Pellerin et al v. Wagner et al, No. 2:2014cv02318 - Document 335 (D. Ariz. 2017)
Court Description: ORDER AND OPINION denying 237 Plaintiffs' Motion for Preliminary Injunction. Signed by Judge John W Sedwick on 12/21/17. (LSP)
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Pellerin et al v. Wagner et al Doc. 335 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 8 DAVID PELLERIN, et al., 9 Plaintiffs, 10 vs. 11 12 CARYN WAGNER, et al., 13 Defendants. 14 15 ) ) ) ) ) ) ) ) ) ) 2:14-cv-02318 JWS ORDER AND OPINION [Re: Motion at docket 237] I. MOTION PRESENTED 16 17 At docket 237 plaintiffs David Pellerin and Angie Pellerin (the Pellerins) and their 18 children (collectively Plaintiffs) move for a preliminary injunction. All defendants 19 represented by the Arizona Office of the Attorney General (collectively State 20 Defendants) respond at docket 261. The other defendant, Deborah Harper, joins in the 21 response at docket 250. 1 Plaintiffs reply at docket 298. Oral argument was requested, 22 but it would not be of additional assistance to the court given that the court’s decision is 23 24 not based on the merits of Plaintiffs’ claim for an injunction. II. BACKGROUND 25 26 Plaintiffs’ complaint arises from the removal of the Pellerin children from the 27 28 1 At docket 320, Pellerin and Defendant Harper filed a notice of settlement. Dockets.Justia.com 1 2 3 Pellerins’ family home in 2013 by agents of the Arizona Department of Economic Security (ADES), which at that time was the agency tasked with providing child protective services.2 The events leading up to the children’s removal began in 2013 4 5 when the Pellerins were transferred from the U.S. Air Force base in Japan to Luke Air 6 Force Base in Arizona. ADES subsequently received a report from military authorities 7 in Japan that, prior to the Pellerins’ transfer, the military had been investigating 8 allegations that the Pellerins abused their children, and the m ilitary requested that 9 ADES investigate the matter further. Based on the military’s report, ADES employee 10 Defendant Caryn Wagner interviewed the Pellerins’ children and visited the Pellerins’ 11 12 home on May 10, 2013. Defendant Wagner decided that a safety plan for the children 13 needed to be in place that day, and she and the Pellerins agreed to such a plan 14 pursuant to which the children would be in the custody of their grandfather with no 15 unsupervised parent contact pending further investigation and action. 3 Thereafter, 16 ADES alleged that the Pellerins did not comply with the safety plan and subsequently 17 18 19 20 removed the children from their grandfather’s home, placed them in temporary foster care, and filed a dependency petition. During a temporary custody hearing in June of 2013, the Arizona Superior Court 21 ruled that it did not have jurisdiction over the case.4 It based its decision on the fact that 22 the petition “refer[red] to events that allegedly occurred in Japan, not the state of 23 24 25 26 27 28 2 Arizona’s Department of Child Safety (DCS) is the successor to the Arizona Department of Economic Security with respect to its child safety responsibilities. 3 Plaintiffs allege they had no choice but to agree to the plan to keep their children from being placed with a non-family member in foster case. Doc. 146 at p. 9, ¶¶ 43-44. 4 Doc. 260 at p. 79 (Exhibit 7); doc. 241 at p. 15 (Exhibit 30). -2- 1 Arizona”5 and that there was no evidence “that would tend to indicate that these parents 2 did anything to these children while they were here in Arizona.”6 The court dismissed 3 ADES’s dependency action and ordered that the children be returned to their parents. 7 4 5 ADES did not return the children but instead requested a stay of the dismissal 6 with the Arizona Court of Appeals and filed a special action petition with that court. In 7 the meantime, the Superior Court conducted a hearing the next day to address the 8 failure of ADES to comply with the court’s order. The judge stated that Defendant 9 Wagner was not a credible witness. He concluded she had “trampled upon [the 10 Pellerins’] rights” and ordered a show cause hearing regarding her failure to comply with 11 12 the court’s order.8 However, a few days later, the Court of Appeals issued a stay of the 13 trial court’s dismissal of ADES’s dependency petition and show cause hearing.9 In 14 August of 2013, the Arizona Court of Appeals held that the state court had jurisdiction 15 over the matter and ruled that the dependency action could continue. 