Chen et al v. The City of Redmond, et al

Filing 170

ORDER granting City Defendants' 106 Motion for Summary Judgment Against Susan Chen; granting in part, denying in part and denying as moot in part City Defendants' 108 Motion for Summary Judgment Against Naixing Lian, J.L., and L.L.; granting in part and denying in part Plaintiffs' 141 Motion for Summary Judgment against City Defendants. Signed by Judge James L. Robart. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SUSAN CHEN, et al.,

CASE NO. C16-1877JLR

Plaintiffs,

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v.

ORDER ON MOTIONS FOR
SUMMARY JUDGMENT

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NATALIE D’AMICO, et al.,
Defendants.

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I.

INTRODUCTION

Before the court are: (1) Defendants City of Redmond (“the City”) and Natalie

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D’Amico’s (collectively, “City Defendants”) motion for summary judgment against

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Plaintiff Susan (Shiying) Chen (1st MSJ (Dkt. # 106)); City Defendants’ motion for

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summary judgment against Plaintiffs Naixing (Nash) Lian, J.L., and L.L. (Ms. Chen, Mr.

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Lian, J.L., and L.L. are collectively referred to as “Plaintiffs”) (2d MSJ (Dkt. # 108)); and

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Plaintiffs’ motion for summary judgment against City Defendants (3d MSJ (Dkt. # 141)).

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The parties filed responses and replies to the motions. (See 1st Resp. (Dkt. # 155); 2d

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Resp. (Dkt. # 151); 3d Resp. (Dkt. # 142); 1st Reply (Dkt. # 166); 2d Reply (Dkt. # 165);

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3d Reply (Dkt. # 143); see also Joinder (Dkt. # 144).) The court has considered the

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motions, the parties’ submissions concerning the motions, the relevant portions of the

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record, and the applicable law. Being fully advised, 1 the court GRANTS City

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Defendants’ summary judgment motion against Ms. Chen; GRANTS in part, DENIES in

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part, and DENIES as moot in part City Defendants’ summary judgment motion against

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Mr. Lian, J.L., and L.L.; and GRANTS in part and DENIES in part Plaintiffs’ motion for

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summary judgment against City Defendants.

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II.
A.

BACKGROUND

J.L.’s Medical History
Ms. Chen and Mr. Lian are the parents of J.L. and L.L. (FAC (Dkt. # 96) ¶¶ 3-7;

Lian Decl. (Dkt. # 122) ¶ 2; Chen Decl. (Dkt. # 131) ¶ 1.) J.L. was born in 2008, and

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Ms. Chen requests oral argument on City Defendants’ first summary judgment motion.
(See 1st Resp. at 1.) The general rule is that the court should not deny a request for oral
argument made by a party opposing a motion for summary judgment unless the motion is denied.
Dredge Corp. v. Penny, 338 F.2d 456, 462 (9th Cir. 1964). However, a district court’s denial of
a request for oral argument on summary judgment does not constitute reversible error in the
absence of prejudice. Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (citing Fernhoff v.
Tahoe Reg’l Planning Agency, 803 F.2d 979, 983 (9th Cir. 1986)). There is no prejudice in
refusing to grant oral argument where the parties have ample opportunity to develop their legal
and factual arguments through written submissions to the court. Id. (“When a party has an
adequate opportunity to provide the trial court with evidence and a memorandum of law, there is
no prejudice [in refusing to grant oral argument] . . . .”) (quoting Lake at Las Vegas Investors
Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991)) (alterations in
Partridge). Ms. Chen has provided the court lengthy written submissions in opposition to City
Defendants’ summary judgment motion (see generally 1st Resp.), as well as in support of
Plaintiffs’ summary judgment motion (see generally 3d MSJ; 3d Reply). The court has
determined that oral argument would not be of assistance in deciding any of the pending
summary judgment motions, see Local Rules W.D. Wash. LCR 7(b)(4), and thus DENIES Ms.
Chen’s request for oral argument.

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L.L. was born in 2010. (FAC ¶¶ 6-7.) In 2012, J.L. was diagnosed with gastrointestinal

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(“GI”) problems and Autism Spectrum Disorder. (Chen Decl. ¶¶ 3-7; see also Lo Decl.

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(Dkt. # 132) ¶ 2, Exs. B-L at RED00721. 2) GI issues are common in children with

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autism. (See Green Decl. (Dkt. # 129) ¶ 6.) From August 2012 to October 2013,

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Plaintiffs took J.L. to several medical providers, including a naturopath, to address his GI

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issues. (See 1st Resp. at 5 (citing medical records).)

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One of J.L.’s medical providers is Dr. John Green, an autism specialist in Portland,

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Oregon. (See Green Decl. ¶¶ 2-11.) J.L. first saw Dr. Green in October 2012. (Id.) At

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this appointment, Dr. Green recommended a low carbohydrate diet for J.L. (See id. ¶ 19

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(“[M]y Case Summary also discusses various low carbohydrate diets that I

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recommended.”); RED00575 (“No sugar, no potato, no rice, no yams or sweet

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potatoes.”).) Because Dr. Green was in Portland and Plaintiffs are in Washington (see

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Lian Decl. ¶ 1), Plaintiffs allege that Dr. Green referred J.L. to Dr. Hatha Gbedawo (see

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Chen Decl. ¶ 10; Gbedawo Decl. (Dkt. # 158) ¶ 6; but see RED00565 (Dr. Green’s case

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summary, explaining that he “subsequently learned that [J.L.’s] care had been transferred

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in April 2013 to Hatha Gbedawo ND.”)). Dr. Gbedawo is a “board certified naturopathic

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physician,” who saw J.L. nine times between April 2013 and October 2013. (Gbedawo

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Decl. ¶¶ 2, 7.)

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Documents cited solely as “REDXXXXX” are sealed documents that were part of
Detective D’Amico’s investigative file for the investigation of Ms. Chen. (See Dkt. # 133.)
These documents are attached to the declaration of T. Augustine Lo as exhibits B-L. (See Lo.
Decl. ¶ 2.)

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On October 7, 2013, Ms. Chen took J.L. to see Dr. Kate Halamay at Pediatric

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Associates. (RED00351-53.) Dr. Halamay had seen J.L. previously. (E.g., RED00339.)

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According to the notes from the October 7 appointment, J.L. had been experiencing

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abdominal pain for around six weeks. (RED00351.) Dr. Halamay recommended that

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Ms. Chen take J.L. to the GI department at Seattle Children’s Hospital (“SCH”), but Ms.

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Chen declined, stating that “she has seen them for the past 14 months and they ‘have not

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done anything for [J.L.]’” (RED00352.) Dr. Halamay’s notes show that J.L. only visited

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the SCH GI department once in the prior year. (Id.) Ms. Chen then asked Dr. Halamay

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to order a number of labs, but Dr. Halamay refused because she was “unfamiliar with

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several of them and would not know how to interpret them.” (RED00353.)
On October 19, 2013, Ms. Chen and Mr. Lian took J.L. to Dr. Julie Ellner at

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Mercer Island Pediatrics, in part hoping that Dr. Ellner would order the labs they were

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seeking. (See RED00107; Chen Decl. ¶ 27-28.) Dr. Ellner’s notes state that Ms. Chen

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was worried that J.L. has a “severe problem with kidney or liver,” that he was losing

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weight, and was eating poorly. (RED00107.) Ms. Chen told Dr. Ellner that J.L. had

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laboratory tests at a hospital in New York, as well as an ultrasound, which showed that

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there was something wrong with J.L.’s liver. (Id.) However, Ms. Chen did not bring the

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lab results to Dr. Ellner; nor was she able to remember the doctor or the hospital where

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the tests were performed. (Id.) Dr. Ellner referred J.L. to the emergency room. (Id.)

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Later that day, instead of going to the emergency room, Ms. Chen took J.L. to

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Pediatric Associates. (See RED00356-58; D’Amico Decl. (Dkt. # 107) ¶ 3h, Ex. H

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(“CPS Docs”) at RED00050-51.) Similar to Dr. Ellner, Dr. Roberta Winch at Pediatric

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Associates told Ms. Chen to take J.L. to emergency care. (RED00358 (“IT IS VERY

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IMPORTANT [J.L.] BE SEEN FOR FURTHER EVAL IN THE ED [emergency

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department] AT SCH. I RECCOMEND [sic] THEY GO NOW. PARENTS AGREED

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TO BE SEEN AT SCH ED AND SAID THEY WILL GO THERE NOW.”).) Ms. Chen

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says that she did not understand Dr. Winch’s instruction. (See Chen Decl. ¶ 27.) Instead,

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Ms. Chen took J.L. to SCH’s urgent care to have lab work done. (Id.; RED00853-55.)

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Ms. Chen returned to SCH urgent care on October 20, 2013, to pick up J.L.’s lab

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work. (Chen Decl. ¶ 28.) Once there, doctors told Ms. Chen that J.L.’s lab work was

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abnormal, showing elevated levels of creatinine and blood urea nitrogen (“BUN”). (Id.)

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Ms. Chen then took J.L. to SCH emergency care. (Id.; CPS Docs at RED00050-51.)

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That day, Dr. Russell Migita in SCH’s emergency department examined J.L. and

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performed additional tests, which showed J.L. improved since his October 19, 2013, lab

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results, but were still “not normal.” (RED00370-75.) Dr. Migita also expressed that J.L.

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“would benefit from having a coordinated workup that includes endocrinology,

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gastroenterology, and nephrology.” (RED00374.) However, Dr. Migita discharged J.L.

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from the hospital on October 20, 2013, because he did not have “hypertensive emergency

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at this time and d[id] not meet the eminent risk criteria for medical hold.” (See

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RED00374-75.) Dr. Migita released J.L. on the understanding that Ms. Chen and Mr.

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Lian would follow-up with J.L.’s primary care provider. (RED00374-75 (noting “Plan”

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to see Dr. Halamay “[w]ithin 1 to 3 days”).)

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On October 23, 2013, Ms. Chen brought J.L. to see Dr. Gbedawo. (Chen Decl.
¶ 31; Gbedawo Decl. ¶ 8.) Dr. Gbedawo understood that J.L. had been to emergency and

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urgent care a few days earlier and that he had been discharged “as non-emergent.”

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(Gbedawo Decl. ¶ 8.) At the appointment, Dr. Gbedawo “did not recommend that [Ms.

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Chen] take J.L. to the emergency department.” (Id.) Rather, he recommended that Ms.

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Chen take J.L. “to a nephrologist and a nutritionist for additional consultations, and

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ordered additional labs and imaging.” (Id.)

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Later that day, Ms. Chen took J.L. to Dr. Halamay, as she had been instructed by

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Dr. Migita. (Chen Decl. ¶ 32.) According to Dr. Halamay’s notes, Dr. Hal Quinn at

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Mercer Island Pediatrics, who had seen J.L. previously, called Dr. Halamay before the

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appointment. (RED00397; RED00105-06.) Dr. Quinn:

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[E]xpressed great concern about this pt as well as family, feels that he his
[sic] very sick, concern about failure to thrive, has lost several pounds since
April, concerned that family has been going from dr to dr but that pt is not
actually receiving appropriate medical attention.

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(Id.) At the October 23 appointment, Dr. Halamay noted that J.L. appeared “[v]ery tired”
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and continued to “have distended abdomen,” though Ms. Chen said his condition was
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improving. (RED00397.) Dr. Halamay also noted that Ms. Chen was confused about
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doctors’ instructions from October 19 and 20 to take J.L. to certain specialists. (Id.) Dr.
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Halamay recommended that Ms. Chen admit J.L. to the hospital “at once” so that he
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could be seen by renal, endocrine, and GI specialists. (Id.) Ms. Chen “refused to take
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[J.L.] for admission, even after [Dr. Halamay] stated that [she] felt admission was
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medically necessary given his abdominal distension, weight loss, and worsening lab
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values compared to those drawn a few weeks ago.” (Id.)
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Ms. Chen recalls that she “felt as though Dr. Halamay and SCH were dismissive

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and had not provided proper care for [J.L.]” (Chen Decl. ¶ 32.) Further, Ms. Chen told

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Dr. Halamay at the October 23 appointment that she “would not go back to see [Dr.

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Halamay] anymore” and that she “would make a complaint against her.” (Id.) Dr.

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Halamay told Ms. Chen that, if Ms. Chen did not admit J.L. to the hospital, then she was

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going to call the Child Protective Services (“CPS”) division of the Washington State

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Department of Social and Health Services (“DSHS”). (Id.; RED00397.) Ms. Chen

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restated that she would not take J.L. to SCH and left Dr. Halamay’s office. (Id.) Dr.

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Halamay then called CPS. (RED00397; CPS Docs at RED00051.)

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Late at night on October 23, 2013, a CPS social worker arrived at Plaintiffs’ home

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and took J.L. to SCH’s emergency department. (See 3d MSJ at 7; but see Chen Decl.

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¶ 33 (stating that “[a]t [CPS]’s recommendation, we took J.L. to SCH.”).) J.L. was seen

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on October 24, 2013, by Dr. Virginia Sanders and Dr. Shannon Staples. (See

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RED00791.) According to Dr. Sanders’s summary, J.L.’s showed a “failure to thrive . . .

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[and] gross malnutrition and muscle wasting. Concern for medical cause of wasting vs.

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neglect.” (RED00792.) J.L. was then admitted to SCH’s “general medicine service” to

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treat his malnutrition and receive a Suspected Child Abuse Network (“SCAN”)

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consultation. (Id.)

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While at SCH on October 24, 2013, providers gave J.L. Pedialyte even though Ms.

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Chen told them that “whenever [J.L.] eats sugar his belly gets big.” (RED00927,

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RED00930.) Ms. Chen also told the SCH providers that J.L. “cannot eat many foods,

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including carbohydrates or sugar,” but Ms. Chen was unable to “identify any food that he

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does eat.” (RED00927-28.) In addition, Ms. Chen interfered with providers’ attempts to

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give J.L. Pedialyte. (D’Amico Decl. ¶ 3c, Ex. C (“D’Amico Report”) at RED00015.)

