Kirwin v. Kot

• Court: District Court, D. Arizona
• Decided: March 4, 2024
• Docket: 4:22-cv-00471
• Status: Unknown

Opinion

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

9 Sharmila Kirwin, et al., No. CV-22-00471-TUC-RCC

10 Plaintiffs, ORDER

11 v.

12 Dariusz Kot, et al.,

13 Defendants. 14 15 Plaintiffs Sharmila and Levi Kirwin filed a Complaint alleging various 16 constitutional violations occurred when their child, A.K., was removed from their custody.1 17 (Doc. 1.) Arizona Department of Child Services ("AZDCS") Defendants Dariusz Kot, 18 Mildred Jimenez, Daniel Nido, Melissa Fuentes, Kimberly Egbert, Mandy Chamberlin, 19 David Necoechea, Cecilia Rojas-Adnachiel, Aiza Huerta, and Pauline Machiche filed a 20 Motion to Dismiss. (Doc. 44.) This matter has been fully briefed and oral argument held. 21 (Docs. 54, 58–59.) On June 26, 2023, Magistrate Judge Bruce G. Macdonald issued a 22 Report and Recommendation ("R&R") addressing the Motion to Dismiss. (Doc. 60.) The 23 Magistrate Judge informed the parties they could file objections and responses, but no 24 replies were permitted without the Court's leave. (Id. at 51.) Plaintiffs objected (Doc. 73), 25

26 1 Plaintiffs voluntarily dismissed Claims Two (Docs. 36, 40), Five (Doc. 68), and Seven (Doc. 67), and agree to the dismissal of Claims Six, Twelve, Fourteen and Fifteen with 27 prejudice, and Claims Four and Eight without prejudice (Doc. 73 at 26). The Complaint did not include a Claim Ten. Plaintiffs also agree to dismissal of AZDCS Defendants 28 Fuentes, Chamberlain, and Machiche. (Doc. 73 at 26.) The Court addresses de novo the remaining Claims One, Three, Nine, Eleven, and Thirteen. 1 AZDCS responded (Doc. 80), Plaintiffs filed a notice of Supplemental Authority (Doc. 78) 2 and a reply without leave (Doc. 82). Plaintiffs then asked the Court to order that the reply 3 was timely. (Doc. 83.) 4 Regardless of timeliness, Plaintiffs did not request leave to file a reply. This matter 5 has been extensively briefed—the R&R is fifty-one pages, and Plaintiffs were permitted to 6 file an extended twenty-six-page objection and provide supplementation. The Court must 7 review the issues raised de novo. Additional briefing is unnecessary for a fair adjudication 8 of the motion. Therefore, the Court will deny the Motion for Leave Nunc Pro Tunc to Reply 9 to AZDCS's Response to Plaintiffs' Objections (Doc. 83) and strike the reply (Doc. 82). 10 I. PLAINTIFFS' COMPLAINT 11 The Complaint alleges the following: 12 Around May 2020, Plaintiffs' child, A.K., expressed that they2 identified as 13 transgender. (Doc. 1 at 7, ¶ 18.) A.K. contemporaneously exhibited signs of "anxiety, panic 14 attacks, social anxiety, depression, gender dysphoria, hallucinations, self-harm, suicidal ideations, [and a] conflicted relationship with family." (Id. at ¶ 20.) Plaintiffs sought 15 counseling for A.K. and distributed prescribed medication. (Id. ¶¶ 17, 20.) A.K.'s struggles 16 culminated in a suicide attempt on September 24, 2020, by overdosing on the prescribed 17 medication. (Id. at ¶ 32.) A.K. was admitted to Tucson Medical Center for treatment, but 18 after A.K. stated they had made five prior suicide attempts, Plaintiffs agreed to transfer 19 A.K. to Palo Verde Behavioral Health ("PVBH") on September 26, 2020. (Id. at ¶¶ 32– 20 36.) 21 The next day, PVBH Director Dr. Mark Helms conducted a psychiatric evaluation, 22 diagnosing "A.K. with (1) major depression, recurrent, severe; (2) anxiety disorder, 23 unspecified; and (3) gender dysphoria." (Id. at ¶ 38.) While at PVBH, A.K. disclosed that 24 (1) they had been sexually abused by their brother around the ages of 7 to 13, (2) they 25 wanted to kill themselves when they were living in Plaintiffs' home, and (3) they would 26 like to be removed from the home. (Id. at ¶¶ 39, 41.) These allegations were reported to 27

28 2 The parties use different pronouns when referring to A.K. For simplicity and inclusivity, the Court uses the pronouns they/them/theirs. 1 the AZDCS hotline. (Id. at ¶ 45.) As a result, AZDCS opened an investigation and assigned 2 Dariusz Kot as lead investigator. (Id.) On October 1, 2020, Kot interviewed A.K. and Dr. 3 Helms. (Id. at ¶ 46.) Kot informed A.K. that if A.K. threatened to harm themselves if 4 returned to Plaintiffs' home, AZDCS could take them into custody and would support 5 gender transition measures. (Id.) 6 Performing no further investigation, Kot drafted an Application and Proposed Order 7 for a Court Authorized Removal ("CAR").3 (Id. at ¶ 50.) AZDCS Investigation Supervisors 8 Mildred Jimenez and Daniel Nido "were informed of the facts" and Kot's investigation thus 9 far, "collaborated in the preparation of the allegations," and approved the submission of the 10 CAR Application. (Id. at ¶¶ 51–52.) The grounds for seizure included "(1) Failure to protect 11 a child from abuse or neglect, (2) Mental health issues, and (3) Unfit or unsafe home 12 environment for a child." (Id. at ¶ 52.) 13 The judge signed the CAR Order, approving the removal of A.K. from Plaintiffs' 14 custody on October 8, 2020, at 9:27 a.m. (Id.) Later that day, Kot spoke to Plaintiffs but did not inform them until 5:00 p.m. the following day that the judge had already given 15 AZDCS temporary custody of A.K. (Doc. 1 at ¶¶ 53–54.) 16 Kot provided the Arizona Attorney General ("AAG") with a worksheet that 17 "recorded alleged facts supporting an out-of-home dependency." (Id. at ¶ 61.) Based on 18 AZDCS Defendants' information, the AAG filed a Dependency Petition and Petition for 19 Child Support [Out-of-Home] ("Petition I"), along with proposed Temporary Orders and 20 Findings. (Id. at ¶¶ 64, 67.) A juvenile judge signed Petition I on October 20, 2020, and 21 Plaintiffs were served with Petition I and the Temporary Orders the next day. (Id. at ¶¶ 67– 22 68.) 23 While in AZDCS's custody, A.K. was transferred from PVBH to VisionQuest– 24 Madalyn House on November 10, 2020. (Id. at ¶ 78.) On January 1, 2021, AZDCS 25 Defendant Kimberly Egbert was assigned as A.K.'s case manager. (Id. at ¶ 94.) Around 26 January 7, 2021, Plaintiffs sent Egbert an email relaying their concerns about A.K.'s care 27

28 3 The parties alternatively refer to the CAR Order as an Ex Parte Order for the Removal of a Child. 1 at VisionQuest, mentioning that A.K. had been smoking marijuana, using birth control, and 2 may have been engaging in a sexual relationship. (Id. at ¶ 101.) Plaintiffs asked Egbert to 3 help prevent A.K. from engaging in these activities. (Id.) Egbert discussed the email with 4 A.K.'s case manager at Madalyn House, Miranda Millage, and together they decided not 5 to share this information. (Id. at ¶ 103.) Amy Liechty became A.K.'s therapist on January 6 21, 2021, but Egbert did not tell Liechty about Plaintiffs' email or A.K.'s behavior. (Id. at 7 ¶ 109.) Plaintiffs surmise Egbert decided to keep the email secret because it "would 8 negatively impact the Defendants' process of splitting A.K. from her family" and would 9 "further[] the goal of A.K.'s gender transition." (Id. at ¶ 103.) 10 On January 26, 2021, Plaintiffs submitted a complaint to the Ombudsman, stating 11 they were concerned about AZDCS's attempts to separate them from A.K. and further 12 A.K.'s transgender conversion. (Id. at ¶ 122.) Staff from the Ombudsman's office spoke 13 with Egbert, and "Egbert denied, lied and misrepresented the true facts, and the staffer 14 accepted those explanation[s]." (Id. at ¶ 124.) 