Manda et al v. Albin et al., No. 5:2019cv01947 - Document 42 (N.D. Cal. 2019)

Court Description: ORDER granting 27 Motion to Dismiss; granting 16 Motion to Dismiss. Signed by Judge Edward J. Davila on November 25, 2019. Plaintiffs may file an amended complaint by December 27, 2019. Failure to do so, or failure to cure the deficiencies addressed in this Order, will result in dismissal of Plaintiffs' claims with prejudice.(ejdlc2S, COURT STAFF) (Filed on 11/25/2019)

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Manda et al v. Albin et al. Doc. 42 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 AVANTHI MANDA, et al., Case No. 5:19-cv-01947-EJD Plaintiffs, 9 v. 10 11 CATHERINE ALBIN, et al., United States District Court Northern District of California Defendants. 12 13 ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS Re: Dkt. Nos. 16, 27 The Complaint names multiple defendants: (1) the “City Defendants”—the City of 14 Sunnyvale, Sunnyvale Police Officers Matthew Meyer, Jesse Ashe, Anthony Serrano, Gregory 15 Giguiere, and ten Doe Defendants (who are also police officers)—and (2) Dr. Catherine Albin. 16 Complaint for Damages (“Compl.”) ¶ 20, Dkt. 1. Defendant Albin is the director of the Northern 17 California Pediatric ICU for Kaiser Medical Group and a general pediatrician with special training 18 and a fellowship in pediatric critical care medicine. Id. ¶ 37. She “holds herself out as having 19 special expertise in the area of physical child abuse.” Id. Plaintiffs contend Defendant Albin 20 garnered this “special expertise” when she served as the Director of the Center for Child 21 Protection for the County of Santa Clara. Id. ¶ 38. Defendant Albin is “the resident child abuse 22 expert for Santa Clara County.” Id. ¶¶ 36, 39. In that capacity, she provides child abuse reports 23 for Santa Clara County Department of Family & Children’s Services (“DFCS”), consults with 24 local law enforcement, and testifies for public entities in court. Id. ¶ 39. Avinash Yerva (“A.Y.”) 25 is the appointed Guardian ad Litem of the minor child for the purposes of this litigation. Id. ¶ 7. 26 27 28 Defendants argue, pursuant to separate theories, that Plaintiffs have not adequately pled a Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 1 Dockets.Justia.com 1 Section 1983 claim. City Defendants also argue Plaintiffs have not pled a Monell claim. The 2 Court finds this motion suitable for consideration without oral argument. See N.D. Cal. Civ. L.R. 3 7-1(b). Having considered the Parties’ papers, Defendants respective motions to dismiss are 4 GRANTED without prejudice, except as to Plaintiffs’ ratification claim. 5 6 7 BACKGROUND A. Factual Background On April 7, 2017, Plaintiffs Avanthi Manda and Surender Yerva (“Plaintiffs”) brought 8 their three-month-old son, minor A.Y., to Kaiser Hospital in Sunnyvale, California, because he 9 was not eating and had a fever. Id. ¶ 20. A.Y. was checked by a Kaiser physician and a urine 10 United States District Court Northern District of California I. analysis and culture was conducted. Id. A.Y. was sent home with instructions and Tylenol. Id. 11 On April 8, 2017, Plaintiffs brought A.Y. back to Kaiser for a follow-up visit. Id. ¶ 21. 12 A.Y. was diagnosed with a urinary tract infection. Id. A day later, on April 9, 2017, Plaintiffs 13 brought A.Y. back to Kaiser for further follow-up, where he was allegedly diagnosed with an E. 14 Coli infection. Id. ¶ 22. Plaintiffs claim the medical provider mistakenly considered the E. Coli 15 count low and only provided an oral antibiotic. Id. As a result of this misdiagnosis and 16 inadequate antibiotic, A.Y. developed sepsis and his urinary tract infection spread to the dura 17 mater (a thick membrane of dense irregular connective tissue surrounding the brain and spinal 18 cord). Id. ¶ 23. This caused meningitis and exacerbated A.Y.’s condition. Id. 19 On April 11, 2017, Plaintiff Manda discovered A.Y. suffering from a fever and possibly 20 seizing. Id. ¶ 24. She brought him back to Kaiser. Id. ¶ 25. Shortly after arrival, Defendant 21 Albin allegedly took A.Y. off antibiotics entirely, which further exacerbated his condition. Id. 22 ¶ 26. A.Y. was then diagnosed with E. Coli Meningitis. Id. ¶ 27. A.Y. was taken for a Magnetic 23 Resonance Imaging (“MRI”) scan. Id. ¶ 28. Dr. Saket, a neuroradiologist, concluded the MRI 24 showed abnormal findings in the brain and surrounding tissue and was “consistent with non- 25 accidental head trauma, specifically, Shaken Baby Syndrome.” Id. Plaintiffs claim that Dr. Saket 26 was not informed by Defendant Albin that A.Y. was suffering from E. Coli. Meningitis or that 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 2 1 A.Y. was misdiagnosed and given the wrong medication (thus exacerbating his physical 2 condition). Id. Plaintiffs argue the MRI showed signs of E. Coli Meningitis, not Shaken Baby 3 Syndrome, and that if Dr. Saket had known A.Y.’s full history, he would not have concluded the 4 MRI showed evidence of Shaken Baby Syndrome. Id. United States District Court Northern District of California 5 Plaintiffs further contend that during discussions with Dr. Saket regarding his MRI 6 findings, Defendant Albin “purposely did not disclose to [Dr.] Saket the fact that A.Y. had been 7 misdiagnosed and mistreated by Kaiser physicians, including [Defendant] Albin, regarding the E. 8 Coli Meningitis.” Id. ¶ 29. They allege that after discussions with Dr. Saket about his MRI 9 findings, Defendant Albin “again purposely took no action to inform [Dr.] Saket of the E. Coli 10 Meningitis of A.Y.” Id. ¶ 30. She also “allowed the false record” she created through 11 “manipulation” to persist in A.Y.’s medical records. Id. She allegedly “knew” this “false record” 12 would be accessed and relied on by other future medical providers and serve as a baseline for their 13 opinions and conclusions regarding the condition and causation of A.Y.’s injuries. Id. Defendant 14 Albin’s decision to “manipulate” the MRI record by omitting critical information was “calculated” 15 to create a paper trail of physician’s records showing that A.Y. needed medical treatment for 16 Shaken Baby Syndrome. Id. ¶ 31. Based on Defendant Albin’s experience, she knew this would 17 support her false claim of Shaken Baby Syndrome and that Plaintiffs were responsible for A.Y.’s 18 injuries. Id. ¶¶ 30–31. Defendant Albin made “other medical providers . . . unwitting participants 19 in her scheme based on her manipulation of the medical record.” Id. ¶ 31. 