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The doctors noted that Ms. Chen was “asked to leave” the hospital room “because of her

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erratic and obstructionist behavior.” (RED00930.) However, after J.L. consumed several

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ounces of Pedialyte, J.L. “reaccumulated significant abdominal distention,” which

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required the doctors to use a catheter to relieve the distention. (Id.)

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B.

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J.L.’s Placement in Foster Care
CPS removed J.L. and L.L. from Ms. Chen and Mr. Lian’s custody on October 24,

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2013. (See 3d MSJ at 7.) A 72-hour dependency hearing was held from October 28 to

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October 30, 2013, to determine if J.L. should be removed from Plaintiffs’ home. (See

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FAC ¶ 59.) Dr. Green and Dr. Gbedawo provided testimony in support of Ms. Chen at

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the dependency hearing. (See id.) After the hearing, L.L. was returned to Ms. Chen and

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Mr. Lian, but J.L. remained in CPS’s custody. (Id. ¶ 61; 3d MSJ at 7 n.8.) J.L. was kept

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at SCH until November 7, 2013, at which time he was placed into foster care. (See

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RED01139.) It appears that J.L. remained in CPS’s custody until September 12, 2014,

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when the Attorney General’s Office (“AGO”) terminated his dependency proceedings.

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(See Lo Decl. ¶ 9, Ex. S; see also FAC ¶ 72; but see (Riensche Decl. (Dkt. # 110) ¶ 3, Ex.

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3 (“Exception Justification”) at 14 (explaining that J.L. was returned to Mr. Lian’s care in

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July 2014).)

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J.L.’s weight fluctuated during his first weeks in CPS’s custody. (See

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RED01102-39.) For example, J.L. weighed 26.9 pounds when he was admitted to SCH

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on October 24, 2013, which is the third percentile. (RED00791.) By November 3, 2013,

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J.L.’s weight increased to 32.19 pounds. (RED01126.) However, by the time J.L. was

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placed in foster care on November 7, 2013, his weight had decreased to 30.2 pounds.

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(RED01138.) On November 20, 2013, after J.L. had been in foster care for nearly two

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weeks, his weight had decreased even further to 29 pounds. (RED00109 (but noting that

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that J.L. is “doing much better now” and that his weight is in the thirteenth percentile).)

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C.

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Detective D’Amico’s Investigation
Detective D’Amico was assigned to investigate Plaintiffs on October 24, 2013.

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(See D’Amico Report at RED00008-22.) Two month prior, Detective D’Amico had

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received 40 hours of specialized training in “Child Abuse Interviewing and Assessment.”

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(Shickich Decl. (Dkt. # 167) ¶ 10, Ex. A.) Detective D’Amico started the investigation

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by following up on work done by RPD Officer Paul Chung and Seattle Police

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Department (“SPD”) Officer Michael Severance. (D’Amico Report at RED00009-10.)

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As part of Officer Chung’s initial investigation, he learned that CPS “believed [Ms.

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Chen] was suffering from Munchausen Syndrome 3 and therefore would purposely harm

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[J.L.] as a result of this to gain attention.” (Id. at RED00010.)

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On the morning of October 24, 2013, Detective D’Amico visited J.L. at SCH. (Id.

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at RED00011.) Afterward, Detective D’Amico went with Detective Lieutenant Matthew

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Peringer to Plaintiffs’ residence and spoke with Ms. Chen and Mr. Lian. (Id. at

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It appears that CPS meant that it believed Ms. Chen was suffering from Munchausen by
Proxy, which “is a psychological disorder marked by attention-seeking behavior by a caregiver
through those who are in their care,” rather than Munchausen Syndrome, which “is a type of
mental illness in which a person repeatedly acts as if he or she has a physical or mental disorder
when, in truth, he or she has caused the symptoms.” (See 2d Resp. at 29 n.142.)

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RED00011-12.) Detective D’Amico and Detective Lieutenant Peringer interviewed Ms.

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Chen and Mr. Lian without the use of an interpreter even though English was their

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second language. (Id. at RED00012; Chen Decl. ¶ 39; Lian Decl ¶ 14.) Detective

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D’Amico focused the interview on J.L.’s diet. (Id.) According to Detective D’Amico,

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Ms. Chen said that J.L. was on a “special diet that was gluten free and lacked

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carbohydrates.” (D’Amico Report at RED00012.) Ms. Chen and Mr. Lian contest this

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characterization, saying that they explained that they provided J.L. with fresh fruit and

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gluten-free bread. (Chen Decl. ¶¶ 39-40.) All agree, though, that it was explained at this

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meeting that Mr. Lian did most of the cooking. (See D’Amico Report at RED00012;

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Lian Decl. ¶ 16.) After the meeting, Detective D’Amico went back to SCH where she

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spoke with “several” physicians who explained that J.L.’s kidneys were in a pre-renal

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state caused by dehydration and that his liver was not functioning properly. (See

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D’Amico Report at RED00013.)

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On October 25, 2013, Ms. Chen and Mr. Lian went to a meeting at the CPS office.

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(Chen Decl. ¶ 42.) Detective D’Amico attended the meeting. (Id.; D’Amico Report at

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RED00013.) Ms. Chen and Mr. Lian claim that, at the meeting, they told CPS about Dr.

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Green’s dietary advice to restrict carbohydrates. (Chen Decl. ¶ 42; Lian Decl. ¶ 17.)

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After the meeting, CPS reported that it was “concerned for the imm[edi]ate safety of

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[J.L.] in parents’ care,” and was “recommend[ing] out of home placement for [J.L.] upon

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his discharge from the hospital.” (CPS Docs at RED00069.)

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On November 5, 2013, Detective D’Amico participated by telephone in a SCAN

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meeting at SCH. (D’Amico Report at RED00014.) According to Detective D’Amico’s

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notes, SCH medical staff advised that “there were no findings of a lack of tolerance with

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any food they had given J.L.,” and that, even had J.L. been on a special diet, “he would

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not have been left malnourished and dehydrated.” (Id.) SCH medical staff classified

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J.L.’s condition when he was first admitted as indicative of “serious bodily harm.” (Id.)

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On November 7, 2013, CPS provided Detective D’Amico with a list of J.L.’s 13

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medical providers. (Id.) Detective D’Amico requested records from all the providers and

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“received all but three providers’ medical records” by December 4, 2013. (Id.) Detective

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D’Amico summarized each provider’s records in her police report and identified the three

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providers that had not responded to her records request: Pediatric Associates, Magnolia

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Behavioral Therapy, and Bothell Pediatric and Hand Therapy. (Id. at RED00014-18.) In

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addition, Detective D’Amico summarized and attached an email from CPS

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memorializing a phone call with a fourteenth provider, a speech pathologist who worked

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with J.L. (Id. at RED00018-19.)

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On December 9, 2013, still lacking some of the medical records, Detective
D’Amico determined:

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At this time, there is probable cause to believe [Ms. Chen] violated RCW
9A.42.030 Criminal Mistreatment 2nd degree for acting in a manner that
created an imminent risk of great bodily harm to [J.L.] causing him to be
admitted to Seattle Children’s Hospital for approximately three weeks.
There is also probable cause to believe [Ms. Chen] withheld basic necessities
of life to include nutrition as [J.L.] was diagnosed as grossly malnourished
and dehydrated upon arrival at Seattle Children’s Hospital.

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(Id. at RED00019.) That same day, Detective D’Amico signed a probable cause

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certification to file criminal charges against Ms. Chen and transmitted her investigative

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file—which included J.L.’s available medical records—to the King County Prosecuting

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Attorney’s Office (“the KCPAO”). (D’Amico Decl. ¶ 6, Ex. E (“PCC”).)

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After transmitting her investigative file and probable cause certification to the

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KCPAO, Detective D’Amico followed up with the medical providers who had not

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provided records. (D’Amico Report at RED00019.) In mid-December 2013, Bothell

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Pediatric and Hand Therapy and Magnolia Behavioral Therapy provided Detective

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D’Amico their records. (Id. at RED00019-20.) Pediatric Associates provided its records

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on January 23, 2014. (Id. at RED00021.) In addition, on January 27, 2014, Detective

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D’Amico requested updated records from SCH and Mercer Island Pediatrics, which the

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providers gave on February 10 and 12, 2014, respectively. (Id.) Detective D’Amico

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summarized these additional records and transmitted them to the KCPAO, along with an

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updated report. (Id. at RED00020-22; D’Amico Decl. ¶ 9.)

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D.

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Criminal Charges Against Ms. Chen
On January 31, 2014, the KCPAO charged Ms. Chen with one count of criminal

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mistreatment in the second degree for her actions between October 19 and 24, 2013.

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(Carlstrom Decl. (Dkt. # 111) ¶ 3, Ex. A.) No criminal charges were filed against Mr.

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Lian. (FAC ¶ 111.) Carla Carlstrom, a Senior Deputy Prosecuting Attorney with the

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KCPAO, “made the decision to file” the charge against Ms. Chen. (Carlstrom Decl.

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¶¶ 2-7.) Before filing the charge, Ms. Carlstrom spoke with Detective D’Amico and was

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aware that J.L.’s medical records file was incomplete. (Id. ¶ 6.)

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Ms. Chen was arraigned on February 18, 2014. (FAC ¶ 117.) On July 29, 2014,

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Ms. Chen’s public defender, Twyla Carter, wrote to the KCPAO requesting dismissal of

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the charge against Ms. Chen. (Riensche Decl. ¶ 3, Ex. 2 (“Carter Letter”); see also Carter

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Decl. (Dkt. # 127) ¶ 15.) On September 19, 2014, the KCPAO dropped the criminal case

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against Ms. Chen. (Riensche Decl. ¶ 3, Ex. 5 (“Order of Dismissal”).)

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The KCPAO said that it dropped the charges against Ms. Chen in part because

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“[r]ecords unavailable at the time of filing complete the timeline of events between

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October 19, 2013, and October 24, 2013.” (Riensche Decl. ¶ 3, Ex. 3 (“Exception

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Justification”) at 14.) The KCPAO explained that it based its initial charging decision on

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three facts: (1) that Ms. Chen failed to take J.L. to emergency care immediately when

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recommended by physicians on October 19, 2013; (2) that Ms. Chen took Pedialyte away

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from J.L. against SCH’s medical providers’ orders; and (3) Ms. Chen’s pattern of taking

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J.L. to see multiple providers who were not coordinating J.L.’s care. (Id. at 13.) The

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records the KCPAO reviewed after filing the charge undermined its charging decision.

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First, the records showed that Ms. Chen took J.L. to emergency care each time a

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doctor requested it, even if she delayed the visit. (Id. at 14 (explaining that two doctors

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requested that Ms. Chen take J.L. to emergency care on October 19, 2013, and that she

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took J.L. to emergency care on October 20, 2013).) The KCPAO based its

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misunderstanding on a report by Dr. James Metz from the SCAN team who “mistakenly

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wrote in a report” that Ms. Chen “refused admittance to the ER” on October 20, 2013,

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against Dr. Migita’s advice. (Id.) In reality, Dr. Migita discharged J.L. on October 20,

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2013, because J.L. did not have “hypertensive emergency at this time and d[id] not meet

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the eminent risk criteria for medical hold.” (Id.; see also RED00374-75.)

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Second, the records revealed that J.L. was on a special diet at the advice of

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medical providers and that Dr. Green advised Ms. Chen “never to give [J.L.] Pedialyte

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because it would cause distention.” (Exception Justification at 14-15.) The KCPAO also

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noted that other doctors, including J.L.’s then-current pediatrician, did not believe that

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Ms. Chen starved J.L. and that J.L.’s weight continued to fluctuate while he was in foster

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care. (Id. at 15.) The KCPAO further stated that, since J.L. returned to Mr. Lian in July

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2014, he “has been doing substantially better according to CPS reports.” (Id.)

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Third, the KCPAO maintained that even the updated records showed Ms. Chen
had an “evasive” relationship with J.L.’s medical providers, which prevented them from

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coordinating J.L.’s care. (Id.) Ultimately, however, the KCPAO determined that it

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would be unable to meet its burden of proof against Ms. Chen at trial:

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Central to this case is [Ms. Chen’s] decision to see multiple providers all at
once who were not coordinating [J.L.’s] care. These issues were confounded
by a language barrier and [Ms. Chen’s] unwillingness to be completely
transparent with doctors. On one instance when visiting Dr. Jeffrey Wright
in August 2012, for example, [Ms. Chen] was downright evasive and likely
dishonest with him. However, there is no clear evidence that [Ms. Chen]
withheld food or medical care or that [Ms. Chen] knew [J.L.] was even facing
great bodily harm because, after all, Dr. Migita released [J.L.] from the ER
on 10/20/13.

13
14
15
16
17

(Id.)

18

E.

19

Procedural History
Plaintiffs originally brought this action pro se in December 2016. (See Dkt.) In

20

June 2017, the court appointed Plaintiffs pro bono counsel. (See 6/13/17 Am. Order

21

(Dkt. # 15).) After extensive motions practice on the pleadings, in March 2018, the court

22

granted in part and denied in part City Defendants’ motion to dismiss Plaintiffs’ claims

ORDER - 14

1

and granted Plaintiffs leave to amend. (See generally 3/27/18 Order (Dkt. # 90); see also

2

10/16/17 Order (Dkt. # 53); 11/30/17 Order (Dkt. # 73).) Plaintiffs filed the operative

3

complaint on July 30, 2018. (See FAC.)

4

On November 29, 2018, City Defendants brought two motions for summary

5

judgment on all seven of Plaintiffs’ claims that relate to them. (See 1st MSJ; 2d MSJ.)

