McManus v. San Diego, County of et al, No. 3:2015cv00138 - Document 61 (S.D. Cal. 2016)
Court Description: ORDER Granting 51 Motion to Dismiss Claims Three, Four, and Five. The Clerk of Court shall dismiss Defendants Golly and Mork as parties to this action. Signed by Judge Jeffrey T. Miller on 6/30/2016. (rlu)
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McManus v. San Diego, County of et al Doc. 61 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 CARLOS McMANUS SR., 11 12 CASE NO. 15cv0138 JM(RBB) Plaintiff, v. 17 COUNTY OF SAN DIEGO; CITY OF SAN DIEGO; POLICE OFFICERS ERNESTO LUNA; MARI KONG; SGT. THOMAS SULLIVAN; ANTONIO JOHNSON; DETECTIVE DAN BUROW; LT. A. SMITH; SGT. WILLS; SOCIAL WORKER DEFENDANTS JENNIFER MORK; WANJIRU GOLLY; and CHARLES COX SR., 18 ORDER GRANTING MOTION TO DISMISS CLAIMS THREE, FOUR, AND FIVE Defendants. 13 14 15 16 19 20 Defendants Wanjiru Golly (“Golly”), Jennifer Mork (“Mork”)and County of San 21 Diego (“County”) move to dismiss the claims asserted against them in the Third 22 Amended Complaint (“TAC”) for failure to state a claim. Plaintiff opposes the motion. 23 Pursuant to Local Rule 7.1(d)(1), the court finds the motion appropriate for resolution 24 without oral argument. For the reasons set forth below, the court grants the motion to 25 dismiss Claims Three, Four, and Five. Defendants Golly and Mork are dismissed as 26 parties to this action. 27 28 BACKGROUND The TAC, filed on October 26, 2015, alleges eleven claims for relief: four claims -1- 15cv0138 Dockets.Justia.com 1 for violation of 42 U.S.C. §1983 against the County and City employees; four Monell 2 claims against County and City, and three claims against Defendant Charles Cox Sr. 3 (“Cox”) for child abduction, intentional infliction of emotional distress, and 4 negligence. On September 4, 2015, the court stayed this action indefinitely as to 5 Defendant Cox, an active duty serviceman, pursuant to the Servicemembers Civil 6 Relief Act, 50 U.S.C. App. §501 et seq. 7 Plaintiff alleges that his 14 year-old minor son, C. M., was removed from his 8 care on two separate occasions. On or about January 22, 2013, Defendant Charles Cox, 9 a private party, allegedly removed C. M. from Plaintiff’s home against Plaintiff’s 10 wishes. (TAC ¶17). Believing that Defendant Cox abducted C. M., Plaintiff reported 11 the incident to Defendant City. In the early morning hours of January 23, 2013, 12 Defendants Luna, Kong, Sullivan, and Willis obtained physical custody of C.M. and 13 transported him to the Polinsky Children’s Center (“Polinsky”), based upon suspicions 14 of “emotional abuse.” (TAC ¶19). Plaintiff alleges that C.M. had no injuries or marks 15 and did not require medical care. At Polinsky, C.M. was interviewed by social workers 16 and medical professionals who conducted a medical examination of C. M. and found 17 no signs of physical injury or abuse. Plaintiff did not give his permission for the 18 examination of C.M. at Polinsky. 19 On January 23, 2013, C.M. was released from Polinsky and returned to 20 Plaintiff’s custody. (TAC ¶34). Instead of returning home, Plaintiff consented to and 21 allowed C.M. to temporarily reside in a shelter for teens. Id. On February 4, 2013, the 22 referral was closed, and C.M. apparently returned to live with Plaintiff. 23 Allegations Pertinent to Defendant Mork (Third Cause of Action) 24 On April 9, 2013, Defendant San Diego Police Officer Johnson contacted 25 Defendant Jennifer Mork, a social worker employed by the San Diego County Health 26 and Human Services Agency (“HHSA”), and requested her assistance to seize C.M. 27 from his school. Mork allegedly discussed C. M.’s seizure with her supervisor. “After 28 hearing all relevant information, including the substantial delay in taking any action as -2- 15cv0138 1 well as the lack of physical abuse, Mork’s supervisor . . . agreed and affirmed the 2 decision to seize C.M. without a court order.” (TAC ¶36). Mork, and unidentified 3 Does, then went to C.M.’s school and transported him to Polinsky. (TAC ¶37). 4 Plaintiff alleges that C.M. was seized without exigent circumstances or a warrant. On 5 April 10, 2013, C.M. was returned to Plaintiff’s custody. 6 Allegations Pertinent to Defendant Golly (Fourth Cause of Action) 7 On April 9, 2013, Plaintiff alleges Defendant Wanjiru Golly, a social worker 8 employed by HHSA, “interrogated” C.M. while at Polinsky. On April 11, 2013, 9 Defendant Golly went to C.M.’s school and interviewed him there. Plaintiff alleges 10 that the interrogation of C.M. occurred “without Plaintiff’s knowledge, consent, or 11 notice to the Plaintiff; without a warrant or court order authorizing the interrogation; 12 and, in the absence of any exigency. Golly performed these interrogations at her 13 supervisor’s direction.” (TAC ¶45). 