Duncan v. County of Humboldt

Opinion

1 2 3 6 7 DARCEY LEE DUNCAN, Case No. 23-cv-01847-JSC

8 Plaintiff, ORDER RE: MOTION TO DISMISS 9 v. SECOND AMENDED COMPLAINT

10 COUNTY OF HUMBOLDT, et al., Re: Dkt. No. 49 Defendants. 11

12 13 Plaintiff sues the County of Humboldt and seven County employees for claims arising 14 from the custodial placement of her nieces. (Dkt. No. 47.)1 Defendants move to dismiss 15 Plaintiff’s second amended complaint (SAC) under Federal Rule of Civil Procedure 12(b)(6). 16 (Dkt. No. 49.) Having carefully considered the briefing, and with the benefit of oral argument on 17 June 20, 2024, the Court GRANTS Defendants’ motion to dismiss as set forth below. 19 Plaintiff is the aunt of R.K and N.O., two minor tribal members of the Cher-Ae Heights 20 Community of Trinidad Rancheria. (Dkt. No. 47 ¶¶ 8, 24, 65.) From August 2016 to August 21 2021, Plaintiff served as R.K.’s guardian. (Id. ¶ 8.) From October 2019 to June 2021, Plaintiff 22 served as N.O.’s foster parent. (Id.) In November 2020, a tribal social worker offered Plaintiff 23 respite care for N.O., saying she had a family in mind. (Id. ¶ 26.) After Plaintiff agreed to respite 24 care once a month with Eve Robinson and Greg Hotz, the tribal social worker pressured Plaintiff 25 to give up N.O. to Eve and Greg. (Id. ¶¶ 27-28, 46.) 26 On April 15, 2021, Plaintiff realized the tribal social worker was not listed as the Indian 27 1 Child Welfare Act contact for the Cher-Ae Heights Community of Trinidad Rancheria. (Id. ¶ 30.) 2 Plaintiff raised this issue with Defendants Bollman, Nugent, Winstead, and Miller, who are 3 Humboldt County social workers. (Id. ¶¶ 10, 12-14, 30.) Plaintiff complained to Defendants 4 Bollman, Nugent, and Winstead regarding the tribal social worker’s posturing as the Indian Child 5 Welfare Act contact and accused Defendants Bollman, Nugent, Winstead, and Miller of 6 conspiring with the tribal social worker to place N.O. “with [the tribal social worker’s] own family 7 friends, Eve and Greg.” (Id. ¶ 31.) In April 2021, Defendant Bollman twice requested Plaintiff 8 take a mental health examination. (Id. ¶¶ 33-34.) Plaintiff scheduled a mental health evaluation 9 with Rita Wafler. (Id. ¶ 35.) 10 On April 25, 2021, the same tribal social worker took R.K. to McDonalds and bought her a 11 gift. (Id. ¶ 74.) During this trip, Plaintiff believes the tribal social worker manipulated R.K. into 12 lying about Plaintiff’s treatment of her. (Id.) The next day, Humboldt County Child Welfare 13 Services received a report alleging emotional abuse and general neglect of R.K. at the hands of 14 Plaintiff, including “ongoing domestic violence between Darcey and her boyfriend in front of the 15 children.” (Id. ¶ 75.) Despite these allegations, Child Welfare Services never conducted a mental 16 health evaluation of Plaintiff as to R.K. and allowed R.K. to stay in Plaintiff’s home. (Id. ¶ 76.) 17 On April 30, 2021, Ms. Wafler found Plaintiff to be free of mental health issues that would 18 impair her ability to care for N.O. (Id. ¶ 36.) Plaintiff forwarded her evaluation to Defendant 19 Bollman, who told her Child Welfare Services “did not acknowledge her evaluation because they 20 believed she was dishonest.” (Id. ¶ 37.) On May 1, 2021, Defendant Bollman text messaged 21 Plaintiff to attend a conference call later the same day with Child Welfare Services Resource 22 Family Approval Supervisor Karen Hollenbeck and a different tribal social worker. (Id. ¶ 38.) On 23 the call, Plaintiff was told the Tribe revoked her status as a tribally-approved home and she had to 24 complete the Family Resource Approval process. (Id.) No explanation was offered for the 25 revocation. (Id.) Plaintiff immediately signed up for Humboldt County Family Resource 26 Approval classes through College of the Redwoods. (Id.) 27 On May 3, 2021, Defendant Bollman told Plaintiff she scheduled a Placement Preservation 1 Defendant Bollman then requested Plaintiff sign an emergency placement agreement and 2 scheduled a home visit for May 10, 2021. (Id.) This would be the first home visit conducted in 3 the 19 months since N.O. was placed with Plaintiff. (Id.) By this time, Defendant Miller had 4 initiated through Child Welfare Services the investigation into Plaintiff’s alleged emotional abuse 5 of R.K. (Id. ¶ 43.) Plaintiff believes Defendants Bollman and Miller conspired together to revoke 6 her tribally-approved-home status, “knowing that if they reported the abuse was substantiated 7 against [Plaintiff] as to R.K., [Plaintiff] could not get approval through the County Foster Program 8 and would lose N.O.’s placement to Eve and Greg.” (Id. ¶ 43.) 9 At the Placement Preservation meeting on May 27, 2021, Defendant Nugent informed 10 Plaintiff, along with ten family members and friends, N.O. would be removed from Plaintiff’s 11 home in 14 days and placed with Eve and Greg, a non-Indian family. (Id. ¶¶ 45-46.) Defendant 12 Nugent denied Plaintiff preservation services to help N.O. stay with her family. (Id. ¶ 47.) 13 Plaintiff never received written notice of the removal with information on the grievance process or 14 grievance appeal form, and when she asked Defendants Bollman, Nugent, and Miller for grievance 15 information, they ignored her. (Id. ¶ 50.) 