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4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 10 SOPHIE HARTMAN, et al., CASE NO. C24-0554JLR 11 Plaintiffs, ORDER v. 12 STATE OF WASHINGTON 13 DEPARTMENT OF CHILDREN YOUTH AND FAMILIES, et al., 14 15 Defendants. 16 I. INTRODUCTION 17 Before the court is a motion for summary judgment filed by the City of Renton 18 Police Department (“CRPD”) and Det. Adele O’Rourke (together, the “City 19 Defendants”). (Mot. (Dkt. # 63); Reply (Dkt. # 74).) Plaintiffs, Sophie Hartman, C.H., 20 and M.H. oppose the motion. (Resp. (Dkt. # 68).) Plaintiffs also move to strike material 21 in and attached to the City Defendants’ reply. (Surreply (Dkt. # 78).) The court has 22 considered the parties submissions, the balance of the record, and the applicable law. 1 Being fully advised,1 the court GRANTS Plaintiffs’ motion to strike, and GRANTS in 2 part and DENIES in part the City Defendants’ motion for summary judgment. 3 II. BACKGROUND
4 By way of background, the court summarizes the allegations in Plaintiffs’ 5 operative complaint (See generally 2d. Am. Compl), and supplements those allegations, 6 where appropriate, with undisputed facts. Plaintiffs allege that Ms. Hartman adopted 7 C.H. and M.H. in May 2015. (Id. ¶ 31.) In June 2018, Plaintiffs moved to Renton, 8 Washington. (Id. ¶ 74.) In early 2019, a healthcare provider at Seattle Children’s
9 Hospital (“SCH”) reported a concern about C.H. regarding medical child abuse. (Id. 10 ¶ 87.) After a period of investigation by the Safe Child and Adolescence Network 11 (“SCAN”) at SCH, Dr. Rebecca Wiester reported to the State of Washington Department 12 of Children, Youth and Families (“DCYF”) that there was “concern regarding a pattern of 13 parental requests for increasingly invasive procedures based on undocumented signs and
14 symptoms reported by [Ms. Hartman].” (Id. ¶¶ 88-89.) Dr. Wiester created a care plan 15 for C.H. in late 2019. (Id. ¶ 116.) 16 On February 18, 2021, Dr. Wiester directed a SCAN social worker to make a 17 referral to DCYF concerning medical child abuse. (Id. ¶¶ 95, 141.) 18 On March 15, 2021, Det. O’Rourke applied for a warrant to search Ms. Hartman’s
19 residence for evidence of child abuse. (O’Rourke Decl. ¶ 10, Ex. D (Dkt. # 64-4) 20 21 1 Only plaintiffs requested oral argument on the City Defendants’ motion for summary judgment. (See MSJ at 1; MSJ Resp. at 1.) The court concludes that oral argument is not 22 necessary to decide the motion. See Local Rules W.D. Wash. LCR 7(b)(4). 1 (“Warrant Materials”) at 35.)2 A judge issued a search warrant the next day. (Id. at 4.) 2 Det. O’Rourke executed the warrant on March 17, 2021, and seized materials listed in the 3 warrant, including several of Ms. Hartman’s electronic devices. (See id. at 2-4 (listing
4 locations to search and materials to seize); id. at 71-72 (listing electronic devices that 5 were seized); 2d Am. Compl. ¶ 146-47.) That same day, Det. O’Rourke also removed 6 C.H. and M.H. from Ms. Hartman’s custody without a court order to do so. (See Am. 7 Compl. ¶¶ 146-47; Shlansky Decl. (Dkt. # 69) ¶ 19, Ex. 16 at 1.) After removal, C.H. 8 was involuntarily hospitalized for 16 days. (2d Am. Compl. ¶ 157.)