10 16 On October 21, 2013, during a temporary custody hearing, the lower court 17 18 reiterated that Defendant Wagner was not a credible witness and that the “children are 19 20 21 5 22 6 23 7 24 8 25 26 27 28 Doc. 241 at p. 14. Id. at p. 12. Doc. 260 at p. 81. Doc. 241 at p. 26. 9 Doc. 261-1 at p. 3 (Exhibit 10). 10 Arizona Dep’t of Econ. Sec. v. Grant, 307 P.3d 1003, 1009 (Ariz. Ct. App. 2013); Doc. 261-1 at p. 11 (Exhibit 11). -3- 1 2 3 not subject to a substantial risk of harm in the custody of their parents.”11 He ordered that they be returned to the care of their parents for the duration of the dependency matter. Subsequently, ADES filed a motion to dismiss the dependency case after the 4 5 Pellerins completed “Family Preservation Services.”12 The court dismissed the 6 dependency petition in February 2014, releasing the children “from the wardship of the 7 Court, and relieving ADES of further responsibility of the children for the reason of 8 reunification.”13 9 Plaintiffs subsequently filed a complaint that alleges the defendants—ADES 10 itself and other individuals who worked for ADES or the Arizona Office of the Attorney 11 12 General at the time and were involved in their case—violated their civil rights in the 13 course of seizing the Pellerins’ children from the family home and placing them in foster 14 care without an adequate basis. Their first six claims are brought pursuant to § 1983. 15 Plaintiffs seek general, special, and punitive damages based upon these claims. 16 Plaintiffs’ seventh claim is one for declaratory and injunctive relief. They allege that 17 18 19 “they have no adequate remedy at law to prevent or prohibit ADES and its social workers from continuing, and/or repeating, its unlawful and unconstitutional conduct 20 and policies other than through injunctive relief.”14 Plaintiffs subsequently filed this 21 motion seeking preliminary injunctive relief. 22 23 24 25 11 Doc. 241 at pp. 36-37. 12 Doc. 260 at p. 91 (Exhibit 12). 26 13 27 14 28 Doc. 260 at p. 95 (Exhibit 13). Doc. 146 at pp. 31-32. -4- 1 2 III. DISCUSSION Plaintiffs’ motion for a preliminary injunction asks that the court order “the State 3 of Arizona” to take the following actions: 4 5 1. 6 7 2. 8 9 3. 10 11 4. 12 13 5. 14 15 16 Immediately promulgate and implement a procedure, process, and policy, by which its social workers can seek and obtain a removal warrant or order to seize a child from his or her parent’s custody under non-exigent circumstances. Train its social workers on the means, process, policy, and procedure to seek and obtain a removal warrant or order to seize a child from his or her parent’s custody under non-exigent circumstances. Immediately end its “standard practice” to always seize children from their parent’s custody without seeking a removal warrant or order regardless of whether or not exigent circumstances exist. Train its social workers regarding a parent and child’s constitutional right to not be separated without a removal warrant or court order, unless the child is in immediate danger of suffering serious physical bodily injury or death within the time it would take to obtain a warrant. Immediately promulgate and implement a disciplinary procedure and policy for social workers that deprive a parent and/or child of their constitutional due process rights.15 The only issue before the court at this time is whether such injunctive relief is appropriate. 17 18 19 In their opposition to Plaintiffs’ motion for a preliminary injunction, State Defendants argue that Plaintiffs have not named a defendant against whom the 20 injunctive relief sought might be awarded. “The proper defendant for injunctive relief 21 against the State under 42 U.S.C. § 1983 is the state of ficial in his or her official 22 capacity.”16 State Defendants’ position is supported by a long line of cases starting with 23 24 15 25 16 26 27 28 Doc. 237 at p. 2 Doc. 261 at p. 5. Because the response is over-length, a copy was first lodged at docket 248 along with a motion seeking permission to file an over-length memorandum. That motion was granted and the response was then filed at docket 261. The lodged document gave Plaintiffs notice of the arguments State Defendants would rely upon. -5- 1 2 3 Ex parte Young.17 State Defendants then argue that the various state employees sued by Plaintiffs in their individual capacities are inappropriate defendants for the purpose of obtaining injunctive relief. With respect to ADES, or its successor agency the 4 5 Department of Child Safety (“DCS”), State Defendants argue that the agency is a non- 6 jural entity under Arizona law, so relief may not be awarded against it. Moreover, State 7 Defendants note that Plaintiffs’ motion for preliminary injunctive relief is directed at the 8 State of Arizona itself, which is not a named defendant. 