Capp et al v. County of San Diego et al

Filing 25

ORDER granting in part and denying in part 20 Defendants' Motion to Dismiss for Failure to State a Claim. The Court DISMISSES WITH PREJUDICE the 42 U.S.C. § 1983 claim and the Monell claim to the extent they are predicated on a violation of Plaintiffs' Fourth and Fourteenth Amendment rights, as all as the § 1983 claim to the extent it is brought against Jackson. The Court DENIES Defendants' motion to dismiss as to Plaintiffs' § 1983 claim to the extent it is predicated on a violation of their First Amendment rights as alleged against Prokesch and Firth. Signed by Judge Anthony J. Battaglia on 8/1/2017. (acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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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,

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM

Plaintiffs,

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Case No.: 16-CV-2870-AJB-MDD

v.
(Doc. No. 20)

COUNTY OF SAN DIEGO; SAN
DIEGO HEALTH AND HUMAN
SERVICES AGENCY; KATHY
JACKSON; BOB PROKESCH;
JOHANNA FIRTH; DOES 1 to 50,
Inclusive,
Defendants.

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Presently before the Court is a motion to dismiss the amended complaint for failure

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to state a claim filed by Defendants Johanna Firth (“Firth”), Kathy Jackson (“Jackson”),

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Bob Prokesch (“Prokesch”), and the County of San Diego (“County”) (collectively,

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“Defendants”). (Doc. No. 20.) Plaintiffs Jonathan C. Capp (“Capp”), N.C., and J.C.

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(collectively, “Plaintiffs”) oppose the motion. (Doc. No. 22.) Having reviewed the parties’
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moving papers and controlling legal authority, the Court finds the matter suitable for

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decision on the papers and without oral argument pursuant to Local Civil Rule 7.1.d.1.

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Accordingly, the motion hearing date currently set for August 10, 2017, at 2:00 p.m. in

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Courtroom 4A is hereby VACATED. For the reasons set forth below, the Court GRANTS

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IN PART AND DENIES IN PART Defendants’ motion. The Court DISMISSES WITH

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PREJUDICE the 42 U.S.C. § 1983 claim and the Monell claim to the extent they are

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predicated on a purported violation of Plaintiffs’ Fourth and Fourteenth Amendment rights.

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BACKGROUND

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The instant dispute arises from allegations that Capp emotionally abused his

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children, had a substance abuse problem, and drove his children while under the influence

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of alcohol. The County Health and Human Services Agency (“Agency”) received these

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allegations from an anonymous third party, but Capp suggests his ex-wife’s parents

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reported these allegations to the County. (Doc. No. 19 ¶¶ 20, 33, 36.)1

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Upon receiving these allegations, the County sent social worker Firth to interview

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N.C. and J.C. at school without Capp’s consent. (Id. ¶ 18.) Firth also interviewed Capp at

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his home on August 26, 2015, after leaving her business card there on August 20, 2015.

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(Id. ¶¶ 16–17.) On August 28, 2015, Capp’s ex-wife’s attorney informed Capp that his ex-

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wife was seeking full custody of N.C. and J.C., and that Firth recommended the ex-wife

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create a written agreement that she would file an emergency custody order because the

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children felt unsafe in his care. (Id. ¶¶ 24–25; Doc. No. 19-1 at 9.) Capp’s ex-wife filed an

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ex parte motion on August 31, 2015, based on Firth’s recommendation, but the family court

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denied the motion on September 2, 2015, and dismissed her motion to modify custody in

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her favor. (Doc. No. 19 ¶¶ 27–28; see Doc. No. 19-1 at 6–9.)

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After receiving the ex parte application, Capp contacted Jackson, an Agency

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supervisor, who assured Capp that procedures would be followed and the case against him

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The Court cites to the blue CM/ECF-generated document and page numbers located at
the top of each page.
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closed. (Doc. No. 19 ¶ 30.) On September 8, 2015, social worker Prokesch interviewed

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Capp regarding the allegations. (Id. ¶ 32.)

