Henry A. et al v. Willden et al, No. 2:2010cv00528 - Document 85 (D. Nev. 2010)

Court Description: ORDER Granting 20 and 21 Motions to Dismiss. Signed by Judge Robert C. Jones on 10/26/10. (Copies have been distributed pursuant to the NEF - ASB)
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Henry A. et al v. Willden et al Doc. 85 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 14 HENRY A., by his next friend M.J., et al., ) ) Plaintiffs, ) ) v. ) ) MICHAEL WILLDEN, Director of the Nevada ) Department of Health and Human Services, ) et al. ) ) Defendants. ) ) ___________________________________ ) 2:10-cv-00528-RCJ-PAL ORDER 15 Currently before the Court is a Motion to Dismiss, or, in the alternative, Motion for a 16 More Definite Statement filed by Defendants Clark County, Virginia Valentine, and Tom 17 Morton (collectively referred to herein as the “Clark County Defendants”) on May 7, 2010. 18 Also before the Court is a Motion to Dismiss, or, in the alternative, Motion for More Definite 19 Statement filed by Defendants Michael Willden and Diane Comeaux (collectively referred to 20 herein as the “State Defendants”) on May 10, 2010. Plaintiffs filed a Consolidated Opposition 21 (#36) on May 27, 2010. The State Defendants filed a Reply (#39) on June 7, 2010, and the 22 Clark County Defendants filed a Reply (#41) on June 9, 2010. The Court heard oral argument on the motions on October 19, 2010. 23 BACKGROUND 24 The following is a recitation of facts taken from the Complaint (#1) filed on April 13, 25 26 2010. 27 Plaintiffs are thirteen children who are in or have been in the legal custody of the State 28 of Nevada and/or Clark County and placed in foster care. Plaintiffs seek redress for harms Dockets.Justia.com 1 suffered while in the foster care system, and have filed individual claims for damages, 2 declaratory and injunctive relief. Plaintiffs have also filed class action claims for declaratory 3 and injunctive relief. 4 According to the complaint, Plaintiffs were removed from the care of their parents and 5 placed in Defendants’ custody for the explicit purpose of keeping them safe from harm and 6 ensuring their well-being. Despite this purpose, Plaintiffs state that Defendants’ child welfare 7 system routinely fails in its legal obligations, duties and responsibilities to the Plaintiffs. 8 Although Defendants are long aware of these failures, Plaintiffs assert that in many instances 9 Defendants’ proposed solutions to the problems are ineffective. Moreover, Plaintiffs state that 10 Defendants’ policies and customs (i) fail to comply with federal and state laws, (ii) depart 11 substantially from professional judgment, standards and practices, and (iii) reflect a deliberate 12 indifference to the health and safety of the children Defendants are obligated to protect. As 13 a result of Defendants’ failures, Plaintiffs state that they have suffered numerous injuries 14 including: severe physical abuse, lack of necessary medical treatment, and multiple placement 15 disruptions. 16 According to Plaintiffs, Nevada law grants explicit responsibility and authority to the 17 State Defendants to develop and promulgate child welfare policies. However, Plaintiffs assert 18 that the State Defendants have abdicated this responsibility in large respect. As a result, 19 Plaintiffs state that the Clark County Defendants have created many of their own child welfare 20 policies. According to Plaintiffs, this mixture of state and county policies makes it virtually 21 impossible to determine what policies actually apply and confounds the ability of even the 22 most well-intentioned staff to determine what their responsibilities are to the children on their 23 caseload. 24 The complaint asserts that Nevada’s foster care system is financed through a mixture 25 of federal, state, and county funds. According to Plaintiffs, the State provides funding to Clark 26 County for operation of its foster care program, while Clark County is responsible for providing 27 funding for child protective services within the county. Plaintiffs assert that the State also 28 receives millions of dollars of federal funds for its child welfare system and allocates a portion 2 1 of those funds to Clark County. Federal funds are the single greatest support of Nevada’s 2 child welfare system, ranging each year from 53% to 55% of all state spending on child 3 welfare. 4 According to the complaint, to become eligible for federal funding, Nevada agreed to 5 administer its foster care program in accordance with federal statutes, regulations, and 6 policies promulgated by the U.S. Department of Health and Human Services. The U.S. 7 Department of Heath and Human Services conducts periodic reviews to assess whether 8 Nevada is in compliance with those federal mandates. Federal reviews were conducted in 9 both 2004 and 2009. Plaintiffs state that the 2004 review of Nevada’s foster care program 10 found that Nevada was not in substantial compliance with any of the seven child welfare 11 outcomes designed to ensure children’s safety, permanency and well being. Plaintiffs state 12 that the State’s performance continued to fall below national standards in the 2009 Federal 13 Review. In 2009, Nevada was only in substantial compliance with one of the seven child 14 welfare outcomes designed to ensure children’s safety, permanency and well being. 