Brown et al v. Alexander et al

Filing 50

ORDER by Judge Samuel Conti denying 31 Defendant Crockett's Motion for More Definite Statement; granting in part and denying in part 32 County Defendants' Motion to Dismiss; granting 31 Defendant Crockett's Motion to Dismiss (sclc2, COURT STAFF) (Filed on 12/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court

For the Northern District of California

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BARRY BROWN, JENNIFER BROWN,
JANE DOE 1, and JANE DOE 2,

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Plaintiffs,

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v.
JON ALEXANDER, DEAN WILSON, ED
FLESHMAN, JULIE CAIN, CINDY
SALATNAY, COUNTY OF DEL NORTE,
and DONALD CROCKETT,
Defendants.

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Case No. 13-01451 SC
ORDER GRANTING IN PART AND
DENYING IN PART MOTIONS TO
DISMISS

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I.

INTRODUCTION
Now before the Court are separate but related motions to

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dismiss the above-captioned Plaintiffs' complaint, filed by (1) the

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"County Defendants," Jon Alexander, Dean Wilson, Ed Fleshman, Julie

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Cain, Cindy Salatnay, and the County of Del Norte, California; and

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(2) Donald Crockett.

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MTD") (both filed under seal).

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Nos. 41 & 42 ("Opp'ns") (both filed under seal), 44 ("County

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Reply"), 46 ("Crockett Reply").

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GRANTS in part and DENIES in part the County Defendants' motion to

ECF Nos. 31 ("Crockett MTD"), 32 ("County
The motions are fully briefed.

ECF

As explained below, the Court

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dismiss, and GRANTS Defendant Crockett's motion to dismiss.

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3 II.

BACKGROUND

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A.

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All parties filed requests for judicial notice, ECF Nos. 27

Requests for Judicial Notice

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("County RJN"), 30 ("Crockett RJN"), though Plaintiffs' request is

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included in their opposition to Defendant Crockett's RJN, ECF No.

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39 ("Opp'n to RJN") (filed under seal).

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Plaintiffs' unopposed RJN under Federal Rule of Evidence 201.
Plaintiffs object to the County RJN on the grounds that the

United States District Court

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For the Northern District of California

The Court GRANTS

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County Defendants do not explain why the documents -- all documents

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from the Del Norte Superior Court's Juvenile Division -- are

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relevant.

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but Plaintiffs are right that the Court may only take judicial

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notice of the fact that the documents exist (not any facts alleged

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in the documents).

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Defendants' RJN because the fact of the Superior Court's

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proceedings and the documents' existence is not subject to

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reasonable dispute.

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discussed below -- to whether the Court has jurisdiction over this

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case.

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The Court OVERRULES Plaintiffs' objection on that point,

To that extent, the Court GRANTS the County

Further, these documents are relevant -- as

Plaintiffs object to the Crockett RJN on the same grounds

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discussed above.

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objections are OVERRULED to the extent that they challenge the

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Court's ability to take judicial notice of another court's

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proceedings, or the filings of certain documents.

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is GRANTED.

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The Court makes the same findings: Plaintiffs'

The Crocket RJN

The Court does not take judicial notice of the truth of any

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1

fact from any of the RJNs' exhibits.

At the pleading stage, the

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Court cannot resolve or consider factual disputes outside the

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pleadings without converting these motions to dismiss to motions

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for summary judgment, which the Court declines to do.

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States v. 14.02 Acres of Land More or Less in Fresno Cnty., 547

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F.3d 943, 955-56 (9th Cir. 2008) (district courts may take judicial

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notice of certain records, for limited purposes, and a court need

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not convert a motion to dismiss to a motion for summary judgment if

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the facts noticed are not subject to reasonable dispute).

See United

Again,

United States District Court

For the Northern District of California

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the Court takes notice only of these documents' existence and the

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state court proceedings.

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Separately, Plaintiffs suggest that all Defendants have

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somehow engaged in violations of Rule 26 by filing in their RJNs

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documents that Plaintiffs do not have.

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of this.

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which Plaintiffs were undisputedly involved.

The Court finds no evidence

Defendants filed only documents from court proceedings in

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B.

Summary of Allegations

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The following facts are taken from Plaintiffs' first amended

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complaint, ECF No. 12 ("FAC"), and, where appropriate, the parties'

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RJNs.

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Brown.

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Brown's daughters and Mr. Brown's maternal granddaughters.

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Defendant Crockett is the father of Jane Does 1 and 2.

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He also co-owns a flower bulb farm, which is a major employer in

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Del Norte County, and has been a contributor to the electoral

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campaigns of the elected Defendants Alexander and Wilson.

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8.

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when their divorce was finalized and shared custody of their

Plaintiff Jennifer Brown is the daughter of Plaintiff Barry
FAC ¶ 7.

Jane Does 1 and 2, born January 1, 2007, are Ms.
Id.

Id. ¶ 9.

Id.

¶

He and Ms. Brown were married from July 2007 until August 2009,

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1

daughters was appointed with primary care to Ms. Brown.

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Id. ¶¶ 8-

9.
The County Defendants are Jon Alexander, former District

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4

Attorney for Del Norte County during all relevant times; Sheriff

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Dean Wilson; Sheriff's Detective Ed Fleshman; Del Norte County

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Child Protective Services ("CPS") Supervisor Julie Cain; CPS Social

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Worker Cindy Salatnay; and the County of Del Norte ("County"),

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which operated, controlled, and maintained the Sheriff's

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Department, CPS, and District Attorney's Office ("DAO").

United States District Court

For the Northern District of California

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Id. ¶¶ 4-

6.
The allegations in Plaintiffs' complaint arise from Ms. Brown

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and Mr. Crockett's acrimonious divorce and Ms. Brown's contention

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that Mr. Crockett abused and molested Jane Does 1 and 2.

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must on a Rule 12(b)(6) motion to dismiss, the Court assumes the

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truth of these allegations.

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As it

Plaintiffs allege that in June 2009, Jane Doe 1 told Ms. Brown

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that Mr. Crockett had molested her.

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County sheriff and reported her daughters' complaints, after which

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the sheriff took no action.

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hospital, where hospital staff refused to perform a Sexual Assault

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Response Team ("SART").

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performed at the hospital, but no action or further investigation

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occurred; neither Mr. Crockett nor Jane Doe 1 were interviewed; and

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no prior complaint against Mr. Crockett was investigated.

Id.

Id.

Id. ¶ 10.

Ms. Brown called a

Ms. Brown took Jane Doe 1 to the

One week later, a SART exam was

Id.

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Plaintiffs allege that several years later, around late

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November 2011, Jane Does 1 and 2 told Ms. Brown that Mr. Crockett

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showed them movies of naked men and women on television.

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Around December 3, 2011, Ms. Brown reported this to the County

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Id. ¶ 11.

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sheriff's department, after which a deputy took a taped statement

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from the daughters but allowed Mr. Crockett to pick them up for

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visitation.

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Brown asked Defendants Fleshman and Alexander, as well as other

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county deputies and a city police officer, why no authorities had

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taken action, she was told that her daughters' interview tape had

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been destroyed and that showing pornography to children was not a

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criminal offense.

Id.

No further investigation occurred, and when Ms.

Id.

Around January 27, 2012, Jane Does 1 and 2 returned to Ms.

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United States District Court

For the Northern District of California

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Brown's home after staying with their father for several days,

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after which the girls appeared physically ill and disheveled.

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¶ 12.

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Hospital Urgent Care ("SCHUC") examined them and filed a report

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with Child Welfare Services ("CWS"), accusing Mr. Crockett of

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medical neglect.

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Jane Does 1 and 2 returned to the hospital, where SCHUC filed

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another CWS report alleging that both children claimed to have been

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sexually molested by Mr. Crockett.

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that all of the Defendants (apparently excluding Mr. Crockett) were

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made aware of these claims but chose not to investigate them

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because Mr. Crockett's family exerted so much political and

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personal influence in Del Norte County.

Id.

Ms. Brown took them to the hospital, where Sutter Coast

Id. ¶ 13.

Two days later, on January 29, 2012,

Id. ¶ 14.

Plaintiffs allege

Id.

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On January 30, 2012, Mr. Brown contacted the District Attorney

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of neighboring Humboldt County to obtain a SART exam of Jane Does 1

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and 2.

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concerned that Jane Does 1 and 2's complaints had gone ignored;

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Defendants had not investigated any claims of abuse; and because

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Mr. Crockett still had court-ordered visitations with his

Id. ¶ 15.

