Settlemeyer v. Ditsch

• Court: District Court, D. Arizona
• Decided: May 4, 2021
• Docket: 4:20-cv-00221
• Status: Unknown

Opinion

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

9 Jarett Settlemeyer, et al., No. CV-20-00221-TUC-CKJ

10 Plaintiffs, ORDER

11 v.

12 Meghann Ditsch, Jody Rubin, and Diana Ouillette, 13 Defendants. 14 15 16 Pending before the Court is Defendants’ Motion to Dismiss First Amended 17 Complaint (Doc. 11) and Plaintiffs’ Motion for Leave to File Supplemental Memorandum 18 in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint 19 (Doc. 21). For the reasons that follow, Defendants’ Motion to Dismiss is GRANTED IN 20 PART AND DENIED IN PART, and Plaintiffs’ Motion for Leave to File Supplemental 21 Memorandum is DENIED. 22 BACKGROUND1 23 Plaintiffs Jarett and Eldon “Kitt” Settlemeyer are the parents of minors JS, CS, and 24 SS. (Doc. 10 at 2) In April and May of 2018, two hotline reports were made to the Arizona 25 Department of Child Safety (“Department”), alleging possible abuse or neglect of the 26 Settlemeyer children. Id. at 3-4. Defendant Meghann Ditsch (“Ditsch”), an investigator

27 1 In analyzing a motion to dismiss, the Court accepts as true all well-pleaded allegations of material fact and construes them in the light most favorable to the non-moving party. 28 Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). 1 with the Department, was assigned to investigate both reports. Id. at 3. On at least two 2 occasions, Ditsch interviewed the children at their respective schools. Id. at 3-4. 3 After investigating the April hotline report, which included interviewing the 4 Settlemeyers, Ditsch told the Settlemeyers that the Department would be issuing a letter 5 finding the report to be unsubstantiated. Id. at 4. During the investigation of the May 6 hotline report, however, CS told a Marana police officer that his mother beat him 7 “regularly” with a “black leather belt and a paddle.” Id. at 5. Ditsch informed the 8 Settlemeyers that CS had also expressed fear of his mother. Id. at 6. Ditsch said the 9 allegation of fearfulness led to the Department’s decision that Kitt should not be alone with 10 any of the children until a Team Decision Meeting (“TDM”) was held. Id. A TDM 11 consisted of a discussion between Department representatives and the parents. On 12 May 16, 2018, a TDM with the Settlemeyers was held. Id. at 7. 13 Defendant Ditsch, her supervisor Defendant Jody Rubin (“Rubin”), and the TDM 14 facilitator Defendant Diana Ouillette (“Ouillette) attended the TDM. Id. at 7-8. During 15 the meeting, Ouillette stated, “it sounds like there’s a lot of minimization, a lot of not 16 working, a lot of shaming and blaming towards the Department.” Id. at 9. Both Ouillette 17 and Ditsch also accused the Settlemeyers of a lack of cooperation, with Ditsch adding, 18 “[t]he way that you guys are reacting to us, especially you Kitt, is not helping the situation. 19 Because it’s more likely for us to believe that things are happening in the home when you 20 behave that way[.]” Id. at 10. Rubin suggested that the Settlemeyers refrain from using 21 physical discipline on their children due to two open reports of abuse and neglect and 22 because at least one of the children had special needs. Id. Ditsch also stated:

23 What I am going to decide to do, because it will also give you guys an 24 opportunity to contest this, because that's clearly what you want to do, I am wanting to file what's called an in-home dependency petition with the Yuma 25 [sic] County Juvenile Court, which will state that the children will remain in your physical custody. However, DCS, the state of Arizona, will have legal 26 custody[.]

