1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 KERA TURNER, et al., Case No. 3:23-cv-00407-ART-CSD 4 Plaintiffs, ORDER PARTIALLY GRANTING 5 v. MOTION TO DISMISS
6 COUNTY OF WASHOE, et al.,
7 Defendants.
8 9 Pro se Plaintiffs Kera and Joseph Turner bring this action against 10 Defendants Washoe County and six employees of its Child Protective Services 11 division alleging mistreatment during their child dependency proceedings and 12 unjust retention of their property by the Washoe County Sheriff’s Office. 13 Before the Court are Defendants’ motion to dismiss (ECF No. 23), Plaintiffs’ 14 motion to seal their response to that motion (ECF No. 35), and Defendants’ 15 motion to strike Plaintiffs’ sur-reply to that motion (ECF No. 39). For the reasons 16 identified below, the Court grants in part and denies in part the motion to 17 dismiss, grants the motion to seal, and denies the motion to strike. 18 I. BACKGROUND 19 In August 2021, the Dixie Fire pushed Kera and Joseph Turner out of their 20 home in Milford, California. (ECF No. 6 at ¶ 20.) While the Turners were 21 relocating, they left their minor children, E.M. (then 8 years old) and A.T. (then 22 around 1 year old), in the care of the Manha family. (Id. at ¶¶ 21-22.) 23 On August 21, the Manhas told Washoe County Child Protective Services 24 (CPS) that they suspected A.T. had been sexually abused. (Id. at ¶ 26.) At the 25 direction of the Washoe County Health and Services Administration (WCHSA), 26 the Manhas took A.T. to the hospital for a sexual abuse evaluation. (Id. at ¶ 27.) 27 This was done without the Turners’ knowledge or consent. (Id. at ¶ 28.) The 28 results of these evaluations are unclear. 1 Soon after, the Turners were arrested for possession of two stolen vehicles: 2 a Ford F-350 and a travel trailer. (Id. at ¶ 34.) Inside the vehicles were 70 guns 3 and gun parts, over 29,000 rounds of ammunition, dozens of pistol and rifle 4 magazines, tactical gear and other weapons, and several personal items. (Id.) 5 Police seized those items, along with the vehicles. (Id.) 6 The Turners were eventually released from police custody, but they had 7 trouble getting their property back. (See id. at ¶¶ 62-66.) It is unclear from the 8 Amended Complaint whether all of the Turners’ non-firearm-related property is 9 now in their possession. (Id.) The Washoe County Sheriff’s Office also informed 10 the Turners that they would not return the Turners’ weapons until the Turners 11 completed background checks. (Id. at ¶ 72.) The Turners appear to have refused 12 to comply with this condition, in part because the Sheriff’s Office has not provided 13 them with an inventory of the seized weapons. (Id.; but see id. at ¶ 34.) 14 After the Turners were arrested, dependency proceedings were initiated in 15 the Second Judicial District Court in Washoe County (Juvenile Court) to 16 determine the custody of E.M. and A.T. (See ECF Nos. 23-1, 23-2.) The Juvenile 17 Court determined that continual placement in the Turners’ home was “contrary 18 to the welfare” of E.M. and A.T. and removed them from the Turners’ custody. 19 (ECF No. 23-1.) 20 The dependency proceedings were eventually moved to the Superior Court 21 of California in Sacramento County, with regards to the care of E.M., and to the 22 Superior Court of California in Lassen County, with regards to the care of A.T. 23 (ECF Nos. 23-5; 23-6; 23-15; 23-16.) Those proceedings resulted in E.M. being 24 placed in the custody of her biological father and with A.T. being returned to the 25 Turners’ care. (ECF Nos. 23-6; 36-1 at 18.) 26 The Turners allege that the above proceedings, and particularly the portion 27 of those proceedings that occurred in Nevada, were rife with abuse. They allege 28 that Defendants, Washoe County and employees of its Child Protective Services 1 division, failed to provide them with a fair process, (ECF No. 6 at ¶¶ 43, 46, 51, 2 93), filed false reports against them, (id. at ¶¶ 54-55, 59, 99, 126), failed to comply 3 with their obligations to take “reasonable efforts” under Nevada law, (id. at ¶¶ 43, 4 77, 126), and retaliated against them, (id. at ¶¶ 47, 87-91). The Turners also 5 allege that each of these actions was taken pursuant to Washoe County policy or 6 custom or that it was the result of the County’s failure to train its employees. (Id. 7 at ¶¶ 122-26.) 8 The Turners filed a complaint with this Court on August 18, 2023, alleging 9 claims under 42 U.S.C. § 1983 for: (1) Interference with Familial Relations under 10 the First and Fourteenth Amendments; (2) Retaliation under the First 11 Amendment; (3) Substantive and Procedural Due Process under the Fourteenth 12 Amendment; (4) Wrongful Taking of a Minor Child under the Fourth Amendment; 13 (5) Withholding Arms under the Second Amendment; (6) Wrongful Taking and 14 Withholding of Private Property under the Fourth Amendment; and (7) a Monell 15 Claim against Washoe County. (Id. at ¶¶ 73-126.) They bring these claims against 16 Washoe County and against six employees of the County’s Child Protective 17 Services division, in their official capacities and as individuals. (Id. at ¶¶ 5-11.) 18 Defendants now move to dismiss the Turners’ Amended Complaint (ECF No. 6), 19 on the grounds identified below. 