15 Plaintiffs state that since 2003, more than ten studies and reports have documented 16 the Defendants’ failure to protect the health, safety and well being of child abuse victims and 17 children in foster care. According to Plaintiffs, Defendants commissioned many of these 18 reports. In addition, Defendants have conducted multiple case reviews that further document 19 these failures. Based on these reports and reviews, Plaintiffs assert that Defendants have 20 had full knowledge of the system’s deficiencies and have failed to remedy the problems. 21 Specifically, Plaintiffs state that Defendants failed (i) to adequately train and supervise 22 caseworkers, (ii) to meet the needs of children under their care, (iii) to ensure that 23 caseworkers conduct legally required visits with foster children, and (iv) to take reasonable 24 and legally mandated steps to protect children from harm. Because of these failures, Plaintiffs 25 allege that Defendants are victimizing foster children rather than discharging their duty to 26 provide for their safety and well-being. Plaintiffs state that they have been physically, 27 emotionally and psychologically harmed by the deficiencies in Defendants’ policies, customs 28 and omissions. 3 1 Plaintiffs filed a complaint in this action seeking compensatory and punitive damages 2 for the past harms that Plaintiffs suffered while in the custody of Defendants. The action also 3 seeks declaratory and injunctive relief to stop continuing violations of Plaintiffs’ legal rights 4 and to prevent Defendants, through their policies, customs and omissions, from continuing to 5 harm the children they have a responsibility to protect. In addition, the lawsuit seeks 6 declaratory and injunctive relief on behalf of certain specified classes of children in the Clark 7 County foster care system based on Defendants’ alleged failure to fulfill mandatory 8 obligations. 9 There are five named Defendants in this action: (1) Michael Willden (“Willden”), 10 Director of the Nevada Department of Health and Human Services; (2) Diane Comeaux 11 (“Comeaux”), Administrator of the Nevada Division of Child and Family Services; (3) Virginia 12 Valentine (“Valentine”), Clark County Manager; (4) Tom Morton (“Morton”), Director of Clark 13 County Department of Family Services; and (5) Clark County. Plaintiffs have filed the following 14 individual claims against the Defendants: (1) Section 1983 - Duty to Protect; (2) Section 1983 15 - State Created Danger; (3) Section 1983 - Federal Adoption Assistance Act and Child 16 Welfare Act, Federal Child Abuse Prevention and Treatment and Adoption Reform; (4) 17 Substantive Due Process under the Nevada Constitution; (5) Negligence; (6) Violation of the 18 Supremacy Clause - NRS 424.090; and (7) Violation of the Supremacy Clause - NRS 19 432.0177. Plaintiffs have also filed several class claims against Defendants. These include: 20 (1) Section 1983 - Federal Adoption Assistance Act and Child Welfare Act, Federal Child 21 Abuse Prevention and Treatment and Adoption Reform; (2) Section 1983 - Child Abuse 22 Prevention and Treatment Act, Guardian Ad Litem; (3) Section 1983 - Child Abuse Prevention 23 and Treatment Act, Early Intervention Services; (4) Section 1983 - Duty to Protect; and (5) 24 Substantive Due Process under the Nevada Constitution. 25 Defendants move to dismiss the claims asserted against them pursuant to Federal Rule 26 of Civil Procedure 12(b)(6) on the grounds that they are entitled to immunity and the causes 27 of action fail to state claims for relief upon which relief may be granted. 28 /// 4 DISCUSSION 1 2 I. Immunity 3 The Clark County Defendants move the Court to dismiss the claims asserted against 4 them on the basis that they are immune from suit in both their official and individual capacities. 5 (Mot. to Dismiss (#20) at pp. 7-13). The Clark County Defendants state that all “of the acts 6 allegedly taken by Ms. Valentine and Mr. Morton are discretionary acts for which Ms. 7 Valentine and Mr. Morton as individuals are absolutely immune from suit.” Id. at 9. In 8 addition, the Clark County Defendants state that they are entitled to qualified immunity for the 9 causes of action asserted against them because they “both were acting in the course and 10 scope of their job responsibilities,” and Plaintiffs’ claims do not state that “clearly established 11 rights have been violated.” Id. at 11. Finally, the Clark County Defendants state that they are 12 entitled to immunity as to the state law causes of action because the alleged unlawful acts 13 asserted are discretionary in nature. Id. at 12. 