Benavidez et al v. County of San Diego et al

Filing 33

ORDER Granting Motion to Dismiss. [Doc. No. 26 ]. Signed by Judge Cathy Ann Bencivengo on 2/12/2019. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
JOHN BENAVIDEZ, HEATHER
BENAVIDEZ, J.C.B. a minor, and A.J.B.
a minor,

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Case No.: 3:18-cv-0558-CAB-(AGS)
ORDER GRANTING MOTION TO
DISMISS

Plaintiffs,
v.
COUNTY OF SAN DIEGO, SAN
DIEGO HEALTH AND HUMAN
SERVICES AGENCY, POLINSKY
CHILDREN’S CENTER, JENNIFER
LISK, BENITA JEMISON, and DOES 1
through 50, inclusive,

[Doc. No. 26]

Defendants.

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In this lawsuit, Plaintiffs allege that Defendants violated their constitutional rights

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in connection with physical examinations performed on minor plaintiffs J.C.B. and A.J.B.

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(“Minor Plaintiffs”) after they were removed from the custody of their parents, Plaintiffs

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John and Heather Benavidez (“Parents”). In response to a motion to dismiss the original

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complaint, Plaintiffs filed a first amended complaint (“FAC”). After the Court granted

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Defendants’ motion to dismiss the FAC, Plaintiffs filed a second amended complaint

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(“SAC”). Defendants now move to dismiss the SAC. Their motion has been fully briefed,

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and the Court deems it suitable for submission without oral argument.1 As discussed

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below, the motion is granted.

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The hearing scheduled for March 6, 2019, is therefore VACATED.
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I.

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On March 18, 2016, Defendants Jennifer Lisk and Benita Jamison, who were

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employees of the San Diego Health and Human Services Agency (“HHSA”), which is a

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subdivision of Defendant San Diego County (the “County”), applied for and obtained a

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protective custody warrant to remove the Minor Plaintiffs from their Parents. [Id. at ¶ 25.]

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On the same day, Lisk and Jamison, along with another County social worker named

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Christina Morse and four police officers, arrived at Plaintiffs’ home to remove J.C.B. and

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A.J.B. [Id. at ¶ 26.] Lisk and Morse then transported the Minor Plaintiffs to Polinsky

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Children’s Center (“Polinsky” or “PCC”). [Id. at ¶ 28.]

Allegations in the SAC

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At some point prior to the March 21, 2016, detention hearing concerning the removal

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of the Minor Plaintiffs, Lisk and Jemison submitted a Detention Report to the court. [Id.

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at ¶ 30.] A policy enacted by the County on February 9, 2015 (the “2015 Policy”), required

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employees to include in detention reports a discussion of the efforts they have made to

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obtain parents’ consent to the County performing a medical examination of their children

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at PCC, and to advise the parents of their right to be present at the examination. [Id. at ¶

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17.] The 2015 Policy also required employees to take reasonable steps to locate the parent

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and obtain consent before seeking a court order for a medical examination of a removed

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child. [Id.] The Detention Report submitted by Lisk and Jemison did not contain any

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discussion of any efforts made to obtain the Parents’ consent to medical examinations of

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the Minor Plaintiffs. [Id. at ¶ 30.] Further, neither Lisk nor Jemison, nor any other County

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employees, had sought Parents’ consent or advised them that they could be present during

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any medical examination of the Minor Plaintiffs. [Id.]

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The detention hearing took place on March 21, 2016. [Id. at ¶ 29.] Both Parents

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attended the hearing. [Id. at ¶ 32.] At no time prior to the detention hearing had Lisk,

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Jemison or any other County employee spoken with or notified the Parents about medical

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examinations of the Minor Plaintiffs at PCC. [Id.] No discussion of any medical

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examinations occurred during the detention hearing either. [Id. at ¶ 34.] However, “at

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some time before or after the [detention hearing] Defendants Lisk, Jemison and/or Does 1
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through 50 submitted a request that the Court sign an ‘Order Authorizing Medical

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Examination and Treatment’ . . . of the minor Plaintiffs.” [Id. at ¶ 35.] The Orders (one

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for each Minor Plaintiff) were entered on March 21, 2016 (the same day as the detention

