Garcia et al v. County of San Diego et al

Filing 180

ORDER Denying 172 Defendants Caitlin McCann, Gloria Escamilla-Huidor, and Jesus Salcido's Motion for Reconsideration of the Court's Denial of Qualified Immunity. Signed by Judge Janis L. Sammartino on 12/5/2018. (acc)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 9 10 SHEILA GARCIA, CASSANDRA GARCIA, C.N.G., a minor, and C.J.G., a minor, by and through their Guardian Ad Litem, DONALD WALKER Case No.: 15-CV-189 JLS (NLS) ORDER DENYING DEFENDANTS CAITLIN MCCANN, GLORIA ESCAMILLA-HUIDOR, AND JESUS SALCIDO’S MOTION FOR RECONSIDERATION OF THE COURT’S DENIAL OF QUALIFIED IMMUNITY Plaintiffs, 11 12 v. 13 COUNTY OF SAN DIEGO, SAN DIEGO HEALTH AND HUMAN SERVICES AGENCY, POLINKSY CHILDREN’S CENTER, CAITLIN MCCANN, GLORIA ESCAMILLAHUIDOR, SRISUDA WALSH, JESUS SALCIDO, MARTHA PALAFOX, LAURA QUINTANILLA, and Does 1 through 10, inclusive, 14 15 16 17 18 19 (ECF No. 172) Defendants. 20 21 Presently before the Court is Defendants Caitlin McCann, Gloria Escamilla-Huidor, 22 and Jesus Salcido’s (the “Moving Defendants”) Motion for Reconsideration of the Court’s 23 Denial of Qualified Immunity (“Mot.,” ECF No. 172). Also before the Court are Plaintiffs 24 Sheila Garcia, Cassandra Garcia, C.N.G., and C.J.G.’s Opposition to (“Opp’n,” ECF No. 25 175) and the Moving Defendants’ Reply in Support of (“Reply,” ECF No. 177) the Motion. 26 The Court vacated the hearing on the Motion and took the matter under submission without 27 oral argument. ECF No. 176. Having considered the Parties’ arguments, the facts, and the 28 law, the Court DENIES the Moving Defendants’ Motion. 1 15-CV-189 JLS (NLS) 1 BACKGROUND 2 The Court incorporates by reference the factual background as laid out in the 3 underlying Order: (1) Denying Plaintiffs’ Motion for Summary Judgment; (2) Granting in 4 Part and Denying in Part County of San Diego’s Motion for Summary Judgment; and 5 (3) Granting in Part and Denying in Part Individual Defendants’ Motion for Summary 6 Judgment. See ECF No. 167 at 2–7. 7 Procedurally, on June 18, 2018, the Court ruled as to Defendants McCann and 8 Huidor that, “[b]ecause the Court has determined the issue of whether the social workers’ 9 beliefs and actions were reasonable involves disputed issues of material fact, the Court 10 does not make a qualified immunity determination here.” Id. at 16 n.9 (citing Wilkins v. 11 City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003); Santos v. Gates, 287 F.3d 846, 855 12 n.12 (9th Cir. 2002)). As for Defendant Salcido, the Court similarly concluded that, 13 “[b]ecause the issue of whether Salcido’s conduct arose to the level of a constitutional 14 violation is a question for the jury, an analysis of qualified immunity is premature.” Id. at 15 23 n.11. The Moving Defendants filed the instant Motion for reconsideration of the Court’s 16 denial of qualified immunity on July 16, 2018. See generally ECF No. 172. 17 LEGAL STANDARD 18 Federal Rule of Civil Procedure 59(e) permits a party to move a court to alter or 19 amend its judgment. In the Southern District of California, a party may apply for 20 reconsideration “[w]henever any motion or any application or petition for any order or 21 other relief has been made to any judge and has been refused in whole or in part.” Civ. 22 L.R. 7.1(i)(1). The moving party must provide an affidavit setting forth, inter alia, new or 23 different facts and circumstances which previously did not exist. Id. 24 “A district court may grant a Rule 59(e) motion if it ‘is presented with newly 25 discovered evidence, committed clear error, or if there is an intervening change in the 26 controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation 27 marks omitted) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en 28 banc)) (emphasis in original). Reconsideration is an “extraordinary remedy, to be used 2 15-CV-189 JLS (NLS) 1 sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., 2 Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Ultimately, whether to grant 3 or deny a motion for reconsideration is in the “sound discretion” of the district court. 