Fakoya et al v. County of Clark

Filing 27

ORDER Denying Clark County's 4 12(b)(6) Motion to Dismiss. FURTHER ORDERED that Clark County's 10 12(c) Motion to Dismiss is Granted in Part and Denied in Part. The Fakoyas have until Friday, October 31, 2014, to amend any claims dismissed without prejudice. Signed by Judge Jennifer A. Dorsey on 10/8/2014. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

Victor Fakoya et al.,

10

Plaintiffs

11

v.

12

County of Clark,

13

Case No.: 2:12-cv-02149-JAD-CWH
Order Denying 12(b)(6) Motion to Dismiss
[Doc. 4] and Granting in Part and Denying in
Part 12(c) Motion to Dismiss [Doc. 10]

Defendant

14
15

This § 1983 civil-rights action arises out of multiple criminal and civil proceedings against

16

Victor Fakoya, who was acquitted in Nevada state court of murdering a two-year-old boy whose

17

family was living with the Fakoyas. Victor and Lola Fakoya, and their two minor daughters who

18

sue through Lola Fakoya, bring this action against Clark County for civil-rights violations and state-

19

law torts that they claim the District Attorney’s (“DA”) office and Child Protective Services

20

(“CPS”) committed in investigating and prosecuting Mr. Fakoya. Clark County seeks to dismiss the

21

Fakoyas’ claims. It argues that the DA and CPS enjoy absolute immunity because the challenged

22

conduct is the result of discretionary, prosecutorial or quasi-prosecutorial decisions.1 And even if

23

absolute immunity does not apply, the County contends, the Fakoyas’ allegations are “legally

24

unsupportable” and must be dismissed under Rule 12(b)(6).2 Having considered the parties’ filings,

25

their oral arguments, and the relevant law, I deny the 12(b)(6) motion to dismiss and grant in part

26
27

1

Doc. 4 at 8.

28

2

Doc. 10 at 3.
Page 1 of 23

1

and deny in part the 12(c) motion to dismiss for the reasons below.3

2
3

Background
Victor Fakoya and his family are Nigerian immigrants.4 After they moved to Las Vegas,

4

they hosted another immigrant family with a two-year-old son, who died while home with Mr.

5

Fakoya. The Nevada DA’s office investigated Mr. and Mrs. Fakoya for the child’s death, charged

6

Mr. Fakoya with murder, and brought no charges against his wife. He stood trial twice in Nevada

7

state court: the first jury hung and the second acquitted him. Mr. Fakoya spent two years in pretrial

8

detention because he could not afford to post bond. He returned home on December 21, 2010. Mr.

9

Fakoya was removed from his home again on December 23, 2010, and Clark County initiated

10

family-court proceedings against him on January 6, 2011, arguing under the lower civil standard that

11

his parental rights should be terminated because of the alleged murder. A post-deprivation hearing

12

occurred the second week in January.

13

For more than five months after he was removed from his home, Mr. Fakoya was permitted

14

supervised visitation with his children, which Mrs. Fakoya oversaw. The Fakoyas allege that

15

officials from the DA’s office and CPS used coercive tactics to elicit an admission from Mr. Fakoya

16

that he murdered the two-year-old boy—and they advised Mrs. Fakoya that she must either divorce

17

her husband or lose custody of their daughters.

18

The Fakoyas believe civil proceedings were initiated against Mr. Fakoya in retaliation for his

19

acquittal and for comments on his criminal trial. The Fakoyas also allege that the DA’s office

20

opposed Mr. Fakoya’s effort to seal his criminal record—a routine procedure after an acquittal. He

21

has been permitted to return to his family, but whether the civil proceedings have concluded is

22

unclear from the complaint.
Discussion

23
24

Two motions to dismiss are before the court: one under Federal Rule of Civil Procedure

25

12(b)(6) for failure to state a claim on which relief can be granted and one under Rule 12(c) for

26
3

Doc. 26.

27
4

28

This background discussion is based on the complaint and on arguments made in the
motions hearing and is not intended as any finding of fact.
Page 2 of 23

1

judgement on the pleadings.5 I consider each motion in turn.

2

I.

3

Rule 12(b)(6) Motion to Dismiss
Rule 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is

4

entitled to relief.” The purpose is to afford defendants fair notice “of what the . . . claim is and the

5

grounds upon which it rests.”6 Defending a complaint against a Rule 12(b)(6) attack “requires more

6

than labels and conclusions”; it calls on plaintiffs to plead factual allegations “enough to raise a right

7

to relief above the speculative level.”7 This requires a plaintiff to state claims raising a plausible

8

likelihood that the defendant engaged in misconduct for which the law—and the court—can offer

9

relief.

10

A plaintiff must state his claim with enough facts, which the court will take as true and

11

construe in the light most favorable to him, to be plausible on its face.8 Pleading facts “merely

12

consistent with a defendant’s liability” may suggest possible legal liability.9 It does not rise to the

13

requisite level of plausibility.10 Bare and unsubstantiated allegations will not suffice; there must be

14

some substance on which the court might find defendants violating the law and thereby grant a legal

15

or equitable remedy. Courts need not accept merely conclusory claims, unwarranted factual

16

deductions, or unreasonable inferences.11 Complaints are only dismissed if, beyond doubt, “the

17
18
19

5

20

6

21
22
23
24
25

Doc. 4; Doc. 10.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)) (internal quotation marks omitted).
7

Id. (quoting 5 Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure §
1216 (3d ed. 2004)) (internal quotation marks omitted) (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)).
8

See id. at 556, 570 (requiring complaints to raise a reasonable expectation that discovery
will yield evidence of legal violations); see also Zimmerman v. City of Oakland, 255 F.3d 734, 737
(9th Cir. 2001).
9

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).

26
10

Id.

27
11

28

Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (citing Clegg v. Cult Awareness
Network, 18 F.3d 752, 754–55 (9th Cir. 19984)).
Page 3 of 23

1

plaintiff can prove no set of facts in support of the claim that would entitle” him to relief.12

2

A.