15 *** 16 On April 2, 2021, a juvenile judge found that no dependency existed and ordered 17 A.K.'s return to Plaintiffs' custody. (Id. at ¶ 126.) Prior to the termination order, Plaintiffs 18 allege Egbert "concealed from Plaintiffs, the AAG, and the juvenile judge the extent of 19 A.K.'s deterioration in the custody of VisionQuest" and failed to take adequate measures 20 to coordinate A.K.'s successful transition to Plaintiffs' custody. (Id. at ¶ 127.) Instead, 21 sometime after 12:00 p.m., Egbert simply told A.K. over the phone "your parents won, they 22 are coming to get you." (Id. at ¶ 132.) 23 At 1:43 p.m., in a phone call between A.K. and Liechty, A.K. said after Egbert 24 informed them of the end of the dependency, they had decompensated, "tried to 'run into 25 traffic,' had cut [themselves] in an attempt to 'bleed out,' and would continue self-harming 26 if returned to [their] parents and would probably return to 'the psycho ward.'" (Id. at ¶¶ 27 133–34.) Within ten minutes of Liechty's call, Plaintiff Sharmila Kirwin, the Crisis Mobile 28 Team, and Plaintiffs' private investigator arrived at VisionQuest, with the Tucson Police 1 Department ("TPD") and Tucson Fire Department arriving soon thereafter. (Id. at ¶¶ 135– 2 39.) Plaintiffs agreed to A.K.'s transport to Alternative Community Engagement Services 3 ("ACES") where A.K. "would be allowed a cool down period, and may be held overnight." 4 (Id. at ¶¶ 138, 142.) However, when ACES refused to admit A.K., TPD Officer 5 Muckenthaler transported A.K. to TPD's Midtown Station without Plaintiffs' consent or 6 knowledge. (Id. at ¶¶ 142, 145.) 7 By 10:33 p.m. that day, Necochea prepared—and his supervisor Rojas-Adnachiel 8 approved—a Second Application and Declaration for Ex Parte Removal of a Child 9 ("Second CAR") based on information provided by Egbert, Millage, and Muckenthaler. 10 (Id. at ¶ 147.) The judge signed the Second CAR Order at 10:50 p.m. (Id.) Officer 11 Muckenthaler then transported A.K. to Sonoran Behavioral Health Center and into 12 AZDCS's custody. (Id. at ¶ 148.) 13 Sometime between April 2 and April 7, 2021, the AAG filed a Dependency Petition 14 and Petition for Child Support [Out-of-Home] ("Petition II") and Temporary Orders and Findings. (Id. at ¶ 155.) The juvenile judge signed these documents on April 8, 2021. (Id.) 15 A.K. subsequently "announced [their] intent to sever all ties with Plaintiffs and 16 directed [their] lawyer in the dependency case to accomplish that goal . . . ." (Id. at ¶ 166.) 17 II. STANDARD OF REVIEW 18 a. Magistrate's R&R 19 Where there is no objection to a magistrate's factual or legal determinations, the 20 district court need not review the R&R "under a de novo or any other standard." Thomas v. 21 Arn, 474 U.S. 140, 150 (1985). However, when a party objects, the district court must 22 "determine de novo any part of the magistrate judge's disposition that has been properly 23 objected to. The district judge may accept, reject, or modify the recommended disposition; 24 receive further evidence; or return the matter to the magistrate judge with instructions." 25 Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). 26 /// 27 /// 28 1 b. Motion to Dismiss 2 A complaint must contain a "short and plain statement of the claim showing that the 3 pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8 does not require detailed 4 factual allegations, "it demands more than an unadorned, the-defendant-unlawfully- 5 harmed–me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "[A] complaint must 6 contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible 7 on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The 8 complaint must contain more than "a statement of facts that merely creates a suspicion [of] 9 a legally cognizable right of action." Bell Atl. Corp., 550 U.S. at 555. Moreover, conclusory 10 and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. 11 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); Hill v. Kernan, No. 19-16759, 2021 WL 12 4870832, at *1 (9th Cir. Oct. 19, 2021). 13 "Determining whether a complaint states a plausible claim for relief [is] . . . a 14 context–specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. So, although a plaintiff's specific factual 15 allegations may be consistent with a constitutional claim, a court must assess whether there 16 are other "more likely explanations" for a defendant's conduct. Id. at 681. In determining 17 the sufficiency of the complaint, the court takes a plaintiff's factual allegations as true, and 18 makes any reasonable inferences in favor of the nonmoving party. Caltex Plastics, Inc. v. 19 Lockheed Martin Corp., 824 F.3d 1156, 1159 (9th Cir. 2016). 20 If the plaintiff "fails to state a claim on which relief may be granted," the district 21 court must dismiss. 28 U.S.C. §1915(e)(2)(B)(ii). However, if the pleading can be 22 remedied through the addition of facts, the claimant should be granted an opportunity to 23 amend the complaint prior to final dismissal. Lopez v. Smith, 203 F.3d 1122, 1127–29 (9th 24 Cir. 2000). 25 c. Allegations of Judicial Deception 26 Parents enjoy "a constitutional right under the Due Process Clause of the Fourteenth 27 Amendment to be free from judicial deception and fabrication of evidence in the context 28 of civil child custody cases." Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1146 (9th 1 Cir. 2021). A judicial deception claim must establish that there was "(1) a 2 misrepresentation or omission (2) made deliberately or with a reckless disregard for the 3 truth, that was (3) material to the judicial decision." Id. at 1147. Judicial deception 4 allegations must meet the heightened pleading standard of Federal Rule of Civil Procedure 5 9(b). Id. at 1148–49 (finding judicial deception claims met heightened pleading standard 6 in child custody case); A.H. v. Sacramento Cnty. Dep't of Child, Fam., and Adult Servs., 7 No. 2:21-cv-00690-DAD-JDP, 2023 WL 2938380, at *3 (E.D. Cal. Apr. 13, 2023) 8 (determining heightened pleading necessary for allegations that child services fraudulently 9 reported child abuse to obtain protective custody warrant); McCoy v. State Dep't of Hum. 10 Servs., No. 21-00063 LEK-RT, 2021 WL 5040197, at *9 (D. Haw. Oct. 29, 2021) 11 (requiring heightened pleading for claim of misrepresentation in a petition for temporary 12 custody); Anderson v. City of Pasadena, No. 94-56301, 1996 WL 109394, at *3–4 (9th Cir. 13 Mar. 12, 1996) (mandating heightened pleading for allegations of judicial deception in 14 obtaining warrant).4 This means a plaintiff must state "the who, what, when, where, and how of the misconduct charged, including what is false or misleading about a statement, 15 and why it is false[.]" Benavidez, 993 F.3d at 1145. 