Capp et al v. County of San Diego et al

Filing 18

ORDER granting 5 and 13 Defendants' Motion to Dismiss for Failure to State a Claim. The Court GRANTS Defendants' motions to dismiss. (Doc. Nos. 5, 13.) The Court DISMISSES the complaint WITHOUT PREJUDICE. (Doc. No. 1.) Capp must file an amended complaint, curing the deficiencies noted herein, within fourteen days of this order's issuance. Failure to do so will result in dismissal of this action with prejudice. Signed by Judge Anthony J. Battaglia on 4/19/2017. (acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 JONATHAN C. CAPP, On Behalf Of Himself; N.C., A Minor By And Through Their Guardian Ad Litem; J.C., A Minor By And Through Their Guardian Ad Litem, 17 18 19 20 21 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM Plaintiffs, 15 16 Case No.: 16-CV-2870-AJB-MDD (Doc. Nos. 5, 13) v. COUNTY OF SAN DIEGO; SAN DIEGO HEALTH AND HUMAN SERVICES AGENCY; KATHY JACKSON; BOB PROKESCH; JOHANNA FIRTH; DOES 1 to 50, Inclusive, Defendants. 22 23 Presently before the Court are two motions to dismiss for failure to state a claim, the 24 first filed by Defendants Johanna Firth (“Firth”), Bob Prokesch (“Prokesch”), and the 25 County of San Diego (“County”), and the second filed by Defendant Kathy Jackson 26 (“Jackson”) (collectively, “Defendants”). (Doc. Nos. 5, 13.) Plaintiffs Jonathan C. Capp 27 (“Capp”), N.C., and J.C. (collectively, “Plaintiffs”) oppose the motions. (Doc. Nos. 10, 28 16.) Having reviewed the parties’ moving papers and controlling legal authority, the Court 1 16-CV-2870-AJB-MDD 1 finds the matter suitable for decision on the papers and without oral argument pursuant to 2 Local Civil Rule 7.1.d.1. Accordingly, the motion hearing date currently set for April 27, 3 2017, at 2:00 p.m. is hereby VACATED. For the reasons set forth below, the Court 4 GRANTS Defendants’ motions. 5 BACKGROUND 6 This dispute arises from allegations that Capp emotionally abused his children, had 7 a substance abuse problem, and drove his car with his children in it while under the 8 influence of alcohol. The County Health and Human Services Agency (“Agency”) received 9 these allegations from an anonymous third party, but Capp suggests his ex-wife’s parents 10 reported these allegations to the County. (Doc. No. 1 ¶¶16–17, 20, 33, 36.) 11 Upon receiving these allegations, the County sent social worker Firth to interview 12 N.C. and J.C. at school without Capp’s consent. (Id. ¶ 18.) Firth also interviewed Capp at 13 his home on August 26, 2015. (Id. ¶¶ 17, 19.) On August 28, 2015, Capp’s ex-wife’s 14 attorney informed Capp that his ex-wife was seeking full custody of N.C. and J.C., and that 15 Firth recommended the ex-wife create a written agreement that she would file an 16 emergency custody order because the children felt unsafe in his care. (Id. ¶¶ 24–25.) Capp’s 17 ex-wife filed an ex parte motion on August 31, 2015, based on Firth’s recommendation, 18 but the family court denied the motion on September 2, 2015, and dismissed her motion to 19 modify custody in her favor. (Id. ¶¶ 27–28; see Doc. No. 1-3.) 20 After receiving the ex parte application, Capp contacted Jackson, an Agency 21 supervisor, who assured Capp that procedures would be followed and the case against him 22 closed. (Doc. No. 1 ¶ 30.) On September 8, 2015, social worker Prokesch interviewed Capp 23 regarding the allegations. (Id. ¶ 32.) 24 During the span of this investigation, N.C. and J.C.’s maternal grandparents kept 25 Capp from seeing N.C. and J.C. and physically prevented him from picking them up from 26 school. (Id. ¶¶ 35, 37.) On September 24, 2015, the family court prohibited the maternal 27 grandparents from seeing the children and nearly revoked the ex-wife’s custody. (Id. ¶¶ 28 39–40.) The family court also confirmed that the Agency determined the emotional abuse 2 16-CV-2870-AJB-MDD 1 allegations against Capp were inconclusive, which Jackson, Prokesch, and Firth had 2 confirmed on September 18, 2015. (Id. ¶¶ 41–42.) On October 15, 2015, Capp received a 3 notification from Firth that the child abuse investigation against him was officially closed, 4 but that he had been subsequently placed on the Child Abuse Central Index (“CACI”).1 (Id. 5 ¶¶ 43–44; Doc. No. 1-6.) 