Williams v. San Diego, County of

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 KATY WILLIAMS, et al., Case No.: 17-cv-815-MMA (JLB) 12 ORDER DENYING DEFENDANT’S 13 Plaintiffs, MOTION FOR v. RECONSIDERATION 14 COUNTY OF SAN DIEGO, et al., [Doc. No. 220] 15 16 Defendants. 17

18 Katy Williams and Gary Evans (“Adult Plaintiffs”), as well as minors A.C., Am.E., 19 and Aa.E., by and through their Guardian ad Litem, John Garter (“Minor Plaintiffs,” and 20 collectively with Adult Plaintiffs, “Plaintiffs”) bring this action against the County of San 21 Diego (the “County”) asserting civil rights violations pursuant to 42 U.S.C. § 1983.1 See 22 Doc. No. 24 (“FAC.”). On February 10, 2021, the Court denied Minor Plaintiffs’ motion 23 for summary judgment and granted in part the County’s cross summary judgment motion 24 (the “Summary Judgment Order”). See Doc. No. 217. Specifically, the Court ruled in the 25 County’s favor on Minor Plaintiffs’ Fourth Amendment claim and request for injunctive 26

27 1 As explained in the Court’s order on summary judgment, the County of San Diego is the only 28 1 relief. See id. at 18, 24. The Court further determined that disputed material facts 2 precluded summary judgment as to Adult Plaintiffs’ Fourteenth Amendment familial 3 association claim. See id. at 22. The County now moves for reconsideration, arguing 4 that the Court should have granted summary judgment in its favor on Adult Plaintiffs’ 5 Fourteenth Amendment claim. See Doc. No. 220. Plaintiffs filed an opposition, to which 6 the County replied. See Doc. Nos. 224, 225. The Court found the matter suitable for 7 determination on the papers and without oral argument pursuant to Civil Local Rule 8 7.1.d.1. See Doc. No. 222. For the reasons set forth below, the Court DENIES the 9 County’s motion for reconsideration. 10 I. BACKGROUND 11 The facts are set forth more fully in the Summary Judgment Order, see Doc. No. 12 217, which the Court incorporates by reference here. For the purpose of reconsideration, 13 however, the Court provides the following limited summary. In January 2016, the 14 County was investigating a child abuse/neglect claim relating to Minor Plaintiffs’ sibling, 15 D.C. See Doc. No. 181-2 at Nos. 1, 2. During a home visit, Minor Plaintiffs’ mother, 16 Plaintiff Katy Williams, informed the County’s social workers that they were prohibited 17 from speaking with Minor Plaintiffs without their attorney present. See Doc. No. 182-3 18 at No. 54. Nonetheless, on January 19, 2016, two social workers interviewed Minor 19 Plaintiffs at school without their attorney. See id. at No. 74. 20 Following the interviews, Plaintiffs filed this Monell action against the County 21 asserting civil rights violations. See Monell v. New York Dep’t of Soc. Servs., 436 U.S. 22 658 (1978). Namely, Minor Plaintiffs brought a Fourth Amendment unreasonable 23 seizure claim based upon their physical removal from class and Adult Plaintiffs brought a 24 Fourteenth Amendment familial association claim. Both sides moved for summary 25 judgment. See Doc. Nos. 181, 182. On summary judgment, the Court concluded that 26 Minor Plaintiffs’ Fourth Amendment claim failed as a matter of law. First, it determined 27 that there is no precedent for imposing a parental consent, court order, or exigent 28 circumstances requirement for interviewing children in the course of a child abuse 1 investigation. See Doc. No. 217 at 14–15. Instead, it appears clear that each allegation of 2 an unconstitutional seizure must be evaluated on a case-by-case basis. Next, the Court 3 conducted the standard unreasonable seizure analysis and determined that, based on the 4 submitted facts, any minimal harm was vastly outweighed by the County’s interest. See 5 id. at 15–16. Accordingly, the Court granted summary judgment for the County on 6 Minor Plaintiffs’ Fourth Amendment claim. 7 The Court also considered Adult Plaintiffs’ Fourteenth Amendment claim. The 8 Court found that the “shocks the conscience” standard applies, see id. at 20, and that 9 material factual issues precluded summary judgment. Specifically,