9 On March 19, 2021, DCYF filed a dependency petition as to C.H. and M.H. 10 (Shlansky Decl. ¶ 19, Ex. 16 at 1.) The juvenile court held a shelter care hearing on 11 March 22, 2021 (id.), and the juvenile court gave decision-making authority over C.H.’s 12 care to DCYF and to C.H.’s grandmother and aunt (2d Am. Compl. ¶ 161).3 13 On April 8, 2021, Det. O’Rourke applied for and obtained a warrant to search the
14 electronic devices seized from Ms. Hartman. (Warrant Materials at 38-70 (application), 15 71-73 (warrant).) 16 In May 2021, Det. O’Rourke executed a probable cause certificate and amended 17 the certificate to include additional information requested by the King County 18 Prosecutor’s Office. (O’Rourke Decl. ¶¶ 8-9, Exs. B, C.) Prosecutors then filed criminal
20 2 The court refers to the page numbers in the CM/ECF header in discussing the Warrant Materials. 21 3 The dependency action lasted 14 months. (2d Am. Compl. ¶ 176.) Plaintiffs allege that they established at trial in that action that there had been no basis to remove C.H. or M.H. from 22 Ms. Hartman’s home. (Id. ¶ 177.) 1 charges against Ms. Hartman for two counts of felony assault of C.H. (2d Am. Compl. 2 ¶ 166.) At some point after the charges were filed, Ms. Hartman entered an agreement 3 whereby SCH would control C.H.’s care until November 29, 2023, and the charges
4 against Ms. Hartman would be reduced to a single misdemeanor charge. (Id. ¶ 179.) 5 After that date had passed, the prosecutor’s office dropped the misdemeanor charge, and 6 Ms. Hartman regained medical decision-making authority over C.H.’s care. (Id.) 7 On March 15, 2024, Plaintiffs filed their complaint in state court, and they 8 amended their complaint three days later. (See Compl. (Dkt. # 1-1) (complaint); Mot. for
9 Leave (Dkt. # 22) at 2 (noting amendment in state court).) The City Defendants removed 10 the action to this court on April 22, 2024. (NOR (Dkt. # 1).) On July 8, 2024, Plaintiffs 11 filed the operative second amended complaint.4 (See 2d Am. Compl.) Plaintiffs include 12 six causes of action against the City Defendants: (1) a 42 U.S.C. § 1983 claim for a 13 violation of the Fourth and Fourteenth right to be free from judicial deception (Count II);
14 (2) a § 1983 claim for a violation of the Fourth Amendment right against unlawful 15 searches and seizures (Count III); (3) defamation (Count XII); (4) negligent investigation 16 of medical child abuse (Count V); (5) intentional infliction of emotional distress (Count 17 VII); and (6) negligent infliction of emotional distress (Count VIII). (See 2d Am. Compl. 18 at 46-67.)
19 20 21 4 Plaintiffs have moved to file a third amended complaint. (Mot. 3d. Am. Compl. (Dkt. 22 # 79).) The court will address this motion in a separate order. 1 III. DISCUSSION 2 The court first discusses Plaintiffs’ motion to strike. Next, it addresses the 3 appropriate legal standard on a motion for summary judgment and considers the City
4 Defendants’ arguments as to Plaintiffs’ claims under 42 U.S.C. § 1983 and as to 5 Plaintiffs’ state tort law claims. 6 A. Motion to Strike 7 In their surreply, Plaintiffs move to strike argument in the City Defendants’ reply 8 that Plaintiffs assert is based upon new factual material. (Surreply at 1-3 (citing Reply at
9 4-5, 7-10.)) They also seek to strike the new factual material itself, which the City 10 Defendants attach to their reply. (See id. at 1 (citing 4/18/25 Jorgensen Decl. (Dkt. 11 # 75) Exs. 1-2).) Specifically, Plaintiffs object to two assertions and related materials: 12 (1) that Det. O’Rourke reasonably believed that there was an imminent risk of harm to 13 C.H. and M.H. and was not grossly negligent in removing them from Ms. Hartman’s
14 home;5 and (2) that Plaintiffs cannot attack the search warrant in light of the Rooker- 15 Feldman doctrine and res judicata. (Surreply at 1-3.) 16 When a party moves for summary judgment at the outset of discovery and later 17 uncovers new and pertinent evidence, the proper procedure is for the party to seek leave, 18 at an appropriate time, to file a successive summary judgment motion based upon the
19 20
21 5 Plaintiffs only object in part to this assertion. (Compare Surreply at 3 (objecting to Reply at 4:14-5:23 & 10:4-8), with Reply at 9:14-10:3 & 10:11-11:4 (argument concerning lack 22 of gross negligence and existence of imminent harm).) 1 newly discovered evidence.6 See Hoffman v. Tonnemacher, 593 F.3d 908, 910 (9th Cir. 2 2010) (“Allowing a successive summary judgment motion potentially can save all 3 concerned the far greater expenses of a trail.”); see also Fed. R. Civ. P. 1 (courts should
4 construe the Federal Rules of Civil Procedure “to secure the just, speedy, and inexpensive 5 determination of every action and proceeding”). 6 Generally, “[i]t is not acceptable legal practice to present new evidence or new 7 argument in a reply brief.” Roth v. BASF Corp., C07-0106MJP, 2008 WL 2148803, at *3 8 (W.D. Wash. May 21, 2008); see also United States v. Puerta, 982 F.2d 1297, 1300 n.1
9 (9th Cir. 1992) (“New arguments may not be introduced in a reply brief.”). If a party 10 includes improper material in or attached to a reply brief, the opposing party may request 11 that the court strike the material by filing a surreply and following the procedures in this 12 district’s local rules. See Local Rules W.D. Wash. LCR 7(g). 13 The court has reviewed the relevant portions of the City Defendants’ reply and
