Daurio v. Faust

• Court: District Court, D. Arizona
• Decided: November 25, 2020
• Docket: 2:18-cv-03299
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Steven Louis Daurio, No. CV-18-03299-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 Arizona Department of Child Safety, et al.,

13 Defendants. 14 15 16 Before the Court are Plaintiff Steven Louis Daurio (“Plaintiff”)’s Motion for Partial 17 Summary Judgment (Doc. 90) and Defendants Reynolds, Passmore, and Cargill 18 (“Defendants”)’ Cross Motion for Summary Judgment (Doc. 97).1 For the following 19 reasons, Plaintiff’s Motion is denied, and Defendants’ Motion is granted in part. 20 BACKGROUND 21 This case arises out of an investigation conducted by multiple Department of Child 22 Safety (“DCS”) employees concerning Plaintiff and his then ten-year-old son, AMD. The 23 investigation began in August 2016 after AMD told school authorities that his father hit 24 him with a pool skimmer pole, leaving bruises. A DCS criminal investigator, Jamie 25 Jenkins, met with AMD a few days after the report and made a finding that he “felt safe” 26 and “had no visible marks or bruises.” (Doc. 99 at 5.) DCS Caseworkers Defendants

27 1 The Parties’ request for oral argument are denied because they have had an adequate opportunity to discuss the law and evidence and oral argument will not aid the Court’s 28 decision. See Lake at Las Vegas Invrs. Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991). 1 Reynolds and Passmore nonetheless continued the investigation, holding a Team Decision- 2 making Meeting (“TDM”) to discuss emergency removal of AMD. Defendants allege that 3 they continued the investigation because of deficiencies in Investigator Jenkins’ initial 4 response. Id. 5 Mother and her representatives were invited to, and participated in, the TDM, but 6 Plaintiff was not notified of it. Defendants claim that he was excluded at the direction of 7 law enforcement, who were investigating the allegations. (Doc. 99 at 9.) Plaintiff, however, 8 alleges that the meeting predated Defendants’ contact with law enforcement, and that they 9 are misstating their motives to avoid disclosing his intentional exclusion. (Doc. 94 at 4.) 10 After the TDM, a TDM facilitator created a TDM Summary which recommended ADM 11 be removed from Plaintiff’s custody. (Doc. 94-3 at 7.) Plaintiff asserts ADM’s Mother used 12 the report to seek a Protective Order against Plaintiff, at the direction of the Defendants. 13 (Doc. 94 at 5.) The petition was initially granted ex parte and was subsequently upheld 14 after an evidentiary hearing where Plaintiff was represented by counsel and permitted to 15 testify and present evidence. (Doc. 99 at 15.) Mother then successfully sought a 16 modification of Plaintiff’s parenting time and decision-making authority, and Plaintiff’s 17 parenting time was suspended. (Doc. 99 at 16.) 18 Defendants subsequently interviewed Plaintiff about the August allegation, and 19 Plaintiff alleges a series of violations in their investigative procedures. He claims, for 20 example, that Defendants refused to consider exculpatory information he provided at the 21 meeting; failed to document their contacts with Mother and provide him notice of her 22 communications with DCS; altered his address in their system so that he would not receive 23 future mailed notifications; and failed to notify Plaintiff when DCS received allegations of 24 Mother’s neglect. (Doc. 94 at 6–8.) In response, Defendants allege they considered the 25 evidence, but Plaintiff’s exculpatory information was not exculpatory; that Plaintiff’s 26 allegations of failed notifications are largely false; and that the address change was 27 accidental and ultimately unharmful because Plaintiff received the notification through a 28 timely disclosure in the related family court proceeding. (Doc. 99 at 18, 21.) A family court 1 ultimately granted Plaintiff sole decision-making authority over AMD, finding that the 2 AMD allegation was unsubstantiated, the DCS file did not indicate observed injuries, and 3 that restricting Mother’s parenting time was in the best interest of AMD. (Doc. 99 at 3, 4 26-27.) DCS also ultimately found that the allegations were unsubstantiated and removed 5 Plaintiff from the Central Registry of child abusers. Id. 6 Plaintiff subsequently brought the instant suit, alleging violations of Arizona Law 7 and his constitutional rights to procedural and substantive due process. The Court 8 dismissed Plaintiff’s Arizona Law claims, so only Plaintiff’s constitutional due process 9 claims remain. (Doc. 87.) 