6 Capp called the Agency to protest his CACI listing, and Ana Daugherty 7 (“Daugherty”), a policy analyst with Child Protective Services (“CPS”), informed Capp 8 she was investigating his complaint. (Doc. No. 1 ¶¶ 47, 49.) On October 30, 2015, 9 Daugherty informed Capp that she would recommend he be taken off the CACI. (Id. ¶ 51.) 10 On November 23, 2015, Daugherty told Capp the allegations against him were downgraded 11 to “unfounded” with the exception of the emotional abuse allegation against N.C., which 12 was determined inconclusive. (Id. ¶¶ 52–53; see Doc. No. 1-9.) Daugherty also informed 13 Capp that he was never actually placed on the CACI and that the mistake was due to a 14 clerical error, of which he received written confirmation on February 2, 2016. (Doc. No. 1 15 ¶¶ 54–55.) 16 Plaintiffs instituted this action by filing the operative complaint on November 22, 17 2016, alleging a violation of their First, Fourth, and Fourteenth Amendment rights pursuant 18 to 42 U.S.C. § 1983 against Firth, Prokesch, and Jackson. (Doc. No. 1 ¶¶ 71–77.) Plaintiffs 19 also allege municipal liability pursuant to Monell v. Department of Social Services, 436 20 U.S. 658 (1978), against the County. (Id. ¶¶ 78–83.) Firth, Prokesch, and the County filed 21 a motion to dismiss the complaint for failure to state a claim pursuant to Federal Rule of 22 Civil Procedure 12(b)(6)2 on January 11, 2017. (Doc. No. 5.) On February 16, 2017, 23 24 25 26 27 28 The complaint states Capp “heard nothing from Defendants until around October, 15, 2016 when he received two letters from” the Agency. (Doc. No. 1 ¶ 43 (emphasis added).) However, the letter attached as Exhibit E is dated “10/8/2015.” (Doc. No. 1-6 at 2 (emphasis added).) The Court assumes Capp received the letter in 2015, but this must be clarified in an amended complaint. 2 All references to “Rule” are to the Federal Rules of Civil Procedure. 1 3 16-CV-2870-AJB-MDD 1 Jackson also filed a Rule 12(b)(6) motion. (Doc. No. 13.) The motions have been fully 2 briefed. (Doc. Nos. 10, 12, 16, 17.) This order follows. 3 LEGAL STANDARD 4 A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. 5 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and 6 plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. 7 P. 8(a)(2). Plaintiffs must also plead, however, “enough facts to state a claim to relief that 8 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The 9 plausibility standard thus demands more than a formulaic recitation of the elements of a 10 cause of action or naked assertions devoid of further factual enhancement. Ashcroft v. 11 Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must contain sufficient allegations 12 of underlying facts to give fair notice and to enable the opposing party to defend itself 13 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 14 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 15 truth of all factual allegations and must construe them in the light most favorable to the 16 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The 17 court need not take legal conclusions as true “merely because they are cast in the form of 18 factual allegations.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting 19 W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Similarly, “conclusory 20 allegations of law and unwarranted inferences are not sufficient to defeat a motion to 21 dismiss.” Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998). 22 Where dismissal is appropriate, a court should grant leave to amend unless the 23 plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of 24 Phoenix, 566 F.3d 936, 942 (9th Cir. 2009). 