Plaintiffs did so apparently because they were

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1

daughters, which Plaintiffs worried would provide opportunities for

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abuse.

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point, and also informed Mr. Alexander by phone that he would take

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Jane Does 1 and 2 out of Del Norte County for their safety.

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Mr. Brown communicated with Defendants -- specifically Mr.

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Alexander, the District Attorney -- per an exception to the

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California kidnapping statute for cases in which a person with a

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right to custody of a child who was the victim of domestic violence

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may take or conceal the child as a protective measure, provided

See id.

Mr. Brown contacted Defendants via letter at this

Id.

United States District Court

For the Northern District of California

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that the person contact the district attorney of the county where

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the child resided.

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took Jane Does 1 and 2 to Humboldt County.

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See Cal. Pen. Code § 278.7.

Mr. Brown then

FAC ¶ 15.

Soon after that, on February 8, 2012, a Del Norte County

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Magistrate Judge issued an arrest warrant for Mr. and Ms. Brown,

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per the request of Defendants Wilson, Fleshman, and Alexander.

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¶ 16; County RJN Ex. B ("Warrant").

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affidavit in support of the Warrant alleged that Mr. and Ms. Brown

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had kidnapped Jane Does 1 and 2 and that their whereabouts were

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unknown.

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the basis for the Warrant was false at the time they presented it

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to the magistrate, because Mr. Brown had contacted the DAO with the

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details required per California Penal Code section 278.7's

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exception to the kidnapping statute.

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Warrant issued and was distributed to law enforcement.

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February 9, 2012, Mr. Brown was arrested by Defendant Fleshman, who

FAC ¶ 16.

According to Plaintiffs, the

Plaintiffs contend these Defendants knew that

See id.

Nevertheless, the
Id.

On

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Id.

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Plaintiffs' complaint's reference to California Penal Code
section 278.5 is apparently a typo. That section sets out the
kidnapping offense. Section 278.7 is the exception to section
278.5.

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apparently agreed with Defendant Alexander at the time of the

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arrest that no criminal charges would be filed against Mr. Brown.

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Id.

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fingerprinted on felony child stealing charges, creating a felony

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arrest record that was disseminated to various criminal background

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databases.

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and no charges were filed.

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reputation as a retired peace officer and private investigator has

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been harmed and that he has suffered financial loss as a result of

United States District Court

For the Northern District of California

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Regardless, Mr. Brown was booked, photographed, and

his arrest.

Id.

Mr. Brown was released within hours of his arrest,
Id.

¶ 18.

He contends that his

Id.

Around March 10, 2012 -- a month after Mr. Brown's arrest --

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Ms. Brown was arrested at her home.

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Plaintiffs, six police officers used excessive force to subdue and

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arrest Ms. Brown, who did not resist.

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a glass holding cell for two days and mocked by Del Norte County

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jail staff.

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medication for various medical conditions during this time, and

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that Defendant Alexander and County jail staff demeaned her by

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throwing a party to celebrate her arrest.

Id.

Id. ¶ 19.

Id.

According to

She was then jailed in

Plaintiffs also allege that Ms. Brown was denied

Id.

Plaintiffs assert that as a result of Ms. Brown's arrest, Jane

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21

Does 1 and 2 were taken into CWS custody and placed in a foster

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home.

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friend of Mr. Crockett's girlfriend, who allowed Mr. Crockett

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access to the girls even though Ms. Brown was denied visitation.

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Id.

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Id. ¶ 2.

This foster home was apparently run by a close

Around June 15, 2012, Defendants Cain and Salatnay removed

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Jane Does 1 and 2 from the foster home and transferred primary

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custody to Mr. Crockett.

Id. ¶ 21.

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Ms. Brown was given only

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supervised visitation, and Mr. Crockett allegedly was able to

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approve the court-appointed monitors personally.

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Cain was one such monitor.

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to report one of the daughters' statements that someone they met at

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Mr. Crockett's house was going to take them away to Mexico.

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22.

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report," leading Defendant Cain to report the matter to a federal

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agency.

See id.

Id.

Defendant

In August 2012, she attempted

Id. ¶

CWS apparently "laughed at her and refused to document the

Id.

On or about January 17, 2013, Arlene Kasper, a non-defendant

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United States District Court

For the Northern District of California

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visitation monitor, reported seeing Defendant Salatnay (the

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assigned case worker) interview Jane Does 1 and 2, who told

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Defendant Salatnay of Mr. Crockett's history of molestations.

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¶ 23.

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examine Jane Doe 1's genitals and state that "there's something

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here."

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Salatnay what she would do at that point, in response to which

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Defendant Salatnay "said that there was nothing she could do, as

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she had been told by her supervisor, [Defendant Cain], that no

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matter what Jane Doe 1 or 2 said, [Defendant Salatnay] was to come

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back with either an inconclusive or unsubstantiated report.

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[Defendant Salatnay] said also that her hands were tied because of

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her supervisor [Defendant Cain]."

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Id.

Plaintiffs allege that Ms. Kasper saw Defendant Salatnay

Id.

Plaintiffs report that Ms. Kasper asked Defendant

Id.

Later, around February 21, 2013, Jane Does 1 and 2 were again

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taken into custody by CWS and placed into a foster home pursuant to

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California Welfare and Institutions Code section 300, which grants

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the juvenile court jurisdiction over children adjudged to be

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dependents.

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documented Jane Doe 2's January 17, 2013, report of molestation by

Id. ¶ 24; Cal. Welf. & Inst. Code § 300.

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CWS

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Mr. Crockett.

Id. ¶ 24.

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custody of Jane Does 1 and 2 to Ms. Brown, because she had created

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stress on the children by reporting abuse and molestation.

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Around March 5, 2013, Defendant Salatnay took Jane Does 1 and 2 to

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Napa County, where they were interviewed for a half-hour each by a

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male detective.

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disclose molestation or abuse allegations, so CWS (through

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Defendants Cain and Salatnay) decided to return the girls to Mr.

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Crockett's custody, apparently "without court authorization and in

Id. ¶ 25.

CWS also stated that it would not return

Id.

The girls apparently refused to

United States District Court

For the Northern District of California

10

spite of the fact that a [Welfare and Institutions Code section

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300] petition hearing had been held and a subsequent jurisdictional

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hearing set for the following week."

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back in Mr. Crockett's custody around March 8, 2013.

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After being denied access to the girls entirely, Ms. Brown was then

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allowed minimal, supervised visits.

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Salatnay provided a jurisdictional report to the juvenile court in

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which she allegedly "intentionally lied and misled the court,

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arguing that [Jane Does 1 and 2] should be left in [Mr. Crockett's]

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custody."

Id. ¶ 25.

Id.

The girls were
Id. ¶ 26.

A week later, Defendant

Id.

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C.

State Court Proceedings

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State court proceedings regarding custody, dependency, and

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visitation are apparently ongoing in the Del Norte County Superior

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Court.

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Crockett primary custody of Jane Does 1 and 2 on January 9, 2012.

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County RJN Ex. A.

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February 8, 2012.)

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Brown moved to disqualify him from the case, and on July 13, 2012,

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the judge assigned to the disqualification motion, Judge Morrison,

The original judge in that case, Judge Follett, awarded Mr.

(He also issued the Warrant, discussed above, on
After Judge Follett issued the Warrant, Ms.

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1

denied it.

Id. Ex. C.

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Norte filed petitions for juvenile dependency on behalf of Jane

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Does 1 and 2, per California Welfare and Institutions Code section

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300.

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children detained.

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jurisdictional hearing, Judge LaCasse (apparently now assigned to

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the case) ordered the children returned to Mr. Crockett, with a

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plan for family reunification with Ms. Brown.

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22, 2013, at a dispositional hearing, Judge LaCasse ordered all

Id. Exs. D, E.

On February 25, 2013, the County of Del

At a February 26, 2013, the court ordered the
Id. Ex. F.

On March 15, 2013, at a

Id. Ex. G.

On March

United States District Court

For the Northern District of California

10

visitation with the maternal grandparents to cease.

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April 12, 2013, Jane Does 1 and 2 were declared dependents of the

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state juvenile court, with an interim review hearing calendared for

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June 28, 2013.

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the jurisdictional order, the dispositional order, and the order

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declaring the children dependents.

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interim review session on May 10, 2013.

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proceedings are all apparently ongoing, though the parties refer to

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no other actions.