4 Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters., 229 5 F.3d at 883). A party may not raise new arguments or present new evidence if it could 6 have reasonably raised them earlier. Kona Enters., 229 F.3d at 890 (citing 389 Orange St. 7 Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). 8 ANALYSIS 9 “The doctrine of qualified immunity protects government officials from liability for 10 civil damages insofar as their conduct does not violate clearly established statutory or 11 constitutional rights of which a reasonable person would have known.” Demaree v. 12 Pederson, 887 F.3d 870, 878 (9th Cir. 2018) (quoting Pearson v. Callahan, 555 U.S. 223, 13 231 (2009)). Courts “use a two-step test to evaluate claims of qualified immunity, under 14 which summary judgment is improper if, resolving all disputes of fact and credibility in 15 favor of the party asserting the injury, (1) the facts adduced show that the officer’s conduct 16 violated a constitutional right, and (2) that right was clearly established at the time of the 17 violation.” Demaree, 887 F.3d at 878 (quoting Kirkpatrick v. Cnty. of Washoe, 843 F.3d 18 784, 788 (9th Cir. 2016) (en banc)) (internal quotation marks omitted). 19 Here, the Moving Defendants contend that the Court committed clear error, thus 20 allowing reconsideration under Rule 59(e), by deferring the ruling on qualified immunity 21 for Plaintiff’s Section 1983 claims due to the presence of disputed issues of material fact. 22 See, e.g., Mot. at 1–3. The Court disagrees. The Ninth Circuit has made clear that “[c]ourts 23 should decide issues of qualified immunity as early in the proceedings as possible, but 24 when the answer depends on genuinely disputed issues of material fact, the court must 25 submit the fact-related issues to the jury.” Ortega v. O’Connor, 146 F.3d 1149, 1154 (9th 26 Cir. 1998) (emphasis added) (citing Liston v. Cnty. of Riverside, 120 F.3d 965, 975 (9th 27 Cir. 1997); Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993)). Such is the 28 case here, where the Court determined that genuinely disputed issues of material fact 3 15-CV-189 JLS (NLS) 1 remained as to whether Defendants McCann and Huidor had reasonable cause to believe 2 that any of the Garcia children were in imminent danger of serious bodily injury and that 3 the scope of the intrusion was reasonable necessary to avert that injury. See ECF No. 167 4 at 9–16. As to Defendant Salcido, the Court concluded that genuinely disputed issues of 5 material fact remained as to whether he “acted in a manner so intentional and offensive as 6 to shock the conscience.” Id. at 23 & n.11. 7 The Court therefore DENIES the Moving Defendant’s request for reconsideration. 8 Even if the Court were to reconsider its prior Order, however, the Court would conclude 9 on the current record and the state of the law as of January 28, 2013, that the Moving 10 Defendants are not entitled to qualified immunity, for the reasons set forth below. 11 I. Defendants McCann and Huidor 12 Two claims against Defendants McCann and Huidor arising under Section 1983 are 13 at issue for purposes of this Motion: (1) violation of Plaintiffs’ Fourth and Fourteenth 14 Amendment rights for removing the Garcia children without a warrant or exigency, and 15 (2) violation of Sheila and Cassandra’s Fourteenth Amendment rights to make medical 16 treatment decisions for Cassandra. The Moving Defendants argue that, “[e]ven assuming 17 that the facts, taken in the light most favorable to Plaintiffs, allege a violation of [their] 18 rights, Plaintiffs’ rights were not clearly established.” Mot. at 7; see also id. at 15. The 19 Moving Defendants therefore appear to concede that, at least as to Defendants McCann 20 and Huidor, when the facts are viewed most favorable to Plaintiffs, Plaintiffs have alleged 21 a violation of their constitutional rights.1 22 23 24 25 26 27 28 1 On this record, the Court would have to agree that, taking the facts most favorably to Plaintiffs, Plaintiffs have adequately shown that Defendants McCann and Huidor violated Plaintiffs’ constitutional rights. As to the claim concerning the removal of the Garcia children, resolving all factual disputes in favor of Plaintiffs, on January 22, 2013, Cassandra reported a single, mistaken sexual assault that occurred on approximately October 17, 2012, when her father allegedly mistook her for her mother, groped Cassandra in a dark room, and took a photograph. Pls.’ Ex. 10, ECF No. 125-9, at 82:12–24, 101:9–20, 102:19–23, 117:11–21, 132:8–25, 139:8–19, 151:8–13; see also Decl. of Cassandra Garcia, ECF No. 148-3, ¶¶ 5–6. The referral provided for an evaluation within ten days, see Pls.’ Ex. 37A, ECF No. 125-36, the least emergent response time in assigning a case. Pls.’ Ex. 26, ECF No. 125-25, at 200:16–19. Although assigned to the case on January 23, 2013, id. at 144:19–21, Defendant McCann elected to take no action 4 15-CV-189 JLS (NLS) 1 The issue, therefore, is whether the rights that Plaintiffs claim Defendants McCann 2 and Huidor violated were clearly established as of January 28, 2013, when the alleged 3 constitutional violations occurred. The Court concludes that they were. 4 A. 5 The Moving Defendants first argue that Defendants McCann and Huidor are entitled 6 to qualified immunity because it was not clearly established that removing the Garcia 7 children without a warrant was unlawful on the facts of this case. See Mot. at 7–10. Based 8 on precedent from the United States Supreme Court, the Ninth Circuit has long recognized 9 that “[g]overnment officials are required to obtain prior judicial authorization before 10 intruding on a parent’s custody of her child unless they possess information at the time of 11 the seizure that establishes ‘reasonable cause to believe that the child is in imminent danger 12 of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert Removal of the Garcia Children 13 14 15 16 17 18 19 20 until January 28, 2013, five days later. Id. at 169:19–23. Defendant Huidor was Defendant McCann’s supervisor. Id. at 244:14–18. During Defendant McCann’s investigation, there were no allegations of other sexual assaults involving Cassandra, no allegations concerning any sexual assaults related to the other Garcia children, and no indications of any physical abuse of any of the Garcia children. See Pls.’ Ex. 7 at 209:2–210:5, 218:20–6; Pls.’ Ex. 26 at 269:7–14. Under these facts, there was no exigency allowing for warrantless removal of the Garcia children. See, e.g., Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1294–96 (9th Cir. 2007) (holding that delayed warrantless removal of children from home on allegations of insufficient medical treatment and unsafe home conditions was a constitutional violation); Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1106–09 (9th Cir. 2001) (reversing district court and concluding that reasonably jury could conclude that constitutional rights were violated where social worker delayed in removing fourteen-year-old from custody of her parents without a warrant on allegations that stepfather had been sexually molesting the girl every other night for several months). 21 22 23 24 25 26 27 28 Similarly, as to the claim concerning Sheila’s and Cassandra’s rights to make medical treatment decisions, Plaintiffs have alleged (and introduced evidence to support) that Defendants McCann and Huidor disregarded the decision of Sheila and Cassandra—made on the advice of Cassandra’s physician, Dr. Juboori—that Cassandra be discharged on January 28, 2013, to Project Oz for intensive inpatient therapeutic treatment, instead taking Cassandra to PCC, which was primarily designed as a shelter as opposed to a treatment center. See Pls.’ Ex. 15 at 77:18–25; Pls.’ Ex. 17 at 40:14–24; Pls.’ Ex. 25 at 124:17–125:25. There is no indication that Sheila was abusing or neglecting Cassandra or that Sheila’s decision to have Cassandra treated at Project Oz was not in Cassandra’s the best interest. Resolving all factual disputes in favor of Plaintiffs, Defendants McCann and Huidor therefore violated Sheila’s and Cassandra’s rights to have Sheila make medical treatment decisions for her daughter. See, e.g., Wallis v. Spencer, 202 F.3d 1126, 1141–42 (9th Cir. 2000) (concluding genuine issues of material fact existed as to constitutional violation where the plaintiffs alleged that, after removal from their parents, children were subjected to physical examinations without the consent or presence of their parents). 5 15-CV-189 JLS (NLS) 1 that specific injury.’” Mabe, 237 F.3d at 1106–07 (quoting Wallis, 202 F.3d at 1138 2 (citing Mincey v. Arizona, 437 U.S. 385, 393 (1978))). 