25 26 DISCUSSION I. Violation of Civil Rights Claim: 42 U.S.C. § 1983 and Qualified Immunity 27 Defendants move for dismissal on the basis that Plaintiffs state no violation of their 28 First, Fourth, or Fourteenth Amendment rights on which to hinge a § 1983 action, and even 4 16-CV-2870-AJB-MDD 1 if they did, Defendants are immune from such claims. (Doc. No. 5-1 at 6–8.)3 The Court 2 will consider each constitutional violation in turn. 3 42 U.S.C. § 1983 “is not itself a source of substantive rights, but a method for 4 vindicating federal rights elsewhere conferred by those parts of the United States 5 Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 6 n.3 (1979). “To state a claim under [42 U.S.C.] § 1983, a plaintiff must allege the violation 7 of a right secured by the Constitution and laws of the United States, and must show that 8 the alleged deprivation was committed by a person acting under color of state law.” West 9 v. Atkins, 487 U.S. 42, 48 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). To 10 act under color of state law, a defendant must exercise “power ‘possessed by virtue of state 11 law,” and his or her actions were “made possible ‘only because the wrongdoer is clothed 12 with the authority of state law.’” Id. at 49 (quoting United States v. Classic, 313 U.S. 299, 13 326 (1941)). 14 The doctrine of qualified immunity shields government officials “from liability for 15 civil damages insofar as their conduct does not violate clearly established statutory or 16 constitutional rights of which a reasonable person would have known.” Harlow v. 17 Fitzgerald, 457 U.S. 800, 818 (1982). An official’s qualified immunity generally turns on 18 the objective legal reasonableness of his actions, which are assessed in light of the clearly 19 established legal rules in place at the time his actions were taken. Anderson v. Creighton, 20 483 U.S. 635, 639 (1987) (quoting Harlow, 457 U.S. at 562). A right is “clearly 21 established” if it is “sufficiently clear ‘that every reasonable official would [have 22 understood] that what he is doing violates that right.’” Reichle v. Howards, 566 U.S. 658, 23 132 S. Ct. 2088, 2093 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) 24 (internal quotation marks omitted). The Court must therefore decide whether a reasonable 25 26 27 28 3 Because Jackson makes essentially the same arguments contained in her co-defendants’ motion to dismiss, the Court will cite only to the motion filed on January 11, 2017, and the corresponding moving papers. 5 16-CV-2870-AJB-MDD 1 officer could have believed that the conduct at issue was lawful, in light of both clearly 2 established law and the information the officer possessed at the time he acted. See 3 Anderson, 483 U.S. at 639–41. Qualified immunity is “defeated if an official knew or 4 reasonably should have known that the action he took within his sphere of official 5 responsibility would violate the constitutional rights of the plaintiff, or if he took the action 6 with the malicious intention to cause a deprivation of constitutional rights or other injury.” 7 Harlow, 457 U.S. at 815 (internal quotation marks, emphasis, and alterations omitted). 8 There are two prongs to the qualified immunity analysis: (1) whether the plaintiff 9 alleged the deprivation of a constitutional right; and (2) whether that right was “clearly 10 established” so as to deny qualified immunity. See al-Kidd, 563 U.S. at 735. It is within 11 the district court’s sound discretion to decide “which of the two prongs of the qualified 12 immunity analysis should be addressed first in light of the circumstances in the particular 13 case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). 14 i. First Amendment Violation 15 Defendants argue Plaintiffs fail to state a First Amendment violation because 16 Plaintiffs do not sufficiently allege facts that the social workers retaliated against any 17 constitutionally protected activity. (Doc. No. 5-1 at 6.) Plaintiffs retort that the social 18 workers chilled their rights to free speech and that Defendants’ retaliation was flagrant 19 because there was no credible evidence of child abuse by Capp to warrant an investigation. 20 (Doc. No. 10 at 11–12.) 