27 Id. When the Settlemeyers attempted to understand what Ditsch was saying, Ouillette cut 28 them off, stating, “You’ve heard the decision. We need to talk about moving forward then.” 1 Id. at 11. 2 Six days after the TDM, the Arizona Attorney General filed an in-home dependency 3 petition in juvenile court. Id. at 11-12. The petition indicated that the Settlemeyers abused 4 and neglected their children. Id. Plaintiffs allege that in the absence of material 5 misrepresentations and omissions in the Department’s report to the Attorney General, there 6 would have been no probable cause to find that Plaintiffs had abused or neglected their 7 children. Id. at 12. Between May 22, 2018, when the dependency petition was filed, and 8 June 1, 2018, Defendants formalized their findings against the Settlemeyers in a report to 9 be submitted to the juvenile court. Id. at 11. 10 The Settlemeyers contend that the Department’s report included the following 11 misrepresentations: (i) Plaintiffs’ discipline was “harsh,” which neither parent was able to 12 recognize; (ii) Jarett’s ability to recognize threats to his children was “diminished” because 13 Jarett failed to recognize CS’ fear of his mother; (iii) Kitt’s tolerance as a caregiver was 14 “diminished” because the children reported that Kitt could become “out of control and 15 angry”; (iv) Marana police officers stated concerns to Ditsch, which included the concern 16 that “Mrs. Settlemeyer’s hostilness [sic] to them left concerned [sic] about how she reacts 17 to her children”; (v) the officers also had concerns for Jarett’s truthfulness; (vi) the 18 Settlemeyers did not show for the TDM; (vii) one of the children’s school had reported that 19 the Settlemeyers were “hard to reach” and “difficult to get ahold of”; (viii) during the TDM, 20 “Mrs. Settlemeyer stated she would participate [in DCS-facilitated] services but only 21 because she was forced to”; (ix) both of the Settlemeyers stated their unwillingness to work 22 with the Department’s in-home team; (x) there was a documented history/pattern of 23 physical abuse by Kitt; (xi) and that “[d]ue to the previous child abuse history by Mrs. 24 Settlemeyer, the current fearfulness of the child, the pattern of inappropriate discipline, the 25 parents’ aggressive stance towards [the Department] and police; and their unwillingness to 26 work cooperatively with [the Department], the Department fe[lt] court oversight [was] 27 needed[.]” Id. at 14-15. 28 On June 4, 2018, at a preliminary protective hearing, the Arizona Attorney General 1 submitted the Department’s report to the juvenile court. Id. at 12; Doc. 11-2 at 17. On 2 January 14, 2019, after six days of a contested dependency hearing spanning over two 3 months, the juvenile court granted the Settlemeyer’s motion for a directed verdict, 4 dismissed the dependency, and entered judgment in the Settlemeyer’s favor. Doc. 11-2 at 5 20-40. 6 PROCEDURAL HISTORY 7 On September 10, 2020, Plaintiffs filed their First Amended Complaint (“FAC”). 8 (Doc. 10) On September 24, 2020, Defendants responded with a Motion to Dismiss 9 Plaintiff’s First Amended Complaint. (Doc. 11) On October 20, 2020, Plaintiffs filed a 10 Memorandum in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ First Amended 11 Complaint. (Doc. 17) On October 30, 2020, Defendants filed a Reply in Support of 12 Motion to Dismiss Plaintiffs’ First Amended Complaint. (Doc. 20) On January 21, 2021, 13 Plaintiffs filed a Motion for Leave to File Supplemental Memorandum in Opposition to 14 Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint. (Doc. 21) On 15 February 4, 2021, Defendants filed a Response to Plaintiffs’ Motion for Leave to File 16 Supplemental Memorandum in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ 17 First Amended Complaint. (Doc. 23) This Order follows. 