14 concludes that the City Defendants have included improper material in and attached to 15 their reply. Accordingly, the court grants Plaintiffs’ motion to strike this material. 16 17
18 6 The court has discretion to entertain a successive summary judgment motion, and, in exercising its discretion, the court considers the following factors: “(1) an intervening change in 19 the controlling law, (2) the availability of new evidence or an expanded factual record; and (3) the need to correct a clear error or prevent manifest injustice.” Silva v. Bacon, No. C19- 20 619RAJ-MLP, 2021 WL 673562, at *1 (W.D. Wash. Feb. 22, 2021) (quoting Kische USA LLC v. Simsek, No. C16-0168JLR, 2017 WL 5881322, at *3 (W.D. Wash. Nov. 29, 2017) (cleaned up). 21 Although “a successive motion for summary judgment is particularly appropriate on an expanded factual record[,]” courts must “weed out frivolous or simply repetitive motions.” Hoffman, 593 22 F.3d at 911. 1 B. Legal Standard 2 Summary judgment is appropriate when, viewing the evidence in the light most 3 favorable to the nonmoving party, “the movant shows that there is no genuine dispute as
4 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 5 Civ. P. 56(a); Young v. United parcel Serv., Inc., 575 U.S. 206, 216 (2015). A fact is 6 material if it “might affect the outcome of the suit under the governing law[,]” and a 7 dispute is genuine when “the evidence is such that a reasonable jury could return a 8 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
9 (1986). 10 To carry its burden in moving for summary judgment, “the moving party must 11 either produce evidence negating an essential element of the nonmoving party's claim or 12 defense or show that the nonmoving party does not have enough evidence of an essential 13 element to carry its ultimate burden of persuasion at trial.” Jones v. Williams, 791 F.3d
14 1023, 1030-31 (9th Cir. 2015) (quotations omitted). If the moving party meets its burden 15 of production, the nonmoving party must identify specific facts from which a factfinder 16 could reasonably find in the nonmoving party's favor. Celotex Corp. v. Catrett, 477 U.S. 17 317, 322 (1986). “This burden is not a light one.” In re Oracle Corp. Sec. Litig., 627 18 F.3d 376, 387 (9th Cir. 2010). The opposing party “must do more than simply show that
19 there is some metaphysical doubt as to the material facts.” Scott v. Harris, 550 U.S. 372, 20 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 21 586 (1986)). A “party asserting that a fact cannot be or is genuinely disputed must 22 support the assertion by . . . citing to particular parts of materials in the record[.]” Fed. R. 1 Civ. P. 56(c)(1)(A); see also Local Rules W.D. Wash. LCR 10(e)(6) (“Citations to 2 documents already in the record . . . must include a citation to the docket number and the 3 page number[.]”).
4 C. Plaintiffs’ Federal Constitutional Claims 5 The court first discusses the standard for qualified immunity, and then turns to the 6 City Defendants’ arguments concerning Plaintiffs’ allegations of constitutional violations 7 and claims under 42 U.S.C. § 1983. 8 1. Qualified Immunity
9 “Qualified immunity gives government officials breathing room to make 10 reasonable but mistaken judgments about open legal questions. When properly applied, it 11 protects ‘all but the plainly incompetent or those who knowingly violate the law.’” 12 Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 355, 13 341 (1986)). In resolving a government official’s claim of qualified immunity, a court
14 must decide whether (1) there is a violation of a constitutional right; and (2) whether the 15 right at issue was “clearly established[.]” See Pearson v. Callahan, 555 U.S. 223, 232 16 (2009); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (noting that a police 17 officer cannot be held liable if the alleged conduct “does not violate clearly established 18 statutory or constitutional rights of which a reasonable person would have known”). To
19 be clearly established, a right’s contours “must be sufficiently clear that a reasonable 20 official would understand that what he is doing violates that right.” Los Angeles Police 21 Protective League v. Gates, 907 F.2d 879, 887 (9th Cir. 1990) (cleaned up). Courts have 22 discretion in deciding “which of the two prongs of the qualified immunity analysis should 1 be addressed first in light of the circumstances in the particular case at hand.” Pearson, 2 555 U.S. at 236. 3 2. Count II – Judicial Deception
4 There is a cause of action under 42 U.S.C. § 1983 for violations of the Fourth and 5 Fourteenth Amendments based on judicial deception in the context of child custody 6 proceedings and removal orders. See Scanlon v. Cnty. of Los Angeles, 92 F.4th 781, 799 7 9th Cir. 2024). To prevail on such a claim, a plaintiff must show “(1) a misrepresentation 8 or omission (2) made deliberately or with a reckless disregard for the truth, that was (3)
