1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 1] A.H., et al., No. 2:21-cv-00690-KJM-JDP 12 Plaintiffs, ORDER 13 v. 14 Sacramento County Dept. Child, Family and 15 Adult Services, et al., 16 Defendants. 17 18 The defendants move to dismiss the claims of Cynthia Martin and her three minor 19 | children, A.H., E.H. and C.G. The court grants the motion. 20 | I. PLEADINGS 21 The parties disagree at the outset about which is the operative complaint: (1) the first 22 | amended complaint, which the plaintiffs have titled the “Fifth Amended Complaint,” ECF 23 | No. 41; or (2) its purported successor, the document the plaintiffs title the “Sixth Amended 24 | Complaint, ECF No. 44. The plaintiffs have not explained their unconventional numbering 25 | scheme, but the court adopts it to avoid further confusion. The plaintiffs argue the sixth amended 26 | complaint is their controlling pleading. See Opp’n at 4-6, ECF No. 48. The defendants contend 27 | the fifth amended complaint is operative. See Reply at 2-3, ECF No. 49. 28 | /////
1 The court dismissed the original complaint and permitted the plaintiffs to amend their 2 complaint within 21 days. See Prev. Order (Sept. 20, 2021), ECF No. 20, recons. denied, ECF 3 No. 31; Prev. Order (Mar. 23, 2022), ECF No. 40. They did so by filing their fifth amended 4 complaint. Unless that complaint has been superseded, it remains operative. Rule 15 controls on 5 that point. Under that Rule, “[a] party may amend its pleading once as a matter of course within: 6 (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is 7 required, 21 days after service of a responsive pleading or 21 days after service of a motion under 8 Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). “In all other cases, a party 9 may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed. 10 R. Civ. P. 15(a)(2). The plaintiffs filed their sixth amended complaint more than 21 days after 11 their fifth amended complaint was filed and more than 21 days after any motion under Rule 12; 12 there has been no answer. The plaintiffs did not request leave to amend and did not obtain the 13 defendants’ consent to a further amendment; they stipulated to an extension of the defendants’ 14 deadline to respond. See Stip. & Order, ECF No. 43. The sixth amended complaint is therefore 15 stricken, and the fifth amended complaint is the plaintiffs’ controlling pleading. 16 II. ALLEGATIONS 17 Minor plaintiffs A.H. and E.H. are plaintiff Cynthia Martin’s adopted sons. Fifth Am. 18 Compl. ¶ 5. Minor plaintiff C.G. is Ms. Martin’s biological daughter. Id. Non-party Jeffrey 19 Martin is Ms. Martin’s husband. Id. ¶ 30. The complaint also refers to two “younger children” 20 who share the initials “J.M.” Id. ¶ 31. 21 The court has summarized the plaintiffs’ allegations in its previous orders. Only a brief 22 summary is necessary again now. A mandated reporter at A.H.’s school discovered a burn on his 23 leg and informed Child Protective Services (CPS). Id. ¶ 21. According to this reporter, A.H. said 24 that his mother had spilled hot coffee on his leg during a fight with his father. Id. ¶ 22. This 25 story was untrue; A.H. either spilled the coffee on himself, or one of his siblings spilled it on him. 26 Id. ¶ 23. The burn kicked off an investigation into potential child abuse, which culminated in the 27 temporary removal of A.H, E.H. and C.G. from the home. Id. ¶¶ 35–36. Ms. Martin eventually 28 regained custody of A.H., E.H. and C.G., and the case against her was dismissed, but her name is 1 still listed on the Child Abuse Central Index (CACI). See id. ¶ 47. Mr. Martin was allegedly so 2 shocked by the investigation and the allegations against Ms. Martin that he left the state, taking 3 “the two smaller children,” both of whose initials are J.M. and J.M., with him. See id. ¶ 79; 4 Martin Decl. ¶ 2, ECF No. 51. 