Capp et al v. County of San Diego et al

Filing 35

ORDER granting 26 Motion for Reconsideration ; denying as moot 29 Capp's Motion to Certify Claims for Interlocultory Appeal. The Court DIRECTS the Court Clerk to close Capp's case. Signed by Judge Anthony J. Battaglia on 12/28/2017. (acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Jonathan C. Capp, et al.,
Plaintiffs,

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Case No.: 16-cv-2870-AJB-MDD
ORDER:
GRANTING DEFENDANTS’
MOTION FOR RECONSIDERATION
(Doc. No. 26), and

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

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DENYING AS MOOT CAPP’S
MOTION TO CERTIFY CLAIMS
FOR INTERLOCULTORY APPEAL
(Doc. No. 29).

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Defendants move for reconsideration of this Court’s August 1, 2017 order denying

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defendants qualified immunity under Federal Rules of Civil Procedure 59(e) and 60(b).

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(Doc. No. 26.) Because the Court’s order contains legal error, the Court GRANTS

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defendants’ motion for reconsideration. Defendants are entitled to qualified immunity on

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Capp’s first amendment retaliation claim. Capp also requests the Court amend its prior

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order so that the dismissed claims are eligible for immediate interlocutory appeal.

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(Doc. No. 29.) However, Capp notes his motion will be mooted if the Court grants

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defendants’ reconsideration motion. Thus, the Court also DENIES AS MOOT Capp’s

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motion.

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I.

BACKGROUND

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Plaintiff Jonathan Capp and his children, N.C. and J.C., filed a 42 U.S.C. § 1983

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complaint against the County of San Diego, Johanna Firth, and Robert Prokesch. A detailed

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factual background was included in the Court’s August 1, 2017 order. (Doc. No. 25.) The

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Court incorporates that history as though set out here and will only highlight details

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pertinent to the instant motion. After Firth left her business card at Capp’s home on

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August 20, 2015, she met with Capp six days later. (Doc. No. 19 at 5.) Unhappy with how

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the meeting went, Capp wrote a letter to Child Welfare Services the same day, complaining

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about his exchange with Firth and the child abuse allegations against him. (Id. at 5–6;

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19-1 at 2–3.) On August 28, Capp’s children’s mother stated CPS advised her to file an ex-

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parte motion for custody, which she did three days later. (Doc. Nos. 19 at 6; 19-1 at 6.)

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After the petition was denied on September 2, Capp contacted his local assemblyman and

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a Protective Services Program manager regarding his continued concerns about his case.

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(Doc. Nos. 19 at 7; 19-1 at 12.) They both assured him the proper procedures would be

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followed. (Doc. No. 19 at 7.) On September 9, Capp received a letter from a regional deputy

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director of the Health and Human Services Agency also assuring him procedures would be

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adhered to. (Doc. Nos. 19 at 7–8; 19-1 at 12.) Prokesch also interviewed Capp at the HHSA.

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(Doc. No. 19 at 7–8.)

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Regarding the retaliation claim, Capp alleged that Firth and Prokesch “coerced” the

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mother to file the ex-parte petition for custody because of “their desire to retaliate against”

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Capp “and they would not have otherwise acted as such but for the activity of the father as

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described above [noting the criticisms Capp lodged through letters, phone calls, and during

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conversations with defendants].” (Doc. No. 19 at 15.) In the Court’s previous order, the

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Court found Capp adequately stated a first amendment retaliation claim and that Firth and

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Prokesch were not entitled to qualified immunity. (Id. at 9, 11.) Defendants now motion

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the Court to reconsider and reverse its decision citing two intervening cases regarding

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qualified immunity. (Doc. No. 26 at 2–3.) Defendants also point to three other cases in the

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Southern District which have reversed prior findings denying qualified immunity on the

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same grounds. (Id. at 8.)

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II.

LEGAL STANDARDS

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The district court should not grant a reconsideration motion unless (1) there is newly

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discovered evidence, (2) it committed clear error or the decision was manifestly unjust, or

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(3) there was an intervening change in controlling law. Carroll v. Nakatani, 342 F.3d 934,

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945 (9th Cir. 2003). “Although Rule 59(e) permits a district court to reconsider and amend

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a previous order, the rule offers an extraordinary remedy, to be used sparingly in the

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interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of

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Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks and citation omitted);

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see also Global View Ltd. Venture Capital v. Great Cent. Basin Exploration, LLC, 288

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F. Supp. 2d 482, 483 (S.D.N.Y. 2003) (“The standard for granting such a motion is strict,

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and reconsideration will generally be denied unless the moving party can point to

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controlling decisions or data that the court overlooked—matters, in other words, that might

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reasonably be expected to alter the conclusion reached by the court.” (quoting Shrader v.