9 material to the judicial decision.” Id.; see also Spencer v. Peters, 857 F.3d 789, 798 (9th 10 Cir. 2017) (discussing claim for “deliberate fabrication of evidence by a state official[,]” 11 which requires a plaintiff to prove that “(1) the defendant official deliberately fabricated 12 evidence[,] and (2) the deliberate fabrication caused the plaintiff’s deprivation of 13 liberty”). Judicial deception, or, more broadly, deliberate fabrication of evidence, can
14 include conduct such as continuing an investigation despite knowing that the subject of 15 the investigation is innocent, or preparing an affidavit despite knowing that the material 16 averred is false. See Chism v. Washington, 661 F.3d 380, 387 (9th Cir. 2011); Gausvik v. 17 Perez, 345 F.3d 813, 817 (9th Cir. 2003). It can also include intentionally omitting 18 pertinent information from an affidavit that is within the affiant’s personal knowledge, or
19 otherwise acting with reckless disregard for the truth. See Chism, 661 F.3d at 387-88. 20 Judicial deception and deliberate fabrication do not, however, encompass mere 21 carelessness, negligence, or mistakes. See Gausvik, 345 F.3d at 817; see also Scanlon, 92 22 1 F.4th at 799 (requiring that a misrepresentation or omission be “made deliberately or with 2 reckless disregard for the truth” (citation omitted)). 3 The City Defendants argue, in pertinent part, that no reasonable jury could find a
4 constitutional violation on the record here because Plaintiffs cannot show that 5 Det. O’Rourke deliberately fabricated evidence that led to the removal of M.H. and C.H.7 6 (See MSJ at 11-12; Reply at 6-7.) The court agrees with the City Defendants that the 7 evidence shows that Det. O’Rourke relied upon a letter from Dr. Wiester in applying for 8 search warrants and executing a probable cause certificate, and that she quoted Dr.
9 Wiester’s letter verbatim in her applications and probable cause certificate.8 (O’Rourke 10 Decl. ¶¶ 8-10, Exs. B-D.) The evidence also shows that Det. O’Rourke detailed other 11 aspects of her investigation, including her review of C.H.’s medical records and her 12 interviews with C.H.’s educators. (Id.) Therefore, the City Defendants have met their 13 initial burden of production in moving for summary judgment by pointing to evidence
14 negating the allegation that Det. O’Rourke engaged in judicial deception or deliberately 15 fabricated evidence. 16 17 7 The court observes that, in their motion for summary judgment, the City Defendants 18 conflate the standards for summary judgment and the standards for dismissal under Federal Rule of Civil Procedure 12(b)(6). (See MSJ at 6-7, 10.) The court interprets the City Defendants’ 19 arguments as addressing summary judgment because the City Defendants style their motion as one for summary judgment and rely upon evidence outside the operative complaint (see 20 O’Rourke Decl. ¶¶ 2-10, Exs. A-D; Reply at 6-7), and because Plaintiffs do the same in response (see Resp. at 4-10, 15-17). 21 8 Det. O’Rourke states that she routinely relies “on medical professionals who are experts[,]” including the medical professionals at SCH, because she lacks “complex medical 22 training[.]” (O’Rourke Decl. (Dkt. # 64) ¶¶ 5-7.) 1 In response, Plaintiffs argue that Det. O’Rourke conducted her investigation with 2 insufficient care, asserting that she “simply mimicked” the information provided by Dr. 3 Wiester and, more broadly, failed to conduct a “real investigation” by largely copying
4 information from other sources and representing that the underlying information was true. 5 (Resp. at 4-9.) Plaintiffs also assert that Det. O’Rourke failed to speak with certain of 6 C.H.’s healthcare providers, and they take issue with Det. O’Rourke’s interpretation and 7 understanding of what they claim are C.H.’s “complicated medical records[.]” (Id.) For 8 instance, Plaintiffs contend that Det. O’Rourke was incorrect when she wrote that it was
9 “not clear if C.H. has been diagnosed by a medical professional with cerebral palsy or a 10 seizure disorder[.]” (Id. at 15). 11 Deliberate fabrication, however, requires more than a showing that Det. O’Rourke 12 conducted a deficient or careless investigation, that she did not fully understand complex 13 medical records, or that her statements included errors. See Gausvik, 345 F.3d at 817; see
14 also Scanlon, 92 F.4th at 799-805 (considering whether a reasonable trier of fact could 15 find misrepresentations “material to the judicial decision” (citation omitted)). Plaintiffs 16 have failed to identify specific facts showing that Det. O’Rourke either knew that one of 17 her statements was false or that she made such statement with reckless disregard for its 18 truth. (See generally Resp.) To the contrary, Det. O’Rourke routinely qualified the
19 statements in her warrant applications and probable cause certificate, explaining that she 20 was recounting and relying upon the opinions and statements of the SCAN team at SCH. 21 (See, e.g., Warrant Materials at 33 (summary section noting, in pertinent part, that 22 “according to Dr. Wiester and the SCAN team[,]” C.H. was subjected to unnecessary 1 medical procedures, and “that this pattern of behaviors by [Ms.] Hartman has resulted in 2 unnecessary medical testing, medication, procedures, surgeries, and had been debilitating 3 to C.H”).)