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hearing) and state:

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Having found that (1) the County of San Diego Health and Human Services
Agency (“Agency”) has made reasonable efforts to locate or contact a parent
and/or guardian of the above-named child to notify them of the Agency’s
request for a medical examination and treatment of their child who is in the
care of the Agency, but such efforts have been unsuccessful; or (2) upon
request of the Agency, the child’s parent or guardian has objected to the
medical examination and treatment of the child; and/or (3) the Agency has
made reasonable efforts to schedule the examination of the child for a time
when the parent or guardian is available to attend, but such efforts have been
unsuccessful, this court orders as follows:
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The Agency may conduct a pediatric medical examination on the child
by a licensed physician while the child is in a facility operated by the Agency
or any licensed certified foster home, approved kinship/non-related extended
family member home, or public or private institution. This examination may
include blood and/or urine testing when recommended by a physician for
treatment and/or for diagnostic purposes or under the DEC Protocol. The
physician will document all observations made during the examination, as
well as any information provided by the child…

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[Id. at ¶ 36; Exs. I, J to Defendants’ Request for Judicial Notice.]2 Plaintiffs allege that

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none of the three alternative findings by the state court in the first paragraph quoted above

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are true, and that Lisk and Jemison were aware that these statements were false when they

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submitted the Orders to the state court. [Id. at ¶ 37.] Specifically, according to the SAC,

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Lisk and Jemison knew and did not inform the state court that: “(1) No effort had been

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made to ‘locate and contact’ Heather or John regarding the County’s request for the

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Defendants’ request judicial notice of eleven documents in connection with their motion to dismiss.
[Doc. No. 26-2.] Plaintiffs oppose the request only with respect to one of those documents, characterized
as an excerpt of a PCC medical log, and attached as Exhibit K to the request. [Doc. No. 29.] Because the
Court did not consider Exhibit K in connection with this opinion, the request for judicial notice is
DENIED AS MOOT with respect to that document. The request is GRANTED with respect to the
remaining documents that are not opposed by Plaintiffs.
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physical examination of the Minor Plaintiffs; (2) John and Heather were never told about

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the County’s request; (3) that John and Heather were not given the opportunity to object to

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any exams; and (4) Heather and John were never told that an examination was being

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requested or when or where the Minor Plaintiffs were scheduled for the physical

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examinations.” [Id. at ¶ 37 (emphasis omitted); see also id. at ¶ 38.]

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On March 22, 2016, “medical procedures, including examinations, were conducted

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on J.C.B. and A.J.B. . . . [T]hese examinations included . . . a full body inspection including

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the children’s genital and/or anal areas, obtaining urine to test, and drawing blood and/or

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vaccinations.” [Id. at ¶ 39.] Neither Parent was ever informed that these examinations

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would take place and were not given the opportunity to consent or object to the

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examinations.

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examinations had occurred until after the Minor Plaintiffs were released from PCC. [Id. at

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¶¶ 42, 43.]

[Id. at ¶ 41.]

Further, the Parents did not become aware that the

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II.

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Under Rule 12(b)(6), a party may bring a motion to dismiss based on the failure to

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state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the

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sufficiency of a complaint as failing to allege “enough facts to state a claim to relief that is

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plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For purposes

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of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint

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as true and construe[s] the pleadings in the light most favorable to the non-moving party.”

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Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

Legal Standards Governing Motions to Dismiss

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Even under the liberal pleading standard of Rule 8(a)(2), which requires only that a

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party make “a short and plain statement of the claim showing that the pleader is entitled to

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relief,” a “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

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elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Twombly, 550 U.S. at 555). “[C]onclusory allegations of law and unwarranted

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inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d

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1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)
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(“[A]llegations in a complaint or counterclaim may not simply recite the elements of a

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cause of action, but must contain sufficient allegations of underlying facts to give fair

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notice and to enable the opposing party to defend itself effectively.”). “Determining

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whether a complaint states a plausible claim for relief . . . [is] a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,

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556 U.S. at 679.

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III.