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CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995))).

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“In determining whether an officer is entitled to qualified immunity, we consider (1)

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whether there has been a violation of a constitutional right; and (2) whether that right was

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clearly established at the time of the officer’s alleged misconduct.” C.V. by & through

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Willegas v. City of Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016) (quoting Lal v.

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California, 746 F.3d 1112, 1116 (9th Cir. 2014.)

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III.

DISCUSSION

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Defendants generally argue the Court erred in denying Firth and Prokesch qualified

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immunity because the Court failed to abide by the Supreme Court’s and Ninth Circuit’s

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finely-tuned jurisprudence on the matter. This year, the higher courts have seen an

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indiscriminate number of qualified immunity cases which have sharpened the contours of

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the doctrine. See White v. Pauly, 137 S. Ct. 548 (2017); S.B. v. Cnty of San Diego, 864 F.36

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1010 (9th Cir. 2017); Shafer v. Cnty of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017);
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Sharp v. Cnty of Orange, 871 F.3d 901, 910 (9th Cir. 2017). White chastised how lower

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courts have analyzed the clearly established prong of the qualified immunity analysis—a

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censure the Ninth Circuit has heeded. In White, the Supreme Court admonished lower

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courts, stating that “[i]n the last five years, this Court has issued a number of opinions

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reversing federal courts in qualified immunity cases.” White, 137 S. Ct. at 551. The Court

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exasperatingly continued, “[t]oday, it is again necessary to reiterate the longstanding

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principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’”

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Id. at 552. White established that the keystone to qualified immunity cases is identifying “a

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case where an officer acting under similar circumstances” was held to have violated the

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law. Id. The Supreme Court reversed the lower court’s ruling, finding officer White was

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indeed entitled to qualified immunity.

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Four months later, the Ninth Circuit interpreted White. In S.B., the Court

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“acknowledge[d] the Supreme Court’s recent frustration with failures to heed its holdings”

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as it had “repeatedly told courts—and the Ninth Circuit in particular—not to define clearly

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established law at a high level of generality.” S.B., 864 F.3d at 1015. In reversing a district

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court’s denial of qualified immunity, the Ninth Circuit stated “[w]e hear the Supreme Court

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loud and clear. Before a court can impose liability” on a defendant, “we must identify

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precedent” as of the day of the alleged misconduct that put the defendant “on clear notice”

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that their actions were unconstitutional. Id. Courts must “identify a case where an officer

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acting under similar circumstances as [defendant] was held to have violated” the law. Id.

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(citing White, 137 S. Ct. at 552). In S.B., the Court could not locate such precedence and

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granted qualified immunity.

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In the reply brief, defendants cite two additional Ninth Circuit cases decided in

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August and September of this year. In Shafer, the Court held “[f]or a right to be clearly

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established, case law must ordinarily have been earlier developed in such a concrete and

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factually defined context to make it obvious to all reasonable government actors, in the

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defendant’s place, that what he is doing violates federal law.” Shafer, 868 F.3d at 1117. In

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Sharp, the Ninth Circuit stated, “[t]he Supreme Court has repeatedly instructed that we
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examine ‘whether the violative nature of particular conduct is clearly established’ by

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controlling precedent, not whether the conduct violates a general principle of law.” Sharp,

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871 F.3d at 910 (citing Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). The law of the

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Supreme Court and the Circuit is unequivocal—there must be a case, or a set of cases,

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which would give an actor notice that his or her specific actions are unlawful.

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Defendants argue, then, that “no appellate case has held social workers liable for

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retaliating against a plaintiff’s First Amendment rights under similar circumstances as this

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case. In light of White and S.B., the Court should grant Defendants qualified immunity on

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the First Amendment retaliation claim.” (Doc. No. 26 at 2.) Notably, Capp does not cite

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any authority directly on point that would give a reasonable social worker notice that his

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actions in this case—recommending a party file an ex-parte motion for custody after the

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accused parent complained about the investigation—violated clearly established law. In

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the Court’s prior order, the Court found that Capp sufficiently pled a first amendment

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retaliation claim, but that defendants were not entitled to qualified immunity because they

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“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 [sic] afoul of the First Amendment.”