10 DISCUSSION 11 I. Legal Standard 12 The purpose of summary judgment is “to isolate and dispose of factually 13 unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary 14 judgment is appropriate if the evidence, viewed in the light most favorable to the 15 nonmoving party, shows “that there is no genuine issue as to any material fact and that the 16 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Only disputes 17 over facts that might affect the outcome of the suit will preclude the entry of summary 18 judgment, and the disputed evidence must be “such that a reasonable jury could return a 19 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 20 (1986). 21 “[A] party seeking summary judgment always bears the initial responsibility of 22 informing the district court of the basis for its motion and identifying those portions of [the 23 record] which it believes demonstrate the absence of a genuine issue of material fact.” 24 Celotex, 477 U.S. at 323. Parties opposing summary judgment are required to “cit[e] to 25 particular parts of materials in the record” establishing a genuine dispute or “show[ ] that 26 the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 27 56(c)(1). A district court has no independent duty “to scour the record in search of a 28 genuine issue of triable fact[.]” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 1 “[W]hen simultaneous cross-motions for summary judgment on the same claim are before 2 the court, the court must consider the appropriate evidentiary material identified and 3 submitted in support of both motions, and in opposition to both motions, before ruling on 4 each of them.” Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 5 1134 (9th Cir. 2001). 6 II. Analysis 7 a. Qualified Immunity 8 “Qualified immunity shields federal and state officials from money damages unless 9 a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional 10 right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” 11 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “[L]ower courts have discretion to decide 12 which of the two prongs of qualified-immunity analysis to tackle first.” Id. at 735. Because 13 neither right was clearly established at the time of the challenged conduct, the Court need 14 not reach whether Plaintiff offered facts establishing that Defendants violated his 15 constitutional rights. 16 “‘Clearly established’ means that, at the time of the officer’s conduct, the law was 17 ‘sufficiently clear that every reasonable official would understand that what he is doing’ is 18 unlawful.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting al-Kidd, 19 563 U.S. at 741). Although the Ninth Circuit does “not require a case directly on point, . . . 20 existing precedent must have placed the statutory or constitutional question beyond 21 debate.” Keates v. Koile, 883 F.3d 1228, 1239 (9th Cir. 2018) (quoting al-Kidd, 563 U.S. 22 at 741); see Sharp v. Cty. of Orange, 871 F.3d 901, 910 (9th Cir. 2017) (“The Supreme 23 Court has repeatedly instructed that we examine ‘whether the violative nature of particular 24 conduct is clearly established’ by controlling precedent, not whether the conduct violates 25 a general principle of law.’”) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). The 26 Supreme Court in Wesby reiterated:

27 It is not enough that the rule is suggested by then-existing precedent. The 28 precedent must be clear enough that every reasonable official would interpret 1 it to establish the particular rule the plaintiff seeks to apply. Otherwise, the rule is not one that “every reasonable official” would know. . . . We have 2 repeatedly stressed that courts must not “define clearly established law at a 3 high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she 4 faced.” A rule is too general if the unlawfulness of the officer’s conduct “does 5 not follow immediately from the conclusion that [the rule] was firmly established.” 6 7 138 S. Ct. at 589–90 (internal citations omitted). “The plaintiff bears the burden of proof 8 that the right allegedly violated was clearly established at the time of the alleged 9 misconduct.” Romero v. Kitsap Cty., 931 F.2d 624, 627 (9th Cir. 1991). “If a plaintiff fails 10 to allege a violation of a clearly established law, the court need not even reach the other 11 issues presented regarding qualified immunity.” Knox v. Sw. Airlines, 124 F.3d 1103, 1107 12 (9th Cir. 1997). 