Ramirez et al v. County of Tulare et al, No. 1:2014cv01414 - Document 30 (E.D. Cal. 2014)
Court Description: MEMORANDUM AND ORDER GRANTING 25 Anna and Jaime Zavala's MOTION to Dismiss. Plaintiffs have twenty days from the date this Order is signed to file an amended complaint, if they can do so consistent with this Order. IT IS FURTHER ORDERED that within ten days from the date this Order is signed, plaintiffs' counsel will show cause why sanctions should not be imposed under Local Rule 230(i). (Kirksey Smith, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 14 15 JOEL RAMIREZ, individually & as successor-in-interest to Joel A. Ramirez, Jr., and GLORIA VIZCARANDO, individually & as successorin-interest to Joel A. Ramirez, Jr., 18 19 20 21 MEMORANDUM AND ORDER RE: MOTION TO DISMISS AND ORDER TO SHOW CAUSE Plaintiffs, 16 17 CIV. NO. 1:14-1414 WBS BAM v. COUNTY OF TULARE, MARGARET PINEDA, ERICA SOTO, ANNA ZAVALA, JAIME ZAVALA, FOSTER FAMILY HOME AND SMALL FAMILY HOME INSURANCE FUND OF THE STATE OF CALIFORNIA, DOES 110, 22 23 24 25 26 27 Defendant. ----oo0oo---Plaintiffs Joel Ramirez and Gloria Vizcarando brought this action to recover for the untimely death of their son while he was under the care of foster parents Anna and Jaime Zavala. 28 1 1 Presently before the court is defendants Anna and Jaime Zavala’s 2 motion to dismiss plaintiffs’ civil right claim for failure to 3 state a claim upon which relief can be granted pursuant to 4 Federal Rule of Civil Procedure 12(b)(6). 5 I. Factual and Procedural Background 6 Plaintiffs are the natural parents of the deceased Joel 7 Ramirez, Jr. (First Am. Compl. (“FAC”) ¶ 3.) On August 22, 8 2013, plaintiffs’ son, then two-and-a-half years old, was removed 9 from their home and placed under the jurisdiction of the Tulare 10 County Superior Court, Juvenile Division. (Id. ¶ 4.) The 11 Division placed Joel with foster parents Anna and Jaime Zavala. 12 (Id.) 13 making the placement knew that Joel was seriously ill, 14 complaining of severe stomach problems, vomiting, and needed 15 immediate medical attention. 16 social worker informed the Zavalas of Joel’s illness. 17 6.) 18 same day, they failed to do so. 19 rushed to the emergency room,1 and he died the following day of 20 acute ruptured appendix, acute peritonitis, septic shock, and 21 severe dehydration. Plaintiffs allege that at the time, the social worker (Id.) According to plaintiffs, the (Id. at Although the Zavalas agreed to take him to the doctor that 22 (Id.) On August 25, Joel was (Id. ¶ 4.) Plaintiffs seek recovery for the wrongful death of 23 their son, loss of consortium, and emotional distress. 24 2.) 25 U.S.C. § 1983, alleging defendants violated the Fourteenth 26 Amendment, as well as state law claims for negligence and breach 27 28 (Id. ¶ They bring a civil rights claim against defendants under 42 1 Plaintiffs do not indicate who took Joel to the hospital. 2 1 of contract. 2 rights claim on the ground that they are not state actors. 3 (Defs.’ Mot. (Docket No. 25).) 4 II. 5 The Zavalas move to dismiss plaintiffs’ civil Analysis On a Rule 12(b)(6) motion to dismiss, the court must 6 accept the allegations in the complaint as true and draw all 7 reasonable inferences in favor of the plaintiff. 8 Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by 9 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. See Scheuer v. 10 319, 322 (1972). 11 must plead “only enough facts to state a claim to relief that is 12 plausible on its face.” 13 544, 570 (2007). 14 for more than a sheer possibility that a defendant has acted 15 unlawfully,” and where a plaintiff pleads facts that are “merely 16 consistent with a defendant’s liability,” it “stops short of the 17 line between possibility and plausibility.” 18 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). 19 To survive a motion to dismiss, a plaintiff Bell Atl. Corp. v. Twombly, 550 U.S. This “plausibility standard,” however, “asks Ashcroft v. Iqbal, “A § 1983 plaintiff must demonstrate . . . that the 20 defendant acted under the color of state law,” meaning “‘the 21 party charged with the deprivation must be a person who may 22 fairly be said to be a [governmental] actor.’” 23 Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (quoting Lugar v. 24 Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)). 25 1983 excludes from its reach merely private conduct, no matter 26 how discriminatory or wrong.’” 