Mann et al v. San Diego, County of et al

Filing 220

ORDER Denying 214 Plaintiffs' Motion for Certification of Petition for Permissive Interlocutory Appeal. Signed by Judge Gonzalo P. Curiel on 1/21/2016. (srm)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11
12

MARK MANN et al.,

13
14

Plaintiffs,
v.

15
16

COUNTY OF SAN DIEGO et al.,

17

Defendants.

18

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 3:11-cv-0708-GPC-BGS
ORDER DENYING PLAINTIFFS’
MOTION FOR CERTIFICATION
OF PETITION FOR PERMISSIVE
INTERLOCUTORY APPEAL
[ECF No. 214]

19
20
21
22
23
24
25
26
27
28

Before the Court is Plaintiffs’ motion for an order certifying Plaintiffs’ petition
for an interlocutory appeal of the Court’s November 23, 2015 Order Granting in Part
and Denying in Part Defendant’s Motion for Summary Judgment and Granting in Part
and Denying in Part Plaintiffs’ Motion for Summary Judgment. Pl. Mot., ECF No. 214.
The motion has been fully briefed. Def. Opp., ECF No. 217; Pl. Reply, ECF No. 218.
Upon consideration of the moving papers and the applicable law, the Court DENIES
Plaintiff’s motion.
BACKGROUND
The relevant facts in this case having been described in the Court’s previous
3:11-cv-0708-GPC-BGS

1

Order, the Court will not reiterate them in depth here. See 1st Summ. J. Order 2–12,

2

ECF No. 102. In short, this is an action brought by Plaintiffs Mark and Melissa Mann

3

and their four minor children N.E.H.M., M.C.G.M., N.G.P.M., and M.N.A.M

4

(“Plaintiffs”) challenging actions taken by the County of San Diego (“County”), the

5

County’s Health and Human Services Agency (“HHSA”), and the County’s Polinsky

6

Children’s Center, a temporary emergency shelter for children who are separated from

7

their families (“Polinsky”) (“Defendants”) during the course of a child abuse

8

investigation that led to the removal of the minor children from the family’s home,

9

including the medical examinations that were conducted on the children during their

10

removal. See id.

11

On November 23, 2015, the Court issued an Order Granting in Part and Denying

12

in Part Defendant’s Motion for Summary Judgment and Granting in Part and Denying

13

in Part Plaintiffs’ Motion for Summary Judgment. 2nd Summ. J. Order, ECF No. 211.

14

The Court addressed, inter alia, Plaintiffs’ Monell challenges to the constitutionality

15

of Defendants’ policies of “(1) preventing parents or guardians from being present

16

during medical procedures, including examinations performed at Polinsky; and (2)

17

allowing medical examinations to be performed at Polinsky in the absence of exigency,

18

valid parental consent, or court order specific to the child being examined.” Id. at 5.

19

Under Monell v. Dept. of Social Servs. of City of New York, a municipality

20

like the County can be sued for “constitutional deprivations visited pursuant to

21

governmental custom.” 436 U.S. 658, 690 (1978). To establish municipal liability

22

where a municipality’s inaction in failing to protect the plaintiffs’ constitutional

23

rights is the source of the deprivation, the plaintiffs must show that (1) they were

24

deprived of a constitutional right; (2) the County had a policy; (3) the policy

25

amounted to a deliberate indifference to the constitutional right; and (4) the policy

26

was the “moving force behind the constitutional violation.” Mabe v. San Bernardino

27

Cnty., Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001) (citing Van

28

Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996)).
2

3:11-cv-0708-GPC-BGS

1

Addressing the first prong of the Monell inquiry, the Court found that the Ninth

2

Circuit cases Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 1999) and Greene v. Camreta,

3

588 F.3d 1011 (9th Cir. 2009), “establish constitutional rights that depend on the nature

4

and intrusiveness of medical examinations of children conducted by the state.” Id. at

5

14. Specifically, the Court found that:

17

First, Wallis establishes that where the medical examination at issue
involves invasive internal body cavity examinations or the potential
collection of material physical evidence, judicial authorization specific to
the child or parental consent, plus notice to the parents is required. In
addition, parents have a right to be present during the examination unless
there is a valid reason to exclude them, such as a medical emergency,
allegations of abuse, or a credible reason for believing they would
interfere with the medical examination.
Second, Wallis and Greene, taken together, establish that where a
“potentially traumatic” medical examination is at issue, such as one
involving an external genital examination, parents have a right to be
present unless there is a valid reason to exclude them, such as a medical
emergency, allegations of abuse, or a credible reason for believing they
would interfere with the medical examination. This right to be present
necessarily encompasses a right to receive actual notice that the
examination will occur. However, there is no constitutional requirement
that the state secure judicial authorization specific to the child or parental
consent before the examination is conducted.
Third, where a medical examination is not “potentially traumatic,”
neither Wallis nor Greene are implicated. A routine pediatric examination
involving, for instance, auscultation or the testing of a child’s reflexes
would require neither judicial authorization nor parental consent, notice,
or presence.