9 10 This line of argument prompted Plaintiffs to file a motion for leave to amend the First Amended Complaint by adding the head of DCS in his official capacity only.18 11 12 State Defendants objected to the amendment, arguing that the request was untimely 13 and not supported by good cause. The court agreed with State Defendants and denied 14 Plaintiffs’ request to amend the complaint under Rule 16 based upon their lack of 15 diligence in requesting the amendment. The court concluded that “[t]he problem of 16 non-jural entity status was called to the attention of Pellerin repeatedly and from the 17 18 19 20 21 22 very early stages of the litigation.”19 Without the amendment, the court must now determine whether injunctive relief is even possible without the proper official named as a defendant. It is undisputed that the named individual defendants, all employees of ADES at the time in question and some current employees of the successor agency DCS, do not 23 24 25 17 209 U.S. 123 (1908). 26 18 27 19 28 Doc. 252. Doc. 295 at p. 7. -6- 1 2 3 have the authority to implement injunctive relief if ordered to do so by the court. Plaintiffs also fail to present any argument that ADES or its successor agency, DCS, are in fact distinct legal entities that can be sued under state law, and therefore non- 4 5 jural status of the agencies is undisputed. 6 Plaintiffs argue that the injunction is directed at the State of Arizona itself and not 7 just the agency, despite the fact that the State was not actually named in the complaint. 8 They argue that the State, at all times during this lawsuit knew that they were seeking 9 an injunction regarding its child safety laws, policies, practices, and procedures. They 10 argue that because the Arizona Office of the Attorney General has been representing 11 12 State Defendants during the litigation and the office represents the State itself, its 13 interests have been adequately protected throughout the litigation. Even putting aside 14 the failure of Plaintiffs to actually name the State as a defendant and assuming 15 Plaintiffs can freely interchange the State for one of its agencies in this suit as they 16 contend they can, the State and its agencies are immune from suit under the Eleventh 17 18 19 Amendment regardless of the relief sought unless the state unequivocally consents to a waiver of its immunity.20 Consent is not inferred but must be “stated by the most 20 express language.”21 The State did not provide any such express consent, and any 21 argument that it consented to litigation based on ADES’s participation in the litigation 22 thus far fails because a state does not waive Eleventh Amendment immunity merely by 23 24 25 26 27 28 20 Yakama Indian Nation v. Washington Dep’t of Revenue, 176 F.3d 1241, 1245 (9th Cir. 1999). 21 Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (internal quotation marks omitted). -7- 1 defending in federal court.22 Instead, waiver turns on the State's failure to raise 2 immunity during the litigation.23 Here, ADES asserted its non-jural status and its 3 sovereign immunity as affirmative defenses.24 4 5 Plaintiffs argue that while prospective injunctive relief against a state or state 6 agency is not permissible, the failure to name the proper state official as a defendant is 7 a mere technical error that the court can overlook and correct. That is, not only do they 8 assert that the State and its agencies are interchangeable defendants but also that the 9 State any proper official are as well. They rely in part on Rule 15 and the purpose 10 behind the rule’s liberal amendment policy, which is to allow federal plaintiffs to amend 11 12 complaints that name incorrect government officials. However, the court has already 13 analyzed Plaintiffs’ request to amend and correct its complaint under Rule 16, which is 14 the rule to consider before Rule 15 when a party files an untimely motion to amend, and 15 it concluded that Plaintiffs were provided multiple opportunities to fix the error that was 16 17 18 19 drawn to their attention but they did not act diligently to add a defendant against whom injunctive relief might be obtained. 