20 Dr. Saket only learned in August 2017, during a Juvenile Court proceeding, that A.Y. was 21 suffering from E. Coli Meningitis. Id. ¶ 33. Dr. Saket was “not provided any clinical history that 22 there was suspicion of infection.” Id. ¶ 34. Plaintiffs contend that if Dr. Saket knew about the 23 Meningitis during his diagnosis, he would not have concluded A.Y. suffered from non-accidental 24 head trauma. Id. Plaintiffs argue that Defendant Albin interfered with the legal process during the 25 juvenile court proceeding and caused Dr. Saket to change his testimony and “directed him to 26 testify to a new finding supporting child abuse on another basis.” Id. ¶ 35. It was Defendant 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 3 1 Albin, as the child abuse expert for the Santa Clara County, who “initiated the accusation and 2 ultimately inculpated and incriminated [Plaintiffs]” during a joint investigation by DFCS, the 3 Sunnyvale Police Department, and Defendant Albin. Id. ¶ 36. Defendant Albin, allegedly, “told 4 police the parents [Plaintiffs] were responsible for inflicting the injuries to A.Y.” and that she 5 manipulated the record to support this. Id. ¶ 40. Defendant Albin “knew at the time she 6 inculpated and incriminated [Plaintiffs] . . . police would act upon her recommendation and 7 remove the child from the custody of the parents.” Id. ¶ 41. She also knew the courts and DFCS 8 would act on her recommendation, which would cause permanent deprivation of familial 9 association. Id. ¶¶ 42–43. United States District Court Northern District of California 10 On some unspecified date, City Police Officer Defendants and Defendant Albin removed 11 A.Y. from Plaintiffs’ custody and care without “any lawful court order or warrant, or other legal or 12 just cause.” Id. ¶ 46. Allegedly, the joint investigation did not support a finding that Plaintiffs 13 inflicted A.Y.’s head trauma. Id. ¶ 47. According to Plaintiffs, Defendant Albin instructed the 14 police that Plaintiffs were responsible for inflicting the head-trauma on A.Y. Id. ¶ 49. Defendant 15 Albin pushed a false narrative that Manda was unable to care for A.Y. because of a medical 16 condition, A.Y.’s demeanor, and her post-partum mental state. Id. City Police Officer Defendants 17 and Defendant Albin told Plaintiffs they were liars and were responsible for injuring A.Y. Id. 18 ¶ 50. Plaintiffs argue there was neither an imminent risk of serious bodily injury to A.Y. nor any 19 justification for removing A.Y. without a warrant. Id. ¶ 53. 20 Plaintiffs contend that Defendants (collectively) breached 42 U.S.C. § 1983 by: (1) 21 violating Plaintiff A.Y.’s Fourth Amendment rights by seizing A.Y. without a warrant or court 22 order, id. ¶¶ 59–61; (2) violating Plaintiffs Manda and Yerva Fourteenth Amendment rights to 23 freedom of association and familial association by seizing A.Y. without a warrant, id. ¶¶ 62–66; 24 and (3) conspiring and fabricating evidence, id. ¶¶ 67–74. Plaintiffs also contend that Defendant 25 Albin both intentionally and negligently inflicted emotional distress. Id. ¶¶ 75–94. Finally, 26 Plaintiffs assert a Monell claim as to Defendant City of Sunnyvale. Id. ¶¶ 95–97. Plaintiffs seek 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 4 1 compensatory, punitive, and exemplary damages. Id. at 20. B. Procedural History 2 On June 20, 2019, City Defendants filed a motion to dismiss Plaintiffs’ Complaint. 3 4 Motion to Dismiss Plaintiffs’ Complaint (“City Mot.”), Dkt. 16. Plaintiffs submitted an 5 opposition to this motion to dismiss on July 19, 2019.1 Opposition/Response re Motion to Dismiss 6 (“City Opp.”), Dkt. 31. City Defendants replied to this opposition on July 26, 2019. Reply re 7 Motion to Dismiss (“City Reply”), Dkt. 32. On July 16, 2019, Defendant Albin submitted a motion to dismiss Plaintiffs’ Complaint. United States District Court Northern District of California 8 9 Motion to Dismiss Plaintiffs’ Complaint (“Albin Mot.”), Dkt. 27. On July 30, 2019, Plaintiffs 10 submitted an opposition to this Motion to Dismiss. Opposition/Response re Motion to Dismiss 11 (“Albin Opp.”), Dkt. 33. On August 20, 2019, after a stipulation to extend the time to reply, 12 Defendant Albin filed a reply. Reply re Motion to Dismiss (“Albin Reply”), Dkt. 36. II. 13 LEGAL STANDARDS A. Rule 12(b)(6) Motion to Dismiss2 14 To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual 15 16 matter, accepted as true, to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 17 556 U.S. 662, 678 (2009) (discussing Federal Rule of Civil Procedure 8(a)(2)). A claim has facial 18 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 19 inference that the defendant is liable for the misconduct alleged. Id. The requirement that the 20 court must “accept as true” all allegations in the complaint is “inapplicable to legal conclusions.” 21 Id. Dismissal can be based on “the lack of a cognizable legal theory or the absence of sufficient 22 23 24 25 26 27 28 1 Should Plaintiffs choose to amend their complaint or bring/challenge another motion, the Court asks that they follow Civil Local Rule 3-4(d). It is unhelpful to the Court to have case names without reporter citations. 2 A large portion of Plaintiffs Complaint focuses on fabrication, falsity, and fraud by Defendants. See, e.g., Compl. ¶ 48. Because Defendants only address Federal Rule of Civil Procedure 8(a)(2), the Court does not address Federal Rule of Civil Procedure 9(b), which states the elevated pleading standard for allegations of fraud or mistake. The inconsistency in the allegations and the pleading standard addressed is based on the parties’ papers; the opinion should not be construed as supporting a Rule 8 standard for allegations of fraud. Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 5 1 facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 2 699 (9th Cir. 1990). Qualified immunity is properly brought as a motion to dismiss under Rule 3 12(b)(6). Uptergrove v. United States, 2008 WL 2413182, at *6 (E.D. Cal. 2008). B. Section 1983 Action 4 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must show “(1) that a person acting 6 under color of state law committed the conduct at issue, and (2) that the conduct deprived some 7 claimant of some right, privilege, or immunity protected by the Constitution or laws of the United 8 States.” Leer v. Murphy, 844 F.2d 628, 623–33 (9th Cir. 1988). III. 9 A. City Defendants’ Motion to Dismiss 10 City Defendants do not dispute they were acting under color of state law; the thrust of their 11 United States District Court Northern District of California DISCUSSION 12 motion to dismiss is that (1) qualified immunity bars Plaintiffs suit and (2) that did not deprive 13 Plaintiffs of any Constitutional or legal right. Because the Court finds the Qualified Immunity 14 argument dispositive, it only addresses that argument. Defendants also argue that Plaintiffs do not 15 plead a Monell claim. 1. Qualified Immunity as to Section 1983 Claims3 16 a. Legal Standard 17 The doctrine of qualified immunity protects government officials from “liability for civil 18 19 damages insofar as their conduct does not violate clearly established statutory or constitutional 20 rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 21 (1982). In Saucier v. Katz, the Supreme Court established a two-part approach for analyzing 22 qualified immunity. 533 U.S. 194 (2001). First, a court must decide whether the facts alleged 23 make out a violation of a constitutional right. Id. at 201. Then, if this first step is satisfied, the 24 court must decide whether the right at issue was “clearly established” at the time of defendant’s 25 26 27 28 3 City Defendants do not dispute they were “acting under color of state law” when the conduct at issue was committed. The Court thus does not address the applicability of Section 1983 as to City Defendants. Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 6 1 alleged misconduct.” Id. The Saucier sequence of analysis is not mandatory—the court may 2 exercise discretion in determining which of the two prongs to address first. Pearson v. Callahan, 3 555 U.S. 223, 241–42 (2009). It may be unnecessary to discuss the underlying constitutional right 4 (step one) if the defendants would be entitled to qualified immunity in any event because no 5 “clearly established constitutional right” is shown. Pearson v. Callahan, 555 U.S. 223, 232 6 (2009) Thus, in assessing a defense of qualified immunity, deciding whether plaintiff’s claimed 7 right was “clearly established” is the central inquiry. Harlow, 457 U.S. at 818–19. 8 United States District Court Northern District of California 9 The court must discern whether “the [officer] acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events 10 can be construed . . . after the fact.” Hunter v. Bryant, 502 U.S. 224, 228 (1991). The court 11 should consider only the facts that were knowable to the defendant officers.” White, 137 S. Ct. at 12 550. This provides officers “ample room for mistaken judgments” by protecting “all but the 13 plainly incompetent or those who knowingly violate the law.” Hunter, 502 U.S. at 229. 14 The Supreme Court has recently reiterated the longstanding principle that a “clearly 15 established” constitutional right “should not be defined ‘at a high level of generality.’” White, 137 16 S. Ct. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). The Ninth Circuit does not 17 require a case “directly on point,” however the precedent cited must have “placed the statutory or 18 constitutional question beyond debate.” Reese v. Cty. of Sacramento, 888 F.3d 1030, 1038 (9th 19 Cir. 2018). This ensures the “clearly established law” is “particularized” to the facts of the case. 20 Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[G]eneral statements of the law are not 21 inherently capable of giving fair and clear warning” to officers since the unlawfulness of the 22 conduct must be apparent “in [] light of pre-existing law.” White, 137 S. Ct. at 552 (citations 23 omitted). In the Fourth Amendment context, where it can be difficult for an officer to determine 24 how the relevant legal doctrine will apply to the factual situation the officer confronts, officers are 25 entitled to qualified immunity “unless existing precedent ‘squarely governs’ the specific facts at 26 issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). Thus, Plaintiff must show the law was so 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 7 1 clearly established that every reasonable officer would understand that what they are doing 2 violates the law. Reichle v. Howards, 566 U.S. 658, 664 (2012). Because qualified immunity is “an immunity from suit rather than a mere defense to 3 4 liability . . . it is effectively lost if a case is erroneously permitted to go to trial.” Pearson, 555 5 U.S. at 231 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The driving force behind the 6 defense is a “desire to ensure that ‘insubstantial claims’ against government officials [will] be 7 resolved prior to discovery.” Id. (alteration in original) (quoting Anderson v. Creighton, 483 U.S. 8 635, 640 (1987)). Thus, the Supreme Court has repeatedly stressed the need to resolve questions 9 of immunity at the earliest possible stage of litigation. See Hunter, 502 U.S. at 228 (“Immunity 10 ordinarily should be decided by the court long before trial.”). b. Discussion United States District Court Northern District of California 11 12 The Court, in its discretion, addresses the second prong first and finds it dispositive. 13 Harlow, 457 U.S. at 818–19. A claim by parents regarding the unconstitutional removal of 14 children is assessed under the First and Fourteenth Amendments for interference with the right to 15 family association, while a claim by the child who was seized is assessed under the Fourth 16 Amendment. Alberici v. Cty. of L.A., 2013 WL 5573045, at *17 (C.D. Cal. Oct. 9, 2014). 17 Because “the same legal standard applies in evaluating First, Fourth and Fourteenth Amendment 18 claims for removal of children,” the claims are analyzed together. Wallis v. Spencer, 202 F.3d 19 1126, 1137 n.8 (9th Cir. 2000). The general standard is: 20 Officials may remove a child from the custody of its parent without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury. 21 22 23 Id. at 1138 (emphasis added); see also James v. Rowlands, 606 F.3d 646, 652 n.2 (9th Cir. 2010).4 24 25 26 27 28 4 City Defendants’ argument that a different standard applies (or that this one is too generic) misses the mark. Mot. at 15–16. To the extent Defendants use excessive force cases to establish Plaintiffs’ burden of proving a specific standard, the Court finds this unavailing. Plaintiffs provide a specific standard because the precedent cited “placed the statutory or constitutional question Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 8 United States District Court Northern District of California 1 A government official may intrude on a parent’s custody of their children without a 2 warrant if, at the time of the seizure, the official has information that establishes “reasonable cause 3 to believe the child is in imminent danger of serious bodily injury and the scope of the intrusion is 4 reasonably necessary to avert that specific injury.” Mabe v. San Bernardino Cty., Dep’t of Pub. 5 Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001). Exigency is established by a “totality of the 6 circumstances.” Alberici, 2013 WL 5573045 at *17. “An indictment or serious allegations of 7 abuse which are investigated and corroborated usually gives rise to a reasonable inference of 8 imminent danger sufficient to justify taking children into temporary custody.” Ram v. Rubin, 118 9 F.3d 1306, 1311 (9th Cir. 1997). The age of the child can weigh in favor of exigency; if the child 10 is young, it may be unable to relay abuse as “babies [are] incapable of testifying.” Dietz v. Damas, 11 932 F. Supp. 431, 447 (E.D.N.Y. 1996). 12 A.Y., a three-month old infant, was removed from Plaintiffs Manda and Yerva care and 13 custody without a court order or warrant. See Compl. ¶ 53. Thus, the issue is whether a 14 reasonable officer, under the same situation and circumstances, could believe A.Y. was in 15 “imminent risk of serious bodily injury.” Defendants argue they reasonably believed, based on the 16 information given to them, that A.Y. was in serious danger due to the medical diagnosis of Shaken 17 Baby Syndrome, and that there was no “clearly established” precedent requiring them to second- 18 guess the findings and conclusions of medical professionals. Mot. at 16. Plaintiffs, in response, 19 argue that Defendants’ focus on “second guessing medical providers” is misplaced because the 20 only issue is whether the parents presented an “imminent risk of inflicting serious bodily injury.” 21 Opp. at 19. This misses the forest for the trees—part of resolving the qualified immunity issue 22 depends on assessing the reasonableness of the officers’ actions. See Mabe, 237 F.3d at 1106. 