20 II. LEGAL STANDARD 21 Many of Defendants’ arguments challenge this Court’s jurisdiction to hear 22 Plaintiffs’ case. A defendant may seek dismissal of a claim for lack of subject 23 matter jurisdiction under Fed. R. Civ. P. 12(b)(1). The party asserting claims in 24 federal court bears the burden of demonstrating the court’s jurisdiction over 25 those claims. See In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 26 546 F.3d 981, 984 (9th Cir. 2008). 12(b)(1) attacks on subject matter jurisdiction 27 “may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 28 (9th Cir. 2004). In a facial attack, “the challenger asserts that the allegations 1 contained in a complaint are insufficient on their face to invoke federal 2 jurisdiction.” Id. “The district court resolves a facial attack as it would a motion 3 to dismiss under Rule 12(b)(6): [a]ccepting the plaintiff’s allegations as true and 4 drawing all reasonable inferences in the plaintiff’s favor, the court determines 5 whether the allegations are sufficient as a legal matter to invoke the court’s 6 jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). In resolving 7 a facial attack, a court may take judicial notice of matters of public record. Hyatt 8 v. Yee, 871 F.3d 1067, 1071 n.15 (9th Cir. 2017). 9 Some of Defendants’ arguments instead rely on Fed. R. Civ. P. 12(b)(6). A 10 court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 11 relief can be granted” under Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint 12 must provide “a short and plain statement of the claim showing that the pleader 13 is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 14 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it 15 demands more than “labels and conclusions” or a “formulaic recitation of the 16 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 17 Twombly, 550 U.S. at 555). All factual allegations set forth in the complaint are 18 taken as true and construed in the light most favorable to the plaintiff. Lee v. City 19 of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). Thus, to survive a motion to 20 dismiss, a complaint must contain sufficient factual matter to “state a claim to 21 relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 22 U.S. at 570). But even a facially plausible claim may be dismissed under Fed. R. 23 Civ. P. 12(b)(6) for “lack of a cognizable legal theory.” Solida v. McKelvey, 820 F.3d 24 1090, 1096 (9th Cir. 2016). Thus, to survive a motion to dismiss under Fed. R. 25 Civ. P. 12(b)(6) a claim must be both factually plausible and legally cognizable. 26 A pro se complaint is “to be liberally construed,” and “however inartfully 27 pleaded, must be held to less stringent standards than formal pleadings drafted 28 by lawyers.” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) 1 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see Hebbe v. Pliler, 627 F.3d 2 338, 342 (9th Cir. 2010) (stating that “we continue to construe pro se filings 3 liberally when evaluating them under Iqbal,” and “particularly in civil rights 4 cases, . . . to afford the [plaintiff] the benefit of any doubt”) (quoting Bretz v. 5 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)). 6 III. DISCUSSION 7 Plaintiffs’ claims can be divided into two groups: claims in which Plaintiffs 8 challenge aspects of their dependency proceedings (their “Dependency Claims”) 9 and claims in which they challenge the County’s seizure of their property (their 10 “Property Claims”). The Dependency Claims include Claim 1 (Interference with 11 Familial Relations), Claim 2 (Unlawful Retaliation), Claim 3 (Violation of Due 12 Process), Claim 4 (Wrongful Taking of a Minor Child), and Claim 7 (Plaintiffs’ 13 Monell claim). The Property Claims include Claim 5 (Violation of the Second 14 Amendment), Claim 6 (Wrongful Taking and Withholding of Private Property), and 15 Claim 7 (Plaintiffs’ Monell claim).1 The Monell claim is in both groups because it 16 relates to both the dependency and property claims. 17 The Court addresses each set of claims in turn. 18 A. DEPENDENCY CLAIMS 19 As a preliminary matter, the Court takes judicial notice of the state court 20 documents attached as exhibits to Defendants’ Motion to Dismiss and Plaintiffs’ 21 Response. (ECF Nos. 23, 34.) Those documents are matters of public record and 22 their authenticity is not contested. See Lee, 250 F.3d at 689-90 (“A court may 23 take judicial notice of ‘matters of public record’ without converting a motion to 24 dismiss into a motion for summary judgment.”). 25
26 1 Plaintiffs make a passing reference to property in their claim for violation of Due Process. (ECF No. 6 at ¶ 93.) The Court nevertheless treats that claim as challenging 27 only the state court dependency proceedings because the reference to any property- related Due Process violation is both cursory and conclusory, and Plaintiffs have not 28 alleged facts sufficient to warrant a broader reading of that claim. 1 The majority of Plaintiffs’ dependency claims are barred by the Rooker- 2 Feldman doctrine, which provides that federal district courts lack subject matter 3 jurisdiction to hear de facto appeals of state court decisions. Carmona v. 4 Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010); see also District of Columbia Court 5 of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 6 U.S. 413, 415-16 (1923). A suit is a “de facto appeal” when “a federal plaintiff 7 asserts as a legal wrong an allegedly erroneous decision by a state court, and 8 seeks relief from a state court judgment based on that decision.” Carmona, 603 9 F.3d at 1050 (quoting Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003)); see Doe 10 v. Mann, 415 F.3d 1038, 1041 (9th Cir. 2005) (“[T]he Rooker–Feldman doctrine 11 bars federal courts from exercising subject-matter jurisdiction over a proceeding 12 in ‘which a party losing in state court’ seeks ‘what in substance would be 13 appellate review of the state judgment in a United States district court, based on 14 the losing party's claim that the state judgment itself violates the loser's federal 15 rights.’”) (quoting Johnson v. De Grandy, 512 U.S. 997, 1005–06 (1994), cert. 16 denied, 547 U.S. 1111 (2006)). The Rooker–Feldman doctrine applies to final state 17 court orders and judgments as well as interlocutory orders and non-final 18 judgments. Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 19 2001); Worldwide Church of God v. McNair, 805 F.2d 888, 893 n.3 (9th Cir. 1986). 20 A party need not style its claim as an appeal of a state court decision for 21 Rooker-Feldman to apply. Rooker-Feldman can apply, for example, to federal 22 constitutional claims that were not raised in underlying state court proceedings. 23 Bianchi v. Rylaarsdam, 334 F.3d 895, 900 n.4 (9th Cir. 2003) (“[i]t is immaterial 24 that Bianchi frames his federal complaint as a constitutional challenge to the 25 state court’s decisions, rather than as a direct appeal of those decisions”); id. at 26 901 (“the Rooker-Feldman doctrine is not limited to claims that were actually 27 decided by state courts, but rather it precludes review of all ‘state court decisions 28 in particular cases arising out of judicial proceedings even if those challenges 1 allege that the state court’s action was unconstitutional’”); Reusser v. Wachovia 2 Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008) (“Rooker-Feldman may . . . apply 3 where the parties do not directly contest the merits of a state court decision”). 4 Relatedly, Rooker-Feldman can apply to claims for purely monetary relief, even 5 though such relief would not directly overturn any prior state court decision. 6 Sample v. Monterey Cnty. Family & Children Servs., No. C09-01005 HRL, 2009 7 WL 2485748, at *3 (N.D. Cal. 2009) (holding plaintiff’s claims for money damages 8 were barred under Rooker-Feldman because, “she would only receive a damage 9 award if this court determined that the Dependency Court's decisions pertaining 10 to the custody of her children—including any review or authorization of 11 defendants' actions—were in error”); Grimes v. Alameda County Social Servs., No. 12 C 11-02977 WHA, 2011 WL 4948879, at *3 (N.D. Cal. Oct. 18, 2011) (“Even if 13 plaintiff were to abandon his request for the return of his children and instead 14 pursue only money damages, his claims still would require review of the relevant 15 state-court decisions. Such review is barred.”). 16 Plaintiffs’ Dependency Claims make four categorical challenges to 17 Defendants’ actions. Three of those challenges are entirely barred by the Rooker- 18 Feldman doctrine. The fourth is not barred and may proceed within the limited 19 scope described below. 20 1. Due Process Violations 21 First, Plaintiffs allege that the challenged dependency proceedings 22 infringed on their due process rights. These allegations touch on Claims 1, 3, and 23 7. (ECF No. 6 at ¶¶ 81, 92-96, 125.) They specifically include statements that 24 Defendants “refused to conduct a competent, fair, and objective investigation,” 25 (id. at ¶ 93), that they “failed to follow standard . . . procedures to determine the 26 facts,” (id. at ¶ 43), that the Sacramento Family Court failed to notify Plaintiffs of 27 28 1 an upcoming hearing (id. at ¶ 46),2 and that the Juvenile Dependency Court 2 tended to give legally illegitimate justifications for its biased positions, (id. at ¶ 3 51). Though Plaintiffs allege these “unfairness” issues across multiple claims, the 4 Court interprets each of them as arising under a single claim for violation of 5 Plaintiffs’ 14th Amendment due process rights. 6 Plaintiffs’ due process claim is a de facto appeal of several state court 7 decisions and is therefore barred under Rooker-Feldman. To find in Plaintiffs’ 8 favor on this § 1983 claim, the Court would have to conclude that Plaintiffs’ state 9 court proceedings were constitutionally unsound and therefore voidable. Rooker- 10 Feldman bars such a conclusion. See Bianchi, 334 F.3d at 900 (holding that 11 plaintiff’s due process claim was barred under Rooker-Feldman, regardless of 12 whether the state court had adjudicated it, because it effectively asked the Ninth 13 Circuit to “undo” the state court’s decision); Allah v. Superior Court of State of 14 Cal., Los Angeles Cnty., 871 F.2d 887, 890-91 (9th Cir. 1989) (holding that 15 Rooker-Feldman applies to claims that a state court failed to protect a litigant’s 16 procedural due process rights), superseded on other grounds by Fed. R. App. P. 17 4, as recognized in Harmston v. City & Cnty. of S.F., 627 F.3d 1273, 1279-80 (9th 18 Cir. 2010). 19 Plaintiffs argue that Rooker-Feldman is inapplicable to their claims because 20 they do not seek to change the outcome of their dependency proceedings and 21 because they seek only monetary damages for violation of their rights. This 22 argument fails for at least two reasons. First, as discussed above, claims for 23 money damages can constitute de facto appeals of state court decisions under 24 Rooker-Feldman. See, e.g., Sample, 2009 WL 2485748, at *3 (holding plaintiff’s 25 claims for money damages were barred under Rooker-Feldman because, “she 26 would only receive a damage award if this court determined that the Dependency 27