14 Allegations Pertinent to the County Monell Claim Caused by HHSA Employees (Fifth Cause of Action) 15 16 Plaintiff alleges that County “had a duty to implement and follow customs and/or 17 practices [] which confirm and provide the protections guaranteed under the United 18 States Constitution.” (TAC ¶50). In broad brush, Plaintiff alleges that County had the 19 custom or policy of removing children from their parents custody without consent, a 20 court order, or exigent circumstances; failing to perform a reasonable investigation 21 before removing a child from the parent’s custody; always assisting the San Diego 22 Police Department (“SDPD”) without consent, court order, or exigency; and failing to 23 intervene when a child is wrongfully removed from a parent’s custody by the SDPD. 24 (TAC ¶52). Plaintiff also alleges that County failed to adequately train its social 25 workers. (TAC ¶¶59-61). 26 Procedural History 27 On July 10, 2015, the court granted the motion to dismiss the First Amended 28 Complaint brought by Defendants County, Wanjiru Golly, and Jennifer Mork. On -3- 15cv0138 1 October 5, 2015, the court granted these Defendants’ motion to dismiss the Second 2 Amended Complaint for failure to state a claim. 3 DISCUSSION 4 Legal Standards 5 General Pleading Requirements 6 Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in 7 "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 8 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a 9 "cognizable legal theory" or sufficient facts to support a cognizable legal theory. 10 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should 11 dismiss a complaint for failure to state a claim when the factual allegations are 12 insufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. 13 v. Twombly, 550 U.S. 544, 555 (2007) (the complaint’s allegations must “plausibly 14 suggest[]” that the pleader is entitled to relief); Ashcroft v. Iqbal, 556 U.S. 662 (2009) 15 (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the 16 mere possibility of misconduct). “The plausibility standard is not akin to a ‘probability 17 requirement,’ but it asks for more than a sheer possibility that a defendant has acted 18 unlawfully.” Id. at 678. Thus, “threadbare recitals of the elements of a cause of action, 19 supported by mere conclusory statements, do not suffice.” Id. The defect must appear 20 on the face of the complaint itself. Thus, courts may not consider extraneous material 21 in testing its legal adequacy. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th 22 Cir. 1991). The courts may, however, consider material properly submitted as part of 23 the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 24 n.19 (9th Cir. 1989). 25 Finally, courts must construe the complaint in the light most favorable to the 26 plaintiff. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 27 S. Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in 28 the complaint, as well as reasonable inferences to be drawn from them. Holden v. -4- 15cv0138 1 Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of 2 law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In 3 Re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996). 4 Pleading Civil Rights Claims 5 Prior to Iqbal and Twombly, “a claim of municipal liability under § 1983 is 6 sufficient to withstand a motion to dismiss even if the claim is based on nothing more 7 than a bare allegation that the individual officers' conduct conformed to official policy, 8 custom, or practice.” Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir.2007). In 9 addressing the impact of Iqbal and Twombly on the pleading standards for civil rights 10 cases, the Ninth Circuit recently stated: 11 12 13 14 15 we can at least state the following two principles common to all of them. First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. 16 AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631,637 (9th Cir. 2012) (quoting 17 Starr v. Baca, 652 F.3d 1202 (9th Cir.2011)). 