3

The County argues that the Fakoyas fail to allege any tortious conduct beyond the DA’s

Federal Claims: Absolute Immunity

4

“activities in prosecuting and enforcing the laws within Clark County—as [it] understand[s] them.”13

5

The defense urges that all claims arising from the DA’s conduct must be dismissed because absolute

6

immunity covers prosecutorial actions.14 Similarly, the County argues that “CPS was involved in

7

doing the exact same actions, within their realm of authority,” as the DA was, making absolute

8

immunity “co-extensive” for both municipal subdivisions.15

9

There is a fundamental problem with the County’s argument: “municipalities have no

10

immunity from damages liability flowing from their constitutional violations.”16 The Fakoyas sue

11

only the County, not any individual employee who may claim the benefit of prosecutorial-function

12

immunity. In a line of cases dating back to 1978, the Supreme Court’s “decisions make it quite clear

13

that, unlike various government officials, municipalities do not enjoy immunity from suit—either

14

absolute or qualified—under § 1983.”17 Because Clark County is a municipality, any immunity that

15

its prosecutors or CPS officials may enjoy does not shield the municipal entity from suit. The

16
17

12

Id. (citing Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999)).

18

13

See Doc. 4 at 4.

19

14

Id. at 4–6.

20

15

Doc. 4 at 7.

21

16

22
23
24
25
26
27
28

Owen v. City of Independence, Mo., 445 U.S. 622, 657 (1980); see also Nurre v.
Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) (citing Leatherman v. Tarrant Cnty. Narcotics
Intelligence & Coordination, 507 U.S. 163, 166–167 (1993); Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 690, 693 (1978)) (“Because qualified immunity does not apply to municipalities, we
would then have to determine under Monell whether the Everett School District is liable for acts
taken in furtherance of district policy by Whitehead.”); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.
1996) holding modified on other grounds by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) (citing
Owen) (“Even though the Councilmembers are entitled to qualified immunity, the City may still be
subject to municipal liability for causing a constitutional violation under 42 U.S.C. § 1983.”); Cruz
v. Kauai Cnty., 279 F.3d 1064, 1067 n.1 (9th Cir. 2002) (citing Owen) (“The County is not protected
by Soong’s qualified immunity.”).
17

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
166–67 (1993) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Owen v. City of
Independence, Mo., 445 U.S. 622, 657 (1980)).
Page 4 of 23

1

12(b)(6) motion to dismiss based on immunity is denied with respect to the Fakoyas’ federal claims.

2

B.

State Claims: Civil Immunity

3

In its 12(b)(6) motion, the County also argues that CPS should be immune from civil liability

4

for the Fakoyas’ state-law claims under Nevada Revised Statute § 432B.160.18 This statute shields

5

the person who “makes a report, conducts an interview, takes photographs, holds or places a child in

6

protective custody, refers a case or recommends the filing of a petition pursuant to NRS 432B.380,

7

or participates in judicial proceedings resulting from a referral or recommendation”19 when these

8

actions are undertaken “in good faith.”20

9

On a motion to dismiss, the court must take all facts as pled to be true, however credible or

10

incredible.21 Each state claim in the Fakoyas’ complaint alleges that the County’s departments acted

11

in “retaliation” for Mr. Fakoya’s acquittal, “with the intent” to cause harm, or “intentionally

12

disregarding the [plaintiffs’] constitutional rights”—all factual allegations inconsistent with good

13

faith.22 And in Nevada, “good faith is a question of fact.”23 These allegations sufficiently preclude

14

the court from applying NRS 432B.160 to dismiss these claims at this stage in the litigation.

15

C.

16

As a municipality, Clark County can claim no immunity from the Fakoyas’ federal claims.

Motion Disposition

17

And the Fakoyas’ allegations—which must be taken as true—are inconsistent with a finding of good

18

faith to trigger NRS § 432B.160. Accordingly, the 12(b)(6) motion to dismiss is denied in its

19

entirety.

20
21

18

Doc. 4 at 6.

22

19

Id.

23

20

Nev. Rev. Stat. § 432B.160.

24

21

Neitzke v. Williams, 490 U.S. 319, 327 (1989).

25

22

See Doc. 1 at 9–11.

26

23

27
28

See, e.g., Consol. Generator-Nevada, Inc. v. Cummins Engine Co., 971 P.2d 1251, 1256
(Nev. 1998) (citing Mitchell v. Bailey & Selover, Inc., 605 P.2d 1138, 1139 (Nev. 1980))
(discussing good faith with respect to a manufacturer’s contract); Mitchell v. Bailey & Selover, Inc.,
605 P.2d 1138, 1139 (Nev. 1980) (discussing good faith with respect to whether a marriage was
valid).
Page 5 of 23

1

II.

2

Rule 12(c) Motion to Dismiss
The Fakoyas assert six federal claims under 42 U.S.C. §§ 1983 and 1985: due process,

3

freedom of association, equal protection, family association, Monell municipal liability, and

4

conspiracy to interfere with civil rights.24 They also bring state claims under Nevada law: abuse of

5

process, civil conspiracy, concert of action, intentional infliction of emotional distress, and loss of

6

consortium.25 Clark County’s Rule 12(c) motion to dismiss seeks judgment on all eleven claims.26

7

Federal Rule of Civil Procedure 12(c) provides that “after the pleadings are closed—but

8

early enough not to delay trial—a party may move for judgment on the pleadings.” When a Rule

9

12(c) motion challenges a complaint for failure to state a claim, as the County does here, “a motion

10

for judgment on the pleadings faces the same test as a motion under Rule 12(b)(6).”27 Dismissal

11

may be granted “only if it is clear” that no set of facts consistent with the allegations could support

12

relief.28

13

A.

14

To state a claim under §1983, the Fakoyas must allege that (1) the claimed misconduct was

15

committed under color of state law, and (2) the conduct deprived plaintiff of federal constitutional

16

rights.29 Municipalities cannot be held liable for the § 1983 violations of their employees under a

17

respondeat superior theory;30 for a municipal entity to be liable for the violation of a constitutional

Federal Claims

18
19
20
21
22
23
24

24

Doc. 1 at 5–9; see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

25

Doc. 1 at 8–11.

26

Doc. 10.