23 The Court must assess whether the officers acted reasonably based on the information provided to 24 25 26 27 28 beyond debate.” Reese, 888 F.3d at 1038. The unlawfulness of the conduct need only have been apparent in light of preexisting law. See Ram, 118 F.3d at 1310 (holding preexisting law clearly established that to seize a child, officials need a court order or a warrant, unless the child is in “imminent danger of harm”). Thus, Plaintiffs have identified a factually similar authority “squarely on point.” Mot. at 16. Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 9 1 them by the medical providers. See Hunter, 502 U.S. at 228. Then, the Court must determine, if 2 exigency is established based the totality of the circumstances. See Dietz, 932 F. Supp. at 447. United States District Court Northern District of California 3 While the Court disagrees with Defendants’ argument regarding the applicable standard, 4 see supra n.4, the Court agrees with Defendants that it was reasonable to believe “imminent 5 danger” existed. Alberici, 2013 WL 5573045, at *17 (holding that a government official may 6 seize a child if, at the time of the seizure, there is “reasonable cause to believe the child is in 7 imminent danger of serious bodily injury”). The City Defendants relied on Defendant Albin and 8 Dr. Saker’s findings, as well as an independent investigation, to conclude that the parents were 9 responsible for inflicting the non-accidental head trauma on A.Y. Compl. ¶ 49. Plaintiffs provide 10 no case law indicating that Defendants could not rely on a medical provider’s evaluations. Cf. 11 Reichle, 566 U.S. at 664 (noting that the plaintiff must show precedent “clearly establishing” a 12 requirement to do, or not do, something). 13 Plaintiffs neither contend that it was unreasonable to rely on these findings nor do they 14 argue that Defendants knew of Defendant Albin’s alleged fabrication. Instead, Plaintiffs contend 15 that there was no imminent danger because A.Y. was at the hospital and Defendants knew A.Y. 16 would remain there under the care of hospital staff and the watchful eye of law enforcement. 17 Compl. ¶ 53. But Plaintiffs do not provide any evidence or facts indicating that A.Y. could not 18 leave the hospital or that he certainly would remain under the “watchful eye of law enforcement.” 19 To the contrary, Plaintiff pleads facts indicating that A.Y. had been removed from the hospital 20 multiple times and kept getting worse. See id. ¶¶ 20–27. A reasonable officer with this 21 knowledge could have concluded there was insufficient time to get a warrant as there was no 22 guarantee A.Y. would remain in the hospital. See Hunter, 502 U.S. at 229 (noting that qualified 23 immunity provides officers “ample room for mistaken judgments”). Hence, a reasonable officer 24 could have believed that A.Y. was in imminent danger since it was uncertain A.Y. would stay at 25 the hospital. Cf. Ram, 118 F.3d at 1311 (holding imminent danger not shown when officer acted 26 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 10 1 on two-year old allegations that had twice been investigated and unconfirmed).5 Further, two 2 separate doctors had diagnosed A.Y. with Shaken Baby Syndrome and Defendant Albin allegedly 3 blamed Plaintiffs Manda and Yerva for A.Y.’s injuries. Compl. ¶ 49. Finally, A.Y., because of 4 his age, could not testify or relay what abuse, if any, was occurring. Dietz, 932 F. Supp. at 447. Considering the totality of the circumstances, a reasonable officer could have believed 5 6 A.Y. was in imminent danger from Plaintiffs Manda and Yerva and needed to be removed from 7 their care. It is appropriate for the Court to make this determination as “[i]mmunity ordinarily 8 should be decided by the court long before trial.” See Hunter, 502 U.S. at 228. Accordingly, City 9 Defendants’ motion to dismiss on qualified immunity grounds is GRANTED. 2. Monell Claim 10 Plaintiffs Monell claim is based on Defendant City of Sunnyvale allegedly United States District Court Northern District of California 11 12 “encourag[ing][,] tolerat[ing], [and] ratif[ying]” Officer Defendants’ acts and/or omissions. 13 Compl. ¶ 96. The City was “deliberately indifferent” to policies, patterns, practices, and customs 14 relating to removing children from their parents. Id. a. Legal Standard 15 “A Monell claim for § 1983 liability against a public entity may be stated in one of three 16 17 circumstances—(1) when official policies or established customs inflict a constitutional injury; (2) 18 when omissions or failures to act amount to a local government policy of ‘deliberate indifference’ 19 to constitutional rights; or (3) when a local government official with final policy-making authority 20 ratifies a subordinate’s unconstitutional conduct.” Carmona v. Bolanos, 2019 WL 2247832, at *3 21 (N.D. Cal. May 23, 2019). A sufficient causal connection between the enforcement of the 22 municipal policy or practice and the violation of the federally protected right must be shown. 23 Castro v. Cty. of L.A., 833 F.3d 1060, 1078–79 (9th Cir. 2016) (quoting Bd. of Cty. Comm’rs of 24 25 26 27 28 5 Defendants do not specifically argue that the conspiracy cause of action should be dismissed on qualified immunity grounds, but because the conspiracy is grounded in violations of the Fourth and Fourteenth Amendment, which the Court finds are barred by qualified immunity, the conspiracy charge is dismissed on these same grounds. Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 11 1 Bryan Cty., Okla. v. Brown, 520 U.S. 397, 404–05 (1997)). The Monell violation must be pled 2 with specificity as required by Twombly and Iqbal; without allegations of plausible facts 3 supporting a policy or custom, a Monell claim should be dismissed. Sanchez v. City of Fresno, 4 914 F. Supp. 2d 1079, 1097 n.7 (E.D. Cal. 2012). United States District Court Northern District of California 5 A municipality is liable under Section 1983 only where its policies are “the moving force” 6 behind the constitutional violation. Brown, 520 U.S. at 405. Indeed, “rigorous standards of 7 culpability and causation must be applied to ensure that the municipality is not held liable solely 8 for the actions of its employee.” Id.; see also City of Canton, Ohio v. Harris, 489 U.S. 378, 391– 9 92 (1989) (discussing the consequences of adopting a lesser standard of fault and causation, as 10 doing so would “open municipalities to unprecedented liability under § 1983” and result in federal 11 judges second-guessing municipal employee-training programs, implicating federalism issues). 12 b. Discussion 13 Defendants assert three grounds for dismissing the Monell claim; they argue that 14 insufficient facts are stated to show: (1) a pattern, policy, or custom of constitutional injury, (2) a 15 ratification claim, and (3) an inadequate training claim. The Court addresses these in turn. 16 17 i. Pattern, Custom, or, Policy To establish municipal liability based on a pattern, custom, or policy, the particular custom 18 or practice must be “so widespread” as to have the force of law. Brown, 520 U.S. at 404; 19 Praprotnik, 485 U.S. at 127 (noting custom or practice must be “permanent and well settled”). A 20 plaintiff may not merely “identify a custom or policy, attributable to the municipality, that caused 21 his injury. [He] must also demonstrate that the custom or policy was adhered to with ‘deliberate 22 indifference to the constitutional rights of [others].’” Castro, 833 F.3d at 1076 (quoting City of 23 Canton, 489 U.S. at 392). 