Id. Ex. I.

Id. Ex. H.

On

On April 24, 2013, Ms. Brown appealed

Id. Ex. J.

The court held an

Id. Ex. L.

These

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D.

Plaintiffs' Causes of Action

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Based on the facts alleged above, Plaintiffs' theory is that

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the County Defendants conspired to protect Defendant Crockett from

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law enforcement scrutiny, thereby contributing to the infringement

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of Plaintiffs' constitutional rights and violations of various

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state law claims.

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causes of action against the Defendants, seeking only monetary

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damages:

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28

Plaintiffs accordingly assert the following

1. Conspiracy, as to Defendants Alexander, Wilson, Fleshman,
Cain, and Salatnay;

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2. False imprisonment and false arrest, as to Defendants

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Alexander, Wilson, and Fleshman;

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3. Defamation, as to Defendants Wilson, Fleshman, Alexander,

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Cain, and Salatnay;

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4. Abuse of process, as to Defendants Alexander, Wilson,

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Fleshman, Cain, and Salatnay;

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5. Intentional infliction of emotional distress ("IIED"), as

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8

to Defendants Alexander, Wilson, Fleshman, Cain,

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Salatnay, and Crockett;

United States District Court

For the Northern District of California

10

6. Negligence, as to all Defendants;

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7. Vicarious responsibility, as to County;

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8. Violations of civil rights under the First, Fourth, and

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Fourteenth Amendments of the United States Constitution,

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per 28 U.S.C. §§ 1983 and 1988, as to all Defendants

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except Crockett; and
9. Child sex abuse and neglect, as to Defendant Crockett

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alone.

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18

Defendants move to dismiss under Rules 12(b)(1) and 12(b)(6),

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asserting a variety of theories for dismissing or, alternatively,

20

staying this action. 2

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discussed separately where appropriate, though on many points he

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joins the County Defendants' brief.

Defendant Crockett filed his own brief,

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24

III. LEGAL STANDARD

25

A.

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When a defendant submits a motion to dismiss under Federal

27
28

Rule 12(b)(1)

2

Defendant Crockett also moves for a more definite statement under
Rule 12(e), but because the Court grants his motion to dismiss, his
Rule 12(e) motion is denied as moot.

11

1

Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of

2

establishing the propriety of the court's jurisdiction.

3

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

4

court of limited jurisdiction, "[a] federal court is presumed to

5

lack jurisdiction in a particular case unless the contrary

6

affirmatively appears."

7

873 F.2d 1221, 1225 (9th Cir. 1989).

8

jurisdictional attack may be facial or factual.

9

F.3d 1214, 1242 (9th Cir. 2000) (citation omitted).

See
As a

Stock West, Inc. v. Confederated Tribes,
A Rule 12(b)(1)
White v. Lee, 227
In a facial

United States District Court

For the Northern District of California

10

attack, the defendant challenges the basis of jurisdiction as

11

alleged in the complaint; however, in a factual attack, the

12

defendant may submit, and the court may consider, extrinsic

13

evidence to address factual disputes as necessary to resolve the

14

issue of jurisdiction, and no presumption of truthfulness attaches

15

to the plaintiff's jurisdictional claims.

16

Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Thornhill Pub. Co. v.

17

Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

18

any event, federal courts are obliged to thoroughly examine their

19

own jurisdiction.

Safe Air for Everyone v.

In

United States v. Hays, 515 U.S. 737 (1995).

20

B.

Rule 12(b)(6)

21

A motion to dismiss under Federal Rule of Civil Procedure

22

12(b)(6) "tests the legal sufficiency of a claim."

Navarro v.

23

Block, 250 F.3d 729, 732 (9th Cir. 2001).

24

on the lack of a cognizable legal theory or the absence of

25

sufficient facts alleged under a cognizable legal theory."

26

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

27

1988).

28

should assume their veracity and then determine whether they

"Dismissal can be based

"When there are well-pleaded factual allegations, a court

12

1

plausibly give rise to an entitlement to relief."

Ashcroft v.

2

Iqbal, 556 U.S. 662, 679 (2009).

3

must accept as true all of the allegations contained in a complaint

4

is inapplicable to legal conclusions.

5

elements of a cause of action, supported by mere conclusory

6

statements, do not suffice."

7

Twombly, 550 U.S. 544, 555 (2007)).

8

complaint must be both "sufficiently detailed to give fair notice

9

to the opposing party of the nature of the claim so that the party

However, "the tenet that a court

Threadbare recitals of the

Id. (citing Bell Atl. Corp. v.
The allegations made in a

United States District Court

For the Northern District of California

10

may effectively defend against it" and "sufficiently plausible"

11

such that "it is not unfair to require the opposing party to be

12

subjected to the expense of discovery."

13

1202, 1216 (9th Cir. 2011).

Starr v. Baca, 652 F.3d

14
15 IV.

DISCUSSION

16

A.

17

The doctrine of Younger abstention comes from the case Younger

Younger Abstention

18

v. Harris, 401 U.S. 37 (1971).

In Younger, the Supreme Court held

19

that federal courts should not intervene in ongoing state criminal

20

proceedings except under extraordinary circumstances.

21

44.

22

prevents the state not only from effectuating its substantive

23

policies, but also from continuing to perform the separate function

24

of providing a forum competent to vindicate any constitutional

25

objections interposed against those policies."

26

Ltd., 420 U.S. 592, 604 (1975).

27

expanded this principle to civil matters for damages, as opposed to

Id. at 43-

This is because "interference with a state judicial proceeding

Huffman v. Pursue,

The Supreme Court has since

28

13

1

injunctive relief alone, 3 and developed a three-part threshold

2

inquiry into whether federal courts should abstain from interfering

3

with state court proceedings.

4

Garden State Bar Ass'n, 457 U.S. 423, 432 (1982).

5

court must ask (1) whether the state hearings at issue constitute

6

an ongoing state judicial proceeding; (2) whether the proceedings

7

implicate important state interests; and (3) whether the state

8

proceedings provide an adequate opportunity to raise constitutional

9

challenges.

See Middlesex Cnty. Ethics Comm. v.
The federal

Id.; Gilbertson v. Albright, 381 F.3d 965, 973 (9th

United States District Court

For the Northern District of California

10

Cir. 2004) (applying Middlesex).

As a "fourth factor," if the

11

three threshold elements are satisfied, the policies behind the

12

Younger doctrine must be implicated by the actions requested of the

13

federal court.

14

1149 (9th Cir. 2007).

AmerisouceBergen Corp. v. Roden, 495 F.3d 1143,

In some cases, federal courts have applied the Younger

15
16

doctrine to dismiss or stay cases implicating state court juvenile

17

or family division proceedings.

18

203 F.3d 610, 613 (9th Cir. 2000), the Ninth Circuit affirmed a

19

district court's dismissal of a case that asked the district court

20

to vacate existing state court orders and enjoin future state court

21

proceedings.

22

suitable for the federal judiciary, per Younger's strong federal

23

policy against federal court interference with pending state

24

proceedings.

25

03594-DMR, 2011 WL 175906 (N.D. Cal. Jan. 18, 2011), this Court

For example, in H.C. v. Koppel,

The Ninth Circuit held that such requests were not

Id. at 613-14.

In Young v. Schwarzenegger, No. C-10-

26
27
28

3

The parties dispute whether the fact that Plaintiffs sue for
damages should implicate Younger, but as explained here, settled
precedent shows that suits for damages implicate stays under
Younger, but not full abstention.

14

1

dismissed a case on Younger grounds because the plaintiff asked the

2

Court for a declaratory judgment that certain sections of the

3

California Family Code were unconstitutional, and for injunctive

4

relief enjoining enforcement of those sections.

5

that Younger principles applied because the plaintiff was, as in

6

Koppel, directly asking the Court to interfere with ongoing state

7

proceedings in which the state had a compelling interest and there

8

were opportunities to raise federal constitutional challenges.

9

at *3-4.

The Court held

Id.

United States District Court

For the Northern District of California

10

However, in Lahey v. Contra Costa County Department of

11

Children and Family Services, No. C-01-1075 MJJ, 2004 WL 2055716

12

(N.D. Cal. Sept. 2, 2004), this Court declined to apply the Younger

13

doctrine in a case that brought Section 1983 claims based on

14

constitutional violations allegedly springing from the Contra Costa

15

County Department of Children and Welfare Services' separation of

16

children from their custodial parents and placement of children in

17

foster care (among other things).