18 LEGAL STANDARD 19 Dismissal of a complaint is appropriate when the facts alleged fail to “state a claim 20 upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). This is true if there is a (1) 21 “lack of a cognizable legal theory” or (2) “the absence of sufficient facts alleged under a 22 cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 23 1988). The Supreme Court has ruled that a plaintiff must allege “enough facts to state a 24 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 25 (2007). While a complaint need not plead “detailed factual allegations,” the factual 26 allegations it does include “must be enough to raise a right to relief above the speculative 27 level.” Id. at 555; Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“If there are two 28 alternative explanations, one advanced by defendant and the other advanced by plaintiff, 1 both of which are plausible, plaintiff's complaint survives a motion to dismiss[.]”). If a 2 court dismisses a complaint it should grant leave to amend unless the “pleading could not 3 possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N. Cal. 4 Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). 5 I. Exhibits Attached to Motion to Dismiss 6 As a preliminary matter, the Court notes Defendants have attached ten exhibits to 7 their motion to dismiss, see Doc. 11-2 at 1-45, and that Plaintiffs have included Defendants’ 8 report with their FAC, see Doc. 10-1 at 1-34. This raises the question of which documents 9 should be considered by the Court in resolving the motion at hand. 10 Plaintiffs object to the exhibits attached to Defendants’ motion arguing that the 11 exhibits contain hearsay and that a court may not take judicial notice of findings of facts 12 from another case or take judicial notice of factual matters that are in dispute. (Doc. 17 at 13 4-5) Plaintiffs suggest that the Court convert Defendants’ motion into one for summary 14 judgment if the Court considers the exhibits for the facts which they contain. Id. at 5. 15 Defendants respond by arguing that it is permissible to attach court documents and records 16 to a motion to dismiss and that such inclusion does not automatically convert the motion 17 into one for summary judgment. (Doc. 19 at 1-2) Defendants also assert that the facts 18 outlined in the exhibits demonstrate that Plaintiffs cannot prevail on their judicial deception 19 claim, as said claim can only survive if a court order results in a deprivation of a liberty 20 interest. Id. at 3. 21 In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the 22 complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). 23 A court must normally convert a Rule 12(b)(6) motion into a motion for summary judgment 24 if it “considers evidence outside the pleadings[.]” United States v. Ritchie, 342 F.3d 903, 25 907 (9th Cir. 2003). “A court may, however, consider certain materials—documents 26 attached to the complaint, documents incorporated by reference in the complaint, or matters 27 of judicial notice—without converting the motion to dismiss into a motion for summary 28 judgment.” Id. at 908. Incorporation by reference refers to “documents whose contents are 1 alleged in a complaint and whose authenticity no party questions, but which are not 2 physically attached to the pleading[.]” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 3 1994), overruled by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). To 4 incorporate such a document, the plaintiff must “refer extensively to the document” or “the 5 document [must] form[ ] the basis of the plaintiff’s claim.” Ritchie, 342 F.3d at 908. 6 “[T]he mere mention of the existence of a document is insufficient to incorporate the 7 contents of [that] document.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 8 2010). 9 While the Court may consider documents outside of the complaint, the United States 10 Court of Appeals for the Ninth Circuit has cautioned that recognizing such material risks 11 premature dismissal of plausible claims. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 12 988, 998 (9th Cir. 2018). The court has also warned that “[i]f defendants are permitted to 13 present their own version of the facts at the pleading stage—and district courts accept those 14 facts as uncontroverted and true—it becomes near impossible for even the most aggrieved 15 plaintiff to demonstrate a sufficiently ‘plausible’ claim for relief.” Id. at 999. This Court 16 has previously considered documents and videos referenced and incorporated into a first 17 amended complaint in ruling on a 12(b)(6) motion to dismiss; however, the fact scenario 18 presented in Spears v. Arizona Board of Regents, 372 F. Supp. 3d 893, 908 (D. Ariz. 2019), 19 is inapposite to the one at hand. 20 Where appropriate, and for the purpose of understanding the procedural history of 21 the juvenile court proceeding, the Court takes judicial notice of the court documents and 22 records attached to Defendants’ motion to dismiss. Under Federal Rule of Evidence 201, 23 a court may take judicial notice of “matters of public record”, but it may not take judicial 24 notice of a fact that is “subject to reasonable dispute.” Lee v. City of Los Angeles, 250 F.3d 25 668, 689 (9th Cir. 2001). Additionally, “when a court takes judicial notice of another 26 court's opinion, it may do so not for the truth of the facts recited therein, but for the 27 existence of the opinion, which is not subject to reasonable dispute over its authenticity. 