10 Based on Williams’ explicit prohibition against interviews, a reasonable jury 11 could determine that Adult Plaintiffs lost actual control of Minor Plaintiffs— namely, the right to care, control, and manage them—when the Social 12 Workers proceeded to interview them against her wishes. Similarly, viewing 13 all available facts in the light most favorable to Adult Plaintiffs, a reasonable jury could find that the Social Workers acted with deliberate indifference to 14 Adult Plaintiffs’ familial rights in a conscience-shocking manner. 15 16 Id. at 22. It is this portion of the Summary Judgment Order that the County asks the 17 Court to reconsider. 18 II. LEGAL STANDARD 19 The Federal Rules of Civil Procedure do not expressly provide for motions for 20 reconsideration. However, a motion for reconsideration may be construed as a motion to 21 alter or amend a final judgment, order, or proceeding under Rule 59(e) or 60(b). See 22 Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Dev. 23 Co., 42 F.3d 1306, 1311 (9th Cir. 1994). Additionally, a motion for reconsideration is 24 proper under Civil Local Rule 7.1.i.1. See Civ. L. R. 7.1.i. 25 Federal Rule of Civil Procedure 59(e) authorizes courts to provide relief from 26 judgment by motion. See Fed. R. Civ. P. 59(e). Under Rule 59(e), it is appropriate to 27 alter or amend a judgment if “(1) the district court is presented with newly discovered 28 evidence, (2) the district court committed clear error or made an initial decision that was 1 manifestly unjust, or (3) there is an intervening change in controlling law.” United Nat’l 2 Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009); see also Marlyn 3 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) 4 (internal quotation marks and citations omitted). 5 “A motion for reconsideration is not a vehicle to reargue the motion or to present 6 evidence which should have been raised before.” See United States v. Westlands Water 7 Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001). Therefore, “[a] party seeking 8 reconsideration must show more than a disagreement with the Court’s decision, and 9 recapitulation of the cases and arguments considered by the [C]ourt before rendering its 10 original decision fails to carry the moving party’s burden.” Id. (internal quotation marks 11 and citation omitted). This is because Rule 59(e) may not be used to relitigate old 12 matters, raise new arguments, or present evidence that could have been raised prior to 13 entry of the judgment. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 486–87 (2008); 14 see also Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1988) (finding denial of a Rule 15 59(e) motion proper where the motion “presented no arguments that had not already been 16 raised in opposition to summary judgment”). 17 III. DISCUSSION 18 The County filed its motion within 28 days of the Summary Judgment Order. 19 Therefore, its request is governed by Rule 59(e). The Court is not advised of any new 20 evidence or intervening change in controlling law. Instead, the County asserts that the 21 Court committed clear error when it denied the County’s request for summary judgment 22 on Adult Plaintiffs’ Fourteenth Amendment claim. 23 A review of the motion reveals that the County is seeking to relitigate a matter that 24 the Court already ruled on, which is precisely improper on a Rule 59(e) motion. A 25 motion for reconsideration is not a vehicle for taking a “second bite at the apple.” Weeks 26 v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001) (quoting Sequa Corp. v. GBJ Corp., 156 27 F.3d 136, 144 (2d Cir. 1998)) (internal quotation marks omitted). Nonetheless, the Court 28 addresses the merits of the County’s motion and further explains its ruling. 1 The Supreme Court has repeatedly recognized the constitutional right to familial 2 association within the Fourteenth Amendment. See, e.g., Pierce v. Soc’y of Sisters, 268 3 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Those cases 4 firmly “establish that the Constitution protects the sanctity of the family precisely 5 because the institution of the family is deeply rooted in this Nation’s history and 6 tradition.” Moore v. E. Cleveland, 431 U.S. 494, 503 (1977); see also Pierce, 268 U.S. at 7 534–35; Meyer, 262 U.S. at 399. Accordingly, it is indisputable that the Fourteenth 8 Amendment protects the “fundamental right of parents to make decisions concerning the 9 care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000); 10 see also Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“It is plain that the interest of a 11 parent in the companionship, care, custody, and management of his or her children 12 ‘comes to this Court with a momentum for respect lacking when appeal is made to 13 liberties which derive merely from shifting economic arrangements’”) (citation omitted)); 14 Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (“The history and culture of Western 15 civilization reflect a strong tradition of parental concern for the nurture and upbringing of 16 their children. This primary role of the parents in the