18

state juvenile and family courts, being of limited jurisdiction,

19

were inappropriate fora for resolution of the plaintiffs'

20

constitutional claims.

21

inapplicable.

22

Judge Jenkins found that the

Id. at *11-12.

Younger was therefore

Id.

Defendants argue that the Court should abstain from hearing

23

this case, or at least stay it.

According to Defendants,

24

Plaintiffs' Section 1983 claim as to the First and Fourteenth

25

Amendments -- the only federal claims in this case -- counsel

26

Younger Abstention because (1) dependency, custody, and visitation

27

proceedings are ongoing in the Del Norte County Superior Court; (2)

28

child custody proceedings implicate a compelling state interest in

15

1

protecting children and families; and (3) Plaintiffs have an

2

adequate opportunity to present federal constitutional claims in

3

the ongoing state action.

4

Defendants ask the Court to abstain from hearing Plaintiffs'

5

Section 1983 claims as to the First and Fourteenth Amendments, and

6

to stay the entire action under the Court's inherent authority to

7

manage its cases in an orderly and efficient manner.

Accordingly,

Id. at 14-15.

The Court finds that Younger abstention does not apply in this

8
9

County MTD at 11-14.

case.

Although the state undisputedly has a strong interest in

United States District Court

For the Northern District of California

10

matters concerning family integrity and the well-being of children,

11

see Moore v. Sims, 442 U.S. 415, 435 (1979), the Court finds that

12

the two other prongs of the three-part Middlesex test have not been

13

satisfied in this case, and the policies of the Younger doctrine

14

are not implicated.

15

First, the ongoing state proceedings are (so far as the Court

16

can tell from the parties' sparse explanations of this matter) not

17

at all related to Plaintiffs' present claims.

18

proceedings, apparently conducted in family and juvenile court,

19

concern custody, visitation, and dependency.

20

A-L.

21

the parties' state court disputes appear to relate exclusively to

22

those matters, and while some of Plaintiffs' federal claims relate

23

in certain ways to those proceedings, this case is profoundly

24

different.

25

facts, and claims that do not implicate the state proceedings

26

themselves.

See Lahey, 2004 WL 2055716, at *10

27

similarly).

It is primarily a civil rights case against the County

28

Defendants for actions taken against Mr. and Ms. Brown, based on

The state

See County RJN Exs.

Although the record on these points is not entirely clear,

It involves different parties, completely separate

16

(finding

1

the facts arising long after the family dispute in state court.

2

pled, Plaintiffs' First and Fourteenth Amendment claims are

3

unrelated to the state proceedings.

4

resolve a challenge to those proceedings, and the factual issues

5

underpinning the Section 1983 claim do not appear to require the

6

Court to contradict or overrule the family or juvenile courts.

7

Gilbertson, 381 F.3d at 982-83.

8

Younger prong is not met.

9

As

The Court is not asked to

See

The Court finds that the first

Second, any ongoing proceedings must also "provide the

United States District Court

For the Northern District of California

10

plaintiff an adequate opportunity to litigate federal claims."

San

11

Remo Hotel v. City & Cnty. of S.F., 145 F.3d 1095, 1103 (9th Cir.

12

1095).

13

juvenile courts "are of limited jurisdiction and are not equipped

14

to rule on claims arising from constitutional due process

15

considerations."

16

ex rel. Moore v. Kelly, 990 F.2d 1319, 1322-23 (D.C. Cir. 1993)

17

(holding, because the D.C. family division dealt with a limited

18

array of issues concerning child neglect and parental rights,

19

"[n]one of [the state court] proceedings is an appropriate forum .

20

. . . [T]hese proceedings are not suitable arenas in which to

21

grapple with broad issues external to the parent-child

22

relationship.").

23

abstained from adjudicating a plaintiff's claims relating to family

24

or juvenile court proceedings, Plaintiffs' claims now at issue do

25

not "reach to the very heart of the Juvenile Court's responsibility

26

and core competency, viz., determining the best program of services

27

and placement for each individual child."

28

Costa Cnty., 304 F. Supp. 2d 1185, 1207 n.16 (N.D. Cal. 2004).

As this Court has found in a similar case, the family and

Lahey, 2004 WL 2055716, at *11; accord LaShawn A.

Further, unlike cases in which this Court has

17

Laurie Q. v. Contra

1

This cuts against a finding that Plaintiffs would have the

2

opportunity to raise their claims in the state proceedings, even

3

assuming the first prong had been met here.

4

indeed raise constitutional challenges to the family or juvenile

5

court's custody or visitation decisions in the state proceedings,

6

those proceedings are wholly unrelated to the core of Plaintiffs'

7

case against the County Defendants.

While Plaintiffs could

The County Defendants are correct that the Court must consider

8

United States District Court

only whether Plaintiffs had an "opportunity to present" federal

10
For the Northern District of California

9

claims in the state proceedings; that the Court may not presume

11

that state courts will not safeguard federal constitutional rights;

12

and that in cases in which the other Younger prongs are met, it is

13

the plaintiff's burden to show that a procedural bar would prohibit

14

the state court from resolving a constitutional claim.

15

at 13 (citing, among other pertinent cases, Pennzoil Co. v. Texaco,

16

Inc., 481 U.S. 1, 16 (1987); Moore, 442 U.S. at 436; Dubinka v.

17

Super. Ct., 23 F.3d 218 (9th Cir. 1994)).

18

that the first Younger prong is not met in this case, so Plaintiffs

19

need not raise the issue of a bar, even if one existed, and even if

20

there were an opportunity to raise their federal claims below. 4

21

See, e.g., Dubinka, 23 F.3d at 223; cf. Lahey, 2004 WL 2055716, at

22

*10.

County MTD

However, the Court found

Finally, as to the "fourth prong" of Younger, Plaintiffs'

23
24

claims relate to the County Defendants' allegedly "trumping up"

25

claims against Mr. and Ms. Brown, violating their constitutional

26
27
28

4

Of course, if the parties later present facts that ongoing state
proceedings sufficiently related to this matter and allowing
plaintiffs to raise the same constitutional claims, they could file
a later motion on this point.

18

1

rights and those of Jane Does 1 and 2.

While findings and orders

2

from the state proceedings may eventually be relevant to this case

3

-- e.g., to establish what custodial rights Mr. and Ms. Brown have,

4

vis a vis their constitutional claims, or whether any abuse or

5

neglect had actually occurred as a predicate of a constitutional or

6

state cause of action -- the Court does not find that its

7

application of those facts or resolution of Plaintiffs' claims

8

would cause the Court to interfere with any state proceedings at

9

all.

Accordingly, even if the threshold prongs of Younger analysis

United States District Court

For the Northern District of California

10

were met here, the Court does not find that resolution of

11

Plaintiffs' claims would enjoin (or have the practical effect of

12

enjoining) the state proceedings.

13

F.3d at 1149 (citing Gilbertson, 381 F.3d at 978).

14

point this case's resolution requires awaiting a state court

15

decision that bears on Plaintiffs' claims, and if indeed such

16

decisions are forthcoming, the parties may request a stay when it

17

is appropriate to do so.

18
19

AmerisourceBergen Corp., 495
If at some

A stay under Younger is therefore inappropriate, so the Court
proceeds to evaluate Defendants' other arguments.

20

B.

Plaintiffs' Fourth Amendment Claims

21

Regardless of the Court's findings as to the Younger doctrine,

22

the County Defendants specifically challenge Plaintiffs' Fourth

23

Amendment claims under Section 1983.

24

allege that the County Defendants deprived them of their rights to

25

"be free from unreasonable search and seizure."

26

the County Defendants characterize Plaintiffs' claim -- and

27

Plaintiffs do not disagree -- the claim is premised on Defendants

28

Alexander, Wilson, and Fleshman allegedly conspiring to omit Mr.

19

Plaintiffs Mr. and Ms. Brown

FAC ¶¶ 80-82.

As

1

Brown's statements from the Warrant affidavit, resulting in the

2

Warrant having issued without probable cause and rendering Mr. and

3

Ms. Brown's subsequent arrests violations of their Fourth Amendment

4

rights.

5

also claim that Ms. Brown's arrest was conducted with excessive

6

force.

7

See County MTD at 16-17; County Opp'n at 4-5.

Plaintiffs

As to Plaintiffs' claims based on the Warrant: if a person

8

knowingly or with reckless disregard for the truth includes

9

material false statements or omits material facts in an affidavit

United States District Court

For the Northern District of California

10

submitted in support of a warrant application, he or she may be

11

liable under Section 1983 for a Fourth Amendment violation.