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During the span of this investigation, N.C. and J.C.’s maternal grandparents kept

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Capp from seeing N.C. and J.C. and physically prevented him from picking them up from

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school. (Id. ¶¶ 35, 37.) On September 24, 2015, the family court prohibited the maternal

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grandparents from seeing the children and nearly revoked the ex-wife’s custody. (Id. ¶¶

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39–40.) The family court also confirmed that the Agency determined the emotional abuse

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allegations against Capp were inconclusive, which Jackson, Prokesch, and Firth had

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confirmed on September 18, 2015. (Id. ¶¶ 41–42.) On October 15, 2015, Capp received a

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notification from Firth that the child abuse investigation against him was officially closed,

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but that he had been subsequently placed on the Child Abuse Central Index (“CACI”). (Id.

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¶¶ 43–44; Doc. No. 19-1 at 22.)

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Capp called the Agency to protest his CACI listing, and Ana Daugherty

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(“Daugherty”), a policy analyst with Child Protective Services (“CPS”), informed Capp

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she was investigating his complaint. (Doc. No. 19 ¶¶ 47, 49.) On October 30, 2015,

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Daugherty informed Capp that she would recommend he be taken off the CACI. (Id. ¶ 51.)

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On November 23, 2015, Daugherty told Capp the allegations against him were downgraded

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to “unfounded” with the exception of the emotional abuse allegation against N.C., which

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was determined inconclusive. (Id. ¶¶ 52–53; Doc. No. 19-1 at 29.) Daugherty also informed

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Capp that he was never actually placed on the CACI and that the mistake was due to a

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clerical or administrative error, of which he received written confirmation on February 2,

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2016. (Doc. No. 19 ¶¶ 54–55.) On February 25, 2016, social worker Stephanie Ackroyd

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(“Ackroyd”) interviewed N.C. and J.C. at school, again without Capp’s consent. (Id. ¶ 74.)

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Plaintiffs instituted this action by filing the original complaint on November 22,

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2016, alleging a violation of their First, Fourth, and Fourteenth Amendment rights pursuant

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to 42 U.S.C. § 1983 against Firth, Prokesch, and Jackson. (Doc. No. 1.) Plaintiffs also

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alleged municipal liability pursuant to Monell v. Department of Social Services, 436 U.S.

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658 (1978), against the County. (Id.) Defendants successfully moved to dismiss that
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complaint. (Doc. Nos. 5, 13, 18.)

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Plaintiffs thereafter filed an amended complaint on May 3, 2017, alleging the same

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causes of action. (Doc. No. 19.) Defendants filed the instant motion to dismiss on May 17,

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2017. (Doc. No. 20.) Plaintiffs filed an opposition, and Defendants replied. (Doc. Nos. 22,

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24.) This order follows.

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LEGAL STANDARD

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A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)2 tests the

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legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A

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pleading must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Plaintiffs must also plead, however, “enough

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facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 570 (2007). The plausibility standard thus demands more than a formulaic

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recitation of the elements of a cause of action or naked assertions devoid of further factual

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enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must

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contain sufficient allegations of underlying facts to give fair notice and to enable the

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opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.

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2011).

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In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the

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truth of all factual allegations and must construe them in the light most favorable to the

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nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The

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court need not take legal conclusions as true “merely because they are cast in the form of

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factual allegations.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting

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W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Similarly, “conclusory

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allegations of law and unwarranted inferences are not sufficient to defeat a motion to

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dismiss.” Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).

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Where dismissal is appropriate, a court should grant leave to amend unless the

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All references to “Rule” are to the Federal Rules of Civil Procedure.
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plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of

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Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).

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DISCUSSION
I. Violation of Civil Rights Claim: 42 U.S.C. § 1983 and Qualified Immunity

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Defendants move for dismissal on the basis that Plaintiffs continue to state no

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violation of their First, Fourth, or Fourteenth Amendment rights on which to hinge a § 1983

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action, and even if they did, Defendants are immune from such claims. (Doc. No. 20-1.)