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(Doc. No. 25 at 11.) The Court immediately prefaced this conclusion by stating, “[w]hile

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there is no precedent directly on point that allows First Amendment retaliation claims to

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go forward against social workers who have taken the above actions, ‘officials can still be

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on notice that their conduct violates established law even in novel factual circumstances.’”

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(Doc. No. 25 at 10.)

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Capp’s only defense, that “[t]hose exercising police and/or administrative power

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have long been on notice that it is unlawful to retaliate against someone exercising their

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freedom of speech,” is unavailing; especially in light of White’s warning and Sharp’s

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holding that violating mere general principles of law, without more, fails to meet the

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standard. (Doc. No. 28 at 4.) This case is not the classic retaliation case one would instantly

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recognize as unlawful, like the actions of the officer in Ford—the first of three Ninth

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Circuit cases Capp relies on. Ford v. City of Yakima, 706 F.3d 1188, 1195 (9th Cir. 2013).
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In Ford, the Court held the officers were not entitled to qualified immunity because officers

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have been on fair notice since 1990 that it is unlawful to retaliate against someone engaging

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in protected speech by jailing them. Id.

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In Duran, Capp’s second supporting case, the Court held qualified immunity did not

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apply because the officer stopped and arrested Duran after he made obscene comments and

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gestures towards the officer, but was not engaged in any unlawful behavior. Duran v. City

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of Douglas, Ariz., 904 F.2d 1372 (9th Cir. 1990). The Court stated it is well established

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that officers “may not exercise their authority for personal motives, particularly in response

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to real or perceived slights to their dignity. Surely anyone who takes an oath of office

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knows—or should know—that much.” Id. at 1378. While Duran’s holding does point to a

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more general proposition of what officers ought to know, the Court finds it distinguishable

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from the case at hand because using one’s office or authority to detain an offending, but

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law-abiding citizen, affronts the very notions of the awesome responsibility officers hold—

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an obvious abuse. The Court finds Skoog, Capp’s third supporting case, inapplicable.

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Skoog. v. Cnty of Clackamas, 469 F.3d 1221, 1235 (9th Cir. 2006). In Skoog, the Ninth

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Circuit defined a right as clearly established, but held that the officers were nevertheless

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entitled to qualified immunity because the right was being established in the opinion, thus,

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there was no clearly established law when the officers acted.

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The Court cannot define retaliation with a high degree of generality or equate a

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police officer’s unmistakable deviations from the law to a social worker’s actions under

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these facts. It is not entirely clear from Capp’s complaint that defendants’ motives were to

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punish Capp for exercising his first amendment rights. Firth recommended the mother file

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an ex-parte petition for custody because he felt the children were unsafe in Capp’s

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presence. Moreover, the time span between Capp writing the first letter to CWS and Firth’s

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recommendation to the mother is only two days. Although the mother acknowledged

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awareness of the letter in her petition—which was filed an additional three days later—the

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complaint fails to definitively tie Firth’s knowledge of the letter to his recommendation. A

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social worker’s job is to make recommendations when they fear a minor might be in

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danger—thus it appears to this Court that Firth may have been simply doing her job.

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However, taking Capp’s allegations as true, even if defendants’ actions were

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retaliatory, there was still no clearly established law at the time denoting defendants’

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specific actions in this case as unlawful. No precedence exists which would have put

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defendants on notice that their actions violated a clearly established law. Thus, the Court

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finds qualified immunity was wrongly denied and GRANTS defendants’ motion for

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reconsideration. Because qualified immunity now attaches, both Firth and Prokesch are

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dismissed from the first amendment retaliation claim only.

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IV.

CONCLUSION

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The Court GRANTS defendants’ motion for reconsideration, holding there was no

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clearly established law giving defendants notice their behavior was prohibited.

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(Doc. No. 26.) Defendants Firth and Prokesch are entitled to qualified immunity on Capp’s

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first amendment retaliation claim. Because the Court grants the reconsideration motion,

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Capp’s motion for interlocutory appeal is DENIED as moot. (Doc. No. 29-1 at 2, fn 1.)

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Capp’s § 1983 claims under the Fourth Amendment and Fourteenth Amendment, as

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well as his Monell claim were denied in the Court’s previous order, leaving only the First

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Amendment retaliation claim. (Doc. No. 25.) Because the Court is now granting

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defendants’ qualified immunity as to that claim, all Capp’s claims have been resolved by

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dismissal and this case is now dismissed in its entirety. The Court DIRECTS the Court

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Clerk to close Capp’s case.

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Dated: December 28, 2017

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