27

King v. Garfield Cnty. Pub. Hosp. Dist. No. 1, 12-CV-0622-TOR, 2014 WL 1404576, at
*3 (E.D. Wash. Apr. 10, 2014) (citing McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir.
1988)).
28

McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) (citations omitted).

25
29

26
27
28

See, e.g., Ovando v. City of L.A., 92 F. Supp. 2d 1011, 1017 (C.D. Cal. 2000) (citing
Daniels v. Williams, 474 U.S. 327 (1986)).
30

Oklahoma City v. Tuttle, 471 U.S. 808, 819–20 (1985) (quoting Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694–95 (1978)); see generally Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978).
Page 6 of 23

1

right, the violation must be the result of an official county policy or practice as articulated by the

2

Supreme Court in Monell v. Department of Social Services. Under Monell, courts must “distinguish

3

acts of the municipality from acts of employees of the municipality, and thereby make clear that

4

municipal liability is limited to action for which the municipality is actually responsible.”31 A

5

municipal entity is liable only for constitutional violations resulting from policy or custom, or the

6

acts of its official policymakers.32 I therefore examine the Fakoyas’ federal constitutional tort claims

7

for Monell liability.

8

1.

Claim one: due process

9

The Fakoyas’ first cause of action is for violations of substantive and procedural due

10

process.33 They allege that the County violated their rights in “refiling the original petition for child

11

abuse and wrongful death of the two year old without lawful justification,” persisted in this conduct

12

after they “knew or should have known” of Mr. Fakoya’s innocence, and employed coercive tactics

13

that would have led to false information if Mr. Fakoya had wrongly admitted to the accused

14

conduct.34 Whether plaintiffs include any coercive tactics against Mrs. Fakoya in this count is

15

unclear.35

16

a.

Procedural due process

17

Clark County argues that the Fakoyas’ claim is not that Mr. Fakoya was deprived of his

18

rights without a hearing, but rather that he “had some amorphous right to not have a claim filed

19

against him at all.”36 The defense points out that filing an action in family court is a procedure—and

20

maintains that, because Mr. Fakoya does not argue that he was denied the opportunity to be heard in

21
22
23

31

Pembaur v. City of Cincinatti, 475 U.S. 469, 479–80 (1986) (emphases in original).

24

32

Monell, 436 U.S. at 690–91.

25

33

Doc. 1 at 5.

26

34

Id.

27

35

See Doc. 1 at 5.

28

36

Doc. 10 at 4.
Page 7 of 23

1

a meaningful time or manner, the complaint fails to state a procedural-due-process violation.37

2

Plaintiffs rely on the Ninth Circuit’s decision in Ram v. Rubin38 for the proposition that “the removal

3

of children from their father’s home without prior notice or hearing, where the children were not in

4

imminent danger, would violate clearly established constitutional law,” and they argue the same

5

principles should have precluded Mr. Fakoya’s removal from his family and their home.39 Ram

6

acknowledges a parent’s “constitutionally protected right to the care and custody of his children”

7

and that a father may “not be summarily deprived of that custody without notice and a hearing,

8

except when the children [are] in imminent danger.”40

9

The allegations in plaintiffs’ complaint fail to state a procedural-due-process claim. The

10

Fakoyas’ substantive- and procedural-due-process claims are combined in a single paragraph of

11

conclusory allegations; virtually nothing is said about the procedure—or lack thereof—that preceded

12

and followed Mr. Fakoya’s removal from his home.41 The additional allegations on which Monell

13

liability is predicated are similarly devoid of any reference to the hearing procedure employed here

14

or the absence thereof.42 Accordingly, this claim is dismissed for failure to state a procedural-due-

15

process claim.

16

b.

Substantive due process

17

The County next argues that its conduct does not rise to the level of conscience-shocking

18

behavior that is required to state a viable substantive-due-process claim.43 The plaintiffs respond

19
20
21
22
23
24
25

37

Id.

38

Ram v. Rubin, 118 F.3d 1306 (9th Cir. 1997).

39

Doc. 15 at 4-5.

40

Ram, 118 F.3d at 1310 (citing Perkins v. City of West Covina, 113 F.3d 1004, 1008 (9th
Cir. 1997)).

26

41

27

42

Id.

28

43

Doc. 10 at 5.

Doc. 1 at 5, ¶ 21.

Page 8 of 23

1

that discovery is needed to determine the full extent of wrongful conduct here.44 In a substantive-

2

due-process case, the plaintiff must identify conduct “so egregious, so outrageous, that it may fairly

3

be said to shock the contemporary conscience.”45

4

Plaintiffs have alleged a colorable substantive-due-process theory. They allege that County

5

officials removed Mr. Fakoya from his family at Christmastime, as he returned home for the first

6

time in two years after being acquitted of murder—and did so for retaliatory purposes and not as a

7

legitimate exercise of government authority. And they allege that County officials instructed Mrs.

8

Fakoyas that she must either divorce her husband or surrender her children. A reasonable jury could

9

find that these actions shock the contemporary conscience.

10

And these allegations plausibly implicate a substantive-due-process right. The test for a

11

substantive-due-process right is twofold: whether the right is “objectively, deeply rooted in this

12

Nation’s history and tradition” and whether “the crucial guideposts” of “[o]ur Nation’s history, legal

13

traditions, and practices” support the right.46 The fundamental rights recognized under substantive

14

due process include “personal decisions relating to marriage . . . family relationships, child rearing,

15

and education,” which often “involv[e] the most intimate and personal choices a person may make in

16

a lifetime.” With respect to marriage, “the Constitution undoubtedly imposes constraints on the

17

State’s power to control the selection of one’s spouse that would not apply to regulations affecting

18

the choice of one’s fellow employees.”47 And the Supreme Court has long and specifically

19

recognized the “essential,” “basic,” and “precious” rights to conceive and raise children.48 As the

20
21

44

Doc. 15 at 4.

22

45

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998).

23

46

24
25

Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Moore v. City of E.
Cleveland, 431 U.S. 494, 503 (1977)) (citations omitted); see also Michael H. v. Gerald D., 491
U.S. 110, 122 (1989)).
47

Id. at 620 (citing Loving v. Virginia, 388 U.S. 1, 12 (1967); Ry. Mail Ass’n v. Corsi, 326
U.S. 88, 93–94 (1945)).