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The SAC asserts two claims. First, Plaintiffs assert a claim under 42 U.S.C. § 1983

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alleging that Lisk and Jemison violated Plaintiffs’ constitutional rights by causing the

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Minor Plaintiffs to undergo the medical examinations without notice to the Parents or their

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presence at the examinations. Second, Plaintiffs assert a claim under Monell v. New York

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City Department of Social Services, 436 U.S. 658 (1978), against the County alleging that

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the County’s policies and practices caused the violation of their constitutional rights

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surrounding the medical examinations of the Minor Plaintiffs.

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Discussion

A.

§ 1983 Claim Against Lisk and Jemison

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“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a

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method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S.

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266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). “To state a

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claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured

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by the Constitution or laws of the United States was violated, and (2) that the alleged

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violation was committed by a person acting under the color of State law.” Long v. Cty. of

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Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48

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(1988)). “The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been

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deprived of a right ‘secured by the Constitution and laws.’” Baker, 443 U.S. at 140.

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The Ninth Circuit recently held that “the County violates parents’ Fourteenth

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Amendment substantive due process rights when it performs the Polinsky medical

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examinations without notifying the parents about the examinations and without obtaining

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either the parents’ consent or judicial authorization.” Mann v. County of San Diego, 907
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F.3d 1154, 1160-61 (9th Cir. 2018). This is because the “Constitution assures parents that,

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in the absence of parental consent, [physical examinations] of their child may not be

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undertaken for investigative purposes at the behest of state officials unless a judicial officer

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has determined, upon notice to the parents, and an opportunity to be heard, that grounds

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for such an examination exist and that the administration of the procedure is reasonable

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under all the circumstances.” Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 2000)

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(quoting Emrik v. Chemung Cty. Dept. of Soc. Servs., 911 F.2d 863, 867 (2d Cir. 1990)).

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In addition, absent exigent circumstances, performing medical examinations of children

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without at least attempting to notify the parents or obtaining a court order also violates the

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children’s Fourth Amendment rights. Mann, 907 F.3d at 1166-67. Thus, “the County is

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constitutionally required to provide parental notice and obtain parental consent or judicial

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authorization for the protection of parents’ and children’s rights alike.” Id. at 1167.

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Defendants argue that no Constitutional rights were violated because the medical

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examinations were conducted pursuant to a court order. The rights articulated by Wallis

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and Mann, however, do not allow the County to avoid its obligation to provide notice to

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parents or eliminate the parents’ right to be present at the medical examinations. To the

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contrary, the cases make clear that a court order is required when the parents object to the

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examinations after receiving notice. See, e.g., Mann, 907 F.3d at 1163 (“Should a parent

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refuse to consent, the County may obtain judicial authorization for the examination.”)

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(emphasis added); Swartwood v. County of San Diego, 84 F.Supp. 3d 1093, 1121 (S.D.

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Cal. 2014) (“[U]nder Wallis, parental consent is unnecessary where ‘a judicial officer has

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determined, upon notice to the parents, and an opportunity to be heard, that grounds for

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such an examination exist and that the administration of the procedure is reasonable under

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all the circumstances.’” (emphasis added) (quoting Wallis, 202 F.3d at 1141). Thus, a court

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order is not an alternative to parental notice. Nor does the existence of a court order

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automatically3 entitle the County to conduct the examinations outside of the presence of

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the parents. “[A] parent’s right to notice and consent is an essential protection for the child

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and the parent, no matter what procedures are used.” Mann, 907 F.3d 1162.

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Here, the SAC alleges that the County conducted the medical examinations of the

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Minor Plaintiffs without providing notice to the Parents even though they could have

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provided notice because the Parents were participating in the juvenile court process. It

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further alleges that Lisk and Jemison, in their roles as County employees, caused these

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examinations to occur without notice to the Parents by submitting the Orders to the juvenile

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court and either misrepresenting to the juvenile court that notice had been provided or

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failing to disclose to the juvenile court that notice had not been provided. These allegations

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are sufficient to allege a violation of Plaintiffs’ constitutional rights to “family association

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[which] includes the right of parents to make important medical decisions for their children,

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and of children to have those decisions made by their parents rather than the state.” Wallis,

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202 F.3d at 1141. They also sufficiently allege a violation of the Parents’ “right arising

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from the liberty interest in family association to be with their children while they are