14 The State Defendants also argue that they are entitled to immunity as to the claims 15 asserted against them in Plaintiffs’ complaint. (Mot. to Dismiss (#21) at 4). According to the 16 State Defendants, they are entitled to immunity because Plaintiffs have failed to sufficiently 17 plead the substantive due process claims against them. Id. The State Defendants also move 18 to dismiss the claims asserted against them for failure to state a claim upon which relief can 19 be granted. 20 In response, Plaintiffs argue that the Defendants are not entitled to immunity on any 21 of the causes of action asserted against them. (Consolidated Opp’n (#36) at 22). According 22 to Plaintiffs, it is well established that local government officials, such as Defendants, can be 23 sued in their official capacities under section 1983. Id. at 22. In addition, Plaintiffs state that 24 the Defendants have cited no authority for the proposition that they are entitled to individual 25 absolute immunity for their official actions. Id. at 23. Plaintiffs state that Defendants are not 26 entitled to qualified immunity because they were not engaged in discretionary conduct but in 27 mandatory, ministerial statutory duties. Id. at 25. Moreover, Plaintiffs state that even with 28 /// 5 1 respect to duties that involve some measure of discretion, Defendants are not entitled to 2 qualified immunity because their conduct violated Plaintiffs’ clearly established rights. Id. 3 A. Official Capacity Immunity 4 Official capacity immunity derives from the doctrine of state sovereign immunity. See 5 Indep. Living Ctr. v. Maxwell-Jolly, 572 F.3d 644, 660 (9th Cir. 2009). The doctrine of state 6 sovereign immunity generally prohibits damage suits against states in both state and federal 7 court without their consent. Id. The doctrine comes from the Eleventh Amendment, but its 8 essence “derives . . . from the structure of the original Constitution itself.” Id. (quoting Alden 9 v. Maine, 527 U.S. 706, 728, 119 S.Ct. 2240 (1999)). The Supreme Court has held that state 10 sovereign immunity bars citizens of any state from bringing a lawsuit for damages against a 11 state or state agency. Id. (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 12 2304 (1989)). However, there are several well-established exceptions to this general rule. 13 Id. 14 One of the exceptions provides that “[a]lthough the Eleventh Amendment expressly 15 prohibits suits against states in both law and equity, a plaintiff may nonetheless maintain a 16 federal action to compel a state official’s prospective compliance with the plaintiff’s federal 17 rights.” Id. (quoting Ex parte Young, 209 U.S. 123, 156, 28 S.Ct. 441 (1908)). This exception 18 applies only to prospective relief; it does not permit retroactive injunctive relief. Id. 19 In this case, Defendants are not immune from suit in their official capacity for claims 20 seeking prospective injunctive relief. In the Complaint, Plaintiffs assert that in addition to 21 damages, they are seeking injunctive relief to stop continuing violations of Plaintiffs’ legal 22 rights and to prevent Defendants from continuing to harm Plaintiffs through unconstitutional 23 policies and customs. In their opposition, Plaintiffs assert that they are not seeking monetary 24 damages from the Defendants in their official capacity. Thus, because Plaintiffs concede that 25 they are only seeking prospective injunctive relief against Defendants in their official capacity, 26 Defendants are not entitled to immunity on that basis. 27 /// 28 /// 6 1 B. Individual Capacity Immunity 2 Defendants also move the Court to dismiss the claims asserted against them in their 3 individual capacity on the grounds that they are entitled to qualified immunity. 4 Title 42 U.S.C. § 1983 provides that “[e]very person who, under color of [law], subjects, 5 or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, 6 privileges, or immunities secured by the Constitution and laws, shall be liable to the party 7 injured in an action at law . . . or other proper proceeding for redress.” A plaintiff may pursue 8 a 42 U.S.C. § 1983 claim against a state or government official in his or her individual 9 capacity, seeking to impose personal liability on that official. Suever v. Connell, 579 F.3d 10 1047, 1060 (9th Cir. 2009). To succeed on the merits of such a claim, a plaintiff must show 11 that “the official, acting under color of state law, caused the deprivation of a federal right.” Id. 12 (quoting Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358 (1991)). 13 On its face, section 1983 does not include any defense of immunity. Miller v. Gammie, 14 335 F.3d 889, 895 (9th Cir. 2003). However, the Supreme Court has recognized two kinds 15 of immunity under a section 1983 claim: “absolute immunity” and “qualified immunity.” See 16 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982)). 