21 To state a retaliation claim under the First Amendment, Plaintiffs must allege that 22 (1) they were engaged in a constitutionally protected activity; (2) Defendants’ actions 23 would chill a person of ordinary firmness from continuing to engage in the protected 24 activity; and (3) the protected activity was a substantial or motivating factor in Defendants’ 25 conduct. O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016) (quoting Pinard v. Clatskanie 26 Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006)). 27 The Court finds that Plaintiffs fail on the first element. Even accepting as true the 28 contention that Defendants engaged in retaliatory conduct against Plaintiffs, the complaint 6 16-CV-2870-AJB-MDD 1 fails to identify any constitutionally protected activity that was subjected to Defendants’ 2 purported retaliation. For this basic reason, the Court GRANTS Defendants’ motion and 3 DISMISSES Plaintiffs’ § 1983 claim to the extent it is predicated on a First Amendment 4 violation. 5 ii. Fourth Amendment Violation 6 Defendants argue that Plaintiffs have failed to plead a violation of the Fourth 7 Amendment because they do not plead they were searched or that the children were 8 removed from Capp’s custody. (Doc. No. 5-1 at 7–8.) Defendants further argue that even 9 if the social workers’ interview of N.C. and J.C. at their school violated the children’s 10 Fourth Amendment rights, this right was not clearly established at the time of the interview, 11 and Defendants are accordingly entitled to qualified immunity. (Id. at 8.) Plaintiffs respond 12 that the social workers’ interview of the children was unconstitutional in light of the Ninth 13 Circuit’s holding in Camreta v. Greene (“Greene I”), 588 F.3d 1011 (9th Cir. 2009).4 (Doc. 14 No. 10 at 15–16.) Defendants respond that Greene I cannot clearly establish a right because 15 the Supreme Court vacated Greene I’s Fourth Amendment holding as moot in Camreta v. 16 Greene (“Greene II”), 563 U.S. 692 (2011); see Greene v. Camreta, 661 F.3d 1201, 1201– 17 02 (9th Cir. 2011) (acknowledging vacatur, and vacating and remanding for further 18 proceedings). (Doc. No. 12 at 3.) 19 The Fourth Amendment protects “[t]he right of the people to be secure in their 20 persons, houses, papers, and effects, against unreasonable searches and seizures[.]” “A 21 22 23 24 25 26 27 28 4 Plaintiffs also assert that the interview of the children was unlawful under California law. (Doc. No. 10 at 16.) However, the violation of a state law cannot serve as the predicate for a § 1983 action. See West, 487 U.S. at 48 (“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” (emphasis added)); Baker, 443 U.S. at 144 n.3 (stating that § 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes” (emphasis added)). 7 16-CV-2870-AJB-MDD 1 ‘search’ occurs when an expectation of privacy that society is prepared to consider 2 reasonable is infringed.” Soldal v. Cook Cnty., 506 U.S. 56, 63 (1992) (quoting United 3 States v. Jacobsen, 466 U.S. 109, 113 (1984)). A seizure of the person occurs when, “taking 4 into account all of the circumstances surrounding the encounter, the police conduct would 5 ‘have communicated to a reasonable person that he was not at liberty to ignore the police 6 presence and go about his business.’” Florida v. Bostick, 501 U.S. 429, 437 (1991) (quoting 7 Michigan v. Chesternut, 486 U.S. 567, 569 (1988)). 8 Determining the reasonableness of a seizure entails a careful balancing of “the nature 9 and quality of the intrusion on an individual’s Fourth Amendment interests against the 10 countervailing governmental interests at stake.” United States v. Ankeny, 502 F.3d 829, 11 836 (9th Cir. 2007) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “A seizure 12 becomes unlawful when it is ‘more intrusive than necessary.’” Ganwich v. Knapp, 319 13 F.3d 1115, 1122 (9th Cir. 2003) (quoting Florida v. Royer, 460 U.S. 491, 504 (1983)). The 14 reasonableness of the seizure “must be judged from the perspective of a reasonable officer 15 on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. 16 Thus, the Court examines whether the totality of the circumstances, “viewed objectively, 17 justify [the challenged] action.” Scott v. United States, 436 U.S. 128, 138 (1978). 