upbringing of their children is now 17 established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 18 U.S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship 19 between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 20 602 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of 21 the family as a unit with broad parental authority over minor children. Our cases have 22 consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753 (1982) 23 (discussing “the fundamental liberty interest of natural parents in the care, custody, and 24 management of their child”); Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (“In a 25 long line of cases, we have held that, in addition to the specific freedoms protected by the 26 Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the 27 right . . . to direct the education and upbringing of one’s children.”). While it appears 28 plain, it is nonetheless necessary for the Court to unambiguously state that the Fourteenth 1 Amendment’s protection of familial association is not limited to the right to custody but 2 also includes the right to companionship, care, control, and management. See, e.g., 3 James v. Rowlands, 606 F.3d 646, 651 (9th Cir. 2010); Lassiter v. Dep’t of Soc. Servs., 4 452 U.S. 18, 27 (1981). 5 The Court has already concluded that Adult Plaintiffs’ familial association claim is 6 based upon the County’s allegedly unconstitutional interference with their right to care, 7 control, and manage Minor Plaintiffs. See Doc. No. 217 at 22. Accordingly, it is not 8 premised on an alleged loss of custody. This distinction is important. While it is true 9 that the alleged violation occurred the moment the County interviewed Minor Plaintiffs, 10 it is not the interviews themselves that gave rise to this claim. Adult Plaintiffs do not 11 assert that they lost custody of Minor Plaintiffs as a result of the investigation, or that 12 their separation from Minor Plaintiffs during the interviews was unconstitutional. 13 Instead, it is the County’s decision to interview Minor Plaintiffs that Adult Plaintiffs seek 14 to redress. Put another way, Adult Plaintiffs argue that the County’s failure to respect 15 Williams’ child-rearing decision to prohibit interviews without an attorney—a decision 16 Williams made within her constitutional right to control and manage Minor Plaintiffs—is 17 unconstitutional under the Fourteenth Amendment. Accordingly, Adult Plaintiffs’ 18 familial association claim is based upon a loss of control or management and not a loss of 19 custody. 20 The County nonetheless argues that the claim fails because Adult Plaintiffs cannot 21 show actual loss of custody.2 See, e.g., Doc. No. 220-1 at 11. Specifically, the County 22 contends that “loss of custody of a child is a prerequisite for a parents’ ability to pursue a 23 Fourteenth Amendment familial association claim as a result of a social worker’s 24 interview of a child at school.” See id. at 3. As an initial matter, the Court agrees that 25 26 2 The County also appears to argue that all familial association claims must fail unless a plaintiff shows, 27 and eventually proves, loss of custody. See Doc. No. 220-1 at 5. This argument is unpersuasive. Never has the constitutional right to familial association been limited in such a way. To be sure, such a blanket 28 1 pursuant to Capp and Dees, an “investigation . . . alone is not cognizable as a violation of 2 the liberty interest in familial relations.” Dees, 960 F.3d at 1152 (quoting Capp, 940 F.3d 3 at 1060). However, Adult Plaintiffs’ claim is not based upon the investigation or 4 interviews, but the County’s decision to interview Minor Plaintiffs in the face of 5 Williams’ prohibition. Moreover, the County’s argument ignores the fact that a parent 6 has several distinct rights under the Fourteenth Amendment and improperly suggests that 7 an interview can only give rise to a loss of custody claim. Nonetheless, the County 8 asserts that four cases support its position. The Court addresses each in turn. 9 A. Ninth Circuit Precedent 10 In 2015, the County was investigating a child abuse/neglect claim involving the 11 Capp family. See Capp v. Cty. of San Diego, 940 F.3d 1046, 1050 (9th Cir. 2019). 12 During an interview between Capp—the children’s father—and a social worker, Capp 13 learned that a social worker had interviewed his children at school without his consent. 