28 2 Plaintiffs do not name the Sacramento Family Court or its employees as defendants. 1 Court's decisions pertaining to the custody of her children—including any review 2 or authorization of defendants' actions—were in error”). Second, while Plaintiffs 3 do not contest the final decision to reunite them with one of their children, they 4 do contest several prior decisions by the Nevada dependency court. For example, 5 Plaintiffs complain that the Juvenile Dependency Court based its decisions on 6 facts gathered through a fundamentally unfair investigation. (See ECF No. 6 at ¶ 7 93.) Rooker-Feldman bars federal review of such interlocutory decisions. See Doe 8 & Assoc., 252 F.3d at 1030 (holding that Rooker-Feldman applies to interlocutory 9 orders and non-final judgments). 10 Plaintiffs’ claims challenging the fairness of the state court dependency 11 proceedings are dismissed. Because any amendment to those claims would be 12 futile, the dismissal is with prejudice. Plaintiffs may not reallege their procedural 13 due process claims in any amended complaint. 14 2. False Accusations 15 Second, Plaintiffs allege that their rights were violated when Defendants 16 made false accusations against them, leading to adverse decisions in their 17 dependency proceedings. These allegations touch on claims 1, 3, 4, and 7. (ECF 18 No. 6 at ¶¶ 75, 94, 99, 126.) They specifically include allegations that Washoe 19 County filed multiple false reports against Plaintiffs in court, (id. at ¶¶ 54-55, 59), 20 that Washoe County encouraged individual Defendants to do the same, (id. at 21 ¶126), and that these claims were the basis for Plaintiffs’ loss of custody over 22 their children, (id. at ¶ 99). 23 To the extent that Plaintiffs’ claims rely on allegations of false accusations 24 made during dependency proceedings, those claims are inextricably intertwined 25 with a state court decision and therefore barred under Rooker-Feldman. In 26 addition to barring de facto appeals, Rooker-Feldman bars claims that are 27 “inextricably intertwined” with an issue resolved by a state court in its judicial 28 decision. Doe, 415 F.3d at 1043 (citing Noel, 341 F.3d at 1158); see also, Exxon, 1 544 U.S. at 286 n.1 (stating that “a district court [cannot] entertain constitutional 2 claims attacking a state-court judgment, even if the state court had not passed 3 directly on those claims, when the constitutional attack [is] ‘inextricably 4 intertwined’ with the state court’s judgment”) (citing Feldman, 460 U.S. at 482 5 n.16). “Claims raised in the federal court action are ‘inextricably intertwined’ with 6 the state court’s decision [when] the adjudication of the federal claims would 7 undercut the state ruling or require the district court to interpret the application 8 of state laws or procedural rules.” Bianchi, 334 F.3d at 898 (citing Feldman, 460 9 U.S. at 483 n.16, 485). 10 Here, Plaintiffs allege that Defendants submitted false evidence and reports 11 to the dependency courts related to Plaintiffs’ drug abuse and their abuse and 12 neglect of their minor children. (ECF No. 6 at ¶¶ 54-55, 59.) Plaintiffs further 13 allege that those reports “directly and proximately caused” their children to be 14 removed from their custody. (Id.) They submit publicly-available court documents 15 demonstrating that the Nevada dependency court relied on Defendants’ allegedly 16 false accusations in reaching its custody decision. (See ECF No. 23-3 (alleging 17 neglect and possession of drug paraphernalia by Plaintiffs); ECF Nos. 23-12, 23- 18 13 (relying on those accusations in concluding that fictive kin placement was 19 appropriate).) All claims based on the above-mentioned allegations are barred 20 under Rooker-Feldman. 21 Other district courts faced with this issue have reached similar 22 conclusions. Ismail v. Cnty. of Orange, No. SACV 10-00901 VBF (AJW), 2012 WL 23 3644170, at *16 (C.D. Cal. 2012) (holding that defendants’ “allegedly false, 24 inaccurate, malicious, or biased recommendations, reports, and testimony” 25 presented to a juvenile court were inextricably intertwined with the orders and 26 judgments of that court), aff’d, 693 Fed. Appx. 507, 512 (9th Cir. 2017); Meza v. 27 Meza, No. SA CV 12-01777-GAF (VBK), 2013 WL 2338126, at *10 (C.D. Cal. 2013) 28 (“the Rooker-Feldman doctrine bars this Court from hearing Plaintiff’s claims 1 against the individual Defendants that they conspired and made false 2 representations to the Juvenile Court because they are ‘inextricably intertwined’ 3 with the orders of the Juvenile Court regarding matters adjudicated in the 4 dependency case”); Zayas v. Messit, Case No. C20-0747-JCC, 2021 WL 3675033, 5 at *5 (W.D. Wash. 2021) (barring adjudication of plaintiff’s claims that defendants 6 approved false documents under oath at her dependency trial because those 7 allegations “raise[d] issues that [were] ‘inextricably intertwined’ with the state 8 court’s dependency order”); Ragan v. Cnty. of Humboldt Dep’t of Health and Hum. 9 Servs., Case No. 16-cv-05580-RS, 2017 WL 878083, at *4 (N.D. Cal. 2017) 10 (dismissing plaintiffs’ claims that defendants “presented fabricated evidence to 11 the [state] court and refused to provide exculpatory evidence throughout the 12 dependency proceedings” because those claims “raise[d] issues that [were] 13 ‘inextricably intertwined’ with the juvenile dependency proceedings”). 