6

Six of these claims are for various constitutional violations pursuant to 42 U.S.C. § 1983:

7

(1) unlawful arrest; (2) fabrication/withholding of evidence; (3) selective enforcement;

8

(4) malicious prosecution; (5) substantive due process; and (6) procedural due process.

9

(See FAC ¶¶ 132-208.) Plaintiffs’ seventh claim alleges malicious prosecution under

10

Washington State law. (Id. ¶¶ 221-40.) City Defendants’ first motion for summary

11

judgment is against Ms. Chen and concerns all seven of Plaintiffs’ claims asserted against

12

City Defendants. (See 1st MSJ at 2.) City Defendants’ second motion for summary

13

judgment is against Mr. Lian, J.L., and L.L., and concerns only the substantive and

14

procedural due process claims because Mr. Lian, J.L., and L.L. do not have standing to

15

assert the other five claims. (See 2d MSJ at 2; 2d Resp. at 28 (Mr. Lian, J.L., and L.L.

16

agreeing that they only assert the due process claims against City Defendants).) In

17

addition, City Defendants seek summary judgment against Mr. Lian, J.L., and L.L. on

18

their malicious prosecution counterclaim. (See 2d MSJ at 2; see also Countercl. (Dkt.

19

# 97) at 23-28.)

20

On December 6, 2018, Plaintiffs brought a motion for relief under Federal Rule of

21

Civil Procedure 56(d), in part requesting additional time to conduct discovery and to

22

respond to City Defendants’ motions for summary judgment. (See 56(d) Mot. (Dkt.

ORDER - 15

1

# 116).) Before the court ruled on Plaintiffs’ Rule 56(d) motion, Plaintiffs filed their own

2

motion for summary judgment on City Defendants’ malicious prosecution counterclaim.

3

(See 3d MSJ.) Shortly thereafter, the court granted in part Plaintiffs’ Rule 56(d) motion.

4

(See 2/13/19 Order (Dkt. # 146).)

5

The court now addresses the three pending motions for summary judgment.

6
7

III.
A.

ANALYSIS

Preliminary Matters

8

1. Motion to Strike

9

City Defendants move to strike certain material that Plaintiffs’ rely upon in

10

opposition to City Defendants’ motions for summary judgment. (See 2d Reply at 14-15.)

11

The disputed material consists of: (1) statements in Mr. Lian’s declaration that City

12

Defendants characterize as hearsay (see id. at 14; Lian Decl. ¶ 12); (2) statements in Ms.

13

Carter’s declaration that City Defendants claim lack foundation, are an unfounded expert

14

opinion, are mere speculation, or are hearsay (see 2d Reply at 14; Carter Decl. ¶¶ 5,

15

12-13, 16-21); (3) statements in Dr. Green’s declaration that City Defendants allege

16

contradict his testimony at the 72-hour dependency hearing (see 2d Reply at 14-15;

17

Green Decl. ¶¶ 10, 14, 20); and (4) statements in Ms. Chen’s declaration that City

18

Defendants characterize as legal conclusions and unfounded expert testimony (2d Reply

19

at 15; Chen Decl. ¶ 48).

20

The court need not reach these issues because they do not change the court’s

21

determination.

22

//

ORDER - 16

1
2

B.

Summary Judgment Standard
Summary judgment is appropriate if the evidence, when viewed in the light most

3

favorable to the non-moving party, demonstrates “that there is no genuine dispute as to

4

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

5

P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cty. of L.A.,

6

477 F.3d 652, 658 (9th Cir. 2007). A fact is “material” if it might affect the outcome of

7

the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is

8

“‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for the

9

non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001)

10
11

(citing Anderson, 477 U.S. at 248-49).
The moving party bears the initial burden of showing there is no genuine issue of

12

material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S.

13

at 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can

14

show the absence of an issue of material fact in two ways: (1) by producing evidence

15

negating an essential element of the nonmoving party’s case, or (2) by showing that the

16

nonmoving party lacks evidence of an essential element of its claim or defense. Nissan

17

Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving

18

party will bear the ultimate burden of persuasion at trial, it must make a prima facie

19

showing in support of its position on that issue. UA Local 343 v. Nor-Cal Plumbing, Inc.,

20

48 F.3d 1465, 1471 (9th Cir. 1994). That is, the moving party must present evidence that,

21

if uncontroverted at trial, would entitle it to prevail on that issue. Id. at 1473. If the

22

moving party meets its burden of production, the burden then shifts to the nonmoving

ORDER - 17

1

party to identify specific facts from which a fact finder could reasonably find in the

2

nonmoving party’s favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 252.

3

The court is “required to view the facts and draw reasonable inferences in the light

4

most favorable to the [non-moving] party.” Scott v. Harris, 550 U.S. 372, 378 (2007).

5

The court may not weigh evidence or make credibility determinations in analyzing a

6

motion for summary judgment because these are “jury functions, not those of a judge.”

7

Anderson, 477 U.S. at 249-50. Nevertheless, the nonmoving party “must do more than

8

simply show that there is some metaphysical doubt as to the material facts . . . . Where

9

the record taken as a whole could not lead a rational trier of fact to find for the

10

nonmoving party, there is no genuine issue for trial.” Scott, 550 U.S. at 380 (internal

11

quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

12

475 U.S. 574, 586-87 (1986)). “Conclusory allegations unsupported by factual data

13

cannot defeat summary judgment.” Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074,

14

1078 (9th Cir. 2003). Nor can a party “defeat summary judgment with allegations in the

15

complaint, or with unsupported conjecture or conclusory statements.” Hernandez v.

16

Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).

17

“[W]hen simultaneous cross-motions for summary judgment on the same claim

18

are before the court, the court must consider the appropriate evidentiary material

19

identified and submitted in support of both motions, and in opposition to both motions,

20

before ruling on each of them.” Tulalip Tribes, 783 F.3d at 1156 (quoting Fair Hous.

21

Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001)).

22

The court “rule[s] on each party’s motion on an individual and separate basis,

ORDER - 18

1

determining, for each side, whether a judgment may be entered in accordance with the

2

Rule 56 standard.” Tulalip Tribes, 783 F.3d at 1156 (quoting 10A Charles Alan Wright,

3

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed.

4

1998)); see also ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006)

5

(“We evaluate each motion separately, giving the nonmoving party in each instance the

6

benefit of all reasonable inferences.” (citations and internal quotation marks omitted)).

7

C.

City Defendants’ Motion Against Ms. Chen

8

1. Malicious Prosecution Claims

9

To prove malicious prosecution, a plaintiff must show, inter alia, “that there was

10

want of probable cause for the institution or continuation of the prosecution” that the

11

plaintiff claims to be malicious. Hanson v. City of Snohomish, 852 P.2d 295, 298 (Wash.

12

1993). Accordingly, “probable cause is a complete defense to malicious prosecution.”

13

Id. City Defendants move for summary judgment on Ms. Chen’s state law and § 1983

14

malicious prosecution claims because there was probable cause to charge her with

15

criminal mistreatment in the second degree. (See 1st MSJ at 7-9.)

16

“The probable-cause standard is incapable of precise definition or quantification

17

into percentages because it deals with probabilities and depends on the totality of the

18

circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 (2003). That said, “[t]he

19

substance of all the definitions of probable cause is a reasonable ground for belief of

20

guilt.” Id. (citing Brinegar v. United States, 228 U.S. 160, 175 (1949)). Courts require a

21

“fair probability” on which “reasonable and prudent [people,] not legal technicians, act.”

22

Florida v. Harris, 568 U.S. 237, 243 (2013) (quoting Illinois v. Gates, 462 U.S. 213, 231

ORDER - 19

1

(1983)) (alterations in original); see also State v. Gaddy, 93 P.3d 872, 875 (Wash. 2004)

2

(explaining that probable cause exists when “reasonably trustworthy information [is]

3

sufficient to cause a reasonable officer to believe a crime has been committed.”

4

(emphasis omitted)). “There must be some objective evidence which would allow a

5

reasonable officer to deduce that a particular individual has committed or is in the process

6

of committing a criminal offense.” McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.

7

1984). Further, “[a]t the time of arrest, the arresting officer need not have evidence to

8

prove each element of the crime beyond a reasonable doubt.” Gaddy, 93 P.3d at 875.

9

But “[m]ere suspicion, common rumor, or even strong reasons to suspect are not

10

enough.” Id. And police officers “may not disregard facts tending to dissipate probable

11

cause.” United States v. Lopez, 482 F.3d 1067, 1073 (9th Cir. 2007) (quotation marks

12

and citation omitted).

13

Probable cause “is a question of law to be determined by the court.” Act

14

Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993). But the court should not

15

determine probable cause at the summary judgment stage if a genuine issue of material

16

fact exists. Id.

17

Here, Detective D’Amico determined that there was probable cause to charge Ms.

18

Chen with criminal mistreatment in the second degree pursuant to RCW 9A.42.030. (See

19

D’Amico Report at RED00019; PCC.) The KCPAO then charged Ms. Chen with this

20

crime. (See Carlstrom Decl. ¶ 3, Ex. A.) A person is guilty of criminal mistreatment in

21

the second degree if he or she acts with criminal negligence and “either (a) creates an

22

imminent and substantial risk of death or great bodily harm by withholding any of the

ORDER - 20

1

basic necessities of life, or (b) causes substantial bodily harm by withholding any of the

2

basic necessities of life.” RCW 9A.42.030(1). A person acts with criminal negligence

3

“when he or she fails to be aware of a substantial risk that a wrongful act may occur and

4

his or her failure to be aware of such substantial risk constitutes a gross deviation from

5

the standard of care that a reasonable person would exercise in the same situation.” RCW

6

9A.08.010(1)(d).

7

City Defendants allege that the undisputed facts create probable cause that Ms.

8

Chen was guilty of criminal mistreatment. (1st MSJ at 7-9.) City Defendants point out

9

that: (1) J.L. lost two pounds between August 2013 and October 2013, was in the third

10

percentile of weight for a three-year-old, and weighed less as a three-year-old than he

11

weighed as a two-year-old; (2) that between October 19 and 23, 2013, multiple providers

12

referred J.L. to emergency care; (3) that multiple physicians diagnosed J.L. as

13

malnourished; and (4) that SCH determined that J.L. needed to be hospitalized for more

14

than two weeks. (See id.) In addition, City Defendants argue that a reasonable person

15

could infer that J.L.’s malnourished condition was caused by Ms. Chen withholding

16

carbohydrates. (Id.) Moreover, City Defendants allege that a reasonable person could

17

infer that Ms. Chen reduced J.L.’s carbohydrate intake even though she was aware of the

18

substantial risk of harm to J.L. because, in April 2013, Dr. Green recommended that Ms.

19

Chen increase J.L.’s carbohydrate intake. (Id.; see also RED00565 (Dr. Green’s

20

November 15, 2013, case summary, which notes that on April 1, 2013, Dr. Green had a

21

phone consultation with Ms. Chen where he “recommended[] aiming to increase [J.L.’s]

22

carbohydrate intake”).) City Defendants also cite Ms. Chen’s failure to take J.L. to the

ORDER - 21

1

emergency department on October 19, 2013, disregarding two medical providers’

2

referrals, as grounds for probable cause of criminal mistreatment. (Id.)

3

Ms. Chen argues there was not probable cause because (1) there is no proof that

4

she caused “J.L. any harm, let alone ‘substantial bodily harm,’” and (2) because J.L. was

5

never in any imminent risk of death or great bodily harm. (1st Resp. at 17.) Ms. Chen

6

points out that SCH’s emergency department found that J.L. was in a “stable” condition

7

on both October 20 and October 24. (Id. at 17-18 (citing RED00375, RED00931).)

8

Further, Ms. Chen argues that she did not act with criminal negligence because she

9

“diligently sought out medical advice to address J.L.’s conditions, and tried her best to

10

follow that advice.” (Id. at 18.) Lastly, Ms. Chen argues that Detective D’Amico

11

consciously disregarded facts that undermined probable cause, including that J.L. was

12

unable to tolerate Pedialyte. (Id.)

13

Even drawing all reasonable inferences in Ms. Chen’s favor, the undisputed

14

evidence shows that there was probable cause that Ms. Chen committed criminal

15

mistreatment in the second degree pursuant to RCW 9A.42.030. As explained above, on

16

October 23, 2013, Dr. Halamay recommended that Ms. Chen admit J.L. to the hospital

17

“at once.” (RED00397.) Ms. Chen “refused to take him for admission,” and J.L. was

18

only taken to the SCH emergency department after CPS intervened. (Id.; Chen Decl.

19

¶ 33.) Once at SCH on October 24, 2013, J.L. was diagnosed with “failure to thrive . . .

20

[and] gross malnutrition and muscle wasting.” (RED00792; see also D’Amico Decl.

21

¶ 3q, Ex. Q at RED01236 (“[J.L.] appeared grossly malnourished.”); id. at RED01237

22

(noting J.L.’s “profoundly malnourished state.”).) J.L. also weighed 26.9 pounds as a

ORDER - 22

1

three-year-old, which is the third percentile for his age group. (RED00791.) Further,

2

SCH medical staff classified J.L.’s condition when he was first admitted as indicative of

3

“serious bodily harm.” (D’Amico Report at RED00014.)

4

Importantly, medical providers implicated Ms. Chen in J.L.’s condition. (See

5

RED00930 (“Clinical exam shows gross malnutrition and muscle wasting . . . . Given

6

mother’s resistance to medical evaluation in this ill child, he is currently in state

7

custody.”) Doctors specifically listed their “concern” that Ms. Chen was “unable to

8

provide care/information and concern for intentional malnutrition.” (Id.) The SCH

9

providers also noted Ms. Chen’s “erratic and obstructionist behavior.” (Id.)

10

In addition, the SCAN team noted that the SCH medical staff did not find J.L.

