1 2 3 4 5 6 7 8 0UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHANTILESE DANIELS, an individual; Case No.: 3:23-cv-00316-JES-BGS OTIS EVANS, an individual, 12 ORDER GRANTING IN PART AND Plaintiffs, 13 DENYING IN PART MOTION TO v. DISMISS 14
COUNTY OF SAN DIEGO, a public 15 [ECF No. 15] entity; MELISSA SAWYER, an 16 individual; DOE HHSA Workers 2 through 10, known but unidentified 17 individuals; and DOES 1 through 20, 18 inclusive, 19 Defendants. 20 21 Before the Court is Defendants County of San Diego (“County”) and Melissa 22 Sawyer’s (“Sawyer”) (collectively “Defendants”) motion to dismiss. ECF No. 15. The 23 motion was filed on July 20, 2023. Shantilese Daniels (“Daniels”) and Otis Evans 24 (“Evans”) (collectively “Plaintiffs”) filed their opposition and Defendants filed a reply. 25 On September 13, 2023, the Court heard oral argument on the motion and took it under 26 submission. ECF No. 18. After due consideration, and for the reasons stated below, the 27 Court GRANTS IN PART AND DENIES IN PART the motion to dismiss. 28 / / / 1 I. PLAINTIFF’S ALLEGATIONS 2 Plaintiffs are the parents of three children, Shantilese, age 14, Otis, age 11 and 3 Baby S, 2 months old at the time of the incident. First Amended Complaint (“FAC”) ¶ 4 18. Daniels was breast-feeding Baby S at the time of the incident. Id. On Monday, 5 December 6, 2021, Daniels was bathing Baby S and noticed two very small red “spots” 6 on the bottom of Baby S’s right foot. FAC ¶ 19. While concerned about the red spots, 7 Daniels noted mentally that she and Baby S had an appointment with the pediatrician the 8 next day on December 7, 2021, and she would bring the spots to the doctor’s attention. 9 Id. 10 On December 7, 2021, Daniels took Baby S to his pediatrician appointment at 11 Rady’s Children to see, Saadia Irem Khan, M.D. (“Dr. Khan”). FAC ¶ 20. Dr. Khan 12 conducted a complete physical examination and deemed Baby S healthy. Id. At the end of 13 the appointment Daniels brought the two red spots to the attention of Dr. Khan as Dr. 14 Khan did not notice the red spots during her examination. Id. After reexamining the red 15 spots Dr. Khan noted she was unfamiliar with the two red spots as she had not observed 16 anything like it before. Id. Dr. Khan took a picture of the bottom of Baby S’s right foot 17 and informed Daniels that she would refer the pictures to dermatology. Id. 18 On December 8, 2021, Daniels called Dr. Khan and left a message since she had 19 not heard anything regarding the two red spots. FAC ¶ 21. Later that day, Dr. Khan called 20 Daniels and related that she had been extremely busy and would send the picture she took 21 to dermatology. Id. On December 9, 2021, Dr. Khan called Daniels and asked her, “Did 22 Baby S kick something with her right foot that caused injury?” FAC ¶ 22. Daniels 23 responded, “No,” and inquired about the results of the dermatology referral. Id. Dr. Khan 24 then stated, “I will be doing an investigation, and someone will be in contact with you.” 25 Id. Dr. Khan never told Daniels her conclusions about the two red spots at the bottom of 26 Baby S’s right foot or any other concerns. Id. 27 On December 10, 2021, Daniels took Baby S to the Kaiser lab for blood 28 work/testing as referred by Dr. Khan. FAC ¶ 23. Shortly after Daniels and Baby S 1 returned home from the Kaiser lab, Sawyer, a caseworker for the County of San Diego, 2 arrived at Plaintiffs’ door, asking for entry. FAC ¶ 24. Sawyer informed Daniels that Dr. 3 Khan reported Baby S had a bruise on his face, bruises between his toes and on the 4 bottom of his foot that were inflicted injuries. FAC ¶ 25. Sawyer also informed Daniels 5 that she had just left the school where Daniels’ older kids attended and questioned them. 6 FAC ¶ 24. Plaintiffs did not receive prior notice or warning or give consent for the 7 interview. Id. Sawyer then conducted a physical examination of Baby S. FAC ¶ 25. After 8 the examination, Sawyer then stated to Daniels that she saw nothing corroborating what 9 the pediatrician described. Id. Daniels then explained to Sawyer that Baby S never had 10 any bruises on his face, only his birthmark. Id. Daniels also explained to Sawyer that 11 there were never any bruises between Baby S’s toes and that she herself had asked the 12 pediatrician to check the red sports on the bottom of the baby’s foot. Id. Sawyer 13 confirmed that the suspected bruises were a birthmark and confirmed there were no 14 bruises between the baby’s toes. Id. Further the two red spots that were previously seen 15 on the bottom of Baby S’s right foot were no longer visible. Id. Sawyer then excused 16 herself to call her supervisor and at the conclusion of the 30-minute call, Sawyer told 17 Daniels to cancel everything for the day and to accompany her to Rady’s Children’s 18 Hospital for Baby S to be examined. FAC ¶ 26. 19 Daniels arrived at Rady’s with Baby S at approximately 2 p.m. and did not leave 20 until 8:30 p.m. that night. Id. At Rady’s, Baby S had a round of blood work, despite 21 Daniels informing Sawyer that she had brought Baby S to the Kaiser lab for blood work 22 earlier that same day. FAC ¶ 27. Baby S also had x-rays and further examinations. Id. All 23 the examinations, x-rays and tests confirmed that Baby S was healthy and normal with no 24 physical signs to support any claim of abuse or inflicted injury. Id. Sawyer, a sheriff 25 deputy and doctors told Daniels that because Baby S did not have any medical issues 26 revealed by the examinations and was only two months old and not mobile, Daniels 27 herself must have inflicted the reported bruises. Id. Daniels was repeatedly told they 28 knew she had inflicted injuries on Baby S. Id. At the end of the day, Daniels was told that 1 Baby S could not return home with her and that she could not be alone with her baby. 2 FAC ¶ 28. Plaintiffs were informed that they could not have custody of Baby S, who 3 would be placed under the supervision of a third party. Id. Daniels was then told that as 4 an accommodation, she would be permitted to have a family