14 Plaintiffs argue that their “false accusation” claims are admissible under 15 Rooker-Feldman’s extrinsic fraud exception. Under that exception, courts retain 16 subject matter jurisdiction over cases where a plaintiff alleges extrinsic fraud by 17 an adverse party and “seeks to set aside a state court judgment obtained by that 18 fraud.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1141 (9th Cir. 2004).3 The 19 extrinsic fraud exception applies only where the federal plaintiff was barred from 20 challenging the allegedly fraudulent claims in the underlying state court 21 proceeding. Ragan, 2017 WL 878083, at *4 (holding that the extrinsic fraud 22 exception did not apply to plaintiffs’ claims where they “[did] not allege that 23 Defendants committed any fraud that they were prevented from challenging in 24 3 This exception stems from the fact that Rooker-Feldman is relatively limited in scope. 25 Rooker-Feldman applies only to cases where “a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court 26 judgment based on that decision.” Noel, 341 F.3d at 1164 (emphasis added). “A plaintiff alleging extrinsic fraud on a state court is not alleging a legal error by the state court; 27 rather, he or she is alleging a wrongful act by the adverse party.” Kougasian, 359 F.3d at 1140-41 (citing Noel, 341 F.3d at 1164). Since that plaintiff alleges no error by the 28 state court, Rooker-Feldman does not operate to bar her claims. Id. 1 the [state] proceedings”); see also Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 2 1981) (“Extrinsic fraud is conduct which prevents a party from presenting his 3 claim in court.”); Kougasian, 395 F.3d at 1139 (holding that allegations of 4 extrinsic fraud require “the investigation of a new case arising upon new facts”). 5 None of Defendants’ alleged false accusations fall within the extrinsic fraud 6 exception because Plaintiffs do not allege they were barred from challenging those 7 accusations in the dependency proceedings. 8 Plaintiffs “false accusations” claims are therefore dismissed, to the extent 9 that those claims challenge false statements or misrepresentations made during 10 dependency proceedings. Plaintiffs may reallege a claim based on Defendants’ 11 false accusations, in an amended complaint, if they can show either (1) those 12 false accusations were not made during the dependency proceedings or (2) 13 Plaintiffs were barred from challenging those false accusations during the 14 dependency proceedings. 15 3. Lack of “Reasonable Effort” 16 Third, Plaintiffs base their claims on a lack of “reasonable effort” by 17 Defendants to reunify them with their child. These allegations touch on claims 1 18 and 7. (ECF No. 6 at ¶¶ 77, 123, 126.) They specifically include statements that 19 Defendants failed to consider or “implement” reasonable efforts standards 20 imposed on them by state and federal law, (id. at ¶ 77), that they ignored Plaintiffs’ 21 requests to place their children with Plaintiffs’ family members, (id. at ¶ 126), and 22 that they “failed to follow standard and normal procedures to . . . make efforts to 23 keep the family together,” (id. at ¶ 43). 24 Employees of child welfare agencies in Nevada are obligated to undertake 25 “reasonable efforts” to reunify children with their parents. NRS 432B.393. To 26 enforce this obligation, Nevada dependency courts must affirmatively determine, 27 within 60 days of separation, that the child welfare agency either complied with 28 its “reasonable efforts” obligations or that no such efforts were required. NRS 1 432B.550(8)(a); see also Washoe Cnty. Hum. Servs. Agency v. Second Judicial 2 Dist. Court in and for Cnty. of Washoe, 521 P.3d 1199, 1204 (Nev. 2022) (“issues 3 regarding a child welfare agency’s duty to provide reasonable efforts to reunify 4 children with their parents are relevant to a variety of child welfare cases that . . 5 . will likely continue to come before this court”). 6 Since the Nevada dependency court was required to make a determination 7 on the “reasonable efforts” issue, Plaintiffs’ claims alleging lack of reasonable 8 effort, like their claims alleging false statements, are inextricably intertwined with 9 state court decisions and barred under Rooker-Feldman. The Court dismisses 10 these claims, with prejudice.4 11 4. Retaliation 12 Fourth, some of Plaintiffs’ Dependency Claims rely on assertions that 13 Defendants retaliated against Plaintiffs because Plaintiffs chose to exercise their 14 constitutionally protected rights. These allegations touch on claims 1, 2, 4, and 15 7. (ECF No. 6 at ¶¶ 86, 88-89, 103, 123.) 16 To state a claim for retaliation, a plaintiff must allege (1) the plaintiff 17 exercised a constitutionally protected right; (2) the exercise of that right was a 18 “substantial” or “motivating” factor in the defendant’s retaliatory action; and (3) 19 the plaintiff experienced an injury stemming from that action. Ragan 2017 WL 20 878083, at *6 (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000)). 21 The Amended Complaint makes only one non-conclusory allegation of 22 retaliation: that Defendant Ashley Davis forced Kera Turner to restart drug 23 screening in response to Turner’s request to speak with a lawyer and refusal to 24 sign an unlimited release of medical information. (Id. at ¶ 47.) 25 As alleged, Plaintiffs’ retaliation claim against Ms. Davis is not barred under 26