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The Court will consider each constitutional violation in turn.

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42 U.S.C. § 1983 “is not itself a source of substantive rights, but a method for

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vindicating federal rights elsewhere conferred by those parts of the United States

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Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144

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n.3 (1979). “To state a claim under [42 U.S.C.] § 1983, a plaintiff must allege the violation

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of a right secured by the Constitution and laws of the United States, and must show that

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the alleged deprivation was committed by a person acting under color of state law.” West

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v. Atkins, 487 U.S. 42, 48 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). To

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act under color of state law, a defendant must exercise “power ‘possessed by virtue of state

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law,” and his or her actions were “made possible ‘only because the wrongdoer is clothed

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with the authority of state law.’” Id. at 49 (quoting United States v. Classic, 313 U.S. 299,

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326 (1941)).

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The doctrine of qualified immunity shields government officials “from liability for

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civil damages insofar as their conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have known.” Harlow v.

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Fitzgerald, 457 U.S. 800, 818 (1982). An official’s qualified immunity generally turns on

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the objective legal reasonableness of his actions, which are assessed in light of the clearly

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established legal rules in place at the time his actions were taken. Anderson v. Creighton,

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483 U.S. 635, 639 (1987) (quoting Harlow, 457 U.S. at 562). A right is “clearly

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established” if it is “sufficiently clear ‘that every reasonable official would [have

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understood] that what he is doing violates that right.’” Reichle v. Howards, 566 U.S. 658,
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132 S. Ct. 2088, 2093 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011))

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(internal quotation marks omitted). The Court must therefore decide whether a reasonable

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officer could have believed that the conduct at issue was lawful, in light of both clearly

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established law and the information the officer possessed at the time he acted. See

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Anderson, 483 U.S. at 639–41. Qualified immunity is “defeated if an official knew or

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reasonably should have known that the action he took within his sphere of official

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responsibility would violate the constitutional rights of the plaintiff, or if he took the action

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with the malicious intention to cause a deprivation of constitutional rights or other injury.”

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Harlow, 457 U.S. at 815 (internal quotation marks, emphasis, and alterations omitted).

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There are two prongs to the qualified immunity analysis: (1) whether the plaintiff

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alleged the deprivation of a constitutional right; and (2) whether that right was “clearly

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established” so as to deny qualified immunity. See al-Kidd, 563 U.S. at 735. It is within

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the district court’s sound discretion to decide “which of the two prongs of the qualified

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immunity analysis should be addressed first in light of the circumstances in the particular

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case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

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i.

First Amendment Violation

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Defendants argue Plaintiffs fail to state a First Amendment violation because

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Plaintiffs do not sufficiently allege facts lending plausibility to the claim that the social

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workers retaliated against any constitutionally protected activity. (Doc. No. 20-1 at 4.)

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Plaintiffs retort that the social workers chilled their rights to free speech and that

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Defendants intentionally and unjustifiably retaliated against Capp even though there was

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no credible evidence of child abuse by Capp to warrant an investigation. (Doc. No. 22 at

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2–5.) In support for their claims, Plaintiffs have added a list of specific requests, comments,

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and criticisms Capp made to Defendants Firth and the County, as well as Capp’s locally

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elected representatives. (Doc. No. 19 ¶¶ 71–72; Doc. No. 19-1 at 2–3.)

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To state a retaliation claim under the First Amendment, Plaintiffs must allege that

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(1) they were engaged in a constitutionally protected activity; (2) Defendants’ actions

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would chill a person of ordinary firmness from continuing to engage in the protected
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activity; and (3) the protected activity was a substantial or motivating factor in Defendants’

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conduct. O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016) (quoting Pinard v. Clatskanie

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Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006)).