28 Id. at 690 (internal quotation marks omitted). 1 The Court also takes judicial notice of the minute entries attached to Defendants’ 2 motion to dismiss. See Doc. 11-2 at 16-37. The entries are only considered in confirming 3 the undisputed existence of the juvenile court proceeding. At this stage of the litigation, 4 any further consideration of the entries would be improper, and the Court declines to accept 5 Defendants’ invitation to draw any adverse inferences from the entries. 6 As for the in-home dependency petition, see Doc. 11-2 at 2-15, the petition is not a 7 matter of public record and Defendants fail to provide sufficient reference in the FAC for 8 the Court to consider the contents of the petition. While the petition’s existence is 9 mentioned numerous times in the FAC, its contents are only alluded to in two brief 10 paragraphs. See Doc. 10, ¶¶ 49, 50 at 11-12. Additionally, mention of the petition is 11 limited to outlining its overall gist and to support the allegation that the Assistant Attorney 12 General assigned to the juvenile case relied upon Defendants’ misinformation in drafting 13 it. This hardly constitutes “extensive” reference to the document, and the petition itself is 14 not the foundation for Plaintiffs’ claims. Rather, it is Defendants’ alleged material 15 misrepresentations and omissions in their report to the juvenile court which forms the crux 16 of Plaintiffs’ FAC. As such, Defendants’ motion to dismiss is evaluated on the adequacy 17 of Plaintiffs’ allegations and not on an inappropriate balancing of disputed facts found in 18 documents attached to their motion. 19 II. Statute of Limitations 20 The Court rejects Defendants’ argument that Plaintiffs’ First Amendment retaliation 21 claim is barred by the statute of limitations. See Doc. 11 at 6-7. “Actions brought pursuant 22 to 42 U.S.C. § 1983 are governed by the forum state's statute of limitations for personal 23 injury actions.” Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001). Arizona’s personal 24 injury statute of limitations is two years “after the cause of action accrues.” Ariz. Rev. 25 Stat. Ann. § 12-542 (2021). “While state law determines the period of limitations, federal 26 law determines when a cause of action accrues.” Cline v. Brusett, 661 F.2d 108, 110 (9th 27 Cir. 1981) (emphasis added). The statute of limitations begins to run when the plaintiff 28 “knows or has reason to know of the injury which is the basis for his action.” Elliot v. City 1 of Union City, 25 F.3d 800, 802 (9th Cir. 1994) (quoting Norco Constr., Inc. v. King Cnty., 2 801 F.2d 1143, 1145 (9th Cir. 1986)). Dismissal is only appropriate if a plaintiff cannot 3 plausibly allege a set of facts demonstrating the timeliness of the claim. See Twombly, 550 4 U.S. at 570. “The defendant . . . bears the burden of proof as to each element of a statute 5 of limitations based affirmative defense.” Ayala v. Frito Lay, Inc. 263 F. Supp. 3d 891, 6 914 (E.D. Cal. 2017) (citing Tovar v. U.S.P.S., 3 F.3d 1271, 1284 (9th Cir. 1993)). 7 The Court finds Plaintiffs have plausibly alleged facts demonstrating the timeliness 8 of their claim. On May 22, 2020, Plaintiffs filed their original complaint. (Doc. 1) 9 May 22, 2020, is two years from the filing of the dependency petition, which was allegedly 10 supported by material misrepresentations and omissions. See Doc. 11-2 at 2-15. 11 Defendants allegedly prepared their report to the juvenile court between May 22, 2018, and 12 June 1, 2018, and the Attorney General admitted the report at a preliminary protective 13 hearing in juvenile court on June 4, 2018, see Doc. 11-2 at 17. 