24 The allegations in the Complaint only relate to A.Y. being taken; there is no showing of a 25 “widespread” practice of wrongfully depriving parents of their children or of any particular illegal 26 policy. Compare Johnson v. City of Vallejo, 99 F. Supp. 3d 1212, 1218 (E.D. Cal. 2015) 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 12 1 (“Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be 2 founded upon practices of sufficient duration, frequency and consistency that the conduct has 3 become a traditional method of carrying out policy.” (citation and quotation marks omitted)), with 4 Opp. at 20 (arguing A.Y.’s seizure shows illegal policy, practice, or custom). While Plaintiffs are 5 correct that “deliberate indifference” may be inferred, see Opp. at 20, they misread the standard 6 recited in City of Canton. There, the Supreme Court specifically noted the need to show a “pattern 7 of violations from which a kind of ‘tacit authorization’ by city policymakers can be inferred.” 8 City of Canton, 489 U.S. at 397 (Brennan, J., concurring). United States District Court Northern District of California 9 Plaintiffs allege only conclusory and vague policies, customs, and practices, such as the 10 City of Sunnyvale allows children to be removed from their parents without a warrant, court order 11 or evidence of imminent risk of serious bodily injury. Opp. at 21; Compl. ¶ 96. Such conclusory 12 allegations, without some pattern or knowledge by the City of such deprivation, do not establish a 13 pattern, practice, or custom of deliberate indifference by the City. It only permits the Court to 14 infer that specific employees allegedly violated Plaintiffs’ constitutional rights. “That a plaintiff 15 has suffered a deprivation of his federal rights at the hands of a municipal employee will not alone 16 permit an inference of municipal culpability and causation; the plaintiff will simply show that the 17 employee acted culpably.” Brown, 520 U.S. at 406–07. Such “respondeat superior liability” has 18 repeatedly been rejected. See, e.g., id. at 415. Some “deliberate action” directly causing a 19 deprivation of federal rights must be attributable to the municipalities. Id. Vague, conclusory 20 allegations of City policies based on one alleged violation, is insufficient to show either an 21 actionable custom, policy, or practice or “deliberate indifference to [] constitutional rights.” 22 Castro, 833 F.3d at 1076; Johnson, 99 F. Supp. 3d at 1218 (noting that “widespread” practices or 23 evidence of “repeated” violations can support inference of unconstitutional custom or practice). 24 Accordingly, no actionable custom, practice, or policy has been pled. 25 26 27 28 ii. Ratification Claim A municipality can be liable for an “isolated constitutional violation” if the final Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 13 1 policymaker “ratified” a subordinate’s actions. Christie v. Iopa, 176 F.3d 1231, 1238 (9th Cir. 2 1999). Ordinarily, this is a jury question, but it must be adequately pled to survive a motion to 3 dismiss. Id. at 1238–39. A policymaker’s knowledge of an unconstitutional act does not, by itself 4 constitute ratification. Id. at 1239. The plaintiff must show the policymaker approved of the 5 subordinate’s act—mere refusal to overrule a subordinate’s completed act does not constitute 6 approval. Id.; Weisbuch v. Cty. of L.A., 119 F.3d 778, 781 (9th Cir. 1997) (“To hold cities liable 7 under section 1983 whenever policymakers fail to overrule the unconstitutional discretionary acts 8 of subordinates would simply smuggle respondeat superior liability into section 1983.”). 9 Knowledge by the policymakers must be shown before the constitutional violations ceased. 10 United States District Court Northern District of California 11 Christie, 176 F.3d at 1239. Plaintiffs summarily state that the City “ratified” Defendant Officer’s conduct. Compl. 12 ¶ 96. No facts are stated to show City policymakers knew of the alleged unconstitutional conduct. 13 Mot. at 20. Further, Plaintiffs do not appear to dispute that the Complaint fails to state a Monell 14 ratification claim. Reply at 14; In re TFT-LCD (Flat Panel) Antitrust Litig., 586 F. Supp. 2d 1109, 15 1131 (N.D. Cal. 2008) (“Plaintiffs’ opposition does not address this claim or defendants’ 16 arguments, and thus the Court concludes that plaintiffs have abandoned this claim. The Court 17 GRANTS defendants’ motion to dismiss this claim without leave to amend.”). Accordingly, a 18 ratification claim is not shown, and Plaintiffs are DENIED leave to amend the ratification claim. 19 20 iii. Inadequate Training/Supervision A municipality can also be liable under Section 1983 for failure to adequately train, 21 supervise, or discipline its employees. City of Canton v. Harris, 489 U.S. 378, 387 (1989). In 22 limited circumstances, a local government’s decision not to train certain employees about their 23 legal duty to avoid violating citizens’ rights “may rise to the level of an official government policy 24 for purposes of § 1983.” Connick v. Thompson, 563 U.S. 51, 61 (2011). A municipality’s 25 culpability for a deprivation of rights, however, is “at its most tenuous where a claim turns on a 26 failure to train.” Id. Municipal liability for failure to train attaches only where “the failure to train 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 14 1 amounts to deliberate indifference to the rights of persons with whom the police come into 2 contact.” City of Canton, 489 U.S. at 388. Likewise, a failure to supervise generally gives rise to 3 Section 1983 liability in situations where “there is a history of widespread abuse. . . . [because] 4 [o]nly then may knowledge be imputed to the supervisory personnel.” See Wellington v. Daniels, 5 717 F.2d 932, 936 (4th Cir. 1983) (collecting cases). “A single act or isolated incidents are 6 normally insufficient to establish supervisory inaction upon which to predicate § 1983 liability.” 7 Id. 8 9 10 United States District Court Northern District of California 11 As established above, see supra III.2.b.i., Plaintiffs have only established a “single act,” which is insufficient to establish supervisory inaction. Accordingly, Plaintiffs have not met their burden in establishing inadequate supervision. Plaintiffs cite to Dawkins v. City of Honolulu to argue that one alleged constitutional 12 violation can itself show that the City “failed to adequately train and/or supervise” its officers. 13 761 F. Supp. 2d 1080, 1087 (D. Haw. 2010); but see Long v. Yomes, 2011 WL 4412847, at *5 & 14 n.8 (D. Haw. Sept. 20, 2011) (arguing an isolated event is insufficient to establish a custom and 15 noting “Dawkins's ruling on the Monell-based failure to train and/or supervise claim seems 16 questionable under cases such as City of Canton v. Harris, 489 U.S. 378, 388–92 (1989)”). This 17 Court agrees with the Long court—one event is insufficient to establish failure to train or 18 supervise. An alternative conclusion would allow municipalities to be held liable for failure to 19 train/supervise on a “lesser standard of fault” and endorse a “respondeat superior” theory of 20 liability. See City of Canton, 489 U.S. 388–92. Thus, one constitutional violation, without more, 21 is insufficient to establish failure to train/supervise. 