18

Id. at 14–15. The Court then found that the medical examinations conducted at

19

Polinsky are more like the examinations conducted in Greene than those conducted in

20

Wallis. Id. at 15. As a result, the Court found that the Plaintiffs’ constitutional rights

21

were implicated by Mrs. Mann’s exclusion from the Polinsky examinations, but not by

22

the County’s failure to obtain judicial authorization specific to the Mann children or

23

the Manns’ consent prior to conducting the examinations. Id. This motion followed.

24

LEGAL STANDARD

6
7
8
9
10
11
12
13
14
15
16

25

A district court, in its discretion, may certify an issue for interlocutory appeal

26

under 28 U.S.C. § 1292(b) if (1) there is a “controlling question of law,” (2) on which

27

there is “substantial ground for difference of opinion,” and (3) “an immediate appeal

28

... may materially advance the ultimate termination of the litigation ...” See In re
3

3:11-cv-0708-GPC-BGS

1

Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982). All three criteria must be

2

met in order for a district court to certify an issue for interlocutory appeal. Couch v.

3

Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). Section 1292(b) is to be used “only

4

in exceptional situations in which allowing an interlocutory appeal would avoid

5

protracted and expensive litigation.” Id. at 1026 (citing Coopers & Lybrand v. Livesay,

6

437 U.S. 463, 475 (1978) (holding that “exceptional circumstances [must] justify a

7

departure from the basic policy of postponing appellate review until after the entry of

8

a final judgment”)); see also James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6

9

(9th Cir. 2002) (noting that § 1292(b) is available only “[i]n rare circumstances”).
DISCUSSION

10
11

Plaintiffs seek permission to appeal the Court’s ruling that their constitutional

12

rights were not implicated by the County’s failure to obtain judicial authorization

13

specific to the Mann children, or the Mann parents’ consent, prior to conducting the

14

medical examinations of the children. Pl. Mot. 3. Plaintiffs argue that the issue involves

15

a controlling issue of law, there is substantial ground for difference of opinion, and an

16

immediate appeal may materially advance the ultimate termination of the litigation. Pl.

17

Mot. 3–8.

18

First, the Court agrees with Plaintiffs that this is an issue where there is a

19

“substantial ground for difference of opinion.” Courts traditionally will find that a

20

substantial ground for difference of opinion exists where “the circuits are in dispute on

21

the question and the court of appeals of the circuit has not spoken on the point, if

22

complicated questions arise under foreign law, or if novel and difficult questions of

23

first impression are presented.” Couch, 611 F.3d at 633 (citing 3 Federal Procedure,

24

Lawyers Edition § 3:212 (2010) (footnotes omitted) (internal quotation marks

25

omitted)). However, “just because a court is the first to rule on a particular question or

26

just because counsel contends that one precedent rather than another is controlling does

27

not mean there is such a substantial difference of opinion as will support an

28

interlocutory appeal.” Id. (citing 3 Federal Procedure, Lawyers Edition § 3:212 (2010)
4

3:11-cv-0708-GPC-BGS

1

(footnotes omitted) (internal quotation marks omitted)). Neither a party’s strong

2

disagreement with the Court’s ruling nor the fact that settled law might be applied

3

differently establish a substantial ground for difference of opinion. Id.

4

Plaintiffs have not presented evidence of a circuit split. However, as the Court

5

discussed in the summary judgment order, the Ninth Circuit has not squarely addressed

6

the question of whether either judicial authorization specific to the child or parental

7

consent are necessary prior to conducting medical examinations with a lower level of

8

intrusiveness than the medical examinations conducted in Wallis. See 2nd Summ. J.

9

Order 13–14. That question thus constituted a “novel and difficult issue of first

10

impression,” regarding which courts in this district have disagreed. See id. at 15 fn.7

11

(discussing Swartwood v. County of San Diego, 84 F. Supp. 3d 1093 (S.D. Cal. 2014)).