16 Prior to the May 2021 Placement Preservation meeting, Child Welfare Services had 17 terminated Selena Duncan’s reunification services and her visits with N.O. were decreased to once 18 a month before they would end completely. (Id. ¶ 51.) After the May 2021 Placement 19 Preservation meeting, Defendants Bollman and Nugent bribed Selena, offering to give her six 20 more months of reunification services with three visits a week if she agreed to place N.O. with 21 Eve and Greg. (Id.) Selena agreed and regained services and visits despite being “on drugs” and 22 having “finished no part of her case plan, including completing rehab.” (Id.) 23 On June 2, 2021, Defendant Miller, who led the investigation into Plaintiff’s alleged abuse 24 of R.K., found the abuse was substantiated and determined “[t]he home environment of Darcey 25 Duncan is a highly charged environment and additional support is needed for both R.K. and D.D.” 26 (Id. ¶ 78.) Plaintiff claims Defendant Miller’s report “is replete with false information” and was 27 issued in retaliation for Plaintiff’s refusal to give up N.O. to Eve and Greg and concern over the 1 ¶¶ 61, 81, 149.) 2 On June 10, 2021, N.O. was removed from Plaintiff’s home. (Id. ¶ 57.) On June 13, 2021, 3 Plaintiff received a letter saying her name was added to the California Abuse Central Index, but 4 the letter omitted the Child Abuse Central Index Listing grievance procedures and grievance 5 hearing form. (Id. ¶ 84.) Though Plaintiff had completed the College of Redwoods foster-parent 6 training and her application for tribally-approved-home status was nearly complete, Plaintiff’s 7 placement on the California Abuse Central Index forced her to withdraw her application. (Id. ¶ 8 56.) 9 On June 22, 2021, Defendant Baca filed allegations of emotional abuse and general neglect 10 against Plaintiff in Humboldt County Superior Court. (Id. ¶¶ 87, 244.) In December 2021, 11 Mendocino County Department of Social Services Senior Program Manager John Flammang held 12 Plaintiff’s California Abuse Central Index grievance hearing, and thereafter recommended the 13 allegations of abuse against Plaintiff that Defendant Miller had determined were substantiated 14 were inconclusive. (Id. ¶ 90.) On January 18, 2022, Defendant Beck, Director of the Humboldt 15 County Department of Health and Human Services, adopted Mr. Flammang’s recommendation. 16 (Id.) As a result, Plaintiff’s abuse listing in the Child Abuse Central Index was changed from 17 substantiated to inconclusive. (Id. ¶ 91.) 19 The Court previously dismissed Plaintiff’s first, second, and fourth causes of action in their 20 entirety without leave to amend. (Dkt. No. 45 at 24.) Defendants move to dismiss all remaining 21 causes of action, except for the third. As for the third cause of action, Defendant Baca asserts 22 absolute prosecutorial immunity, while Defendants Bollman, Boyle, Miller, and Nugent do not 23 move to dismiss. 24 Dismissal under Rule 12(b)(6) “may be based on either a lack of a cognizable legal theory 25 or the absence of sufficient facts alleged under a cognizable legal theory.” Johnson v. Riverside 26 Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (cleaned up). For Plaintiff’s challenged 27 claims to survive, the SAC’s factual allegations must raise a plausible right to relief. Bell Atl. 1 complaint’s factual allegations as true, conclusory assertions are insufficient to state a claim. 2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when the plaintiff pleads 3 enough factual content to justify the reasonable inference the defendant is liable for the 4 misconduct alleged. Id. 5 I. Seventh, Tenth, & Eleventh Causes of Action 6 Plaintiff withdraws her seventh, tenth, and eleventh causes of action. (Dkt. No. 51 at 18, 7 20.) Accordingly, these causes of action are DISMISSED. 8 II. Twelfth Cause of Action: Declaratory and Injunctive Relief 9 Plaintiff’s twelfth cause of action seeks “declaratory and injunctive relief.” Specifically, 10 Plaintiff requests the Court require the County “to adopt a new policy that all actions, 11 investigations, and reports are subject to independent review by non-affiliated individuals” and 12 order all County Child Welfare Services social workers “be highly trained in [Indian Child 13 Welfare Act] law, Indigenous people’s trauma, especially intergenerational trauma and adverse 14 childhood experiences, and taught and trained in empathy,” among other things. (Dkt. No. 47 ¶ 15 282.) In her opposition, Plaintiff clarifies she seeks only “declaratory relief not injunctive relief at 16 this time.” (Dkt. No. 51 at 21.) 17 Plaintiff fails to state a claim for injunctive or declaratory relief because those are not 18 causes of action. “[I]njunctive relief is a remedy and not, in itself, a cause of action, and a cause 19 of action must exist before injunctive relief may be granted. Additionally, a claim for declaratory 20 relief is duplicative and unnecessary when it is commensurate with the relief sought through other 21 causes of action.” Khankin v. JLR San Jose, LLC, No. 3:23-CV-06145-JSC, 2024 WL 2274445, 22 at *3 (N.D. Cal. May 17, 2024). Accordingly, Plaintiff’s independent cause of action for 23 declaratory and injunctive relief must be DISMISSED. 24 III. Third Cause of Action: First Amendment Retaliation 25 While the SAC is somewhat unclear as to the retaliatory acts Defendant Baca took against 26 Plaintiff, Plaintiff’s opposition clarifies she is challenging Defendant Baca’s initiation of the 27 contempt charge against Plaintiff for publicly sharing confidential information about N.O. (Dkt. 1 hearing, Defendant Baca filed:

2 a contempt of court which stated under penalty of perjury by BACA that PLAINTIFF posted confidential information about her niece 3 N.O.’s case and made negative comments about Sundberg on public social media. Attorney BACA during her investigation fabricated a 4 story that PLAINTIFF posted confidential information on her social media page which she reiterated in a sworn affidavit attached to the 5 contempt documentation. This was an act of retaliation and maliciously so to find PLAINTIFF in contempt of court. 6 7 (Dkt. No. 47 at ¶ 58.) 8 Defendant Baca moves to dismiss Plaintiff’s First Amendment retaliation claim on 9 absolute prosecutorial immunity grounds. Defendant Baca is Deputy County Counsel for 10 Humboldt County. (Dkt. No. 47 ¶¶ 16, 58-59.) Prosecutors enjoy absolute immunity from civil 11 suits for damages under 42 U.S.C. § 1983 when engaged in activities “intimately associated with 12 the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). 13 “Only in initiating a prosecution and in presenting the State’s case is the prosecutor absolutely 14 immune.” Miller v. Gammie, 335 F.3d 889, 896 (9th Cir. 2003) (en banc) (cleaned up). This 15 absolute immunity covers a county counsel’s decision to institute juvenile dependency 16 proceedings and discretionary, quasi-prosecutorial actions taken during those proceedings. Miller 17 v. Gammie, 335 F.3d 889, 898 (9th Cir. 2003) (en banc); see also Hardwick v. Cnty. of Orange, 18 844 F.3d 1112, 1115 (9th Cir. 2017) (“Absolute immunity from private lawsuits covers the official 19 activities of [state actors] only when they perform quasi-prosecutorial or quasi-judicial functions 20 in juvenile dependency court.”); see also Safouane v. Fleck, 226 F. App’x 753, 762 (9th Cir. 21 2007), as amended on denial of reh’g and reh’g en banc (July 26, 2007) (ruling allegations against 22 state officers involving “actions taken during or to initiate proceedings. . . were properly dismissed 23 for prosecutorial immunity.”). 24 Defendant Baca’s initiation of the contempt proceeding was at least a quasi-prosecutorial 25 function during juvenile dependency proceedings. California’s Welfare and Institution Code § 26 388 provides:

27 Any parent or other person having an interest in a child who is a in which the child was found to be a dependent child of the juvenile 1 court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. 2 3 Cal. Welf. & Inst. Code § 388(a)(1) (emphasis added). Because Plaintiff submitted her § 388 4 petition in an existing juvenile dependency action, Defendant Baca’s request for a contempt order 5 against Plaintiff at the § 388 hearing was part of and made during juvenile dependency 6 proceedings. And, Defendant Baca requested the contempt order in her capacity as the County’s 7 advocate. As a matter of law, Defendant Baca is absolutely immune from suit for pursuing a 8 contempt order against Plaintiff in an ongoing juvenile dependency action while functioning as the 9 County’s “advocate within the judicial decision-making process.” Miller, 335 F.3d 889, 896; see 10 also Hardwick, 844 F.3d at 1115 (“[A]bsolute immunity covers a [state actor’s] activity or 11 ‘function’” if it is “part and parcel of presenting the state’s case as a generic advocate[.]”). 12 Plaintiff does not dispute Defendant Baca is entitled to absolute immunity for pursuing 13 contempt charges against Plaintiff during the dependency proceedings. She instead asserts 14 Defendant Baca is liable for her conduct while investigating the contempt charges. Prosecutors 15 “have no absolute immunity for their investigatory conduct” or if they “fabricate[] evidence during 16 a preliminary investigation, before [they] could properly claim to be acting as an advocate, or 17 make[] false statements in a sworn affidavit in support of an application for an arrest warrant.” 18 Beltran v. Santa Clara Cnty., 514 F.3d 906, 908 (9th Cir. 2008) (cleaned up). So, the question is 19 whether Plaintiff has plausibly alleged Defendant Baca fabricated evidence or made a false 20 statement in a sworn affidavit. She has not. 21 According to the SAC, Defendant Baca filed the contempt order application “object[ing] to 22 the ongoing public dissemination of confidential case information by [Plaintiff] on social media 23 forums including Facebook” and attached “a private text message between [Plaintiff] and Jesse 24 Armstrong” that did “not show any confidential case information being released.” (Dkt. No. 47 ¶ 25 59.) Plaintiff does not allege or argue Defendant Baca fabricated the private text message 26 exchange attached to her declaration; instead, Plaintiff concludes Defendant Baca “fabricated a 27 story” and argues Defendant Baca “fabricated the claim.” (Dkt. Nos. 47 ¶ 58, 51 at 7.) Drawing 1 inference Defendant Baca falsified any evidence. Plaintiff merely disagrees the attachment 2 demonstrated Plaintiff’s public sharing of confidential information about N.O. (Dkt. No. 47 ¶ 58- 3 59.) But Defendant Baca’s “determination that the evidence was sufficiently strong to justify a 4 probable-cause finding, her decision to file charges, and her presentation of the information and 5 the motion to the court” “was the work of an advocate and was integral to the initiation of the 6 prosecution.” Kalina v. Fletcher, 522 U.S. 118, 130 (1997). So, Defendant Baca is absolutely 7 immune for her use of accurate information in a contempt application filed against Plaintiff. 