22 Further, Plaintiffs’ Complaint lacks any facts about the City’s training programs and fails 23 to allege any inadequacies with the program. Conclusory statements like the City needs “more or 24 different training, supervision, investigation or discipline” are insufficient. See Iqbal, 556 U.S. at 25 678 (noting that court does not “accept as true” “legal conclusions” pled in a complaint). 26 Accordingly, Plaintiffs have failed to plead a Monell claim. Defendants’ Motion to Dismiss is 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 15 1 2 3 B. Defendant Albin’s Motion to Dismiss Defendant Albin argues that Plaintiffs have pled insufficient facts demonstrating that she is 4 a “state actor.” Albin Mot. at 6. The Court declines to exercise supplemental jurisdiction over 5 Plaintiffs’ state law claims at this time. See infra III.B.3. 6 7 United States District Court Northern District of California GRANTED as to the Monell claim. 1. State Actor To establish a prima facie case under 42 U.S.C. § 1983, a plaintiff must show that the 8 action occurred under (1) “color of law” and (2) resulted in a deprivation of a constitutional right 9 or a federal statutory right. Leer, 844 F.2d at 623–33. In a Section 1983 action, the statutory 10 requirement of action “under color of state law” and the “state action” requirement of the 11 Fourteenth Amendment are “identical.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982). 12 First, the deprivation must be “caused by the exercise of some right or privilege created by the 13 State or by a rule of conduct created by the state.” Id. Second, the party charged with the 14 deprivation must be a person “who may fairly be said to be a state actor.” Id. While the second 15 Lugar prong does not restrict the application of the Constitution solely to governmental entities, a 16 “private party’s actions must be properly attributable to the State.” Roberts v. AT&T Mobility 17 LLC, 877 F.3d 833, 838 (9th Cir. 2017) (quotation marks and citations omitted). 18 “Private hospitals, doctors, and nurses are not generally considered state actors amenable 19 to suit under § 1983.” Sliwinski v. Maysent, 2019 WL 581720, at *4 (S.D. Cal. Feb. 13, 2019) 20 (citing Briley v. California, 564 F.2d 849, 855–56 (9th Cir. 1977) (“[P]rivate hospitals and 21 physicians have consistently been dismissed from § 1983 actions for failing to come within the 22 color of state law requirement of this section.”). 23 Plaintiffs must show specific facts establishing that Defendant Albin was an employee of 24 the City of Sunnyvale at the time of the alleged unconstitutional activity. Plaintiffs’ allegation, 25 however, that Defendant Albin is a private hospital physician employed by Kaiser Permanente 26 Medical Group undercuts the argument that she is a state actor. Compl. ¶¶ 37, 39. During the 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 16 United States District Court Northern District of California 1 alleged seizure of A.Y., Plaintiffs provide no facts showing that Defendant Albin acted as an 2 employee of the Sunnyvale Department of Public Safety. Instead, Plaintiffs provide only 3 conclusory allegations that during the relevant times “[Albin] was. . . a representative, employee, 4 or agent of the County of Santa Clara and City of Sunnyvale.” Id. ¶ 16. Such barebone 5 conclusory statements are entitled little deference. Iqbal, 556 U.S. at 678. 6 Likewise, Plaintiffs’ allegations that Defendant Albin was the Director for the County’s 7 Center for Child Protection and served as a child-abuse expert for DFCS fail to establish that in 8 April 2017, when she reported neglect, she was acting under color of law. Compl. ¶¶ 38, 39. 9 Contrary to Plaintiffs assertions, Defendant Albin’s past employment is irrelevant, it has no 10 bearing on the issue of whether she was a state actor at the time A.Y. was seized. Opp. at 9. Her 11 “special expertise” and “awareness that her recommendations would be acted upon” do not 12 establish that she was acting “under color of state law” because they do not show that she was a 13 state employee or officer. See Albin Opp. at 9. Plaintiffs provide no precedent to the contrary. 14 Nothing in Plaintiffs’ papers can lead this Court to believe a private physician, who reports 15 neglect, is a state actor simply because they communicate with police, have expertise in child 16 abuse, and formerly served as a state employee. Such a finding would no doubt open the scope of 17 “state actor” beyond the boundary established by the Ninth Circuit and the Supreme Court. See 18 Lugar, 457 U.S. at 936 (“Careful adherence to the ‘state action’ requirement preserves an area of 19 individual freedom by limiting the reach of federal law and federal judicial power. . . . A major 20 consequence is to require the courts to respect the limits of their own power as directed against 21 state governments and private interests.”). 22 2. Private Actor Subject to Section 1983 Liability 23 The state-action requirement for establishing Section 1983 liability reflects judicial 24 recognition that “most rights secured by the Constitution are only protected against infringement 25 by governments.” Lugar, 457 U.S. at 936. Thus, when the action challenged under Section 1983 26 is that of a private person, there must be “significant” state involvement in the action for it to meet 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 17 1 the “under color of state law” requirement. Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir. 2 1983). There are four tests for determining if a private actor can be considered a state actor for 3 Section 1983 purposes: (1) public function; (2) joint action; (3) government compulsion or 4 coercion; and (4) government nexus. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003). One 5 way the “joint action” test is satisfied is if a “conspiracy” is shown. Howerton, 708 F.2d at 382. 6 Plaintiff relies on the “joint action” and “close-nexus” test. United States District Court Northern District of California 7 a. Close Nexus/Joint Action Test 8 In order to be considered state action, when a private actor participates in a governmental 9 act, the court must find a sufficiently close nexus between the state and the private actor “so that 10 the action of the latter may be fairly treated as that of the State itself.” Jensen v. Lane Cty., 222 11 F.3d 570, 575 (9th Cir. 2000). The State must be “so far insinuated into a position of 12 interdependence with the [private party] that it was a joint participant in the enterprise. Jackson v. 13 Metropolitan Edison Co., 419 U.S. 345, 350 (1974). 