member come, get clearance 5 to supervise Baby S and pick up the baby from the hospital to take to the family 6 member’s residence and serve as the caregiver for Baby S. Id. Daniels was overwhelmed 7 and emotionally distraught. Id. Defendants allowed Daniels an accommodation to breast 8 feed Baby S after Daniels’ family reminded Defendants that Daniels was nursing Baby S. 9 Id. Daniels was allowed to go to her relative’s house to breast feed Baby S, but would not 10 be allowed to be alone with Baby S and at all times would have to be accompanied and 11 supervised by someone cleared as a caregiver by the Health and Human Services 12 Administration (“HHSA”) and Child Welfare services (“CWS”). Id. Daniels and the 13 family were ordered that Daniels could never be alone with Baby S. FAC ¶ 29. Daniels 14 objected to the arrangement, but Sawyer informed her that Defendants had “other 15 options” if she did not comply, and Daniels did not want Baby S placed into foster care or 16 some other arrangement. Id. 17 From December 10, 2021, through January 18, 2022, Daniels complied with all 18 directions from Defendants while also seeking the return of custody of Baby S. FAC ¶ 19 30. Baby S was taken to the Chadwick Center for further examinations on two occasions, 20 December 15, 2021, and December 28, 2021. Id. On December 15, 2021, Sawyer met 21 Daniels at the relative caregiver’s home, took custody of Baby S and drove the baby to 22 the Chadwick Center with Daniels following in a separate car. Id. After the examination, 23 Sawyer took custody of Baby S and drove him back to the relative’s home with Daniels 24 following in a separate car. Id. On December 20, 2021, Sawyer called Daniels to say that 25 the doctor had concluded that the red marks on the bottom of the baby’s foot was an 26 inflicted injury and that the order was that she still could not have Baby S returned to her. 27 FAC ¶ 31. 28 1 On December 28, 2021, Baby S had another medical examination, and all the x- 2 rays and test results were normal. FAC ¶ 32. On that day, Daniels told Sawyer she was 3 seeking to get full unsupervised custody and control of Baby S as soon as possible and 4 Sawyer told her that the best she could hope for was to limit the process to an additional 5 six months without full custody with Daniels being forced to complete six months 6 parental instruction. FAC ¶ 34. Throughout the investigation, Daniels repeatedly sought 7 to regain custody of Baby S and asked for her baby to be examined by a dermatologist 8 who might be able to explain the problem, but her requests were denied. FAC ¶ 33. 9 On January 18, 2022, Plaintiffs were informed by a form letter from Sawyer that 10 after investigating the referral was closed effective January 18, 2022. FAC ¶ 35. No 11 results of the investigation were disclosed. Id. After Plaintiffs regained full custody of 12 Baby S, Daniels noticed that Baby S would sometimes curl his toes, tighten, and flex his 13 foot. FAC ¶ 37. Daniels took Baby S to a dermatologist who explained that red spots on 14 his foot likely resulted from the baby’s actions in tightening, flexing, and squeezing his 15 right foot. FAC ¶ 38. The doctor said the conduct would go away as the baby got older 16 and it was not a concern. Id. 17 Plaintiffs have alleged four causes of action, (1) that Sawyer interfered with and 18 took away Plaintiff’s rights of control and management over Baby S, including rights of 19 unsupervised custody, without a warrant or other similar court order, under non-exigent 20 circumstances in violation of the First and Fourteenth Amendments and that Sawyer 21 interviewed and examined Plaintiffs’ daughter without parental consent or authorization; 22 (2) that Defendants violated Plaintiffs’ constitutional rights to subject their child to a 23 forensic medical examination without just cause, informed and voluntary parental 24 consent or a court order/warrant authorizing the examination; (3) judicial deception; and 25 (4) Monell related claims relating to each of the above alleged constitutional violations. 26 / / / 27 / / / 28 / / / 1 II. LEGAL STANDARD 2 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 3 state a claim tests the legal sufficiency of a plaintiff’s claim. Navarro v. Block, 250 F.3d 4 729, 732 (9th Cir. 2001). When considering the motion, the court must accept as true all 5 well-pleaded factual allegations in the complaint. Bell Atlantic Corp. v. Twombly, 550 6 U.S. 544, 555 (2007). The court need not accept as true legal conclusions cast as factual 7 allegations. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[t]hreadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements” are insufficient). 9 A complaint must “state a claim for relief that is plausible on its face.” Twombly, 10 550 U.S. at 570. To survive a motion to dismiss, a complaint must include non- 11 conclusory factual content. Id. at 555; Iqbal, 556 U.S. at 679. The facts and the 12 reasonable inferences drawn from those facts must show a plausible—not just a 13 possible—claim for relief. Twombly, 550 U.S. at 556; Iqbal, 556 U.S. at 679; Moss v. 14 U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The focus is on the complaint, as 15 opposed to any new facts alleged in, for example, the opposition to a defendant’s motion 16 to dismiss. See Schneider v. California Dep’t of Corrections, 151 F.3d 1194, 1197 n.1 17 (9th Cir. 1998), reversed and remanded on other grounds as stated in 345 F.3d 716 (9th 18 Cir. 2003). “Determining whether a complaint states a plausible claim for relief [is] . . . a 19 context-specific task that requires the reviewing court to draw on its judicial experience 20 and common sense.” Iqbal, 556 U.S. at 679. The “mere possibility of misconduct” or 21 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 22 this plausibility standard. Id.; see also Moss, 572 F.3d at 969. 23 III. LEGAL ANALYSIS 24 A. Defendant Sawyer’s Motion 25 Turning first to Sawyer’s motion, she argues Plaintiffs’ first two claims should be 26 dismissed based on qualified immunity, Plaintiffs’ third claim should be dismissed for 27 failure to state a claim and Plaintiffs have failed to sufficiently state facts to support a 28 request for punitive damages. 