8 However, a prosecutor is entitled only to qualified immunity when functioning as a 9 complaining witness in certifying facts in an affidavit in support of an application for an arrest 10 warrant. Kalina, 522 U.S. at 130-31; see also Waggy v. Spokane Cnty. Washington, 594 F.3d 707, 11 711 (9th Cir. 2010) (“[A] prosecutor sheds absolute immunity when she acts as a ‘complaining 12 witness’ by certifying that the facts alleged within an affidavit are true.”). Plaintiff alleges 13 Defendant Baca filed an affidavit under penalty of perjury stating Plaintiff had “posted 14 confidential information about her niece N.O.’s case and made negative comments about [the 15 tribal social worker] on social media.” (Dkt. No. 47 ¶ 58.) Plaintiff further alleges Defendant 16 Baca’s affidavit mischaracterized the evidence attached to her affidavit to support her contempt 17 application. (Id. ¶¶ 58-59.) Assuming, without deciding, only qualified immunity applies to this 18 conduc,t and drawing all reasonable inferences in Plaintiff’s favor, the SAC’s factual allegations 19 are insufficient to support the plausible inference Defendant Baca certified untrue facts in her 20 affidavit. What false facts did Defendant Baca personally certify as true in her affidavit? Why are 21 those facts false? 22 Moreover, Rule 9(b) requires Plaintiff allege “with particularity the circumstances 23 constituting fraud or mistake.” Fed. R. Civ. P. 9(b).

24 Rule 9(b) serves three purposes: (1) to provide defendants with adequate notice to allow them to defend the charge and deter plaintiffs 25 from the filing of complaints as a pretext for the discovery of unknown wrongs; (2) to protect those whose reputation would be 26 harmed as a result of being subject to fraud charges; and (3) to prohibit plaintiffs from unilaterally imposing upon the court, the parties and 27 society enormous social and economic costs absent some factual 1 Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (cleaned up). “Averments of 2 fraud must be accompanied by the who, what, when, where, and how of the misconduct charged.” 3 Id. at 1124. “Where fraud is not an essential element of a claim, only those allegations of a 4 complaint which aver fraud are subject to Rule 9(b)’s heightened pleading standard.” Id.; see also 5 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003) (“[I]n a case where fraud is 6 not an essential element of a claim, only allegations (‘averments’) of fraudulent conduct must 7 satisfy the heightened pleading requirements of Rule 9(b).”). The SAC fails to particularly allege 8 the fraudulent conduct underlying Plaintiff’s third cause of action against Defendant Baca by 9 failing to identify the false facts Defendant Baca personally certified and why those facts were 10 false. Because Plaintiff fails to allege facts sufficient to support the inference Defendant Baca 11 certified untrue facts while functioning as a complaining witness, Plaintiff fails to overcome 12 Defendant Baca’s qualified prosecutorial immunity. 13 Accordingly, the third cause of action as to Defendant Baca is DISMISSED. 14 IV. Fifth Cause of Action: Monell-Related Claims 15 Plaintiff alleges Defendant County retaliated against Plaintiff as part of a “known [Child 16 Welfare Services] statewide common practice of labeling families that contradict or criticize 17 [Child Welfare Workers] as having mental health issues, and remov[ing] children from them or 18 deny services, or act[ing] in other retaliatory ways as a kickback for the parent’s (for [sic] 19 relative’s) criticism.” (Dkt. No. 47 ¶ 205.) Plaintiff also accuses the County of “establish[ing] 20 and/or follow[ing] policies, procedures, customs, and/or practices” to (1) deny Indian foster 21 parents their due process rights by failing to give adequate notice of proceedings potentially 22 affecting those rights; (2) detain and remove children from their Indian foster parents without 23 imminent danger of serious bodily harm, consent, prior court order, or providing adequate notice 24 or an opportunity to be heard; (3) refuse the § 1915 placement preferences of Indian foster parents; 25 (4) fail to return children to their foster parents “beyond a reasonable time period after the basis 26 for detention is negated”; (5) use fabricated evidence in juvenile court reports; and (6) act with 27 deliberate indifference toward constitutional protections, the Indian Child Welfare Act, policies of 1 206.) 2 A municipality is liable under § 1983 only where the alleged unconstitutional conduct is 3 the result of an official policy, pattern, or practice. Monell v. Dep’t of Social Servs., 436 U.S. 658, 4 694 (1978). To state a claim for municipal liability under § 1983, a plaintiff must plausibly allege: 5 “(1) that he possessed a constitutional right of which he or she was deprived; (2) that the 6 municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s 7 constitutional rights; and (4) that the policy is the moving force behind the constitutional 8 violation.” Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) 9 (cleaned up). There can be no municipal liability without an underlying constitutional violation. 10 Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994).