14 See id. The investigation came in the midst of a custody battle between Capp and the 15 children’s mother. See id. Based on the County’s investigation, and on advice of 16 counsel, the children’s mother filed an ex parte application to remove the children from 17 Capp’s custody. See id. at 1051. The application was ultimately denied. See id. 18 Among other things, Capp brought a familial association claim under the 19 Fourteenth Amendment. The district court dismissed the claim and Capp appealed. See 20 id. at 1052. The Ninth Circuit affirmed, stating that “Plaintiffs have not pleaded that 21 Capp experienced such a deprivation” of life, liberty, or property because “Plaintiffs do 22 not allege that Capp actually lost custody of his children as a result of Defendants’ 23 alleged misconduct.” Id. at 1060. Importantly, the Ninth Circuit noted that “[q]uite the 24 contrary, they claim that, after [the children’s mother] filed the ex parte application, the 25 family court ‘denied the application and rebuked the [Agency].’” Id. at n.8. 26 Capp is distinguishable. First, Capp did not prohibit the interviews of his children. 27 Moreover, Capp did not allege loss of control or management. Instead, Capp claimed 28 that the investigation (including the interviews) interfered with his right to custody 1 because it caused the children’s mother to seek to remove the children from his custody. 2 Accordingly, the Ninth Circuit held that Capp’s near-loss of custody was insufficient to 3 bring a claim for loss of custody. So while the familial association claim in Capp 4 similarly spawned from an investigation and interview, it is inapposite because Adult 5 Plaintiffs allege loss of control and management and not loss of custody. 6 The following year, the Ninth Circuit published its opinion in Dees v. Cty. of San 7 Diego, 960 F.3d 1145 (9th Cir. 2020), further clarifying the constitutional rights 8 implicated during child abuse investigations. In Dees, the County was similarly 9 investigating a child abuse claim, during which time the children were temporarily sent to 10 stay with their biological father. Id. at 1149. After the family court reviewed the matter 11 and returned the children to their mother, the County sought to “wrap-up” the 12 investigation and complete a final welfare check. See id. A County social worked called 13 the home to arrange for a final interview of the children. See id. During this call, the 14 children’s maternal grandmother declined the interview and stated that the County “was 15 not to interview [the children] without an attorney present.” Id. Nonetheless, a social 16 worker interviewed one of the children at school. See id. at 1150. 17 Parent plaintiffs brought a Fourteenth Amendment familial association claim. See 18 id. at 1152. The portion of the claim that was based on the interviews as an alleged 19 seizure went to trial and the jury found in the County’s favor. See id. at 1150. Parent 20 plaintiffs filed a motion for judgment as a matter of law, or alternatively, for a new trial. 21 See id. at 1151. The district court granted the motion and conditionally granted a new 22 trial. See id. The County appealed. Ultimately, the Ninth Circuit reversed the district 23 court’s ruling. See id. at 1153. 24 The Court first distinguishes the nature of the interview prohibition. It is true that 25 in Dees, the children’s maternal grandmother informed the social workers that they were 26 not to interview the children without an attorney. See id. at 1149. However, the 27 grandmother did not have custody of the children, she was merely staying at the Dees’ 28 home. Id. She was neither a parent nor a guardian of the children. Accordingly, there 1 can be no argument that her request was equally as decisive as Williams’. Moreover, the 2 omission of this fact from the discussion indicates that it was not relevant to the claim— 3 i.e., parent plaintiffs did not bring a claim for loss of control or management based upon 4 the grandmother’s prohibition of the interviews. So the fact that a third party living in the 5 home prohibited the interviews is not “essentially no different,” see Doc. No. 220-1 at 7, 6 from Williams, as Minor Plaintiffs’ mother, making and communicating an affirmative 7 decision regarding the management of her children, and subsequently bringing a claim 8 for the County’s disregard of it. 9 Turning to the substance of the claim in Dees, as the County notes, the Ninth 10 Circuit expressly stated that:

11 Reading Capp and Mann together, our Court requires that, to establish a 12 Fourteenth Amendment claim based on a minor being separated from his or her parents, plaintiff must establish that an actual loss of custody occurred; 13 the mere threat of separation or being subject to an investigation, without 14 more, is insufficient.