11

lacked “tolerance with food they had given” him, and that even had J.L. been on a special

12

diet, “he would not have been left malnourished and dehydrated.” (D’Amico Report at

13

RED00014.) Notes from SCH medical providers support the SCAN team’s discussion.

14

(See D’Amico Decl. ¶ 3q, Ex. Q at RED001237 (“In general, [J.L.] was able to tolerate a

15

full diet with no signs or symptoms of food allergy or intolerance.”).)

16

These facts provide “objective evidence which would allow a reasonable officer

17

to deduce that” Ms. Chen committed criminal mistreatment in the second degree.

18

McKenzie, 738 F.2d at 1008 (9th Cir. 1984). Based on the objective evidence, a

19

reasonable officer could find that Ms. Chen, through criminal negligence, created an

20

imminent and substantial risk of great bodily harm to J.L. by withholding the basic

21

necessities of life, or had already caused J.L. substantial bodily harm by withholding the

22

basic necessities of life. RCW 9A.42.030(1); RCW 9A.08.010(1)(d). Although facts

ORDER - 23

1

weigh against probable cause—such as J.L.’s autism and its complex co-morbidities, as

2

well as J.L.’s initial intolerance for Pedialyte and his low-carbohydrate diet—these facts

3

do not negate that doctors considered J.L. to be grossly malnourished on October 24,

4

2013, that Ms. Chen had ignored medical providers’ requests to seek help for J.L., that

5

Ms. Chen only went to SCH on October 24, 2013, at the insistence of CPS, and that

6

medical providers implicated Ms. Chen as a potential cause of J.L.’s condition.

7

Courts have found that a child’s “failure to thrive and malnutrition” support a

8

finding of probable cause. See Baker v. Cty. of L.A., No. CV 11-5550-GHK (PJWx),

9

2013 WL 11323599, at *13 (C.D. Cal. Sept. 27, 2013); Swinton v. City of N.Y., 785 F.

10

Supp. 2d 3, 9 (E.D.N.Y. 2011). Here, J.L.’s “failure to thrive” (see RED00792),

11

combined with the undisputed record the court just detailed, support a finding of probable

12

cause of criminal mistreatment in the second degree against Ms. Chen.

13

To the extent that Detective D’Amico did not, according to Ms. Chen, sufficiently

14

promote mitigating factors in her police report or probable cause certificate, the court

15

finds that these mitigating factors do not “dissipate” probable cause. See Lopez, 482 F.3d

16

at 1073. Further, the court recognizes that the KCPAO’s decision to drop the charge

17

against Ms. Chen casts doubt on the initial existence of probable cause. But the

18

KCPAO’s decision was made considering the beyond a reasonable doubt burden of

19

proof, which is more demanding than the probable cause standard. (See Exception

20

Justification at 15 (“The State will have to prove BRD [beyond a reasonable doubt] to

21

jury unanimity”)); Pringle, 540 U.S. at 371 (“Finely tuned standards such as proof

22

beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials,

ORDER - 24

1

have no place in the [probable-cause] decision.” (alteration in original) (citation

2

omitted)).

3

In sum, the undisputed facts show that probable cause existed that Ms. Chen

4

committed criminal mistreatment in the second degree. This finding is a “complete

5

defense” to Ms. Chen’s malicious prosecution claims. See Hanson, 852 P.2d at 298.

6

Therefore, the court GRANTS City Defendants’ motion for summary judgment against

7

Ms. Chen on counts IV and VIII of the complaint.

8

2. Presumption of Prosecutorial Independence

9

City Defendants’ second ground for summary judgment is directed at Ms. Chen’s

10

four constitutional tort claims brought against Detective D’Amico. (See 1st MSJ at 9-11;

11

see also FAC ¶¶ 132-85.) These claims include unlawful arrest, fabrication/withholding

12

of evidence, selective enforcement, and malicious prosecution. 4 (See id.) City

13

Defendants argue that they are entitled to summary judgment on these claims because of

14

the presumption of prosecutorial independence. (Id.)

15

Ms. Chen points out, however, that the presumption of prosecutorial independence

16

has only been applied as a bar to claims that involve a finding of probable cause. (See 1st

17

Resp. at 22 (citing Caldwell v. City & Cty. of S.F., 889 F.3d 1105, 1116 (9th Cir. 2018)).)

18

Therefore, according to Ms. Chen, the presumption could only serve as a defense to the

19

unlawful arrest and malicious prosecution claims. (1st Resp. at 22.) City Defendants do

20
21
22

4

Although the court addressed Ms. Chen’s § 1983 malicious prosecution claim in the
previous section, see supra § III.C, the court addresses it again here because the prosecutorial
independence analysis applies equally to the unlawful arrest and malicious prosecution claims.

ORDER - 25

1

not contest this argument. (See generally 1st Reply.) This issue was recently presented,

2

but not decided, in the Ninth Circuit. See Caldwell, 889 F.3d at 1115-16 (noting the

3

dispute over whether “prosecutorial independence only severs the causal chain where the

4

underlying civil rights violation is based on a lack of probable cause,” but choosing to

5

“not resolve the parties’ debate”). This court likewise does not decide the issue because

6

it is not necessary to resolution of the motion. Here, the court only considers whether the

7

presumption of prosecutorial independence is a bar to Ms. Chen’s unlawful arrest and

8

malicious prosecution claims.

9

“Typically, in constitutional tort cases, the ‘[f]iling of a criminal complaint

10

immunizes investigating officers . . . because it is presumed that the prosecutor filing the

11

complaint exercised independent judgment in determining that probable cause for an

12

accused’s arrest exists at that time.” Caldwell 889 F.3d at 1115 (quoting Smiddy v.

13

Varney, 665 F.2d 261, 266 (9th Cir. 1981)). However, a plaintiff may rebut this

14

presumption by showing “that the independence of the prosecutor’s judgment has been

15

compromised.” Beck v. City of Upland, 527 F.3d 853, 862 (9th Cir. 2008). A plaintiff

16

may accomplish this by establishing “that officers either presented false evidence to or

17

withheld crucial information from the prosecutor.” Caldwell, 889 F.3d at 1116.

18

Regarding the presentation of false evidence, the plaintiff must show that the officers

19

gave the prosecutor “information known by them to be false.” Id. (citation omitted).

20

City Defendants argue that Detective D’Amico did not present false evidence or

21

withhold crucial information from the KCPAO that would rebut the presumption of

22

prosecutorial independence. (See 1st MSJ at 9-11.) City Defendants allege that, when

ORDER - 26

1

the presumption has been overcome, police reports have been the only source of

2

information provided to prosecutors. (Id. at 10.) Here, however, Detective D’Amico

3

provided the KCPAO with all of J.L.’s available healthcare records in addition to her

4

police report and probable cause certificate. (Id. at 10-11; see also Carlstrom Decl. ¶ 4.)

5

The KCPAO also reviewed materials from other police officers and CPS. (Carlstrom

6

Decl. ¶ 4.) In addition, the KCPAO was aware that J.L.’s medical records were

7

incomplete when it first received materials from Detective D’Amico. (1st MSJ at 11;

8

Carlstrom Decl. ¶ 6.) Detective D’Amico later supplemented those records. (Carlstrom

9

Decl. ¶ 5.) And the lead prosecutor, Ms. Carlstrom, made her own summary of J.L.’s

10

medical history, rather than relying solely on Detective D’Amico’s characterizations.

11

(See Shickich Decl. ¶ 3, Ex. 2 (“Carlstrom Summary”) (sealed).)

12

Ms. Carlstrom also discussed the case with two colleagues, including her

13

supervisor, before bringing the charge. (See Shickich Decl. ¶ 2, Ex. 1 (“Carlstrom Tr.”)

14

at 38:13-21.) In that discussion, Ms. Carlstrom brought up “the extra complexities of

15

[J.L.] being a child who already had special needs and potential medical issues,” and that

16

“there was a lot of history with this child, at least the records that [the KCPAO] had.”

17

(Id. at 49:11-23.) Ultimately, Ms. Carlstrom—a Senior Deputy Prosecuting Attorney

18

who has “been involved in the investigation and prosecution of over 2500 child abuse and

19

neglect cases”—decided to charge Ms. Chen based on her “independent professional

20

judgment” and her “thorough review” of the evidence, with full knowledge that she did

21

not yet have complete medical records. (Carlstrom Decl. ¶¶ 2, 6-7.)

22

//

ORDER - 27

1

Ms. Chen argues, however, that “[t]he sole evidence presented by” the KCPAO

2

when it charged Ms. Chen was Detective D’Amico’s probable cause certificate, which

3

shows the KCPAO’s reliance on Detective D’Amico. (1st Resp. at 20-21.) Ms. Chen

4

also alleges that the prosecutor’s charge was inconsistent with the medical records—as

5

evidenced by the KCPAO later dropping the charge—which shows that the prosecutor

6

did not thoroughly review the materials. (Id.) Further, Ms. Chen argues that the

7

KCPAO’s lack of witness interviews or consultation with medical professionals shows

8

that it did not exercise independent judgment. (Id.) Finally, Ms. Chen argues that

9

Detective D’Amico had exculpatory evidence in her possession that she did not provide

10

to the KCPAO, including an interview with Dr. Green and an email from Defendant

11

Kimberly Danner from DSHS that attached a letter from Dr. Gbedawo detailing J.L.’s

12

liver and kidney functions. (Id.)

13

The court concludes that the presumption of prosecutorial independence applies.

14

First, Ms. Chen has not presented evidence that, even when viewed in the light most

15

favorable to her, shows that City Defendants provided the KCPAO with “information

16

known by them to be false,” Caldwell, 889 F.3d at 1116; (see generally 1st Resp.); nor

17

has the court independently found any. Although the KCPAO dropped the charge against

18

Ms. Chen, that action was due to evidence “unavailable at the time of filing.” (Exception

19

Justification at 14.) To the extent the evidence was misrepresented to the KCPAO prior

20

to charging Ms. Chen, that was not City Defendants’ fault; rather, it was due to the

21

SCAN team’s misunderstanding of the events. (See id. (“Dr. Metz, a SCAN doctor at

22

SCH, mistakenly wrote in a report that [Ms. Chen] refused admittance to the ER . . . and

ORDER - 28

1

that [Ms. Chen] refused to follow Dr. Russell Migita’s advice on 10/20/13 by leaving the

2

ER against medical advice.”).) Detective D’Amico’s report in fact corrects the SCAN

3

team’s misunderstanding. (D’Amico Report at RED00011 (“10/20/13 [Ms. Chen] . . .

4

returned with [J.L.] and he was admitted at Seattle Children’s Hospital. [J.L.’s] lab

5

results had stabilized and therefore he was discharged.”).)

6

Second, City Defendants did not withhold “crucial information” from the KCPAO.

7

In short, the two pieces of information that Ms. Chen claims City Defendants withheld

8

were not “crucial.” See Caldwell, 889 F.3d at 1117 (the court determining on summary

9

judgment whether information withheld was crucial). The first piece of information is

10

Dr. Gbedawo’s letter, which mainly concerned J.L.’s kidney, thyroid, and liver function.

11

(See Gbedawo Decl. ¶ 9, Ex. A (“10/24/19 Gbedawo Letter”) at 2.) In the letter, Dr.

12

Gbedawo also mentioned that she felt “strongly it is in [J.L.’s] best interest to be in the

13

care of his mother.” (Id.) The second piece of information is a phone call between

14

Detective D’Amico and Dr. Green, which occurred in mid-November 2013. (See Green

15

Decl. ¶¶ 13-15.) Dr. Green states that the phone call was “perfunctory” and that

16

Detective D’Amico “made no discernable effort to ensure she understood the medical

17

advice that I provided to [Ms. Chen] and [Mr. Lian].” (Id. ¶¶ 7, 13-15.) According to Dr.

18

Green, he “made it very clear” during the call that he “did not see anything that [he]

19

would regard as abusive or that would support a finding of child neglect or withholding

20

basic necessities of life” regarding Ms. Chen or Mr. Lian’s care of J.L. (Id. ¶ 13.)

21
22

Although Detective D’Amico failed to give the KCPAO these pieces of
information, Detective D’Amico gave prosecutors two other letters from healthcare

ORDER - 29

1

providers—one from Dr. Green and one from Dr. Brooke Greiner, “an experienced

2

pediatric occupational therapist who worked extensively with [Ms.] Chen and her son

3

J.L.” (see Greiner Decl. (Dkt. # 134) ¶ 2)—that stated that Ms. Chen was doing her best

4

to address J.L.’s needs (see 1st Resp. at 13-14 (recognizing that “Dr. Green and Dr.

5

Greiner happened to include copies of their letters in their respective files turned over to

6

[Detective] D’Amico,” which in turn were given to the KCPAO)). Similarly, Detective

7

D’Amico provided the KCPAO with a letter from Dr. Gbedawo’s clinic, Vital Kids

8

Medicine, which stated that “[n]othing in our charting reflects any knowledge of neglect,

9

as we were unaware of any.” (RED00767.)

10

Failing to include Dr. Gbedawo’s additional letter, which bolstered information

11

Detective D’Amico had already provided to the KCPAO from Dr. Gbedawo’s clinic as

12

well as other medical providers, does not constitute withholding “crucial information”

13

from the prosecutor. The withheld letter authored by Dr. Gbedawo is largely redundant

14

of the information already provided by her clinic. Similarly, the “perfunctory” phone call

15

with Dr. Green is not “crucial information” that could rebut the presumption. (See Green

16

Decl. ¶ 13-15.) This phone call was in addition to the medical records from Dr. Green

17

that Detective D’Amico provided to the KCPAO. (Id. ¶ 7; see also RED00563.)