26
48

27
28

Stanley v. Illinois, 405 U.S. 645, 651 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390,
399; Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); May v. Anderson, 345 U.S. 528, 533 (1953))
(internal quotation marks omitted).; see also Roberts v. U.S. Jaycees, 468 U.S. 609, 619–20 (1984)
(“Family relationships, by their nature, involve deep attachments and commitments to the
Page 9 of 23

1

Ninth Circuit recognized in Brittain v. Hansen,49 “It is long-settled that custodial parents have a

2

liberty interest in the ‘companionship, care, custody, and management’ of their children.” This

3

interest does not evaporate simply because they have not been model parents or have lost temporary

4

custody of their child to the state.50 In Smith v. City of Fontana,51 the Ninth Circuit panel wrote that

5

§ 1983 permits parents to challenge “a state’s severance of a parent-child relationship as interfering

6

with their liberty interests in the companionship and society of their children.”52 “This constitutional

7

interest in familial companionship and society logically extends to protect children from

8

unwarranted state interference with their relationships with their parents” because “[t]he

9

companionship and nurturing interests of parent and child in maintaining a tight familial bond are

10

reciprocal, and we see no reason to accord less constitutional value to the child-parent relationship

11

than we accord to the parent-child relationship.”53

12

The Fakoyas allege that County officials removed Mr. Fakoya from his family at Christmas,

13

on the heels of his release from state jail, even though officials should have known he was innocent

14

of the murder charges brought against him. DA and CPS employees then sought to sever Mr.

15

Fakoya’s parental rights, arguing under the lower civil standard that he was an unfit parent because

16

he had killed a child in his home. The authority by which officials removed an adult parent from his

17
18
19
20
21
22

necessarily few other individuals with whom one shares not only a special community of thoughts,
experiences, and beliefs but also distinctively personal aspects of one’s life.”).
49

Brittain v. Hanse Brittain v. Hansen, 451 F.3d 982, 992 (2006) (quoting Stanley v. Illinois,
405 U.S. 645, 651 (1972)). See also Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925) (citing
Meyer v. Nebraska, 262 U.S. 390, 397 (1923)); Moore v. City of E. Cleveland, 431 U.S. 494, 511
(1977) (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974)) (internal quotation
marks omitted)’ (recognizing even extended family members’ right to live together because “family
life [] is one of the liberties protected by the Due Process Clause.”).

23

50

24

51

25
26

Santoksy v. Kramer, 455 U.S. 745, 753 (1982).

See, e.g., Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987), overruled on
other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (citing Morrison v.
Jones, 607 F.2d 1269 (9th Cir. 1979)); Kolley v. Adult Protective Servs., 725 F.3d 581, 585–86 (6th
Cir. 2013); Silven v. Ind. Dep’t of Child Servs., 635 F.3d 921 928–29(7th Cir. 2011); Zakrzewski v.
Fox, 87 F.3d 1011, 1014 (8th Cir. 1996).

27

52

Id. (citing Morrison v. Jones, 607 F.2d 1269 (9th Cir. 1979)).

28

53

Id.
Page 10 of 23

1

own home—rather than removing the Fakoyas’ minor daughters, as is typically done, if there was a

2

threat to the children’s welfare—is presently unclear. Yet taking the facts pled as true, it could be

3

implied that County officials interfered with Mr. Fakoya’s right to oversee his daughters’ care and

4

upbringing, and he thus states a plausible substantive-due-process claim.

5

Lola Fakoya has also alleged a plausible substantive-due-process claim. She alleges that DA

6

and CPS officials used coercive tactics during the civil investigatory process when they “repeatedly”

7

told her that she had to choose either marriage to her husband or custody of her children.54 The

8

Fourteenth Amendment right to select one’s own spouse is well-established—and, if County

9

officials were indeed forcing Mrs. Fakoya to choose between her marriage and her children, they

10

may have interfered with this right.

11

The Fakoyas have also adequately pled their substantive-due-process claim against the

12

County under a Monell theory by alleging a policy and custom of these rights violations. They

13

allege that “CPS workers in general fail to conduct proper investigations into allegations of abuse”

14

before moving to deprive parents of their parental rights, and that the County is aware of the

15

violations that DA and CPS officials commit on a continuing basis.55 These allegations are

16

sufficient for the Fakoyas to defeat the 12(c) dismissal challenge of their substantive-due-process

17

claim.

18

2.

Claim two: freedom of association

19

For their second claim for relief, the Fakoyas allege a violation of their First and Fourteenth

20

Amendment freedom of association. While First Amendment jurisprudence recognizes the intimate

21

association found in family,56 the right to family association arises not under the First Amendment

22

but under the Fourteenth Amendment’s Due Process Clause, which protects “freedom of personal

23

choice in matters of marriage and family life.”57 This claim is subsumed within the due process

24
25

54

Doc. 1 at 4.

26

55

Doc. 1 at 8.

27

56

See Jaycees, 468 U.S. at 619–20.

28

57

See, e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974) (citations omitted).
Page 11 of 23

1

claim in count one and fails to state a separate claim under the First Amendment. Accordingly, the

2

Fakoyas’ second claim is dismissed without leave to amend.

3

3.

Claim three: equal protection

4

Plaintiffs’ third claim is for violation of their Fourteenth Amendment right to equal

5

protection. The factual allegations for this claim are thin: plaintiffs allege that “Victor and Lola

6

were not treated with equal protection of the law after Victor’s acquittal, but were rather subjected to

7

having the law twisted and perverted against them in violation of the fourteenth amendment.”58

8

They now add that they are black, from a foreign country, and members of a class of one, and that

9

Mrs. Fakoya was additionally treated disparately because she is female.59 But none of these

10
11

allegations is found in the complaint itself.
More problematic is the absence of Monell theory allegations necessary to state an equal

12

protection claim against the County. The complaint is completely devoid of any fact to suggest that

13

the County has a policy, practice, or custom of the type of disparate treatment the Fakoyas intended

14

to allege here. Accordingly, the Fakoyas have failed to state a plausible claim for a municipal

15

violation of their right to equal protection under the law. Their third cause of action is dismissed.