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receiving medical attention (or to be in a waiting room or other nearby area if there is a

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valid reason for excluding them while all or a part of the medical procedure is being

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conducted).” Wallis, 202 F.3d at 1142. Likewise, the SAC alleges a violation of the Minor

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Plaintiffs’ rights to have their Parents present during the examinations. It is less clear,

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Of course, in circumstances where the parents are out of the picture or cannot be located, a court order
making such a finding would presumably suffice to satisfy the County’s obligations not to violate the
parents’ or children’s constitutional rights because there would be a legitimate basis for conducting the
examinations outside of the parents’ presence. See generally Greene v. Camreta, 588 F.3d 1011, 1036
(9th Cir. 2009) (“The language of Wallis is clear and unambiguous: government officials cannot exclude
parents entirely from the location of their child’s physical examination absent parental consent, some
legitimate basis for exclusion, or an emergency requiring immediate medical attention.”) (vacated in part
by Greene v. Camreta, 611 F.3d 1201 (9th Cir. 2011)). Considering that the Parents here allegedly
attended a hearing before the juvenile court on the day the Orders were signed, no such legitimate basis is
apparent from the allegations in the SAC.
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however, whether the SAC can state a claim against Lisk and Jemison for these alleged

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constitutional violations.

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B.

The Rooker-Feldman Doctrine

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Defendants next argue that this Court lacks subject matter jurisdiction under the

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Rooker-Feldman doctrine because their complaint is a de facto appeal of the juvenile

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court’s order authorizing the medical examinations. In the order dismissing the FAC, the

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Court found merit in this argument, and Defendants argue that the SAC does not remedy

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any of the deficiencies identified by the Court. Although Defendants are correct that the

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SAC does not add any material factual allegations about Plaintiffs’ claims, upon further

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consideration of the law and of Plaintiffs’ allegations, the Court has concluded that its prior

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order was erroneous and that the Rooker-Feldman doctrine does not deprive the Court of

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subject matter jurisdiction.

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Under the Rooker–Feldman doctrine, “a party losing in state court is barred from

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seeking what in substance would be appellate review of the state judgment in a United

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States District Court based on the losing party’s claim that the state judgment itself violates

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the loser’s federal rights.” Johnson v. DeGrandy, 512 U.S. 997, 1005–06 (1994) (citing

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District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983), and Rooker

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v. Fidelity Trust Co., 263 U.S. 413, 416 (1923)). Review of state court decisions may only

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be conducted in the United States Supreme Court. Feldman, 460 U.S. at 476 & 486;

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Rooker, 263 U.S. at 416; see also 28 U.S.C. § 1257. The Rooker-Feldman jurisdictional

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bar applies even if the complaint raises federal constitutional issues. Feldman, 460 U.S. at

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486. More specifically, the bar applies if the challenge to the state court decision is brought

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as a § 1983 civil rights action. See Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995).

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“[A] federal district court dealing with a suit that is, in part, a forbidden de facto

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appeal from a judicial decision of a state court must refuse to hear the forbidden appeal. As

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part of that refusal, it must also refuse to decide any issue raised in the suit that is

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‘inextricably intertwined’ with an issue resolved by the state court in its judicial decision.”

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Doe v. Mann, 415 F.3d 1038, 1043 (9th Cir. 2005) (quoting Noel v. Hall, 415 F.3d 1145,
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1158 (9th Cir. 2003)). The Rooker–Feldman doctrine applies not only to final state court

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orders and judgments, but to interlocutory orders and non-final judgments issued by a state

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court as well. Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir.

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2001).

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Notwithstanding the foregoing, “for Rooker-Feldman to apply, a plaintiff must seek

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not only to set aside a state court judgment; he or she must also allege a legal error by the

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state court as the basis for that relief.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th

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Cir. 2004). “If, on the other hand, a federal plaintiff asserts as a legal wrong an allegedly

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illegal act or omission by an adverse party, Rooker–Feldman does not bar jurisdiction.”