18 Even assuming the social workers’ interview of N.C. and J.C. constituted a seizure 19 within the meaning of the Fourth Amendment, the Court finds Defendants are entitled to 20 qualified immunity because the right at issue was not clearly established at the time of the 21 interview. In Greene II, “the Supreme Court ultimately dismissed the action as moot and 22 specifically vacated ‘the Ninth Circuit’s ruling addressing the merits of the Fourth 23 Amendment issue’ and the qualified immunity analysis.” McManus v. Cnty. of San Diego, 24 No. 15cv0138 JM(RBB), 2016 WL 3552007, at * 4 (S.D. Cal. June 30, 2016) (quoting 25 Greene II, 563 U.S. at 713–14). “Moreover, the Supreme Court expressly noted that the 26 point of the vacatur was to prevent Greene [I] from spawning any legal consequences. 27 Accordingly, this authority does not lend support to Plaintiff[s’] legal theory” that Firth’s 28 in-school interview of N.C. and J.C. during the course of investigating a child abuse claim, 8 16-CV-2870-AJB-MDD 1 absent a warrant, parental consent, or exigent circumstance, constitutes a Fourth 2 Amendment violation. Id. 3 While the Supreme Court does “not require a case directly on point” in order for a 4 right to be clearly established, “existing precedent must have placed the statutory or 5 constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. It is evident to the Court 6 that a vacated opinion does not meet this standard. This is all the more apparent in light of 7 other district court opinions that have concluded similarly. See, e.g., McManus, 2016 WL 8 3552007, at *4 (finding Greene I did “not lend support to Plaintiff’s legal theory that 9 parental rights are violated whenever a 14-year-old minor is removed from school and 10 interviewed in the course of a child abuse investigation without the parent’s consent, a 11 court order, or exigent circumstances”); Mann v. Cnty. of San Diego, No. 3:11-cv-0708- 12 GPC-BGS, 2013 WL 4046642, at *10 (S.D. Cal. Aug. 8, 2013) (finding defendants entitled 13 to qualified immunity where plaintiffs relied solely on Greene I for the proposition that “a 14 social worker’s brief, voluntary interview of a suspected child-abuse victim at school . . . 15 violates the Constitution”). 16 Accordingly, the Court finds Defendants are entitled to qualified immunity in the 17 absence of binding authority establishing that a social worker’s interview of a child at 18 school violates the child’s Fourth Amendment rights. The Court therefore GRANTS 19 Defendants’ motions and DISMISSES Plaintiffs’ § 1983 claim to the extent it is predicated 20 on a Fourth Amendment violation. 21 iii. Fourteenth Amendment Violation 22 Defendants argue Plaintiffs have failed to state a Fourteenth Amendment violation 23 because N.C. and J.C. were not actually, physically removed from Capp’s care. (Doc. No. 24 5-1 at 8.) Plaintiffs respond that the right to familial association extends not only to cases 25 where children are physically removed, but “even to cases where the parents and their 26 children suffer from the abuse and stigmatization of a child abuse investigation . . . .” (Doc. 27 No. 10 at 10.) Plaintiffs contend they have sufficiently stated such a disruption to their 28 familial bonds by alleging Defendants threatened and coerced Capp’s ex-wife into filing 9 16-CV-2870-AJB-MDD 1 an ex parte application to change custody and violate custody orders; fabricated allegations 2 of child abuse against Capp; and placed Capp on the CACI. (Id. at 11.) 3 “Parents and children have a well-elaborated constitutional right to live together 4 without governmental interference.” Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 5 2000); see also Burke v. Cnty. of Alameda, 586 F.3d 725, 733 (9th Cir. 2009) (extending 6 this protection of parental rights to parents who have only legal custody and no physical 7 custody). This right “is an essential liberty interest protected by the Fourteenth 8 Amendment’s guarantee that parents and children will not be separated by the state without 9 due process of law except in an emergency.” Burke, 586 F.3d at 731 (quoting Wallis, 202 10 F.3d at 1136). 