4 Moreover, even assuming that Det. O’Rourke also made mistakes in interpreting 5 complex medical records, the significant additional support provided in her declaration 6 renders those mistakes immaterial. Specifically, Det. O’Rourke’s submissions also 7 included, for instance, a lengthy account of the verbatim observations and opinions of Dr. 8 Wiester detailing alleged neglect of, and unnecessary medical treatments for, C.H.;
9 independent interviews with C.H.’s educators who reported that they did not observe the 10 symptoms in C.H. cited by Ms. Hartman; and online videos of C.H., apparently posted by 11 Ms. Hartman, that contradicted the symptoms reported by Ms. Hartman. (See, e.g., 12 Warrant Materials at 7-16 (SCAN letter from Dr. Wiester); 23, 29-31 (interviews with 13 employees at C.H.’s schools); 24 & n.1 (online videos).) In this context, no reasonable
14 factfinder could find the asserted errors in Det. O’Rourke’s interpretations of C.H.’s 15 medical records to be material. 16 Accordingly, the City Defendants are entitled to summary judgment on Plaintiffs’ 17 claim for judicial deception.9 18
19 20 9 Because the court grants summary judgment in favor of the City Defendants based upon 21 the record evidence concerning whether Det. O’Rourke violated constitutional prohibitions on judicial deception and deliberate fabrication of evidence, the court does not reach the remainder 22 of the parties’ arguments concerning qualified immunity. 1 3. Count III – Search and Seizure of Ms. Hartman’s Property10 2 A warrant must be supported by probable cause, and it must particularly describe 3 “the place to be searched and the persons or things to be seized.” U.S. Const. amend. IV.
4 The particularity requirement guards against general searches and “prevents the seizure 5 of one thing under a warrant describing another.” U.S. v. Cardwell, 680 F.2d 75, 77 (9th 6 Cir. 1982) (quotations omitted). 7 Generally, even if a warrant is constitutionally invalid, officers who execute a 8 warrant are entitled to qualified immunity unless “it is obvious that no reasonably
9 competent officer would have concluded that [the] warrant should issue.” See 10 Messerschmidt v. Millender, 565 U.S. 535, 546-47 (2012) (quotation and citation 11 omitted); see also id. at 547 (“In the ordinary case, an officer cannot be expected to 12 question the magistrate’s probable-cause determination[.]” (quoting United States v. 13 Leon, 468 U.S. 897, 898 (1984)) (cleaned up)). There is no qualified immunity, however,
14 where an officer obtains a warrant by engaging in judicial deception. See Chism, 661 15 F.3d at 393. There is also no qualified immunity where a supporting affidavit so lacks 16 indicia of probable cause that an officer’s reliance on the warrant is “entirely 17 unreasonable[.]” Id. (quoting United States v. Leon, 468 U.S. 897, 923 (1984)). 18 The court has already concluded that Det. O’Rourke is entitled to summary
19 judgment on Plaintiffs’ judicial deception claims. Accordingly, the parties’ remaining 20
10 This count also includes a claim that the City Defendants violated Plaintiffs’ rights by 21 seizing C.H. and M.H. (Compare 2d Am. Compl. ¶¶ 217-19 (seizure of C.H. and M.H.), with ¶¶ 220-21 (search and seizure of Ms. Hartman’s home and property).) The court will separately 22 address the seizure of C.H. and M.H. 1 dispute centers on whether the search warrants executed by Det. O’Rourke satisfy 2 constitutional requirements, and—if not—whether Det. O’Rourke is nonetheless entitled 3 to qualified immunity in relying upon the warrants. (See MSJ at 15-16; Resp. at 13-14;
4 Reply at 6.) 5 The City Defendants provide copies of the search warrants that Det. O’Rourke 6 relied upon in searching Ms. Hartman and her property (see Warrant Materials at 2-5 7 (March 2021 warrant), 71-73 (April 2021 warrant)), and the court has carefully reviewed 8 the warrants. The March 2021 warrant specified the suspected crimes of second-degree