18

Moreover, Dr. Green’s opinion expressed over the phone is undermined by the fact that

19

his “last visit” with Plaintiffs was a phone consultation on April 1, 2013—over six

20

months before the relevant events. (See RED00565.) Thus, the court cannot say that

21

withholding the phone call with Dr. Green constituted a “crucial” omission.

22

//

ORDER - 30

1

The allegations here stand in contrast to cases where courts have found that

2

omitted evidence rebutted the presumption of prosecutorial independence. For example,

3

in Barlow v. Ground, 943 F.2d 1132 (9th Cir. 1991), “the prosecutor had only the

4

arresting officers’ police reports available to him” when he filed charges. Id. at 1137.

5

Likewise, in Borunda v. Richmond, 885 F.2d 1384 (9th Cir. 1988), “[t]he criminal

6

prosecutor had no information available to him other than that contained in the police

7

report submitted by appellants.” Id. at 1390. Here, in addition to Detective D’Amico’s

8

report and probable cause certificate, Ms. Carlstrom had all of J.L.’s available healthcare

9

records—totaling well over 1,000 pages—and files from other police officers and CPS.

10

(See Carlstrom Decl. ¶ 4.) Ms. Carlstrom attests that she thoroughly reviewed all of this

11

information, and that Detective D’Amico later supplemented those records. (Carlstrom

12

Decl. ¶¶ 4-5.)

13

It is true that the presumption can be rebutted even when a prosecutor was

14

provided evidence outside of the police reports. See, e.g., Blankenhorn v. City of Orange,

15

485 F.3d 463, 483-84 (9th Cir. 2007); Caldwell, 889 F.3d at 1112-13. But in those cases,

16

the prosecutors either did not review the outside evidence, see Blankenhorn, 485 F.3d at

17

483 (noting that the prosecutor “did not look at the video, relying instead on . . . police

18

reports”), or the officer fabricated the outside evidence, Caldwell, 889 F.3d at 1112-13

19

(concluding there were triable issues whether (1) the officer manufactured a show-up that

20

was designed to manipulate a witness’s memory, and (2) the officer fabricated a

21

statement from the defendant by falsifying notes).

22

//

ORDER - 31

1

Here, in contrast, it is undisputed that the City Defendants provided thousands of

2

pages of evidence outside of the police report and that the KCPAO reviewed this

3

evidence. Moreover, not only did City Defendants not falsify any evidence, they

4

corrected evidence that others incorrectly recorded. Further, the evidence that City

5

Defendants are accused of withholding is not crucial: the evidence constitutes a few

6

pages of material that is either redundant or of limited value due to the perfunctory nature

7

of the phone call and the fact that Dr. Green’s last visit with Plaintiffs was over six

8

months before the relevant events.

9

Again, the touchstone inquiry here is whether “the independence of the

10

prosecutor’s judgment has been compromised.” Beck, 527 F.3d at 862. Viewing the

11

evidence in the light most favorable to Ms. Chen, the court finds that the KCPAO’s

12

judgment was not compromised. The presumption of prosecutorial independence

13

therefore applies.

14
15

Thus, the court GRANTS City Defendants’ motion for summary judgment against
Ms. Chen on counts I and IV of the complaint.

16

3. Qualified Immunity

17

City Defendants also move for summary judgment because Detective D’Amico is

18

entitled to qualified immunity on all of Ms. Chen’s 42 U.S.C. § 1983 claims. (1st MSJ at

19

11-24.) 5 Police officers “generally are shielded from liability for civil damages insofar as

20
21
22

5

City Defendants do not argue that they are entitled to qualified immunity on Ms. Chen’s
§ 1983 malicious prosecution claim. (See generally 1st MSJ.) The court therefore will not
address this issue.

ORDER - 32

1

their conduct does not violate clearly established statutory or constitutional rights of

2

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

3

(1982). In determining whether a police officer is entitled to qualified immunity, the

4

court must decide: (1) whether the facts that the plaintiff alleges assert a violation of a

5

constitutional right; and (2) whether the right at issue was “clearly established” at the

6

time the defendant engaged in the misconduct. Pearson v. Callahan, 555 U.S. 223, 232

7

(2009) (discussing Saucier v. Katz, 533 U.S. 194, 201 (2001)). To determine whether a

8

right was clearly established, “the standard is one of fair warning: where the contours of

9

the right have been defined with sufficient specificity that a state official had fair warning

10

that [his] conduct deprived a victim of his rights, [he] is not entitled to qualified

11

immunity.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (quotation marks

12

and citation omitted). Where a “genuine issue of material fact exists that prevents a

13

determination of qualified immunity at summary judgment, the case must proceed to

14

trial.” Bonivert v. Clarkson, 883 F.3d 865, 871-72 (9th Cir. 2017). Courts may consider

15

the two prongs of the qualified immunity analysis in any order. See Chism v.

16

Washington, 661 F.3d 380, 386 (9th Cir. 2011).

17

Further, “[a]n officer’s liability under section 1983 is predicated on his ‘integral

18

participation’ in the alleged violation.” Blankenhorn, 485 F.3d at 481 n.12 (quoting

19

Chuman v. Wright, 76 F.3d 292, 294-95 (9th Cir. 1996)). “[I]ntegral participation does

20

not require that each officer’s actions themselves rise to the level of a constitutional

21

violation.” Boyd v. Benton Cty., 374 F.3d 773, 780 (9th Cir. 2004). “But it does require

22

//

ORDER - 33

1

some fundamental involvement in the conduct that allegedly caused the violation.”

2

Blankenhorn, 485 F.3d at 481 n.12 (citing Boyd, 374 F.3d at 780).

3
4
5

City Defendants’ qualified immunity argument varies as to each of Ms. Chen’s
causes of action. (See 1st MSJ at 11-24.) The court will address the claims in turn.
a. Judicial Deception

6

Ms. Chen asserts that Detective D’Amico fabricated and omitted material

7

information from her probable cause certificate and police report. (See FAC ¶¶ 132-45.)

8

Without these fabrications and omissions, Ms. Chen alleges, there was not probable cause

9

to arrest her. (Id.) Therefore, Ms. Chen claims that Detective D’Amico caused her

10

unlawful arrest in violation of the Fourth Amendment. (Id.) Although styled as an

11

“unlawful arrest” claim in the complaint (see id.), Ms. Chen recharacterizes it as a “claim

12

for judicial deception” in her summary judgment response. (See 1st Resp. at 22; see also

13

3/27/18 Order at 22 (“Based on those allegations, Plaintiffs appear to assert a judicial

14

deception claim”).)

15

For a judicial deception claim to survive summary judgment on the ground of

16

qualified immunity, Ms. Chen “must 1) make a ‘substantial showing’ of deliberate

17

falsehood or reckless disregard for the truth and 2) establish that, but for the dishonesty,

18

the [arrest] would not have occurred.” Liston v. Cty. of Riverside, 120 F.3d 965, 973 (9th

19

Cir. 1997) (citing Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995)). Courts “must

20

test and interpret affidavits which underlie an arrest in a ‘commonsense and realistic

21

fashion.’” United States v. Esparza, 546 F.2d 841, 843 (9th Cir. 1976) (quoting United

22

States v. Ventresca, 380 U.S. 102, 108 (1965)). Moreover, “not all inaccuracies in an

ORDER - 34

1

investigative report give rise to a constitutional claim.” Spencer v. Peters, 857 F.3d 789,

2

798 (9th Cir. 2017) (citing Black v. Montgomery Cty., 835 F.3d 358, 372 (3d Cir. 2016)).

3

False statements and omissions are material if the probable cause affidavit, “once

4

corrected and supplemented,” would not support probable cause. Chism, 661 F.3d at 389.

5

Ms. Chen alleges that Detective D’Amico’s probable cause certificate contains

6

nine material misstatements and omissions that evidence Detective D’Amico’s deliberate

7

and reckless conduct. 6 The court will address each of these statements individually and

8

then analyze whether, when considered individually or together, they allow Ms. Chen’s

9

judicial deception claim to survive summary judgment.

10

(1) “All other causes of J.L.’s condition aside from malnutrition had been ruled

11

out.” (1st Resp. at 24 (citing PCC at RED00027).) Ms. Chen argues that numerous

12

medical records state the opposite: that causes besides malnutrition must be ruled out

13

before determining the cause of J.L.’s condition. (See 1st Resp. at 24 (citing RED00415,

14

RED00976).) However, the disputed statement from Detective D’Amico’s probable

15

cause certificate is supported by the SCAN team’s finding that “[J.L.] has been doing

16

very well and gaining weight since coming to [SCH]. All other causes and labs to

17

explain weight loss have been negative.” (Riensche Decl. ¶ 3, Ex. 17 (sealed).) Further,

18
19
20
21
22

6

Ms. Chen lists these alleged misstatements and omissions in bullet points, which she
construes as giving her license to make her relevant arguments in single-space type for almost
two pages of her response. (See 1st Resp. at 24-25.) This violates the local rules. See Local
Rules W.D. Wash. LCR 10(e)(1) (“The text of any typed or printed brief must be 12 point or
larger and must, with the exception of quotations, be double spaced.”). Ms. Chen’s transgression
is especially egregious considering that the court granted her leave to file an overlength response
brief. (See 4/1/19 Order (Dkt. # 148).) The court will not tolerate such flouting of its rules
moving forward.

ORDER - 35

1

some of the records that Ms. Chen relies on explicitly reference J.L.’s malnutrition and

2

Ms. Chen’s caregiving as the likely cause of J.L.’s condition. (See RED00415 (notes

3

from SCH stating that J.L. “has a constellation of symptoms . . . of unclear etiology,

4

although some of these may be related to chronic malnutrition or inappropriate

5

supplements,” and that J.L.’s “poor weight gain [is] likely due to malnutrition and

6

possible child neglect”); RED00975-76 (SCAN team notes stating that “other etiologies

7

must be ruled out” to explain J.L.’s “significantly distended abdomen,” though “[i]t is

8

thought that this could potentially be due to his severe state of poor nutrition,” and that “it

9

does seem that there is an element of neglect given his current nutritional status”).)

10

(2) “Further investigation revealed [Ms.] Chen restricted J.L. from eating many

11

things such as carbohydrates although she was never told J.L. could not have

12

carbohydrates by any doctor.” (1st Resp. at 24 (citing PCC at RED00027).) Ms. Chen

13

argues that this statement is false or “extremely misleading” because Ms. Chen did not

14

prevent J.L. from eating carbohydrates and because J.L.’s doctors had recommended a

15

low-carbohydrate diet. (1st Resp. at 24.) But it is undisputed that Ms. Chen reduced

16

J.L.’s carbohydrate intake. (See id.) It is also undisputed that Dr. Green recommended in

17

April 2013 to “increase [to J.L.’s] carbohydrate intake.” (RED00565.) Moreover, Ms.

18

Chen told SCH providers that J.L. “cannot eat many foods, including carbohydrates or

19

sugar,” but she was unable to “identify any food that he does eat.” (RED00927-28.)

20

(3) “[Ms.] Chen had also brought J.L. to 14 different healthcare providers in a

21

two year period and she refused to share information amongst these providers. This

22

made it nearly impossible to have continuous care and left J.L. not being monitored for

ORDER - 36

1

both weight and developmental gains by any one provider.” (1st Resp. at 24 (citing PCC

2

at RED00027).) Ms. Chen argues that J.L. only “had a small number of primary

3

providers” and that she “did not prevent communication among these providers.” (1st

4

Resp. at 24.) Further, Ms. Chen argues that J.L. was being regularly monitored by his

5

primary provider—presumably Dr. Gbedawo. (Id.; see also Gbedawo Decl. ¶ 7 (noting

6

nine appointments with J.L. between April 2013 and October 2013).) But the 10-pages

7

of medical records Dr. Gbedawo provided to Detective D’Amico did not make it clear

8

that Dr. Gbedawo was coordinating J.L.’s care or monitoring his weight gain and

9

development. (See RED00770-79.) Nor does Dr. Gbedawo’s undisclosed monitoring

10

negate that J.L. saw at least 14 different healthcare providers. Moreover, the medical

11

records are full of examples of Ms. Chen’s “obstructionist” behavior (RED00930); her

12

requests that medical reports “not be sent to referring provider or Kindering Center, only

13

to her” (RED00225); that Ms. Chen “specified to NOT send report to” one of J.L.’s

14

providers (D’Amico Decl. ¶ 6, Ex. J (sealed) at RED00232); that Ms. Chen was “very

15

reluctant” to disclose J.L.’s list of medications and supplements to a medical provider

16

(D’Amico Decl. ¶ 6, Ex. P (sealed) at RED00907); that Ms. Chen “was not providing [a]

17

full history” (Riesche Decl. ¶ 3, Ex. 18 (sealed) at CHEN0005739); and that Ms. Chen

18

was “evasive,” “had her own agenda,” refused to allow the tests that doctors

19

recommended, and would “not reveal the extensive past evaluations that were done by

20

specialists at SCH” (RED00762). Further, in a discussion between two of J.L.’s

21

providers, one of them was “concerned that family has been going from dr to dr but that

22

pt is not actually receiving appropriate medical attention.” (RED00397; RED00105-06.)

ORDER - 37

1

The record contains additional examples that support this statement from the probable

2

cause certificate. (See 1st MSJ at 15-17 (citing medical records).)

3

(4) “[Ms.] Chen acted in a manner which created an imminent risk of great bodily

4

harm to J.L., causing him to be admitted to [SCH] for approximately three weeks.” (1st

5

Resp. at 24 (citing PCC at RED00027).) As the court already discussed, J.L.’s gross

6

malnutrition, Ms. Chen’s “erratic and obstructionist behavior,” J.L.’s ultimate ability to

7

tolerate “a full diet with no signs or symptoms of food allergy or intolerance,” and

8

medical providers implicating Ms. Chen as a potential cause for J.L.’s condition support a

9

finding that Ms. Chen acted in a manner which created an imminent risk of great bodily

10

harm to J.L. See supra § III.C.1. The court recognizes that J.L. was kept at SCH for 15

11

days (October 24 through November 7), rather than the “approximately three weeks” that

12

Detective D’Amico wrote in her certificate, though the court also recognizes that J.L. had

13

numerous medical appointments starting on October 19, 2013. (See RED01138.)