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Noel, 341 F.3d at 1164. “A plaintiff alleging extrinsic fraud on a state court is not alleging

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a legal error by the state court; rather, he or she is alleging a wrongful act by the adverse

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party.” Kousgasian, 359 F.3d at 1140-41. “Extrinsic fraud is ‘conduct which prevents a

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party from presenting his claim in court.’” Ragan v. County of Humboldt Dept. of Health

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& Human Servs., Case No. 16-cv-05580-RS, 2017 WL 878083, at *4 (N.D. Cal. Mar. 6,

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2017) (quoting Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981)).

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Here, Plaintiffs are not arguing that the Orders were legally erroneous. Rather,

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Plaintiffs contend that Lisk and Jemison’s actions before and after the Orders are the legal

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wrongs that violated their constitutional rights. Assuming the truth of the allegations in

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the SAC, Lisk and Jemison submitted the Orders to the juvenile court for signature, outside

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of the presence of the Parents, and either without informing the juvenile court that no efforts

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had been made to provide notice to the Parents, or affirmatively misleading the juvenile

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court that such efforts had been made. By allegedly doing all of this outside of the presence

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of the Parents, Lisk and Jemison effectively prohibited the Parents from the opportunity to

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be heard by the juvenile court with respect to the propriety of the medical examinations,

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and from being present for the medical examinations themselves.4 These alleged legal

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This fact is what distinguishes this case from one that truly appeals from a state court order. If Plaintiffs
had been given the opportunity to argue, before the medical examinations took place, that the County had
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wrongs by Lisk and Jemison cannot avoid scrutiny because they were successful in

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deceiving the juvenile court. Because Plaintiffs allege “a cause of action for extrinsic fraud

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on a state court and seek[] to set aside a state court judgment obtained by that fraud,” the

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Rooker-Feldman doctrine does not bar subject matter jurisdiction. Kougasian, 359 F.3d at

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1141.

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C.

Qualified Immunity

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“Qualified immunity shields government actors from civil liability under 42 U.S.C.

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§ 1983 if ‘their conduct does not violate clearly established statutory or constitutional rights

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of which a reasonable person would have known.’” Castro v. Cty. of Los Angeles, 833

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F.3d 1060, 1066 (9th Cir. 2016) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

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818 (1982)). It “protects ‘all but the plainly incompetent or those who knowingly violate

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the law.’” Mueller v. Auker, 576 F.3d 979, 992 (9th Cir. 2009) (quoting Malley v. Briggs,

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475 U.S. 335, 341 (1986)). Because “[i]t is ‘an immunity from suit rather than a mere

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defense to liability . . . it is effectively lost if a case is erroneously permitted to go to trial.’”

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Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)) (emphasis in original). To that

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end, the Supreme Court has “repeatedly . . . stressed the importance of resolving immunity

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questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227

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(1991).

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To determine whether Lisk and Jemison are immune from suit, the court must

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consider “whether [their] conduct violated a constitutional right, and if so, whether that

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right was clearly established at the time of the event in question.” Mueller, 576 F.3d at 993

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(citing Saucier v. Katz, 533 U.S. 194, 206 (2001)). “The relevant, dispositive inquiry in

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not provided proper notice (an argument that likely would have failed considering that the Parents’ ability
to make it would mean that they had been notified of the examinations), and the juvenile court had rejected
that argument and found that notice was proper, the Rooker-Feldman doctrine would prohibit this Court
from entertaining a claim that Lisk and Jemison were liable for extrinsic fraud on the juvenile court
because the juvenile court already have considered and rejected that argument. Here, on the other hand,
Lisk and Jemison allegedly took measures to prevent Plaintiffs from making this argument to the juvenile
court by submitting the proposed order outside of Plaintiffs’ presence and without their knowledge.
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determining whether a right is clearly established is whether it would be clear to a

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reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier,

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533 U.S. at 202. In other words, the right’s “contours must be sufficiently clear that a

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reasonable official would understand that what he is doing violates that right.” Gravelet-

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Blondin v. Shelton, 728 F.3d 1086, 1092–93 (9th Cir. 2013) (quoting Hope v. Pelzer, 536

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U.S. 730, 739 (2002)). “This inquiry ‘must be undertaken in light of the specific context of

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the case, not as a broad general proposition.’” Mueller, 576 F.3d at 994 (quoting Saucier,

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533 U.S. at 201). “[T]he clearly established law must be ‘particularized’ to the facts of the

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case.” White v. Pauly, 137 S.Ct. 548, 552 (2017). “The standard is an objective one that

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leaves ‘ample room for mistaken judgments.’” Mueller, 576 F.3d at 992 (quoting Malley,

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475 U.S. at 343).