1 1. Qualified Immunity 2 The doctrine of qualified immunity shields government officials “from liability for 3 civil damages insofar as their conduct does not violate clearly established statutory or 4 constitutional rights of which a reasonable person would have known.” Pearson v. 5 Callahan, 555 U.S. 223, 231 (2009). It “gives government officials breathing room to 6 make reasonable but mistaken judgments about open legal questions,” and “[w]hen 7 properly applied, [] protects ‘all but the plainly incompetent or those who knowingly 8 violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. 9 Briggs, 475 U.S. 335, 341 (1986). Qualified immunity attaches when an official’s 10 conduct “’does not violate clearly established statutory or constitutional rights of which a 11 reasonable person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per 12 curiam) 13 Claims of qualified immunity require the court to consider two questions: (1) 14 whether the facts alleged, taken in the light most favorable to the party asserting the 15 injury, show the defendant’s conduct violated a constitutional right, and (2) whether the 16 right was clearly established—that is, whether “it would be clear to a reasonable officer 17 that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 18 194, 201-202 (2001). Courts may exercise discretion in deciding which prong to address 19 first. Pearson, 555 U.S. at 236. The absence of either element warrants a finding that 20 immunity exists. Shafer v. Santa Barbara, 868 F.3d 1110, 1115 (9th Cir. 2017). 21 “Plaintiffs bear the burden of proving that a constitutional right ‘was clearly 22 established at the time of the incident.’” Benavidez v. County of San Diego, 993 F.3d 23 1134, 1151 (9th Cir. 2021) (citation omitted). But, at the pleading stage, the Court 24 resolves the question of qualified immunity “drawing all inferences in [the plaintiff’s] 25 favor.” Ballou v. McElvain, 29 F.4th 413, 421 (9th Cir. 2022). “If the operative complaint 26 ‘contains even one allegation of a harmful act that would constitute a violation of a 27 clearly established constitutional right,’ then plaintiffs are ‘entitled to go forward’ with 28 their claims.” Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir. 2018) (citation omitted). 1 However, “[a] heightened pleading standard … appl[ies] in this circuit in section 1983 2 cases where the defendant is entitled to assert the qualified immunity defense and where 3 her or his knowledge or intent is an element of the plaintiff’s constitutional tort.” Lee v. 4 City of Los Angeles, 250 F.3d 668, 679 n.6 (9th Cir. 2001). 5 a. First Cause of Action 6 (1) Removal of Baby S 7 In the first cause of action, Plaintiffs allege Sawyer violated their rights under the 8 First and Fourteenth Amendment. Specifically, Plaintiffs allege Sawyer’s removal of 9 Baby S without a warrant was an unlawful seizure and violated their rights of familial 10 association. Further, Plaintiffs allege that Sawyer’s conduct was an unwarranted 11 interference with Plaintiffs’ rights of care, management, and control of Baby S, including 12 rights of full unsupervised custody. Sawyer argues Plaintiffs have failed to allege a 13 violation of constitutional rights as there was no actual loss of custody. Further, Sawyer 14 argues even if there was a violation of a constitutional right, the law was not clearly 15 established, and Sawyer is entitled to qualified immunity. 16 The Fourteenth Amendment prohibits states from depriving “any person of life, 17 liberty, or property, without due process of law.” U.S. Const. amend. XIV § 1. Parents 18 and children have a well-elaborated constitutional right to live together without 19 governmental interference. Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also 20 Stanley v. Illinois, 405 U.S. 645, 651 (1972). That right is an essential liberty interest 21 protected by the Fourteenth Amendment’s guarantee that parents and children will not be 22 separated by the state without due process of law except in an emergency. Stanley, 405 23 U.S. at 651. 24 The First Amendment also protects “family relationships, that presuppose ‘deep 25 attachments and commitments to the necessarily few other individuals with whom one 26 shares not only a special community of thoughts, experiences, and beliefs but also 27 distinctively personal aspects of one’s life.’” Keates, 883 F.3d at 1236 (citing Lee, 250 28 F.3d at 685 (quoting Board of Dirs. v. Rotary Club, 481 U.S. 537, 545 (1987)). 1 The right to familial association has both substantive and procedural components, 2 thus placing a high burden of proof on the state and guaranteeing parents “fundamentally 3 fair procedures” before the “state interven[es] into ongoing family affairs.” Scanlon v. 4 County of Los Angeles, 92 F.4th 781, 798 (9th Cir. 2024) (quoting Santosky, 455 U.S. at 5 753–54). The same legal standard applies in evaluating the right to familial association 6 under the First and Fourteenth Amendment. See Kaur v. City of Lodi, 263 F.Supp.3d 947, 7 973 (E.D. Cal. 2017) (citing Lee, 250 F.3d at 686). Here, there was no judicial 8 authorization to remove Baby S from Plaintiffs’ home. 9 Officials may remove a child from the custody of its parent without prior judicial 10 authorization only if the information they possess at the time of the seizure is such as 11 provides reasonable cause to believe that the child is in imminent danger of serious 12 bodily injury and that the scope of the intrusion is reasonably necessary to avert that 13 specific injury. Wallis v. Spencer, 202 F.3d 1126, 1138 (2000). The state may not remove 14 children from their parents’ custody without a court order unless there is specific, 15 articulable evidence that provides reasonable cause to believe that a child is in imminent 16 danger of abuse. Wallis, 202 F.3d at 1138. Moreover, the police cannot seize children 17 suspected of being abused or neglected unless reasonable avenues of investigation are 18 first pursued, particularly where it is not clear that a crime has been—or will be— 19 committed. Id. Whether a reasonable avenue of investigation exists, however, depends in 20 part upon the time element and the nature of the allegations. Id. 21 Sawyer argues there was no seizure or removal of Baby S because a “plan” was 22 installed that was agreed to by Plaintiffs where, to ensure that Baby S was safe, a relative 23 of Daniels would be responsible for Baby S while CWS investigated the inflicted injury. 