3 Not surprisingly, the Moving Defendants make much of White v. Pauly, 580 U.S. 4 ___, 137 S. Ct. 548 (2017), in which the United States Supreme Court “reiterate[d] the 5 longstanding principle that ‘clearly established law’ should not be defined ‘at a high level 6 of generality,’” id. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)), and 7 “must be ‘particularized’ to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 8 U.S. 635, 640 (1987)); see also Mot. at 10–11. The Supreme Court, however, “do[es] not 9 require a case directly on point.” White, 137 S. Ct. at 551 (quoting Mullenix v. Luna, 577 10 U.S. at ___, 136 S. Ct. 305, 308 (2015)) (internal quotation marks omitted). Instead, 11 “existing precedent must have placed the statutory or constitutional question beyond 12 debate.” White, 137 S. Ct. at 551 (quoting Mullenix, 136 S. Ct. at 308) (internal quotation 13 marks omitted). 14 The Moving Defendants argue that Defendants McCann and Huidor are entitled to 15 qualified immunity because “[n]o Ninth Circuit or Supreme Court decision has held social 16 workers liable for removing children where a parent in the house was accused of becoming 17 intoxicated and sexually abusing a child in the home, and where it would take up to 72 18 hours to get a warrant.” Mot. at 11. The Ninth Circuit has repeatedly made clear, however, 19 that there is no exigency where the alleged abuse is non-recurring and the social worker 20 fails to investigate and remove the children within the time required to secure a warrant. 21 In Mabe, for example, the Ninth Circuit concluded that there was no exigency where the 22 social worker opted to leave the residence after interviewing the child about the alleged 23 molestation, “the improper touching had not been recurring,” and it was likely that the 24 social worker could secure a warrant before any further molestation could occur. Id. at 25 1008. Also militating against a finding of exigency is the fact that a risk is too “remote” to 26 establish reasonable cause to believe that the children were in immediate danger, such as 27 where children were allegedly locked up in their parents’ workplace during the day, but 28 “[t]he chance of accidental injury or of a fire breaking out . . . during the few hours that it 6 15-CV-189 JLS (NLS) 1 would take [the social worker] to obtain a warrant were very low.” Rogers, 487 F.3d at 2 1295; see also Malik v. Arapahoe Cnty. Dep’t of Soc. Servs., 191 F.3d 1306, 1312, 1315 3 (10th Cir. 1999) (affirming that law was clearly established that no exigency existed where 4 four-year-old child was removed after eighteen days on basis of ten photographs of the 5 partially nude girl taken five months previously by an artist uncle who resided out of state). 6 This case is not distinguishable from the Ninth Circuit’s decisions in Rogers and 7 Mabe or the Tenth Circuit’s decision in Malik. With only one alleged occurrence of sexual 8 molestation having occurred over three months previously and with Defendant McCann 9 having declined to assess an exigent risk between January 23 and 28, 2013—longer than it 10 would have taken to secure a warrant—no reasonable social worker would have believed 11 that Clarissa or her two sisters were in imminent danger of serious bodily injury on 12 January 28, 2013, when the Garcia children were removed from their home without a 13 warrant. Accordingly, on the facts as presented by Plaintiffs, Defendants McCann and 14 Huidor would not be entitled to qualified immunity under the law as it was clearly 15 established on January 28, 2013.2 16 B. 17 The Moving Defendants also contend that Defendants McCann and Huidor are 18 entitled to qualified immunity because no precedent has found a social worker liable for 19 placing a child in protective custody rather than in a psychiatric placement, meaning that 20 the constitutional right at issue was not “clearly established.” See Mot. at 14–15. Medical Treatment Decisions for Cassandra 21 The Ninth Circuit has recognized that “[p]arents and children have a well-elaborated 22 constitutional right to live together without governmental interference.” Rogers, 487 F.3d 23 at 1294 (quoting Wallis, 202 F.3d at 1136); see also Wallis, 202 F.3d at 1136 (citing 24 Santosky v. Kramer, 455 U.S. 745, 753 (1982); Stanley v. Illinois, 405 U.S. 645 25 26 27 28 2 The Ninth Circuit has since made clear in Demaree that, even following White, the Ninth Circuit “ha[s] here a very specific line of cases, culminating in Rogers and Mabe, which identified and applied law clearly establishing that children may not be removed from their homes without a court order or warrant absent cogent, fact-focused reasonable cause to believe the children would be imminently subject to physical injury or physical sexual abuse.” Demaree, 887 F.3d at 884. 