Dillon, et al v. Heermans et al, No. 2:2008cv00796 - Document 73 (D. Ariz. 2010)
Court Description: ORDER granting in part and denying in part 60 Defendants' Motion for Summary Judgment. The motion is granted with respect to all claims against the State of Arizona, DES, CPS, OLCR, and Defendants Mickens, Stevens, and Peterson. The motions is also granted with respect to all claims against Defendants Heermans and Hobson except Claim 1 and the request for punitive damages. The Court will set a final pretrial conference by separate order. Signed by Judge David G Campbell on 4/6/10.(LSP)
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Dillon, et al v. Heermans et al 1 Doc. 73 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Don and Thelma Dillon, husband and wife, 10 Plaintiffs, 11 vs. 12 State of Arizona; et al. 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) No. CV 08-796-PHX-DGC ORDER 15 Defendants have moved for summary judgment on the remaining claims in Plaintiffs’ 16 complaint. Dkt. #60. Plaintiffs oppose the motion. Dkt. #64. For reasons that follow, the 17 Court will grant in part and deny in part the motion for summary judgment (Dkt. #60).1 18 I. Background. 19 Plaintiffs Don and Thelma Dillon underwent training in 2002 in order to “pursue 20 fostering a child with the eventual goal of adoption.” Dkt. #2 at 3.2 In January of 2004, they 21 received an initial license from the Office of Licensing, Certification and Regulation 22 (“OLCR”), a subdivision of the Arizona Department of Economic Security (“DES”), which 23 24 25 26 1 The requests for oral argument are denied. The parties have fully briefed the issues and oral argument will not aid the Court’s decision. See Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991). 2 27 28 Citations to pages in the parties’ filings will be to the page numbers applied by the Court’s electronic docket at the top of each page, not to the numbers at the bottom of each page of a document. Dockets.Justia.com 1 certified that they were licensed as a foster home. Id. at 4. Eventually, three brothers moved 2 into their home as foster children, all of whom Plaintiffs wanted to adopt. Id. One of the 3 three boys had special needs requiring placement in a therapeutic home. Id. at 4. 4 On March 29, 2005, Defendants Heermans and Hobson, two Child Protective Services 5 (“CPS”) employees, arrived at Plaintiffs’ home and “demanded that Don Dillon immediately 6 release the youngest of the three boys. The other two boys, still being at school, were taken 7 into CPS’ care/custody from school grounds.” Id. at 5. The removal of the three boys 8 occurred without prior notice to Plaintiffs. According to Defendants, the removal was 9 conducted because the “children required a therapeutic level of care” and Plaintiffs were not 10 certified as having a therapeutic home. Dkt. #61-5 at 37-39. On June 13, 2005, Plaintiffs 11 received notice from DES that the OLCR was revoking their foster care license. Dkt. #2 at 12 6. 13 Plaintiffs filed a complaint in Arizona Superior Court on December 20, 2007, 14 asserting five tort claims under Arizona law and violation of Plaintiffs’ civil rights under 42 15 U.S.C. § 1983. Id. at ¶¶ 64-96. Defendants removed the case to this Court and filed a motion 16 to dismiss. The Court dismissed Plaintiffs’ state law claims for failure to comply with 17 Arizona’s claims notice statute. Dkt. #6; Dkt. #17 at 4-7. 18 On October 14, 2008, Plaintiffs filed a motion for partial summary judgment on the 19 only remaining cause of action, violation of § 1983. Dkt. #14. The Court denied the motion 20 because there were questions of fact as to whether Defendants “were compelled to conduct 21 the removal without notice . . . out of concern for potential harm to the brothers” and whether 22 Plaintiffs “were prospective adoptive parents” under applicable law. Dillon v. Ariz., CV-08- 23 796-PHX-DGC, 2009 WL 426554, *4 (D. Ariz. Feb. 20, 2009). Defendants now seek 24 summary judgment on Plaintiffs’ § 1983 claim. 25 II. Legal standard. 26 Summary judgment is appropriate if the evidence, viewed in the light most favorable 27 to the nonmoving party, shows “that there is no genuine issue as to any material fact and that 28 -2- 1 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A party 2 seeking summary judgment “always bears the initial responsibility of informing the district 3 court of the basis for its motion, and identifying those portions of [the record] which it 4 believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 5 Catrett, 477 U.S. 317, 322 (1986). Only disputes over facts that might affect the outcome 6 of the suit will preclude the entry of summary judgment, and the disputed evidence must be 7 “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. 