24 ECF No. 17 at 2. Sawyer cites to Capp v County of San Diego and Dees v. County of San 25 Diego to support her argument that Plaintiffs never lost custody or control of Baby S. 26 However, Sawyer’s reliance is misplaced. 27 In Capp, San Diego HHSA was investigating a child abuse claim amid a custody 28 battle between the children’s parents. Capp v. County of San Diego, 940 F.3d 1046, 1050 1 (9 Cir. 2019). A social worker contacted Capp, the children’s father, and Capp learned 2 for the first time that the social worker had interviewed his children at their elementary 3 school without his consent. Id. at 1051. The social worker then encouraged the mother to 4 file an emergency application in family court to remove the children from Capp’s 5 custody. Id. The mother filed an emergency application, but the court denied the 6 application. Id. Capp then filed suit alleging interference with familial association under 7 the Fourteenth Amendment based on the social worker’s actions. Id. The district court 8 dismissed the claim and the Night Circuit affirmed noting that Capp never actually lost 9 custody of his children because of Defendants’ alleged misconduct. Id. at 1060. 10 In Dees, San Diego HHSA was investigating a child sexual abuse claim during 11 which Dees’ children were removed from her home and temporarily sent to their 12 biological father’s home. Dees v. County of San Diego, 960 F.3d 1145, 1149 (9th Cir. 13 2020). The children were subsequently returned to their mother by the family court. Id. In 14 wrapping up the investigation, a County social worker interviewed one of the children at 15 school despite the maternal grandmother’s instructions not to interview the children 16 without an attorney present. Id. The interviewed lasted five minutes. Id. at 1150. The 17 Plaintiff in Dees brought a Fourteenth Amendment familial association claim against the 18 County and a part of the claim was based on an alleged seizure of the child in violation of 19 the Fourth Amendment during the interview by the social worker. Id. at 1151. That claim 20 went to trial and the jury returned a verdict in favor of the County, but the district court 21 granted a new trial on the Plaintiff’s motion, and granted judgement as a matter of law, 22 finding that there was an unreasonable seizure of the child during the interview. Id. The 23 Ninth Circuit reversed the district court’s ruling finding that the parent had not actually 24 lost control over the child based on the temporary separation during the interview. Id. at 25 1153. 26 Unlike Capp and Dees, here the complaint alleges that Daniels was threatened with 27 removal of Baby S from her care and only after the threat did Daniels agree to the 28 custody plan. FAC ¶ 29. Further, the complaint alleges that Sawyer interfered with 1 Plaintiffs rights of care, management, and control of Baby S. FAC ¶ 46. The complaint 2 alleges that Baby S was removed from Plaintiffs care and placed with a relative. FAC ¶ 3 28. Daniels was not allowed to have unsupervised visits with Baby S and was not able to 4 decide the care or treatment of Baby S. FAC ¶¶ 28-29. At this stage of the case, drawing 5 all inferences in Plaintiffs’ favor, the allegations in the complaint sufficiently allege that 6 Plaintiffs did indeed lose custody and control of Baby S from December 10, 2021, to 7 January 18, 2022. 8 Defendants then argue that the correct standard to assess a violation for deprivation 9 of familial association is whether defendants’ conduct “shocked the conscience,” and 10 Plaintiffs argue the correct standard is actually “unwarranted interference.” The correct 11 legal standard to assess a violation for deprivation of familial association is government 12 action that is “so egregious or ill-conceived that it shocks the conscious.” Alberici v. 13 County of Los Angeles, 2013 WL 5573045, *17, No. CV 12-10511-JFW (VBKx) (C.D. 14 Cal. Oct. 9, 2013). In Porter, the Ninth Circuit found that “deliberate indifference” is a 15 subset of “shocks the conscience.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) 16 (The “same standard applies to all due process right to familial association claims, 17 whether the actions that caused the alleged violation were taken by a law enforcement 18 officer, or a social worker.”); See Kulya v. City & County of San Francisco, 2008 WL 19 4415116 (N.D. Cal. Sept. 26, 2008) (finding that in order for a social worker’s continued 20 detention to violate plaintiff’s rights the conduct must be so offensive and intentional as 21 to “shock the conscience”); See Rosenbaum v. Washoe County, 663 F.3d 1071 (2011) 22 (finding that to amount to a violation of the right to family integrity, the harmful conduct 23 must “shock [] the conscience” or “offend the community’s sense of fair play and 24 decency.”); See Capp, 940 F.3d at 1060 (finding that “[o]fficial conduct that ‘shocks the 25 conscience’ in depriving parents of [a relationship with their children] is cognizable as a 26 violation of due process,” right to familial association claim under First and Fourteenth 27 Amendment). A Plaintiff can satisfy the “shocks the conscience” standard either by (1) 28 showing that a state official acted with “deliberate indifference,” or (2) showing that a 1 state official “acted with a purpose to harm.” Neil Through Cyprian v. Modesto City 2 Schools District, 2017 WL 4652744 at *5, No. 1:17-cv-0256-LJO-SKO (E.D. Cal. Oct. 3 17, 2017). 