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1.

Whether a Constitutional Right Was Violated By Lisk and Jemison

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As discussed above, the constitutional rights in question here include the Parents’

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right to receive notice of and be present for medical examinations of the Minor Plaintiffs,

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and the Minor Plaintiffs’ rights to have their Parents make decisions about the medical

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examinations and be present for the examinations themselves. These rights, as a broad

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general proposition, have been clearly established under Ninth Circuit law. See, e.g.,

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Mann, 907 F.3d 1154; Wallis, 202 F.3d 1126. The question, however, is not whether

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Plaintiffs’ constitutional rights were violated by the collective actions (or inactions) of the

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County. If the allegations in the SAC are true, Plaintiffs’ rights clearly were violated

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because the Parents were never notified of the Minor Plaintiffs’ medical examinations.

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Rather, the question is whether Lisk and Jemison can be liable for the alleged constitutional

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violations as a result of their specific actions. The answer is not so clear.

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Wallis and Mann, and the other cases discussing parents’ right to advance notice

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when the County intends to conduct a medical examination of their children, say nothing

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about a constitutional right to notice from particular individuals or notice in a particular

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form.5 Lisk and Jemison would not have violated the Parents’ or Minor Plaintiffs’

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constitutional rights by failing to provide notice to the Parents if the Parents had been

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notified of the medical examinations by some other County employee. Thus, Lisk’s and

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Jemison’s alleged actions in submitting the Orders to the juvenile court did not violate

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Plaintiffs’ constitutional rights (or at least those rights established in Wallis and Mann)

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solely because Lisk and Jemison had not personally provided notice to the Parents. This is

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because the Parents only had a constitutional right to be notified of the medical

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examinations, not a constitutional right to be notified by Lisk and Jemison. 6 In any event,

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the Court need not definitively resolve here whether Plaintiffs have adequately alleged that

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Lisk and Jemison violated their constitutional rights, and can instead turn to the question

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of whether such rights were clearly established. See Pearson v. Callahan, 555 U.S. 223,

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236-42 (2009) (holding that district courts may address whether the constitutional right is

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clearly established “before turning to the more difficult question whether the relevant facts

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make out a constitutional question at all”).

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2.

Were the Constitutional Rights In Question Clearly Established?

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Even if Lisk’s and Jemison’s actions violated Plaintiffs’ constitutional rights, Lisk

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and Jemison are entitled to qualified immunity unless the constitutional rights were “clearly

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established” at the time. As stated above, “[t]o be clearly established, ‘[t]he contours of

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the right must be sufficiently clear that a reasonable official would understand that what

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[the official] is doing violates that right.’” S.B. v. County of San Diego, 864 F.3d 1010,

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1015 (9th Cir. 2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

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Also absent from Wallis and Mann is any discussion of a parent’s right to be notified when the County
seeks a court order to conduct a medical examination of a child. The cases only discuss notice from the
County of the intent to conduct the examinations themselves.
6
In this regard, this case is distinct from the many cases addressing qualified immunity with respect to a
claim of excessive force by a police officer. Individuals have a constitutional right to not be subjected to
excessive force from every police officer. Parents do not have a constitutional right (at least under Mann
and Wallis) to receive notice from any particular employee that the County intends to perform medical
examinations on their children, only the right to receive notice from someone and be given the opportunity
to be present at the examination.
12
3:18-cv-0558-CAB-(AGS)

1

The material factual allegations related to Lisk’s and Jemison’s actions can be

2

summarized as follows: (1) neither Lisk nor Jemison nor anyone else from the County ever

3

provided notice to the Parents of the County’s intent to conduct medical examinations on

4

the Minor Plaintiffs; (2) Lisk and Jemison presented the Orders to the juvenile court for

5

signature outside of the presence of the Parents and without personally notifying the

6

Parents that they were doing so or confirming that such notice had been given; (3) the

7

juvenile court signed the Orders; (4) the Parents were not made aware of the executed

8

Orders until after the dependency proceedings terminated; and (5) the medical

9

examinations of the Minor Plaintiffs occurred the day after the Orders were signed. Lisk’s

10

and Jemison’s conduct was not so obviously outside the constitutional pale that only the

11

“plainly incompetent or those who knowingly violate the law” would have done the same.