17 18 The Clark County Defendants argue that they are entitled to “absolute immunity” on the claims asserted against them. 19 The United State Supreme Court extends absolute immunity under section 1983 only 20 to a “very limited class of officials, including the President of the United States, legislators 21 carrying out their legislative functions, and judges carrying out their judicial functions, ‘whose 22 special functions or constitutional status requires complete protection from suit.’” Hafer, 502 23 U.S. at 29, 112 S.Ct. 358. “State executive officials are not entitled to absolute immunity for 24 their official actions.” Id. 25 The Supreme Court has expressly failed to extend the doctrine of absolute immunity 26 to all government officials. Miller, 335 F.3d at 897 (citing Antione v. Byers & Anderson, Inc., 27 508 U.S. 429, 433 n.4, 113 S.Ct. 2167 (1993)). In analyzing the doctrine of absolute 28 immunity, the Supreme Court stated that: “The presumption is that qualified rather than 7 1 absolute immunity is sufficient to protect government officials in the exercise of their duties. 2 We have been quite sparing in our recognition of absolute immunity, and have refused to 3 extend it any further than its justification would warrant.” Id. (quoting Burns v. Reed, 500 U.S. 4 478, 486-87, 111 S.Ct. 1934 (1991)). According to the Ninth Circuit, the burden is on the 5 official claiming absolute immunity “to identify the common-law counterpart to the function that 6 the official asserts is shielded by absolute immunity.” Miller, 335 F.3d at 897. 7 In this matter, absolute immunity does not apply to the Clark County Defendants. 8 Defendant Valentine is the Clark County Manager and Defendant Morton is the Director of the 9 Clark County Department of Family Services. These positions are not within the limited class 10 of officials whose special functions or constitutional status require complete protection from 11 suit. Moreover, the Clark County Defendants assert that absolute immunity applies because 12 immunity “is necessary for them to perform the duties for which they were appointed.” (Mot. 13 to Dismiss (#20) at 10). However, this argument, by itself, fails to overcome the presumption 14 that qualified, rather than absolute, immunity is sufficient to protect the Clark County 15 Defendants in the exercise of their duties. As such, based on the allegations in the Complaint 16 and the arguments before the Court, absolute immunity does not apply and the claims for 17 relief are not dismissed under that doctrine. 18 19 Both the Clark County Defendants and the State Defendants argue that they are immune from suit based on the doctrine of qualified immunity. 20 Under “qualified immunity,” government officials are not subject to liability for the 21 performance of their discretionary actions unless their conduct violates a clearly established 22 statutory or constitutional right which a reasonable person would have known. Harlow, 457 23 U.S. at 818, 102 S.Ct. 2727. 24 Determining whether officials are owed qualified immunity involves two inquiries: (1) 25 whether, taken in the light most favorable to the party asserting the injury, the facts alleged 26 show the officer’s conduct violated a constitutional right; and (2) if so, whether the right was 27 clearly established in light of the specific context of the case. al-Kidd v. Ashcroft, 580 F.3d 28 949, 964 (2009)(citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151 (2001)). “For a 8 1 constitutional right to be clearly established, its contours must be sufficiently clear that a 2 reasonable official would understand that what he is doing violates that right.” Id. (quoting 3 Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508 (2002)). It is within the court’s sound 4 discretion to address these two prongs in any sequence the court sees fit. Id. (citing Pearson 5 v. Callahan, ___ U.S. ___, 129 S.Ct. 808 (2009)). 6 In this matter, the Clark County Defendants state that they are entitled to qualified 7 immunity because they were acting at all relevant times in the course and scope of their job 8 responsibilities and Plaintiffs have not sufficiently stated that the Clark County Defendants 9 violated Plaintiffs’ “clearly established” constitutional rights. The State Defendants argue that 10 they are entitled to qualified immunity because they “could not reasonably know that their 11 conduct in providing oversight to the child welfare system and distributing federal funding to 12 the county agencies would make them liable for any harm that occurred to a child who was 13 in the custody of the County agency.” (Mot. to Dismiss (#21) at 10). In response, Plaintiffs 14 argue that Defendants are not entitled to qualified immunity because the federal constitutional 15 rights Plaintiffs were deprived of are clearly established rights under the law. 16 In this matter, Plaintiffs have asserted the following constitutional claims against 17 Defendants: Duty to Protect, State Created Danger, Federal Adoption Assistance Act and 18 Child Welfare Act, Federal Child Abuse Prevention and Treatment and Adoption Reform, 19 Child Abuse Prevention and Treatment Act, Guardian ad litem, Child Abuse Prevention and 20 Treatment Act, and Early Intervention Services. The Court will address each of these claims 21 individually to determine whether Defendants are entitled to qualified immunity on any of the 22 causes of action. 