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In its order dismissing the original complaint, the Court found that Plaintiff’s First

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Amendment claim failed because Plaintiffs did not identify any constitutionally protected

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activity subject to Defendants’ purported retaliation. (Doc. No. 18 at 6–7.) In the amended

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complaint, Plaintiffs have now provided a list of specific instances of constitutionally

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protected activity. The listed verbal criticisms clearly qualify as “speech.” See Ford v. City

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of Yakima, 706 F.3d 1188, 1192–93 (9th Cir. 2013) (“‘[T]he First Amendment protects a

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significant amount of verbal criticism and challenge directed at police officers.’ While an

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individual’s critical comments may be ‘provocative and challenging,’ they are

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‘nevertheless protected against censorship or punishment, unless shown likely to produce

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a clear and present danger of a serious substantive evil that rises far above public

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inconvenience, annoyance, or unrest.’” (quoting City of Houston v. Hill, 482 U.S. 451, 461

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(1987))). Accordingly, the Court finds that Plaintiffs have satisfied the first prong of the

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retaliation claim. (Doc. No. 19 ¶¶ 71–72; Doc. No. 19-1 at 2–3.) The analysis now turns to

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the remaining two prongs.3

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Turning to the second prong, the test for whether Defendants’ actions would “chill

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a person of ordinary firmness” from engaging in constitutionally protected activities is

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generic and objective; it does not require that Capp himself was, or would have been,

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chilled. O’Brien, 818 F.3d at 933. Rather, the test simply inquires “whether an official’s

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acts would chill or silence a person of ordinary firmness from future First Amendment

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activities.” Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999)

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Plaintiffs incorrectly assume that the Court accepted as true that Defendants engaged in
retaliatory conduct against Plaintiffs. (Doc. No. 22 at 2.) However, a careful reading of the
Court’s order dismissing the original complaint reveals that the Court did not decide these
matters; rather, it did not consider them, as the failure to meet the first prong of the claim
was sufficient, by itself, to dismiss the First Amendment claim. (Doc. No. 18 at 6–7.)
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(quoting Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996)). The Ninth Circuit has

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previously found that a plaintiff can adequately plead a “chilled speech” civil rights claim

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against government officials by alleging specific retaliatory acts. In Mendocino

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Environmental Center, the Ninth Circuit stated, “A plaintiff ‘may not recover merely on

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the basis of a speculative “chill” due to generalized and legitimate law enforcement

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initiatives.’ However, where a plaintiff ‘allege[s] discrete acts of police surveillance and

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intimidation directed solely at silencing’ her or him, a civil rights claim will lie.” 14 F.3d

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at 464 (quoting Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986)). Allegations,

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for example, that federal agents had “pursued baseless investigations” and “supplied false

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information” against environmental protesters in an effort to stop their advocacy activities

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were found sufficiently chilling to support a retaliation claim. Id.

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Here, Plaintiffs allege that Defendants urged Capp’s ex-wife to institute ex parte

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proceedings before the family court in an effort to strip Capp of custody of his children.

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(Doc. No. 19 ¶ 24.) Plaintiffs further allege that Defendants threatened to institute juvenile

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proceedings if the ex-wife did not do so. (Id.) Plaintiffs allege that Defendants engaged in

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this conduct in retaliation of Capp’s verbal and written criticisms. (Id. ¶ 72.) Taking these

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allegations as true, the Court finds Plaintiffs have sufficiently alleged discrete actions that

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would chill the speech of the average person. As such, the Court finds the second prong of

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the retaliation test satisfied.4

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For the third prong, Plaintiffs must allege a causal connection between the protected

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activity and Defendants’ retaliatory behavior. O’Brien, 818 F.3d at 932. In free speech

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retaliation cases, it is rare that a plaintiff can plead direct evidence of retaliatory intent in a

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Plaintiffs also allege Defendants retaliated against Capp by placing him on the CACI.
(Doc. No. 19 ¶ 73(b).) As with the original complaint, the amended complaint’s allegations
demonstrate that while Capp was informed he had been listed on the CACI, due to a clerical
error, that had not actually occurred. (Id. ¶ 54.) Because the Court does not rely on
Defendants’ proffered declaration in coming to this conclusion, the Court DENIES
Defendants’ request for judicial notice. (Doc. No. 20-2.)
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complaint. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). As a result, a plaintiff