16 17 III. PLAINTIFFS' OBJECTION Plaintiffs' objection challenges the Magistrate Judge's conclusions that (1) Claims 18 One and Three are barred by the statute of limitations; (2) AZDCS Defendant Egbert is 19 entitled to qualified immunity on Claim Nine; (3) Plaintiffs' judicial deception claim was 20 insufficiently pled in Counts Eleven and Thirteen; and (4) punitive damages should be 21 denied. (Doc. 73.) The Court addresses the objections de novo. 22 IV. CLAIMS ONE AND THREE: STATUTE OF LIMITATIONS 23 In Arizona, a plaintiff has two years from the accrual of a claim to file a civil rights 24 25 4 Plaintiffs object to the Magistrate Judge's application of Federal Rule of Civil Procedure 26 9(b)'s pleading standard to their claims of judicial deception. The Court finds their position unsupported—a judicial deception claim in a child custody case should be subject to 27 heightened standards because the claims are grounded in fraud. See A.H., 2023 WL 2938380, at *3 (quoting Benavidez, 993 F.3d at 1148) ("A claim for judicial deception must 28 meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b) because the claim is one 'involving fraud.'"). 1 complaint. DeLuna v. Farris, 841 F.2d 312, 313 (9th Cir. 1988). State law determines the 2 length of the statute of limitations, but the district courts look to federal law to calculate 3 the accrual date. Wallace v. Kato, 549 U.S. 384, 388 (2007). "Under federal law, a claim 4 accrues when the plaintiff knows or has reason to know of the injury which is the basis of 5 the action." Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004). 6 Claim One alleges AZDCS Defendants Kot and Nido violated Plaintiffs' First and 7 Fourteenth Amendment rights to familial association through judicial deception when they 8 prepared and submitted the CAR Application. (Doc. 1 at 40–41.) Claim Three asserts 9 Defendants Kot, Jimenez, and Nido violated Plaintiffs' First and Fourteenth Amendment 10 rights through judicial deception when they made material misrepresentations to the AAG 11 when securing Petition I. (Id. at 15, 44.) 12 The Magistrate Judge determined Claims One and Three were barred by the statute 13 of limitations. (Doc. 60 at 10.) The Magistrate found that Plaintiffs' claims accrued on 14 October 6, 2020, when Plaintiffs were interviewed by law enforcement. (Id. at 9 (citing Doc. 1 at 12, ¶ 48).) On this date, the Magistrate stated, Plaintiffs knew of their injury 15 because "Plaintiffs became aware that charges may be brought for the perpetration of 16 abuse, or lack of protection from the abuser . . . ." after A.K. (1) attempted suicide, (2) 17 made allegations of sexual abuse, and (3) stated they wanted to kill themselves when at 18 home. (Id. at 9–10.) Therefore, the Magistrate concluded, the October 7, 2022 Complaint 19 was beyond the two-year statute of limitations. (Id. at 10.) 20 AZDCS Defendants originally argued that the accrual date was October 1, 2020— 21 the date Kot's investigation began. (Doc. 44 at 9–10.) However, AZDCS Defendants now 22 agree with the Magistrate's accrual date. (Doc. 80 at 4.) Plaintiffs counter that Claims One 23 and Three accrued on October 8, 2020, the date "Defendants secured the CAR that caused 24 the initial injury of depriving [Plaintiffs] of the custody of their child." (Doc. 73 at 7.) 25 26 *** 27 The Magistrate Judge's accrual analysis relied solely on Maldonado v. Harris, 370 28 F.3d 945 (9th Cir. 2004), but Maldonado is inapposite. In the early 1990s, Maldonado 1 posted billboard advertisements on his property. Id. at 948. The advertisements were 2 prohibited under California's Outdoor Advertising Act ("COAA"). Id. California 3 Department of Transportation ("CalTrans") filed a nuisance suit against Maldonado in July 4 1998 and obtained an injunction that prevented him from posting more billboard 5 advertisements. Id. Years later, shortly before filing suit, Maldonado posted another 6 billboard in violation of the COAA. Id. at 949. Maldonado then preemptively filed a § 1983 7 claim against CalTrans, challenging the constitutionality of the COAA. Id. 8 The Ninth Circuit determined that although CalTrans had not enforced the COAA 9 against Maldonado's most current billboard, his claims were ripe for adjudication. Id. at 10 953–54. The court then found that Maldonado's challenge to the COAA as to the current 11 billboard was within the statute of limitations, but that any challenge to the billboards 12 posted in the early 1990s were time barred because "Maldonado certainly knew that 13 CalTrans was enforcing the COAA against his . . . advertisements" when it filed the 14 nuisance claim and obtained an injunction. Id. at 955. There are three reasons the application of Maldonado to this case is misplaced. First, 15 Maldonado does not stand for the proposition that a claim accrues when there is knowledge 16 of a possible future injury. In Maldonado, the statute of limitations had passed as to the 17 earlier billboards because Maldonado had reason to know he had been injured when 18 CalTrans obtained the injunction. And the court did not analyze the accrual date as to the 19 final billboard because the claim was within the statute of limitations. Instead, the court 20 determined a challenge to the final billboard was ripe for adjudication. 21 Second, ripeness differs from accrual, and Maldonado's ripeness analysis cannot be 22 used to conclude that Plaintiffs' claims accrued prior to when Plaintiffs lost custody of A.K. 23 The Maldonado court determined that plaintiff could challenge the constitutionality of the 24 state statute "before its enforcement was ripe for review" because plaintiff purposefully 25 violated the law and the injunction was a threat to enforce the law. Id. at 953. Here, 26 Plaintiffs were not actively violating the law so that they could raise a claim, and there was 27 no previous enforcement or removal of A.K. from Plaintiffs' custody. Furthermore, on 28 October 6, 2020, Plaintiffs' constitutional claim based on the unlawful removal of A.K. 1 from Plaintiffs' custody was premature because AZDCS had not yet taken custody. At that 2 point there was no actual case or controversy ripe for adjudication. 3 Third, Maldonado does not establish when accrual occurs in child custody cases. 4 "[I]t is the standard rule that [a claim accrues] when the plaintiff has a complete and present 5 cause of action . . . that is, when the plaintiff can file suit and obtain relief." Wallace, 549 6 U.S. at 388 (citations and quotation marks omitted). Other courts agree that "civil rights 7 claims based on child removal accrue . . . when the child is removed from the parent." 8 Claraty v. Hall-Mills, No. 18-CV-06861-JCS, 2019 WL 1228237, at *4 (N.D. Cal. Mar. 9 15, 2019) (first citing Belinda K. v. Cnty. of Alameda, No. 10-CV-05797-LHK, 2011 WL 10 2690356, at *6 (N.D. Cal. July 8, 2011), then citing Kovacic v. Cuyahoga Cnty. Dep't of 11 Child. & Fam. Servs., 606 F.3d 301, 307 (6th Cir. 2010)); Stephens v. Arizona, No. CV- 12 22-016050PHX-DJH, 2023 WL 4136607, at *9 (stating plaintiff was aware of the injury 13 when the judge "signed his order authorizing DCS to remove the children . . . based on [the 14 DCS caseworker's] declaration, which allegedly contained omissions material to the findings of probable cause."). Moreover, the idea that accrual in a civil rights action occurs 15 upon knowledge of the unlawful act—not the injury—is unsupported. See Lukovsky v. City 16 & Cnty. of San Francisco, 535 F.3d 1044, 1049 (9th Cir. 2008) ("[A] plaintiff's action 17 accrues when he discovers that he has been injured, not when he determines that the injury 18 was unlawful."). 19 On October 6, 2020, Plaintiffs did not have a "complete and present cause of action" 20 because the injury—the removal of A.K. from Plaintiffs' custody—had yet to occur. 