23 1. Duty to Protect 24 Plaintiffs’ first cause of action alleges that Defendants violated their constitutional right 25 to be “free from harm while involuntarily in government custody and their right to medical care, 26 treatment and services.” (Compl. (#1) at 65). Plaintiffs allege that Defendants violated this 27 right by failing (i) to adequately provide medical, dental, and mental health services, (ii) to 28 inform caregivers of essential information, (iii) to conduct legally required visits with foster 9 1 children, (iv) to adequately respond to reports of abuse, (v) to ensure adequacy of relative 2 caregiver placements, and (vi) to adequately inspect out of state facilities. Id. Plaintiffs have 3 also asserted a class claim under section 1983 to be “free from harm” in their eleventh cause 4 of action. (Compl. (#1) at 77). In the class claim, Plaintiffs state that “Defendants’ conduct 5 includes the failure to provide early intervention services as required under federal and state 6 law.” Id. 7 In Clark K. v. Guinn, this court held that “children, who have been involuntarily placed 8 in the custody of [the state] may state a claim for violation of their substantive due process 9 rights based upon their right to freedom from harm under the Fourteenth Amendment of the 10 United States Constitution.” 2007 WL 1435428 *15 (D. Nev. 2007)(internal quotations 11 omitted). In addition, the court noted that “Courts have also held that foster children have a 12 right to required ‘professional judgment’ while in custody.” 13 Philadelphia, 849 F.Supp. 367, 372 (E.D. Pa. 1994)). This right to freedom from harm, is not, 14 however, “without boundaries.” Id. Specifically, “under the Fourteenth Amendment, Nevada 15 is required to provide to individuals within state custody their ‘basic human needs,’ such as 16 ‘food, clothing, shelter, medical care, and reasonable safety.’” Id. (quoting DeShaney, 489 17 U.S. at 200). Id. (citing Wendy H. v. 18 In this matter, the Court finds that Defendants are entitled to qualified immunity on this 19 claim. Although there is a clearly established right under the duty to protect for the state to 20 provide individuals in state custody with their basic human needs, it is not clearly established 21 that Plaintiffs have a constitutional right to (1) “standardized periodic health screenings and 22 treatments,” (2) “medical services for maximum reduction of physical or mental disability,” and 23 (3) “monitory of, administration, and use of psychotropic drugs” as alleged in the Complaint. 24 (See Compl. (#1) at 66). In addition, it is not “clearly established” that the (1) failure to inform 25 caregivers of essential information, (2) failure to conduct legally required visits with foster 26 children, (3) failure to adequately respond to reports of abuse, (4) failure to ensure adequacy 27 /// 28 /// 10 1 of relative caregiver placements; and (5) failure to adequately inspect out of state facilities 2 constitutes a violation of a constitutional right. Because Plaintiffs have not asserted violations 3 of clearly established constitutional rights, Defendants are entitled to immunity on this claim. 4 2. State Created Danger 5 Plaintiffs’ second cause of action asserts that Defendants violated Plaintiffs’ 6 constitutional rights because Defendants acted “with deliberate indifference to [a] known or 7 obvious danger in removing Plaintiffs from their homes and placing them in the care of foster 8 parents, including the care of relative caregivers and out of state facilities and homes, who 9 were unfit to care for them and posed an imminent risk of harm to Plaintiffs’ safety.” Id. at 67. 10 In order to state a constitutional claim under the state created danger doctrine, the 11 plaintiff must assert “more than a mere failure to act; it requires the state official to take an 12 affirmative action.” Kennedy v. Ridgefield City, 440 F.3d 1091, 1094 (9th Cir. 2006). 