13 i. Substantive Due Process Right to Familial Association 14 “Although a parent’s right to participate in his child’s care, custody, and 15 management is clearly established ‘as a broad general proposition,’ what that right means 16 ‘in light of the specific context’” of a defendant’s actions may not be clearly established. 17 James v. Rowlands, 606 F.3d 646, 652 (9th Cir. 2010) (quoting Saucier v. Katz, 533 U.S. 18 194, 201 (2001)); see also Dunn v. Castro, 621 F.3d 1196, 1205 (9th Cir. 2010) (finding 19 that the district court erred by evaluating the abstract right of familial association at a high 20 level “without regard to the relevant fact-specific circumstances”); Mabe v. San 21 Bernardino Cty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001) (“The 22 constitutional right of parents and children to live together without governmental 23 interference is well established.”). 24 Thus, although it is well-settled that Plaintiff’s alleged ultimate harm, loss of time 25 with his child, implicates a constitutional liberty interest, it is not well-settled that there 26 were constitutional violations from Plaintiff’s more specific allegations: that he was 27 excluded from the TDM; that he did not receive notice letters; and that exculpatory 28 information he provided was disregarded. Plaintiff points to no caselaw with similar facts, 1 and the Court is not aware of any precedent which establishes that failure to include a 2 parent in an investigation either because of failure to notify, or ill-will as Plaintiff alleges, 3 amounts to a constitutional violation. Absent such an analogous finding, the violation is 4 not clearly established, and Defendants are entitled to qualified immunity. See, e.g., Jones 5 v. Cty. of Los Angeles, 722 F. App’x 634, 637 (9th Cir. 2018) (finding that, although it was 6 well settled that a child could not be removed from her parents without prior juridical 7 authorization, it was not beyond debate that the totality of the circumstances could support 8 a seizure because of an exigency given no prior case specifically addressed when an infant 9 could be seized at a hospital without a warrant); Williams v. Cty. of San Diego, No. 10 17CV815-MMA (JLB), 2017 WL 6541251, at *8 (S.D. Cal. Dec. 21, 2017) (granting 11 qualified immunity because there was no Ninth Circuit precedent that established that 12 interviewing a child at school without the parents’ notice or consent violated their 13 Fourteenth Amendment Rights to familial association). 14 ii. Procedural Due Process 15 “A procedural due process claim has two distinct elements: (1) a deprivation of a 16 constitutionally protected liberty or property interest, and (2) a denial of adequate 17 procedural protections.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 18 971, 982 (9th Cir. 1998). “While the right to due process is ‘clearly established’ by the Due 19 Process Clause, this level of generality was not intended to satisfy the qualified immunity 20 standard.” Sinaloa Lake Owners Ass’n v. City of Simi Valley, 70 F.3d 1095, 1100 (9th Cir. 21 1995). Rather, “[t]he right the official is alleged to have violated must be made specific in 22 regard to the kind of action complained of for the constitutional right at issue to have been 23 clearly established.” Id. at 1100–01. Thus, “because procedural due process analysis 24 essentially boils down to an ad hoc balancing inquiry, the law regarding procedural due 25 process claims ‘can rarely be considered clearly established at least in the absence of 26 closely corresponding factual and legal precedent.’” Brewster, 149 F.3d at 983 (quoting 27 Baker v. Racansky, 887 F.2d 183, 187 (9th Cir.1989)). 28 Here, there is no closely corresponding factual or legal precedent which clearly 1 established Plaintiff’s procedural due process rights. Plaintiff alleges his rights were 2 violated because he was not provided with protections mandated by the “scheme of laws, 3 administrative rules and policies protecting familial relationships in DCS investigations.” 4 (Doc. 113 at 9.) But this contention that the Arizona statutes governing DCS establish what 5 process he must be afforded conflates the two prongs of the due process analysis. 