4 Next, the question is whether there was reasonable cause to believe Baby S was in 5 imminent danger of serious bodily injury and whether the scope of the intrusion was 6 reasonably necessary to limit that specific injury? Admittedly, the facts in the complaint 7 are very close to support the arguments of both parties in this case. Conducing an analysis 8 under the “shocks the conscience” standard, the Court reviews the information available 9 to Sawyer on December 10, 2021, when Baby S was removed from Plaintiffs’ home. 10 Sawyer received notice of an “inflicted injury” of a two-month-old nonverbal child 11 that was solely in the custody and care of Plaintiffs. FAC ¶ 25. Daniels brought the two 12 “red spots” to Dr. Khan’s attention during his pediatrician visit as the doctor did not 13 notice the spots beforehand. FAC ¶ 20. Daniels contacted Dr. Khan on December 8, 14 2021, to follow-up on the “red spots.” FAC ¶ 21. On December 10, 2021, Daniels took 15 Baby S to the Kaiser lab for blood work/testing as referred by Dr. Khan. FAC ¶ 23. 16 During Sawyer’s initial physical examination, Baby S did not have a bruise on his face, 17 toes or bottom of his foot as was reported just three days earlier. FAC ¶ 25. Sawyer stated 18 to Daniels that she saw nothing corroborating the pediatrician’s report. Id. Sawyer also 19 confirmed that the suspected bruises on Baby S’s face was a birthmark and there were no 20 bruises on the bottom of Baby S’s foot. Id. At Rady’s Children Hospital, all the 21 examinations, x-rays and tests confirmed that Baby S was healthy and normal with no 22 physical signs to support any claim of abuse or inflicted injury. FAC ¶ 27. Based solely 23 on the allegations in the complaint and drawing all inferences in favor of the Plaintiffs at 24 this stage of the case, there was insufficient reasonable cause to believe Baby S was in 25 imminent danger of serious bodily injury and that removal from the home was necessary 26 at that time. Plaintiffs set forth sufficient facts to support a claim for violation of 27 Plaintiffs’ First and Fourteenth Amendment rights. 28 1 As to whether the right was clearly established or not, as discussed above, Wallis 2 clearly establishes the standard for removal of child absent judicial authorization. Based 3 solely on the facts alleged in the complaint construed in favor of Plaintiffs, a reasonable 4 official in Sawyer’s position would know the available information was insufficient to 5 establish reasonable cause to believe that Baby S was in imminent danger of serious 6 bodily injury, or that it was necessary to separate him from his parents. Thus, the 7 operative complaint alleges facts that allow the Court to draw the reasonable inference 8 that Sawyer is liable for the misconduct alleged and she is not entitled to qualified 9 immunity at this time. 10 (2) Interview of Daughter at School 11 In the first cause of action, Plaintiffs also allege that Sawyer’s interview of their 12 daughter at school without parental consent or authorization violated Plaintiffs’ rights of 13 control and management over their children. Sawyer argues that she is entitled to 14 qualified immunity for any alleged violation of a constitutional right in relation to the 15 interview of Plaintiffs’ daughter at school. Plaintiffs do not address this argument in their 16 opposition, appearing to concede the issue. Nevertheless, Sawyer is correct. 17 Plaintiffs are obviously upset their daughter was interviewed without their consent 18 or authorization during the investigation by Sawyer, however, the right of minor children 19 to be free from unconstitutional seizures and interrogations by social workers has not 20 been clearly established. See Capp, 940 F.3d at 1059-60. Therefore, Sawyer is entitled to 21 qualified immunity to any alleged First or Fourteenth Amendment violation relating to 22 the interview of Plaintiffs’ daughter at school. 23 b. Second Cause of Action 24 In the second cause of action, Plaintiffs allege Sawyer violated their rights by 25 conducting “forensic medical examinations” without consent or a court order. FAC ¶ 53. 26 Specifically, Plaintiffs allege the initial physical examination by Sawyer on December 27 10, 2021, the medical examination at Rady’s Children’s Hospital on December 10, 2021, 28 the medical examination on December 15, 2021, and the medical examination on 1 December 28, 2021, were without consent in violation of Plaintiff’s right to familial 2 association. 3 The right to familial association includes the right of parents to make important 4 medical decisions for their children, and of children to have those decision made by their 5 parents rather than the state. Wallis, 202 F.3d at 1141. “[I]n the absence of parental 6 consent, [physical examinations] of their child may not be undertaken for investigative 7 purposes at the behest of state officials unless a judicial officer has determined, upon 8 notice to the parents, and an opportunity to be heard, that grounds for such an 9 examination exist and that the administration of the procedure is reasonable under all the 10 circumstances.” Id. (quoting van Emrik v. Chemung County Dept. of Social Servs., 911 11 F.2d 863, 867 (2d Cir. 1990)). Parents have a due process right to notice and consent that 12 is not dependent on the particular procedures involved in the examination or whether the 13 procedure is invasive. Mann v. County of San Diego, 907 F.3d 1154, 1162 (9th Cir. 2018) 14 See Mueller v. Auker, 700 F.3d 1180, 1187 (9th Cir. 2012) (“[P]arents have a 15 ‘constitutionally protected right to the care and custody of their children’ and cannot be 16 ‘summarily deprived of that custody without notice and a hearing,’ except where ‘the 17 children are in imminent danger.’”) (quoting Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 18 1997)). 19 The right of parental consent to conduct a medical examination absent judicial 20 authorization is a defined constitutional right. Here, it is without dispute that there was no 21 warrant issued by a judicial officer. 