21 Plaintiffs' knowledge of an investigation alone did not create an actionable claim because 22 Plaintiffs did not suffer an injury until AZDCS took temporary custody of A.K. on October 23 8, 2020, after purportedly engaging in judicial deception. To find otherwise would create 24 a conundrum wherein the statute of limitations could run before a child is removed, 25 requiring parents to preemptively file § 1983 claims in anticipation of losing custody of 26 their child. 27 The Court finds Claims One and Three did not accrue until October 8, 2020, the 28 date that the CAR Order was entered and Plaintiffs lost custody of A.K. Thus, the 1 Complaint, filed October 7, 2022, is timely. Therefore, the Court must conduct a de novo 2 review of Claims One and Three. 3 V. CLAIMS ONE AND THREE: VIOLATION OF FAMILIAL ASSOCIATION THROUGH 4 JUDICIAL DECEPTION–KOT, NIDO, & JIMENEZ 5 Claim One alleges Kot was required—pursuant to A.R.S. § 8-456(C)(1), Arizona 6 Administrative Code § R21-4-104(A), and AZDCS policy—to thoroughly investigate any 7 allegations of child abuse. (Doc. 1 at ¶¶ 171–73.) In addition, AZDCS's Information 8 Gathering Policy ("IG Policy") required investigators to review medical, school, and 9 behavioral health records, as well as any police reports when "[t]here is reason to believe 10 these records contain information that will fill a gap or reconcile inconsistency in the 11 information about safety and risk . . . ." (Id. at ¶ 174–75.) Furthermore, AZDCS's Family 12 Functioning Assessment Policy ("FFA Policy") required personal observation of the child, 13 interviews, and in-person observations, including an investigation into a child's "healthcare 14 history" and "sibling relationships." (Id. at ¶ 178.) Moreover, AZDCS's Facilitator's Guide for Removal mandates that a CAR Application: 15 16 Be as specific as possible by including results of in-person observations, 17 interviews with children, parents, and collateral contacts, information from medical records, police records, education records, etc.; For present 18 danger circumstances: include a description of the specific actions, 19 behaviors, emotions, or out-of-control conditions in the home that are significant, and how the condition or behavior is immediately endangering 20 the child. 21 (Id. at ¶¶ 179–80 (emphasis added).) 22 Plaintiffs claim Kot falsely asserted in the CAR Application that: 23 24 a. Plaintiffs disapprove of the LGBT community. 25 b. Plaintiffs terminated therapy because the therapist was siding with A.K. 26 c. Plaintiffs excessively punished, verbally abused, held "a negative 27 perception of" and "extremely unrealistic expectations for" A.K. Plaintiffs negative perception of A.K "clearly contributed to [A.K.'s] making a suicide 28 attempt." 1 d. TPD was investigating [A.K.'s] allegations [that her brother sexually abused A.K. for six (6) years], that the abuse was an ongoing concern because 2 the brother remained in the home, and that the parents were unable to protect 3 A.K. from the abuse, in part because they were unwilling to press charges against the brother. 4 5 e. Although attempts were made, no appropriate relatives or kinship placement existed. 6 (Id. at ¶ 182; 44, ¶ 198.) 7 Investigation Supervisors Nido and/or Jimenez were informed of Kot's 8 investigation. (Id. at ¶ 51.) Nido and Jimenez "collaborated" with Kot and approved the 9 CAR Application. (Id. at ¶¶ 51–52.) Kot, Nido, and Jimenez then decided to seek a 10 dependency, "no matter what evidence or information would be disclosed . . . ." (Id. at ¶ 11 60.) 12 Claim Three alleges that Kot, Jimenez, and Nido violated Plaintiffs' First and 13 Fourteenth Amendment rights when they provided the same material misrepresentations 14 included in the CAR Application to the AAG, which was then used as the basis for Petition 15 I. (Id. at ¶¶ 197–201.) Furthermore, these Defendants did not provide "exculpatory 16 evidence learned by them from the interviews of the Plaintiffs subsequent to Kot's filing of 17 the [CAR A]pplication." (Id. at ¶ 202.) As a result, the AAG filed Petition I and Temporary 18 Orders and Findings, which were signed by the juvenile judge, causing Plaintiffs to lose 19 custody of A.K. (Id. at ¶¶ 201–03.) 20 a. Kot 21 Plaintiffs allege that prior to drafting the CAR Application, Kot was required to 22 interview Plaintiffs and other collateral contacts under the aforementioned statutes and 23 policies. (Id. at ¶¶ 50, 180.) Had Kot done so, he could have discovered Plaintiffs were 24 concerned about A.K. surgically transitioning but supported A.K.'s transgender 25 identification. (Id. at ¶¶ 21, 24–25.) Kot also could have reported that Plaintiffs were 26 willing to address AZDCS's concerns about the alleged sexual abuse by allowing a "safety 27 monitor" in the home or having A.K.'s brother live at a different residence, but Kot never 28 informed Plaintiffs this was an option. (Id. at ¶ 184.) Kot would have learned that the sexual 1 molestation allegations could have conceivably been attributed to "sexual exploration," that 2 molestation was not continuing to occur, and that Plaintiffs were willing to separate the 3 siblings. (Id. at ¶¶ 47–48.) Plaintiffs also claim they could have identified a kinship 4 placement. (Id.) Moreover, Kot would have learned A.K. suffered from multiple mental 5 disorders "which rendered [their] ability to be an accurate historian suspect." (Id. at ¶ 184.) 6 Finally, Kot omitted that Dr. Helms had repeatedly recommended A.K.'s return to 7 Plaintiffs' custody. (Id.) In short, had Kot followed the mandated procedures and not 8 omitted material facts, protective measures could have been taken and there would not have 9 been probable cause to remove A.K. from Plaintiffs' home. 10 A deprivation of a constitutional right occurs when an official commits "an 11 affirmative act, participates in another's affirmative acts, or omits to perform an act which 12 he is legally required to do that causes the deprivation of which [the plaintiff complains]." 13 Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). However, "mere allegations that 14 defendants . . . violated state regulations, without more, cannot serve as the basis for a claim under § 1983." Costanich v. Dep't of Soc. and Health Servs., 627 F.3d 1101, 1115 (9th Cir. 15 2010). A judicial deception claim must establish that there was "(1) a misrepresentation or 16 omission (2) made deliberately or with a reckless disregard for the truth, that was (3) 17 material to the judicial decision." Benavidez, 993 F.3d at 1147. 18 The Court finds that Claims One and Three sufficiently plead First and Fourteenth 19 Amendment judicial deception violations. Plaintiffs allege Kot had an affirmative duty to 20 interview them and collateral contacts prior to the submission of the CAR Application. 21 Because Kot failed to conduct these interviews, he did not obtain information that would 22 have prevented A.K.'s removal from Plaintiffs' custody, and he submitted false statements 23 about A.K.'s safety. Allegedly, Kot omitted material facts about Plaintiffs' parenting and 24 their willingness and ability to protect A.K. Taking the allegations as true—as the Court 25 must at this stage—Kot's failure to conduct the required investigation resulted in, at least, 26 a reckless disregard for the truth that was material to the judge's CAR Order. 