5 The plaintiffs allege the social worker who led the investigation, Brenda Bryant, lied, 6 manipulated witnesses, pressured Mr. Martin to leave the family, and obtained a warrant by 7 means of judicial deception. See, e.g., id. ¶¶ 31, 35, 38. Ms. Martin and the three other minor 8 children are now pursuing claims against Bryant and the County under 42 U.S.C. § 1983 and the 9 First, Fourth and Fourteenth Amendments. They also assert a claim for intentional infliction of 10 emotional distress. The defendants move to dismiss. Mot. to Dismiss (MTD), ECF No. 45. The 11 motion is fully briefed. Opp’n, ECF No. 48;1 Reply, ECF No. 49. The matter is submitted on the 12 papers. 13 III. LEGAL STANDARD 14 A complaint need contain only a “short and plain statement of the claim showing that the 15 pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,” Bell Atl. 16 Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned 17 accusations; “sufficient factual matter” must make the claim at least plausible. Ashcroft v. Iqbal, 18 556 U.S. 662, 678 (2009). In the same vein, conclusory or formulaic recitations elements do not 19 alone suffice. Id. (quoting Twombly, 550 U.S. at 555). 20 IV. ANALYSIS 21 A. Fourth Amendment Judicial Deception (Claim 1) 22 “To successfully allege a violation of the constitutional right to be free from judicial 23 deception, the [plaintiffs] must make out a claim that includes (1) a misrepresentation or omission 24 (2) made deliberately or with a reckless disregard for the truth, that was (3) material to the 25 judicial decision.” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1146-47 (9th Cir. 2021)
1 The plaintiffs filed their opposition about two weeks late, see Local Rule 230(c), because of a calendaring error by counsel, Opp’n at 6. However, as the defendants do not appear to have suffered any prejudice, the court permits the late filing and considers the merits of the opposition. 1 (listing “[e]xamples of judicial deception in child protective custody cases”); see also Franks v. 2 Delaware, 438 U.S. 154, 171–72 (1978). “To determine the materiality of omitted facts, [courts] 3 consider whether the affidavit, once corrected and supplemented, establishes probable cause.” 4 Bravo v. City of Santa Maria, 665 F.3d 1076, 1084 (9th Cir. 2011) (internal quotation marks 5 omitted). The Ninth Circuit has held that a claim for judicial deception must meet the heightened 6 pleading standard of Federal Rule of Civil Procedure 9(b) because the claim is one “involving 7 fraud.” Benavidez, 993 F.3d at 1148. 8 The plaintiffs allege Bryant lied when she claimed “the children were at risk for emotional 9 damage.” Fifth Am. Compl. ¶ 38. They allege “[t]here was no real reason for the children to be 10 removed” and “Bryant ignored all the experts and doctors who said the wound was ‘accidental.’” 11 Id. These allegations do not rise to the level of particularity required by Rule 9(b), because they 12 do not provide the detailed “who, what, when, and where of the judicial deception.” Benavidez, 13 993 F.3d at 1148.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 1] A.H., et al., No. 2:21-cv-00690-KJM-JDP 12 Plaintiffs, ORDER 13 v. 14 Sacramento County Dept. Child, Family and 15 Adult Services, et al., 16 Defendants. 17 18 The defendants move to dismiss the claims of Cynthia Martin and her three minor 19 | children, A.H., E.H. and C.G. The court grants the motion. 20 | I. PLEADINGS 21 The parties disagree at the outset about which is the operative complaint: (1) the first 22 | amended complaint, which the plaintiffs have titled the “Fifth Amended Complaint,” ECF 23 | No. 41; or (2) its purported successor, the document the plaintiffs title the “Sixth Amended 24 | Complaint, ECF No. 44. The plaintiffs have not explained their unconventional numbering 25 | scheme, but the court adopts it to avoid further confusion. The plaintiffs argue the sixth amended 26 | complaint is their controlling pleading. See Opp’n at 4-6, ECF No. 48. The defendants contend 27 | the fifth amended complaint is operative. See Reply at 2-3, ECF No. 49. 28 | /////