16

4.

17

The Fakoyas’ fourth claim is for violation of their right to family relations.60 Like their

Fourth claim: family relations

18

second claim for relief, this one is subsumed within their due-process claim in count one.61 As there

19

is no right to family relations separate from that recognized under the Fourteenth Amendment’s

20

substantive-due-process guaranty, this claim is dismissed with prejudice.

21

5.

Fifth claim: municipal liability

22

Plaintiffs’ fifth claim is for “violation of” § 1983 and “municipal liability.”62 There are a

23
24

58

25

59

Doc. 15 at 6–7.

26

60

Doc. 1 at 7.

27

61

Id. at 5, 7.

28

62

Id. at 7–8.

Doc. 1 at 6.

Page 12 of 23

1

number of problems with this cause of action. First, 42 U.S.C. § 1983 provides a mechanism for the

2

private enforcement of substantive rights conferred by the Constitution and federal statutes;63 it “is

3

not itself a source of substantive rights, but merely provides a method for vindicating federal rights

4

elsewhere conferred.”64 Similarly, “Monell does not provide a separate cause of action . . . it extends

5

liability to a municipal organization where that organization’s . . . policies or customs that it has

6

sanctioned[] led to an independent constitutional violation.”65 Without a constitutional violation, no

7

§ 1983 liability lies—under a Monell theory or otherwise.66

8
9

I liberally construe the allegations in this fifth “cause of action” as the Monell-required
allegations for plaintiffs’ due process claims, but nothing more.67 Though segregated into a separate

10

claim, this set of allegations cannot stand on its own. I dismiss this claim with leave to amend to

11

incorporate these § 1983- and Monell-based theories and factual allegations into plaintiffs’ first

12

claim for relief.

13
14

6.

Sixth claim: conspiracy

The Fakoyas’ final federal claim is for conspiracy to interfere with their civil rights under 42

15

U.S.C. § 1985(3).68 Section 1985(3) is not a source of substantive rights; it merely “provides a

16

remedy for violation of the rights it designates.”69 Conspiracy under § 1985 has four elements: “(1)

17

a conspiracy; (2) for the purpose of depriving a person of the equal protection of the laws; (3) an act

18

in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or

19
20
21
22
23
24
25

63

Graham v. Connor, 490 U.S. 386, 393–94 (1989).

64

Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137,
144 n. 3 (1979)) (internal quotation marks omitted).
65

Segal v. N.Y.C., 459 F.3d 207, 219 (2d Cir. 2006) (emphasis in original); Houskins v.
Sheahan, 549 F.3d 480, 493-94 (7th Cir. 2008) (citing cases).
66

See id.; Monell v. Department of Social Svcs. of N.Y.C., 436 U.S. 658 (1978); see Aguilera
v. Baca, 510 F.3d 1161, 1174 (9th Cir. 2007).

26

67

Doc. 15 at 9 (quoting Doc. 1 at 8).

27

68

Doc. 1 at 8–9.

28

69

Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 370 (1979).
Page 13 of 23

1

deprived of a right or privilege of a United States citizen.”70 Clark County seeks to dismiss this

2

claim, arguing that it cannot incur conspiracy liability for conspiring with its own employees.71 The

3

intracorporate-conspiracy doctrine recognizes that “a corporation cannot conspire with its own

4

employees or agents.”72 But the Ninth Circuit “has not yet addressed whether individual members of

5

a single governmental entity can form a ‘conspiracy’ within the meaning of section 1985”73 and the

6

other circuits are split.74

7

I need not decide whether the intracorporate-conspiracy doctrine should apply here because

8

plaintiffs have a more fundamental problem: they have not stated an equal-protection deprivation to

9

support a § 1985 claim. The inclusion of the “equal protection of the laws” language in § 1985(3)75

10

“was intended” by its adopters “to prevent the statute from creating a general federal criminal or tort

11

law” and to “limit the types of actionable private conspiracies to those involving class-based

12

animus.”76 Thus, “the intended victims must be victims not because of any personal malice the

13

conspirators have toward them, but because of their membership in or affiliation with a particular

14

class,” and “the class must exist independently of the defendants’ actions; that is, it cannot be

15

defined simply as the group of victims of the tortious action.”77 Plaintiffs have not pled an equal-

16

protection violation, and their allegations that Mr. Fakoya was subjected to these experiences “in

17
18
19
20
21
22
23
24
25
26

70

Mustafa v. Clark Cnty. Sch. Dist., 157 F.3d 1169, 1181 (9th Cir. 1998).

71

Doc. 10 at 13–14.

72

Hoefer v. Fluor Daniel, Inc., 92 F. Supp. 2d 1055, 1057 (C.D. Cal. 2000) (citing
Washington v. Duty Free Shoppers, 696 F.Supp. 1323, 1325 (N.D. Cal.1988)) (footnote omitted).
73

Id. (quoting Portman v. Cnty. of Santa Clara, 995 F.2d 898, 910 (9th Cir.1993)) (internal
quotation marks omitted).
74

Id. at 1057–58 (citations omitted). See also Dickerson v. Alachua Cnty. Cmm’n, 200 F.3d
761, 768–69, 769 n.9 (11th Cir. 2000); Hoefer v. Fluor Daniel, Inc., 92 F. Supp. 2d 1055, 1057–58
(C.D. Cal. 2000).
75

Along with the “equal privileges and immunities” language. United Broth. of Carpenters
& Joiners of Amer. v. Scott, 463 U.S. 825, 849 (1983).

27

76

United Broth. of Carpenters, 463 U.S. at 849.

28

77

Id. at 850.
Page 14 of 23

1

retaliation of [him] being acquitted of criminal charges by a jury of his peers” suggests that this had

2

nothing to do with class-based animus.78 Plaintiffs’ § 1985(3) claim is dismissed.

3

B.

4

Having considered the Fakoyas’ federal claims, I now consider the County’s challenges to

5

their five state-law claims.

6
7

State Claims

1.