27 The Court now turns to the question of whether Kot was entitled to qualified 28 immunity. The affirmative defense of "qualified immunity involves two inquiries: (1) 1 whether, taken in the light most favorable to the party asserting the injury, the facts alleged 2 show the officer's conduct violated a constitutional right; and (2) if so, whether the right 3 was clearly established in light of the specific context of the case." O'Brien v. Welty, 818 4 F.3d 920, 936 (9th Cir. 2016) (quoting Krainski v. Nevada ex rel. Bd. of Regents of Nev. 5 Sys. of Higher Educ., 616 F.3d 963, 970 (9th Cir. 2010)). 6 On the face of the Complaint, the Court cannot determine whether Kot is entitled to 7 qualified immunity because it is unclear whether it was clearly established that Kot's failure 8 to further investigate—which led to a CAR Order and Petition I with various 9 misrepresentations and omissions—violated Plaintiffs' rights. Further fleshing out of the 10 facts and Kot's duties may allow the Court to decide qualified immunity at a later date. See 11 id. (stating dismissal on a 12(b)(6) motion "is not appropriate unless we can determine, 12 based on the complaint itself, that qualified immunity applies"). Therefore, the Court will 13 require Defendant Kot to answer Claims One and Three. 14 b. Jimenez and Nido In contrast to the allegations against Kot, the allegations in Claims One and Three 15 against Nido and Jimenez are sparse and conclusory. "There is no respondeat superior 16 liability under section 1983." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation 17 omitted). "A supervisor is only liable for constitutional violations of his subordinates if the 18 supervisor participated in or directed the violations, or knew of the violations and failed to 19 act to prevent them." Id.; Maxwell v. Cnty. of San Diego, 708 F.3d 1075, 1086 (9th Cir. 20 2013). 21 The Court finds that the allegations in Claims One and Three against Nido and 22 Jimenez fail to meet the heightened pleading standard for judicial deception. Judicial 23 deception claims must indicate "the who, what, when, where, and how of the misconduct 24 charged, including what is false or misleading about a statement, and why it is false[.]" 25 Benavidez, 993 F.3d at 1145. Nido and Jimenez cannot be held liable for Kot's alleged 26 misrepresentations because Plaintiffs have not explained how they knew and participated 27 in any constitutional violation. Simply stating Nido and Jimenez "collaborated" in and 28 "approved" of Kot's sworn allegations is insufficient. In addition, Jimenez and Nido are 1 immune from suit because it was not clearly established that Jimenez and Nido's approval 2 of Kot's sworn CAR Application would constitute a violation of Plaintiffs' rights. Claims 3 One and Three against Defendants Nido and Jimenez will be dismissed. 4 VI. CLAIM NINE: FIRST AMENDMENT RETALIATION–EGBERT 5 Claim Nine alleges that Egbert's actions on April 2, 2021, informing A.K. that the 6 dependency had ended, were in retaliation for Plaintiffs "submission of the complaint with 7 the Ombudsman, as well as their documented criticism of the agency's treatment of 8 themselves and [A.K.]." (Doc. 1 at ¶ 239.) Plaintiffs allege Egbert was required to 9 collaborate with them, A.K.'s therapist Liechty, and other unknown professionals to safely 10 return A.K. to their custody. (Id. at ¶ 240.) If Egbert had acted appropriately, Plaintiffs 11 assert, "the crisis, which Defendant hoped would ensue, and which did ensue, would not 12 have happened, and the agency would not have had the pretextual grounds to seize A.K. a 13 second time and recommence dependency proceedings." (Id.) 14 A First Amendment retaliation claim requires Plaintiffs allege facts showing "that (1) [they were] engaged in a constitutionally protected activity, (2) the defendant's actions 15 would chill a person of ordinary firmness from continuing to engage in the protected 16 activity[,] and (3) the protected activity was a substantial or motivating factor in the 17 defendant's conduct." O'Brien, 818 F.3d at 932. Plaintiffs must also show but-for causation, 18 "meaning that the adverse action against [Plaintiffs] would not have been taken absent the 19 retaliatory motive." Sampson v. Cnty. of Los Angeles, 974 F.3d 1012, 1019 (9th Cir. 2020) 20 (citing Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019)). 21 The Magistrate Judge found that Plaintiffs had not stated a plausible claim of 22 retaliation and that Egbert was protected by qualified immunity. (Doc. 60 at 28–36.) 23 Plaintiffs have objected. Upon de novo review, the Court need not reach the issue of 24 qualified immunity because it finds the claim is insufficiently pled. 25 Claim Nine is limited to actions or omissions occurring on April 2, 2021. From the 26 Complaint, Egbert's actions/omissions included: 27 1) Not following "protocol" when informing A.K. that Plaintiffs had custody by 28 telling A.K. that "your parents won, they are coming to get you"; 1 2) Informing the Crisis Response Team that A.K.'s dependency case was 2 closed; 3 3) Not disclosing the "extent of A.K.'s deterioration"; 4 4) "Giving false and misleading information about Plaintiffs and their 5 intentions" to Defendants AZDCS Investigator Necoechea and supervisor 6 Rojas-Adnachiel, who then prepared and approved the submission of the 7 Second CAR Order." 8 (Id. at ¶¶ 143, 239–40.) 9 These allegations do not state a prima facie claim for First Amendment retaliation 10 because (1) Plaintiffs have not established their protected speech was a motivating factor 11 for Egbert's actions and (2) Plaintiffs cannot show but-for causation. In general, the Court 12 agrees with the Magistrate Judge that it is more likely that Egbert's responses that day were 13 in reaction to a swiftly changing situation. See Iqbal, 556 U.S. at 679 (finding the court 14 must draw all reasonable inferences in non-moving parties favor but must also assess whether there are "more likely explanations" for a defendant's conduct). 15 The morning the dependency was dismissed, Egbert truthfully (but perhaps 16 insensitively) informed A.K. the dependency had been terminated. She confirmed the 17 termination with the Crisis Response Team when contacted, before she was informed of 18 A.K.'s suicidal response to the news. Plaintiffs have provided no more than a barren 19 allegation that Egbert was required to follow "protocol"—to tell A.K. in a certain manner 20 of the end of the dependency. Moreover, Plaintiffs have not offered any facts showing the 21 failure to follow said "protocol" was because of their complaints. The information Egbert 22 provided to A.K. would not have materially differed absent Plaintiffs' criticism of AZDCS 23 and Ombudsman Complaint—the dependency was over and Plaintiffs had been awarded 24 custody. 25 Furthermore, the Complaint is unclear about what Plaintiffs mean by A.K.'s 26 "deterioration." A.K. suffered from "anxiety, panic attacks, social anxiety, depression, 27 gender dysphoria, [visual and auditory] hallucinations, self-harm, suicidal ideations, [and 28 a] conflicted relationship with family" well before Egbert's involvement. (See Doc. 1 at ¶¶ 1 20, 112.) The Court can only presume that by "deterioration" Plaintiffs mean A.K.'s alleged 2 marijuana, birth control use, and sexual conduct for which Plaintiffs communicated their 3 concern in the email and Ombudsman Complaint. However, Plaintiffs have not explained 4 how disclosing A.K.'s recreational and sexual activities or discussing the matter with 5 Plaintiffs and Liechty would have resulted in an "appropriate protocol for the transfer of 6 A.K. to an appropriate facility" or prevented the second dependency. (See id. at ¶ 240.) 