8 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 9 A principal purpose of summary judgment is “to isolate and dispose of factually 10 unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 11 against a party who “fails to make a showing sufficient to establish the existence of an 12 element essential to that party’s case, and on which that party will bear the burden of proof 13 at trial.” Id. at 322; see Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). 14 III. Remaining Claims and Defendants’ Arguments. 15 Although the State of Arizona, DES, CPS, and OLCR are still listed as Defendants 16 in this matter, it appears that Plaintiffs do not assert any claims against them. See Dkt. #64 17 at 5-6 (Plaintiffs outlining their remaining claims, and stating that they are based on “actions 18 by the individual Defendants”). Nor could they. States and their agencies are not “persons” 19 for purposes of § 1983. See Arizonans for Official English v. Ariz., 520 U.S. 43, 69 (1997); 20 Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007). As a result, summary judgment will 21 be granted to the State of Arizona, DES, CPS, and OLCR. 22 Plaintiffs contend that they state five separate § 1983 claims against the individual 23 Defendants. Dkt. #64 at 5-6. They contend that Defendants Heermans and Hobson violated 24 their due process rights under the Fourteenth Amendment by: (1) removing the three brothers 25 from their foster care without prior notice or a hearing; (2) removing the brothers and 26 terminating Plaintiffs’ relationship with them as prospective adoptive parents without due 27 process; and (3) conspiring to retaliate against Plaintiffs by forming an illegal scheme to 28 -3- 1 remove the boys and terminate Plaintiffs’ foster license. Id. at 5. Plaintiffs also argue that 2 Defendants Mickens, Stevens, and Peterson (collectively, “the supervisor Defendants”) 3 violated their due process rights under the Fourteenth Amendment by: (4) encouraging and 4 tolerating practices to deprive Plaintiffs of their constitutional rights; and (5) refusing to train, 5 supervise, or control non-supervisory Defendants Heermans and Hobson to prevent them 6 from violating Plaintiffs’ rights. Id. at 5-6. 7 Defendants make the following arguments in support of summary judgment: 8 (1) OLCR, not Defendants, revoked the foster license, and Defendants therefore cannot be 9 held responsible for revoking the license; (2) Plaintiffs have shown no evidence that 10 Defendants conspired to have the foster license revoked or remove the children without due 11 process; (3) Plaintiffs received due process when their license was revoked; (4) possession 12 of a foster care license is not a constitutionally protected liberty or property interest; 13 (5) Plaintiffs were not prospective adoptive parents that are entitled to prior notice of removal 14 of foster children; (6) there is no evidence to support punitive damages; (7) Plaintiffs have 15 provided no evidence of supervisory misconduct; and (8) all individual Defendants are 16 entitled to qualified immunity. 17 Arguments (1), (3), and (4) assume Plaintiffs’ claims are based on the revocation of 18 their foster license, rather than removal of the children. Plaintiffs do not claim, however, that 19 the license was revoked without due process of law. See Dkt. #64 at 5. Rather, they claim 20 they were denied due process by the manner in which the children were removed. Id. As a 21 result, the Court will not address arguments (1), (3), and (4). 22 Argument (2) – that Plaintiffs have shown no evidence of conspiracy – goes to the 23 heart of Plaintiffs’ third claim. The Court will consider this argument in conjunction with 24 its discussion of that claim. Argument (5) – that Plaintiffs were not prospective adoptive 25 parents – goes to the heart of Plaintiffs’ second claim. The Court will consider this argument 26 in conjunction with its discussion of that claim. Argument (6) concerns punitive damages, 27 which the Court will discuss separately below. Argument (7) deals solely with supervisory 28 -4- 1 liability. The Court will consider it with claims four and five below. Argument (8) – that 2 all individual Defendants are entitled to qualified immunity – goes to Plaintiffs’ claims 3 generally, and will be considered individually below. 