13 “Second, the plaintiff must prove that the official’s act did more than simply expose the plaintiff 14 to a danger that already existed.” Id. (citation omitted). Finally, the plaintiff must prove that 15 the official acted with deliberate indifference to a known or obvious danger. See L.W. v. 16 Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)(“The plaintiff must show that the state official 17 participated in creating a dangerous condition, and acted with deliberate indifference to the 18 known or obvious danger in subjecting the plaintiff to it.”). The Supreme Court has stated that 19 negligence, whether gross or simple, is insufficient to prove a constitutional violation. See 20 Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662 (1986)(“The Due Process Clause is 21 simply not implicated by a negligent act of an official causing unintended loss of or injury to 22 life, liberty, or property.”). 23 In Clark K., this court held that the plaintiffs failed to state a claim for relief under the 24 state created danger doctrine on a similar claim against the foster care system because 25 plaintiffs failed to plead each element of the state created danger doctrine. According to the 26 court, while plaintiffs properly alleged that the defendants acted with deliberate indifference 27 by placing plaintiffs in situations defendants knew or should have known posed an imminent 28 risk, plaintiffs failed to allege that the official’s act did more than simply expose the plaintiff to 11 1 a danger that already existed. 2007 WL 1435428 *16. “Plaintiffs have not alleged that 2 Defendants did anything more than place foster children into an already broken system.” Id. 3 “Plaintiffs’ Complaint does not state that Defendants created or increased the danger to 4 children, just that they failed to correct it.” Id. 5 In this matter, based on the holding in Clark K., Plaintiffs’ second cause of action fails 6 to state a sufficient claim for relief under the state created danger doctrine. In this regard, 7 Plaintiffs have failed to allege that Defendants “did anything more than place foster children 8 into an already broken system.” Id. Moreover, the Complaint does not state that Defendants 9 created or increased the danger to children. Based on these pleading failures, this claim for 10 relief is dismissed. 11 In addition, Defendants are entitled to qualified immunity on this claim. In this regard, 12 Plaintiffs have not provided any factual assertions that the Defendants increased the danger 13 to Plaintiffs. Because Defendants did not increase the danger to Plaintiffs, they could not 14 have violated Plaintiffs’ “clearly established” constitutional rights under the state-created 15 danger doctrine. 16 3. Adoption Assistance and Child Welfare Act 17 Plaintiffs’ third and eighth causes of action state that Defendants are liable for violating 18 Plaintiffs’ statutory rights under the Federal Adoption Assistance and Child Welfare Act of 19 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. § 671 et seq. 20 (Compl. (#1) at 63 and 69). The statutory rights the Defendants are alleged to have violated 21 include: (1) the right of each Plaintiff to have his or her health and educational records 22 reviewed, updated, and supplied to foster care providers with whom the child is placed before 23 or at the time of placement, pursuant to 42 U.S.C. §§ 671(a)(16), 675(1), and 675(5)(D); (2) 24 the right of each Plaintiff to have Defendants place him or her with relative foster parents only 25 if those foster parents satisfy Defendants’ foster parent licensing standards, pursuant to 42 26 U.S.C. § 671(a)(10); and (3) the right of each Plaintiff who Defendants place in an out of state 27 placement to visits from caseworkers at least every six months, pursuant to 42 U.S.C. § 28 675(A)(ii). Plaintiffs bring this cause of action pursuant to section 1983. 12 1 Section 1983 safeguards certain rights conferred by federal statutes. Blessing v. 2 Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353 (1997). However, to seek redress under 3 section 1983, Plaintiffs “must assert the violation of a federal right, not merely a violation of 4 federal law.” Id. Courts traditionally look at three factors to determine whether a particular 5 statutory provision gives rise to a federal right. Id. First, Congress must have “intended that 6 the provision in question benefit the plaintiff.” Id. Second, “the plaintiff must demonstrate that 7 the right assertedly protected by the statute is not so ‘vague and amorphous’ that its 8 enforcement would strain judicial competence.” Id. Third, “the statute must unambiguously 9 impose a binding obligation on the States. In other words, the provision giving rise to the 10 asserted right must be couched in mandatory, rather than precatory, terms.” Id. 11 With this framework in mind, the Court must determine whether Plaintiffs have stated 12 a claim that Defendants violated a “clearly established” constitutional right when they engaged 13 in alleged wrongful conduct under the Adoption Assistance and Child Welfare Act. 14 The Ninth Circuit has not established whether an individual may bring a § 1983 cause 15 of action under the statutory provisions identified by Plaintiffs. In 1992, the Supreme Court 16 held that