7 Finally, Plaintiffs have not detailed what specific information Egbert shared or 8 failed to share with Necoechea and Rojas-Adnachiel that led to the second dependency 9 proceeding. Nor have they detailed how any specific information was false or misleading. 10 Although the Court can look to Claim Eleven against Egbert to infer a list of alleged 11 misrepresentations made in the original CAR Application, the Complaint does not indicate 12 whether Egbert knew any information from the original CAR Application was false or 13 misleading and how she knew. The Court will dismiss this claim without leave to amend. 14 VII. CLAIM ELEVEN: JUDICIAL DECEPTION IN THE SECOND CAR APPLICATION – 15 EGBERT, NECOECHEA, & ROJAS-ADNACHIEL Claim Eleven alleges that after A.K. was transported to TPD's Midtown Station, 16 Egbert spoke to Necoechea, who prepared the Second CAR Application with supervisor 17 Rojas-Adnachiel's approval. (Doc. 1 at ¶¶ 243–44.) Plaintiffs claim if the misleading 18 allegations in the Second CAR Order had been omitted, there was no probable cause for 19 removal. (Id. at ¶¶ 245, 249.) 20 The Magistrate Judge determined that this judicial deception claim was 21 insufficiently pled. (Doc. 60 at 37–40.) As in Claim Nine, the Magistrate indicated, the 22 allegations against Egbert did not explain what false statements and misrepresentations 23 were made and so Egbert enjoyed qualified immunity. (Id. at 37.) The Magistrate Judge 24 added it was unclear whether Necoechea knew A.K. had been transferred to TPD's 25 Midtown Station. (Id. at 37, 39.) In fact, the Magistrate noted the Complaint did not 26 describe whose decision it was to take A.K. to Midtown Station and Necoechea's actions 27 could be construed as a failure to check for accuracy, but none amounted to judicial 28 deception. (Id. at 38–39.) Moreover, the Magistrate noted the Complaint did not connect 1 Necoechea's omission to Plaintiffs' right to familial association, and that it was unclear why 2 failing to tell Plaintiffs A.K.'s location constituted judicial deception. (Id. at 38.) 3 Addressing Rojas-Adnachiel, the Magistrate found that "mere approval of an 4 Application does not sufficiently plead facts for a claim of judicial deception," and 5 qualified immunity applied because "liability under a theory of respondeat superior is 6 precluded." (Id. at 39–40.) 7 Plaintiffs claim the Magistrate failed to discuss the "actual misrepresentation and 8 omissions" in Claim Eleven, pointing to paragraphs 243 and 244 of the Complaint. (Doc. 9 73 at 15.) In summary, paragraph 243 says the Second CAR Application falsely asserted: 10 a. Plaintiffs held "an extremely negative perception of" and "extremely unrealistic 11 expectations for" A.K., and A.K. feared for her safety in Plaintiffs' custody; 12 b. A.K. had "100+ cut marks" from wrist to elbow; 13 c. Plaintiffs refused to allow A.K. the level of care recommended by "the officers, 14 group home staff, Tucson Fire, and Mobile Crisis Team"; d. AZDCS was previously granted custody "due to concerns of sexual abuse"; 15 e. No other options existed other than the Second CAR Application; 16 f. Plaintiffs refused the immediate medical help necessary for A.K. 17 (Doc. 1 at ¶ 243.) 18 Furthermore, paragraph 244 contends the Second CAR Application omitted: 19 a. Egbert and her superiors knew Plaintiffs were working with professionals to 20 come up with a plan how best to inform A.K. of the dismissal; 21 b. Egbert knew Plaintiffs were unaware of A.K.'s "decompensation"; 22 c. Egbert's phone call to A.K. "torpedoed the strategy"; 23 d. A.K. did not suffer injuries requiring medical care; 24 e. Crisis Mobile Team Leader Caren Jablonsky and Rojas-Adnachiel approved of 25 Plaintiffs' plan for A.K. "safe release"; 26 f. Necoechea and Rojas-Adnachiel failed to interview Liechty and Plaintiffs about 27 what happened that day and investigate allegations against Plaintiffs. 28 (Doc. 1 at ¶ 244.) 1 a. Egbert 2 In Claim Eleven, some of the misrepresentations mirror those included in the 3 original CAR Order, but it is unclear whether or how Egbert, Necoechea, or Rojas- 4 Adnachiel knew the allegations in the original CAR Order were false or misleading. (See 5 Doc. 1 at ¶¶ 243(a), (c)–(d), (f).) Second, the Complaint concedes Egbert was not on scene 6 on April 2, 2021, and she offered "no help" until she "backgrounded" Necoechea after 7 A.K.'s transfer to Midtown Station. (See id. at ¶¶ 141, 143.) The Complaint has not alleged 8 or explained how Egbert knew of the events of April 2, 2021 between the time she called 9 A.K. until after A.K. was transported, and so it is unclear whether or how Egbert knew and 10 relayed certain misrepresentations about the events of the day to Necoechea. (See id. at ¶¶ 11 243(a)–(d), (f), 244(d)–(g).) Furthermore, as stated in Claim Nine, it is unclear what 12 "decompensation" means. In addition, certain allegations assert misrepresentations made 13 to Plaintiffs, not to a judge, which do not constitute judicial deception. (See e.g., id. at ¶ 14 244(b).) The Complaint states that Egbert was required to follow state statutes and AZDHS 15 policy when formulating the Second CAR Application and did not do so. (Id. at ¶ 245.) 16 Here, however, the Court is unclear whether the same statutory and procedural rules that 17 applied to investigator Kot also applied to case manager Egbert. Moreover, because of the 18 ambiguity about who knew what and how, Plaintiffs have not met the specificity necessary 19 for judicial deception. Like Plaintiffs' retaliation claim, the Court here cannot discern: (1) 20 which statutory and AZDCS policies Egbert was required to follow, (2) whether Egbert 21 knew the original CAR Order contained falsehoods, (3) what specific information Egbert 22 provided to Necoechea and included in the Second CAR Application, (4) how Egbert knew 23 this information was misleading, (5) what alleged misrepresentations were taken from the 24 original CAR Application, (6) why any relayed information was false. However, the 25 addition of facts may remedy this shortcoming. Accordingly, the Court will dismiss Claim 26 Eleven against Egbert without prejudice. 27 b. Necoechea 28 The Complaint alleges Necoechea prepared the CAR Application with the 1 information gleaned from Egbert, Millage, and Officer Muckenthaler. (Id. at ¶ 147.) 2 Plaintiffs assert Necoechea knew he needed more information "and needed to interview the 3 Plaintiffs and collaterals, but he took no such steps." (Id. at ¶ 146.) Like it alleges against 4 Kot, the Complaint states that "Defendant Necoechea's investigative actions were governed 5 by statute, rule and AZDCS policy and procedure . . . [and] the constitutional rights of 6 familial association and due process . . ." 5 (Id. at ¶ 170.) 