14 Taking the allegations of material fact in the FAC as true and construing them in the 15 light most favorable to Plaintiffs, it is plausible to conclude that Plaintiffs were not aware 16 that they could lose legal custody of their children until they received Defendants’ report 17 to the juvenile court on or after June 1, 2018. Afterall, it allegedly took six days for 18 Defendants to draft their dependency report, and Plaintiffs presumably failed to have access 19 to the report, which included the Department’s custody recommendations, until it was 20 admitted into evidence at the preliminary protective hearing on June 4, 2018. Accordingly, 21 Plaintiffs’ First Amendment retaliation claim plausibly falls within the two-year statute of 22 limitations and dismissal is inappropriate on this ground. 23 III. First Amendment Retaliation 24 The Court also finds that Plaintiffs successfully plead a First Amendment retaliation 25 claim. To state a First Amendment retaliation claim, a plaintiff must allege (1) engagement 26 in a constitutionally protected activity, (2) the defendant’s actions would “chill” such 27 activity, and (3) the activity was a substantial or motivating factor in the defendant’s 28 actions. Capp v. Cnty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019). Criticism of a 1 government entity is constitutionally protected, id. at 1054, and courts utilize an objective 2 standard for the “chilling” factor of the pleading standard, determining whether the 3 defendant’s actions would chill an ordinary individual from continuing the activity. Pinard 4 v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 771 (9th Cir. 2006). 5 In Capp v. County of San Diego, the Ninth Circuit observed that losing custody of 6 one’s children is “a severe consequence that would chill the average person” from 7 continuing the activity. 940 F.3d 1046, 1055 (9th Cir. 2019). There, the court found the 8 “chilling” factor was plausibly alleged, as the threat of losing custody of one’s children, 9 alone, was sufficient to chill the average person from voicing criticism of official conduct. 10 Id. at 1055. As to the causation prong, the court observed that “speculation is hardly 11 unusual in retaliation cases,” and that the mere existence of a legitimate motive failed to 12 mandate dismissal. Id. at 1055-56. The Ninth Circuit has also concluded that a sufficient 13 first amendment retaliation claim can stem from a “chronology of events from which 14 retaliation can be inferred,” such as when a defendant allegedly mentions the 15 constitutionally protected activity near in time to the retaliatory action(s). Watison v. 16 Carter, 668 F.3d 1108, 1114, 1116 (9th Cir. 2012) 17 Plaintiffs have sufficiently alleged the first two prongs of their claim. There is no 18 question that the Settlemeyer’s well-documented and extensive criticism of the Department 19 is constitutionally protected and that Defendants’ threats of taking custody of their children 20 has been recognized as chilling. Additionally, the Court finds that Plaintiffs have 21 sufficiently alleged the causation prong of their retaliation claim, as they contend 22 Defendants’ statements were designed to inhibit their speech and came in close proximity 23 to the alleged retaliatory action of supporting an in-home dependency petition and filing a 24 false report with the juvenile court. 25 IV. Dismissal of Defendant Ouillette 26 In their Motion to Dismiss, Defendants request that Ouillette be dismissed. The 27 Court declines to do so. Plaintiffs allege Defendant Ouillette offered negative comments 28 in response to the their constitutionally protected criticism of the Department. (Doc. 10 at 1 9) Plaintiffs also allege that Ouillette prepared the TDM summary, which included 2 material misrepresentations and omissions and was used as the basis of the dependency 3 petition. Thus, Ouillette participated in the same occurrence that gave rise to the claims 4 against Ditsch and Rubin, and her role in the Department’s alleged retaliation involves a 5 common question of law and fact with the remaining Defendants. 6 V. Judicial Deception 7 To adequately plead a judicial deception claim, a plaintiff must allege “(1) the 8 defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused 9 the plaintiff's deprivation of liberty.” Keates v. Koile, 883 F.3d 1228, 1240 (9th Cir. 2018). 