15 16 Dees, 960 F.3d at 1152. However, the key phrase is “based on a minor being separated 17 from his or her parents.” Id. While the facts in Dees present a similar case, the differing 18 bases for the claims provide an important distinction. In Dees, the familial association 19 claim was based upon the separation of the children during the interviews. The Ninth 20 Circuit’s discussion in Dees makes that clear. It specifically noted that the familial 21 association claim was based upon an alleged seizure during the interview. See id. at 22 1150. Further, there is no mention of the grandmother’s interview prohibition, and the 23 entire section focuses on the length of the interview and whether it constituted a seizure. 24 See id. at 1153 (“[Parent plaintiff] also claims that [social worker] violated her Fourteenth 25 Amendment familial association right when [social worker] allegedly seized L at 26 school.”). Accordingly, the Court reads Dees to say that a separation- or seizure-based 27 familial association claim must involve “an actual loss of custody.” Id. 28 As noted, Adult Plaintiffs do not claim that the removal of Minor Plaintiffs from 1 class was an unconstitutional separation or seizure. Therefore, Adult Plaintiffs’ claim is 2 not derivative of Minor Plaintiffs’ Fourth Amendment seizure claim, nor is it based upon 3 an alleged loss of custody. Instead, Adult Plaintiffs claim loss of control or management, 4 to wit, that the County’s decision to disregard Williams’ stated, child-rearing decision to 5 prohibit interviews of her children without an attorney present violates the Fourteenth 6 Amendment. Accordingly, to the extent Dees requires a plaintiff to show actual loss of 7 custody, it appears limited to situations wherein the claim is based upon a separation or 8 seizure as an alleged loss of custody and does not clearly extend to cases involving an 9 alleged loss of control or management. 10 Consequently, both Capp and Dees are distinguishable. First, neither Capp nor 11 Dees involved a parent exercising their right to control and manage their children by 12 prohibiting or qualifying interviews as Williams did. Second, the familial association 13 claims in Capp and Dees were based on an alleged loss of custody. Moreover, and 14 importantly, the Ninth Circuit did not state in either Capp or Dees that a claim for 15 familial association based upon the right to control or manage a child requires a showing 16 of actual loss of custody.3 Accordingly, the Court’s ruling was not clear error in light of 17 Capp and Dees. 18

19 3 The County also asserts that “neither Dees nor Capp hold that a Fourteenth Amendment claim by a 20 parent can be pursued without an accompanying loss of custody of a child simply because the parents asserted their preference not to have their children interviewed without an attorney and the social worker 21 ignored that instruction when they interviewed the child at school.” Doc. No. 220-1 at 3. First, the 22 County’s phrasing of Williams’ communication as a “request” is disingenuous. See id. at 2. Her decision was an outright prohibition against speaking to Minor Plaintiffs absent their attorney. It was 23 not a mere “preference,” see id. at 3, that the County was to take under advisement. To suggest otherwise misapprehends the nature of this claim. Second, as explained, the fact that the County ignored 24 Williams’ decision is the central point of distinction from Dees and Capp. Moreover, that no other cases 25 have considered a loss of control or management claim derived from a parent’s decision regarding interviews does not preclude a question of fact here. See Backlund v. Barnhart, 778 F.2d 1386, 1390 26 (9th Cir. 1985) (“We do not hold that Section 1983 plaintiffs must always find a case on point in their favor to show that their rights were clearly established. Certainly they need not always produce binding 27 precedent.”). The Court previously acknowledged, see Doc. No. 217 at 21, and now reiterates that there is no binding precedent for this precise situation. Nonetheless there is a genuine issue of material fact 28 1 B. Other District Court Decisions 2 The County also draws the Court’s attention to two recent district court cases. 3 While not controlling, the Court addresses both. 4 In Scanlon v. Cty. of Los Angeles, 2020 U.S. Dist. LEXIS 246270 (C.D. Cal. Oct. 5 21, 2020), the County of Los Angeles interviewed a child at school during a child 6 abuse/neglect investigation. The parent plaintiffs brought a Fourteenth Amendment 7 familial association claim “arising from the interview of G.X. without the consent of 8 Parent Plaintiffs.” Id. at *4. The defendants filed a Rule 12(c) motion. See id. at *5. It 9 was undisputed that the parent plaintiffs did in fact lose actual custody of their children. 10 See id. at *13. However, because the parent plaintiffs failed to allege that they lost 11 custody of the children “as a result of the interview,” id. at *14 (emphasis in original), 12 the district court granted the defendants’ motion. See id. at *20. 13 Scanlon is inapposite. In Scanlon, the parent plaintiffs actually lost custody of 14 their children and accordingly, their familial association claim was for loss of custody. 15 To the contrary, Adult Plaintiffs did not lose custody of Minor Plaintiffs and their claim 16 is based on an alleged loss of control or management. Therefore, Scanlon does not 17 support the County’s position. Moreover, to the extent the court in Scanlon found that 18 “the right to decide . . . when their children are interviewed at school” was “expressly 19 foreclosed by Capp and Dees,” id. at *15, the Court presumes that this conclusion was 20 made solely based upon the facts and basis for the claim before it. Notably, the parents 21 did not prohibit the interview, but merely raised issue with it after the fact. See id. at *4. 