25 Plaintiffs also rely on Melendres v. Arpaio26 and Rule 21 in support if their 20 request for the court to substitute the correct party and proceed with their injunctive 21 relief request. Melendres involved a class action civil rights lawsuit against Maricopa 22 23 24 25 22 Demshki v. Monteith, 255 F.3d 986, 989 (9th Cir. 2001). 23 Id. 24 See doc. 18 at p. 8; doc. 26 at p. 8; doc. 169 at p. 12. 26 25 27 26 28 Doc. 295. 784 F.3d 1254, 1260 (9th Cir. 2015) (Melendres I). -8- 1 County, Maricopa County Sheriff’s Office (MCSO), and the official in charge of MCSO, 2 Sheriff Arpaio.27 At the time the lawsuit was filed, state case law was unclear as to 3 whether MCSO was a jural entity, but the lower court proceeded as if it were and 4 5 refused to dismiss MCSO as a non-jural entity.28 It then granted the parties’ stipulation 6 to dismiss Maricopa County; however, dismissal was without prejudice to rejoining the 7 county as a defendant if it became necessary to afford the plaintiffs complete relief.29 8 Subsequently, the Arizona Court of Appeals ruled in Braillard v. Maricopa County 30 that 9 MCSO is a non-jural entity and cannot be sued. However, the case proceeded, and the 10 lower court concluded that a permanent injunction against MCSO and Sheriff Arpaio 11 12 was warranted. In an appeal, MCSO challenged its ability to be sued given its status as 13 a non-jural entity. The Ninth Circuit held that MCSO was improperly named as a party 14 given Braillard, but to assure a meaningful remedy for the plaintiffs, it ordered that 15 Maricopa County be substituted as a party in lieu of MCSO and cited Rule 21 in 16 support, which provides that the court may at any time, on just terms, add or drop a 17 18 19 20 party.31 The court finds Melendres unpersuasive here. Unlike the plaintiffs in Melendres, who had initially named the proper defendant before stipulating to its dismissal without 21 22 23 24 25 27 See Melendres v. Maricopa Cnty. (Melendres II), 815 F.3d 645, 648 (9th Cir. 2016) (discussing the procedural history of the case and the court’s ruling in Melendres I). 28 Melendres I, 784 F.3d at 1260. 29 Melendres II, 815 F.3d at 648. 26 30 27 31 28 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010). Melendres I, 784 F.3d at 1260; Melendres II, 815 F.3d at 648. -9- 1 2 3 prejudice, Plaintiffs never named the proper defendant despite numerous indications that they had failed to do so. Unlike the situation in Melendres, there has not been a change in the law regarding the proper defendant to name. Moreover, the defendant 4 5 substituted for MCSO, Maricopa County, is not immune from suit under the Eleventh 6 Amendment.32 Given Plaintiffs failure to name the proper defendant despite the clear 7 nature of the law on the issue and multiple opportunities to correct the deficiency, the 8 court does not conclude that substitution of the proper official is just or warranted. 9 Even if the court were to allow Plaintiffs’ request for injunctive relief to proceed 10 despite their failure to name the proper defendant, they nonetheless lack the standing 11 12 to seek such relief. To meet Article III’s standing requirements, a plaintiff must show, in 13 addition to causation and redressibility, that he has suffered an injury in fact that is 14 “concrete and particularized” and “actual or imminent.”33 To meet this requirement in 15 the context of seeking prospective injunctive relief, a plaintiff must also show “that he is 16 realistically threatened by a repetition of [the violation].”34 The plaintiff must 17 18 19 demonstrate a “real and immediate threat of repeated injury.”35 Allegations of possible future injury are insufficient.36 In other words, there must be a “sufficient likelihood” that 20 21 32 22 See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (recognizing that counties are not arms of the state entitled to Eleventh Amendment immunity). 23 33 24 34 25 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). City of Los Angeles v. Lyons, 461 U.S. 95, 109, 111 (1983); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007). 26 35 27 36 28 O’Shea v. Littleton, 414 U.S. 488, 496 (1974). Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (internal quotations omitted). -10- 1 2 3 he will be subjected to the allegedly illegal policy in the future.37 Although relevant to the inquiry, “‘[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present 4 5 adverse effects.’”38 “[N]o matter how important the issue or how likely that a similar 6 action will be brought [by another party], a court is without jurisdiction if there is not a 7 sufficient likelihood of recurrence with respect to the party now before it.”39 8 9 The burden of showing a threat of repeated injury is on the plaintiff.40 Plaintiffs do not allege or demonstrate any continuing, present harm to them stemming from their 10 experience with State Defendants’ prior conduct, and therefore the court’s focus 11 12 13 14 15 16 regarding their standing to request injunctive relief centers on whether there is a threat of future harm to Plaintiffs from State Defendants’ allegedly unconstitutional conduct. A plaintiff can demonstrate that allegedly illegal conduct is likely to harm him again in two ways. “First, a plaintiff may show that the defendant had, at the time of the injury, a written policy, and that the injury stems from that policy.”41 “Second, the 17 18 19 plaintiff may demonstrate that the harm is part of a ‘pattern of officially sanctioned . . . behavior, violative of the plaintiffs’ [federal] rights.’”42 Plaintiffs argue that they have 20 21 37 22 38 23 39 24 40 25 26 27 28 Lyons, 461 U.S. at 111. Id. at 102 (quoting O’Shea, 414 U.S. at 495-96). Sample v. Johnson, 771 F.2d 1335, 1342 (9th Cir. 1985) (emphasis added). Nelsen v. King Cnty., 895 F.2d 1248, 1251 (9th Cir. 1990). 41 Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) (internal quotation marks omitted) abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005). 42 Id. (alternations in original) (quoting LaDuke v. Nelson, 762 F.2d 1318, 1323 (9th Cir. -11- 1 2 3 alleged and shown both a written policy on the part of DCS that authorizes unconstitutional removal of children from their homes—removal without a warrant or sufficient exigent circumstances—and a pattern of sanctioned unconstitutional seizure 4 5 of children.43 Just showing the existence of a policy or pattern of illegal behavior is 6 insufficient. Plaintiffs must still demonstrate that the policy or pattern would likely be 7 applied to them again and that they themselves would likely suffer the same injury in 8 the future.44 9 At the time Plaintiffs filed their complaint, the dependency petition had been 10 resolved and dismissed. There is no allegation or evidence of any pending DCS 11 12 investigation or continuing DCS supervision of Plaintiffs that could subject them to the 13 specific injury for which they now seek injunctive relief. Also, there is no evidence that 14 they are more likely to be reported to DCS or subjected to DCS investigation simply 15 because of their prior history with the agency. Therefore, regardless of any written 16 policy or practice DCS may follow regarding removal of children from their parents, the 17 18 likelihood of Plaintiffs being targeted by DCS in the future is no greater for them than 19 20 1985)). 43 21 22 23 24 25 26 27 28 It is undisputed that DCS workers do not obtain warrants before removing children, but the record contains evidence that the agency’s policy is that the social worker must make a finding that the child is a victim of abuse or in imminent danger of abuse and that no other lesser intrusive options are available before removing a child from a home. Doc. 161-1 at pp. 37-38 (Exhibit 17 at ¶¶ 4-11); doc. 161-1 at p. 15 (Exhibit 14 at ¶¶ 6-8). There are issues of fact as to the meaning of this policy and whether it is interpreted or implemented in a constitutional manner; that is, there are issues of fact as to whether the policy requires exigent circumstances to be present before warrantless removal. Those issue are not relevant to the standing question before the court. 