18 Qualified Immunity 19 Defendants Mork and Golly persuasively argue that their actions are protected 20 under the qualified immunity doctrine. An action under 42 U.S.C. §1983 has two 21 elements: “(1) the defendants acted under color of law, and (2) their conduct deprived 22 [the plaintiff] of a constitutional right.” Haygood v. Younger, 769 F.2d 1350, 1354 23 (9th Cir.1985). A public official is immune from an action under 42 U.S.C. § 1983 24 “[u]nless the plaintiff's allegations state a claim of violation of clearly established law.” 25 Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also Harlow v. Fitzgerald, 457 U.S. 26 800, 818 (1982) (qualified immunity applies if official's conduct “does not violate 27 clearly established statutory or constitutional rights of which a reasonable person 28 would have known”). In order to determine whether the defendants are immune from -5- 15cv0138 1 an action, the court must answer two questions: (1) whether Plaintiff alleges the 2 violation of a constitutional right, and (2) whether that right was clearly established. 3 Pearson v. Callahan, 555 U.S. 223, 232 (2009) (leaving the courts to decide, in their 4 sound discretion, which question to answer first). A right is “clearly established” if its 5 contours are “sufficiently clear that a reasonable official would understand that what 6 he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “To 7 be clearly established, a right must be sufficiently clear that every reasonable official 8 would have understood that what he is doing violates that right. [] When properly 9 applied, [qualified immunity] protects all but the plainly incompetent or those who 10 knowingly violate the law. We do not require a case directly on point, but existing 11 precedent must have placed the statutory or constitutional question beyond debate.” 12 Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015) (citations and internal quotation marks 13 omitted). The contours of the right established must be “undertaken in light of the 14 specific context of the case, not as a broad general proposition.” Brosseau v. Haugen, 15 543 U.S. 194, 198 (2004). 16 Here, based upon the TAC’s allegations, Plaintiff fails to establish that the 17 alleged actions of Defendants Mork and Golly violated any due process constitutional 18 rights that were clearly established. In essence, Defendant Mork is alleged to have 19 transported C.M. to Polinsky on April 9, 2013, and Defendant Golly to have 20 interviewed C.M. while at school. These allegations are insufficient to avoid 21 application of qualified immunity principles. Plaintiff relies on several inapposite 22 authorities arising under the Fourth Amendment for support. In Wallis v. Spencer, 202 23 F.3d 1126 (9th Cir. 2000), government officials received a third-hand report from an 24 institutionalized suicidal psychiatric patient regarding purported satanic rituals and 25 child abuse by her sister and brother-in-law. Based upon these unverified (and false) 26 reports of child abuse, police officers and various County employees went to the Wallis 27 family home at midnight. At 1:00 a.m. the agents removed the children from the home 28 -6- 15cv0138 1 without consent, a court order, or exigent circumstances. It was in this context that the 2 Ninth Circuit held that, under the Fourth Amendment, 3 4 5 [o]fficials, including social workers, who remove a child from its home without a warrant must have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant. 6 Id. at 1294; Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999) (coerced entry into a 7 home by government agents to investigate suspected child abuse, interrogate a child, 8 and strip search a child without a search warrant, parental consent, or exigent 9 circumstances violates the Fourth Amendment); Stoot v. City of Everett, 582 F.3d 910, 10 922 (9th Cir. 2009) (qualified immunity applies to bar a claim that an interview by a 11 police officer of a 14-year-old criminal suspect of sexual abuse while at school violates 12 the Fourteenth Amendment).1 13 In his opposition papers, Plaintiff cites no Supreme Court or other analogous 14 binding authority to support his argument that the alleged conduct at issue violated any 15 clearly established constitutional right at the time of the alleged events. The Fourteenth 16 Amendment generally protects the integrity of the family unit in the custody, care and 17 nurturing of one’s children. Stanley v. Illinois, 405 U.S. 645, 651 (1972). The court 18 notes that the parties do not cite authorities discussing the precise contours of the 19 Fourteenth Amendment right of familial association with respect to government agents 20 removing a 14-year-old from school to interview him concerning whether he was a 21 potential victim of child abuse, or transporting the teenager to child protective services. 