1 The court dismissed the original complaint and permitted the plaintiffs to amend their 2 complaint within 21 days. See Prev. Order (Sept. 20, 2021), ECF No. 20, recons. denied, ECF 3 No. 31; Prev. Order (Mar. 23, 2022), ECF No. 40. They did so by filing their fifth amended 4 complaint. Unless that complaint has been superseded, it remains operative. Rule 15 controls on 5 that point. Under that Rule, “[a] party may amend its pleading once as a matter of course within: 6 (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is 7 required, 21 days after service of a responsive pleading or 21 days after service of a motion under 8 Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). “In all other cases, a party 9 may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed. 10 R. Civ. P. 15(a)(2). The plaintiffs filed their sixth amended complaint more than 21 days after 11 their fifth amended complaint was filed and more than 21 days after any motion under Rule 12; 12 there has been no answer. The plaintiffs did not request leave to amend and did not obtain the 13 defendants’ consent to a further amendment; they stipulated to an extension of the defendants’ 14 deadline to respond. See Stip. & Order, ECF No. 43. The sixth amended complaint is therefore 15 stricken, and the fifth amended complaint is the plaintiffs’ controlling pleading. 16 II. ALLEGATIONS 17 Minor plaintiffs A.H. and E.H. are plaintiff Cynthia Martin’s adopted sons. Fifth Am. 18 Compl. ¶ 5. Minor plaintiff C.G. is Ms. Martin’s biological daughter. Id. Non-party Jeffrey 19 Martin is Ms. Martin’s husband. Id. ¶ 30. The complaint also refers to two “younger children” 20 who share the initials “J.M.” Id. ¶ 31. 21 The court has summarized the plaintiffs’ allegations in its previous orders. Only a brief 22 summary is necessary again now. A mandated reporter at A.H.’s school discovered a burn on his 23 leg and informed Child Protective Services (CPS). Id. ¶ 21. According to this reporter, A.H. said 24 that his mother had spilled hot coffee on his leg during a fight with his father. Id. ¶ 22. This 25 story was untrue; A.H. either spilled the coffee on himself, or one of his siblings spilled it on him. 26 Id. ¶ 23. The burn kicked off an investigation into potential child abuse, which culminated in the 27 temporary removal of A.H, E.H. and C.G. from the home. Id. ¶¶ 35–36. Ms. Martin eventually 28 regained custody of A.H., E.H. and C.G., and the case against her was dismissed, but her name is 1 still listed on the Child Abuse Central Index (CACI). See id. ¶ 47. Mr. Martin was allegedly so 2 shocked by the investigation and the allegations against Ms. Martin that he left the state, taking 3 “the two smaller children,” both of whose initials are J.M. and J.M., with him. See id. ¶ 79; 4 Martin Decl. ¶ 2, ECF No. 51. 5 The plaintiffs allege the social worker who led the investigation, Brenda Bryant, lied, 6 manipulated witnesses, pressured Mr. Martin to leave the family, and obtained a warrant by 7 means of judicial deception. See, e.g., id. ¶¶ 31, 35, 38. Ms. Martin and the three other minor 8 children are now pursuing claims against Bryant and the County under 42 U.S.C. § 1983 and the 9 First, Fourth and Fourteenth Amendments. They also assert a claim for intentional infliction of 10 emotional distress. The defendants move to dismiss. Mot. to Dismiss (MTD), ECF No. 45. The 11 motion is fully briefed. Opp’n, ECF No. 48;1 Reply, ECF No. 49. The matter is submitted on the 12 papers. 13 III. LEGAL STANDARD 14 A complaint need contain only a “short and plain statement of the claim showing that the 15 pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,” Bell Atl. 16 Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned 17 accusations; “sufficient factual matter” must make the claim at least plausible. Ashcroft v. Iqbal, 18 556 U.S. 662, 678 (2009). In the same vein, conclusory or formulaic recitations elements do not 19 alone suffice. Id. (quoting Twombly, 550 U.S. at 555). 20 IV. ANALYSIS 21 A. Fourth Amendment Judicial Deception (Claim 1) 22 “To successfully allege a violation of the constitutional right to be free from judicial 23 deception, the [plaintiffs] must make out a claim that includes (1) a misrepresentation or omission 24 (2) made deliberately or with a reckless disregard for the truth, that was (3) material to the 25 judicial decision.” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1146-47 (9th Cir. 2021)