7 15-CV-189 JLS (NLS) 1 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 2 U.S. 390 (1923)). “That right is an essential liberty interest protected by the Fourteenth 3 Amendment’s guarantee that parents and children will not be separated by the state without 4 due process of law except in an emergency.” Wallis, 202 F.3d at 1136–37 (citing 5 Stanley, 405 U.S. at 651; Campbell v. Burt, 141 F.3d 927 (9th Cir. 1998); Ram v. Rubin, 118 6 F.3d 1306, 1310 (9th Cir. 1997); Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir. 7 1991); Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1989)). “The right to family 8 association includes the right of parents to make important medical decisions for their 9 children, and of children to have those decisions made by their parents rather than the 10 state.” Wallis, 202 F.3d at 1141 (citing Parham v. J.R., 442 U.S. 584, 602 (1979) (holding 11 that it is in the interest of both parents and children that parents have ultimate authority to 12 make medical decisions for their children unless a “neutral fact finder” determines, through 13 due process hearing, that parent is not acting in child’s best interests)). 14 As can be seen from the above precedent, it is clear that a parent’s right to make 15 medical decisions for his or her child—and the child’s corresponding right to have his or 16 her parent make such decisions on the child’s behalf—is part and parcel of the right of 17 parent and child not to be separated without a warrant in the absence of exigent 18 circumstances. It naturally follows that, if a parent is unlawfully deprived of his or her 19 child, the parent is also deprived of the right to make medical treatment decisions for his 20 or her child. See, e.g., Robinson v. Tripler Army Med. Ctr., 683 F. Supp. 2d 1097, 1107 21 (D. Haw. 2009) (“[Defendant]’s act of taking legal custody of [the child] away from 22 Plaintiffs had the effect of terminating Plaintiffs’ ability to make such [medical] decisions 23 on [the child]’s behalf.”). 24 The Moving Defendants again urge the Court to define the constitutional right at 25 issue too narrowly, arguing that “[n]o prior precedent has held a social worker liable for 26 placing a child in protective custody rather than in an outpatient psychiatric program when 27 that child was being discharged from a psychiatric hospital.” Mot. at 15. Although cases 28 within the Ninth Circuit generally arise in the context of investigatory examinations 8 15-CV-189 JLS (NLS) 1 conducted without the consent or presence of parents in response to allegations of sexual 2 molestation or abuse, see, e.g., Wallis, 202 F.3d at 1141–42, the fact situation presented 3 here is even more extreme: after being removed from her parents without reasonable cause, 4 Cassandra was deprived for a period of many months of the benefit of the medical treatment 5 her mother (and her physician and herself) deemed advisable, i.e., psychiatric outpatient 6 treatment at Project Oz, instead sending Cassandra to PCC. Accordingly, resolving all 7 factual disputes in favor of Plaintiffs, neither Defendant McCann nor Defendant Huidor is 8 entitled to qualified immunity. 9 II. Defendant Salcido 10 The Moving Defendants claim that Plaintiffs’ allegations fail to satisfy either prong 11 of the qualified immunity test as to Defendant Salcido. See Mot. at 16. First, the Moving 12 Defendants contend that, even viewing the facts in a light most favorable to Plaintiffs, 13 “none of [Defendant Salcido’s] alleged acts and omissions caused a violation of 14 Cassandra’s right to ‘reasonable safety and minimally adequate care’” because “[n]othing 15 that Salcido was alleged to have done caused Cassandra to be injured at PCC.” Id. at 17. 