27 Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (quoting Am. Mfrs. 28 Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)). Kirtley v. “‘Section Sutton v. Providence St. Joseph 3 “When 1 addressing whether a private party acted under color of law, we 2 therefore start with the presumption that private conduct does 3 not constitute governmental action.” 4 (citing Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992) 5 (“Only in rare circumstances can a private party be viewed as a 6 ‘state actor’ for section 1983 purposes.”)). 7 Sutton, 192 F.3d at 835 Several appellate courts outside the Ninth Circuit have 8 held that foster parents are not acting under the color of state 9 law for § 1983 purposes. See, e.g., Leshko v. Servis, 423 F.3d 10 337, 338 (3d Cir. 2005) (holding foster parents in Pennsylvania 11 were not state actors for the purposes of § 1983); Hafez v. 12 Madison, 348 Fed. Appx. 465, 467 (11th Cir. 2009) (“[F]oster 13 parents are not state actors for section 1983 purposes.”). 14 However, absent a bright-line rule from the Ninth Circuit, the 15 court must engage in a fact-based inquiry to determine whether 16 the Zavalas were state actors when they failed to seek medical 17 care for Joel. 18 Cir. 1983) (“The extent of state involvement remains a factual 19 inquiry.”); Milburn by Milburn, 871 F.2d 474, 476 (4th Cir. 1989) 20 (recognizing that whether foster parents are state actors is a 21 fact-based inquiry). 22 See Howerton v. Gabica, 708 F.2d 380, 383 (9th “The [Supreme] Court has articulated a number of tests 23 or factors to determine whether state action is ‘significant.’” 24 Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883 (9th Cir. 25 1991) (quoting Howerton v. Gabica, 708 F.2d 380, 382-83 (9th Cir. 26 1983) (collecting cases)) (alteration in original). 27 include public function, joint action, governmental compulsion or 28 coercion, and governmental nexus. 4 Those tests See Kirtley, 326 F.3d at 1092. 1 “Satisfaction of any one test is sufficient to find state action, 2 so long as no countervailing factor exists.” 3 allege the Zavalas are state actors under the close nexus, 4 governmental compulsion, and joint action tests. Id. Plaintiffs 5 A. Nexus 6 State action may be found where “‘there is such a close 7 nexus between the State and the challenged action that seemingly 8 private behavior may be fairly treated as that of the State 9 itself.’” Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 10 950, 955 (9th Cir. 2008). To determine whether a “close nexus” 11 exists, courts look to factors “such as when the nominally 12 private actor is ‘controlled by an agency of the State, when it 13 has been delegated a public function by the State, when it is 14 entwined with governmental policies, or when government is 15 entwined in its management or control.” 16 Ctr. of S. Nev., 649 F.3d 1143, 1150 (9th Cir. 2011) (finding a 17 sufficiently close nexus between the state and challenged action 18 where private physicians who were governing members of the 19 medical staff at a public hospital acted within the scope of 20 their employment when they engaged in the chargeable conduct). 21 Plaintiffs argue the court should find a close nexus Chudacoff v. Univ. Med. 22 between the government and the Zavalas’ conduct as Joel’s foster 23 parents because the government compensates them for providing 24 care to foster children. 25 fails because financial assistance alone, even if extensive, is 26 generally insufficient for finding a close nexus. 27 Baker v. Kohn, 457 U.S. 830, 840 (1982) (holding a private school 28 was not a state actor even though “virtually all of the school’s (Pl.’s Opp’n at 4.) 5 This argument See Rendell- 1 income was derived from government funding”). 2 mere fact that a business is subject to state regulation does not 3 by itself convert its action to that of the State for purposes of 4 the Fourteenth Amendment.’” 5 526 U.S. 40, 52 (1999) (quoting Jackson v. Metro. Edison Co., 419 6 U.S. 345, 350 (1974)). 7 court in Leshko v. Servis held that Pennsylvania’s funding and 8 regulation of foster care is insufficient to establish a close 9 nexus between the foster parents and the state. Similarly, “‘[t]he Am. Mfrs. Mut. Ins. Co. v. Sullivan, Particularly pertinent to this case, the 423 F.3d 337, 10 340-41 (3d Cir. 2005). 