one specific provision under the Adoption Assistance Act did not afford a private 17 right of action. Congress subsequently amended the statute to provide a private right of 18 action under that particular provision, but chose not to amend the remaining statutory 19 provisions.1 Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360 (1992). Many courts find that this 20 is “strong evidence” that the provisions of 42 U.S.C. § 671 do not confer private enforceable 21 rights under section 1983 because Congress specifically examined the numerous state plan 22 elements required under § 671, and determined that only one such element (§ 671(a)(18)), 23 conferred such a right. See Charlie H. v. Whitman, 83 F.Supp.2d 476, 489 (D.N.J. 2000)). 24 Plaintiffs assert that under the Federal Adoption Assistance and Child Welfare Act 25 (“AACA”) of 1980, as amended by the Adoption and Safe Families Act of 1997, Plaintiffs have 26 the constitutional right to (1) have his or her health and educational records reviewed, 27 28 1 The statutory provision amended by Congress was 42 U.S.C. § 671(a)(18), which is not at issue in this litigation. 13 1 updated, and supplied to foster care providers with whom the child is placed, (2) have 2 Defendants place him or her with relative foster parents only if those foster parents satisfy 3 Defendants’ foster parent licensing standards, and (3) have a visit from a caseworker at least 4 ever six months if she or he is placed in an out of state facility. Each of these alleged 5 statutory, constitutional violations will be reviewed in turn. 6 a. 42 U.S.C. §§ 671(a)(16), 675(1) and 675(5)(D) 7 42 U.S.C. §§ 671(a)(16), 675(1) and 675(5)(D) relate to the creation and dissemination 8 of a case plan for foster children. Section 671(a)(16) requires states “to provide for the 9 development of a case plan (as defined in section 675(1) [42 U.S.C. § 675(1)]) for each child 10 receiving foster care maintenance payments under the State plan and provides for a case 11 review system which meets the requirements described in section 675(5)(B) [42 U.S.C. § 12 675(B)] with respect to each such child . . . .” 42 U.S.C. § 675(1) defines the requirements for 13 a “case plan” and section 675(5) defines the requirements for a “case review system.” 14 In Charlie H., the New Jersey district court held that these provisions did not create an 15 enforceable private right of action under § 1983. 83 F.Supp.2d at 489. That court dismissed 16 the plaintiffs’ claims brought pursuant to § 671(a)(16) and §§ 675(1) and 675(5)(D) on the 17 ground that they failed to state a constitutional claim for relief. Id. According to the court, the 18 mandates of these provisions were “not so unambiguous so as to confer upon Plaintiffs a right 19 enforceable under § 1983.” Id. Moreover, the Court found it persuasive that Congress did 20 not create a private right of action under section 671(a)(16) when it reviewed the statute. Id. 21 In 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003), the Eleventh 22 Circuit also found that the foregoing statutory provisions did not provide a § 1983 cause of 23 action. In that case, the court held that section 675(5)(D) did not contain rights-creating 24 language. According to that court, the language of the provision had an “aggregate, not 25 individual, focus.” Id. 26 In this matter, the Court finds that Defendants are entitled to qualified immunity on the 27 claims asserted under § 671(a)(16) and §§ 675(1) and 675(5)(D). The Court agrees with the 28 courts in Charlie H. and 31 Foster Children that these provisions do not contain rights-creating 14 1 language. In this regard, section 675(5)(D) and section 675(1) are found in the definitional 2 section of the AACA. Because these statutes are definitional in nature, “they alone cannot 3 and do not supply a basis for conferring rights enforeceable under section 1983.” 31 Foster 4 Children, 329 F.3d at 1271. That leaves section 671(a)(16) as the sole basis for Plaintiffs’ 5 constitutional claim that they are entitled to case plans. That statute requires that a state 6 develop a case plan for each child receiving foster care maintenance payments. Specifically, 7 the provision provides that in order “for a State to be eligible for payments under this part,” it 8 must provide for the development of a case plan. 9 Here, the Court finds that Plaintiffs have not shown that this is a “clearly established” 10 constitutional right for purposes of qualified immunity. As noted, a right is clearly established 11 if the “contours of the right [are] sufficiently clear that a reasonable official would understand 12 that what he is doing violates that right.” James, 606 F.3d at 652. In this case, neither the 13 Supreme Court nor the Ninth Circuit have stated that there is a private constitutional “right” 14 under this provision. Although the Supreme Court does not need to have addressed a right 15 for it be “established,” it is clear from the case law that whether this provision of the AACA 16 provides a constitutional right is still being debated, with many courts holding that it does not 17 create such a right.2 See Charlie H., 83 F.Supp. 2d at 489. This Court agrees with the courts 18 the have held that there is no section 1983 private right of action under Section 671(a)(16). 