11 To allege a Fourteenth Amendment violation premised on the unwarranted 12 interference with familial rights, Plaintiffs must demonstrate that Defendants’ actions were 13 so egregious or ill-conceived that it shocks the conscious. See Cnty. of Sacramento v. 14 Lewis, 523 U.S. 833, 846 (1998). “[T]he due process guarantee does not entail a body of 15 constitutional law imposing liability whenever someone cloaked with state authority causes 16 harm.” Id. at 848. Rather, to impose liability for violation of an individual due process 17 right, the official’s actions must “shock[] the conscience.” Id. at 846. 18 The Court finds Plaintiffs have not stated a cognizable Fourteenth Amendment 19 violation. The basic issue with their claim is their failure to identify a familial right with 20 which Defendants have purportedly interfered. While the allegation that Defendants 21 coerced and threatened Capp’s ex-wife into seeking a change of custody is concerning, 22 N.C. and J.C. were never removed from Capp’s care, nor were Capp’s custodial rights 23 otherwise modified. In fact, it was the ex-wife who nearly lost physical custody of the 24 children. (Doc. No. 1 ¶ 40.) 25 To the extent Capp asserts a Fourteenth Amendment violation predicated on his 26 CACI listing, this also fails. The Fourteenth Amendment guarantees procedural safeguards 27 against the alteration or extinguishment of a legal status combined with the injury resulting 28 from defamation. Paul v. Davis, 424 U.S. 693, 694, 701–10 (1976); Hart v. Parks, 450 10 16-CV-2870-AJB-MDD 1 F.3d 1059, 1069–70 (9th Cir. 2006) (referring to the “stigma-plus” test). Thus, an injury to 2 reputation by itself does not constitute a protected liberty interest under the Fourteenth 3 Amendment. Hart, 450 F.3d at 1069. Rather, the plaintiff must also show that, as a result 4 of the official’s conduct, “a right or status previously recognized by state law was distinctly 5 altered or extinguished.” Paul, 424 U.S. at 711. 6 The Court finds Capp’s listing on the CACI does not state a Fourteenth Amendment 7 violation. The issues with Capp’s CACI listing are twofold. First, Capp was never actually 8 listed on the CACI, but rather was only under the impression he was listed for two weeks 9 before being informed otherwise. (Doc. No. 1 ¶¶ 54–55.) Where a plaintiff wrongfully 10 perceived he was placed on the CACI or believed he was “in jeopardy” of being placed on 11 the CACI, a constitutional violation is conjectural at best. See Buckheit v. Dennis, No. C 12 09-5000 JCS, 2012 WL 1166077, at *17–18 (N.D. Cal. Apr. 6, 2012) (granting summary 13 judgment to defendants on plaintiff’s § 1983 claim where plaintiff was never placed on the 14 CACI). 15 Second, even if Capp was actually listed on the CACI, he does not identify a tangible 16 harm he suffered as a result. Certainly, “being falsely named as a suspected child abuser 17 on an official government index is defamatory.” Miller v. California, 355 F.3d 1172, 1178 18 (9th Cir. 2004). However, the complaint is silent on whether any of Capp’s rights or status 19 were “distinctly altered or extinguished” as a result. Absent such allegations, no Fourteenth 20 Amendment violation exists. Hart, 450 F.3d at 1069–70. 21 Accordingly, the Court GRANTS Defendants’ motions and DISMISSES Plaintiffs’ 22 § 1983 claim to the extent it is predicated on a Fourteenth Amendment violation. 23 II. Monell Claim: Municipal Liability 24 Defendants also move to dismiss Plaintiffs’ Monell claim because the complaint 25 does not list any specific policies or practices that could have caused a rights violation, but 26 rather merely includes a “laundry list of general policies and practices in a conclusory 27 way[.]” (Doc. No. 5-1 at 10.) Plaintiffs oppose the motion, asserting that the County 28 admitted that “some of the policies, procedures, and/or practices have not been 11 16-CV-2870-AJB-MDD 1 appropriately followed,” therefore validating the Monell claims in the complaint. (Doc. No. 2 10 at 17 (quoting Doc. No. 1-9 at 2).) Defendants retort that a Monell claim is pleaded only 3 when a plaintiff alleges a policy, standing alone, violates an individual’s rights, not when 4 a sound policy is not being followed by an employee. (Doc. No. 12 at 3–4.) 