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can sufficiently allege a causal connection by pleading facts that the defendants knew about

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plaintiffs’ speech, as well as at least one of the following three circumstances: (1) the

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protected action and the allegedly retaliatory conduct were proximate in time; (2) the

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defendant expressed opposition to the plaintiff’s speech, either to the plaintiff directly or

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to third parties; or (3) the defendant’s proffered explanation for his actions is “false and

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pretextual.” See Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 751–52 (9th

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Cir. 2001) (citations omitted); see also Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824

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F.3d 858, 870–71 (9th Cir. 2016) (finding allegation that retaliatory conduct was

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temporally proximate to constitutionally protected speech sufficiently identified

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defendant’s retaliatory intent and causal connection); Watison, 668 F.3d at 1114

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(“allegation of a chronology of events from which retaliation can be inferred is sufficient

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to survive dismissal”).

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In their amended complaint, Plaintiffs allege that Defendants engaged in a “wholly

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premeditated campaign of retaliation” against Capp and his children in response to Capp’s

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exercise of his constitutional rights. (Doc. No. 19 ¶ 4.) In support of this assertion, Plaintiffs

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allege that Defendants’ retaliatory behavior started within two days of Capp’s conversation

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with Firth, beginning with Firth’s ex parte hearing recommendation. (See id. ¶¶ 72–73; see

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also id. ¶¶ 17, 24.) Prior cases establish that even a months-long gap between protected

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activity and retaliatory conduct can suffice to plead proximate connection. Allen v. Iranon,

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283 F.3d 1070, 1078 (9th Cir. 2002) (“[A]n eleven-month gap in time is within the range

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that has been found to support an inference that [a] . . . decision was retaliatory.”). Taking

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Plaintiffs’ allegations as true, the Court finds Plaintiffs have sufficiently pled a causal

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connection and thus have satisfied the third prong. See Rayford v. Omura, 400 F. Supp. 2d

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1223, 1232 (D. Hawaii 2005) (finding plaintiff set forth sufficient facts that defendants

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acted to deter plaintiff’s speech based, in part, on allegation that defendants’ purported

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retaliatory conduct occurred within eleven days). Accordingly, their § 1983 claim is

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sufficiently stated to the extent it is predicated on a First Amendment violation.
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Defendants argue that even if Plaintiffs properly state a First Amendment retaliation

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claim, the social workers are entitled to qualified immunity due to the lack of an established

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right in the social worker context. (Doc. No. 20-1 at 5.) Plaintiffs respond by citing

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retaliation cases involving police and corrections officers where such a right has been found

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to exist. (Doc. No. 22 at 3.) Defendants reply that Plaintiffs do not cite any First

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Amendment retaliation cases involving social workers and that this dearth of case law

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defeats any claim that qualified immunity does not apply. (Doc. No. 24 at 3.)

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While the Supreme Court does “not require a case directly on point” in order for a

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right to be clearly established, “existing precedent must have placed the statutory or

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constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. “This is not to say that

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an official action is protected by qualified immunity unless the very action in question has

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previously been held unlawful . . . but it is to say that in the light of pre-existing law, the

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unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting

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Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (citation omitted). Plaintiffs’ proffered

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cases where qualified immunity did not apply include social workers who used perjured

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testimony in a child custody matter, Hardwick v. Cty. of Orange, 844 F.3d 1112 (9th Cir.

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2017), and a police officer who pulled over a driver without reason beyond the driver’s

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rude gestures, Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990). In these cases, the

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unlawfulness of the defendants’ actions was clear in the eyes of the Court; the defendants

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in the above cases knew or should have known their actions were unlawful. See Hardwick,

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844 F.3d at 1118–19; Duran, 904 F.2d at 1378.