14 While courts generally do not consider private doctors or hospitals state actors, courts have 15 found state action when a state delegates its obligation to provide medical care to inmates to a 16 private hospital or medical provider. See, e.g., Carl v. Muskegon Cty., 763 F.3d 592, 596 (6th Cir. 17 2014); Conner v. Donnelly, 42 F.3d 220, 225–26 (4th Cir. 1994) (holding private doctor who 18 treated inmate was a state actor even though he had no contract with the prison). For instance, in 19 Jensen, the Ninth Circuit held that Dr. Robbins, a private physician, was a state actor because the 20 record was clear that “Dr. Robbins and the County through its employees have undertaken a 21 complex and deeply intertwined process of evaluating and detaining individuals who are believed 22 to be mentally ill and a danger to themselves or others.” 222 F.3d at 575. The court relied on the 23 fact that “County employees intiate[d] the evaluation process” and looked to the “significant 24 consultation with and among the various mental health professionals (including both [private] and 25 [state] workers).” Id. The private actors helped develop and maintain the mental health policies 26 of the County Psychiatric Hospital. Id. The court was thus “convinced” the state so deeply 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 18 1 insinuated itself into the commitment process that there was a “sufficiently close nexus between 2 the State and the challenged action of the [defendant] so that the action of the [defendant] may be 3 fairly treated as that of the State itself.” Id. United States District Court Northern District of California 4 In contrast, here, Defendant Albin acted alone in her role as a treating physician at a 5 private hospital. She was neither under contract to provide services on behalf of the state, see 6 Carl, 763 F.3d at 596, nor did she provide services to someone in state custody, see Conner, 42 7 F.3d at 225–26. The “private doctor treating someone in state custody” series of cases are thus 8 inapplicable. Further, merely being a “child abuse expert,” without showing county or state 9 involvement in the decision of whether A.Y. was neglected, is insufficient to show “significant” 10 state involvement. Opp. at 14. It does not rise to the level of interconnectivity explained in 11 Jensen because it does not show interconnectivity. Cf. Jensen, 222 F.3d at 575 (noting significant 12 consultations among the various mental health professionals and the private psychiatrists’ 13 involvement in developing county psychiatric hospital standards). 14 Likewise, Defendant Albin initially reported the neglect on her own volition, pursuant to a 15 state law requiring physicians, public and private, to report child neglect. See Sawyer v. Legacy 16 Emanuel Hosp. & Health Ctr., 2019 WL 1982530, at *5 (D. Or. May 3, 2019) (holding private 17 doctor, acting pursuant to Oregon’s mandatory reporter laws, was not a “state actor” for Section 18 1983 purposes even though the report imposed various investigative duties upon public officials); 19 Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 838 (9th Cir. 1999) (“[I]n a case 20 involving a private defendant, the mere fact that the government compelled a result does not 21 suggest that the government’s action is ‘fairly attributable’ to the private defendant. Indeed, 22 without some other nexus between the private entity and the government, we would expect that the 23 private defendant is not responsible for the government's compulsion . . . .”). When a state 24 compels a specific result by a private party, “it is the state action, not the private conduct, which is 25 unconstitutional” because the private party is “left with no choice of his own” and should not be 26 liable. Sutton, 192 F.3d at 838 (quoting Barbara Rook Snyder, Private Motivation, State Action, 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 19 1 and the Allocation of Responsibility for Fourteenth Amendment Violations, 75 CORNELL L. REV. 2 1053, 1067, 1069 (1990)). Thus, even if Defendant Albin initiated a false report of suspected 3 child abuse, that alone does not show she was acting in conjunction with the state. 4 United States District Court Northern District of California 5 b. Conspiracy Finally, in an attempt to show joint action, Plaintiffs argue that Defendants were working 6 in conjunction and conspiring to violate Plaintiffs’ constitutional rights. Private parties have been 7 held to act under color of law if they willfully participate in joint action or a conspiracy with state 8 officials to deprive others of constitutional rights. United Steelworkers of Am. v. Phelps Dodge 9 Corp., 865 F.2d 1539, 1540 (9th Cir. 1989) (collecting cases). To prove a conspiracy between 10 private parties and the government under Section 1983, an agreement or “meeting of the minds” to 11 violate constitutional rights must be shown. Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). 12 For instance, the “mere acquiescence of [private employees] to the investigation requests of [state 13 actors] is, without more, insufficient to prove a conspiracy.” Id. While each participant in the 14 conspiracy need not know the “exact parameters of the plan,” they must at least “share the general 15 conspiratorial objective.” Id.; Phelps Dodge Corp., 865 F.2d at 1541 (“To be liable, each 16 participant in the conspiracy need not know the exact details of the plan, but each participant must 17 at least share the common objective of the conspiracy.”). Thus, to demonstrate the existence of a 18 conspiracy, it must be shown that there was a “single plan, the essential nature and general scope 19 of which [was] known to each person who is to be held responsible for its consequences.” 20 Hoffman-La Roche, Inc. v. Greenberg, 447 F.2d 872, 875 (7th Cir. 1971). The plaintiff must state 21 specific facts to support the existence of the claimed conspiracy. Olsen v. Idaho State Bd. of Med., 22 363 F.3d 916, 929 (9th Cir. 2004). 23 First, the mere furnishing of information to police officers does not constitute a conspiracy 24 or “joint action” under color of state law. See Lockhead v. Weinstein, 24 F. App’x 805, 806 (9th 25 Cir. 2001). Indeed, the mere fact that a private citizen was lying does not establish a conspiracy or 26 joint action—the plaintiff must show that the private citizen conspired with state actors, i.e., that 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 20 1 there was a “meeting of the minds to violate constitutional rights.” Id. Indeed, in a case involving 2 an alleged conspiracy between a private citizen and a prosecutor, the Ninth Circuit concluded that 3 merely telling a prosecutor about a complaint is insufficient to establish a conspiracy “or every 4 citizen who complained to a prosecutor would find himself in a conspiracy.” Radcliffe v. Rainbow 5 Const. Co., 254 F.3d 772, 783 (9th Cir. 2001). United States District Court Northern District of California 6 Plaintiffs argue that Defendant Albin was an “integral actor” in carrying out the fabricated 7 investigation and deciding to remove A.Y. Opp. at 18. This misses the point. Lockhead and 8 Radcliffe stand for the proposition that merely providing information, even false information, to 9 the police is insufficient to establish a conspiracy. Some “plus” factor is needed; in other words, 10 the plaintiff must show the police knew the information was false and shared the general 11 conspiratorial objective of violating someone’s constitutional rights. See Crowe v. Cty. of San 12 Diego, 608 F.3d 406, 440–41 (9th Cir. 2010) (holding private actor not part of conspiracy because 13 helping obtain a confession did not show he had the common objective of the larger conspiracy to 14 wrongfully prosecute and convict the boys). Simply providing police information, without more 15 is, as a matter of law, insufficient to establish a conspiracy. 