Seventh claim: abuse of process

Abuse of process in Nevada has two elements: “(1) an ulterior purpose by the defendants

8

other than resolving a legal dispute, and (2) a willful act in the use of the legal process not proper in

9

the regular conduct of the proceeding.”79 It can arise from either criminal prosecutions or civil

10

proceedings.80 For their abuse-of-process claim, the Fakoyas allege that Clark County acted “in

11

retaliation of Victor being acquitted of criminal charges by a jury of his peers.”81 The County

12

challenges this claim as insufficient because “the legal process had already been instituted prior to

13

the acquittal and was reactivated at the end of the acquittal,”82 and the retaliation theory is

14

conclusory and unsupported by any allegation of fact.83 The Fakoyas respond by identifying 18

15

paragraphs of their complaint that they believe allege willful conduct for the ulterior purpose of

16

retaliation.84 That conduct includes the County’s decision to civilly charge Mr. Fakoya after his

17

acquittal, its alleged attempt to force Mrs. Fakoya to choose between her husband and her children,

18
19
20
21
22
23
24

78

Doc. 1 at 9, ¶ 43.

79

LaMantia v. Redisi, 38 P.3d 877, 879 (Nev. 2002) (quoting Posadas v. City of Reno, 851
P.2d 438, 444–45 (Nev. 1993)) (internal quotation marks omitted).
80

Id. (citing Restatement (Second) of Torts § 653 cmts. c, f & § 655 (1977); Lewis v.
Continental Airlines, Inc., 80 F. Supp. 2d 686, 699 (S.D. Tex. 1999); Schroeder v. De Bertolo, 912
F. Supp. 23, 26 (D.P.R. 1996); Randall v. Lemke, 726 N.E. 2d 183, 186 (2000)).

25

81

Doc. 1 at 9.

26

82

Doc. 10 at 16 (emphasis in original).

27

83

Id.

28

84

Doc. 15 at 11.
Page 15 of 23

1
2

and the forced separation of the Fakoya family.85
The Fakoyas’ abuse of process claim is inadequately pled. First, what conduct they base this

3

claim on is not entirely clear: they only reference “a course and pattern of conduct with an ulterior

4

purpose other than resolving a legal dispute” and “willful” conduct “in retaliation of [Mr. Fakoya]

5

being acquitted of criminal charges by a jury of his peers.”86 These mere labels and conclusions do

6

not raise a right to relief beyond the speculative level.87 Moreover, to the extent the Fakoyas base

7

their claim on the County’s initiation or reinitiation of the civil proceedings against Mr. Fakoya, it

8

fails as a matter of law because merely commencing a proceeding is not an abuse of process; the

9

abuse must occur during the legal process itself.88 The Fakoyas’ abuse-of-process claim is

10

dismissed.

11
12

2.

Eighth claim: civil conspiracy

Civil conspiracy in Nevada requires “a combination of two or more persons who, by some

13

concerted action, intend to accomplish an unlawful objective for the purpose of harming another,

14

and damage results from the act or acts.”89 Clark County again relies on the intracorporate-

15

conspiracy doctrine and argues that this state-law claim must be dismissed because a municipality

16

cannot conspire with itself. The Fakoyas respond that, “[w]hether or not the individual state actors

17

were acting on their own behalf for their own interests is a question of fact which will be resolved by

18

discovery” and acknowledge that summary judgment may be warranted if “discovery does not yield

19
20
21

85

See Doc. 1 at 3–11.

22

86

Id. at 9.

23

87

24
25

Twombly, 550 U.S. at 555. At oral argument, the Fakoyas’ counsel elaborated that the
Fakoyas believe Clark County’s decision to initiate civil proceedings was retaliation for comments
that Mr. Fakoya—and his criminal attorney, Norman Reed—made about how the public-defender’s
office handled the criminal case. Counsel also stated that former District Attorney David Roger said
“why are you doing this?” and added that juries sometimes just get things wrong. No facts to
support these theories are alleged in the complaint. See Doc. 1.

26
88

Laxalt v. McClatchy, 622 F. Supp. 737, 751–52 (D. Nev. 1985).

27
89

28

Consol. Generator-Nevada, Inc. v. Cummins Engine Co., Inc., 971 P.2d 1251, 1256 (Nev.
1998) (quoting Hilton Hotels v. Butch Lewis Productions, 862 P.2d 1207, 1210 (Nev. 1993)).
Page 16 of 23

1

that the individual state actors” were acting on their own.90

2

Whether the Nevada Supreme Court would extend this principle to departments of municipal

3

entities is unknown.91 But the Fakoyas have not pled this claim against individual state actors. They

4

allege only that “CPS and the District Attorneys [sic] office acted in concert by agreement” and that

5

“the concerted efforts of CPS and the District Attorneys office” left the Fakoyas damaged.92 As it

6

appears that the Fakoyas acknowledge they currently have no facts to support their own civil-

7

conspiracy argument, this claim is dismissed without prejudice to its reassertion if and when

8

plaintiffs have gathered the facts to state a plausible conspiracy claim.

9
10

3.

Ninth claim: concert of action

Plaintiff’s ninth claim for relief alleges that “CPS and the District Attorney office acted in

11

concert with one another to destroy the Fakoya household and right to familial association.”93

12

Though related to civil conspiracy, concert of action is a separate tort.94 Liability for concert of

13

action may arise when “two persons commit a tort while acting in concert with one another or

14

pursuant to a common design.”95 The acts must be “inherently dangerous or pose[] a substantial risk

15

of harm to others.”96 Mere joint negligence is not enough.97 The tort is traditionally “quite narrow”

16

in application: its classic application is in the drag-racing context where one driver is the cause-in-

17

fact of the plaintiff’s injury and another racer bears culpability, too.98 The public policy behind the

18
19

90

20

91

21

Doc. 15 at 12.

See, e.g., Collins v. Union Fed. Sav. & Loan Ass’n, 622 P.2d 1207, 1210 (Nev. 1993)
(discussing the intracorporate-conspiracy doctrine outside the civil-rights context).

23
24
25

Id. at ¶ 46.

93

Doc. 1 at 10, ¶ 49.

94

Dow Chem. Co. v. Mahlum, 970 P.2d 98, 111 (Nev. 1998) (citation omitted).

95

Dow Chem., 970 P.2d at 111 (citing Restatement (Second) of Torts § 876).