11 A Monell claim can proceed under three theories of municipal liability: (1) when official policies or established customs inflict a 12 constitutional injury; (2) when omissions or failures to act amount to a local government policy of deliberate indifference to constitutional 13 rights; or (3) when a local government official with final policy- making authority ratifies a subordinate’s unconstitutional conduct. 14 15 Hofer v. Emley, No. 19-CV-02205-JSC, 2019 WL 4575389, at *14 (N.D. Cal. Sept. 20, 2019). No 16 matter the alleged theory, the plaintiff must plead facts showing “the policy is the moving force 17 behind the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 18 2011); see also City of Oklahoma v. Tuttle, 471 U.S. 808, 823 (1985) (“At the very least there 19 must be an affirmative link between the policy and the particular constitutional violation 20 alleged.”). “Proof of a single incident of unconstitutional activity is not sufficient to impose 21 liability under Monell, unless proof of the incident includes proof that it was caused by an 22 existing, unconstitutional municipal policy, which policy can be attributed to a municipal 23 policymaker.” Tuttle, 471 U.S. at 823-24. However, policy or custom may be inferred by a 24 policymaker’s subsequent acceptance of unlawful conduct or failure to take corrective action. 25 McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986). 26 Plaintiff’s Monell claim advances two theories of municipal liability. First, Plaintiff 27 alleges the County has a custom of retaliating against Indian custodians who criticize social 1 delineating the rights of Indian custodians amounts to deliberate indifference to the rights of 2 Indian custodians. (Id.) Plaintiff fails to allege a plausible Monell claim under either theory. 3 In the Court’s Order dismissing a past iteration of Plaintiff’s complaint, the Court directed 4 Plaintiff “must plead facts that plausibly support an inference the County has a custom, policy or 5 practice that caused the violation of her constitutional rights. Simply identifying 10 alleged 6 policies—without stating facts that plausibly support an inference those policies exist—is 7 insufficient.” (Dkt. No. 45 at 23.) Plaintiff’s SAC fails to allege such facts. The complaint is 8 devoid of factual allegations that support an inference the County has a custom of or is 9 deliberately indifferent to retaliatory conduct by social workers. Plaintiff’s own experience is not 10 enough to support a plausible inference of the County’s retaliatory custom or deliberate 11 indifference to the “retaliatory nature by social workers.” (Dkt. No. 47 ¶ 206.) “[O]ne instance of 12 County employees violating the constitutional rights of parents and children is insufficient to 13 demonstrate a custom supporting Monell liability.” Benavidez v. Cnty. of San Diego, 993 F.3d 14 1134, 1154 (9th Cir. 2021); see also Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“Liability 15 for improper custom may not be predicated on isolated or sporadic incidents; it must be founded 16 upon practices of sufficient duration, frequency and consistency that the conduct has become a 17 traditional method of carrying out policy.”). 18 Likewise, the absence of factual allegations supporting Plaintiff’s failure-to-train theory is 19 fatal. A plaintiff can plead a failure-to-train theory without alleging a pattern of constitutional 20 violations “where a violation of federal rights may be a highly predictable consequence of a failure 21 to equip law enforcement officers with specific tools to handle recurring situations.” Long v. 22 Cnty. of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006) (cleaned up). The SAC fails to allege 23 facts to support the inference the violation of Indian custodians’ rights is a highly predictable 24 consequence of the alleged failure to train social workers on the Indian Child Welfare Act. 25 Plaintiff alleges the County is aware “social workers remove children with no emergency 26 circumstances and in contravention of the rights of Indian Custodians under ICWA” because

27 [i]n 2018, the California Department of Justice entered into a Delinquency] for two years to provide training in part, culturally 1 responsive services, training of the Welfare and Institutions Code, and in 2021 the Department of Justice determined that COUNTY had still 2 not met it’s [sic] obligations. 3 (Dkt. No. 47 ¶ 210.) On this basis, Plaintiff alleges the County “made a knowing and conscious 4 decision to refrain from promulgating policies to prevent such misconduct, and has consistently 5 and knowingly failed to provide any meaningful training to members of the Defendant Social 6 Worker Class to the effect of [Indian Child Welfare Act] laws and regulations.” (Id.) But Plaintiff 7 again fails to allege details sufficient to infer the relationship between this stipulated judgment and 8 the alleged deprivation of constitutional rights of Indian custodians. How is the stipulated 9 judgment related to social workers’ removal of children in violation of the rights of Indian 10 custodians? What misconduct resulted in the stipulated judgment? And, how has that misconduct 11 led to a violation of Plaintiff’s constitutional rights? 12 As in her previous opposition to Defendants’ previous motion to dismiss, Plaintiff cites 13 Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) to argue “it would be premature to dismiss 14 this claim.” (Dkt. No. 51 at 15; see Dkt. No. 40 at 36.) As the Court noted in its last Order, 15 Hydrick was vacated by the United States Supreme Court. (Dkt. No. 45 at 23 (“But Hydrick was 16 vacated by the United States Supreme Court. 