27 4 “Reasonable efforts” requirements are not enforceable by private individuals through § 1983 actions. Suter v. Artist M., 503 U.S. 347, 363-64 (1992). This fact provides an 28 alternate basis for the Court’s dismissal of this set of claims. 1 Rooker-Feldman. Here, Plaintiffs complain of an action by an individual—Ms. 2 Davis—not a state court. See Kougasian, 359 F.3d at 1140-41. Nor is there any 3 indication that this issue was previously raised in state court or that its 4 adjudication would “undercut [a] state ruling or require the district court to 5 interpret the application of state laws or procedural rules.” Bianchi, 334 F.3d at 6 898 (citing Feldman, 460 U.S. at 483 n.16, 485). 7 Defendants make several non-persuasive arguments as to why the Court 8 should dismiss this claim, Rooker-Feldman notwithstanding. First, Defendants 9 argue that issue preclusion bars this claim. Issue preclusion does not apply here 10 because there is no indication in the documents before the Court that the factual 11 issues underlying this claim have already been adjudicated. See Kahn v. Morse & 12 Mowbray, 117 P.3d 227, 234-35 (Nev. 2005). 13 Defendants also argue that this claim should be dismissed as a “categorical 14 reference” to one or more unnamed defendants. (See ECF No. 23 at 16-17.) That 15 argument is inapplicable because this claim is plainly brought against Ashley 16 Davis, who is a named defendant in this case. 17 Defendants argue that Ms. Davis and her co-defendants are entitled to 18 absolute immunity. The Court refrains from ruling on that question because it is 19 not yet clear whether absolute immunity applies to Ms. Davis’s actions. “[S]ocial 20 workers are entitled to absolute immunity in performing quasi-prosecutorial 21 functions connected with the initiation and pursuit of child dependency 22 proceedings.” Meyers v. Contra Costa Cnty. Dep’t of Soc. Servs., 812 F.2d 1154, 23 1157 (9th Cir. 1987). Immunity extends to claims that a social worker initiated 24 or pursued dependency proceedings maliciously. Cf. Imbler v. Pacthman, 424 U.S. 25 409, 427 (1976) (holding that prosecutors enjoy absolute immunity from § 1983 26 claims for malicious prosecution). It does not extend to “investigatory” conduct, 27 such as the collection of evidence prior to trial, Beltran v. Santa Clara County, 28 514 F.3d 906, 908-09 (9th Cir. 2008); al-Kidd v. Ashcroft, 580 F.3d 949, 958 (9th 1 Cir. 2009), rev’d on other grounds, 563 U.S. 731 (2011). It is unclear from the 2 Amended Complaint what role the medical release form and drug testing played 3 in the dependency proceedings. It is therefore unclear whether Ms. Davis’s 4 actions related to the medical release and drug testing can properly be described 5 as “quasi-prosecutorial” or merely investigatory. See Miller v. Gammie, 335 F.3d 6 889, 897-98 (9th Cir. 2003) (upholding the district court’s decision to postpone 7 resolving the issue of absolute immunity because it was not yet clear whether the 8 defendants’ functions were quasi-prosecutorial).5 9 Finally, Defendants argue that, to the extent Plaintiffs bring claims against 10 Defendants in their official capacities, those claims should be dismissed as 11 redundant. The Court agrees. “[A] suit against a state official in his or her official 12 capacity is not a suit against the official but rather is a suit against the official's 13 office.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (citations omitted). 14 Washoe County is already a named Defendant in this case, and every other 15 Defendant is an employee of Washoe County. So any suit against the other 16 Defendants in their official capacities is redundant. The Court dismisses all 17 remaining claims against the individual named Defendants, to the extent they 18 are brought against Defendants in their official capacities. Plaintiffs can still bring 19 a claim against Ashley Davis, the last remaining human Defendant, as an 20 individual. 21 Plaintiffs retaliation claim may move forward, as it relates to Ms. Davis’s 22 reinstatement of Kera Turner’s drug testing requirements. It is dismissed as to 23 all other issues. 24 // 25
26 5 The Court will not yet address the question of qualified immunity, which typically applies to the actions of social workers in the absence of absolute immunity, because 27 Defendants have not raised that issue. See Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993) (“Qualified immunity is an affirmative defense that should be pled by the 28 defendant.”). 1 5. Monell Claims 2 Finally, Plaintiffs’ dependency-related Monell claims are dismissed for 3 failure to state a claim. 4 A municipality may be liable under § 1983 when the enforcement of a 5 municipal policy or custom was the moving force behind the violation of a 6 constitutionally protected right. Monell v. Dep't of Social Servs. of the City of New 7 York, 436 U.S. 658, 690 (1978). Generally, “the actions of individual employees 8 can support liability against a municipality under § 1983 only if those employees 9 were acting pursuant to an official municipal policy.” Haines v. Brand, No. C-11- 10 1335 EMC, 2011 WL 6014459, at *4 (quoting Webb v. Sloan, 330 F.3d 1158, 11 1164 (9th Cir. 2003)). Even if there is no “official” policy, a plaintiff can allege 12 liability based on employees' actions under two alternative theories: (1) “if an 13 employee commits a constitutional violation pursuant to a long-standing practice 14 or custom”; or (2) if “the person causing the violation has final policymaking 15 authority.” Id. (internal citations omitted). Examples of a “custom” include 16 “inaction or omission, such as a failure to train, if the failure to train amounts to 17 deliberate indifference of plaintiff's rights.” Id. 18 Only one of Plaintiffs’ dependency claims has survived Defendants’ motion 19 to dismiss. That claim alleges that Ms. Davis violated Ms. Turner’s constitutional 20 rights by retaliating against her. To support a Monell claim related to Ms. Davis’s 21 actions, Plaintiffs must allege more than “a bare allegation that the individual 22 officers’ conduct conformed to official policy, custom, or practice.” AE ex rel. 23 Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). Here, Plaintiffs 24 allege, broadly, that Ms. Davis and her co-defendants acted pursuant to Washoe 25 County policy or custom, or that the County failed to properly train them. (ECF 26 No. 6 at ¶¶ 47, 122-26.) Plaintiffs make no allegations as to the contents of that 27 policy or training, a particular training deficiency, or specific actors with influence 28 over the policy. This is insufficient to state a Monell claim. 1 Plaintiffs may reassert their Monell claim in an amended complaint, if they 2 can allege specific facts related the County policy or training regimen that 3 undergirded Ms. Davis’s alleged retaliatory behavior. 4 6. New Fourth and Fourteenth Amendment Claims 5 Plaintiffs have filed a sur-reply requesting leave to allege a new claim for 6 violation of their Fourth and Fourteenth Amendment rights related to the 7 warrantless sexual abuse evaluation of A.T. (ECF No. 38 at 2-6.) 8 Sur-replies are not allowed in this district without leave of the Court, and 9 Defendants have asked the Court to strike Plaintiffs’ sur-reply on those grounds. 10 (ECF No. 39 (citing LR II 7-2(d)).) 11 The local and federal rules related to the filing of briefings and the striking 12 of documents are permissive. A Court has significant control over its own docket. 13 Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (citing 14 Atchison, Topeka & Santa Fe Ry. v. Hercules Inc., 146 F.3d 1071, 1074 (9th Cir. 15 1998)). It may permit sur-replies and it may strike certain imprudently filed 16 documents. See LR II 7-2(d); LR IA 10-1(d); Fed. R. Civ. P. 12(f); Roadhouse v. Las 17 Vegas Metropolitan Police Dept., 290 F.R.D. 535, 543 (D. Nev. 2013) (“Whether to 18 grant a motion to strike lies within the sound discretion of the district court.”) 19 Because Plaintiffs have already given notice of their concern over A.T.’s 20 sexual abuse evaluation, (ECF No. 6 at ¶¶ 25-28), and because Defendants have 21 failed to show they would be prejudiced by the inclusion of this issue as an 22 affirmative cause of action, the Court denies Defendants’ motion to strike and 23 grants Plaintiffs leave to amend their complaint to include this new claim. 24 In conclusion, with regard to Plaintiffs’ dependency claims (Claims 1, 2, 3, 25 4, and part of Claim 7) only one claim survives Defendants’ motion to dismiss: a 26 First Amendment Claim, brought under 42 U.S.C. § 1983, alleging that 27 Defendant Ashley Davis, in her individual capacity, retaliated against Plaintiff 28 Kera Truner by forcing her to restart regular drug testing. Plaintiffs may file a 1 Second Amended Complaint alleging that claim as well as a claim for violation of 2 their Fourth and Fourteenth Amendment rights, related to the warrantless sexual 3 abuse evaluation of their minor child. If Plaintiffs are able to cure the issues 4 identified in this order, they may also reallege a claim based on Defendants’ “false 5 accusations” and a Monell claim. 6 B. PROPERTY CLAIMS 7 Plaintiffs’ Property Claims relate to Washoe County’s seizure and retention 8 of their property during their arrest for possession of stolen vehicles. For both 9 claims, Plaintiffs have failed to state a claim upon which relief can be granted. 10 1. Second Amendment Claim 11 Plaintiffs allege that their Second Amendment Rights were violated when 12 Washoe County seized their firearms and ammunition during a lawful arrest and 13 when the County required them to undergo background checks to regain 14 possession of their firearms. The Second Amendment does not protect Plaintiffs 15 against either of these alleged harms. 16 Under New York State Rifle & Pistol Ass'n, Inc. v. Bruen, courts must 17 perform a two-step analysis to determine whether the government has infringed 18 on a plaintiff’s Second Amendment rights. 597 U.S. 1 (2022). First, courts must 19 consider “whether the Second Amendment’s plain text covers an individual’s 20 proposed course of conduct.” United States v. Perez-Garzia, 96 F.4th 1166, 1178 21 (citing Bruen, 597 U.S. at 24). If a court concludes that it does, “[t]he Government 22 . . . bears the burden of justifying the challenged [behavior] by showing that it is 23 consistent with our nation’s ‘historical tradition of firearm regulation.’” Id. 24 (citation omitted). Both of Plaintiffs’ challenges fail at Bruen step one. 25 First, Plaintiffs fail to state a claim related to the County’s initial seizure of 26 their guns. The text of the Second Amendment protects a person’s “right to bear 27 arms,” generally; it does not guarantee the right to possess any one gun or any 28 particular set of guns. Garcha v. City of Beacon, 351 F. Supp. 2d 213, 217 1 (S.D.N.Y. 2005), aff’d, 232 F. App’x 74 (2d Cir. 2007); see also Walters v. Wolf, 2 660 F.3d 307, 318 (8th Cir. 2011) (holding the Second Amendment was not 3 implicated where law enforcement seized plaintiff’s firearm but did not limit his 4 ability to obtain other firearms); Marutyan v. Las Vegas Metro. Police Dep’t, 2:16- 5 cv-01089-MMD-GWF, 2017 WL 1091787, at *3 (D. Nev. 2017) (same), aff’d, 778 6 Fed. Appx. 489 (9th Cir. 2019); McGuire v. Village of Tarrytown, No. 8 CIV.2049 7 (KTD), 2011 WL 2623466, at *7 (S.D.N.Y 2011) (same); Vaher v. Town of 8 Orangetown, N.Y., 916 F. Supp. 2d 404, 429-30 (S.D.N.Y. 2013) (same). 