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Here, Defendants are accused of retaliatory behavior in the course of an investigation

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of child abuse allegations. Plaintiffs allege that Capp made comments critical of Firth and

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sent a critical letter to the County. (Doc. No. 19 ¶¶ 71–72.) Plaintiffs further allege that

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Defendants responded by coercing Capp’s ex-wife to strip Capp of custody of his children

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through an ex parte hearing. (Id. ¶¶ 72–73, 79.) While there is no precedent directly on

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point that allows First Amendment retaliation claims to go forward against social workers

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who have taken the above actions, “officials can still be on notice that their conduct violates
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established law even in novel factual circumstances.” Hope, 536 U.S. at 741. Taking

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Plaintiffs’ allegations as true, the Court finds dismissal of the amended complaint on the

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basis of qualified immunity inappropriate. Reasonable social workers in Defendants’

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positions know or should know that baselessly taking action that could lead to a child being

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wrongfully removed from its parents would rule afoul of the First Amendment. See

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Rayford, 400 F. Supp. 2d at 1234 (denying motion to dismiss and finding social worker

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defendants not entitled to qualified immunity on plaintiff’s First Amendment retaliation

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claim).

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Accordingly, the Court finds Defendants are not entitled to qualified immunity as to

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a purported violation of Plaintiffs’ First Amendment rights at this juncture. The Court

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therefore DENIES Defendants’ motion to dismiss Plaintiffs’ § 1983 claim to the extent it

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is predicated on a First Amendment violation as to Defendants Prokesch and Firth.

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As to Jackson, Defendants separately ask the Court to dismiss all claims alleged

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against her because there are no facts alleged that suggest she took any action that violated

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Plaintiffs’ constitutional rights. (Doc. No. 20-1 at 9.) Plaintiffs do not respond to this

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assertion. The allegations against Jackson are simply that she assured Capp “she would

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make sure that all appropriate procedures would be followed,” she signed off on a later

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stating the original referral for emotional abuse was inconclusive, and she ignored Capp’s

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phone call.5 (Doc. No. 18 ¶¶ 30–31, 42, 48.) Because the allegations against Jackson are

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devoid of any assertion that she undertook action that would chill the speech of the average

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person, the Court DISMISSES the § 1983 action as to Jackson. Given the allegations

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contained in both iterations of the complaint pertaining to Jackson are virtually identical,

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this dismissal is WITH PREJUDICE.

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//

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Plaintiffs also allege that Jackson placed Capp on the CACI, (Doc. No. 18 ¶ 73(b)), but
given that Capp was never actually placed on the CACI, this allegation plays no role in the
Court’s analysis.
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ii.

Fourth and Fourteenth Amendment Violations

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Defendants again seek dismissal of Plaintiffs’ Fourth and Fourteenth Amendment

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claims. (Doc. No. 20-1 at 5–7.) Plaintiffs respond, asserting that their Fourth Amendment

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claim is sufficiently stated on the basis of Greene v. Camreta, 588 F.3d 101, 1016 (9th Cir.

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2009). (Doc. No. 22 at 5.) Plaintiffs further assert that they have sufficiently alleged a

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Fourteenth Amendment claim, arguing that the Court’s interpretation of the original

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complaint and reliance on Buckheit v. Dennis, No. C 09-5000 JCS, 2012 WL 1166077

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(N.D. Cal. Apr. 6, 2012), is incorrect. (Id. at 6–7.)

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“Under the law of the case doctrine, ‘a court is generally precluded from

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reconsidering an issue that has already been decided by the same court, or a higher court

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in the identical case.’” Gallagher v. San Diego Unified Port Dist., 14 F. Supp. 3d 1380,

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1389 (S.D. Cal. 2014) (quoting United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir.

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1998)). However, the doctrine “should not be applied woodenly in a way inconsistent with

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substantial justice.” United States v. Miller, 822 F.2d 828, 832 (9th Cir. 1987).