22 (1) December 10, 2021, Exam by Sawyer at Plaintiffs’ Home 23 Regarding the first physical examination of Baby S by Sawyer on December 10, 24 2021, at Plaintiffs’ home, Sawyer had received a complaint from Dr. Khan that two- 25 month-old Baby S had red spots on the bottom of his right foot and a bruise on his face 26 and bruises between his toes and bottom of his foot resulting from an inflicted injury. 27 Although Plaintiffs refer to Sawyer’s physical examination as a forensic examination, 28 there are no specific allegations that Sawyer did anything but a visual and physical 1 examination. There are no allegations that she used any medical instruments or conducted 2 any medical tests. Further, Plaintiffs do not allege that they denied consent to the 3 examination. A reasonable social worker when confronted with reports of inflicted abuse 4 of a two-month-old baby would not believe that her conduct would be unlawful in that 5 situation. In fact, it appears that Sawyer acted diligently, investigating to determine the 6 cause of injury to Baby S. For this reason, the Court finds the law was not clearly 7 established at the time Sawyer investigated a reported inflicted injury on Baby S. The 8 Court finds Sawyer is entitled to qualified immunity for the physical examination of 9 Baby S on December 10, 2021, at Plaintiffs’ home. 10 (2) December 10, 2021, Medical Exam at Rady’s Children Hospital 11
12 Next, is the December 10, 2021, medical examination at Rady’s Children Hospital. 13 As stated above, Sawyer received a report of an inflicted injury on two-month-old Baby S 14 and after conducting a visual and physical examination, Sawyer requested a medical 15 examination of Baby S and told Daniels to take Baby S to the hospital for an 16 examination. FAC ¶¶ 25-26. Once again, Plaintiffs do not allege that they denied consent 17 to the examination. In their Opposition, Plaintiffs allege that they were “forced to go 18 along with Sawyer’s orders under the threat that a failure to allow the examinations 19 would lead to Baby S being placed in a foster home.” ECF No. at 14. However, the 20 paragraphs from the FAC referenced in the opposition, paragraphs 27-33, state that: 21 At the conclusion of [the] … day, Ms. Daniels found herself being charged with allegations that Baby S., when presented to Dr. Khan on December 7, 22 had bruising and an ‘inflicted injury.’ Ms. Daniels was told that the baby could 23 not return home with her and that she could not be alone with her baby … as an accommodation, she would be permitted to have a family member come, 24 get clearance to supervise the baby and pick up the baby from the hospital to 25 take to the family member’s residence and serve as the caregiver for Baby S. … Although Ms. Daniels personally objected to the arrangement, she was 26 coerced and effectively forced to along with the ‘plan’ due to Sawyer 27 informing her that Defendants had ‘other options’ if she did not comply and 28 1 Ms. Daniels did not want her baby placed into foster care or some other improper and unjustified arrangement. 2
3 FAC ¶¶ 28-29. The reasonable inferences drawn from these facts taken in light of the 4 nonmoving party is that Plaintiffs were not forced to take Baby S to the December 10, 5 2021, medical examination at Rady’s Children’s Hospital. The reasonable inferences 6 drawn from these facts is that Plaintiffs felt threatened that they would lose custody of 7 Baby S after the December 10, 2021, examination was conducted, not prior to the 8 examination. For this reason, the Court finds the law was not clearly established at the 9 time Sawyer investigated a reported inflicted injury on Baby S. The Court finds Sawyer 10 is entitled to qualified immunity for the December 10, 2021, medical examination at 11 Rady’s Children’s Hospital. 12 (3) December 15 and 28, 2021, Medical Exams 13 As for the two remaining medical examinations on December 15, 2021, and 14 December 28, 2021, based solely on the facts alleged in the FAC construed in favor of 15 Plaintiffs, there is an allegation that Plaintiffs felt threatened with loss of custody and did 16 not challenge the additional medical examinations. However, the FAC gives very little 17 information regarding the December 15, 2021, examination. The FAC simply states that 18 “Baby S. was taken to the Chadwick Center for further examinations. On the first 19 occasion, on or about December 15, 2021.” FAC ¶ 30. The FAC does not explain the 20 type of examination that was conducted, or any procedures involved. If it was a visual 21 examination only no judicial authorization or parental consent is required. Wallis clearly 22 applies to physical examinations. The failure to include any information related to that 23 “examination” fails to put the defense on notice and violates Rule 8. For that reason, the 24 Court dismisses any alleged constitutional violations from the December 15, 2021, 25 medical examination for failure to state a claim upon which relief may be granted, with 26 leave to amend. 27 Sawyer argues that Plaintiffs were provided notice of each of these examinations 28 and that Daniels was in fact present for each of the examinations. Further, Sawyer argues 1 that Plaintiffs did not object to either examination. However, as stated above, there is an 2 inference that Plaintiffs did not object to the examinations because of the insinuation that 3 if they did not acquiesce to the examinations, Baby S would be placed in foster care. FAC 4 ¶¶ 27-33. Sawyer further argues that Plaintiffs have not presented a case directly on point 5 to show that the right at issue here is clearly established. However, the Supreme Court 6 “does not require a case directly on point” to show that a right is clearly established for 7 purposes of qualified immunity. Salvi v. County of San Diego, 2019 WL 1671001, No. 8 18cv1936 DMS (MDD), at *5 (S.D. Cal. April 17, 2019) (quoting Ashcroft v. al-Kidd, 9 563 U.S. 731, 741 (2011)). See Smartwood v. County of San Diego, 84 F. Supp.3d 1093, 10 1111 (2014) (“[I]t is not necessary that a case be on ‘all fours’ with the facts of the instant 11 case. A right is clearly established if ‘the contours of the right are sufficiently clear that a 12 reasonable official would understand that what he is doing violates that right.’”) (quoting 13 Rogers v. County of San Joaquin, 487 F.3d 1288, 1297). 