12

v. Delaware, 438 U.S. 154, 157 (1978); Butler v. Elle, 281 F.3d

13

1014, 1024-26 (9th Cir. 2002); Cassette v. King Cnty., 625 F. Supp.

14

2d 1084, 1087 (W.D. Wash. 2008).

15

after the Supreme Court case.

16

this theory, a plaintiff must show that the defendant deliberately

17

or recklessly made false statements or omissions that were material

18

to the finding of probable cause.

19

Clara, 307 F.3d 1119, 1126 (9th Cir. 2002).

20

misstatements resulting from negligence or good faith mistakes will

21

not invalidate an affidavit which on its face establishes probable

22

cause."

23

2009).

24

Franks

This is called a Franks claim,

To support a Section 1983 claim on

Galbraith v. County of Santa
"Omissions or

Ewing v. City of Stockton, 588 F.3d 1218, 1224 (9th Cir.

The County Defendants argue that Plaintiffs' Franks claim

25

should be dismissed.

First, they contend that the complaint does

26

not identify the arrest warrant affiant or the allegedly

27

exculpatory evidence omitted from the probable cause statement.

28

Second, they claim that Plaintiffs' allegations of false arrest as

20

1

to Defendant Fleshman fail to allege that the Warrant was facially

2

invalid, and in any event, Defendant Fleshman is subject to

3

qualified immunity because of that failure to plead the Warrant's

4

facial invalidity.

5

County MTD at 17-18.

Separately from their arguments on the Franks claim, the

6

County Defendants argue that Plaintiffs' allegations as to

7

excessive force in the arrest of Ms. Brown cannot support a Fourth

8

Amendment claim because none of the County Defendants are named as

9

arresting officers, and the bare assertion of "excessive force"

United States District Court

For the Northern District of California

10

fails to meet federal pleading standards.

11

Under seal, Plaintiffs attached to their opposition brief

12

copies of Mr. Brown's letter to Defendant Alexander, as well as the

13

Warrant and the declaration of probable cause.

14

to do so to support their claim at this stage, and the Court need

15

not take notice of their materials to find Plaintiffs' allegations

16

sufficient.)

17

alleges that Defendants Alexander, Wilson, and Fleshman worked

18

together to draft the Warrant affidavit and submit it to the

19

magistrate judge, omitting from the affidavit and any other

20

statements the fact that Mr. Brown had sent the proper notice to

21

the DA's office and the County Defendants per California Penal Code

22

section 278.7.

23

(They did not need

Plaintiffs contend that the complaint sufficiently

FAC ¶¶ 15-17.

The Court finds that Plaintiffs sufficiently plead a Fourth

24

Amendment claim.

Plaintiffs allege that Defendants Alexander,

25

Wilson, and Fleshman filed an affidavit with the magistrate judge,

26

alleging that Mr. and Ms. Brown had kidnapped Jane Does 1 and 2,

27

and that their whereabouts were unknown.

28

Plaintiffs, Mr. Brown gave notice to the County Defendants, per the

21

But according to

1

California Penal Code, that he was taking the children out of

2

jurisdiction.

3

notice that an exception applied to Mr. and Ms. Brown taking the

4

children out of the state.

5

affidavit that the County Defendants had no knowledge of the

6

children's whereabouts would be plainly false, given this notice.

7

Under the circumstances, Plaintiffs have pointed to both an

8

omission and an outright falsity, both of which are material to

9

findings of probable cause because the magistrate's decision on

The County Defendants would therefore have been on

Moreover, the statement in the

United States District Court

For the Northern District of California

10

whether to grant the warrant application would plainly depend on

11

whether a kidnapping under the California Penal Code had occurred.

12

Part of this consideration would necessarily have involved whether

13

a legal exception applied.

14

The Court does not find the County Defendants' reply arguments

15

on this point persuasive.

They would hold Plaintiffs' pleadings to

16

a much higher standard than the law requires.

17

Cnty. of Sonoma, No. 07-4272 CW, 2008 WL 2676578, at *7 (N.D. Cal.

18

July 1, 2008) (applying standard set out above); Galbraith v.

19

County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002)

20

(heightened pleading standard does not apply to constitutional tort

21

claims).

22

the court in Rutledge dismissed a plaintiff's Franks claim against

23

a detective because the plaintiff did not identify a false

24

statement or omission in a warrant affidavit that the defendant

25

drafted -- not because the plaintiff had to plead the Franks claim

26

to a heightened standard.

27

that case did not require a heightened pleading standard, and in

See Rutledge v.

Moreover, contrary to the County Defendants' arguments,

2008 WL 2676578, at *7.

28

22

The court in

1

fact could not have done so. 5

Galbraith, 307 F.3d at 1126.

Further, contrary to the County Defendants' position,

2
3

Plaintiffs need not identify the affiant specifically because they

4

allege that Defendants Wilson, Alexander, and Fleshman worked

5

together to ensure that the relevant information was to be omitted

6

from the affidavit.

7

Defendants knew of the omitted material but coordinated to ensure

8

that it did not appear in the probable cause affidavit.

9

Plaintiffs' allegations as to Section 1983 suggest that the County

According to the pleadings, each of these

United States District Court

For the Northern District of California

10

Defendants are jointly liable for the constitutional tort.

11

As to Plaintiffs' false arrest allegations, which are

12

consonant with Plaintiffs' claims for unreasonable seizure under

13

the Fourth Amendment, the County Defendants argue that Plaintiffs'

14

allegations as to Mr. Brown's arrest fail because Defendant

15

Fleshman, who arrested Mr. Brown, has qualified immunity.

16

MTD at 17.

17

position that the complaint fails to allege that the Warrant is

18

invalid.

19

case, though the Court addresses qualified immunity more fully

20

below.

County

This contention is based on the County Defendants'

As noted above, the Court does not find that to be the

As to Ms. Brown's allegations of excessive force under the

21
22

Fourth Amendment, FAC ¶ 19, the County Defendants argue that her

23

claim should be dismissed because none of the County Defendants are

24

5

25
26
27
28

County Defendants' remaining authority to the contrary is
inapposite, because it concerns cases arising under different
standards of review or different statutes. See Olsen v. Idaho
Board of Medicine, 363 F.3d 916, 929 (9th Cir. 2004) (evaluating a
Section 1985 claim); Gilbrook v. City of Westminster, 177. F3d 839,
856-67 (9th Cir. 1999) (evaluating a jury verdict on the
"substantial evidence" standard, not a motion to dismiss); Margolis
v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (affirming a district
court's grant of summary judgment).

23

1

identified as "arresting officers" and her bare assertion of

2

"excessive force" contravenes post-Iqbal pleading standards.

3

County MTD at 18.

4

opposition, and the Court finds Plaintiffs' allegations on this

5

point insufficient under Rule 8.

6

regarding how Ms. Brown's arrest was conducted with excessive

7

force.

8

Court DISMISSES them with leave to amend.

9

as to Ms. Brown's being arrested based on an unconstitutional

Plaintiffs do not join this argument in their

Plaintiffs provide no detail

Those allegations are bare and legally conclusory, so the
Plaintiffs' allegations

United States District Court

For the Northern District of California

10

warrant are intact, and the County Defendants' motion to dismiss

11

Plaintiffs' Fourth Amendment Section 1983 claim on those grounds is

12

DENIED.

13

C.

Immunity
i.

14

Defendant Alexander's Immunity: State and Federal
a.

15

Federal Immunity

Separately, County Defendants argue that Defendant Alexander

16
17

should be dismissed from Plaintiffs' Section 1983 claim because he

18

"enjoys absolute immunity for decisions made within [his]

19

prosecutorial authority."

20

Rainbow Const. Co., 254 F.3d 772, 777 (9th Cir. 2001)).

County MTD at 18 (citing Radcliffe v.

In determining immunity, the Court accepts the allegations in

21
22

complaint as true.

See Buckley v. Fitzsimmons, 509 U.S. 259, 261

23

(1993).

24

Defendants Wilson and Fleshman to falsify the Warrant. 6

Plaintiffs allege that Defendant Alexander worked with
However,

25
26
27
28

6

Plaintiffs include some argument in their opposition brief that
Defendant Alexander omitted the same material information to obtain
a Protective Custody Warrant for Jane Does 1 and 2. Plaintiffs'
FAC contains no allegations based on that warrant, and the Court
does not evaluate it with respect to the County Defendants'
immunity argument.