556 U.S. 1256 (2009) (“Judgment vacated, and case 17 remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in 18 light of Ashcoft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).”).”).) 19 Accordingly, Plaintiff’s fifth cause of action is DISMISSED. 20 V. Sixth Cause of Action: Violation of State Civil Rights 21 Plaintiff accuses Defendants of violating her rights under the Unruh Civil Rights Act, Tom 22 Bane Civil Rights Act, and various other California statutes. (Dkt. No. 47 ¶ 223.) Because 23 Plaintiff conceded dismissal of her Unruh Act claim, (Dkt. No. 40 at 38), and defends only her 24 Bane Act claim, Plaintiff’s sixth cause of action alleging underlying violations of California Civil 25 Code §§ 43, 45, 46, 51, and 52 is DISMISSED. Additionally, Plaintiff withdraws her sixth cause 26 of action against Defendants Beck and Winstead. (Dkt. No. 51 at 16.) Accordingly, Plaintiff’s 27 sixth cause of action as to Defendants Beck and Winstead is DISMISSED. 1 by threat, intimidation, or coercion. Cal. Civ. Code § 52.1(b)-(c). To state a Bane Act claim, 2 Plaintiff must allege 1) interference with her rights by “threat, intimidation, or coercion” and 2) 3 County Defendants’ specific intent to violate her rights. Reese v. Cnty. of Sacramento, 888 F.3d 4 1030, 1043 (9th Cir. 2018). The Court previously dismissed Plaintiff’s Bane Act claim for 5 impermissible group pleading in violation of Federal Rules of Civil Procedure 8(a) and 9(b). (Dkt. 6 No. 45 at 9.) The SAC fails to correct this defect as to Defendants Boyle, Bollman, and Nugent. 7 (Dkt. No. 47 ¶¶ 220-29.) Indeed, the only change in Plaintiff’s Bane Act claim is the removal of 8 tribal social workers’ names. (Dkt. Nos. 25 ¶¶ 220-29, 47 ¶¶ 220-29.) Accordingly, Plaintiff’s 9 Bane Act claim against Defendants Boyle, Bollman, and Nugent is DISMISSED. 10 The only specific allegations in Plaintiff’s Bane Act claim are directed to Defendant Miller 11 for determining R.K.’s emotional abuse allegations against Plaintiff were substantiated and adding 12 Plaintiff’s name to the Child Abuse Central Index and Defendant Baca for pursuing a contempt 13 charge against Plaintiff. (Dkt. Nos. 47 ¶ 225.) Defendants seek dismissal of Plaintiff’s Bane Act 14 claim on the grounds they are immune and Plaintiff’s claim is barred by the litigation privilege. 15 a. Defendant Miller 16 Defendant Miller asserts immunity under California Government Code §§ 820.2 and 17 821.6. Under § 820.2, “a public employee is not liable for an injury resulting from his act or 18 omission where the act or omission was the result of the exercise of the discretion vested in him, 19 whether or not such discretion be abused.” Cal. Gov’t Code § 820.2. Under § 815.2, “a public 20 entity is not liable for an injury resulting from an act or omission of an employee of the public 21 entity where the employee is immune from liability.” Cal. Gov’t Code § 815.2. “The immunity 22 provided by these statutes is broad, and includes immunity for social workers’ removal and 23 placement decisions.” Gabrielle A. v. Cnty. of Orange, 10 Cal. App. 5th 1268, 1285 (2017), as 24 modified (Apr. 18, 2017). Under § 821.6, “[a] public employee is not liable for injury caused by 25 his instituting or prosecuting any judicial or administrative proceeding within the scope of his 26 employment, even if he acts maliciously and without probable cause.” Cal. Gov’t Code § 821.6. 27 “[S]ection 821.6 provides complete immunity for social workers (and the county) for their actions 1 parental control.” Ronald S. v. Cnty. of San Diego, 16 Cal. App. 4th 887, 899 (1993). On their 2 face, these statutes immunize Defendant Miller from Plaintiff’s Bane Act claim. 3 Plaintiff nonetheless urges § 820.21 excepts Defendant Miller from § 821.6 civil 4 immunity. Section 820.21 provides “the civil immunity of juvenile court social workers, child 5 protection workers, and other public employees authorized to initiate or conduct investigations or 6 proceedings” shall not extend to malicious perjury, fabrication of evidence, failure to disclose 7 known exculpatory evidence, and obtaining of testimony by duress. Cal. Gov’t Code § 820.21. 8 Plaintiff, however, has not plausibly alleged Defendant Miller engaged in any of this conduct. 9 Defendant Miller’s report substantiating R.K.’s abuse allegations states: “Darcey Duncan 10 has been unable to make any connection between her own actions and R.K.’s self-harming 11 behaviors and has related R.K.’s self-harming behaviors on her past trauma and being an 12 adolescent.” (Dkt. No. 47 ¶ 78.) Plaintiff alleges Defendant Miller’s report failed to disclose the 13 “exculpatory information” that neither Plaintiff nor her long-term partner had “seen any marks on 14 [R.K.’s] arms or legs.” (Id. ¶ 80.) But the SAC does not explain how Plaintiff’s failure to notice 15 indicia of self-harm on R.K. exculpates Plaintiff from R.K.’s abuse allegations. How does the fact 16 Plaintiff did not see self-harm marks on R.K. absolve Plaintiff of R.K.’s abuse allegations? 17 Likewise, Defendant Miller’s omission of Plaintiff’s mental health evaluation from Defendant 18 Miller’s report fails to support the inference Defendant Miller maliciously withheld exculpatory 19 evidence because Plaintiff fails to allege facts permitting the plausible inference the inclusion of 20 Plaintiff’s mental health evaluation would have exculpated Plaintiff of R.K.’s abuse allegations. 