14 Mann and Wallis clearly establish the due process requirement of parental consent 15 for medical examinations absent judicial authorization. At this stage of the proceedings, 16 Plaintiffs are entitled to go forward with their claim relating to the December 28, 2021, 17 medical examination. 18 The Court’s denial of qualified immunity at this stage of the proceedings does not 19 mean this case will proceed to trial. Once an evidentiary record has been developed 20 through discovery, Sawyer will be free to move for summary judgment based on 21 qualified immunity. See Keates, 883 F.3d at 1240. 22 c. Third Cause of Action – Judicial Deception 23 In their third claim, Plaintiffs allege Sawyer and Doe Defendants violated 24 Plaintiffs’ rights under the Fourteenth Amendment when they included false or 25 misleading information in their contact notes with the intention that said information be 26 used later in drafting reports to potentially be presented to the juvenile court. Sawyer 27 argues that Plaintiffs have failed to set forth sufficient facts to support this claim, and 28 1 even if the claim is sufficiently pleaded, it is subject to dismissal pursuant to the Rooker- 2 Feldman doctrine and issue preclusion. 3 To successfully allege a violation of the constitutional right to be free from judicial 4 deception, Plaintiffs must make out a claim that includes (1) a misrepresentation or 5 omission (2) made deliberately or with a reckless disregard for the truth, that was (3) 6 material to the judicial decision. Benavidez, 993 F.3d at 1147. In their opposition to the 7 motion to dismiss, Plaintiffs concede that “[they] do not have facts at this time to allege 8 that any of the false contact notes or other documents were ever actually presented to a 9 court.” ECF No. 16 at 14. Based on the lack of sufficient facts in the FAC and Plaintiffs’ 10 concession of such, the judicial deception claim is DISMISSED. 11 d. Punitive Damages 12 Plaintiffs request punitive damages against Sawyer for the conduct alleged. Sawyer 13 argues that Plaintiffs fail to state a claim for punitive damages because they merely make 14 formulaic recitations of the punitive damages standard by alleging that she “acted 15 intentionally and/or with a conscious and callous disregard for Plaintiffs’ constitutional 16 rights.” FAC ¶¶ 50, 59, 69. 17 “[P]unitive damages may be assessed under 42 U.S.C. section 1983 when a 18 defendant’s conduct is shown to be motivated by evil motive or intent, or if it involves 19 reckless or callous indifference to the federally protected rights of others.” Fair Housing 20 of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002); See Dang v. Cross, 422 F.3d 800, 21 809 (9th Cir. 2005) (Finding oppressive conduct may also be a proper predicate for 22 punitive damages in a civil-rights case. “An act … is oppressive, ‘if done in a manner 23 which injures or damages or otherwise violates the rights of another person with 24 unnecessary harshness or severity as by misuse or abuse of authority or power or by 25 taking advantage of some weakness or disability or the misfortunes of another person.”) 26 (quoting Fountila v. Carter, 571 F.2d 487, 493 (9th Cir. 1978). 27 In their response to the motion to dismiss, Plaintiffs cite no legal authority to 28 support their request for punitive damages and simply rely on the FAC. The FAC repeats 1 the alleged actions of Sawyer and Doe Defendants. They are conclusory and are indeed 2 “formulaic recitations” of the punitive damages standard. For that reason, the request for 3 punitive damages is DISMISSED with leave to amend. 4 B. County’s Motion 5 The County’s motion is directed to Plaintiffs’ Monell claim in the fourth cause of 6 action. On Plaintiffs’ Monell claim, the County argues it is entitled to dismissal of this 7 claim for several reasons. First, it asserts that Sawyer did not violate Plaintiffs’ 8 constitutional rights. Second, the County contends Plaintiffs failed to identify a formal 9 policy or longstanding custom or practice. To the extent Plaintiffs have cited a policy, 10 custom or practice, the County argues Plaintiffs have failed to allege any policy, custom 11 or practice caused any violation of Plaintiffs’ constitutional rights. Finally, the County 12 asserts Plaintiffs have failed to set forth sufficient facts to support a Monell claim based 13 on failure to train. 14 “A valid claim of municipal liability under Monell v. Dep’t of Social Servs., 436 15 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 … (1978) requires a showing that the 16 individual’s constitutional violation ‘implements or executes a policy statement, 17 ordinance, regulation or decision officially adopted and promulgated by [the 18 municipality’s] officers’” Palmerin v. City of Riverside, 794 F.2d 1409, 1415 (9th Cir. 19 1986). 20 To sustain their Monell claim, Plaintiffs must show that the action that caused their 21 constitutional injury was part of an “official municipal policy of some nature.” Scanlon v. 22 County of Los Angeles, 92 F.4th 781, 811 (9th Cir. 2024) (citing Kirkpatrick v. County of 23 Washoe, 843 F.3d 784, 793 (9th Cir. 2016) (quoting Monell, 436 U.S. at 691). The Ninth 24 Circuit has identified four criteria for a Monell claim, “(1) [The Parents] had a 25 constitutional right of which [they] were deprived; (2) the municipality had a policy; (3) 26 the policy amounts to deliberate indifference to [their] constitutional right; and (4) ‘the 27 policy is the moving force behind the constitutional violation.’” Scanlon, 92 F.4th at 811 28 (citing Gordon v. County of Orange, 6 F.4th 961, 973 (9th Cir. 2021)) (quoting Dougherty 1 v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). Further, the Ninth Circuit has also 2 observed three ways a plaintiff can satisfy Monell’s policy requirement: The municipal 3 government acts pursuant to an express official policy, the government maintains a 4 longstanding practice or custom, or the act was committed or ratified by an official with 5 policy-making authority. Scanlon, 92 F.4th at 811-812 (citing Gordon, 6 F.4th at 973- 6 974). 