14

(5) “There is also probable cause to believe [Ms. Chen] withheld basic necessities

15

of life to [sic] including nutrition as [J.L.] was diagnosed as grossly malnourished and

16

dehydrated upon arrival at Seattle Children’s Hospital.” (1st Resp. at 25 (citing PCC at

17

RED00027).) Ms. Chen argues that this statement is false or misleading because J.L. had

18

been extremely sick for several days before Ms. Chen took him to SCH, where J.L. was

19

diagnosed as non-emergent. (1st Resp. at 25.) Ms. Chen also argues that this statement

20

falsely attributes the responsibility for J.L.’s nutrition to Ms. Chen even though Mr. Lian

21

was primarily involved in feeding J.L. (Id.) As discussed, SCH allowed Ms. Chen and

22

Mr. Lian to take J.L. home on October 20, 2013, because J.L. did not have “hypertensive

ORDER - 38

1

emergency at this time and does not meet the eminent risk criteria for medical hold,” but

2

based on the understanding that they would immediately follow up with Dr. Halamay.

3

(See RED00374-75.) SCH’s notes from that visit also reveal that J.L. was diagnosed

4

with “failure to thrive,” that his lab results are “improved but not normal,” and that “he

5

would benefit from having a coordinated workup that includes endocrinology,

6

gastroenterology, and nephrology to aid with diagnosis and management of his chronic

7

issues.” (Id.) Further, by October 24, 2013—after Ms. Chen took J.L. to the hospital

8

only after CPS’s encouragement—SCH doctors diagnosed J.L. with “failure to thrive . . .

9

[and] gross malnutrition and muscle wasting. Concern for medical cause of wasting vs.

10

neglect.” (RED00792.) J.L. was then admitted to SCH’s general medicine service to

11

treat his malnutrition and receive a SCAN team consultation. (Id.) On November 5,

12

2013, the SCH medical staff advised the SCAN team that J.L. was “severely

13

malnourished” (RED00816), and even had J.L. been on a special diet, “he would not have

14

been left malnourished and dehydrated” (D’Amico Report at RED00014). It is true that

15

the probable cause certificate statement did not account for Mr. Lian’s role as primarily

16

being involved with feeding J.L. However, Detective D’Amico’s police report, which

17

was simultaneously transmitted to the KCPAO, notes that “[Mr. Lian] does most of the

18

cooking.” (Id. at RED00012.)

19

(6) Detective D’Amico failed to disclose J.L.’s autism and the extensively

20

documented, complex co-morbidities resulting from that condition, including chronic GI

21

issues. (See 1st Resp. at 25.) Detective D’Amico’s certificate does not mention that J.L.

22

was diagnosed with autism. (See generally PCC.) Nor does Detective D’Amico mention

ORDER - 39

1

that GI issues are common with autism. (See id.) But Detective D’Amico transmitted

2

J.L.’s available medical records to the KCPAO with her probable cause certificate. These

3

files included records from Lakeside Center for Autism. (See Carlstrom Decl. ¶ 4.)

4

Detective D’Amico’s police report also mentions that J.L. was diagnosed with autism.

5

(See D’Amico Report at RED00018.) Moreover, Detective D’Amico submitted a

6

“Detective/Officer Comment Sheet” to the KCPAO along with her probable cause

7

certificate, in which she stated: “A problem with this case is that it is nearly impossible

8

to differentiate between the developmental delays the victim was born with versus the

9

developmental delays he has suffered as a result of prolonged malnutrition.” (D’Amico

10
11

Decl. ¶ 6, Ex. D (“Comment Sheet”) at RED00024.)
(7) Detective D’Amico failed to disclose that none of the medical providers with

12

the most experience with Ms. Chen and J.L. and the most knowledge of his medical

13

conditions believed that Ms. Chen had anything to do with his condition. (See 1st Resp.

14

at 25.) The probable cause certificate did not mention Dr. Green, Dr. Gbedawo, or Dr.

15

Greiner’s belief that Ms. Chen did not cause J.L.’s condition. (See id.) However, as

16

discussed above, Detective D’Amico provided the KCPAO with letters from Dr. Green

17

and Dr. Greiner, as well as a letter from Dr. Gbedawo’s clinic, that supported Ms. Chen.

18

See supra § III.C.2.

19

(8) Detective D’Amico failed to disclose that Pedialyte caused J.L. significant GI

20

distress. (See 1st Resp. at 25.) Ms. Chen argues that the probable cause certificate

21

should have mentioned J.L.’s adverse reaction to Pedialyte. (Id.) City Defendants argue,

22

however, that it would make little sense to mention J.L.’s reaction to Pedialyte when the

ORDER - 40

1

probable cause certificate made no mention that Ms. Chen took Pedialyte away from J.L.

2

(1st Reply at 13.)

3

(9) Detective D’Amico failed to disclose that because J.L. was sick, Ms. Chen had

4

taken J.L. to multiple doctors and the emergency room just days before he was removed,

5

and that the hospital discharged him as non-emergent. (See 1st Resp. at 25.) Ms. Chen’s

6

allegation here is similar to her argument about statement (5). The court will not rehash

7

the arguments.

8
9

Considering each of these statements individually as well as together, and viewing
the evidence in the light most favorable to Ms. Chen, the court concludes that Ms. Chen

10

has not made a “substantial showing” that Detective D’Amico exhibited deliberate

11

falsehood or reckless disregard for the truth. See Liston, 120 F.3d at 973. For example,

12

regarding the first statement in dispute, Detective D’Amico’s statement that “[a]ll other

13

causes of J.L.’s condition aside from malnutrition had been ruled out” is supported by

14

numerous statements in the records, including the SCAN team’s finding that “[J.L.] has

15

been doing very well and gaining weight since coming to [SCH]. All other causes and

16

labs to explain weight loss have been negative.” (See Riensche Decl. ¶ 3, Ex. 17 (sealed);

17

see also RED00415, RED00975-76.) Likewise, the court concludes that, had the

18

probable cause certificate been corrected or supplemented in the areas where it did not

19

perfectly capture the thousands of pages of medical evidence, there still was probable

20

cause to charge Ms. Chen. See Chism, 661 F.3d at 389. Again, regarding the first

21

disputed sentence—had Detective D’Amico supplemented the probable cause certificate

22

with the full statements that Ms. Chen cites, there still would have been probable cause to

ORDER - 41

1

charge Ms. Chen. (See, e.g., RED00415 (notes from SCH medical provider stating that

2

J.L. “has a constellation of symptoms . . . of unclear etiology, although some of these

3

may be related to chronic malnutrition or inappropriate supplements,” and that J.L.’s

4

“poor weight gain likely due to malnutrition and possible child neglect.”).) The other

5

inaccuracies in the probable cause certificate—e.g., saying that J.L. was in the hospital

6

for “approximately three weeks” instead of 15 days—likewise do not evidence deliberate

7

or reckless falsehoods on Detective D’Amico’s behalf and, additionally, were not

8

material to the finding of probable cause. See Esparza, 546 F.2d at 843 (explaining that

9

courts “must test and interpret affidavits which underlie an arrest in a ‘commonsense and

10

realistic fashion.’”). The court therefore GRANTS City Defendants’ motion for

11

summary judgment against Ms. Chen on count I of the complaint based on qualified

12

immunity.

13
14

b. Deliberate Fabrication
Ms. Chen claims that Detective D’Amico “deliberately fabricated evidence that

15

was used to criminally charge and prosecute” her, including by making material false

16

statements and omitting material exculpatory information in her police report, probable

17

cause certificate, and communications with prosecutors. (See FAC ¶¶ 146-54; 1st Resp.

18

at 27.) Ms. Chen also claims that Detective D’Amico used coercive and abusive

19

interview techniques to yield false information. (See id.)

20

“The Fourteenth Amendment prohibits the deliberate fabrication of evidence by a

21

state official.” Spencer, 857 F.3d at 793. Deliberate fabrication can be established by

22

direct or circumstantial evidence. Id. To prevail on a deliberate fabrication claim, “a

ORDER - 42

1

plaintiff must prove that (1) the defendant official deliberately fabricated evidence and

2

(2) the deliberate fabrication caused the plaintiff’s deprivation of liberty.” Id. at 798

3

(citing Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1111 (9th Cir. 2010)).

4

Similar to the discussion in the prior section, the court concludes that, even when

5

viewing the evidence in the light most favorable to Ms. Chen, Detective D’Amico did not

6

deliberately fabricate evidence. See supra § III.C.3.a. In fact, in one instance that is at

7

the heart of the KCPAO’s decision to charge Ms. Chen, even though the SCAN team

8

mistakenly wrote that Ms. Chen refused to admit J.L. to the emergency room on October

9

20, 2013 (see Exception Justification at 14), Detective D’Amico correctly noted that J.L.

10

“had stabilized and therefore he was discharged” (see D’Amico Report at RED00011).

11

Ms. Chen also argues that Detective D’Amico’s failure to use an interpreter when

12

interviewing her and Mr. Lian evidences deliberate fabrication of evidence. (1st Resp. at

13

27-28.) Ms. Chen claims that, due in part to the lack of an interpreter, Detective

14

D’Amico’s “description of this interview in the police report is inaccurate and

15

misleading.” (Id.) Specifically, Ms. Chen alleges that the police report incorrectly states

16

that J.L. does not eat “bread, crackers, or fruit,” that certain supplements in the pantry

17

were for Ms. Chen’s skin, that “there appeared to be no extracurricular activities” even

18

though Ms. Chen said she took J.L. “to the park, playground, library and other places for

19

activities,” and that Ms. Chen would “discipline” J.L. for eating foods he was not

20

supposed to have.” (Chen Decl. ¶¶ 39-41; see also D’Amico Report at RED00012-13.)

21
22

“[A]n interviewer who deliberately mischaracterizes witness statements in her
investigative report . . . commits a constitutional violation,” but “not all inaccuracies in an

ORDER - 43

1

investigative report give rise to a constitutional claim.” Spencer, 857 F.3d at 798

2

(quoting Costanich, 627 F.3d at 1111). “Mere careless[ness] is insufficient, as are

3

mistakes of tone.” Id. (quotation marks and citations omitted). Further, “[e]rrors

4

concerning trivial matters cannot establish causation, a necessary element of any § 1983

5

claim.” Id. Further, “mere allegations that Defendants used interviewing techniques that

6

were in some sense improper, or that violated state regulations, without more, cannot

7

serve as the basis for a claim under § 1983.” Devereaux v. Abbey, 263 F.3d 1070, 1075

8

(9th Cir. 2001) (en banc).

9

Here, Detective D’Amico explicitly stated before discussing her interview with

10

Ms. Chen and Mr. Lian that “[i]t was apparent [Ms. Chen] spoke English as a second

11

language and we had some trouble communicating.” (D’Amico Report at RED00012;

12

see also Comment Sheet at RED00024 (“The family is from China and that is their first

13

language.”).) Further, Detective D’Amico qualified all the statements for which Ms.

14

Chen takes issue. For example, Detective D’Amico’s report states that J.L. did, in fact,

15

eat some gluten-free bread. (See D’Amico Report at RED00012 (“I saw a bag of

16

gluten-free bread and asked [Ms. Chen] if [J.L.] was able to have any of those. [Ms.

17

Chen] pointed the [sic] nutritional label and advised she couldn’t give him much.”).) The

18

statement regarding the supplements is similarly qualified (see id. (“[Ms. Chen] told me

19

some of the supplements were for her skin”)), as well as “trivial” and therefore unable to

20

establish § 1983 causation, see Spencer, 857 F.3d at 798. Likewise, Detective D’Amico

21

said “[i]t appeared there were no extracurricular activities or anything outside of school

22

for [J.L.] and [L.L.],” which is not inconsistent with Ms. Chen’s alleged statement that

ORDER - 44

1

she took J.L. outside the home for activities. (See D’Amico Report at RED00012; Chen

2

Decl. ¶ 41.) Lastly, Detective D’Amico’s comments about potential physical abuse were

3

similarly qualified:

4

7

[Ms. Chen] informed me if [J.L.] would try to get food that he was not
supposed to have, he would be disciplined for it. [Ms. Chen] made somewhat
of a swatting gesture with her hand as if she was demonstrating what she
would do to [J.L.] I asked her how [J.L.] would be disciplined, and she
couldn’t give me a clear answer. I asked her if she physically punishes [J.L.]
for trying to eat food she doesn’t allow him to eat, and she began to talk about
another topic.

8

(D’Amico Report at RED00012.) Moreover, Detective D’Amico stated shortly thereafter

9

in her report that “[Ms. Chen] also went on to say how much she cares for [J.L.] and that

5
6

10

she takes him to the doctor all the time.” (Id.) In short, the court does not find that

11

Detective D’Amico deliberately mischaracterized Ms. Chen (or Mr. Lian’s) statements in

12

her investigative report. To the contrary, she noted that English was their second

13

language and qualified her report to show her lack of certainty regarding Ms. Chen’s and

14

Mr. Lian’s statements.

15

This stands in contrast to instances where courts found that an officer was not

16

entitled to qualified immunity because there was a genuine issue on whether he or she

17

deliberately fabricated evidence. For example, the Ninth Circuit determined that an

18

officer was not entitled to qualified immunity where she indicated in her police report

19

that she had interviewed 34 people, but “later admitted that she had made only brief

20

contact with eighteen of the individuals listed,” including misrepresenting that she

21

interviewed doctors central to the case. See Costanich, 627 F.3d at 1112. Similarly, a

22

court declined to award an officer qualified immunity where the officer wholly created

ORDER - 45

1

statements by a witness and the witness denied providing any information on the topics.