12

Thus, the Court agrees with Plaintiffs that the issue they wish to certify for appeal

13

presents a “substantial ground for difference of opinion.”

14

However, Plaintiffs have not met the first and third criteria under § 1292(b).

15

These criteria substantially overlap: In order for an issue to be “controlling,” it must

16

be shown resolution of the issue on appeal could materially affect the outcome of

17

litigation in the district court. In re Cement Antitrust Litig., 673 F.2d at 1026 (citing

18

United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966) (per curiam)).

19

Similarly, § 1292(b)’s third prong asks whether certifying the issue for interlocutory

20

appeal “may materially advance the ultimate termination of the litigation.” As Wright,

21

Miller & Cooper have written,

22
23
24
25
26
27
28

The requirement that an appeal may materially advance the ultimate
termination of the litigation is closely tied to the requirement that the
order involve a controlling question of law. . . . [Q]uestions found to be
controlling commonly involve the possibility of avoiding trial
proceedings, or at least curtailing and simplifying pretrial or trial. . . . If
present appeal promises to advance the time for trial or to shorten the time
required for trial, appeal is appropriate. Immediate appeal may be found
inappropriate if there is a good prospect that the certified question may be
mooted by further proceedings [or] if the character of the trial is not likely
to be affected . . . .
§ 3930 Criteria for Permissive Appeal, 16 Fed. Prac. & Proc. Juris. § 3930 (3d ed.)
(footnotes omitted).
5

3:11-cv-0708-GPC-BGS

1

These criteria do not favor Plaintiffs. Regardless of whether the Ninth Circuit

2

reverses the Court’s decision on the judicial authorization/parental consent issue, the

3

Court has also found that Plaintiffs’ constitutional rights were implicated by the

4

exclusion of Mrs. Mann from the children’s medical examinations, and that a jury must

5

now decide whether the other Monell prongs are satisfied. 2nd Summ. J. Order 24.

6

Moreover, the case is also going to trial regarding the actions of Defendant social

7

workers Hernandez and Quadros during the child removal proceedings. See 1st Summ.

8

J. Order 17–22 (finding that Plaintiffs had a clearly established constitutional right to

9

be free from judicial deception in obtaining a protective custody warrant from a

10

juvenile court). Thus, an appeal on the issue in question would not present the

11

possibility of avoiding trial proceedings, curtailing or simplifying pretrial or trial, or

12

affecting the character of the trial.

13

Furthermore, there is a substantial likelihood that here, a certified interlocutory

14

appeal would be rendered moot by final judgment. By default, proceedings in district

15

court are not stayed by the grant of an interlocutory appeal. 28 U.S.C. § 1292(b).

16

Moreover, “on entry of final judgment, the court of appeals has discretion to dismiss

17

an interlocutory appeal previously permitted, and is likely to do so unless there is

18

strong reason to believe that the issues cannot be resolved as efficiently on appeal from

19

the final judgment.” § 3929 Permissive Interlocutory Appeals—Section 1292(b), 16

20

Fed. Prac. & Proc. Juris. § 3929.

21

Here, this case has moved past the summary judgment phase and is set for an

22

imminent trial. Hence, a final judgment would almost certainly be rendered before the

23

court of appeals would decide an interlocutory appeal, which would produce a more

24

robust record for the appellate court to consider upon appeal than the record that would

25

be before the appellate court on an interlocutory appeal. This renders it likely that any

26

pending interlocutory appeal would be dismissed as moot once final judgment is

27

rendered. Permitting an interlocutory appeal thus risks the unnecessary expenditure of

28

judicial resources, while denial only briefly delays Plaintiffs’ opportunity to challenge
6

3:11-cv-0708-GPC-BGS

1

the Court’s ruling after final judgment has been entered.

2

Thus, because the resolution of the medical examination issue would not

3

materially advance the ultimate termination of the litigation, and because the case is

4

shortly to be tried, likely resulting in a final judgment that would render an

5

interlocutory appeal moot, the Court DENIES Plaintiffs’ motion.
CONCLUSION

6
7
8
9

For the foregoing reasons, Plaintiffs’ motion for certification of petition for
interlocutory appeal, ECF No. 214, is DENIED.
IT IS SO ORDERED.

10
11

DATED: January 21, 2016

12
13

HON. GONZALO P. CURIEL
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7

3:11-cv-0708-GPC-BGS