9 Plaintiffs do not allege that the County has limited their ability to obtain 10 other guns. They allege only that law enforcement unfairly seized and retained 11 their specific guns when they were arrested for possession of stolen vehicles. 12 Because Plaintiffs fail to allege an infringement on their rights under the Second 13 Amendment, their Second Amendment claim is dismissed, as it relates to the 14 County’s initial seizure. Because amendment on this point would be futile, this 15 portion of Plaintiffs’ Second Amendment claims is dismissed with prejudice. 16 Next, Plaintiffs fail to state a claim related to the County’s background 17 check requirement. The Supreme Court has never held background checks on 18 the sale or transfer of firearms to be per se unconstitutional. See Bruen, 597 U.S. 19 at 38 n.9 (“nothing in our analysis should be interpreted to suggest the 20 unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes . . . . which 21 often require applicants to undergo a background check . . . .”); Heller, 554 U.S. 22 at 626-27 (“nothing in our opinion should be taken to cast doubt on . . . laws 23 imposing conditions and qualifications on the commercial sale of arms”). 24 Plaintiffs have made next to no allegations as to the specifics of the County’s 25 background check program. On the facts alleged, the Court has no reason to 26 believe that the program infringes on Plaintiffs’ Second Amendment rights. 27 Plaintiffs may reallege this portion of their complaint, if they believe they can 28 reasonably allege specific aspects of the County’s background check regime that 1 might render it unconstitutional. 2 2. Property Seizure Claim 3 Plaintiffs allege their Fourth Amendment rights were violated when the 4 County seized their personal property. Again, Plaintiffs fail to state a claim upon 5 which relief can be granted. 6 The Fourth Amendment protects individuals “against unreasonable 7 searches and seizures.” U.S. Const. Amend. IV. Whether the Fourth Amendment 8 was violated turns on whether the seizure was reasonable. Graham v. Connor, 9 490 U.S. 386, 396 (1986). “The Fourth Amendment does not protect a [person] 10 from a warrantless search [or seizure] of property that [they] stole.” United States 11 v. Caymen, 404 F.3d 1196, 1200 (9th Cir. 2005). Law enforcement may seize 12 property where there is a reasonable, articulable suspicion that the property is 13 or contains evidence of a crime. See United States v. Place, 462 U.S. 696, 706 14 (1983). 15 Here, Plaintiffs allege that police seized their property when enacting an 16 otherwise lawful arrest for possession of stolen vehicles. (ECF No. 6 at ¶¶110– 17 20.) They concede that the vehicles in question were stolen and that the property 18 in question was located in those vehicles at the time of arrest. (See id. at ¶¶ 23, 19 31, 33-34.) They do not challenge the lawfulness of the arrest itself. 20 Plaintiffs’ allegations indicate that the seizure of their property was 21 reasonable because law enforcement officials had a reasonable articulable 22 suspicion that both the vehicles and the property contained in the vehicles were 23 stolen. See Lewis v. City of Culver City, 2:17-CV-07635-ODW-SS, 2018 WL 24 1406609, at *3 (C.D. Cal. 2018) (“the Fourth Amendment certainly does not 25 require Defendants to turn over stolen property to anyone without first verifying 26 that the person requesting the property is the rightful owner”). Therefore, 27 Plaintiffs have failed to state a claim for violation of their Fourth Amendment 28 rights. 1 Because Plaintiffs fail to allege a constitutional violation related to their 2 || property claims, their property-related Monell claim also fails. Monell, 436 U.S. at 3 || 690. 4 C. MOTION TO SEAL 5 Plaintiffs have submitted an unopposed motion to file their response to 6 || Defendants’ motion to dismiss under seal. (ECF No. 35.) The Court finds that the 7 || sensitive nature of Plaintiffs’ child dependency proceedings provides a compelling 8 || reason to grant Plaintiffs motion, which is not outweighed by the public’s interest 9 || in free access to information related to the judicial process. See Center for Auto 10 || Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096-97 (9th Cir. 2016). The 11 || motion is granted. 12 IV. CONCLUSION 13 It is therefore ordered that Defendants’ motion to dismiss (ECF No. 23) is 14 || granted in part and denied in part, in keeping with this order. 15 It is further ordered that Plaintiffs shall have until September 18, 2023 to 16 || file a Second Amended Complaint that is consistent with this order. 17 It is further ordered that Plaintiffs’ motion to seal (ECF No. 35) is granted. 18 It is further ordered that Defendants’ motion to strike (ECF No. 39) is 19 || denied. 20 21 Dated this 19t» day of August 2024. 22 23 Ans lostd Tom 24 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 26 27 28