7 Like their claims against investigator Kot, Plaintiffs allege investigator Necoechea 8 had a duty to investigate and failed to meet these requirements. But Claim Eleven is unclear 9 (1) which rules and procedures Necoechea was required to follow, (2) how Necoechea 10 failed to follow such procedures, (3) whether Necoechea provided information he knew to 11 be false, (4) what specific misrepresentations and omissions were provided by Necoechea, 12 and (5) how the statements were false. Moreover, the Court agrees with the Magistrate 13 Judge that Necoechea's failure to disclose to Plaintiffs that A.K. had been transferred to 14 Midtown Station does not constitute judicial deception. The Court finds this claim is too vague to show Necoechea engaged in judicial 15 deception in the preparation of the Second CAR Order. However, the Court cannot 16 determine that amendment is futile. Therefore, the Court will dismiss Claim Eleven against 17 Necoechea without prejudice. 18 c. Rojas-Adnachiel 19 The Complaint alleges at some time on April 2, 2020, Plaintiff Levi Kirwin told 20 supervisor Rojas-Adnachiel that Plaintiffs had a safety plan in place, approved by A.K.'s 21 therapist Liechty, which included keeping A.K. on suicide watch upon returning home. (Id. 22 at ¶¶ 129, 140.) When A.K. attempted to run into traffic and threatened to kill their parents, 23 Rojas-Adnachiel originally "agreed that that was an appropriate plan." (Id. at ¶ 140.) 24 However, after A.K. was transported to TPD's Midtown Station, Rojas-Adnachiel spoke to 25 26 5 The Court notes this allegation is briefly included in Claim One, a claim that is not against 27 Necoechea. Claim Eleven merely states Necoechea did not conduct interviews of Plaintiffs and collateral contacts. (See id. at 50, ¶ 239; 53, ¶ 244(g).) If Plaintiffs choose to amend, 28 within each claim Plaintiffs must clearly (1) state the defendant's actions and (2) demonstrate how said action led to a constitutional violation. 1 Egbert, who provided "backgrounding" "on the department's past actions." (Id. at ¶ 143.) 2 Rojas-Adnachiel then approved Necoechea's CAR Application, without (1) disclosing she 3 previously approved the safety plan, or (2) interviewing Plaintiffs or collateral contacts. 4 (Id. at ¶¶ 14, 244(f)–(g).) 5 "There is no respondeat superior liability under section 1983." Taylor, 880 F.2d at 6 1045. "A supervisor is only liable for constitutional violations of his subordinates if the 7 supervisor participated in or directed the violations, or knew of the violations and failed to 8 act to prevent them." Id.; Maxwell, 708 F.3d at 1086. "Qualified immunity attaches when 9 an official's conduct does not violate clearly established statutory or constitutional rights 10 of which a reasonable person would have known." Kisela v. Hughes, 138 S. Ct. 1148, 1152 11 (2018) (per curiam). 12 The Court agrees with the Magistrate Judge—Rojas-Adnachiel's actions do not 13 amount to judicial deception and qualified immunity applies. There are no allegations 14 Rojas-Adnachiel directed or knew of any deception and failed to act. Rojas-Adnachiel's prior approval of a safety plan is inconsequential after the superseding events. The situation 15 changed swiftly, A.K. tried to commit suicide, threatened further self-harm if returned to 16 Plaintiffs, threatened to kill Plaintiffs, and was transferred to TPD custody. A reasonable 17 caseworker would not have known failing to disclose her earlier approval of a safety plan 18 amounted to a constitutional violation. Finally, a reasonable supervisor would not have 19 known that her approval of background facts sworn and provided by Necoechea violated 20 Plaintiffs' rights. The Court will dismiss Claim Eleven as to Rojas-Adnachiel with 21 prejudice. 22 VIII. CLAIM THIRTEEN: JUDICIAL DECEPTION IN PETITION II: EGBERT, NECOECHEA, 23 AND ROJAS-ADNACHIEL 24 Claim Thirteen alleges Defendants Egbert, Necoechea, and Rojas-Adnachiel 25 violated Plaintiffs' right to familial association when they made misrepresentations and 26 omissions to the AAG, who then prepared and submitted Petition II. (Doc. 1 at 55.) 27 The Magistrate Judge found the allegations in Claim Thirteen did not meet the 28 heightened pleading standard and the communications between Defendants and the AAG 1 "fall under attorney/client privilege as submitted by [AZ]DCS Defendants." (Doc. 60 at 2 47–48.) 3 Plaintiffs claim the Magistrate failed to take the Complaint's allegations as true, 4 applied the wrong standard, failed to consider whether the allegations constituted judicial 5 deception, and erroneously dismissed based on attorney/client privilege. (Doc. 73 at 18– 6 20.) 7 a. Immunity 8 AZDCS Defendants' Motion to Dismiss argued they were entitled to absolute and 9 prosecutorial immunity for "their submission of [Petition II] to the court as evidence in 10 litigation" regardless of how they pursued the dependency. (Doc. 44 at 26.) AZDCS 11 Defendants claimed they "had no obligation to provide information that the Plaintiffs 12 preferred" over their own allegations. (Id. at 27.) 13 "[S]ocial workers are 'not entitled to absolute immunity from claims that they 14 fabricated evidence during an investigation or made false statements in a dependency petition affidavit that they signed under penalty of perjury, because such actions aren't 15 similar to discretionary decisions about whether to prosecute." Costanich, 627 F.3d at 1109 16 (quoting Beltran v. Santa Clara Cnty., 514 F.3d 906, 908 (9th Cir. 2008)); Hervey v. Estes, 17 65 F.3d 784, 788 (9th Cir. 1995) ("In a civil rights case, if an officer submitted an affidavit 18 that contained statements he knew to be false or would have known were false had he not 19 recklessly disregarded the truth and no accurate information sufficient to constitute 20 probable cause attended the false statements, . . . he cannot be said to have acted in an 21 objectively reasonable manner, and the shield of qualified immunity is lost.") (citations and 22 quotation marks omitted). 23 AZDCS Defendants' attempt to shield themselves from liability through absolute 24 and prosecutorial immunity is unavailing when the Complaint alleges judicial deception 25 occurred during the investigation and filing of a dependency petition. See Benavidez, 993 26 F.3d at 1146 (There is "a constitutional right . . . to be free from judicial deception and 27 fabrication of evidence in the context of civil child custody cases."). Although Egbert and 28 Necoechea are not protected by qualified or absolute immunity, the Court must still address 1 whether the allegations of judicial deception, as pleaded in the Complaint, meet the 2 pleading standard. 3 b. Attorney/Client Privilege 4 Plaintiffs' Objection argues that the information provided by AZDCS Defendants to 5 the AAG is not protected by the attorney/client privilege because AZDCS Defendants "are 6 not the clients of the AAG." (Doc. 73 at 20 (first citing Doubleday v. Ruh, 149 F.R.D. 601, 7 612–14 (E.D. Cal. 1993); then citing Merritt v. Arizona, No. CV-17-04540-PHX-DGC, 8 2018 WL 3729757 (D. Ariz. Aug. 6, 2018)). AZDCS Defendants do not address the 9 attorney/client privilege in their response.6 The Court can find no case law stating that 10 parents are prevented from discovering the information used to procure a petition of 11 removal of their child because there is an attorney/client relationship between child 12 services and the AAG. However, Plaintiffs case law is not precisely on point; the cases do 13 not address the relationship between DCS and the AAG. The Court will not preclude this 14 claim based on privilege at this time but, should Defendants later assert the privilege, the Court may require further briefing on the issue. 15 The Court now turns to the factual allegations in Claim Thirteen against Egbert, 16 Necoechea, and Rojas-Adnachiel. 17 c. Egbert 18 A judicial deception claim must establish that there was "(1) a misrepresentation or 19 omission (2) made deliberately or with a reckless disregard for the truth, that was (3) 20 material to the judicial decision." Benavidez, 993 F.3d at 1147. A plaintiff must state "the 21 who, what, when, where, and how of the misconduct charged, including what is false or 22 misleading about a statement, and why it is false[.]" Id. at 1145. 23 As pleaded, the judicial deception claim against Egbert fails. Like it could not with 24 Claim Eleven, the Court cannot discern: (1) which statutes and AZDHS policies Egbert 25 was mandated to follow, (2) whether Egbert knew of any falsehoods in the original CAR 26 Order, (3) what information Egbert provided to the AAG, (4) how Egbert knew this 27