22 23 24 25 26 27 28 1 The court notes that “it is necessary for both government officials and the courts to be sensitive to the fact that society's interest in the protection of children is ... multifaceted, composed not only with concerns about the safety and welfare of children from the community's point of view, but also with the child's psychological well-being, autonomy, and relationship to the family or caretaker setting.” Franz v. Lytle, 997 F.2d 784, 792–93 (10th Cir.1993) (citations omitted). Conversely, the court is also sensitive to the fact that the “history and culture of Western civilization reflect a strong tradition of parental concern for the nurturing and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” Wisconsin v. Yoder, 406 U.S. 205, 232 (1972). -7- 15cv0138 1 Of course, an unconstitutional entry into one’s home constitutes “paradigmatic” 2 action under the Fourth Amendment, Michigan v. Tyler, 436 U.S. 499, 504 (1978), 3 whether to obtain evidence or to remove a child from suspect circumstances. Where 4 such an unconstitutional invasion is associated with the unwarranted removal of a 5 child, the parent may argue, with great force, that his Fourteenth Amendment rights of 6 familial association are clearly established. Where, however, the child’s removal is 7 from school rather than the home, the parent’s right of familial association would 8 appear to be leagues short of being clearly established. 9 Plaintiff also cites Greene v. Camretta, 588 F.3d 1011 (9th Cir. 2009), rev’d, 10 Camretta v. Greene, 131 S.Ct. 2020 (2011), to support his argument. In Greene, a 11 deputy sheriff and case worker seized a seven-year-old child and interrogated him at 12 school in the absence of a warrant, court order, consent or exigent circumstances. In 13 Greene, the Ninth Circuit concluded that, “applying the traditional Fourth Amendment 14 requirements, the decision to seize and interrogate S.G. in the absence of a warrant, a 15 court order, exigent circumstances, or parental consent was unconstitutional.” Id. at 16 1030. Notably, unlike the present case, the child brought a Fourth Amendment claim, 17 and not a Fourteenth Amendment claim. The Supreme Court ultimately dismissed the 18 action as moot and specifically vacated “the Ninth Circuit’s ruling addressing the 19 merits of the Fourth Amendment issue” and the qualified immunity analysis. 131 S.Ct. 20 at 2035-36. Moreover, the Supreme Court expressly noted that the point of the vacatur 21 was to prevent Greene from spawning any legal consequences. Accordingly, this 22 authority does not lend support to Plaintiff’s legal theory that parental rights are 23 violated whenever a 14-year-old minor is removed from school and interviewed in the 24 course of a child abuse investigation without the parent’s consent, a court order, or 25 exigent circumstances. See Ashcroft, 563 U.S. 731 (“We do not require a case directly 26 on point, but existing precedent must have placed the statutory or constitutional 27 question beyond debate.”). 28 -8- 15cv0138 1 The court rejects Plaintiff’s contention that Defendants Mork and Golly violated 2 clearly established federal constitutional law when they assisted the police in a child 3 abuse investigation by removing 14-year-old C.M. from his school and transporting 4 him to Polinsky where he was interviewed. Authorities establishing that infants cannot 5 be removed from the parents home and care without a warrant or exigent circumstances 6 do not provide sufficient notice to inform social workers that it is unconstitutional to 7 remove a 14-year-old from his school and to interview him during the course of a child 8 abuse investigation. 9 In sum, the court concludes that qualified immunity applies to Defendants Golly 10 and Mork and dismisses them from this action. 11 The Monell Claim 12 County claims that Plaintiff fails to state a claim for municipal liability in the 13 Fifth Claim based upon the conduct of Defendants Mork and Golly. Under 42 U.S.C. 14 § 1983, “[e]very person” who acts under color of state law may be sued. The term 15 “person” has been interpreted broadly, even to include cities, counties, and other local 16 government entities. See Monell v. New York City Dep’t of Social Services, 436 U.S. 17 658 (1978). Municipalities, their agencies and their supervisory personnel cannot be 18 held liable under Section 1983 on any theory of respondeat superior or vicarious 19 liability. They can, however, be held liable for deprivations of constitutional rights 20 resulting from their formal policies or customs. See Monell, 436 U.S. at 691-693; 21 Watts v. County of Sacramento, 256 F.3d 886, 891 (9th Cir. 2001); Shaw v. California 22 Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 610 (9th Cir. 1986). 