44 Lyons, 461 U.S. at 102. -12- 1 any other citizen assuming their compliance with the law.45 2 3 Instead, the likelihood of Plaintiffs sustaining future injury because of CPS’s removal policy or practices is highly speculative. “Both the Supreme Court and [the 4 5 Ninth Circuit] have repeatedly found a lack of standing where the litigant’s claim relies 6 upon a chain of speculative contingencies, particularly a chain that includes the 7 violation of an unchallenged law.”46 In City of Los Angeles v. Lyons the plaintiff sued 8 the City of Los Angeles for monetary and injunctive relief based on his allegation that 9 the City’s police officers placed him in a chokehold during a traffic stop without a 10 constitutional basis for doing so. The plaintiff asked the court to issue an injunction 11 12 against the City that would prevent its police department from using chokeholds except 13 where the threat of immediate deadly force was present. The Supreme Court held that 14 the plaintiff lacked standing to seek injunctive relief because the claim of future injury 15 was speculative in that it required a string of contingencies before being capable of 16 recurrence– a traffic or criminal violation, a stop by police for such conduct, and then 17 18 19 post-stop behavior by a police officer culminating in a chokehold. The court, quoting its prior decision in O’Shea, stated that it “‘assume[s] that respondents will conduct their 20 activities within the law and so avoid . . . exposure to the challenged course of conduct . 21 . . .’”47 22 Lyons is instructive here. In order for plaintiffs to be subjected to unconstitutional 23 24 25 45 See, e.g., Camacho v. United States, No. 12-cv-956, 2014 WL 12026060, at * 4 (S.D. Cal. Oct. 29, 2014). 26 46 27 47 28 Nelsen, 895 F.2d at 1252. Lyons, 461 U.S. at 103 (quoting O’Shea, 414 U.S. at 497). -13- 1 2 3 removal, they would have to harm their children and be reported to authorities. 48 Furthermore, while it is clear from the record that no warrant would be obtained before removal, a report of abuse does not automatically lead to the warrantless removal of 4 5 children from their homes.49 The investigating social worker would still have to make a 6 finding that the Pellerins’ children were subject to some impending danger before 7 Plaintiffs could again suffer the same injury.50 In other words, the likelihood of the 8 Pellerins’ children being seized again would not only depend on harm to the children 9 10 and a report of such harm, but also on what any one social worker deems to fit within the DCS’s policy for removal.51 Therefore, as in Lyons, Plaintiffs’ claim for future injury 11 12 rests upon a series of contingencies occurring first. 13 Plaintiffs argue that, unlike the situation in Lyons, they cannot avoid future injury 14 by simply avoiding illegal conduct. That is, citizens innocent of child abuse and neglect 15 are at risk of being harmed by DCS’s removal policies and practices. They contend that 16 the record shows that the removal of their children was unwarranted and therefore they 17 18 19 20 are at risk of suffering repeated harm. The actual prior innocence of the Pellerins is not relevant to the inquiry; the concern is whether they are sufficiently likely to again be reported for child abuse and neglect, triggering the involvement of DCS and the 21 22 23 24 25 26 27 28 48 The record shows that investigation only occurs when DCS receives a report of abuse. Doc. 161-1 at p. 38 (Exhibit 17 at ¶ 7); doc. 161-1 at p. 15 (Exhibit 14 at ¶ 5). 49 Doc. 161-1 at p. 39 (Exhibit 17 at ¶ 12 and Attachment A); 50 See supra n. 43. 51 See O’Shea, 423 U.S. at 372 (indicating that a claim of future injury is too speculative if it rests upon what one agent might do in the future because of that unknown agent’s perception and interpretation of policy). -14- 1 2 3 application of the agency’s allegedly unconstitutional practices and policies. Before they could suffer injury from the unconstitutional removal of their children despite only legal conduct on their part, someone would have to falsely report abuse to trigger an 4 5 investigation and then the assigned social worker would have to make the necessary 6 findings. Therefore, even assuming only legal conduct on the part of the Pellerins, 7 future harm is still highly speculative. Indeed, the families that Plaintiffs allege falsely 8 accused them of child abuse for personal and malicious reasons live in Japan, and 9 there is no evidence or argument that those families have pursued the matter after 10 Plaintiffs left Japan. Moreover, as noted above, there is no evidence that State 11 12 13 Defendants have contacted or threatened contact with Plaintiffs after the dependency petition was dismissed, which was close to four years ago. 14 15 16 IV. CONCLUSION For the reasons discussed above, Plaintiffs’ motion for a preliminary injunction at docket 237 is DENIED. 17 18 19 DATED this 21st day of December 2017. 20 21 22 23 /S/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE 24 25 26 27 28 -15-
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