4 IV. Analysis. 5 In cases alleging a denial of procedural due process, “the deprivation of a 6 constitutionally protected interest ‘is not itself unconstitutional; what is unconstitutional is 7 the deprivation of such an interest without due process of law.’” Humphries v. Los Angeles, 8 554 F.3d 1170, 1184 (9th Cir. 2009) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)). 9 Courts assess procedural due process claims in two steps: “‘the first asks whether there 10 exists a liberty or property interest which has been interfered with by the State; the second 11 examines whether the procedures attendant upon that deprivation were constitutionally 12 sufficient.’” Id. at 1184-85 (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 13 (1989)). Liberty interests can arise both from the Constitution and from state law. See 14 Wilkinson v. Austin, 545 U.S. 209, 221 (2005). “Stated simply, ‘a State creates a protected 15 liberty interest by placing substantive limitations on official discretion.’” Thompson, 490 16 U.S. at 462 (quoting Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). 17 A. Claim 1. 18 Defendants argue that they are entitled to summary judgment on Plaintiffs’ claim that 19 Defendants removed the brothers without due process of law in violation of Plaintiffs’ rights 20 as foster parents. They contend that Plaintiffs cannot show that they had a liberty interest in 21 keeping the children. 22 As discussed in a previous order, the Court agrees with Defendants that Plaintiffs have 23 no liberty interest in keeping foster children based on the Constitution or federal law. See 24 Dillon, 2009 WL 426554 at *5 (Court finding that the Ninth Circuit suggests that foster 25 parents have no liberty interest in retaining their foster children).3 Plaintiffs can, however, 26 27 28 3 In their response to Defendants’ motion for summary judgment, Plaintiffs argue extensively that foster parents have a liberty interest in retaining their children under Ninth -5- 1 show a liberty interest based on state law. Wilkinson, 545 U.S. at 221. 2 Plaintiffs argue that they have a liberty interest under Arizona law because, under 3 A.R.S. § 8-515.05, CPS must “inform the licensed foster parent of the department’s intent 4 to remove a child” and, if the “foster parent disagrees with the removal,” CPS must hold a 5 hearing. A.R.S. § 8-515.05. Plaintiffs argue that Defendants failed to inform them, as 6 licensed foster parents, that the brothers would be removed from their custody. Defendants 7 argue that there was no liberty interest because the notice requirement of A.R.S. § 8-515.05 8 includes an exception for situations where a child is at risk of harm or where a child needs 9 to be placed “in a therapeutic setting.” A.R.S. § 8-515.05(A). Defendants argue that the 10 children needed to be placed in a therapeutic setting. 11 Defendants have failed to show or even argue that there is no material dispute of fact 12 on whether the children needed to be placed in a therapeutic setting or whether Plaintiffs’ 13 home was therapeutic. Dkt. ##60, 71. This Court previously found a factual dispute on these 14 issues. Dillon, 2009 WL 426554 at *5. Because Defendants have failed to show the absence 15 of a dispute of fact, the Court must deny summary judgment. 16 B. Claim 2. 17 Arizona law prohibits the removal of children from prospective adoptive parents 18 without a court order. See A.R.S. § 8-113(A). Arizona defines a prospective adoptive parent 19 as a “person who has applied to an adoption entity to become certified to adopt a child.” See 20 Ariz. Admin. Code R6-5-6501(35) (emphasis added). Actual certification is not required. 21 Id. Plaintiffs claim that they were prospective adoptive parents of the three brothers, and 22 therefore had a liberty interest under A.R.S. § 8-113 that was violated when Defendants 23 removed the brothers without a court order. 24 Defendants argue that Plaintiffs were not prospective adoptive parents when the 25 brothers were removed because Plaintiffs had withdrawn their adoption certification 26 27 28 Circuit law. Dkt. #64 at 7-9. The Court, however, disagrees with this argument for reasons already discussed in its order of February 20, 2009. Dillon, 2009 WL 426554 at *5. -6- 1 application from one agency and had not reapplied to any other agency. Dkt. #60 at 10. 