12

See Mueller, 576 F.3d at 992 (quoting Malley, 475 U.S. at 341). Thus, before imposing

13

liability on Lisk and Jemison, the Court must identify precedent as of March 21, 2016—

14

the date on which they allegedly presented the Orders to the state court judge—that put

15

them on notice that presenting a proposed order granting the County the right to conduct

16

medical examinations of the Minor Plaintiffs without having provided notice to the Parents

17

themselves, or having a good faith basis to believe that the Parents had been notified by

18

someone else, would make them liable for a violation of Plaintiffs’ constitutional rights.

19

See id. Plaintiffs offer no such authority. Absent such authority, it could not have been

20

clear to Lisk and Jemison that their alleged conduct was unlawful. Saucier, 533 U.S. at

21

202.

22

Although the SAC repeatedly states that Lisk and Jemison made affirmative

23

misrepresentations to the juvenile court it does not allege any facts that support these

24

conclusions. Instead, at best, the SAC allows the Court to infer only the mere possibility

25

of misconduct by Lisk and Jemison, which is insufficient to state a claim. See Iqbal, 556

26

U.S. at 679 (“[W]here the well-pleaded facts do not permit the court to infer more than the

27

mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that

28

the pleader is entitled to relief.’”) (citing Fed. R. Civ. P. 8(a)(2)). If Plaintiffs had alleged
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3:18-cv-0558-CAB-(AGS)

1

facts sufficient to demonstrate affirmative misrepresentations to the juvenile court if proven

2

true, Lisk and Jemison would not be entitled to qualified immunity because a social worker

3

accused of committing perjury in court dependency proceedings is not entitled to qualified

4

immunity. Hardwick v. County of Orange, 844 F.3d 1112, 1118-20 (9th Cir. 2017).

5

Plaintiffs have already had three opportunities to make such allegations, and considering

6

that the Parents were not present at any alleged conversations between Lisk and Jemison

7

and the juvenile court concerning the Orders, leave to amend to make specific allegations

8

concerning what Lisk or Jemison told the Court when presenting the Orders would be

9

futile.7 In light of the foregoing, Lisk and Jemison are entitled to qualified immunity on

10

Plaintiffs’ section 1983 claim. The first claim in the SAC is dismissed with prejudice.

11

D.

The Monell Claim Against the County

12

Following Monell v. Department of Social Services, 436 U.S. 658 (1978), “it is well-

13

settled that in claims brought under 42 U.S.C. § 1983, municipalities are liable only for

14

constitutional violations resulting from an official ‘policy or custom.’” Fed’n of African

15

Am. Contractors v. City of Oakland, 96 F.3d 1204, 1216 (9th Cir. 1996) (quoting Monell,

16

436 U.S. at 694). “[A] municipality cannot be held liable solely because it employs a

17

tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a

18

respondeat superior theory.” Monell, 436 U.S. at 691 (emphasis in original). “Where a

19

court fails to adhere to rigorous requirements of culpability and causation, municipal

20
21
22
23
24
25
26
27
28

7

In their opposition brief, Plaintiffs effectively concede that they have no information about any specific
representations made by Lisk and Jemison to the juvenile court. Instead, Plaintiffs argue that Lisk and
Jemison must have made some sort of misrepresentation simply because the juvenile court entered the
Orders. [Doc. No. 28 at 16-17.] To adequately plead a claim that would overcome qualified immunity,
Plaintiffs must allege exactly what Lisk and Jemison each told the juvenile court, and not simply that one
or both of them must have said something to the juvenile court that would have caused it to make at least
one of the three findings contained in the Orders. Plaintiffs simply assume that Lisk and Jemison must
have perjured themselves, but they do not allege any facts about the actual statements to the juvenile court
that constituted perjury. Because “the doctrine of qualified immunity assumes that [government actors]
do not knowingly violate the law,” Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994), Plaintiffs
cannot simply assume that Lisk and Jemison knowingly perjured themselves to overcome qualified
immunity.
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3:18-cv-0558-CAB-(AGS)

1

liability collapses into respondeat superior liability.” Bd. of Cty. Comm’rs v. Brown, 520

2

U.S. 397, 415 (1997).