21 Plaintiff further alleges Defendant Miller’s report “is replete with false information” and 22 misstates Plaintiff’s words. (Dkt. No. 47 ¶ 81.) But Plaintiff does not allege any facts supporting 23 these conclusions. Did Defendant Miller knowingly attest to the truth of false facts under penalty 24 of perjury? If so, what facts, when, and to whom? Further, the SAC appears to sue Defendant 25 Miller for her statements in juvenile court filings submitted during custody proceedings. (Dkt. No. 26 47 ¶¶ 78-79.) The California litigation privilege absolutely bars all claims but malicious 27 prosecution attacking “any publication required or permitted by law in the course of a judicial 1 (1990), as modified (Mar. 12, 1990); see Cal. Civ. Code § 47. So, Plaintiff cannot maintain a 2 Bane Act claim against Defendant Miller for her statements in juvenile court filings logically 3 related to the custody proceedings, even if those statements “are, or are alleged to be, fraudulent, 4 perjurious, unethical, or even illegal.” Kashian v. Harriman, 98 Cal. App. 4th 892, 920 (2002). 5 Plaintiff fails to allege facts sufficient to support the plausible inference Defendant Miller 6 maliciously perjured herself, fabricated evidence, failed to disclose known exculpatory evidence, 7 or obtained testimony by duress. So, Plaintiff’s argument § 820.21 excepts Defendant Miller from 8 the civil immunity afforded by § 820.2 and § 821.6 fails. Drawing all reasonable inferences from 9 the SAC in Plaintiff’s favor, Defendant Miller is entitled to immunity from Plaintiff’s Bane Act 10 claim under §§ 820.2 and 821.6. Accordingly, Plaintiff’s Bane Act claim against Defendant 11 Miller is DISMISSED. 12 b. Defendant Baca 13 Defendant Baca asserts immunity under California Government Code § 821.6. As 14 discussed above, the SAC lacks factual allegations sufficient to support the inference Defendant 15 Baca fabricated any evidence or perjured herself before the juvenile court. Further, Plaintiff does 16 not allege Defendant Baca maliciously withheld exculpatory information or obtained testimony 17 through duress. Plaintiff nonetheless argues Defendant “Baca coerced [Plaintiff] into withdrawing 18 her de facto parent petition” and Plaintiff “was so scared and stressed from both the contempt and 19 abuse charge as to R.K. that she felt she had to withdraw her petition even though she knew that 20 there was no probable cause behind the contempt.” (Dkt. No. 51 at 9.) But this argument fails to 21 compel a different result because Plaintiff’s allegations fail to support the plausible inference 22 Defendant Baca maliciously perjured herself, falsified evidence, withheld exculpatory evidence, or 23 obtained testimony through duress. Defendant Baca is immune under § 821.6 from Plaintiff’s 24 Bane Act claim. So, Plaintiff’s Bane Act claim against Defendant Baca is DISMISSED. 25 VI. Eighth & Ninth Causes of Action: Malicious Prosecution 26 Plaintiff’s eighth cause of action alleges Defendants Baca and Miller maliciously 27 prosecuted Plaintiff by pursuing R.K.’s emotional abuse allegations. Plaintiff’s ninth cause of 1 against Plaintiff during ongoing dependency proceedings. 2 “To establish a cause of action for malicious prosecution, a plaintiff must demonstrate that 3 the prior action (1) was initiated by or at the direction of the defendant and legally terminated in 4 the plaintiff’s favor, (2) was brought without probable cause, and (3) was initiated with malice.” 5 Siebel v. Mittlesteadt, 41 Cal. 4th 735, 740 (2007). 6 a. Eighth Cause of Action 7 Plaintiff alleges Defendant Miller maliciously investigated and substantiated R.K.’s 8 emotional abuse allegations against Plaintiff and placed Plaintiff’s name on the California Abuse 9 Central Index. (Dkt. No. 47 ¶ 244.) She further alleges Defendant Baca “brought emotional abuse 10 charges under W&IC 300 against [Plaintiff] and dropped the charges when [Plaintiff’s] name was 11 placed on the [California Abuse Central Index].” (Id. ¶ 245.) 12 i. Defendant Miller 13 As determined above, the SAC fails to allege sufficient factual content to overcome the 14 immunities to which Defendant Miller is entitled under §§ 820.2 and 821.6. So, the eighth cause 15 of action must be dismissed. 16 Defendant Miller argues the eighth cause of action fails for the additional reason that 17 Plaintiff fails to allege “the initiation of a full blown action as well as its favorable termination for 18 the malicious prosecution plaintiff.” Adams v. Superior Ct., 2 Cal. App. 4th 521, 528 (1992). In 19 her opposition, Plaintiff does not identify an action initiated by Defendant Miller, and instead 20 argues the grievance hearing at which Senior Program Manager Flammang recommended the 21 allegation of emotional abuse against Plaintiff was inconclusive constitutes a favorable 22 termination. But Defendant Miller’s alleged placement of Plaintiff on California Abuse Central 23 Index is not a “full blown action”; at most it is a “subsidiary procedural action[] within a lawsuit 24 such as an application for a restraining order or for a lien.” Adams, 2 Cal. App. 4th at 528. 25 Indeed, Plaintiff alleges she was involved in dependency proceedings under Welfare and 26 Institutions Code § 300 as to R.K. at the time Defendant Miller added Plaintiff’s name to the 27 California Abuse Central Index. (Dkt. No. 47 ¶¶ 78-79, 84.) Because Plaintiff fails to allege facts 1 Plaintiff, Plaintiff’s eighth cause of action against Defendant Miller fails. 2 ii. Defendant Baca 3 As explained above, Defendant Baca is entitled to absolute immunity for initiating the 4 abuse charges against Plaintiff. Plaintiff’s claim fails for the additional reason that she does not 5 allege facts supporting the plausible inference Defendant Baca lacked probable cause to bring 6 emotional abuse charges against Plaintiff.