10 The second prong of the standard is a question of materiality, requiring the plaintiff to show 11 “the juvenile court would have declined to issue the order had [the defendant] been 12 truthful.” Greene v. Camreta, 588 F.3d at 1011, 1035 (9th Cir. 2009), vacated in part on 13 other grounds, 563 U.S. 692 (2011). It is well understood that the Due Process Clause of 14 the Fourteenth Amendment protects a liberty interest that includes the right to family 15 integrity, familial association, and directing the upbringing of children. See Troxel v. 16 Granville, 530 U.S. 57, 65 (2000) (“[T]he interest of parents in the care, custody, and 17 control of their children [ ] is perhaps the oldest of the fundamental liberty interests 18 recognized by this Court”). Deliberately falsifying evidence in a child abuse investigation 19 or including false evidentiary statements in supporting a declaration violates this 20 constitutional right. Constanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1115 21 (9th Cir. 2010). 22 The Court notes, however, that similar judicial deception claims typically stem from 23 an order for removal, which often involves a Fourth Amendment claim. See, e.g., 24 Kirkpatrick v. Cty. of Washoe, 843 F.3d 784 (9th Cir. 2015); Greene, 588 F.3d at 1016. 25 Caselaw does not support, and Plaintiffs fails to cite, a survivable claim for judicial 26 deception resulting in unwarranted interference with familial association without a removal 27 order. Here, Plaintiffs prevailed in juvenile court and never lost physical or legal custody 28 of their children. As such, the Court must adhere to precedent requiring a plaintiff to 1 “establish that an actual loss of custody occurred,” and that “the mere threat of separation 2 or being subject to an investigation” fails to meet this standard. Dees v. Cnty. of San Diego, 3 960 F.3d 1145, 1152 (9th Cir. 2020); see also Capp, 940 F.3d at 1060 (“Plaintiffs do not 4 allege that [plaintiff] actually lost custody of his children as a result of [d]efendants’ alleged 5 misconduct. [Plaintiff] might have been subjected to an investigation by the [defendant], 6 but that alone is not cognizable as a violation of the liberty interest in familial relations.”) 7 Plaintiffs fail to allege any actual loss of custody of their children. Since Plaintiffs’ 8 judicial deception claim is based on allegedly false information submitted to the Attorney 9 General and juvenile court, any previous actions taken, e.g., the requirement that Kitt not 10 be left alone with the children, fail to fall within the scope of this claim. Accordingly, 11 Plaintiffs fail to raise a legally cognizable deprivation of liberty claim under the Fourteenth 12 Amendment, and the claim is dismissed. 13 While leave to amend is to be “freely given when justice so requires”, Fed. R. Civ. 14 P. 15(a), in evaluating whether to allow leave, the Court must consider any “futility of the 15 proposed amendment,” Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 16 1989). And “futility of amendment can, by itself, justify the denial of a motion for leave 17 to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Plaintiffs’ FAC 18 demonstrates that they failed to suffer a cognizable injury. Even taking the facts in the 19 light most favorable to them, Plaintiffs’ concession that the juvenile court found in their 20 favor makes amendment futile. See Doc. 10 at 12. Accordingly, Plaintiffs’ judicial 21 deception claim is dismissed with prejudice. 22 VI. Additional Claims in Plaintiffs’ Response 23 Plaintiffs mention a potential claim for malicious prosecution for the first time in 24 their opposition to Defendants’ motion to dismiss. See Doc. 17 at 16. The Court will not 25 examine that claim because it is not contained in Plaintiffs’ FAC. Plaintiffs are required 26 to “give the defendant fair notice of what the claim is and the grounds upon which it rests.” 27 Erickson v. Pardus, 551 U.S. 89, 93, 127 (2007) (cleaned up). Further, “a court may not 28 look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in 1 opposition to a defendant's motion to dismiss.” Schneider v. California Dept. of Corrs., 2 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). Plaintiffs were explicit in laying out their First 3 Amendment retaliation and judicial deception claims, placing each under a headline and 4 asserting grounds for relief in their FAC. See generally, Doc. 10. The same cannot be said 5 for a hypothetical claim of malicious prosecution. 