16 Second, the Moving Defendants claim that Cassandra’s constitutional rights, even if 17 violated, were not clearly established because “no prior precedent has held a social worker 18 liable for violating a minor’s right to ‘reasonable safety and minimally adequate care’ in 19 circumstances even remotely similar to those here.” Id. at 17–18. 20 Again, the Court disagrees. Viewing the facts here most favorably to Plaintiffs, the 21 Garcia case was transferred to Defendant Salcido in early February 2013. See Pls.’ Ex. 32, 22 ECF No. 125-31, at 75:18–23. Defendant Salcido was responsible for the Garcia children 23 until their case was transferred to Teresa Helms on April 30, 2013. See Pls.’ Ex. 37C, ECF 24 No. 125-36, at 68. During the approximately three months that Defendant Salcido was the 25 Garcia family’s caseworker, he allegedly did nothing to attend to Cassandra’s psychiatric 26 needs, which were exacerbated by her continued return to PCC. See generally Pls.’ MSJ, 27 ECF No. 113-1, at 12–13. Although Sheila requested that Cassandra be allowed to 28 continue seeing her psychiatrist, Dr. Rashidi, see Pls.’ Ex. 37C at 23, Cassandra allegedly 9 15-CV-189 JLS (NLS) 1 received no mental health services whatsoever between February 15, and March 22, 2013. 2 See Opp’n at 13. 3 During this period, Cassandra made several suicide attempts and was psychiatrically 4 hospitalized three times for suicidal ideations, see Pls.’ Ex 37C at 39; Pls.’ Exs. 43R–43T, 5 ECF Nos. 125-42 at 49–67, reporting “increasing depression” due to removal from her 6 parents’ custody. See Pls.’ Ex. 43R. Indeed, Cassandra even claimed that many of her 7 suicide threats were made to “prove a point” to Defendant Salcido. See Pls.’ Ex. 43T at 3. 8 Apparently that “point” was ignored, as Defendant Salcido did not visit Cassandra and 9 often could not be reached to discuss her care during this time. See Pls.’ MSJ at 12 (citing 10 Pls.’ Ex. 1, ECF No. 125, at 147:13–24; Pls.’ Ex. 2, 125-1, at 115:19–116:3; Pls.’ Ex. 32 11 at 253:2–21, 262:18–23; Pls.’ Ex. 37C at 34; Pls.’ Ex. 43S at 2). Although Cassandra’s 12 physicians urged Defendant Salcido that Cassandra be provided a higher level of care, she 13 was routinely discharged back to PCC. See Opp’n at 13 (citing Pls.’ Ex. 28, 125-27, at 14 84:1–15; Pls.’ Ex. 32 at 306:2–15; Pls.’ Ex. 37C at 39, 43, 50; Pls.’ Ex. 43U, ECF No. 125- 15 42 at 68–69; Pls.’ Ex. 44B, ECF No. 125-43 at 8–13). 16 After being discharged to PCC on March 22, 2013, Cassandra ran away (or went 17 “AWOL”) on March 24, 2013. See Pls.’ Ex. 37C at 39, 42; Pls.’ Exs. 40H & 40I, ECF No. 18 125-40. Following psychiatric readmission to Rady Children’s Hospital on March 27, 19 2013, Cassandra informed her physician that “she is ‘not safe . . . [she] know[s] that [she] 20 will attempt to hurt [her]self if [she] leave[s] here,’” Pls.’ Ex. 44B at 25, and that she 21 intended to go AWOL if returned to PCC. See Pls.’ MSJ at 13 (citing Pls.’ Ex. 44C, ECF 22 No. 125-43 at 14–15). Nonetheless, Cassandra was again discharged to PCC. Pls.’ Ex. 23 44D, ECF No. 125-43 at 16–32, at 119. After only a few hours at PCC, she went AWOL 24 with a couple of other girls from PCC. Id. The girls ended up in an apartment with two 25 men, who repeatedly raped and beat Cassandra. Id.; see also id. at 120–24. 26 The Ninth Circuit “held in 1992 that ‘[o]nce the state assumes wardship of a child, 27 the state owes the child, as part of that person’s protected liberty interest, reasonable safety 28 and minimally adequate care and treatment appropriate to the age and circumstances of the 10 15-CV-189 JLS (NLS) 1 child.’” Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 846 (9th Cir. 2010) (quoting 2 Lipscomb ex rel. DeFehr v. Simmons, 962 F.2d 1374, 1379 (9th Cir. 1992) (en banc)). “To 3 violate due process, state officials must act with such deliberate indifference to the liberty 4 interest that their actions ‘shock the conscience.’” Tamas, 630 F.3d at 844 (quoting Brittain 5 v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006)). “Conduct that ‘shocks the conscience’ is 6 ‘deliberate indifference to a known or so obvious as to imply knowledge of, 7 danger.’” Tamas, 630 F.3d at 844 (quoting Kennedy v. City of Ridgefield, 439 F.3d 1055, 8 1064 (9th Cir. 