1 The plaintiffs filed their opposition about two weeks late, see Local Rule 230(c), because of a calendaring error by counsel, Opp’n at 6. However, as the defendants do not appear to have suffered any prejudice, the court permits the late filing and considers the merits of the opposition. 1 (listing “[e]xamples of judicial deception in child protective custody cases”); see also Franks v. 2 Delaware, 438 U.S. 154, 171–72 (1978). “To determine the materiality of omitted facts, [courts] 3 consider whether the affidavit, once corrected and supplemented, establishes probable cause.” 4 Bravo v. City of Santa Maria, 665 F.3d 1076, 1084 (9th Cir. 2011) (internal quotation marks 5 omitted). The Ninth Circuit has held that a claim for judicial deception must meet the heightened 6 pleading standard of Federal Rule of Civil Procedure 9(b) because the claim is one “involving 7 fraud.” Benavidez, 993 F.3d at 1148. 8 The plaintiffs allege Bryant lied when she claimed “the children were at risk for emotional 9 damage.” Fifth Am. Compl. ¶ 38. They allege “[t]here was no real reason for the children to be 10 removed” and “Bryant ignored all the experts and doctors who said the wound was ‘accidental.’” 11 Id. These allegations do not rise to the level of particularity required by Rule 9(b), because they 12 do not provide the detailed “who, what, when, and where of the judicial deception.” Benavidez, 13 993 F.3d at 1148. For example, it is unclear why doctors’ opinions about accidental wounds were 14 relevant to Bryant’s claim that “the children were at risk for emotional damage.” Fifth Am. 15 Compl. ¶ 38 (emphasis added). This claim is dismissed. 16 B. First Amendment Retaliation (Claim 2) 17 Ms. Martin’s First Amendment retaliation claim requires a showing that: (1) she 18 “engaged in constitutionally protected activity;” (2) “the defendant’s actions caused the plaintiff 19 to suffer an injury that would chill a person of ordinary firmness from continuing to engage in 20 that activity;” and (3) “the defendant’s adverse action was substantially motivated as a response 21 to the plaintiff’s exercise of constitutionally protected conduct.” Tranquilla v. City & Cnty. of 22 San Francisco, No. 11-04763, 2014 WL 554536, at *6 (N.D. Cal. Feb.7, 2014); see also Corales 23 v. Bennett, 567 F.3d 554, 563 (9th Cir. 2009). The operative complaint claims only that 24 Ms. Martin “declined to produce” medical records after Bryant asked for them. Fifth Am. Compl. 25 ¶ 60. Ms. Martin has cited no authority to suggest that declining to produce medical records is a 26 constitutionally protected activity, and the court is aware of none. The court has also already 27 determined that Ms. Martin’s previous, similar allegation—that she “questioned” Bryant’s 28 ///// 1 authority, Compl. ¶ 53, ECF No. 1—did not support a First Amendment retaliation claim, Prev. 2 Order (Mar. 23, 2022) at 6. This claim too is dismissed. 3 C. Fourteenth Amendment Due Process (Claim 3) 4 For procedural due process, the plaintiffs allege without elaboration that they did not 5 receive “fundamentally fair, orderly, and just judicial proceedings.” Fifth Am. Compl. ¶ 74. For 6 the reasons in this court’s previous order, this allegation does not suffice. See Prev. Order 7 (Mar. 23, 2022) at 7. The plaintiffs also allege Bryant “deceived” the court that issued the 8 protective warrant. Fifth Am. Compl. ¶ 78. The Ninth Circuit has “recognized a constitutional 9 right under the Due Process Clause of the Fourteenth Amendment to be free from judicial 10 deception and fabrication of evidence in the context of civil child custody cases.” Benavidez, 993 11 F.3d at 1146 (citations omitted). But as explained above, the plaintiffs have not stated a claim for 12 judicial deception. 