6 Mandatory statutory language can establish a liberty interest which entitles a defendant to 7 procedural protections. See Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993) (“[A] 8 liberty interest may arise from the Due Process Clause or be created by state law.”). It does 9 not follow, however, that the terms of the statute dictate what process Plaintiff must be 10 afforded to satisfy the requirements of the Due Process Clause. Brewster, 149 F.3d at 983; 11 Haugen v. Fields, 366 F. App’x 787, 788 (9th Cir. 2010) (noting that a “due process claim 12 depends on federal constitutional law, not state law”). 13 Rather, “[p]recisely what procedures the Due Process Clause requires in any given 14 case is a function of context.” Brewster, 149 F.3d at 983; see Mathews v. Eldridge, 424 15 U.S. 319, 335 (1976). The Ninth Circuit has repeatedly found that violations of state 16 statutes which enact procedural protections do not prove a violation of a clearly established 17 federal right. See Marsh v. Cty. of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012) (“[I]t is 18 not enough to say simply that the right was clearly established by the California statute. It 19 must be clear that the state law created a right protected by the Constitution. The state 20 statute, on its own, could not do that.”) (internal citation and quotation omitted); Mueller 21 v. Auker, 576 F.3d 979, 998 (9th Cir. 2009) (finding that “controlling state laws regarding 22 notice did not clearly establish a federal right”). 23 Thus, no clearly established law demonstrates that the process Plaintiff received was 24 constitutionally deficient. Rather, the clear mandates from prior case law revolve around 25 process due prior to or after removal of a child. See, e.g., Mabe, 237 F.3d at 1106 (clarifying 26 that judicial authorization is generally required before interfering with a parent’s custody); 27 Ram, 118 F.3d at 1311 (discussing when imminent danger justifies taking a child into 28 custody). Here, Defendants did not physically remove AMD from Plaintiff’s custody; 1 Plaintiff challenges their process prior to that action. These factual disparities from the 2 established law demonstrate that the right was not clearly established at the time of 3 Defendants’ alleged violations. 4 iii. Precluded Claims 5 Qualified immunity bars Plaintiff’s due process claims because neither violation 6 was clearly established at the time of the alleged violation. This holding does not apply, 7 however, to a claim for injunctive or declaratory relief brought against Defendants. 8 Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989) 9 (“Qualified immunity is an affirmative defense to damage liability; it does not bar actions 10 for declaratory or injunctive relief.”). The First Amended Complaint seeks “non-Financial” 11 damages, requesting that DCS: (1) alter and seal its records; (2) be precluded from using 12 the allegation at issue against the Plaintiff in the future; and (3) be required to notify the 13 police of Plaintiff’s allegation. (Doc. 13 at 58–59.) Therefore, to the extent that Plaintiff 14 asserts a claim for injunctive relief, such a claim is not barred. Plaintiff’s constitutional 15 claims are thus addressed below. 16 b. Constitutional Claims 17 “Courts have characterized the right to familial association as having both a 18 substantive and a procedural component. While the right is a fundamental liberty interest, 19 officials may interfere with the right if they ‘provide the parents with fundamentally fair 20 procedures.’” Keates v. Koile, 883 F.3d 1228, 1236 (9th Cir. 2018) (quoting Santosky v. 21 Kramer, 455 U.S. 745, 753–54 (1982)) (internal citation omitted). Plaintiff alleges 22 violations of both his Substantive and his Procedural Due Process Rights. 23 i. Substantive Due Process 24 “It is well established that a parent has a fundamental liberty interest in the 25 companionship and society of his or her child.” Lee v. City of Los Angeles, 250 F.3d 668, 26 685 (9th Cir. 2001) (internal quotations omitted); see Smith v. City of Fontana, 818 F.2d 27 1411, 1419 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 28 199 F.3d 1037, 1040 n.1 (9th Cir. 1999) (en banc). The Fourteenth Amendment protects 1 against “unwarranted interference with the right to familial association.” Keates, 883 F.3d 2 at 1236. 3 Courts understand unwarranted interference as a flexible standard which accounts 4 for the circumstances of the alleged violation. In Lee, for example, the Ninth Circuit found 5 that the plaintiff had plausibly alleged unwarranted interference where law enforcement 6 officers repeatedly told a mother looking for her son that they had no record of his location, 7 though they knew he had been extradited to another state because of their false arrest. 