11 not establish a nexus between the County of Tulare and the 12 Zavala’s allegedly chargeable conduct in the course of acting as 13 foster parents to Joel. 14 Regulation and funding, taken alone, do Additionally, plaintiffs argue that because the Zavalas 15 “voluntarily assumed the duty” of seeking medical care for Joel, 16 the court should find that their decision not to seek such care 17 can be attributed to the state. 18 Zavalas “agreed” to seek immediate medical care for Joel. 19 at 7.) 20 contract between the Zavalas and the County of Tulare, this still 21 would not be sufficient for finding that a “substantially close 22 nexus” existed between the parties. 23 contractors do not become acts of the government by reason of 24 their significant or even total engagement in performing public 25 contracts.” 26 that “[a] school, like [] nursing homes, is not fundamentally 27 different from many private corporations whose business depends 28 primarily on contracts to build roads, bridges, dams, ships, or Plaintiffs allege that the (FAC Even if the court construed such “agreement” as a “Acts of [] private Rendell-Baker, 457 U.S. at 840-41 (recognizing 6 1 submarines for the government,” and that those contracts alone do 2 not support attributing private decisions to the state); Santiago 3 v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011) (holding that the 4 mere fact that private bus drivers entered into a contract with 5 the government to transport public school students does not alter 6 their status as private actors).2 7 that the Zavalas “agreement” to carry out an act as instructed by 8 a state social worker established a nexus between the government 9 and the Zavalas, such that the Zavalas’ decision to delay taking 10 Joel to the hospital could properly be fairly treated as that of 11 the state. The court thus cannot conclude 12 B. Governmental Compulsion 13 “State action may be found under the state compulsion 14 test where the state has ‘exercised coercive power or has 15 provided such significant encouragement, either overt or covert, 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Under some circumstances, a private actor can become a state actor where there has been delegation. When a state delegates to a private individual a public function that is traditionally the exclusive prerogative of the state, the individual may be acting under the color of state law in performing that function. Rendell-Baker, 457 U.S. at 842. However, “the activities that have been held to fall within the state’s exclusive preserve for purposes of the public function test are few and far between.” Santiago, 655 F.3d at 69. Courts have held that caring for children is typically not the exclusive prerogative of the state. See Leshko, 423 F.3d at 343-44 (“No aspect of providing care to foster children in Pennsylvania has ever been the exclusive province of the government.”); Rayburn, 241 F.3d at 1347 (agreeing with the district court that foster care is traditionally not an exclusive state prerogative); Milburn by Milburn v. Anne Arundel Cnty. Dep’t of Soc. Servs., 871 F.2d 474, 479 (4th Cir 1989.) (“The care of foster children is not traditionally the exclusive province of the State.”); see also Rendell-Baker, 457 U.S. at 842 (holding that education of maladjusted children who could not be served by traditional public schools was not an exclusive prerogative of the state). 7 1 that the [private actor’s] choice must in law be deemed to be 2 that of the State.” 3 Cir. 1997). 4 delay seeking medical care was compelled by the state, because 5 they allege the opposite: county workers encouraged the Zavalas 6 to seek medical care for Joel, but the Zavalas shirked this 7 responsibility. 8 Joel to the hospital could thus not have been encouraged overtly 9 or covertly by the state. Johnson v. Knowles, 113 F.3d 1114, 1119 (9th Plaintiffs do not allege the Zavalas’ decision to (FAC at 7.) The couple’s choice to delay taking See Leshko, 423 F.3d at 340-41 10 (finding no state action under the nexus test where the 11 plaintiffs failed to allege grounds for finding the state 12 “significantly encouraged or participated” in the foster parents’ 13 decision not to seek medical attention where child was injured 14 while left sitting unattended next to a pot of hot water). 15 C. Joint Action 16 Under this test, “‘courts examine whether state 17 officials and private parties have acted in concert in effecting 18 a particular deprivation of constitutional rights.’” 19 Fox, 312 F.3d 423, 445 (9th Cir. 2002) (quoting Gallagher v. Neil 20 Young Freedom Concert, 49 F.3d 1442, 1453 (10th Cir. 1995)). 