16 Here, Plaintiffs allege that Defendant Albin lied to police; they allege that A.Y. did not 17 have Shaken Baby Syndrome, but rather had E.Coli, which Defendant Albin knew, but kept from 18 the police. Compl. ¶¶ 40–42. The conspiracy, thus, is that Dr. Albin and the police officers had 19 the conscious objective to seize A.Y. and justify this seizure by falsifying evidence. The 20 Complaint, however, focuses on what Defendant Albin knew and her falsification of evidence, it 21 does not discuss what City Defendants knew or specifically allege that they themselves falsified 22 evidence. See Olsen, 363 F.3d at 929. Contrary to Plaintiffs assertions, see Opp. at 16–17, a 23 physical meeting is insufficient to establish a “meeting of the minds.” The fact that Defendants 24 “met” does not further Plaintiffs’ conspiracy arguments. Compl. ¶ 71. To the extent “overt acts” 25 by City Defendants are alleged, they are too conclusory for this Court to give them merit. See id. 26 (alleging bare conclusions of “overt acts”); Simmons v. Sacramento Cty. Super. Ct., 318 F.3d 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 21 1 1156, 1161 (9th Cir. 2003) (requiring more than “conclusory allegations” to establish a 2 conspiracy). Most troubling, there is no allegation that Defendant Albin told police about the E. 3 Coli or that they knew of her falsification. See Compl. ¶ 40 (“In this case Albin told the police the 4 parents were responsible for inflicting the injuries to A.Y. despite having to fabricate 5 evidence . . . .”). As Defendant Albin notes, any argument that there was a “meeting of the minds” 6 directly contradicts paragraphs 40–43 of the Complaint. Reply at 6. Those paragraphs allege 7 Defendant Albin singularly fabricated evidence and thus provide no specific facts supporting the 8 existence of the claimed conspiracy. Hence, the police officers and County social workers, like 9 the defendant in Crowe, were not told of the fabrication and so there can be no conspiracy between United States District Court Northern District of California 10 Defendants to deprive Plaintiffs’ of their constitutional rights. 11 Accordingly, Plaintiffs have not shown that Defendant Albin was a “state actor” as 12 required by Section 1983. Therefore, all Section 1983 claims against Defendant Albin are 13 DISMISSED.6 3. Immunity from Tort Causes of Action 14 “Where a district court has dismissed all claims over which it has original jurisdiction, it 15 16 may sua sponte decline to exercise supplemental jurisdiction over remaining state law claims” 17 under 28 U.S.C. § 1367(c). Nardico v. J.P. Morgan Chase & Co., 2013 WL 1856683, at *7 (N.D. 18 Cal. May 2, 2013) (citing 28 U.S.C. 1367(c)(3)); Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., 19 144 F. Supp. 3d 1088, 1096 (N.D. Cal. 2015); Terrill v. Windham-Ashland-Jewett Cent. Sch. Dist., 20 176 F. Supp. 3d 101 (N.D.N.Y. 2016). All that remain are Plaintiffs state law tort claims (the intentional and negligent infliction 21 22 of emotional distress claims); the Court does not have original jurisdiction over these claims.7 23 Here, after carefully considering the relevant factors (economy, convenience, fairness, and 24 25 26 27 28 6 The Court does not address Defendant Albin’s argument that she is entitled to testimonial immunity as it is unnecessary because she is not subject to 1983 liability. 7 Plaintiffs allege that this Court has federal question jurisdiction over the Section 1983 claims. Compl. ¶¶ 1–2. They do not, nor could not, allege diversity jurisdiction because the parties are all domiciled in California. 28 U.S.C. § 1332. Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 22 1 comity), the Court finds that they weigh in favor of declining to exercise supplemental jurisdiction 2 over Plaintiffs’ remaining state law claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 3 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the 4 balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state- 5 law claims.”). The Court may sua sponte render this determination. See Sikhs for Justice, 144 F. 6 Supp. 3d at 1096. This case has yet to proceed beyond the pleadings and no discovery has been 7 conducted. Few judicial resources are wasted by dismissing the case at this stage. Pasillas v. 8 Deutsche Bank Nat’l Trust Co., 2013 WL 5225982, at *5 (N.D. Cal. Sept. 17, 2013). Accordingly, the Court declines to exercise supplemental jurisdiction over Plaintiffs’ state United States District Court Northern District of California 9 10 law claims and GRANTS Defendant’s motion to dismiss these claims without prejudice. Miller v. 11 Cal. Dep’t of Corrections, 2011 WL 4433165, at *4 (E.D. Cal. Sept. 21, 2011) (dismissing 12 without prejudice the claims that court declined to exercise supplemental jurisdiction). 13 IV. CONCLUSION 14 The Court GRANTS City Defendants’ motion to dismiss Plaintiffs’ Section 1983 claims 15 because these Defendants are protected by qualified immunity. The Court GRANTS Defendant 16 Albin’s motion to dismiss Plaintiffs’ Section 1983 claims because she is not a state actor. The 17 Court DECLINES to exercise supplemental jurisdiction over the state law claims at this time and 18 DISMISSES those claims without prejudice. 19 Under Federal Rule of Civil Procedure 15(a), leave to amend “should be freely granted 20 when justice so requires.” When dismissing a complaint for failure to state a claim, a court should 21 grant leave to amend “unless it determines that the pleading could not possibly be cured by the 22 allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). It is possible 23 Plaintiffs can cure their allegations. Accordingly, because Plaintiffs may salvage their Complaint, 24 the Court finds amendment would not be futile. Plaintiffs’ claims are therefore DISMISSED with 25 leave to amend, except as to Plaintiffs’ ratification claim. See supra III.A.2.b.ii. Should Plaintiffs 26 choose to file an amended complaint, they must do so by December 27, 2019. Failure to do so, or 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 23 1 failure to cure the deficiencies addressed in this Order, will result in dismissal of Plaintiffs' claims 2 with prejudice. Plaintiffs may not add new claims or parties without leave of the Court or 3 stipulation by the parties pursuant to Federal Rule of Civil Procedure 15. 4 5 6 7 IT IS SO ORDERED. Dated: November 25, 2019 ______________________________________ EDWARD J. DAVILA United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No.: 5:19-cv-01947-EJD ORDER GRANTING CITY DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANT ALBIN’S MOTION TO DISMISS 24

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