250 8 F.3d at 685–86; see also Crowe v. Cty. of San Diego, 608 F.3d 406, 442 (9th Cir. 2010) 9 (affirming a district court’s grant of summary judgment for the plaintiff where the 10 defendants failed to demonstrate that there was reasonable cause to believe removal of the 11 children was warranted by California law). District courts draw on this example to explain 12 that “[u]nwarranted interference includes governmental actions that are vexatious and 13 unnecessary, harassing, unfounded or unreasonable, and arbitrary, discriminatory, or 14 demonstrably irrelevant.” Martinez v. City of W. Sacramento, No. 216CV02566TLNEFB, 15 2019 WL 448282, at *18 (E.D. Cal. Feb. 5, 2019); Reyes v. Cty. of San Joaquin, No. 16 CIVS040428FCDPANPS, 2005 WL 2105030, at *3 (E.D. Cal. Aug. 31, 2005), report and 17 recommendation adopted, No. CIV.S-040428FCDPANPS, 2005 WL 2372703 (E.D. Cal. 18 Sept. 27, 2005); see also McCue v. S. Fork Union Elementary Sch., 766 F. Supp. 2d 1003, 19 1008–09 (E.D. Cal. 2011) (“Interference with the familial relationship is ‘unwarranted’ 20 when it is effected for the purposes of oppression.”). 21 Here, there is a genuine issue of material fact over whether Defendants unreasonably 22 interfered with Plaintiff’s familial relationship with his son. A reasonable jury could 23 conclude based on the facts that Defendants pattern of errors and exclusion demonstrates 24 willful intrusion amounting to unreasonable and unwarranted interference. Plaintiff alleges 25 that Defendants persisted in an unwarranted investigation; refused to interview witnesses 26 he claims would have provided exculpatory evidence (Doc. 112-14 at 3); that Defendant 27 Reynolds refused to accept exculpatory evidence he provided her (Doc. 94-1 at 10–11); 28 and that Defendants repeatedly failed to notify him. (Doc. 112-14 at 9); (112-31 at 7). He 1 also claims that “Defendants Reynolds and Passmore falsified the TDM notice,” explaining 2 that, although the TDM report asserts he was not notified of the meeting at the request of 3 law enforcement because of their ongoing investigation, both Defendant Reynolds and 4 Defendant Passmore state in their depositions that they did not speak to Detective 5 Cuthbertson until after the TDM meeting. (Doc. 94-5 at 3–4); (Doc. 94-6 at 3–4). 6 Moreover, a reasonable jury could find that Defendants violated Plaintiff’s rights even 7 though it was a subsequent hearing which ultimately altered his parenting time. Plaintiff 8 alleges that Defendants precipitated the events which led to the hearing, and that they 9 encouraged Mother to seek the termination of his parental rights. (Doc. 94 at 4.) 10 Likewise, a reasonable jury could also find that the reports of abuse and law 11 enforcement involvement establish Defendants conducted their investigation reasonably. 12 Defendants allege that AMD reported physical abuse from Plaintiff and that Defendant 13 Passmore believed based on this report and previous incidents that the relationship could 14 involve a pattern of abuse. (Doc. 98-2 at 106.) They further claim Defendant Reynolds saw 15 bruising on AMD consistent with the account of the incident; Plaintiff was not notified of 16 the TDM at the direction of law enforcement; and that the TDM came to the conclusion 17 that there was a safety concern for AMD. (Doc. 98-2 at 26). Defendants’ asserted 18 justifications for their actions demonstrate that there is a genuine issue of fact. 19 Both parties’ motions for summary judgment for Plaintiff’s substantive due process 20 claims must therefore be denied. 21 ii. Procedural Due Process 22 Procedural Due Process guarantees adequate procedural protections prior to 23 deprivation of a constitutionally protected liberty interest. Brewster, 149 F.3d at 982. 24 Whether procedures satisfy due process is a flexible analysis evaluated in accordance with 25 the three-part balancing test outlined in Mathews v. Eldridge:

26 [I]dentification of the specific dictates of due process generally requires 27 consideration of three distinct factors. First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of 28 such interest through the procedures used, and the probable value, if any, of 1 additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative 2 burdens that the additional or substitute procedural requirements would 3 entail.