2 Plaintiffs bear the burden of showing that they were prospective adoptive parents. The only 3 evidence that they cite in support of their claim includes: (1) an “Adoptive Families CPS 4 Records Clearance” form which they filled out (Dkt. #66-2 at 2) and which, according to 5 Bonnie Slater (an administrator of Arizona Children’s Association), shows that a family is 6 interested in adopting a child (Dkt. #65-6 at 3); (2) an “Adoption Progress Summary” 7 (Dkt. #66-3 at 2) which was in Plaintiffs’ Arizona Children’s Association file; and 8 (3) Slater’s testimony that these documents were “part of the application” that Plaintiffs 9 would complete in order to be certified to adopt (Dkt. #65-6 at 6). These documents are 10 insufficient to show that Plaintiffs were prospective adoptive parents who had “applied to an 11 adoption entity to become certified to adopt a child.” Ariz. Admin. Code R6-5-6501(35). 12 The documents show only that Plaintiffs started the process of applying. They do not show 13 that Plaintiffs had applied. See Dkt. #65-6 at 6 (Slater stating that these documents show that 14 an application was started, but that they did not show “how far it progressed”). Because 15 Plaintiffs bear the burden of showing that they had applied, and yet have not presented 16 evidence sufficient to make such a showing, Defendants are entitled to summary judgment 17 on this claim. Celotex, 477 U.S. at 323-24. 18 C. 19 Plaintiffs claim that Defedants conspired to retaliate against Plaintiffs by removing 20 the boys and having the foster care license revoked. Dkt. #60 at 4. A conspiracy claim under 21 § 1983 requires proof of “‘an agreement or meeting of the minds to violate constitutional 22 rights,’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (citation omitted), along with an 23 actual deprivation of constitutional rights, Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 24 2006). Defendants argue that Plaintiffs have produced “no evidence that the Defendants 25 conspired to cause the revocation of the foster care license or that they conspired to violate 26 the Dillons’ constitutional rights.” Dkt. #60 at 4. The Court agrees. 27 Claim 3. Plaintiffs do not present any evidence showing an agreement or meeting of the minds 28 -7- 1 among Defendants. See Dkt. #64 at 12-14. They state that Defendants communicated with 2 the OLCR, causing OLCR’s decision to revoke the license, but they cite no evidence in the 3 record showing or even tending to show a meeting of the minds among Defendants. Because 4 Plaintiffs cannot show an agreement or meeting of the minds – an element of their claim on 5 which they would bear the burden of proof at trial – Defendants are entitled to summary 6 judgment on this claim. Celotex, 477 U.S. at 322. 7 D. 8 Plaintiffs claim that the supervisor Defendants encouraged and tolerated practices that 9 deprived Plaintiffs of their constitutional rights, and refused to train, supervise, or control the 10 non-supervisor Defendants to prevent them from violating Plaintiffs’ rights. Defendants 11 argue that a “supervisor can be liable in his individual capacity for (1) his own culpable 12 action or inaction in the training, supervision, or control of his subordinates; (2) for his 13 acquiescence in the constitutional deprivation; or (3) for conduct that shows a deliberate 14 indifference to the rights of others.” McGrath v. Scott, 250 F. Supp. 2d 1218, 1226 (D. Ariz. 15 2003). Defendants claim that they are entitled to summary judgment because Plaintiffs have 16 not provided any evidence that Defendants (1) were culpable in action or inaction in the 17 training, supervision, or control of their subordinates; (2) acquiesced in the constitutional 18 deprivation; or (3) showed a deliberate indifference to the rights of others. Dkt. #60 at 13. 19 In response, Plaintiffs contend that “Defendants Mickens, Stevens, and Peterson 20 encouraged, approved, ratified and tolerated the actions taken by Defendants Heermans and 21 Hobson on March 29, 2005” and “grossly and recklessly failed to train Defendants Heermans 22 and Hobson on the requirements for removal of a child from a foster home.” Dkt. #64 at 15. 23 In support of these contentions, Plaintiffs cite to paragraphs 48-58 and 60-70 of their 24 statement of facts for evidence that precludes summary judgment. 