2006)). “[T]he deliberate indifference standard . . . requires a showing of 9 an objectively substantial risk of harm and a showing that the officials were subjectively 10 aware of facts from which an inference could be drawn that a substantial risk of serious 11 harm existed and that either the official actually drew that inference or that a reasonable 12 official would have been compelled to draw that inference.” Tamas, 630 F.3d at 844 (citing 13 Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 2010); Conn v. City of 14 Reno, 591 F.3d 1081, 1095–96 (9th Cir. 2010); Arledge v. Franklin Cnty., Ohio, 509 F.3d 15 258, 263 (6th Cir. 2007); James ex rel. James v. Friend, 458 F.3d 726, 730 (8th Cir. 16 2006); Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 17 F.3d 872, 881 (5th Cir. 2004)). “[T]he subjective component may be inferred ‘from the 18 fact that the risk of harm is obvious.’” Tamas, 630 F.3d at 844 (citing Arledge, 509 F.3d 19 at 263; Hernandez, 380 F.3d at 881). The Ninth Circuit has cautioned that “the duty of 20 guarding . . . safety [of wards of the state] . . . is the quintessential responsibility of the 21 social workers assigned to safeguard the well-being of this helpless and vulnerable 22 population,” and those social workers “cannot escape liability by shifting the onus onto the 23 wards to request removal” from an inadequate environment. Id. at 843. 24 In Henry A. v. Willden, 678 F.3d 991 (9th Cir. 2012), for example, the Ninth Circuit 25 reversed the district court’s dismissal of claims against individual defendants on grounds 26 of qualified immunity, finding that the plaintiffs had alleged violations of their clearly 27 established constitutional rights. Id. at 1001. In Henry A., the plaintiffs claimed that the 28 defendant caseworkers “fail[ed] to provide foster children with necessary medical care.” 11 15-CV-189 JLS (NLS) 1 Id. at 996–97. For example, “Henry A. was forced to change treatment providers more 2 than ten times, but his medical records were not transferred properly,” resulting in Henry 3 being “given a dangerous combination of psychotropic medications and [being] 4 hospitalized in an intensive care unit for two weeks, on the brink of organ failure.” Id. at 5 997. Similarly, “[w]hen Jonathan D. became seriously ill with an impacted colon, the 6 County failed to approve a colonoscopy or other treatment measures, despite repeated 7 requests from Jonathan’s doctor and his foster parent,” forcing his physician to wait until 8 his “condition became life-threatening, justifying emergency surgery without the County’s 9 permission,” by which point “Jonathan had been in severe pain for months.” Id. 10 The Ninth Circuit concluded that “the district court’s qualified immunity analysis 11 was too narrow,” because it “looked at Plaintiffs’ detailed factual allegations and 12 essentially determined that Defendants were entitled to qualified immunity because the 13 ‘very action[s] in question’ had not ‘previously been held unlawful.’” Id. at 1000. Instead, 14 the Ninth Circuit held, “the district court should have (1) determined the contours of a 15 foster child’s clearly established rights at the time of the challenged conduct under the 16 ‘special relationship’ doctrine of substantive due process, and (2) examined whether a 17 reasonable official would have understood that the specific conduct alleged by Plaintiffs 18 violated those rights.” Id. (citing al-Kidd, 563 U.S. at 741). The Ninth Circuit reasoned 19 that “[i]t is clearly established that ‘when the State takes a person into its custody and holds 20 him there against his will, the Constitution imposes upon it a corresponding duty to assume 21 some responsibility for his safety and general well-being,” and that failure “to provide for 22 his basic human needs,” including “medical care[] and reasonable safety[,] . . . transgresses 23 the substantive limits on state action set by . . . the Due Process clause.” Henry A., 678 24 F.3d at 1000 (citing DeShaney v. Winnebago Cnty. Dep’t of Social Servs., 489 U.S. 189, 25 199–200 (1989)). Because these rights “are analogous to those of prisoners, . . . [courts] 26 can also look to [the Ninth Circuit’s] prisoner cases to further define what constitutes a 27 ‘serious medical need.’” Henry A., 678 F.3d at 1001 (citing Tamas, 630 F.3d at 844–45). 