24

1

contrary to Plaintiffs' opposition brief, Plaintiffs do not allege

2

that Defendant Alexander was "directly responsible" for omission of

3

the material information from the affidavit (e.g., that he was the

4

affiant), only that he was closely involved with it and with Mr.

5

Brown's subsequent arrest.

6

Defendants contend that because of this lack of clarity and because

7

Defendant Alexander was not the affiant -- Defendant Fleshman was -

8

- Defendant Alexander is immune from Plaintiffs' Section 1983

9

claim.

See FAC ¶¶ 15-17, 32.

The County

Plaintiffs contend that Defendant Alexander was acting as a

United States District Court

For the Northern District of California

10

witness or in an investigative manner, and that he was providing

11

legal advice to police, both instances in which absolute

12

prosecutorial immunity does not apply.

13

County Opp'n at 5.

A prosecutor is protected by absolute immunity from liability

14

for damages under Section 1983 "when performing the traditional

15

functions of an advocate."

16

(1997).

17

immune merely because they are performed by a prosecutor."

18

Buckley, 509 at 273.

19

of the function performed, not the identity of the actor who

20

performed it."

21

White, 484 U.S. 219, 229 (1988)).

22

qualified immunity, rather than absolute immunity, when they

23

perform administrative functions, or "investigative functions

24

normally performed by a detective or police officer."

25

See also Burns v. Reed, 500 U.S. 478, 494-96 (1991).

26

Kalina v. Fletcher, 522 U.S. 118, 131

However, "the actions of a prosecutor are not absolutely

Prosecutorial immunity depends on "the nature

Kalina, 522 U.S. 118 at 127 (quoting Forrester v.
Prosecutors are entitled to

Id. at 126.

To qualify as advocacy, a prosecutor's actions must be

27

"intimately associated with the judicial phase of the criminal

28

process."

Imbler v. Pachtman, 424 U.S. 409, 420 (1976); see also

25

1

Van de Kamp v. Goldstein, 555 U.S. 335, 345 (2009) (quoting

2

Imbler); Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005)

3

(same).

4

when a plaintiff's constitutional rights are violated.

5

410 F.3d at 637.

6

the broader public interest" in protecting a prosecutor's ability

7

to exercise independent judgment and advocate vigorously without

8

threat of retaliation by the numerous targets of a prosecutor's

9

prosecutions.

This can result in very broad immunity, attaching even
Genzler,

This is by design: anything less could "disserve

Id. (quoting Imbler).

"Thus, a prosecutor enjoys

United States District Court

For the Northern District of California

10

absolute immunity from a suit alleging that he maliciously

11

initiated a prosecution, used perjured testimony at trial, or

12

suppressed material evidence at trial.

13

prosecutor is also absolutely immune for direct participation in a

14

probable cause hearing, Burns, 500 U.S. at 491, and for preparing

15

and filing charging documents, Kalina, 522 U.S. at 130."

16

However, the Supreme Court has held that absolute immunity does not

17

apply to prosecutors who fabricate evidence "during the early stage

18

of the investigation" when "police officers and assistant

19

prosecutors were performing essentially the same investigatory

20

functions," Buckley, 509 U.S. at 273, to prosecutors who provide

21

legal advice to police that probable cause exists to arrest a

22

suspect, Burns, 500 U.S. at 491, or for personally attesting to the

23

truth of evidence in support of charging documents, Kalina, 522

24

U.S. at 130.

25

Imbler, 424 U.S. at 430.

A

Id.

There is no bright line between advocacy and police-type

26

investigative work, though the Ninth Circuit has interpreted

27

Supreme Court precedent on this issue to turn on "whether a

28

prosecutor's investigation is of the type normally done by police,

26

1

in which case prosecutors enjoy only qualified immunity, or whether

2

an investigation is bound up with the judicial process, thus

3

affording prosecutors the heightened protection of absolute

4

immunity."

5

Defendant Alexander assisted the County Sheriff Defendants, Wilson

6

and Fleshman, in crafting an affidavit of probable cause for the

7

Warrant, and then in conducting the arrest of Mr. Brown.

8

investigative work can be done in a quasi-judicial capacity, and

9

would therefore be subject to absolute immunity, when -- for

Genzler, 410 F.3d at 638.

Plaintiffs have alleged that

Such

United States District Court

For the Northern District of California

10

example -- the prosecutor does so in organizing, evaluating, and

11

marshaling evidence in preparation for trial, as opposed to when

12

the prosecutor engages in police-like activity of acquiring

13

evidence in advance of a prosecution.

14

(citing Buckley, 509 U.S. at 273; and Barbera v. Smith, 836 F.2d

15

96, 100 (2d Cir. 1987)).

16

See Genzler, 410 F.3d at 639

The timing of investigative work is not dispositive in cases

17

like this one, but applying the Supreme Court's analysis, the Court

18

finds that Plaintiffs' allegations about Defendant Alexander, taken

19

as true at this stage, present him as acting in an investigative

20

capacity not related to his core advocacy function.

21

Defendant Alexander is alleged to have aided in analyzing (and then

22

omitting) evidence related to a Warrant affidavit, and then to have

23

provided specific legal advice to a police officer as to the future

24

filing of criminal charges against Mr. Brown.

25

Defendant Alexander is alleged to have been on notice of Mr.

26

Brown's letter under the California Penal Code, and to have had a

27

conversation with at least one of the Plaintiffs regarding whether

28

an exception to California's kidnapping law applied in this case.

27

See id.

Specifically,

1

So far as he incorporated these facts into his decision to work

2

with Defendants Wilson and Fleshman to submit the Warrant

3

affidavit, this work was not part of his quasi-judicial advocacy

4

role, and he is not entitled to absolute immunity for these

5

activities.

Id.

The County Defendants contend that Defendant Alexander can

6
7

only lose prosecutorial immunity if the complaint alleges that he

8

was the Warrant affiant.

9

U.S. at 123-25).

County Reply at 6 (citing Kalina, 522

They misread Kalina.

At no point does that case

United States District Court

For the Northern District of California

10

draw such a clear line.

In fact, it reinforces the Supreme Court's

11

long-standing jurisprudence that analysis of whether absolute

12

immunity attaches must be functionally based on whether the

13

prosecutor was acting as a witness (e.g., in an investigative

14

fashion) or in his capacity as an advocate.

15

at 123-25, 129-30.

16

Circuit's holding that a prosecutor was not entitled to absolute

17

immunity because she had certified false facts in attesting to

18

facts recited in a "Certification for Determination of Probable

19

Cause."

20

hinge only on the fact that the prosecutor was also the affiant,

21

though.

22

case performing the function of a witness or investigator, not that

23

of an advocate.

24

Buckley, 509 U.S. at 273). 7

See Kalina, 522 U.S.

In Kalina, the Supreme Court affirmed the Ninth

See id. at 130-31.

The Supreme Court's analysis did not

Rather, it was critical that the prosecutor was in that

Id. at 131 (citing Imbler, 424 U.S. at 421;
Again, in this case, the Court finds

25
26
27
28

7

The County Defendants similarly misread their other supporting
authority, all of which applies essentially the same framework
described above in cases where a prosecutor was, for example,
moving for a bench warrant. In those cases, courts have held that
the prosecutor acts in a traditional advocate's capacity because he
is applying law to facts, not acting as an investigator. See Waggy

28

1

that Defendant Alexander was operating in a witness or

2

investigative capacity during the relevant times.

3

prove this false, but at the pleading stage, Plaintiffs'

4

allegations survive the County Defendants' motion to dismiss for

5

prosecutorial immunity.
1.

6
7

Later facts may

Qualified Immunity

Since Defendant Alexander is not entitled to absolute

8

immunity, the Court must determine whether qualified immunity

9

attaches.

Kalina, 522 U.S. 118 at 126.

The doctrine of qualified

United States District Court

For the Northern District of California

10

immunity protects government officials "from liability for civil

11

damages insofar as their conduct does not violate clearly

12

established statutory or constitutional rights of which a

13

reasonable person would have known."

14

U.S. 800, 818 (1982).

15

rather than a mere defense to liability."

16

U.S. 511, 526 (1985).

17

incompetent or those who knowingly violate the law.

18

Briggs, 475 U.S. 335, 341 (1986).