28 6 Insofar as Defendants are also claiming attorney/client privilege for Claim Three in the original CAR Application, the Court's analysis is the same. 1 information was misleading, (5) what misrepresentations were from the original CAR 2 Application, (6) why any information was false. The Court finds the allegations are not 3 specific enough to state a judicial deception claim against Egbert and will dismiss this 4 claim without prejudice. 5 d. Necoechea 6 The claim against Necoechea also fails because the Court cannot discern what false 7 information was provided by Necoechea to the AAG. The Complaint merely states 8 Necoechea contacted the AAG, "and supplied her with alleged facts supporting" removal, 9 then prepared and submitted a dependency petition worksheet. (Doc. 1 at ¶ 154.) 10 Like Claim Eleven, Claim Thirteen offers no description about (1) whether 11 Necoechea provided information he knew to be false, (2) what specific misrepresentations 12 and omissions Necoechea provided, and (3) how any statements were false. It is possible 13 that amendment may clarify Necoechea's involvement if Plaintiffs can delineate the 14 knowledge and actions taken by Necoechea. Therefore, the Court will dismiss the claim against Necoechea with leave to amend. 15 e. Rojas-Adnachiel 16 "There is no respondeat superior liability under section 1983." Taylor, 880 F.2d at 17 1045. "A supervisor is only liable for constitutional violations of his subordinates if the 18 supervisor participated in or directed the violations, or knew of the violations and failed to 19 act to prevent them." Id.; Maxwell, 708 F.3d at 1086. 20 For the reasons stated in Section VII(c), Rojas-Adnachiel enjoys qualified immunity 21 and this claim will be dismissed. 22 IX. PUNITIVE DAMAGES 23 A § 1983 claim may allow for punitive damages "when a defendant's conduct was 24 driven by evil motive or intent, or when it involved a reckless or callous indifference to the 25 constitutional rights of others." Spears v. Ariz. Bd. of Regents, 372 F. Supp. 3d 893, 926 26 (D. Ariz. 2019) (quoting Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005)). "An act is 27 done in reckless disregard of the plaintiff's rights if, under the circumstances, it reflects 28 complete indifference to the plaintiff's safety, rights, or the defendant acts in the face of a 1 perceived risk that its actions will violate the plaintiff's rights under federal law." Id. 2 The Magistrate Judge reasoned that dismissal of punitive damages was appropriate 3 because "the facts of the Complaint lack the evil motive or intent or reckless or callous 4 indifference to the constitutional rights of others . . . ." (Doc. 60 at 5.) The Magistrate Judge 5 referenced Arizona Revised Statute § 12-820.04 because AZDCS Defendants argued the 6 statute precluded Plaintiffs from seeking punitive damages against state employees acting 7 within the scope of their employment. (Id. at 48.) However, the Magistrate Judge ultimately 8 found that the "hostility" alleged did not amount to the "evil" required to recover punitive 9 damages under federal law, 18 U.S.C. § 1983. (Id.) 10 Based on the allegations in the Complaint, the Court finds dismissing the claims for 11 punitive damages at this juncture is inappropriate. The Complaint alleges that Defendant 12 Kot deviated from statutory and internal policies, misrepresented and omitted facts in the 13 CAR Application to procure probable cause to seize A.K., and did so with the intention of 14 "breach[ing] the familial association of parents and child" and "obstruct[ing] the parents' reconciliation," no matter whether the evidence supported the dependency or not. (Doc. 1 15 at ¶¶ 60, 153.) This intention, if proven, could constitute complete indifference to Plaintiffs' 16 rights. The request to dismiss punitive damages is denied without prejudice. 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 X. AMENDMENT 2 If Plaintiffs choose to amend any claims dismissed without prejudice, they must 3 write short, plain statements telling the Court: (1) the constitutional right Plaintiffs believe 4 was violated; (2) the name of the Defendant who violated the right; (3) specifically what 5 that Defendant did or failed to do; (4) how the action or inaction of that Defendant is 6 connected to the violation of Plaintiffs' constitutional right; and (5) what specific injury 7 Plaintiffs suffered because of that Defendant's conduct. See Rizzo v. Goode, 423 U.S. 362, 8 371–72, 377 (1976). For each constitutional violation against a Defendant, Plaintiffs must 9 indicate how this constitutional right was clearly established and provide the applicable 10 case law. Allegations of judicial deception must meet the heightened pleading standard as 11 fully outlined above. 12 If Plaintiffs fail to affirmatively link the conduct of each named Defendant with the 13 specific injury suffered by Plaintiffs, the allegations against that Defendant will be 14 dismissed for failure to state a claim. Conclusory allegations that a Defendant has violated a constitutional right are not acceptable and will be dismissed. 15 Accordingly, IT IS ORDERED: 16 1) Plaintiffs' Motion for Leave Nunc Pro Tunc to Reply to AZDCS's Response to 17 Plaintiffs' Objections is DENIED. (Doc. 83.) 18 2) Plaintiffs' Reply is STRICKEN from the record. (Doc. 82.) 19 3) The Report and Recommendation is ADOPTED IN PART and DENIED IN 20 PART as described in this Order. (Doc. 60.) 21 4) AZDCS Defendants' Motion to Dismiss is GRANTED IN PART and DENIED 22 IN PART as described in this Order. (Doc. 44.) 23 5) Defendant Kot must ANSWER Claims One and Three. 24 6) Claims One and Three against Defendants Nido and Jimenez are DISMISSED 25 WITH PREJUDICE. 26 7) Claims Six, Twelve, Fourteen and Fifteen are DISMISSED WITH 27 PREJUDICE. 28 8) Claims Four and Eight are DISMISSED WITHOUT PREJUDICE. 1 9) Claim Nine against Defendant Egbert is DISMISSED WITH PREJUDICE. 2 10)Claim Eleven against Defendants Egbert and Necoechea are DISMISSED 3 WITHOUT PREJUDICE. 4 11)Claim Eleven against Defendant Rojas-Adnachiel is DISMISSED WITH 5 PREJUDICE. 6 12)Claim Thirteen against Defendants Egbert and Necoechea are DISMISSED 7 WITHOUT PREJUDICE. 8 13)Claim Thirteen against Defendant Rojas-Adnachiel is DISMISSED WITH 9 PREJUDICE. 10 14)Defendants Fuentes, Chamberlain, and Machiche are DISMISSED WITH 11 PREJUDICE. 12 Dated this Ist day of March, 2024. 13 14 15 / Dp i \> Cat, 16 Honorable Raner C. Collins 17 merior United States District Judge 18 19 20 21 22 23 24 25 26 27 28

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