9 assault of a child and attempt of the same, and it contained detailed descriptions of Ms. 10 Hartman and her residence. (Id. at 2.) It also limited the items to be seized, including, in 11 relevant part: (1) cellular and digital communication devices “found on the person of or 12 associated with or belonging to [Ms.] Hartman[,]”;(2) medical documents; (3) “journals, 13 notes, or papers that document or make mention of medical care in regards to C.H.”;
14 (4) written materials “relating to illness, medicine, medical procedures, disability, or care 15 of humans”; (5) personal computer hardware;11 and (6) medications, drugs, and 16 supplements. (Id. at 3.) 17 Plaintiffs contend that the March 2021 warrant was not sufficiently particular 18 because it effectively authorized a general search of Ms. Hartman’s electronic devices
19 and did not “categorize or suggest how each specific category of evidence to be seized 20 11 The warrant authorized law enforcement to seize electronic devices and computer 21 hardware, but not to generally search those items. (See Warrant Materials at 3.) Instead, the warrant specified that a search, if any, would occur pursuant to a forthcoming application and 22 warrant. (See id.) 1 relates to criminal activity[.]”12 (Resp. at 14.) The court disagrees. The March 2021 2 warrant was limited to evidence concerning C.H.’s health and medical treatments. 3 (Warrant Materials at 2-3.) It also authorized only the seizure of communication devices
4 associated with or belonging to Ms. Hartman and her computer equipment; it did not 5 authorize a search of those devices or equipment. (See id.) Instead, a separate warrant 6 issued in April 2021 authorizing a limited search of three of Ms. Hartman’s devices. (Id. 7 at 71-73.) Specifically, this separate warrant limited the search to likely evidence of the 8 suspected crimes over a relevant time period. (See id. at 71-72 (authorizing a search and
9 seizure, in relevant part, of the following information: (1) depictions of C.H.; 10 (2) evidence of internet searches related to medical conditions, symptoms, diagnoses, or 11 treatments; and (3) evidence of financial records regarding fundraisers, disability support, 12 government support, financial resources, and donations related to Ms. Hartman or C.H).) 13 In sum, the search warrants are issue are not constitutionally deficient, and, in
14 relying upon the warrants, Det. O’Rourke has qualified immunity. The court grants 15 summary judgment in favor of the City Defendants. 16 17
18 12 Plaintiffs do not argue that the warrants were not supported by probable cause, except to the extent that they argue that Det. O’Rourke engaged in judicial deception. (See generally 19 Resp. at 13-17.) Upon its own review of Det. O’Rourke’s applications, the court concludes that no reasonable factfinder could find that the warrants did not issue upon probable cause. 20 Det. O’Rourke provided ample information concerning suspected criminal conduct from a variety of sources, including verbatim and highly-detailed opinions from medical professionals 21 who interacted with C.H. See Anderson v. City of Pasadena, 78 F.3d 591 (9th Cir. 1996) (concluding that a warrant was supported by probable cause based upon an “impressively 22 detailed and specific” warrant application). 1 4. Count III – Seizure of C.H. and M.H. 2 “Officials may remove a child from the custody of its parent without prior judicial 3 authorization only if the information they possess at the time . . . provides reasonable
4 cause to believe that [(1)] the child is in imminent danger of serious bodily injury[,] and 5 [(2)] that the scope of the intrusion is reasonably necessary to avert that specific injury.” 6 Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000). “An indictment or serious 7 allegations of abuse which are investigated and corroborated usually gives rise to a 8 reasonable inference of imminent danger.” Ram v. Rubin, 118 F.3d 1306, 1311 (9th Cir.
9 1997). Typically, reasonable cause is a question of fact for a jury. See McKenzie v. 10 Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984). For purposes of a qualified immunity 11 analysis, the law is clearly established that extra-judicial removal is prohibited absent 12 reasonable cause and a reasonably necessary scope. See Rogers v. Cnty. of San Joaquin, 13 487 F.3d 1288, 1297 (9th Cir. 2007).