25 Claims 4 and 5. The cited paragraphs contain extensive, non-specific citations to the record.4 The 26 27 28 4 Paragraphs 48-58 and 60-70 include citations to the following evidence: “Exhibit C, at pg. 303, line 7 - pg. 304, line 15,” “Exhibit L, at pg. 50, lines 10-21; pg. 61, lines 4-20; and -8- 1 Court is not obligated to “‘scour the record in search of a genuine issue of triable fact.’” 2 Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (citation omitted). Rather, the Court 3 relies on “the nonmoving party to identify with reasonable particularity the evidence that 4 precludes summary judgment.” Id. Plaintiffs’ citation to 20 lengthy paragraphs and dozens 5 of non-specific record citations does not satisfy this requirement or the Court’s local rules. 6 See LRCiv 56.1 (nonmoving party must cite “to the specific admissible portion of the record 7 supporting the party’s position”). 8 The Court nonetheless has examined each piece of evidence cited in paragraphs 48-58 9 and 60-70. The evidence does not show that the supervisor Defendants encouraged, 10 approved, ratified and tolerated the actions taken by Heermans and Hobson, or that they 11 grossly and recklessly failed to train Heermans and Hobson. The cited evidence does not 12 even show that the supervisor Defendants knew that Heermans and Hobson were planning 13 to remove the children from Plaintiffs’ care. At most, the evidence shows: (1) that supervisor 14 Defendant Stevens would direct employees, including Heermans, on the policy for removing 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pg. 62, lines 10-23,” “Exhibit C, at pg. 305, line 21 - pg. 306, line 12,” “Exhibit C, at pg. 304, line 18 - pg. 307, line 1,” “Exhibit L at pg. 53, lines 8-15 and pg. 53, line 18 - pg. 55, line 12,” “Exhibit Q,” “Exhibit I at p. 62, lines 2-7, p. 103, lines 5-25, p. 104, lines 1-5,” “Exhibit R . . . at p. 44, lines 5-19,” “Exhibit M,” “Exhibit 21 . . at[] Pg. 46, line 10,” “Exhibit L, at pg. 50, lines 10-21; pg. 61, lines 4-20; and pg. 62, lines 10-23,” “Exhibit I, at pg. 180, lines 2-10,” “Exhibit I, at pg. 180, lines 11-23,” Exhibit I, at pg. 185, lines 3-16,” “Exhibit I, at pg. 213, lines 2-22 and pg. 214, line 1 - pg. 215, line 18 ; and . . . Exhibit N,” “Exhibit I, at pg. 11, line 18 - pg. 13, line 13,” “Exhibit I, at p. 201, lines 25-24 [sic] and p. 202, lines 1-13,” “Exhibit R at p. 13, lines 24-25, p. 14, line 1, p. 17, lines 24-25, p. 18, lines 5-25, p. 19, lines 1-2,” “Exhibit O, at pg. 10, lines 13-17 and pg. 33, line 25 - pg. 34, line 9,” “Exhibit I, at pg. 192, line 22 - pg. 193, line 11,” “Exhibit I, at pg. 194, lines 18-23 and pg. 195, lines 4-10,” “Exhibit I, at pg. 194, lines 18-23 and pg. 195, lines 4-10,” “Exhibit I, at pg. 125, line 16 pg. 126, line 9 and pg. 126, line 17 - pg. 127, line 10,” “Exhibit C, at pg. 85, line 1 - pg. 87, line 12; pg. 94, line 20 - pg. 95, line 25,” “Exhibit C, at pg. 305, line 21 - pg. 306, line 12,” “Exhibit C, at pg. 304, line 18 - pg. 307, line 1,” “Exhibit C, at pg. 86, line 13 - pg. 87, line 5,” “Exhibit I, at pg. 162, lines 13-16; pg. 164, lines 17-19; pg. 165, lines 9-16; and pg. 166, line 16 - pg. 167, line 20,” “Exhibit C, at pg. 81, line 5 - pg. 82, line 9; pg. 83, line 8 - pg. 84, line 2; pg. 85, line 1 - pg. 87, line 12,” and “Exhibit C, at pg. 101, line 21 - pg. 102, line 7 and Exhibit J, at pg. 2, line 10 - pg. 3, line 16.” Dkt. #65, ¶¶ 48-58, 60-70. -9- 1 foster children from foster homes (Dkt. #68-4 at 8), but that typically a person such as 2 Heermans would not be “given formalized training on how to remove a child . . . [u]ntil a 3 scenario comes up by which the possibility of removing a child is discussed,” (Dkt. #68-4 4 at 8), and (2) that Hobson did not remember being trained on how to remove a child, but that 5 doing so was not one of his job responsibilities (Dkt. #67-5 at 3). Because Plaintiffs would 6 bear the burden at trial of proving supervisory responsibility, and have failed “to make a 7 showing sufficient to establish the existence” of necessary elements, Defendants are entitled 8 to summary judgment on the supervisory claims. Celotex, 477 U.S. at 322. 9 Moreover, the parties fail to cite or discuss the Supreme Court’s recent statement on 10 supervisory liability under § 1983. In Ashcroft v. Iqbal, — U.S. — , 129 S.Ct. 1937 (2009), 11 the Supreme Court reinforced the rule that supervisors are not vicariously liable for the acts 12 of their subordinates under § 1983 or its federal common-law counterpart, Bivens v. Six 13 Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The Supreme Court explained that 14 “[i]n a § 1983 suit or a Bivens action – where masters do not answer for the torts of their 15 servants – the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each 16 Government official, his or her title notwithstanding, is only liable for his or her own 17 misconduct.” Iqbal, 129 S.Ct. at 1949. Plaintiffs’ evidence certainly does not show that the 18 supervisor Defendants themselves violated Plaintiffs’ constitutional rights. 