7 The County’s first argument does not warrant dismissal of Plaintiffs’ Monell claim 8 because, as discussed above, the Court disagrees that Plaintiffs have failed to allege a 9 violation of their constitutional rights in the first and second claim. 10 The County’s second and third argument have merit. The FAC does not spell out 11 any express official policy or longstanding custom or practice. Further, the FAC does not 12 spell out that the act was committed or ratified by an official with policy-making 13 authority. Rather, the FAC makes conclusory allegations that the County promulgated 14 unconstitutional policies and procedures which authorized the conduct in this case. In the 15 Opposition, Plaintiffs fail to address this argument and instead argue the FAC adequately 16 alleges various County policies, customs and practices based on the County’s arguments 17 and cited cases in the motion to dismiss. Further, Plaintiffs argue they will be able to 18 provide further detail of the County’s customs and practices after conducting discovery. 19 Plaintiffs cannot rely on the County’s argument to support an absence of proof in their 20 operative complaint. Before Plaintiffs can proceed to discovery, they must adequately 21 allege a sufficient Monell claim in the operative complaint. 22 The allegations in the FAC do not suffice to state a claim for Monell liability. See 23 Capp, 940 F.3d at 1061 (finding the FAC ascribes Defendants’ alleged misconduct to 24 official policy in a conclusory fashion that is insufficient to state a viable claim.); See 25 Dougherty, 654 F.3d at 900 (dismissing “Monell and supervisory liability claims [that] 26 lack[ed] any factual allegations that would separate them from the ‘formulaic recitation 27 of a cause of action’s elements’ deemed insufficient by Twombly”) (quoting Twombly, 28 550 U.S. at 555). A court is “not bound to accept as true a legal conclusion couched as a 1 factual allegation.” Keates, 883 F.3d at 1243 (citing Iqbal, 556 U.S. at 678) (quoting 2 Twombly, 550 U.S. at 555). Thus, the County’s motion to dismiss Plaintiffs’ Monell 3 claim is GRANTED in its entirety for failure to state a claim. 4 Since the Court will grant Plaintiffs leave to amend the complaint, the Court will 5 address the County’s fourth argument. It appears Plaintiffs are alleging a Monell claim 6 based on failure to train. FAC ¶¶ . "[A]s to a municipality, 'the inadequacy of police 7 training may serve as the basis for 1983 liability only where the failure to train amounts 8 to deliberate indifference to the rights of persons with whom the police come into 9 contact.'" Flores v. County of Los Angeles, 758 F.3d 1154, 1158 (9th Cir. 2014) (quoting 10 City of Canton v. Harris, 489 U.S. 378, 388 (1989)). This means Plaintiffs "'must 11 demonstrate a conscious or deliberate choice on the part of a municipality in order to 12 prevail on a failure to train claim.'" Id. (quoting Price v. Sery, 513 F.3d 962, 973 (9th Cir. 13 2008)) (internal quotation marks omitted). "Under this standard, [Plaintiffs] must allege 14 acts to show that the County 'disregarded the known or obvious consequence that a 15 particular omission in their training program would cause [municipal] employees to 16 violate citizens' constitutional rights.'" Id. at 1159 (quoting Connick v. Thompson, 563 17 U.S. 51, 131 S.Ct. 1350, 1360 (2011)). In the failure to train context, additional instances 18 of misconduct are usually required to show deliberate indifference, however, a narrow 19 range of possibilities exist where the need for training is so "obvious" as to be satisfied by 20 a single incident. Connick, 563 U.S. at 64. Here, as stated above, Plaintiffs have only 21 alleged formulaic conclusory allegations that appear to be based solely on the facts of this 22 incident. Considering these allegations, the County’s motion to dismiss Plaintiffs’ Monell 23 claim based on failure to train is also GRANTED. 24 IV. CONCLUSION 25 For the reasons set out above, the Court grants in part and denies in part 26 Defendant’s motion to dismiss. Specifically, the Court: 27 28 l (1) DENIES Sawyer’s motion to dismiss the first cause of action based on the 2 alleged seizure and removal of Baby S from Plaintiffs’ custody, care, 3 management and control; 4 (2)GRANTS Sawyer’s motion to dismiss the first cause of action based on 5 Sawyer’s interview of Plaintiffs’ daughter at school; 6 (3)GRANTS Sawyer’s motion to dismiss the second cause of action based on both 7 medical examinations on December 10, 2021, including the physical 8 examination at Plaintiffs’ home and the medical examination at Rady’s 9 Children’s Hospital; 10 (4)GRANTS Sawyer’s motion to dismiss the second cause of action based on the 11 December 15, 2021, medical examination; 12 (5) DENIES Sawyer’s motion to dismiss the second cause of action based on the 13 December 28, 2021, medical examination; 14 (6)GRANTS Sawyer’s motion to dismiss the third cause of action; 15 (7)GRANTS Sawyer’s motion to dismiss punitive damages; and 16 (8)GRANTS the County’s motion to dismiss the fourth cause of action. 17 || Plaintiffs are granted leave to file a Second Amended Complaint that cures the pleading 18 || deficiencies set out above with respect to the second and fourth causes of action as well 19 || as the request for punitive damages. If Plaintiffs wish to amend any of their claims 20 || consistent with this Order, they shall file a Second Amended Complaint on or before 21 || April 19, 2024. If Plaintiffs fail to file a Second Amended Complaint by that date, the 22 will proceed as to the viable claims alleged in the First Amended Complaint. 23 IT IS SO ORDERED. 24 || Dated: March 29, 2024 25 Soar Str, 26 Honorable James E. Sunmons Jr. 07 United States District Judge 28