public safety

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obligations, the purpose to harm standard must apply.”

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Under the purpose to harm standard, “[i]t is the intent to

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inflict force beyond that which is required by a legitimate law

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enforcement objective that ‘shocks the conscience’ and gives rise

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to liability under § 1983.”

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Id. at 1137-39.

Id. at 1139.

Where the police have committed

However, “when an officer encounters

Id.

Id. at 1140.

In Porter, the Ninth Circuit concluded that the purpose

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to harm standard applied where a defendant officer shot and

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killed a suspect while the suspect was attempting to drive toward

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another officer’s vehicle.

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situation, the court determined that the officer “faced an

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evolving set of circumstances that took place over a short time

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period necessitating ‘fast action’ and presenting ‘obligations

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that tend to tug against each other.’”

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Accordingly, the Ninth Circuit concluded that the district court

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erred in applying a deliberate indifference standard to determine

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whether the defendant officer had engaged in conduct that shocked

Id. at 1135.

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Given the facts of the

Id. at 1139.

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the conscience.

Id. at 1140.

Here, plaintiffs allege that the deputies’ actions

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shock the conscience because “actual deliberation was practical”

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and Cater and Mai acted “with a purpose to harm and for reasons

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unrelated to legitimate law enforcement objectives.”

6

Opp’n at 8.)

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not committed any serious crime and was not resisting arrest or

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attempting to escape, and that Cater and Mai acted “with

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conscious or reckless disregard” for Attaway’s life by shooting

(Pls.’

Additionally, plaintiffs allege that Attaway had

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him even though he was unarmed and posed no imminent threat of

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death or serious physical injury.

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(Compl. ¶ 73.)

Defendants contend that plaintiffs’ allegations are

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insufficient because they do not demonstrate that the deputies

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acted with a “purpose to harm” and merely allege that the

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officers acted with “deliberate indifference.”

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disagrees.

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are sufficient to meet both the “deliberate indifference” and

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“purpose to harm” standards.

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had not committed any serious crime, was unarmed, and did not

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pose a threat to anyone at the time that he was fatally shot by

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Cater and Mai.

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The court

Although Plaintiffs’ allegations may be minimal, they

The Complaint alleges that Attaway

Under these allegations, and in light of the contention

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that the fatal shots were fired after an “unusually long period

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of time during which [the deputies] had the opportunity to

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reassess the situation they were actually confronting, but failed

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to do so,” (Compl. ¶ 25),

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not only committed an obviously and easily detectable mistake

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that they had time to detect and correct, but also intended to

it can be inferred that the officers

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1

use force beyond that required by any legitimate law enforcement

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objective.

3

SHx, 2011 WL 13227795 (C.D. Cal. Mar. 21, 2011) (concluding that

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complaint was sufficient to meet both “deliberate indifference”

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and “purpose to harm” standards because it alleged that decedent

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“was fatally wounded despite the fact that he had not committed

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any crime, did not pose a threat, and was unarmed.”).

8
9

See F.E.V. v. City of Anaheim, Civ. No. 10-1608 PA

The Complaint therefore sufficiently alleges that the
deputies’ actions “shock the conscience.”

“[W]hether the

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deliberate indifference or the purpose to harm standard applies

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in this case is left for summary judgment or trial and not a

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motion to dismiss.”

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that plaintiffs have sufficiently alleged a § 1983 claim for

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violation of the right to familial association.

15

Id. at *3.

Accordingly, the court finds

IT IS THEREFORE ORDERED that defendants’ Motion to

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Dismiss the fifth and sixth claims of plaintiffs’ Complaint be,

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and the same hereby is, GRANTED;

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AND IT IS FURTHER ORDERED that defendants’ Motion to

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Dismiss the first, second, third, fourth, and seventh claims of

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plaintiffs’ Complaint be, and the same hereby is, DENIED.

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Plaintiffs have twenty days from the date this Order is

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signed to file a First Amended Complaint, if they can do so

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consistent with this Order.

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Dated:

April 4, 2018

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