5 Municipalities, their agents, and their supervisory personnel may be held liable for 6 deprivations of constitutional rights resulting from their formal policies or customs. 7 Monell, 436 U.S. at 691–95. However, “[a] government entity may not be held liable under 8 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a 9 moving force behind a violation of constitutional rights.” Daugherty v. City of Covina, 654 10 F.3d 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at 694). 11 “In this circuit, a claim of municipal liability under section 1983 is sufficient to 12 withstand a motion to dismiss ‘even if the claim is based on nothing more than a bare 13 allegation that the individual officers’ conduct conformed to official policy, custom, or 14 practice.’” Karim-Panahi v. L.A. Police Dept., 839 F.2d 621, 624 (9th Cir. 1988) (quoting 15 Shah v. Cnty. of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986)). Notwithstanding this 16 treatment, however, a plaintiff is not absolved of his obligation to meet the plausibility 17 requirements under Twombly. See Dougherty, 654 F.3d at 900–01. 18 Plaintiffs’ Monell claim fails for two reasons. First, as addressed in the preceding 19 sections of this order, Plaintiffs fail to allege the deprivation of a constitutional right. See 20 Id. at 900 (listing as one element of a Monell claim that “the plaintiff possessed a 21 constitutional right of which she was deprived” (alterations omitted)). Second, Plaintiffs 22 fail to identify a policy or custom of practice on which to hinge the theory of municipal 23 liability. In their complaint, Plaintiffs list what they believe to be several unjust policies 24 that were allegedly followed, such as “using fabricated evidence, undue influence, 25 coercion, and/or duress to cause a parent to seek custody from the other”; “detaining and 26 interviewing children without exigent circumstances, . . . court order or consent of their 27 parent”; “using false and misleading information . . . in their investigation of child abuse 28 referrals”; and “retaliating against citizens who question their authority[.]” (Doc. No. 1 ¶ 12 16-CV-2870-AJB-MDD 1 78.) However, this recitation fails to identify the specific policy that allegedly caused 2 Plaintiffs’ harm. See Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 3 (1997) (“[I]n Monell and subsequent cases, we have required a plaintiff seeking to impose 4 liability on a municipality under § 1983 to identify a municipal ‘policy’ or ‘custom’ that 5 caused the plaintiff’s injury.” (citing Monell, 436 U.S. at 694)). 6 Plaintiffs point to Exhibit H, (Doc. No. 1-9), as support for the County’s Monell 7 liability, a document in which the County “admit[ed] that ‘some of the policies, procedures 8 and/or practices have not been appropriately followed,’” (Doc. No. 10 at 17). However, the 9 failure of individual employees to follow County policies is insufficient to establish Monell 10 liability. Bond v. Arrowhead Regional Med. Ctr., No. ED CV 11-2049-DDP (PLA), 2015 11 WL 509823, at *20 (C.D. Cal. Feb. 5, 2015) (“plaintiff may not hold a government entity 12 liable under § 1983 unless he can show that his injury arose from the execution of a 13 government’s policy or custom, not an official’s failure to follow the entity’s policies or 14 procedures” (citing Monell, 436 U.S. at 694)). 15 16 For all these reasons, the Court GRANTS the County’s motion and DISMISSES Plaintiffs’ Monell claim. 17 CONCLUSION 18 In sum, the Court GRANTS Defendants’ motions to dismiss. (Doc. Nos. 5, 13.) The 19 Court DISMISSES the complaint WITHOUT PREJUDICE. (Doc. No. 1.) Capp must 20 file an amended complaint, curing the deficiencies noted herein, within fourteen days of 21 this order’s issuance. Failure to do so will result in dismissal of this action with prejudice. 22 23 IT IS SO ORDERED. 24 Dated: April 19, 2017 25 26 27 28 13 16-CV-2870-AJB-MDD

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