28 Under that line of cases, “ignoring the instructions of a treating physician . . . can amount 12 15-CV-189 JLS (NLS) 1 to deliberate indifference to serious medical needs.” Id. (citing Wakefield v. Thompson, 2 177 F.3d 1160, 1164–65 (9th Cir. 1999)). 3 Applying those legal principles to the facts alleged in Henry A., the Ninth Circuit 4 “conclude[d] that a reasonable official would have understood that at least some of the 5 specific conduct alleged by Plaintiffs violated those rights.” Id. For example, “[a] 6 reasonable official would have understood that failing to authorize Jonathan’s medical 7 treatment despite knowledge of his serious illness and repeated requests from his treating 8 physician amounted to deliberate indifference to a serious medical need.” Id. The Ninth 9 Circuit therefore reversed the district court’s dismissal of the plaintiffs’ claims for violation 10 of their right to be free from harm while involuntarily in government custody and their 11 right to medical care, treatment, and services. Id.; see also id. at 998. 12 Henry A. in instructive as to both prongs of the qualified immunity analysis as to 13 Defendant Salcido. Here, resolving all factual disputes in favor of Plaintiffs, Plaintiffs 14 have demonstrated that Defendant Salcido—who, as Cassandra’s caseworker, was charged 15 with providing her with basic medical care and reasonable safety—violated Cassandra’s 16 constitutional rights. As in Henry A., the instructions of the child’s treating physicians 17 went unheeded, and the child failed to receive basic and necessary medical care. The 18 Moving Defendants’ argument that “[n]othing that Salcido was alleged to have done 19 caused Cassandra to be injured at PCC,” see Mot. at 17, is disingenuous: according to 20 Plaintiffs, Defendant Salcido’s failure to provide Cassandra with basic and necessary 21 psychiatric treatment resulted in several suicide attempts and hospitalizations, and even 22 Cassandra’s rape when she was discharged to—and once again escaped from—a facility 23 ill-equipped to handle her fragile, and inadequately treated, mental state. With each 24 additional suicide attempt, psychiatric hospitalization, and escape from PCC, the risk of 25 harm faced by Cassandra in light of her inadequately treated psychiatric conditions 26 became—or should have become—increasingly obvious to Defendant Salcido. Not only 27 would a reasonable officer have recognized the objectively significant risk of harm facing 28 Cassandra, but it is inconceivable, based on the facts as presented by Plaintiffs, that 13 15-CV-189 JLS (NLS) 1 Defendant Salcido did not become subjectively aware of that risk. 2 Plaintiffs’ allegations and their supporting evidence are sufficient to establish that 3 Defendant Salcido violated Cassandra’s constitutional rights. See Henry A., 678 F.3d at 4 998–1001. Consequently, 5 Further, as Tamas and Henry A. make clear, these rights were clearly established in 6 February through April 2013, when the alleged constitutional violations took place. See 7 also Conn v. City of Reno, 591 F.3d 1081, 1102 (9th Cir. 2010), cert. granted, judgment 8 vacated, 563 U.S. 915, opinion reinstated, 658 F.3d 897 (9th Cir. 2011) (finding qualified 9 immunity was not warranted where pretrial detainee threatened suicide en route to prison). 10 Accordingly, even if the Court were to reconsider its prior Order, resolving all factual 11 disputes in favor of Plaintiffs, the Court would determine that Defendant Salcido is not 12 entitled to qualified immunity. See, e.g., A.P. v. Cnty. of Sacramento, No. 2:13-CV-01588- 13 JAM-DB, 2017 WL 1476895, at *5 (E.D. Cal. Apr. 25, 2017) (denying summary judgment 14 as to officials who knew about the child’s serious autism but prohibited his foster parents 15 from using the “sensory diet” prescribed by the child’s occupational therapist and 16 pediatrician because one aspect of the diet violated California law). 17 18 19 20 CONCLUSION In light of the foregoing, the Court DENIES the Moving Defendants’ Motion for Reconsideration (ECF No. 172). IT IS SO ORDERED. 21 22 Dated: December 5, 2018 23 24 25 26 27 28 14 15-CV-189 JLS (NLS)

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