3

“The ‘first inquiry in any case alleging municipal liability under § 1983 is the

4

question whether there is a direct causal link between a municipal policy or custom and the

5

alleged constitutional deprivation.’” Castro, 833 F.3d at 1075 (quoting City of Canton,

6

Ohio v. Harris, 489 U.S. 378, 392 (1989)). “[I]t is not enough for a § 1983 plaintiff to

7

merely identify conduct properly attributable to the municipality. The plaintiff must also

8

demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’

9

behind the injury alleged.” Brown, 520 U.S. at 404. Here, the SAC alleges that in 2015,

10
11
12
13
14
15
16
17
18

the County enacted a policy that:
no medical examination may occur at PCC unless or until there is a signed
consent for that examination or a court order. Additionally, prior to seeking
a court order for a medical examination, the social worker must take
reasonable steps to locate the parent and obtain consent. This policy specifies
that if the child is removed on or after 2/10/15 and a parent is available to sign
the consent form, the social worker must ask one parent to sign the Consent
for Examination form, indicating whether he or she wants to be present at the
intake examination. The social worker is required to make every attempt to
have a parent sign a consent form for a child entering protective custody.
Social workers must address whether the parent signed or did not sign the
Consent form in the Detention Report.

19

[Doc. No. 18 at ¶ 17 (emphasis in original).] Based on this 2015 Policy, the Ninth Circuit

20

held in Mann that “the County’s current policy is to obtain parental consent and provide

21

advance notice to the parents so that they can be present at the examination.” Mann, 907

22

F.3d at 1166. The SAC does not allege, and Plaintiffs do not argue, that this 2015 Policy

23

caused the alleged violations of Plaintiffs’ constitutional rights.

24

essentially assume that because the 2015 Policy allegedly was not followed here, it also

25

must not be followed in other situations. However, as discussed in the order dismissing

26

the FAC, “[a] plaintiff cannot prove the existence of a municipal policy or custom based

27

on solely on the occurrence of a single incident of unconstitutional action by a non-

28

policymaking employee.” Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir.

Instead, Plaintiffs

15
3:18-cv-0558-CAB-(AGS)

1

1989); see also City of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989) (“[A]dequately

2

trained officers occasionally make mistakes; the fact that they do says little about the

3

training program or the legal basis for holding the city liable.”).

4

The SAC also does not remedy any of the defects identified in the order dismissing

5

the FAC to the extent Plaintiffs attempt to assert a Monell claim based on a failure to train.

6

The SAC offers no factual allegations. It only makes conclusions of inadequate training

7

based “on information and belief” without identifying the facts on which that “information

8

and belief” is based. City of W. Sacramento, California v. R & L Bus. Mgmt., No. 2:18-

9

CV-900 WBS EFB, 2018 WL 6019340, at *2 (E.D. Cal. Nov. 16, 2018) (“While facts may

10

be alleged on information and belief, conclusory allegations asserted on such a basis are

11

insufficient to state a claim.”). Accordingly, for all of the reasons discussed for dismissal

12

of the Monell claim in the FAC, this Monell claim in the SAC is dismissed as well.

13

IV.

14

As discussed above, it is hereby ORDERED as follows:

15

1. The motion to dismiss is GRANTED with respect to the first claim in the SAC

16

Disposition

on the grounds that Lisk and Jemison are entitled to qualified immunity;

17

2. The motion to dismiss is GRANTED with respect to the second claim in the SAC

18

because Plaintiffs have failed to allege a direct causal link between a County

19

policy, custom, or practice and the alleged constitutional violations; and

20

3. Because Plaintiffs have already amended their complaint twice and any further

21

amendments would be futile, the SAC is DISMISSED WITH PREJUDICE.

22
23

It is SO ORDERED.
Dated: February 12, 2019

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