96

GES, Inc. v. Corbitt, 21 P.3d 11, 15 (Nev. 2001).

97

22

92

Id. (citing Nev. Rev. Stat. § 41.141(5)(d)).

26
27
98

28

Dow Chem., 970 P.2d at 111 (citing Santiago v. Sherwin-Williams Co., 794 F.Supp. 29, 31
(D. Mass.1992)).
Page 17 of 23

1

recognition of a concert-of-action tort is to “deter antisocial or dangerous behavior.”99 As the

2

Nevada Supreme Court has indicated, concert of action “is largely confined to isolated acts of

3

[adolescents] in rural society.”100

4

Clark County challenges the Fakoyas’ concert-of-action claim as inadequately pled: it is

5

devoid of allegations of the type of inherently dangerous conduct this tort was designed to address;

6

and, as divisions of the same municipal entity, CPS and the District Attorney’s office cannot legally

7

act in concert.101 It appears that the concert-of-action tort is a poor fit for the conduct that forms the

8

basis for the Fakoyas’ claims. Whether they could state a concert-of-action claim between legally

9

distinct defendants remains to be seen. For now, however, they have not: the Fakoyas allege

10

conduct not by individuals but by two departments of a single municipal entity; and, more

11

importantly, the allegations lack the inherently-dangerous-tort facts necessary to state a claim under

12

this narrow legal theory. Accordingly, claim nine is dismissed.

13
14

4.

Tenth claim: intentional infliction of emotional distress

The plaintiffs’ tenth claim is for intentional infliction of emotional distress. This tort has

15

three elements in Nevada: “(1) extreme and outrageous conduct with either the intention of, or

16

reckless disregard for, causing emotional distress, (2) the plaintiff’s having suffered severe or

17

extreme emotional distress and (3) actual or proximate causation.”102 To be extreme and outrageous,

18

the conduct must be “outside all possible bounds of decency” and regarded as “utterly intolerable in

19

a civilized community.”103 Clark County argues that the allegations “do not support any inference

20
21
22
23
24

99

Id. (quoting Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996)).

100

Dow Chem., 970 P.2d at 111 (quoting Halberstam v. Welch, 705 F.2d 472 (D.C.
Cir.1983)).

25

101

26

102

Doc. 10 at 17–18.

Star v. Rabello, 625 P.2d 90, 91–92 (Nev. 1981) (citing Cervantes v. J. C. Penney, Inc.,
595 P.2d 975 (Nev. 1979)).

27
103

28

Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998) (citation omitted) (internal
quotation marks omitted).
Page 18 of 23

1

that such emotional distress existed or that Defendant acted in an outrageous manner.”104

2

The County is half right: plaintiffs have not alleged any emotional distress, let alone severe

3

emotional distress. The closest they get is their allegation that Mr. Fakoya “cried every night when

4

he had to leave his house after visiting his family.”105 Their allegations of retaliation, baselessly

5

removing a father from his children, and threatening a wife with the loss of her children unless she

6

divorces her husband are plausibly outrageous and extreme. But because plaintiffs have not alleged

7

any facts that indicate they suffered severe or extreme emotional distress, they have failed to state an

8

intentional infliction of emotional distress claim, and this claim must be dismissed.

9
10

5.

Eleventh claim: loss of consortium

The Fakoyas’ final claim is for loss of consortium. Nevada law recognizes that “[a]n action

11

for loss of consortium is derivative of the primary harm to the physically injured spouse (parent).”106

12

The County argues that the Fakoyas’ loss-of-consortium claim fails because they allege no physical

13

injury for which loss-of-consortium recovery can lie.107 Plaintiffs do not respond to this argument in

14

their opposition. The Fakoyas’ failure to allege any physical injury prevents their recovery for loss

15

of consortium. Accordingly, this claim is dismissed.

16
17

6.

Affirmative defense: discretionary immunity

Finally, Clark County raises the defense of discretionary immunity from all state claims.108

18

It argues that “how to best investigate a potentially dangerous condition” and how to “safely protect

19

those children until the risk of harm involving children could be evaluated in Court” are

20

discretionary functions.109 Plaintiffs counter that Clark County’s conduct is not the kind

21
22

104

Doc. 10 at 20.

23

105

Doc. 1 at 1, ¶ 17.

24

106

25

Motenko v. MGM Dist., Inc., 921 P.2d 933, 941 (Nev. 1996), overruled on other grounds
by Gen. Motors Corp. v. Eighth Judicial Dist. Court of State of Nev. ex rel. Cnty. of Clark, 134 P.3d
111 (Nev. 2006).

26

107

Doc. 10 at 23.

27

108

Doc. 10 at 20–21.

28

109

Id. at 21.
Page 19 of 23

1

discretionary immunity is intended to protect—first because it does not involve the kind of social,

2

economic, or political policy for which the doctrine is developed, and second because failure to

3

supervise and train employees is an “operational function” for which Clark County does not enjoy

4

immunity.110

5

NRS 41.032 shields from suit state action “[b]ased upon the exercise or performance or the

6

failure to exercise or perform a discretionary function or duty.” Because this statute mirrors the

7

Federal Tort Claims Act (“FTCA”), courts “turn[] to federal decisions to aid in formulating a

8

workable test for analyzing claims of immunity under NRS 41.032(2).”111 Protected acts are (1)

9

discretionary because “they involve an element of judgment or choice” and must be (2) the kind for

10

which the discretionary-function exception was intended.112 The focus is “on the nature of the

11

actions taken and on whether they are susceptible to policy analysis,” not on whether actors “made a

12

conscious decision regarding policy considerations.”113 But just as under the FTCA, good faith is

13

required: NRS 41.032 will not shield a state actor from tort liability for even discretionary conduct if

14

he acts in bad faith114 because “an act of bad faith has no relationship to a rightful prerogative even if

15

the result is ostensibly within the actor’s ambit of authority.”115

16

The Fakoyas’ allegations—though too thin to plead a number of their attempted claims—are

17

sufficient to prevent me from dismissing based on discretionary immunity. The Fakoyas have

18

alleged that DA and CPS officials acted in “retaliation” for Mr. Fakoya’s acquittal, “with the intent”

19

to cause harm, and while “intentionally disregarding the [plaintiffs’] constitutional rights”—all

20
21
22

110

Doc. 15 at 13–14.