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Accordingly, the Court has the discretion to depart from the law of the case if “(1) [t]he

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first decision was clearly erroneous; (2) an intervening change in the law has occurred; (3)

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the evidence on remand is substantially different; (4) other changed circumstances exist;

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or (5) a manifest injustice would result.” Gallagher, 14 F. Supp. 3d at 1389 (citing Cuddy,

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147 F.3d at 1114). “Failure to apply the doctrine of the law of the case absent one of the

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requisite conditions constitutes an abuse of discretion.” United States v. Alexander, 106

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F.3d 874, 876 (9th Cir. 1997).

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In its order dismissing Plaintiffs’ original complaint, the Court found qualified

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immunity shielded Defendants from liability on Plaintiffs’ Fourth Amendment claim

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because of a lack of existing precedent clearly establishing the social workers’ interviews

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of N.C. and J.C. at school as acts that violate the Constitution. (Doc. No. 18 at 9.) The

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Court refused to rely on Greene because the Supreme Court’s vacatur of the Ninth Circuit’s

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Fourth Amendment ruling and qualified immunity analysis. (Id. at 8–9.) The Court further

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found Plaintiffs failed to state a Fourteenth Amendment claim because they failed to
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identify a familial right with which Defendants had disrupted and failed to identify a right

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or status that had been removed due to Capp’s purported listing on the CACI. (Id. at 10–

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11).

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In opposing the instant motion to dismiss, Plaintiffs essentially argue that the

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foregoing holdings are wrong. (Doc. No. 22 at 5–6.) Yet, Plaintiffs do not dispute that the

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children were never removed from Capp’s custody. Nor do they identify anything other

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than an injury to Capp’s reputation stemming from his purported CACI listing. While

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Plaintiffs list possible effects Capp could endure from having been listed on the CACI (if

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he had in fact been listed), Plaintiffs do not assert that Capp has actually suffered any of

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these injuries. (See Doc. No. 19 ¶ 73(d).) They do not allege, for example, that Capp was

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actually prevented from accompanying the children on a school field trip, terminated from

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his coaching or refereeing positions, or adversely affected during custody proceedings. (See

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id.)

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Plaintiffs claim Capp’s “status as a citizen with no negative or derogatory record

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was extinguished . . . .” (Doc. No. 22 at 7.) However, Plaintiffs provide no support for the

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position that this is the type of status alteration the Supreme Court contemplated in Paul v.

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Davis, 424 U.S. 693 (1976). Absent such authority, this appears to be just another way of

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saying Capp’s reputation was harmed. As the Court explained in its prior order, harm to

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reputation alone is insufficient to state a Fourteenth Amendment violation. (Doc. No. 18 at

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10–11.)6

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In short, simply disagreeing with the Court’s prior conclusions fails to establish any

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of the conditions that would permit the Court to depart from the law of the case. See

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Alexander, 106 F.3d at 878. As such, the Court declines to do so. Because Plaintiffs’ Fourth

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and Fourteenth Amendment claims are deficient for the same reasons that resulted in their

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dismissal from the original complaint, the Court GRANTS Defendants’ motion to dismiss

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And, of course, there is the issue that Plaintiffs allege Capp was not actually listed on the
CACI. (Doc. No. 19 ¶ 54; see Doc. No. 1 ¶ 54.)
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and DISMISSES WITH PREJUDICE the § 1983 claim to the extent it is predicated on

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a violation of Plaintiffs’ Fourth and Fourteenth Amendment rights.

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II. Monell Claim: Municipal Liability

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Defendants move to dismiss Plaintiffs’ Monell claim, arguing the amended

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complaint fails to show that Defendants violated Plaintiffs’ constitutional rights, which is

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the crux of Monell liability. (Doc. No. 20-1 at 8.) Furthermore, Defendants allege that

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Plaintiffs continue to rely inappropriately on Greene v. Camreta as the basis for purported

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constitutional violations. (Id.) Plaintiffs oppose the motion, again emphasizing Greene v.

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Camreta, incorrectly claiming that the Court has already accepted that the interviews of

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N.C. and J.C. constituted a seizure and that the list of standard interview techniques in the

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amended complaint is sufficient to particularize the policies that constituted the violation.