19

under Section 1983 is whether (1) the facts show "the officer's

20

conduct violated a constitutional right"; and (2) the right at

21

issue was "clearly established" at the time of the officer's

22

allegedly wrongful conduct.

23

(2001).

24

prong to address first.

25

(2009).

26

Harlow v. Fitzgerald, 457

Qualified immunity is "immunity from suit
Mitchell v. Forsyth, 472

It protects from suit all but the plainly
Malley v.

The relevant inquiry for a claim

Saucier v. Katz, 533 U.S. 194, 201

Trial courts may exercise discretion in deciding which
See Pearson v. Callahan, 555 U.S. 223, 236

The Court finds that Defendant Alexander is not entitled to

27
28

v. Spokane Cnty. Wash., 594 F.3d 707, 712-13 (9th Cir. 2010).
is not what is at stake here.

29

That

1

qualified immunity as to the Fourth Amendment claim.

2

Plaintiffs have sufficiently alleged violations of their Fourth

3

Amendment rights.

4

at the time of Defendant Alexander's alleged misconduct, because

5

clearly established law would have put Defendant Alexander on

6

notice that his conduct violated the Constitution: Plaintiffs have

7

alleged a prima facie Franks claim, which is a longstanding

8

constitutional doctrine, not an undecided issue of which a district

9

attorney might reasonably have been unaware.

United States District Court

For the Northern District of California

10

First,

Second, those rights were "clearly established"

See, e.g., Pearson,

555 U.S. at 244-45.
At this stage of litigation, the Court therefore declines to

11
12

dismiss Plaintiffs' Section 1983 claims against Defendant

13

Alexander. 8
b.

14

State Immunity

The County Defendants further argue that Defendants Alexander,

15
16

Cain, and Salatnay are immune, by state statute, to all of

17

Plaintiffs' state law claims for conspiracy, defamation, abuse of

18

process, IIED, negligence, and, additionally as to Defendant

19

Alexander alone, false imprisonment and false arrest.

20

22.

21

821.6, which reads, " A public employee is not liable for injury

22

caused by his instituting or prosecuting any judicial or

23

administrative proceeding within the scope of his employment, even

24

if he acts maliciously and without probable cause."

25

of this immunity provision, investigations are deemed to be part of

26

the judicial and administrative proceedings."

27

8

28

Id. at 21-

This argument is based on California Government Code section

"For purposes

Strong v. State, 201

As the parties seem to agree, the only live Section 1983 claim
against Defendant Alexander pertains to Plaintiffs' Fourth
Amendment claims.

30

1

Cal. App. 4th 1439, 1461 (Cal. Ct. App. 2011); accord Blankenhorn

2

v. City of Orange, 485 F.3d 463, 488 (9th Cir. 2007).

3

immunity has repeatedly been applied to social workers' conduct

4

during investigations.

5

2250 MEJ, 2010 WL 3702652, at *8 (N.D. Cal. Sept. 16, 2010).

6

The County Defendants contend that the alleged acts and

This

See Guzman v. Cnty. of Alameda, No. C 10-

7

omissions of Defendants Cain and Salatnay all involve their

8

investigations of claims of abuse against Jane Does 1 and 2.

9

County MTD at 21-22.

They therefore ask the Court to dismiss

United States District Court

For the Northern District of California

10

Plaintiffs' claims for conspiracy, defamation, abuse of process,

11

IIED, and negligence claims as to Defendants Cain and Salatnay.

12

Id.

13

immunity in this context.

14

California's statutory immunity does not extend to actions

15

following social workers' "decision to make a response to an

16

allegation of child abuse."

17

Defendants Cain, Salatnay, and Alexander all exceeded their

18

statutory immunity grant by taking actions following their

19

investigative activities.

20

They restate their other arguments as to Defendant Alexander's
Id.

Plaintiffs respond that

County Opp'n at 7.

They contend that

Id.

The Court finds that Defendants Cain, Salatnay, and Alexander

21

are immune from Plaintiffs' state law claims per California

22

Government Code section 821.6's grant of immunity.

23

contend that section 821.6 immunity does not extend to actions

24

taken after an investigation, but "California courts have not

25

embraced this distinction."

26

Dep't, No. 13-0224 CW, 2013 WL 3961137, at *3 (N.D. Cal. July 29,

27

2013) (citing Scannell v. Cnty. of Riverside, 152 Cal. App. 3d 596,

28

609 (Cal. Ct. App. 1984) (dismissing tort claim against police

Plaintiffs

See Ingram v. City of S.F. Police

31

1

officers and county prosecutors for actions taken during and after

2

an investigation into plaintiff's conduct)).

3

allegations refer to actions taken outside Defendants'

4

investigative work regarding Plaintiffs.

5

does not attach to Defendant Alexander's investigative conduct,

6

state immunity does not appear to be so limited.

7

it does not attach to Plaintiffs' claim for false arrest and false

8

imprisonment, which survives.

9

744, 753 (Cal. 1997) (statutory immunity does not apply to claims

None of Plaintiffs'

While federal immunity

See id.

However,

Asgari v. City of L.A., 15 Cal. 4th

United States District Court

For the Northern District of California

10

for false arrest or false imprisonment per California Government

11

Code section 820.4); Cal. Gov't Code § 820.4 ("Nothing in this

12

section exonerates a public employee from liability for false

13

arrest or false imprisonment.").

14

Plaintiffs' state law claims against Defendants Alexander,

15

Cain, and Salatnay are DISMISSED with prejudice, except as to

16

Plaintiffs' false arrest claim against Defendant Alexander, because

17

the Court finds that amendment would be futile.

18

D.

Plaintiffs' Monell Claim Against the County of Del Norte

19

Plaintiffs' Section 1983 claim against the County is called a

20

Monell claim, after Monell v. N.Y.C. Dep't of Social Servs., 436

21

U.S. 658, 689 (1978).

22

pursuant to official municipal policy that caused a constitutional

23

violation.

24

under Section 1983, a plaintiff must allege (1) possession of a

25

constitutional right of which she was deprived; (2) the existence

26

of a municipal policy; (3) that the policy "amounts to deliberate

27

indifference to the plaintiff's constitutional right"; and (4) that

28

the policy was the "moving force" behind the constitutional

Id.

Monell claims must be based on actions

To state a Monell claim for municipal liability

32

1

violation.

Miranda v. City of Cornelius, 429 F.3d 858, 868 (9th

2

Cir. 2005).

3

not plead the existence of any basis for Monell liability.

4

MTD at 19-20.

5

requesting leave to amend to correct this deficiency.

6

at 6.

7

amend.

The County Defendants argue that because Plaintiffs do
County

Plaintiffs concede that they have not alleged such,
County Opp'n

Accordingly, the Court DISMISSES this claim with leave to

State Law Conspiracy 9

8

E.

9

The County Defendants argue that the Court should dismiss

United States District Court

For the Northern District of California

10

Plaintiffs' cause of action for conspiracy against the County

11

Defendants because (1) a conspiracy cannot be alleged as a tort

12

separate from the underlying wrong it is organized to achieve, and

13

(2) the intra-corporate conspiracy doctrine precludes a cause of

14

action for civil conspiracy between employees of a corporation or

15

municipality when the defendants are acting within the course and

16

scope of their employment.

17

matter that some of the alleged co-conspirators are entitled to

18

legislative immunity in this case: "it is possible for one

19

defendant to be immune from liability, and yet another defendant to

20

be liable for conspiring with the immune party."

21

856 F. Supp. 543, 551 (N.D. Cal. 1994) (citing Dennis v. Sparks,

22

449 U.S. 24, 27 (1980)).

23

arguments as to the applicability of any of Plaintiffs' state law

24

claims to Defendants Wilson or Fleshman.

County MTD at 20-21.

It does not

Rabkin v. Dean,

The County Defendants make no further

Plaintiffs dispute the

25
26
27
28

9

The County Defendants also argue that the Court should decline to
hear Plaintiffs' state law claims under supplemental jurisdiction
if the federal claims are dismissed. Since the Court did not
dismiss Plaintiffs' federal claims, it declines to evaluate
supplemental jurisdiction as to the County Defendants.

33

1

County Defendants' first argument against their conspiracy claim,

2

but do not join the second.

3

Addressing the latter argument first, the Court clarifies for

4

the parties that the cause of action at issue here is a state law

5

conspiracy claim, not a claim under 42 U.S.C. § 1985, the federal

6

statute that specifically concerns conspiracies to violate

7

constitutional rights.