2

See McSherry v. City of Long Beach, 560 F.3d 1125, 1130 (9th Cir. 2009); Spencer, 857

3

F.3d at 798 (“[The officer’s] investigative reports contained scores of quotations

4

attributed to Kathryn and Matthew, both of whom unequivocally testified at trial that they

5

had never made those statements.”). Here, in contrast, Detective D’Amico’s alleged

6

misstatements—to the extent there were any—followed her preamble that English was

7

not Ms. Chen’s first language and were qualified in ways to show her lack of certainty.

8

Moreover, Detective D’Amico did not wholly fabricate statements; rather, in viewing the

9

evidence in a light most favorable to Ms. Chen, the inaccuracies in Detective D’Amico’s

10

report show mere “careless[ness],” “mistakes of tone,” and/or involve trivial matters that

11

cannot form the basis of a § 1983 claim. See Spencer, 857 F.3d at 798.

12
13
14
15

The court therefore GRANTS City Defendants’ motion for summary judgment
against Ms. Chen on count II of the complaint based on qualified immunity.
c. Selective Enforcement
Ms. Chen brings a Fourteenth Amendment selective enforcement claim against

16

Detective D’Amico alleging that, in short, Ms. Chen was targeted by Detective D’Amico

17

“due to her gender and her assumed gender role as J.L.’s mother.” (1st Resp. at 28-29;

18

FAC ¶¶ 155-68.)

19

To prevail on a selective enforcement claim, “a plaintiff must demonstrate that

20

enforcement had a discriminatory effect and the police were motivated by a

21

discriminatory purpose.” Lacey v. Maricopa Cty., 693 F.3d 896, 920 (9th Cir. 2012)

22

(quotation marks and citation omitted). “In order to prove discriminatory effect, ‘the

ORDER - 46

1

claimant must show that similarly situated individuals . . . were not prosecuted.’” Id.

2

(quoting United States v. Armstrong, 517 U.S. 456, 465 (1996)). Individuals are

3

similarly situated “when their circumstances present no distinguishable legitimate

4

prosecutorial factors that might justify making different prosecutorial decisions with

5

respect to them.” United States v. Ford, No. 3:14-cr-00045-HZ, 2016 WL 4443167, at *4

6

(D. Or. Aug. 22, 2016) (quoting United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996)).

7

The standard for proving discriminatory effect “is a demanding one.” Id. (quotation

8

marks and citation omitted). Discriminatory intent requires that the prosecutor took a

9

course of action at least in part because of “its adverse effects upon an identifiable

10
11

group.” Id. at *7 (quotation marks omitted).
Ms. Chen alleges that she and Mr. Lian are similarly situated. (See 1st Resp. at

12

29.) Yet, according to Ms. Chen, Detective D’Amico treated her differently despite

13

knowing that CPS sought to remove J.L. and L.L. from both Ms. Chen’s and Mr. Lian’s

14

custody, that Mr. Lian frequently accompanied Ms. Chen to J.L.’s medical appointments,

15

and that, if anything, Mr. Lian was more responsible for J.L.’s nutrition. (See id. at

16

28-29.) Ms. Chen argues that the reasonable inference is that Detective D’Amico

17

pursued Ms. Chen and not Mr. Lian because of unlawful gender bias and socially

18

constructed beliefs about gender roles. (Id. at 29.)

19

City Defendants argue that Ms. Chen was originally brought to their attention by

20

SPD, SCH, and CPS, which reported that Ms. Chen—not Mr. Lian—attempted to

21

interfere with J.L.’s care, showed hostility toward J.L. in therapy sessions, and showed

22

signs of Munchausen by Proxy. (1st MSJ at 21-22; D’Amico Decl. ¶ 3, Ex. A at

ORDER - 47

1

RED0002, Ex. F at RED00038; CPS Docs at RED00051.) City Defendants also point

2

out that the KCPAO based its charging decision against Ms. Chen on (1) a mistaken

3

belief that Ms. Chen failed to take J.L. to emergency care immediately when

4

recommended by physicians on October 19, 2013; (2) the fact that Ms. Chen took

5

Pedialyte away from J.L. against SCH’s medical providers’ orders; and (3) Ms. Chen’s

6

pattern of taking J.L. to see multiple providers who were not coordinating J.L.’s care.

7

(See 1st MSJ at 22; Exception Justification at 13.) At least the first and second factors

8

only implicate Ms. Chen. Further, the KCPAO charged Ms. Chen for actions that

9

occurred between October 19 and 24, 2013. (See Carlstrom Decl. ¶ 3, Ex. A.) In that

10

time-period, five medical providers recommended taking J.L. to emergency care—those

11

records mention that Ms. Chen was at all five appointments, while Mr. Lian was at just

12

two. (See 1st MSJ at 22 (citing records).) Further, certain records from that time-period

13

implicate “mother’s resistance to medical evaluation in this ill child,” but do not mention

14

Mr. Lian. (See, e.g., RED00930.)

15

The court finds that there is no genuine dispute of material fact that there were

16

“distinguishable legitimate prosecutorial factors that might justify” making different

17

prosecutorial decisions with respect to Ms. Chen and Mr. Lian. See Ford, 2016 WL

18

4443167, at *4. The court therefore GRANTS City Defendants’ motion for summary

19

judgment against Ms. Chen on count III of the complaint based on qualified immunity.

20
21
22

d. Substantive and Procedural Due Process
“Parents and children have a well-elaborated constitutional right to live together
without governmental interference. That right is an essential liberty interest protected by

ORDER - 48

1

the Fourteenth Amendment’s guarantee that parents and children will not be separated by

2

the state without due process of law except in an emergency.” Hardwick v. Cty. of

3

Orange, 844 F.3d 1112, 1116 (9th Cir. 2017) (internal quotation marks and citation

4

omitted). A plaintiff has a due process right protecting him or her “against deliberate

5

government use of perjured testimony and fabricated evidence in [a] dependency court

6

proceeding” that is designed to separate the plaintiff from his or her immediate family.

7

Id.

8
9

Here, Ms. Chen alleges that Detective D’Amico “participat[ed] in the deprivation
of Plaintiffs’ due process rights pertaining to the removal of J.L. and L.L., and the

10

family’s right to be free of interference.” (1st Resp. at 30; see also FAC ¶¶ 186-208.)

11

Ms. Chen claims that Detective D’Amico did so by “conduct[ing] a flawed and biased

12

investigation, and prepar[ing] a false and misleading report and [probable cause

13

certificate], which falsely implicated [Ms.] Chen in wrongdoing and led to her

14

prosecution for felony child abuse.” (1st Resp. at 30.) These allegations relate to the

15

KCPAO’s criminal proceedings against Ms. Chen, not the dependency action that

16

deprived Ms. Chen of the rights at issue in this claim. But, Ms. Chen points out that,

17

once the criminal case against her was terminated, the AGO dismissed the dependency

18

action. (See id.; Lo Decl. ¶ 9, Ex. S.) Thus, although Detective D’Amico did not directly

19

participate in the dependency proceedings, Ms. Chen claims that Detective D’Amico’s

20

actions make her at least an “integral participant” in the deprivation of Ms. Chen’s due

21

process rights and therefore liable under § 1983. (1st Resp. at 31); Blankenhorn, 485

22

F.3d at 481 n.12.

ORDER - 49

1

City Defendants argue that Ms. Chen’s due process claims are “frivolous” because

2

Detective D’Amico never testified or presented evidence at any dependency proceeding. 7

3

(1st MSJ at 22-23; FAC ¶¶ 187(a), 200(a).) In addition, City Defendants assert that Ms.

4

Chen has not provided sufficient authority or evidence to support her claims that the

5

criminal investigation and proceedings prolonged the dependency action, that the

6

dependency action itself was an “unlawful intrusion,” or that Detective D’Amico was an

7

integral participant in any alleged unlawful intrusion. (Reply at 15-16.)

8
9

Ms. Chen’s due process claims fail. It is undisputed that Detective D’Amico did
not testify or present evidence at the dependency proceedings. (See 1st MSJ at 22-23; 1st

10

Resp. at 30-31.) Ms. Chen instead argues that Detective D’Amico should be implicated

11

in the dependency action because Detective D’Amico “was communicating with CPS at

12

the time [of the dependency proceedings], and was knowledgeable of the dependency

13

proceedings, and the theories of the facts held by CPS social workers.” (1st Resp. at 30

14

(citing Lo Decl. ¶¶ 10-11, Exs. T-U).) But the evidence Ms. Chen cites in no way shows

15

that Detective D’Amico “participated in” or “facilitated” the dependency proceedings.

16

(See 1st Resp. at 30.) The evidence involves emails from a DSHS representative

17

updating Detective D’Amico on the status of J.L. in foster care and Ms. Chen’s and Mr.

18

Lian’s lack of cooperation with DSHS (see Lo Decl. ¶ 10, Ex. T), and emails between

19

//

20
7

21
22

City Defendants make a one-sentence argument in a footnote that this claim is untimely
because it is based on allegations of fact that were not made in the original complaint. (See 1st
MSJ at 23, n.4.) City Defendants do not cite sufficient law or facts on which the court could
decide this assertion. The court therefore will not address this argument at this time.

ORDER - 50

1

Ms. Carlstrom and Detective D’Amico in which Ms. Carlstrom says she received

2

numerous emails from DSHS (see Lo Decl. ¶ 11, Ex. U).

3

Moreover, neither the October 28-30, 2013, 72-hour dependency hearing, nor Ms.

4

Chen’s late-November 2013 motion for revision of the shelter care order (see FAC ¶ 62)

5

could have relied on Detective D’Amico’s police report or probable cause certificate

6

because Detective D’Amico did not author these documents until December 9, 2013 (see

7

D’Amico Report at RED00019; PCC). Regardless, the court has already determined that

8

Detective D’Amico did not present a “false and misleading” information in these

9

documents. See surpa § III.C.3.b; (1st Resp. at 31.) Thus, even if the dependency

10

proceedings relied on Detective D’Amico’s police report or probable cause certificate—

11

which Ms. Chen has not presented any evidence to support—such reliance would not be a

12

due process violation. See Hardwick, 844 F.3d at 1116 (explaining that a plaintiff has a

13

due process right protecting him or her “against deliberate government use of perjured

14

testimony and fabricated evidence in [a] dependency court proceeding”).

15

Detective D’Amico was also not an “integral participant” in the alleged unlawful

16

intrusion into Ms. Chen’s right to be with J.L. (See 1st Resp. at 31.) The cases Ms. Chen

17

cites for this proposition are off base. For example, in Bonivert v. City of Clarkston, 883

18

F.3d 865 (9th Cir. 2018), officers were considered integral participants in an unlawful

19

entry where, even though they did not lead the unlawful entry into the home, they

20

“developed a plan of entry” with the officer who first entered, “provided armed backup”

21

as that officer broke into the back door, and entered the home directly after the lead

22

officer. Id. at 879; see also Blankenhorn, 485 F.3d at 481 n.12 (explaining that an officer

ORDER - 51

1

who arrived at the scene after the arrest was completed “did not participate in any integral

2

way in the arrest,” but an officer who handcuffed the plaintiff was an integral participant

3

in a later excessive use of force made possible by the handcuffing). Here, Detective

4

D’Amico was not in any way a participant—let alone an integral participant—in the

5

dependency action.

6

Detective D’Amico’s participation in the criminal proceedings does not change

7

that fact. At best, Ms. Chen’s claim is that Detective D’Amico’s probable cause

8

certificate and police report helped convince the KCPAO to initiate criminal proceedings,

9

which helped convince the AGO to prolong the dependency action. Again, this argument

10

ignores that the dependency proceedings began before Detective D’Amico drafted or

11

submitted the certificate or report. (See FAC ¶ 52; D’Amico Report at RED00019.)

12

Finally, and fundamentally, Ms. Chen fails to allege that an “unlawful intrusion”

13

occurred as the result of the dependency hearing. (See generally FAC; 1st Resp.)

14

Certainly, a dependency hearing that removes a child from his or her parents’ custody is

15

not in and of itself a constitutional violation. See Santosky v. Kramer, 455 U.S. 745, 758

16

(1982) (discussing that parental rights termination proceedings are valid so long as

17

parents receive due process). And, as discussed, there is no genuine dispute of fact that

18

Detective D’Amico did not violate Ms. Chen’s due process rights at the dependency

19

hearing, such as by causing or presenting “perjured testimony” or “fabricated evidence.”

20

See Hardwick, 844 F.3d at 1116.

21
22

The court therefore GRANTS City Defendants’ motion for summary judgment
against Ms. Chen on counts V and VI of the complaint based on qualified immunity.

ORDER - 52

1
2

D.

City Defendants’ Motion Against Mr. Lian, J.L., and L.L.
City Defendants move for summary judgment against Mr. Lian, J.L., and L.L.

3

(collectively referred to as “Mr. Lian” for purposes of this section) on all seven claims

4

asserted against City Defendants, as well as City Defendants’ malicious prosecution

5

counterclaim. (See generally 2d MSJ.) City Defendants first argue that Mr. Lian only

6

has standing to assert the substantive and procedural due process claims, and therefore

7

the other claims should be dismissed. (Id.) Mr. Lian explains, however, that he only

8

brings the due process claims, and therefore City Defendants’ request for summary

9

judgment against him on the other causes of action is moot. (See 2d Resp. at 28.) The

10

court agrees and DENIES as moot City Defendants’ request for summary judgment on

11

counts I, II, III, IV, and VIII against Mr. Lian.

12

The court addresses the remaining portions of City Defendants’ motion in turn.