14 Det. O’Rourke removed C.H. and M.H. from Ms. Hartman without a court order. 15 (Shlansky Decl. ¶ 19, Ex. 16 at 1.) The City Defendants do not provide any evidence that 16 M.H. was in imminent danger. (See generally MSJ at 15-16; Warrant Materials.) As to 17 C.H., the City Defendants provide the contents of a letter from Dr. Wiester, dated 18 February 18, 2021, detailing serious allegations of medical child abuse against Ms.
19 Hartman, including causing C.H. to undergo unnecessary medications, procedures, and 20 surgeries. (See Warrant Materials at 7-16 (incorporating the contents of the letter).) The 21 letter stated that it was “written with collaboration and endorsement” of four other 22 medical providers involved in C.H.’s care. (Id. at 15.) 1 Even assuming without deciding, however, that the City Defendants have met 2 their burden of production in moving for summary judgment as to the existence of 3 imminent danger as to C.H., Plaintiffs identify other facts in the record from which a
4 factfinder could reasonably find that Det. O’Rourke did not have reasonable cause to 5 believe that C.H. was in imminent danger at the time of removal. Specifically, in 6 testifying at trial in the dependency action, Det. O’Rourke indicated that there was no 7 emergency at Ms. Hartman’s residence when she removed the children. (See Shlansky 8 Decl. ¶¶ 5-6, Ex. 2 at 144:22-25; Ex. 3 at 128:22-25.) There was also a delay of several
9 weeks between Dr. Wiester’s letter and the removal. (See Warrant Materials at 4, 7.) As 10 to CRPD’s potential liability for the removal, Plaintiffs quote a CRPD policy purporting 11 to authorize removal “when no other effective alternative is reasonably available and 12 immediate action reasonably appears necessary to protect the child.” (See Resp. at 21 13 (quoting Renton Police Department Policy Manual, Policy 315.6).)13
14 Accordingly, viewing the evidence in the light most favorable to Plaintiffs, the 15 court concludes that a genuine dispute of material fact precludes summary judgment on 16 Plaintiffs’ claims concerning removal of C.H. and M.H. The court denies the City 17 Defendants’ motion for summary judgment as to this claim. 18
20 13 For purposes of this order, the court takes judicial notice of CRPD’s Policy 315.6, on Plaintiffs’ request, because the policy is not subject to reasonable dispute and is readily available 21 online on the City of Renton’s website. https://www.rentonwa.gov/Government/Departments- and-Offices/Police/Police-Transparency/Department-Policies; see also Fed. R. Civ. P. 201 22 (governing judicial notice of facts). 1 D. State Law Claims 2 The court first discusses Plaintiffs’ defamation claim, and then turns to the City 3 Defendants’ statutory immunity arguments as to Plaintiffs’ state law claims of negligent
4 investigation of medical child abuse, intentional infliction of emotional distress (“IIED”), 5 and negligent infliction of emotional distress (“NIED”). 6 5. Count XII – Defamation 7 In Washington, defamation claims are subject to a two-year statute of limitations. 8 See RCW 4.16.100; Eastwood v. Cascade Brod. Co., 722 P.2d 1295, 1296 (Wash. 1986).
9 Plaintiffs filed this lawsuit on March 15, 2024 (see Compl.), almost three years after the 10 removal of C.H. and M.H., the initiation of the state court dependency action, and any 11 statements by the City Defendants concerning the removal. (See Shlansky Decl. ¶ 19, Ex. 12 16 at 1.) The City Defendants observe that the applicable two-year statute of limitations 13 therefore bars Plaintiffs’ defamation claims. (MSJ at 26.) In response, Plaintiffs concede
14 that “[a]fter reviewing the evidence supporting Plaintiffs’ claim for defamation as to 15 CRPD and Detective O’Rourke, Plaintiffs have determined that there is inadequate 16 evidence to support that claim in light of the City Defendants’ statute of limitations 17 argument.” (Resp. at 23 n.7.) Accordingly, the court grants summary judgment in favor 18 of the City Defendants on Plaintiffs’ defamation claim.