23

111

Martinez v. Maruszczak, 168 P.3d 720, 727 (Nev. 2007).

24

112

Id. at 728 (citations omitted) (internal quotation marks omitted).

25

113

Id. (citations omitted) (internal quotation marks omitted).

26

114

27
28

Sandoval v. Las Vegas Metro. Police Dep’t, 12-15654, 2014 WL 2936254, *at 10 (9th
Cir. July 1, 2014) (quoting Davis v. City of Las Vegas, 478 F.3d 1048, 1059 (9th Cir. 2007))
(discussing Nevada Revised Statute § 41.032).
115

Falline v. GNLV Corp., 823 P.2d 888, 892 n.3 (Nev. 1991).
Page 20 of 23

1

factual allegations inconsistent with good faith.116 And Nevada analyzes good faith as a question of

2

fact.117 Accordingly, dismissal based on an application of NRS 41.032 is not currently available.

3

C.

4

In sum, Clark County’s second motion to dismiss is granted in part and denied in part.

5
6

Motion Disposition and Leave to Amend

Among the dismissed claims, I deny three with prejudice and permit amendment on the remainder.
Courts “freely give leave [to amend] when justice so requires.”118 The tendency of federal

7

courts is to permit new chances: the Ninth Circuit states that “[t]his policy is to be applied with

8

extreme liberality.”119 “If the underlying facts or circumstances relied upon by a plaintiff may be a

9

proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.”120

10

Amendment is liberally offered in federal courts, but it is not limitlessly offered. If the

11

district court finds reasons that justify denying opportunity to amend—“such as undue delay, bad

12

faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

13

amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the

14

amendment, [or] futility of amendment”—then the court has discretion to foreclose amendment.121

15

Here, “[t]he consideration of prejudice to the opposing party carries the greatest weight.”122 If a

16

plaintiff repeatedly fails to cure deficiencies, after several opportunities to amend, the court may

17
18
19
20
21
22
23
24
25

116

See Doc. 1 at 9–11.

117

See, e.g., Consol. Generator-Nevada, 971 P.2d at 1256 (citation omitted); Mitchell, 605
P.2d at 1139.
118

Fed. R. Civ. P. 15(a)(2); see also Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma Cnty.,
708 F.3d 1109, 1117 (9th Cir. 2013) (citing Fed. R. Civ. P. 15(a); Owens v. Kaiser Found. Health
Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)) (writing that “[i]n general, a court should liberally
allow a party to amend its pleading.”).
119

C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 985 (9th Cir. 2011)
(quoting Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)) (internal
quotation marks omitted).
120

Forman v. Davis, 371 U.S. 178, 182 (1962).

121

See id.

26
27
122

28

Sonoma, 708 F.3d at 1117 (quoting Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1052 (9th Cir. 2003)).
Page 21 of 23

1

deny further amendment unless it finds “that the allegation of other facts consistent with the

2

challenged pleading could not possibly cure the deficiency.”123

3

Plaintiffs state a substantive-due-process claim, so this part of their first cause of action

4

survives dismissal. Plaintiffs’ freedom-of-association, family-relations, and municipal-liability

5

claims are dismissed without leave to amend because they are subsumed by the due-process claim.

6

The remaining claims are dismissed without prejudice for failure to state a claim on which relief can

7

be granted, but I do not find that amendment would be necessarily futile or otherwise inappropriate

8

as to these claims. Leave to amend these claims is therefore granted. Plaintiffs are reminded that

9

any substantive claims they bring against the County must include a municipal-liability

10

component.124 If the Fakoyas wish to amend, they have until October 31, 2014, to file an amended

11

complaint containing true factual allegations that satisfy all elements of the claims and cure the

12

deficiencies identified in this order.

13

III.

14

Discovery
The court previously approved the parties’ oral stipulation to stay discovery until the pending

15

motions to dismiss were decided.125 Because this order resolves both motions, the discovery stay is

16

now lifted.

17

Conclusion

18

Accordingly, and with good cause appearing,

19

It is hereby ORDERED that Clark County’s 12(b)(6) Motion to Dismiss [Doc. 4] is

20
21
22

DENIED.
It is further ORDERED that Clark County’s 12(c) Motion to Dismiss [Doc. 10] is
GRANTED in part and DENIED in part:

23
24
25
26

123

Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (citing Forman v.
Davis, 371 U.S. 178, 182–83 (1962)); DeSoto v. Yellow Freight Sys., Inc., 957 F.2 655, 658 (9th Cir.
1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.3d 1393, 1401 (9th Cir.
1986)) (internal quotation marks omitted).

27

124

See supra at p. 13.

28

125

Doc. 26.
Page 22 of 23

1
2

The procedural-due-process part claim (claim 1) is dismissed with leave to amend. The
substantive-due-process part of their first claim survives (also claim 1).

3

The freedom-of-association claim (claim 2) is dismissed without leave to amend.

4

The equal-protection claim (claim 3) is dismissed with leave to amend.

5

The family-relations claim (claim 4) is dismissed without leave to amend.

6

The municipal-liability claim (claim 5) is dismissed without leave to amend.

7

The § 1985 conspiracy claim (claim 6) is dismissed with leave to amend.

8

The abuse-of-process claim is dismissed (claim 7) with leave to amend.

9

The state civil-conspiracy claim (claim 8) is dismissed with leave to amend.

10
11

The intentional-infliction-of-emotional distress claim (claim 9) is dismissed with leave to
amend.

12

The concert-of-action claim (claim 10) is dismissed with leave to amend.

13

The loss-of-consortium claim is (claim 11) dismissed with leave to amend.

14

The Fakoyas have until Friday, October 31, 2014, to amend any claims dismissed without

15

prejudice if they can plead true facts to support the elements of the dismissed claims and cure the

16

defects identified in this order.

17

DATED October 8, 2014.

18
19
20

_________________________________
Jennifer A. Dorsey
United States District Judge

21
22
23
24
25
26
27
28
Page 23 of 23