8

Alexander, Wilson, Fleshman, Cain, and Salatnay conspired to

9

prevent investigation into Defendant Crockett and to trump up

Plaintiffs assert that Defendants

United States District Court

For the Northern District of California

10

charges against Plaintiffs Mr. and Ms. Brown -- essentially the

11

same facts that support Plaintiffs' Section 1983 claim, but couched

12

in a somewhat different way.

13

intra-corporate conspiracy doctrine contends that employees of a

14

corporation or municipality cannot be held to have conspired when

15

they were acting within the course and scope of their employment.

16

Defendants' argument based on the

The intra-corporate conspiracy doctrine, derived originally

17

from antitrust law but now applied to many types of conspiracy

18

actions, "generally provides that employees acting within the scope

19

of their employment cannot be deemed culpable for conspiring with

20

one another or with the entity that employs them."

21

Geissberger, No. 10-00634 SBA, 2011 WL 197957, at *6 (N.D. Cal.

22

Jan. 14, 2011) (citing cases).

23

there is a split of circuit court authority regarding whether the

24

intra-corporate conspiracy doctrine applies to civil rights claims

25

under Section 1985.

26

898, 910 (9th Cir. 1993).

27

have declined to find that the doctrine precludes civil conspiracy

28

claims in civil rights cases like this one.

Rashdan v.

The Ninth Circuit has noted that

See Portman v. Cnty. of Santa Clara, 995 F.2d
Some courts within the Ninth Circuit

34

See Ibarra v. City of

1

Watsonville, No. 12-cv-02271-EJD, 2013 WL 623045, at *8 (N.D. Cal.

2

Feb. 15, 2013); Rivers v. Cnty. of Marin, No. C-09-1614 EMC, 2010

3

WL 145094, at *7-8 (N.D. Cal. Jan. 8, 2010).

4

that it applies.

5

agrees with the more cautious holding and declines to extend the

6

scope of the doctrine.

7

But others have held

See Rashdan, 2011 WL 197957, at *6.

The Court

The Court also finds the County Defendants' first argument

8

unavailing.

The County Defendants are correct that conspiracy

9

alone is indeed not a cause of action but a legal doctrine for

United States District Court

For the Northern District of California

10

imposing liability.

Applied Equip. Corp. v. Litton Saudi Arabia

11

Ltd., 7 Cal. 4th 503, 510-11 (Cal. 1994).

12

civil conspiracy can rest on the commission of an actual tort.

13

at 511.

14

County Defendants formed and operated a conspiracy, (2) committed

15

wrongful acts or torts (e.g., false arrest and abuse of process)

16

pursuant to the conspiracy, and (3) damaged Plaintiffs in doing so,

17

Cnty. of Marin v. Deloitte Consulting LLP, 836 F. Supp. 2d 1030,

18

1045 (N.D. Cal. 2011), Plaintiffs' conspiracy claim cannot be

19

dismissed at this stage.

20

Cain, and Salatnay are subject to state immunity to this claim, so

21

-- subject to amendment -- it survives only as to Defendants Wilson

22

and Fleshman.

23

F.

24

Plaintiffs assert only three claims against Defendant

However, a claim for
Id.

Since Plaintiffs have sufficiently alleged that (1) the

However, per above, Defendants Alexander,

Plaintiffs' Claims Against Crockett

25

Crockett: IIED, negligence, and child sex abuse and neglect.

26

Plaintiffs concede that they should have asserted negligence only

27

against the County Defendants.

28

accordingly DISMISSED as to Defendant Crockett.

Crockett Opp'n at 3.

35

That claim is

If Plaintiffs

1

choose to file a second amended complaint, the new pleadings should

2

reflect that dismissal.

3

Defendant Crockett's motion to dismiss the IIED and child sex abuse

4

and neglect claims, both of which are state law claims.

5

assert no federal causes of action against Defendant Crockett.

6

The Court therefore addresses only

Plaintiffs

Defendant Crockett moves for dismissal of the child sex abuse

7

and neglect claim for lack of jurisdiction under Rule 12(b)(1).

8

argues that the Court should decline to take supplemental

9

jurisdiction over the claim because the state law aspect of it

United States District Court

For the Northern District of California

10

substantially predominates over the Section 1983 claim over which

11

He

the Court has original jurisdiction.

12

The question here is whether supplemental jurisdiction

13

applies.

Title 28, Section 1367 of the United States Code provides

14

that, subject to two exceptions, "in any civil action of which the

15

district courts have original jurisdiction, the district courts

16

shall have supplemental jurisdiction over all other claims that are

17

so related to claims in the action within such original

18

jurisdiction that they form part of the same case or controversy

19

under Article III of the United States Constitution."

20

exception appears in Section 1367(c)(2): "The district courts may

21

decline to exercise supplemental jurisdiction over a claim under

22

subsection (a) if . . . the claim substantially predominates over

23

the claim or claims over which the district court has original

24

jurisdiction."

25

federal court should consider and weigh . . . the values of

26

judicial economy, convenience, fairness, and comity."

27

Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997)

28

(internal citations omitted).

The relevant

Supplemental jurisdiction is discretionary, and "a

36

City of

1

The Court finds that Plaintiffs' claims against Defendant

raise against the County Defendants.

4

concerns primarily what they allege to have been gross misconduct

5

on the part of the County Defendants.

6

here depends on its original jurisdiction over Plaintiffs' Section

7

1983 claims.

8

are related to these claims, but they are exclusively state causes

9

of action connected to underlying allegations of abuse that do not

10

United States District Court

Crockett substantially predominate over the federal claims they

3

For the Northern District of California

2

form the same case or controversy as Plaintiffs' claims over which

11

the Court has original jurisdiction.

12

Plaintiffs' complaint

The Court's jurisdiction

Plaintiffs' allegations against Defendant Crockett

Further, the Court finds that declining jurisdiction over

13

Plaintiffs' abuse claims better serves the values of judicial

14

economy, convenience, fairness, and comity in this case, since

15

Plaintiffs' claims against Defendant Crockett are based on

16

different facts and raise different issues than Plaintiffs' claims

17

against the County Defendants.

18

for child sex abuse and neglect, is therefore DISMISSED with

19

prejudice.

Plaintiffs' ninth cause of action,

20

Defendant Crockett did not move to dismiss Plaintiffs' IIED

21

claim against him on the same basis, but federal district courts

22

with the power to hear state law claims have discretion to keep or

23

decline those claims under the conditions set out in 28 U.S.C. §

24

1367(c).

25

(1966); Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir.

26

1997).

27

for the same reasons stated above, though in any event, the Court

28

does not find that Plaintiffs' allegations on this claim are

United Mine Workers v. Gibbs, 383 U.S. 715, 725-26

The Court declines jurisdiction over Plaintiffs' IIED claim

37

1

plausible.

Plaintiffs' IIED claim against Defendant Crockett is

2

DISMISSED with prejudice.

3
4

V.

CONCLUSION

5

As explained above, the Court GRANTS in part and DENIES in

6

part Jon Alexander, Dean Wilson, Ed Fleshman, Julie Cain,

7

Cindy Salatnay, and the County of Del Norte, California's (the

8

"County Defendants") motion to dismiss.

9

Defendant Donald Crockett's motion to dismiss.

United States District Court

Specifically,

the Court orders:

10
For the Northern District of California

The Court GRANTS

•

11

Plaintiffs' Section 1983 claim based on excessive force

12

under the Fourth Amendment is DISMISSED with leave to

13

amend;
•

14

Plaintiffs' remaining state law claims against Defendants

15

Alexander, Cain, and Salatnay are DISMISSED with

16

prejudice, except as to Plaintiffs' false arrest and

17

false imprisonment claim as to Defendant Alexander, which

18

remains undisturbed;
•

19

Plaintiffs' state law claims against Defendants Wilson
and Fleshman remain undisturbed;

20
•

21

Plaintiffs' Section 1983 claim against the County of Del
Norte is DISMISSED with leave to amend;

22
•

23

Plaintiffs' complaint is DISMISSED with prejudice as to
Defendant Crockett.

24
25

All of Plaintiffs' other claims remain undisturbed.

26

///

27

////

28

///

38

1

Plaintiffs have thirty (30) days to file an amended complaint.

2

If they do not do so, the Court may dismiss Plaintiffs' deficient

3

claims with prejudice.

4
5

IT IS SO ORDERED.

6
7

Dated: December 13, 2013

8

UNITED STATES DISTRICT JUDGE

9

United States District Court

For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

39