4 424 U.S. 319, 335 (1976); see Santosky, 455 U.S. at 754 (applying Mathews to child 5 termination proceedings). Specifically, “when the state has a legitimate interest in 6 interfering with a parent-child relationship, for example, where the best interest of the child 7 arguably warrants termination of the parent’s custodial rights, the state may legitimately 8 interfere so long as it provides ‘fundamentally fair procedures.’” Smith, 818 F.2d at 1419 9 (quoting Santosky, 455 U.S. at 754.). 10 Generally, “[f]ederal procedural due process guarantees prompt post-deprivation 11 judicial review in child custody cases.” Campbell v. Burt, 141 F.3d 927, 929 (9th Cir. 12 1998); see Dulaney v. Grimm, No. CV-13-036-JLQ, 2013 WL 3897770, at *8 (E.D. Wash. 13 July 29, 2013) (“When the state removes a child from his parent, due process guarantees a 14 prompt and fair post-deprivation judicial review.”). “However, when the child is ‘placed 15 in the care of a consenting legal custodian, the parent from whom physical custody over 16 the child is removed has no clearly established constitutional right to a state initiated 17 hearing.’” Pickett v. Boise Police Dep’t, No. 1:20-CV-00379-DCN, 2020 WL 5995484, at 18 *6 (D. Idaho Oct. 7, 2020) (quoting Shiraki v. Cannella, 83 F. App’x 896, 897 (9th Cir. 19 2003)); see Caldwell v. LeFaver, 928 F.2d 331, 334 (9th Cir. 1991) (finding the right to a 20 post-deprivation hearing when the state removes a child from a parent’s custody is not 21 clearly established when the child is “not placed with a person who lacked legal custody 22 rights.”). 23 Plaintiff received a post-deprivation hearing after his right to associate with his son 24 was altered. Mother’s initial order of protection was granted on August 15, 2016. (Doc. 25 119-1 at 3.) Eight days later, a family court held a combined hearing on the Order of 26 Protection and a Temporary Custody Order. (Doc. 119 at 3.) Plaintiff presented evidence 27 at the hearing and was represented by counsel. (Doc. 119 at 3); (Doc. 119-1 at 3–4). The 28 court suspended Plaintiff’s parenting time and ordered that AMD should remain with 1 Mother. Id. Plaintiff thus received an adequate post-derivation hearing. In fact, because 2 AMD was placed with Mother, even a post-deprivation hearing was not constitutionally 3 required. See, e.g., Sams v. Cty. of Riverside, No. EDCV171848SVWSS, 2019 WL 4 3069180, at *16–17 (C.D. Cal. June 14, 2019), report and recommendation adopted, No. 5 EDCV171848SVWSS, 2019 WL 3067590 (C.D. Cal. July 10, 2019). 6 Plaintiff’s reliance on Arizona statutes and regulations governing Defendants’ 7 conduct does not prove otherwise. As discussed above, these statutes do not establish he 8 was constitutionally entitled to process. State law can create a right that the Due Process 9 Clause will protect only if the state law contains “(1) substantive predicates governing 10 official decisionmaking, and (2) explicitly mandatory language specifying the outcome that 11 must be reached if the substantive predicates have been met.” James, 606 F.3d at 656 12 (quoting Bonin v. Calderon, 59 F.3d 815, 842 (9th Cir. 1995)). “In order to contain the 13 requisite substantive predicates, the state law at issue must provide more than merely 14 procedure; it must protect some substantive end.” Bonin, 59 F.3d at 842 (noting that the 15 state statute created a procedural right designed to protect substantive rights to the effective 16 assistance of counsel and to a reliable verdict) (internal quotations omitted). 