7 “Probable cause” to prosecute an action means an objectively reasonable belief that the action is legally tenable. There is no 8 probable cause to prosecute an action only if no reasonable attorney would believe that the action had any merit and any reasonable 9 attorney would agree that the action was totally and completely without merit. 10 11 Uzyel v. Kadisha, 188 Cal. App. 4th 866, 926 (2010) (cleaned up). “Whether there was probable 12 cause to have prosecuted an action in light of the facts then known to the malicious prosecution 13 defendant is a legal question for the court to decide.” Id. at 927. Drawing all reasonable 14 inferences from the SAC in Plaintiff’s favor, when Defendant Baca filed allegations of emotional 15 abuse and general neglect against Plaintiff on June 22, 2021, Defendant Baca knew R.K. disclosed 16 Plaintiff had abused her, (Dkt. No. 47 ¶¶ 74, 75), and had Defendant Miller’s report substantiating 17 R.K.’s claims of abuse. (Id. ¶¶ 78-79.) Though Plaintiff insists R.K. was lying and Defendant 18 Miller’s investigation was “shifty, unethical, and deleterious,” (Id. ¶¶ 74, 77, 85), she fails to 19 plausibly allege the absence of probable cause because a reasonable attorney could believe the 20 abuse allegations had merit given R.K.’s substantiated disclosure of abuse. In light of R.K.’s 21 substantiated disclosure, it is implausible Defendant Baca lacked probable cause to bring abuse 22 allegations against Plaintiff. So, Plaintiff’s eighth cause of action against Defendant Baca is 24 b. Ninth Cause of Action 25 Again, as described above, Defendant Baca is immune from liability for initiating the 26 contempt charge and no exception to immunity has been plausibly alleged. Plaintiff’s ninth cause 27 of action against Defendant Baca fails for the additional reason the SAC lacks allegations 1 terminated in Plaintiff’s favor. Adams, 2 Cal. App. 4th at 528. Plaintiff alleges Defendant Baca 2 filed “a contempt of court” against Plaintiff during a hearing under Welfare and Institutions Code 3 § 388. As discussed above, Defendant Baca’s request for a contempt order against Plaintiff at the 4 § 388 hearing was not the institution of proceedings but a motion made during ongoing 5 proceedings. So, Defendant Baca’s contempt accusation was not a “full blown action”, but a 6 “subsidiary procedural action” filed as part of ongoing juvenile dependency proceedings. Adams, 7 2 Cal. App. 4th at 528. Further, Plaintiff nowhere alleges the contempt charge terminated in her 8 favor. While if given leave to amend Plaintiff might be able to allege the contempt charge was 9 terminated, leave to amend would be futile because the contempt charge was a subsidiary 10 procedural action. Accordingly, Plaintiff’s ninth cause of action against Defendant Baca is 13 Plaintiff’s seventh, eighth, ninth, tenth, eleventh, and twelfth causes of action are 14 DISMISSED without leave to amend. Plaintiff’s sixth cause of action against Defendants Beck, 15 Bollman, Boyle, Nugent, and Winstead is also DISMISSED without leave to amend. 16 Additionally, Plaintiff’s sixth cause of action alleging underlying violations of California Civil 17 Code §§ 43, 45, 46, 51, and 52 is DISMISSED without leave to amend. And, Plaintiff’s fifth 18 cause of action (Monell-related claims) is also dismissed without leave to amend. Plaintiff has had 19 multiple opportunities to identify an unconstitutional municipal policy or practice and it is 20 apparent further leave to amend would be futile. 21 If, in good faith and consistent with Rule 11, Plaintiff can amend her complaint to allege 22 facts resolving the deficiencies in Plaintiff’s third cause of action against Defendant Baca and 23 sixth cause of action against Defendants Miller and Baca, and, in particular, plausibly allege facts 24 supporting an exception to their immunity from liability, then Plaintiff may file a third amended 25 complaint by July 12, 2024. If Plaintiff chooses to file a third amended complaint, it shall omit the 26 dismissed causes of action and all allegations no longer pertinent to the remaining claims. If she 27 chooses not to amend, the case will go forward on the third cause of action except as to Defendant 1 September 12, as stated in Pretrial Order No. 1]. An updated joint case management conference 2 statement is due one week in advance. 3 This Order disposes of Docket No. 49. 5 Dated: June 27, 2024 6 7 ne CQWELINE SCOTT CORL 8 United States District Judge 9 10 11 12

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