23 Locating a “policy” ensures that a municipality “is held liable only for those 24 deprivations resulting from the decisions of its duly constituted legislative body or of 25 those officials whose acts may be fairly said to be those of the municipality.” Board 26 of the County Comm’rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403-04 27 (1997) (citing Monell, 436 U.S. at 694). Similarly, an act performed pursuant to a 28 -9- 15cv0138 1 “custom” which has not been “formally approved by an appropriate decisionmaker may 2 fairly subject a municipality to liability on the theory that the relevant practice is so 3 widespread as to have the force of law.” Id. (citing Monell, 436 U.S. at 690-691); see 4 also Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (holding that municipal 5 liability under § 1983 may be shown if Plaintiff proves that employee committed 6 alleged constitutional violation pursuant to a “longstanding practice or custom which 7 constitutes the ‘standard operating procedure’ of the local government entity.”). 8 “To bring a § 1983 claim against a local government entity, a plaintiff must plead 9 that a ‘municipality’s policy or custom caused a violation of the plaintiff's 10 constitutional rights.” Ass’n for Los Angeles Deputy Sheriffs v. Cnty. of Los Angeles, 11 648 F.3d 986, 992-93 (9th Cir. 2011). A plaintiff must show (1) he possessed a 12 constitutional right of which he was deprived, (2) the municipality had a policy, (3) the 13 policy amounts to deliberate indifference to the plaintiff's constitutional right, and (4) 14 the policy is the “moving force behind the constitutional violation.” Anderson v. 15 Warner, 451 F.3d 1063, 1070 (9th Cir. 2006). “For a policy to be the moving force 16 behind the deprivation of a constitutional right, the identified deficiency in the policy 17 must be closely related to the ultimate injury,” and the plaintiff must establish “that the 18 injury would have been avoided had proper policies been implemented.” Long v. Cnty. 19 of Los Angeles, 442 F.3d 1178, 1190 (9th Cir. 2006). 20 Here, the TAC’s allegations in the fifth claim for relief, are still too generalized 21 and conclusory to state a claim. As noted earlier, the allegations largely parrot the 22 requirements for municipal liability. Plaintiff alleges that the County had the following 23 customs relating to the removal of a child from its parent’s custody: 24 25 26 27 28 52. At the time of the underlying events, the County’s customs relating to the removal of a child from its parent’s custody included, but were not limited to: a. The custom of removing children from their parent’s custody without consent, court order, and/or exigent circumstances (i.e., imminent danger of serious bodily injury). b. The custom of removing children from their parent’s custody without first performing a reasonable investigation. - 10 - 15cv0138 1 2 3 4 5 c. The custom of seizing children from their parent’s custody without consent, court order, and/or exigency, based on a hope that further investigation could turn up facts suggesting the seizure was justified. d. The custom to always assist – without investigation and/or hesitation – the SDPD in the removal of a child from their parent’s custody without consent, court order, and/or exigency. e. The custom to not intercede when the SDPD is removing a child from their parent’s custody without consent, court order, and/or exigency. (TAC ¶52). 6 As previously noted, a plaintiff must plausibly set forth allegations giving rise 7 to an inference that County maintained the alleged policies, practices, and customs. 8 “[T]hreadbare recitals of the elements of a cause of action, supported by mere 9 conclusory statements, do not suffice” to state a claim. Iqbal, 56 U.S. at 662. While 10 the TAC’s allegations would likely have survived Rule 8 scrutiny prior to Iqbal, see 11 Whitaker, 486 F.3d at 581, the court notes the heavy pleading burden placed on a 12 plaintiff where the sought-after information is uniquely within the possession of 13 defendants like County. Notwithstanding, merely reciting conclusory allegations 14 (County failed to conduct a “reasonable investigation,” customarily seized children 15 without a court order, consent or exigent circumstances, and failed to conduct a 16 reasonable investigation), fail to state a Monell claim. 17 In sum, the court grants the motions to dismiss Claims Three, Four and Five. 18 The Clerk of Court shall dismiss Defendants Golly and Mork as parties to this action. 19 IT IS SO ORDERED. 20 DATED: June 30, 2016 21 Hon. Jeffrey T. Miller United States District Judge 22 23 24 cc: All parties Magistrate Judge Brooks 25 26 27 28 - 11 - 15cv0138
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