22 Finally, the County draws the Court’s attention to Wagner v. Cty. of Spokane, No. 23 2:19-CV-40-RMP, 2020 U.S. Dist. LEXIS 231601, at *8 (E.D. Wash. Dec. 9, 2020). In 24 Wagner, a social worker was investigating a case involving a dangerous dog living in the 25 home of minor children, which had previously attacked a child on more than one 26 occasion. See id. at *1–3. During the investigation, a social worker went to the family 27 home while neither parent was present. See id. at *4. While there, she entered the home 28 and checked on the food and sleeping arrangements. See id. She left after 20–30 minutes 1 and “no children were taken into state custody.” Id. Because the district court in Wagner 2 found that no actual loss of custody occurred, it granted summary judgment for the 3 defendants. See id. at *10. 4 Wagner is factually distinguishable. The parents did not prohibit or qualify 5 interviews of their children and the children were never interviewed. Moreover, the 6 familial association claim in Wagner was based upon an alleged loss of custody. See id. 7 Here, Williams prohibited interviews absent Minor Plaintiffs’ attorney, interviews 8 nonetheless took place without an attorney present, and Adult Plaintiffs now bring a 9 claim for loss of control and management.4 10 In sum, neither Scanlon nor Wagner are controlling and both are factually 11 distinguishable. Importantly, neither case involved a prohibition on interviews by a 12 parent or a resulting claim based upon the right to control or manage a child. 13 Accordingly, the Court’s ruling in its Summary Judgment Order was not clear error in 14 light of these cases. 15 C. The Court’s Ruling Was Not Clear Error 16 The County’s sole basis for reconsideration is that Adult Plaintiffs’ Fourteenth 17 Amendment familial association claim requires a showing of actual loss of custody 18 pursuant to Capp, Dees, Scanlon, and Wager. However, this argument misapprehends 19 the nature of Adult Plaintiffs’ claim, which is based upon a loss of control and 20 management and not loss of custody. Moreover, as explained above, none of those cases 21 stand for the proposition that a familial association claim based upon a loss of control and 22

23 4 To the extent the County argues that the district court in Wager concluded that all familial association 24 claims require actual loss of custody, the Court is unmoved. See Wagner, 2020 U.S. Dist. LEXIS 25 231601, at *8 (“The Ninth Circuit has held that to assert a cognizable Fourteenth Amendment claim plaintiffs must establish that an actual loss of custody occurred; the mere threat of separation or being 26 subject to an investigation, without more, is insufficient.”). As noted, the Ninth Circuit applies this standard in loss of custody familial association claims. Moreover, the Court does not read Wagner to 27 stand for such a proposition, as the district court recognized that “[a] cause of action does not lie where the social worker is accused of seizing a child and the parent has not actually lost control over the child. 28 1 management nonetheless still requires a showing of loss of custody. Therefore, the 2 County has not demonstrated that the Court’s ruling on this claim in the Summary 3 Judgment Order was in clear error. 4 Instead, the Court reads Capp and Dees to say that a Fourteenth Amendment 5 familial association claim based upon the separation of parent from child during an 6 interview, as an alleged loss of custody, requires a showing of actual loss of custody. It 7 follows then that a plaintiff claiming loss of control or management must show actual 8 loss of control or management. That was precisely the issue before the Court on 9 summary judgment. The Court will not re-analyze its finding of a genuine issue of 10 material fact as the County does not claim this was in error. Nonetheless the Court 11 reiterates that Adult Plaintiffs sufficiently allege that the County’s decision to interview 12 Minor Plaintiffs in direct contravention to Williams’ stated choice on the matter deprived 13 Adult Plaintiffs of their right to care, control, and manage Minor Plaintiffs. See Doc. No. 14 217 at 22. Whether this decision in fact violated the Fourteenth Amendment—i.e., 15 whether it constitutes an actual loss of control that was deliberately indifferent to Adult 16 Plaintiffs’ familial rights in a conscience-shocking manner—is a question of fact that 17 must go to a jury. 18 19 20 21 22 *** 23 24 25 26 27 28 ] IV. CONCLUSION 2 Having reviewed the Summary Judgment Order, the Court is satisfied that it 3 ||committed no error. The County has not provided any newly discovered evidence, nor 4 there been an intervening change in controlling law. And as explained above, neither 5 || Capp, Dees, Scanlon, nor Wagner hold that in the Ninth Circuit, a Fourteenth 6 || Amendment familial association claim based upon loss of control or management 7 requires a showing of loss of custody. Accordingly, because Adult Plaintiffs do not claim 8 || loss of custody, they need not show loss of custody. The Court therefore DENIES the 9 || County’s motion for reconsideration. 10 IT IS SO ORDERED. 11 Dated: June 7, 2021 12 Midi li - Le tolls 13 HON. MICHAEL M. ANELLO 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28