13 As for substantive due process, Ms. Martin’s claim must be based on “harmful conduct” 14 that “shocks the conscience.” See Prev. Order (Mar. 23, 2022) at 8 (citing Rosenbaum v. Washoe 15 Cnty., 663 F.3d 1071, 1079 (9th Cir. 2011)). As before, bare allegations about a rupture in the 16 family unit, Fifth Am. Compl. ¶ 76, do not meet this standard, see Prev. Order (Mar. 23, 2022) at 17 8–9. This claim is dismissed. 18 D. Monell Liability (Claim 4) 19 To establish the County’s liability under Monell v. Department of Social Services, 20 436 U.S. 658 (1978), the plaintiffs must plead and prove the County had a policy “amount[ing] to 21 deliberate indifference to the plaintiff[s’] constitutional right[s]” and that “[wa]s the moving force 22 behind” a deprivation of the plaintiffs’ constitutional rights. Dougherty v. City of Covina, 23 654 F.3d 892, 900 (9th Cir. 2011) (citation omitted). Plaintiffs once again claim the County has 24 unconstitutional policies based on “a pervasive practice or custom.” Horton by Horton v. City of 25 Santa Maria, 915 F.3d 592, 602–03 (9th Cir. 2019); see Fifth Am. Compl. ¶ 85(a–h). Their fifth 26 amended complaint attaches several LexisNexis search results and a press release about claims of 27 social workers fabricating and concealing evidence. Fifth Am. Compl. Exs. A–C. The relevance 28 of these exhibits is questionable, but the court would dismiss the Monell claim even if the exhibits 1 supported the plaintiffs’ claims that the County had a policy. The fifth amended complaint does 2 not include factual allegations sufficient to support the plaintiffs’ claims of an underlying 3 constitutional violation. This claim is dismissed. 4 E. Intentional Infliction of Emotional Distress (IIED) (Claim 62) 5 Finally, the plaintiffs have not alleged “sufficiently outrageous conduct” to support their 6 IIED claim. See Prev. Order (Mar. 23, 2022) at 10–11 (citing Simo v. Union of Needletrades, 7 Indus. & Textile Employees, Sw. Dist. Council, 322 F.3d 602, 622 (9th Cir. 2003)). The plaintiffs 8 allege “Bryant engaged in an inappropriate and leading interview of [the] [m]inor [p]laintiffs,” 9 Fifth Am. Compl. ¶ 93(a), and maintained the juvenile dependency case with unfounded 10 allegations,” id. ¶¶ 93(c) & 46. These assertions are similar to those the court found insufficient 11 in its previous order. Prev. Order (Mar. 23, 2022) at 10–11. The court need not decide whether 12 the defendants are immune under Government Code section 815. See Mot. at 13. This claim is 13 dismissed. 14 F. Leave to Amend 15 Courts freely grant leave to amend absent “strong evidence of undue delay, bad faith or 16 dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments 17 previously allowed, undue prejudice to the opposing party by virtue of allowance of the 18 amendment, futility of amendment, etc.” Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma Cnty., 19 708 F.3d 1109, 1117 (9th Cir. 2013) (citation and quotation marks omitted). Although the 20 additions in the stricken sixth amended complaint do not cure the deficiencies identified in this 21 order, the plaintiffs prepared it without the benefit of the court’s ruling on the fifth amended 22 complaint. The court cannot exclude the possibility that the plaintiffs could state at least one 23 viable claim. The court therefore grants the plaintiffs one final opportunity to amend their 24 complaint, if they can do so within the confines of Rule 11. The court cautions the plaintiffs that 25 greater length and more detail may be counterproductive unless modifications address the 26 substance of the court’s orders. Under Rule 8, a complaint must include a “short and plain
2 There is no claim 5. 1 | statement” of their claims. Fed. R. Civ. P. 8(a)(2). A complaint that does not meet this standard 2 | may result in sanctions, including monetary sanctions or dismissal. 3 | V. CONCLUSION 4 The court grants the defendants’ motion to dismiss (ECF No. 45). The court grants the 5 | plaintiffs one final chance to amend. Any amended complaint must be filed within 21 days of 6 | this order. 7 IT IS SO ORDERED. 8 DATED: July 13, 2022. [ (] 9 pais ( g_/ CHIEF ONT] ED STATES DISTRICT JUDGE