21 “The test focuses on whether the state has ‘so far insinuated 22 itself into a position of interdependence with [the private 23 actor] that it must be recognized as a joint participant in the 24 challenged activity.’” 25 Agric. Improvement & Power Dist., 869 F.2d 503, 507 (9th Cir. 26 1989)). 27 existence of a conspiracy or by showing that the private party 28 was a ‘willful participant in joint action with the State or its Franklin v. Id. (quoting Gorenc v. Salt River Project “A plaintiff may demonstrate joint action by proving the 8 1 agents.’” 2 (9th Cir. 1989)). 3 require a substantial degree of cooperation before imposing civil 4 liability for actions by private individuals that impinge on 5 civil rights.” 6 Id. (quoting Collins v. Womancare, 878 F.2d 1145, 1154 The Ninth Circuit “[has] been careful to Id. According to plaintiffs, “[w]hen the foster parents 7 agreed to relieve the County of its duty to seek medical care by 8 promising to take the child themselves to the doctor, they became 9 ‘willful participants.’” (Pls.’ Opp’n at 3.) In this case, 10 however, the “challenged activity” was the Zavalas’ alleged 11 transgression of the county workers’ instructions. 12 Mut. Ins., 526 U.S. at 51 (“Our approach to [the question of 13 whether the party charged with the deprivation is a state actor] 14 begins by identifying the ‘specific conduct of which the 15 plaintiff complains.’” (quoting Blum, 457 U.S. at 1004)); 16 Rayburn, 241 F.3d at 1348 (“[P]rivate conduct is fairly 17 attributable only when the State has had some affirmative role . 18 . . in the particular conduct underlying a claimant’s civil right 19 grievance.” (quoting NBC, Inc. v. Commc’ns Workers of Am., AFL- 20 CIO, 860 F.2d 1022, 1025 n.4 (1988))). 21 Zavalas’ care, the county workers did not cooperate in the 22 Zavalas’ decision to ignore their recommendations and delay 23 seeking medical attention for the child. 24 was allegedly in defiance to the state’s proposed course of 25 action, which is quite the opposite of “a substantial degree of 26 cooperation,” and does not support a finding a state action under 27 the “joint participant” test. 28 (holding that state of Georgia was not a “joint participant” in See Am. Mfrs. By entrusting Joel to the The Zavalas’ omission See Rayburn, 241 F.3d at 1348 9 1 foster parent’s child abuse because, while it does regulate 2 foster parenting to an extent, “this relationship does not 3 encourage or sanction child abuse in any way, and that, 4 the contrary, the State and DFACS specifically forbid such 5 conduct”). 6 “[t]o Because plaintiffs have not alleged any facts from 7 which the court could plausibly infer that the Zavalas were state 8 actors when they failed to seek medical care for Joel, the court 9 must grant the Zavalas’ motion to dismiss plaintiffs’ § 1983 10 claim against them. 11 12 ORDER TO SHOW CAUSE At the hearing on this motion, Richard Sullivan, of the 13 law firm of Lewis Brisbois Bisgaard & Smith, appeared on behalf 14 of the moving defendants. 15 the plaintiffs. 16 of intent to submit the matter on the briefs, failure to appear 17 may be deemed withdrawal of the motion or of opposition to the 18 motion, in the discretion of the Court, or may result in the 19 imposition of sanctions.” See E.D. Cal. L. R. 230(i). 20 No appearance was made on behalf of Local Rule 230(i) provides that, “Absent notice On the morning of the hearing, someone from the office 21 of plaintiffs’ attorney called the court to advise that 22 plaintiffs’ attorney, John Rozier, would not be attending the 23 hearing because he was in Utah, but she did not state that he 24 intended to submit the matter on the briefs. 25 counsel for the moving defendants was required to attend the 26 hearing, but because of the absence of plaintiffs’ counsel was 27 not permitted to argue. 28 In the meantime, IT IS THEREFORE ORDERED that the Zavalas’ motion to 10 1 dismiss plaintiffs’ § 1983 claim be, and the same hereby is, 2 GRANTED. 3 Plaintiffs have twenty days from the date this Order is 4 signed to file an amended complaint, if they can do so consistent 5 with this Order. 6 IT IS FURTHER ORDERED that within ten days from the 7 date this Order is signed, plaintiffs’ counsel will show cause 8 why sanctions should not be imposed under Local Rule 230(i). 9 Dated: December 2, 2014 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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