19 E. Punitive Damages. 20 To obtain a punitive judgment award under § 1983, a plaintiff must prove that a 21 defendant’s conduct was motivated by “evil motive or intent, or . . . reckless or callous 22 indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 23 (1983). Defendants argue that Plaintiffs can produce no evidence of such motive, intent, or 24 indifference. Dkt. #60 at 12. In response, Plaintiffs argue that they have presented sufficient 25 evidence to support an award of punitive damages because Defendants did not bother to 26 provide notice or a hearing before removing the children as required by A.R.S. § 8-515.05. 27 Dkt. #64 at 15. Plaintiffs argue that Defendants decided to remove the children on March 24, 28 - 10 - 1 2009, but waited until March 29, 2009 to actually remove them, clearly showing that 2 Defendants had time to provide notice. Dkt. #64 at 15. 3 As discussed above, there are disputed issues of fact as to whether Defendants 4 violated a liberty interest of Plaintiffs by removing the children without notice. Similarly, 5 whether Defendants acted with “callous indifference” to Plaintiffs’ liberty interest when they 6 removed the children without notice is a question of fact that must be resolved by the jury. 7 F. Qualified immunity. 8 Defendants contend that they are entitled to summary judgment because the doctrine 9 of qualified immunity shields them from liability. The only § 1983 claim remaining after the 10 above determinations is Plaintiffs’ first claim – that Defendants Heermans and Hobson 11 violated Plaintiffs’ rights by removing the three brothers from their foster care without prior 12 notice or a hearing. See Dkt. #2 at 5 (Plaintiffs alleging that “Defendants Heermans and 13 Hobson arrived unannounced . . . and demanded that Don Dillon immediately release the 14 youngest of the three boys.”). 15 Defendants Heermans and Hobson “bear[] the burden of demonstrating that immunity 16 attaches” to their actions. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). Defendants 17 argue that in order to find qualified immunity, the Court need only find that Defendants made 18 a reasonable mistake regarding what the law required. Saucier v. Katz, 533 U.S. 194, 205 19 (2001). Even assuming Defendants violated Plaintiffs’ rights by removing the brothers from 20 their home without notice, Defendants argue that they are entitled to qualified immunity 21 because they removed the brothers based on the opinions of qualified professionals who 22 determined that the boys needed to be placed in a therapeutic setting which Plaintiffs could 23 not provide. Dkt. #60 at 14. 24 Defendants have not established as a matter of undisputed fact, however, that they 25 removed the brothers based on the opinions of qualified professionals. Defendants point to 26 the deposition of supervisor Defendant Peterson, who stated that several CPS employees had 27 a meeting to evaluate whether the brothers needed a higher level of care. Dkt. #61-5 at 21. 28 - 11 - 1 Defendants also point to the deposition of supervisor Defendant Stevens, who stated that she 2 and several other professionals determined that the “children required a therapeutic level of 3 care, and Mr. Dillon was not a therapeutic foster home.” Id. at 37-39. But this testimony 4 does not show that Heermans and Hobson actually relied on this determination when they 5 removed the children. A question of fact remains with respect to the reasons for Heermans’ 6 and Hobson’s actions, precluding summary judgment on qualified immunity. 7 IT IS ORDERED: 8 1. Defendants’ motion for summary judgment (Dkt. #60) is granted in part and 9 denied in part. The motion is granted with respect to all claims against the 10 State of Arizona, DES, CPS, OLCR, and Defendants Mickens, Stevens, and 11 Peterson. The motions is also granted with respect to all claims against 12 Defendants Heermans and Hobson except Claim 1 and the request for punitive 13 damages. 14 2. The Court will set a final pretrial conference by separate order. 15 DATED this 6th day of April, 2010. 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 -
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