13

1. Substantive and Procedural Due Process

14

Mr. Lian’s substantive and procedural due process claims are identical to those

15

articulated by Ms. Chen. (See FAC ¶¶ 186-208.) For the reasons articulated above with

16

respect to City Defendants’ motion against Ms. Chen, the court GRANTS City

17

Defendants’ motion for summary judgment against Mr. Lian on counts V and VI of the

18

complaint based on qualified immunity. See surpa § III.C.3.d. It is undisputed that

19

Detective D’Amico did not testify or present evidence at the dependency proceedings. 8

20
8

21
22

Mr. Lian claims that Detective D’Amico’s probable cause certificate should be
considered “testimony.” (See 2d Resp. at 22.) But, as stated, this ignores that the certificate was
created on December 9, 2013 (see PCC), well after the late-October 2013 dependency hearing,
and therefore could not have been used as “testimony” at the dependency hearing.

ORDER - 53

1

Id. Detective D’Amico was also not an “integral participant” in the alleged unlawful

2

intrusion into Ms. Chen’s right to be with J.L. Id. Lastly, Mr. Lian fails to support the

3

allegation that Detective D’Amico caused an “unlawful intrusion” to occur as the result

4

of the dependency hearing. Id.

5

Mr. Lian makes an additional argument that Ms. Chen avoided: Detective

6

D’Amico violated his due process rights by failing to disclose all evidence in her

7

possession that might have been favorable. (See 2d Resp. at 26-27; cf. 1st Resp. at 30-31

8

(explaining that “[Ms.] Chen is not challenging the disclosure of exculpatory information

9

to her”).) Mr. Lian equivocates on what ground he asserts this argument, though it

10

appears he is claiming a violation of Brady v. Maryland, 373 U.S. 83 (1963). (2d Resp.

11

at 26-27.) “In order to prevail on a Brady claim, a defendant must demonstrate that: (1)

12

the evidence at issue is favorable, either because it is exculpatory or because it is

13

impeaching; (2) such evidence was suppressed by the State, either willfully or

14

inadvertently; and (3) prejudice resulted.” Raley v. Ylst, 470 F.3d 792, 804 (9th Cir.

15

2006). There was no Brady violation in this case.

16

The evidence that Mr. Lian claims was withheld consists of: (1) medical records

17

from Dr. Gbedawo that Dr. Gbedawo never provided to Detective D’Amico in the first

18

place and (2) the phone call with Dr. Green. 9 (Id. at 27 & n.140; see also 2d Reply at 10

19

n.4 (explaining that the Evergreen Center records that Mr. Lian identifies in footnote 140

20
9

21
22

City Defendants note in their response to Plaintiffs’ summary judgment motion that Mr.
Lian’s interrogatories also allege that Detective D’Amico withheld exculpatory information
concerning SCH and Dr. Halamay. (See 3d Resp. at 19; Riensche Decl. ¶ 3, Ex. 7 at 55-58.)
The court addresses the SCH and Dr. Halamay information below. See infra § III.E.

ORDER - 54

1

as being withheld were in fact provided, but there was an “oversight” that failed to

2

initially account for these records).) Obviously Detective D’Amico did not suppress

3

evidence that she never had. And, as discussed, no “prejudice resulted” from Detective

4

D’Amico’s failure to disclose the call with Dr. Green. See supra § III.C.2. The lack of

5

prejudice is underscored by the fact that both Dr. Green and Gbedawo testified and

6

submitted letters at the 72-hour dependency hearing. (See FAC ¶ 59; Riensche Decl. ¶ 2,

7

Ex. 8 at CHEN0005996-6000.)

8
9

Even if all three Brady factors were met, there still is no Brady violation because
Mr. Lian was “aware of the essential facts enabling him to take advantage of any

10

exculpatory evidence.” Raley, 470 F.3d at 804 (quoting United States v. Brown, 582 F.2d

11

197, 200 (2d Cir. 1978)). In Raley, for example, the defendant did not have a viable

12

Brady claim on the prosecution’s alleged withholding of medical records because the

13

defendant knew about his own medical visits and prescriptions, which was “sufficient to

14

alert defense counsel to the probability” that the disputed medical records existed. Raley,

15

470 F.3d at 804. Here, Mr. Lian was aware that J.L. had visited Dr. Gbedawo and Dr.

16

Green, which made him “aware of the essential facts enabling him to take advantage of

17

any exculpatory evidence.” Id.

18

The court therefore GRANTS City Defendants’ motion for summary judgment

19

against Mr. Lian on counts V and VI of the complaint based on qualified immunity.

20

Deciding the claims on qualified immunity, the court does not address the other due

21

process arguments presented by the parties.

22

//

ORDER - 55

1

2. Malicious Prosecution Against Mr. Lian, J.L., and L.L.

2

City Defendants also move for summary judgment against Mr. Lian based on City

3

Defendants’ malicious prosecution counterclaim. (2d MSJ at 19-21; Countercl. at 23-28.)

4

A party may bring a malicious prosecution counterclaim on the ground that the

5

original tort action “was instituted with knowledge that the same was false, and

6

unfounded, malicious and without probable cause in the filing of such action, or that the

7

same was filed as a part of a conspiracy to misuse judicial process by filing an action

8

known to be false and unfounded.” RCW 4.24.350(1). A law enforcement officer

9

bringing a malicious prosecution claim pursuant to RCW 4.24.350 still must prove the

10

remaining common law elements of malicious prosecution except for arrest, seizure,

11

damages, or termination or abandonment of the proceedings in the officer’s favor. See

12

Nguyen v. Cty. of Clark, No. C10-5267BHS, 2011 WL 181393, at *2-3 (W.D. Wash. Jan.

13

19, 2011). Therefore, the relevant malicious prosecution elements include:

14
15
16

(1) that the prosecution claimed to have been malicious was instituted or
continued by the defendant; (2) that there was want of probable cause for the
institution or continuation of the prosecution; (3) that the proceedings were
instituted or continued through malice; . . . and ([4]) that the plaintiff suffered
injury or damage as a result of the prosecution.

17

Id.; see also Hanson, 852 P.2d at 298. A plaintiff can show malice in a malicious

18

prosecution case by establishing that “the prosecution complained of was undertaken

19

from improper or wrongful motives or in reckless disregard of the rights of the plaintiff.”

20

Nguyen, 2011 WL 181393, at *4.

21

City Defendants argue that Mr. Lian’s due process claims are frivolous because

22

Mr. Lian knew when he filed the claims that: (1) Detective D’Amico did not testify or

ORDER - 56

1

present evidence in the dependency action; (2) the AGO was aware of Plaintiffs’

2

contentions regarding Dr. Green’s and Dr. Gbedawo’s dietary advice, as well as the

3

records from other medical providers; (3) CPS—not RPD—was investigating the

4

dependency matter for the AGO; and (4) he had no evidence of any medical record being

5

submitted to Detective D’Amico that recommended reducing J.L.’s carbohydrate intake.

6

(2d MSJ at 19-20.)

7

Mr. Lian claims that “[t]hese facts are in dispute.” (2d Resp. at 29.) Mr. Lian

8

explains that, by “testifying and providing evidence at the dependency hearing,” Mr. Lian

9

meant that Detective D’Amico “wrongfully facilitated the dependency actions.” (Id. at

10

22.) Mr. Lian further states that he based his claims on the fact that Detective D’Amico

11

communicated with the KCPAO and CPS, and that CPS relied in part on the KCPAO for

12

its dependency proceedings as evidenced by the AGO terminating the proceedings after

13

the KCPAO dropped the criminal case. (See id.; see also Lo Decl. ¶¶ 10-11, Exs. T-U.)

14

Further, at least Dr. Green’s medical records that were submitted to Detective D’Amico

15

recommended restricting J.L.’s carbohydrate intake. (See RED00575.)

16

At this stage, viewing the evidence in the light most favorable to Mr. Lian, the

17

court finds that there is a genuine dispute of material fact whether Mr. Lian instituted his

18

due process claims “with knowledge that the same was false, and unfounded, malicious

19

and without probable cause.” RCW 4.24.350(1). The court likewise concludes that there

20

is a genuine dispute of material fact whether Mr. Lian’s claims were “filed as a part of a

21

conspiracy to misuse judicial process by filing an action known to be false and

22

//

ORDER - 57

1

unfounded.” Id. The court therefore DENIES City Defendants’ motion for summary

2

judgment against Mr. Lian on City Defendants’ malicious prosecution counterclaim.

3

E.

4

Plaintiffs’ Motion Against City Defendants
Plaintiffs move for summary judgment on City Defendants’ malicious prosecution

5

counterclaim. (See generally 3d MSJ; see also Joinder.) Similar to City Defendants’

6

motion against Ms. Chen, Plaintiffs move for summary judgment on the ground that

7

probable cause existed for Plaintiffs to bring all their claims against City Defendants. (3d

8

MSJ at 12-17; see also 1st MSJ at 7-9.)

9

A defendant asserting a malicious prosecution counterclaim under RCW 4.24.350

10

must base the counterclaim “on an ‘action,’ not merely on a factual allegation.” Watson

11

v. City of Vancouver, No. C13-5936RBL, 2015 WL 1137530, at *14 (W.D. Wash. Mar.

12

12, 2015) (quoting Brin v. Stutzman, 951 P.2d 291, 297-98 (1998)). When a malicious

13

prosecution counterclaim is based on more than one charge, “the court must ‘separately

14

analyze the charges claimed to have been maliciously prosecuted.’” Garvais v. United

15

States, No. CV-03-0290-JLQ, 2010 WL 610282, at *14 (E.D. Wash. Feb. 17, 2010)

16

(quoting Johnson v. Knorr, 477 F.3d 75, 85 (3d Cir. 2007)), aff’d, 421 F. App’x 769 (9th

17

Cir. 2011). In other words, a finding of probable cause on one of a plaintiff’s charges—

18

which is as a complete defense to malicious prosecution—does not foreclose a malicious

19

prosecution action on a different charge. See Garvais, 2010 WL 610282, at *14-15. 10 In

20
21
22

10

The court in Garvais explained that no Washington State court “squarely addresses
whether the . . . charge-by-charge analysis on probable cause is employed in Washington.” 2010
WL 610282, at *15. But, following the holdings from “multiple federal Circuit Courts,” Garvais

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asserting a claim, “a civil plaintiff need not have the degree of certainty as to the

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existence of the facts on which the proceedings is based that is required of a prosecutor in

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a criminal proceeding.” Brin, 951 P.2d at 299. Rather, “the civil plaintiff must have a

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reasonable belief that the relevant facts can be established through the trial process.” Id.

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Plaintiffs allege that they had a “reasonable belief in both the existence of facts on

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which their claims are based and in the legal validity of their claims.” (3d MSJ at 14.)

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The court has discussed at length the evidence and arguments in this case and will not

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restate them here. For the reasons discussed above, the court finds that Ms. Chen had

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probable cause to allege her judicial deception, deliberate fabrication, selective

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enforcement, and malicious prosecution claims. Although City Defendants prevailed on

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summary judgment on these claims, the court concludes that Ms. Chen had a reasonable

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belief in the facts on which these claims were based. Thus, the court GRANTS

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Plaintiffs’ motion for summary judgment on City Defendants’ malicious prosecution

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counterclaim as it relates to Ms. Chen’s judicial deception, deliberate fabrication,

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selective enforcement, and malicious prosecution claims, counts I, II, III, IV, and VIII.

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However, the court concludes that genuine issues of material fact exist regarding

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whether Plaintiffs had probable cause to bring their substantive and procedural due

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process claims. See Act Up!/Portland, 988 F.2d at 873 (“[T]he court should not

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determine probable cause at the summary judgment stage if a genuine issue of material

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fact exists.”). Plaintiffs’ complaint alleges that Detective D’Amico “wrongfully

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determined that the Washington Supreme Court “would follow this charge-by-charge approach
to the probable cause element.” Id. at *14-15.

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facilitated the dependency actions” by “[t]estifying at and/or providing false and

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misleading evidence in favor of the dependency hearings” and by “[p]ossessing but

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failing to disclose” exculpatory material. (See FAC ¶¶ 187, 200.) But it is undisputed

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that Detective D’Amico did not testify or present evidence at the dependency hearings.

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See surpa §§ III.C.3.d, III.D.1, III.D.2. Even construing Plaintiffs claims to mean that

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Detective D’Amico wrongfully “participated in” or “facilitated” the dependency

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proceedings (see 1st Resp. at 30-31; 2d Resp. at 22), there remains a genuine dispute of

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material fact whether probable cause existed for this claim. Likewise, a genuine dispute

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exists regarding whether Plaintiffs had a reasonable belief that Detective D’Amico

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withheld material evidence from the dependency action. The alleged withheld evidence

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is from Dr. Green, Dr. Gbedawo, Dr. Halamay, and SCH. (See 3d Resp. at 19.)

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However, all of these parties testified and/or submitted letters at the 72-hour dependency

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hearing. (See id.; Riensche Decl. ¶ 2, Ex. 8 at CHEN0005996-6000.) Further, as

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discussed above, Plaintiffs knew about the purported exculpatory material such that it

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could not support an action based on unlawful withholding. See supra § III.D.1.

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Therefore, the court DENIES Plaintiffs’ motion for summary judgment on City

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Defendants’ malicious prosecution counterclaim as it relates to Plaintiffs’ substantive and

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procedural due process claims, counts V and VI.

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IV.

CONCLUSION

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For the foregoing reasons, the court GRANTS City Defendants’ summary

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judgment motion against Ms. Chen (Dkt. # 106), GRANTS in part, DENIES in part, and

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DENIES as moot in part City Defendants’ summary judgment motion against Mr. Lian,

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J.L., and L.L. (Dkt. # 108), and GRANTS in part and DENIES in part Plaintiffs’ motion

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for summary judgment against City Defendants (Dkt. # 141).

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Dated this 24th day of May, 2019.

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A

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JAMES L. ROBART
United States District Judge

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