6 VII. Absolute Immunity 7 Defendants are not entitled to absolute immunity for Plaintiffs’ First Amendment 8 retaliation claim. At this stage, while social workers enjoy absolute immunity when 9 making “discretionary, quasi-prosecutorial decisions to institute court dependency 10 proceedings to take custody away from parents[,]” Miller v. Gammie, 335 F.3d 889, 898 11 (9th Cir. 2003), they do not have absolute immunity for all actions “before the institution 12 of judicial proceedings[,]” Meyers v. Contra Costa Cty. Dep't of Soc. Servs., 812 F.2d 13 1154, 1156 (9th Cir. 1987). 14 Absolute immunity extends only to actions aiding in the preparation of the case to 15 the juvenile court or for those subject “to the checks operating on judicial decisionmakers.” 16 Id. at 1157-1158. In Meyers v. Contra Costa County Dep’t of Social Services, the Ninth 17 Circuit found that the social worker’s ordering of Plaintiff from his house fell outside the 18 scope of absolute immunity, as it was neither “advocatory or quasi-judicial.” 812 F.2d 19 1154, 1157 (9th Cir. 1987). Additionally, social workers are not absolutely immune from 20 claims of fabricated evidence or false statements because they “aren’t similar to 21 discretionary decisions about whether to prosecute.” Hardwick v. Cty. of Orange, 844 F.3d 22 1112, 1116 (9th Cir. 2017). 23 Plaintiffs allege Defendants directed Kitt not be alone with any of her children. This 24 was done not only before initiating proceedings but before holding the TDM. The 25 similarity between this action and the ordering of the Meyers plaintiff from his home is 26 noted. Accordingly, Defendants are not shielded by the doctrine of absolutely immunity 27 from Plaintiffs’ First Amendment retaliation claim. 28 1 VIII. Qualified Immunity 2 The Court concludes that Defendants are not shielded by the doctrine of qualified 3 immunity at this stage. Qualified immunity applies only when “conduct does not violate 4 clearly established statutory or constitutional rights of which a reasonable person would 5 have known.” Capp, 940 F.3d at 1053. There is a “longstanding, clearly established right 6 under the First Amendment to be free from retaliation in the form of threatened legal 7 sanctions and other similar means of coercion, persuasion, and intimidation” that includes 8 the threat of losing custody of one’s children. Sampson v. Cnty. of Los Angeles, 974 F.3d 9 1012, 1021 (9th Cir. 2020) (collecting cases). 10 Plaintiffs have sufficiently pleaded a First Amendment Retaliation claim, and the 11 constitutional right which was violated—threatening the loss of child custody—has been 12 clearly established. Accordingly, Defendants are not entitled to qualified immunity on 13 Plaintiffs’ First Amendment Retaliation claim. 14 IX. Motion for Leave to File Supplemental Memorandum 15 Because the Court finds Defendants are not shielded by the doctrine of qualified 16 immunity at this stage of the litigation, it declines to fully explore the arguments against 17 qualified immunity in Plaintiff’s motion to file a supplemental memorandum, and the 18 motion is denied. 19 X. Punitive Damages 20 Punitive damages against individual government officials are allowed and can often 21 be the “only significant remedy” for § 1983 claims with limited compensable injury. 22 Carlson v. Green, 446 U.S. 14, 22, n.9 (1980). In order to sufficiently plead punitive 23 damages, a plaintiff must allege a defendant’s conduct was “motivated by evil motive or 24 intent” or “involves reckless or callous indifference to the federally protected rights of 25 others.” Smith v. Wade, 461 U.S. 30, 56 (1983). Plaintiffs’ allegations meet this standard 26 and the Court will allow the request for punitive damages to stand. 27 28 1 IT IS ORDERED: 2 1. Defendants’ Motion to Dismiss First Amended Complaint (Doc. 11) is 3 GRANTED IN PART AND DENIED IN PART. Plaintiffs’ First Amendment 4 retaliation claim may proceed. Plaintiffs’ judicial deception claim is DISMISSED 5 WITH PREJUDICE. 6 2. Plaintiffs’ Motion for Leave to File Supplemental Memorandum in 7 Opposition to Defendants’ Motion to Dismiss Plaintiffs’ First Amended 8 Complaint (Doc. 21) is DENIED. 9 10 Dated this 4th day of May, 2021. 11 1 Ei LC Decyamaens 13 Honorable Cin . J6fgenson United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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