19 20 21 22 1 6. Counts V, VII, And VIII – Statutory Tort Immunity for Negligent Investigation of Medical Child Abuse, IIED, and NIED 2 RCW 4.24.595 provides a limited grant of immunity to governmental entities and, 3 in pertinent part, their officers, agents, and employees from tort liability for their acts or 4 omissions in emergent placement investigations: 5 Governmental entities, and their officers, agents, employees, and volunteers, 6 are not liable in tort for any of their acts or omissions in emergent placement investigations of child abuse or neglect . . . including, but not limited to, any 7 determination to leave a child with a parent, custodian, or guardian, or to return a child to a parent, custodian, or guardian, unless the act or omission 8 constitutes gross negligence. Emergent placement investigations are those conducted prior to a shelter care hearing[.] 9 RCW 4.24.595(1); see also RCW 26.44.280 (extending the grant of immunity in RCW 10 4.24.595 to governmental entities and their officers, agents, employees from claims by 11 parents, custodians, or guardians accused of abuse or neglect). Pursuant to this grant of 12 immunity, governmental entities and their officers, agents, and employees are immune 13 from liability in emergent placement investigations, except for grossly negligent conduct 14 or omissions. See Desmet v. State, 514 P.3d 1217, 1225-26 (Wash. 2022) (citing RCW 15 4.24.595(1)). 16 The City Defendants argue that they have statutory immunity from Plaintiffs’ state 17 tort claims concerning Det. O’Rourke’s removal of C.H. and M.H.14 (MSJ at 17-18; 18 Reply at 9-11.) In support, the City Defendants observe that the removal occurred before 19
20 14 The court does not reach the City Defendants’ argument, as to Plaintiffs’ IIED and NIED claims, that there is no genuine dispute of material fact that the City Defendants did not 21 engage in extreme and outrageous conduct. (Reply at 12-14.) The City Defendants raised this issue for the first time in reply. (See generally MSJ at 23-24); see also Puerta, 982 F.2d at 1300 22 n.1 (“New arguments may not be introduced in a reply brief.”). 1 the shelter care hearing and accordingly was part of Det. O’Rourke’s emergent placement 2 investigation. (See Reply at 9; see also Shlansky Decl. ¶ 19, Ex. 16 at 1 (date of shelter 3 care hearing).) The City Defendants also argue that Det. O’Rourke satisfies the criteria
4 for statutory immunity because her conduct was not grossly negligent; instead, she relied 5 upon the opinions of C.H.’s healthcare providers at SCH, reviewed C.H.’s medical 6 records, and interviewed other individuals who interacted with C.H. before removing 7 C.H. and M.H. from Ms. Hartman’s home. (MSJ at 19-21; Reply at 10-11.) 8 Plaintiffs, however, identify facts in the record from which a factfinder could
9 reasonably find that Det. O’Rourke was grossly negligent in investigating allegations of 10 medical child abuse and in removing C.H. and M.H. During her investigation, 11 Det. O’Rourke did not interview treating physicians at Mary Bridge Hospital who were 12 involved in diagnosing C.H. with a condition that could have warranted at least some of 13 C.H.’s medical treatments—even though Det. O’Rourke had access to C.H.’s medical
14 records. (Shlansky Decl. ¶¶ 7, 11, Ex. 4 at 103:17-20 & Ex. 8 at 80:17-19 (testimony 15 from these physicians, at trial in the dependency action, that Det. O’Rourke did not 16 interview them).) As the court has already discussed, there was also a delay of several 17 weeks between Dr. Wiester’s letter and Det. O’Rourke’s removal of C.H. and M.H. (See 18 Warrant Materials at 4, 7.) Additionally, as to the removal of C.H. and M.H. itself,
19 Det. O’Rourke indicated in her trial testimony during the dependency action that there 20 was no emergency at Ms. Hartman’s residence at the time. (See id. ¶¶ 5-6, Ex. 2 at 21 144:22-25; Ex. 3 at 128:22-25.) 22 1 In sum, viewing the evidence in the light most favorable to Plaintiffs, the court 2 concludes that a genuine dispute of material fact concerning gross negligence precludes 3 summary judgment on the issue of statutory immunity for Plaintiffs’ state tort claims.
4 IV. CONCLUSION 5 For the foregoing reasons, the court GRANTS Plaintiffs’ motion to strike (Dkt. 6 # 78) and GRANTS in part and DENIES in part the City Defendants’ motion for 7 summary judgment (Dkt. # 63) as follows: 8 1. The court GRANTS summary judgment in favor of the City Defendants as to
9 Plaintiffs’ claims of judicial deception (Count II); unlawful search and seizure of Ms. 10 Hartman’s home and property (Count III); and defamation (Count XII). 11 2. The court DENIES the City Defendants’ motion for summary judgment as to 12 Plaintiffs’ claims of unlawful seizure of C.H. and M.H. (Count III); negligent 13 investigation of medical child abuse (Count V); IIED (Count VII); and NIED (Count
14 VIII). 15 Dated this 10th day of June, 2025. A 16 JAMES L. ROBART 17 United States District Judge 18 19 20 21 22