17 Thus, provisions which dictate the form of an investigation, rather than its outcome, 18 cannot create constitutional interests. See James, 606 F.3d at 656 (notice requirements); 19 Kleinman v. Soc. Servs. Agency - Alameda Cty., No. 16-CV-06961-JSC, 2020 WL 20 1031900, at *3–4 (N.D. Cal. Mar. 3, 2020) (requirement that social service employees give 21 preferential consideration to relatives of a removed child for relocation). “Thus, when a 22 state establishes procedures to protect a liberty interest that arises from the Constitution 23 itself—like a parent’s liberty interest here—the state does not thereby create a new 24 constitutional right to those procedures themselves, and non-compliance with those 25 procedures does not necessarily violate the Due Process Clause.” See James, 606 F.3d at 26 657; Fox v. Cty. of Tulare, No. 1:11-CV-O520 AWI SMS, 2014 WL 3687735, at *11 (E.D. 27 Cal. July 24, 2014) (finding that “failure of Defendants to adequately carry out state- 28 mandated investigation, evaluation or assessment, or to have inaccurately represented such 1 evaluations or assessments in hearings before a family law judge” could not be a procedural 2 due process violation “because no new constitutional due process right is created when a 3 state enacts a law designed to protect an existing constitutional right.”) 4 Each of the statutes and regulations Plaintiff cites creates procedural standards for 5 child safety workers during their investigations; none mandate an outcome which could 6 render the rule a constitutional interest.2 Plaintiff thus received constitutionally sufficient 7 process. 8 c. Statute of Limitations 9 “[C]laims brought under § 1983 borrow the forum state’s statute of limitations for 10 personal injury claims.” Action Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 11 509 F.3d 1020, 1026 (9th Cir. 2007). In Arizona, that period is two years. Madden-Tyler v. 12 Maricopa Cty., 189 Ariz. 462, 466, 943 P.2d 822, 826 (Ct. App. 1997). “Generally, the 13 statute of limitations begins to run when a potential plaintiff knows or has reason to know 14 of the asserted injury.” Action Apartment Ass’n, Inc., 509 F.3d at 1026–27. 15 Plaintiff alleges that he did not have reason to know that his rights were violated 16 until he made a records request seeking information about the status of his case. (Doc. 112 17 at 11–12.) The record reflects that the file was released on September 17, 2016. (Doc 112- 18 6 at 2.) Plaintiff filed a complaint on August 28, 2018. (Doc. 1-1 at 6.) He therefore brought 19 suit prior to the expiration of the statutory period. 20 21 2 See Ariz. Rev. Stat. Ann. § 8-803(B) (requiring that a child safety worker inform the person about whom a report is made about their right to respond. Written or verbal 22 responses must be recorded and considered as part of the investigation); Ariz. Rev. Stat. 23 Ann. § 8-807 (specifying that the subject of an investigation shall have access to DCS information concerning themselves and that the Department should take precautions to 24 keep information confidential); Ariz. Rev. Stat. Ann. § 8-811(B) (requiring that the department provide notice within 14 days after the completion of an investigation); Ariz. 25 Rev. Stat. Ann. § 8-456(C)(1) (requiring a prompt and thorough investigation considering 26 information that would tend to support or refute allegations against a custodian); A.A.C. R21-4-104(A) (requiring coordination with law enforcement); A.A.C. R21-4-106 27 (requiring that an investigation be closed if the investigation determines the child is not in 28 need of child safety services); A.A.C. R21-1-502 (requiring that an alleged perpetrator receive an initial notification letter). 1 CONCLUSION 2 As explained above, qualified immunity bars Plaintiffs damages claims. His 3 || procedural due process claim also fails, but his claim for injunctive relief for substantive due process violations remains. 5 IT IS THEREFORE ORDERED that Plaintiffs’ Partial Motion for Summary || Judgment (Doc. 90) is DENIED. 7 IT IS FURTHER ORDERED that Defendants’ Cross Motion for Summary 8 || Judgment (Doc. 97) is GRANTED IN PART as follows: 9 1. Plaintiff's claims for damages are dismissed. 10 2. Plaintiff's procedural due process claim is dismissed. 11 3. Plaintiff's claim for injunctive relief for substantive due process violations 12 remains. 13 Dated this 25th day of November, 2020. 14 - 5 A Whacrsay Sooo) Whicren 16 Chief United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28

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