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(Doc. No. 22 at 5; see Doc. No. 19 ¶¶ 74, 83.) Defendants retort that Plaintiffs’ list simply

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alleges that the County has a policy for interviewing children at school without parental

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consent, and there is no precedent establishing that such interviews violate a person’s

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constitutional rights. (Doc. No. 24 at 5–6.)

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Municipalities, their agents, and their supervisory personnel may be held liable for

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deprivations of constitutional rights resulting from their formal policies or customs.

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Monell, 436 U.S. at 691–95. In order to establish liability for municipalities under Monell,

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a plaintiff must plead the following four elements: “(1) that [the plaintiff] possessed a

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constitutional right of which []he was deprived; (2) that the municipality had a policy; (3)

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that this policy amounts to deliberate indifference to the plaintiff’s constitutional right; and,

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(4) that the policy is the moving force behind the constitutional violation.” Dougherty v.

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City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. Sch. Dist. No. 40

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Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). “In this circuit, a claim of municipal

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liability under section 1983 is sufficient to withstand a motion to dismiss ‘even if the claim

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is based on nothing more than a bare allegation that the individual officers’ conduct

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conformed to official policy, custom, or practice.’” Karim-Panahi v. L.A. Police Dep’t,

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839 F.2d 621, 624 (9th Cir. 1988) (quoting Shah v. Cty. of Los Angeles, 797 F.2d 743, 747
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(9th Cir. 1986)). Notwithstanding this treatment, however, a plaintiff is not absolved of his

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obligation to meet the plausibility requirements under Twombly. Dougherty, 654 F.3d at

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900.

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Plaintiffs’ Monell claim fails at the first element. While Plaintiffs assert that the

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social workers interviewed the children “[i]n accordance with the policies and practices of

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the Defendant County,” (Doc. No. 19 ¶¶ 74–75), and Plaintiffs conceivably allege the

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County’s policies amounted to deliberate indifference to Plaintiffs’ constitutional rights

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and were the moving force behind the constitutional violations, (see id. ¶¶ 84–85, 87), the

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policies and practices identified, as well as the specific supporting facts alleged, all concern

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the social workers’ interviews of N.C. and J.C. For example, Plaintiffs identify the

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following conduct to have conformed with the County’s policies and practices with which

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they take issue: “Asking the children to identify their private parts and if they had been

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sexually abused”; “Asking the children questions relating to drugs and alcohol and

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especially whether Father had driven them when intoxicated”; and “Questions relating to

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father’s house, tidiness of the house, his temperament and relationship with the children,

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and his use of corporal punishment[.]” (Id. ¶¶ 74–75.) Given that the Court has found

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Plaintiffs have failed to allege violations of their constitutional rights based on these

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interviews, Plaintiffs cannot hinge a Monell claim against the County on policies dealing

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with those interviews. Dougherty, 654 F.3d at 899 (stating that no Monell liability exists

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absent “facts show[ing] that the [officers’] conduct violated a plaintiff’s constitutional

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rights”).

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For this reason, the Court GRANTS Defendants’ motion and DISMISSES

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Plaintiffs’ Monell claim against the County to the extent it is predicated on the interview

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of Capp’s children. Because this is Plaintiffs’ second attempt to state a Monell claim, this

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dismissal is WITH PREJUDICE.

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CONCLUSION

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In sum, the Court GRANTS IN PART AND DENIES IN PART Defendants’

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motion to dismiss. (Doc. No. 20.) The Court DISMISSES WITH PREJUDICE the 42
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U.S.C. § 1983 claim and the Monell claim to the extent they are predicated on a violation

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of Plaintiffs’ Fourth and Fourteenth Amendment rights, as all as the § 1983 claim to the

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extent it is brought against Jackson. The Court DENIES Defendants’ motion to dismiss as

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to Plaintiffs’ § 1983 claim to the extent it is predicated on a violation of their First

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Amendment rights as alleged against Prokesch and Firth.

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IT IS SO ORDERED.

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Dated: August 1, 2017

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