19 Thus, this claim is dismissed and Defendants are entitled to immunity. b. 42 U.S.C. § 671(a)(10) 20 21 Plaintiffs also argue that they have a constitutional right of action under 42 U.S.C. § 22 671(a)(10) and that Defendants are not entitled to qualified immunity under that provision. 23 Plaintiffs allege that they have the right to have Defendants place them with relative foster 24 parents only if those foster parents satisfy Defendants’ foster parent licensing standards. 25 26 27 28 2 For instance, in Charlie H., the court held that there was not a section 1983 private right of action under section 671(a)(16). According to that court, “regardless of the detailed nature of the definitions of ‘case plan’ and ‘case review system,’ the statutory provisions relied upon by Plaintiffs in support of their alleged right ‘to timely written case plans that contain mandate elements and to the implementation and review of these plans’ are not so unambiguous so as to confer upon Plaintiffs a right enforceable under section 1983.” Id. 15 1 42 U.S.C. § 671(a)(10) provides, in relevant part: 2 8 In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which . . . provides for the establishment or designation of a State authority or authorities which shall be responsible for establishing and maintaining standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes, including standards related to admission policies, safety, sanitation, and protection of civil rights, provides that the standards so established shall be applied by the State to any foster family home or child care institution receiving funds under this part or part B of this subchapter, and provides that a waiver of any such standard may be made only on a case-by-case basis for non-safety standards (as determined by the State) in relative foster family homes for specific children in care. 9 Despite Plaintiffs’ arguments to the contrary, Plaintiffs’ alleged constitutional right to 10 be placed with a relative foster parent only if the relative foster parent satisfies state licensing 11 standards is too vague and amorphous under Blessing to be enforced pursuant to section 12 1983. See Clark K., 2007 WL 1435428 *9; Charlie H., 83 F.Supp.2d at 491. In this regard, 13 this Court has already rejected the argument that this provision creates a private right of 14 action under section 1983. Clark K., 2007 WL 1435428 *9 (citing Yvonne L. v. N.M. Dep’t of 15 Human Serv., 959 F.2d 883, 889-90 (10th Cir. 1992)). In Yvonne L., the Tenth Circuit held 16 that the language of section 671(a)(10) did not support a private right of action under section 17 1983. According to the Tenth Circuit, that provision “only references ‘standards of national 18 organizations concerned with standards for such institutions or [foster] homes.’” Id. The court 19 held that this language was vague and amorphous and could not be judicially enforced under 20 section 1983. Id.; see also Baby Neal v. Casey, 821 F.Supp. 320, 326-27 (E.D.Pa. 1993). 21 Courts have also held that “§ 671(a)(10) fails to unambiguously confer upon [p]laintiffs a 22 private right of enforcement under this provision” because “[t]he language of this section does 23 not confer upon [p]laintiffs a ‘right’ to foster homes or institutions which are in accord with 24 recommended standards of national organizations but clearly states that the state plan must 25 provide for the designation of a state authority or authorities which shall be established and 26 maintain such standards.” Baby Neal, 821 F.Supp. at 327; Charlie H., 83 F.Supp.2d at 491. 27 Moreover, courts have held that the “reasonably in accord” language is too vague and 28 ambiguous to maintain a private right of action. See Doe v. Johnson, 1993 WL 50845 * 3(N.D. 3 4 5 6 7 16 1 Ill. 1993)(dismissing plaintiff’s action “to the extent that it seeks private relief for an alleged 2 violation of § 671(a) of the Adoption Assistance and Child Welfare Act” because “the Act 3 places its enforcement mechanism in the hands other than those of private plaintiffs under § 4 1983"). 5 Moreover, it is persuasive that Congress recently chose to amend 42 U.S.C. § 674 to 6 include a private right of action under § 1983 for a state or other entity’s failure to comply with 7 42 U.S.C. § 671(a)(18), but did not extend a section 1983 cause of action to the other 8 statutory provisions enumerated in 42 U.S.C. § 671(a). This act by Congress is strong 9 evidence that Congress did not intend section 671(a)(10) to confer rights enforceable 10 pursuant to section 1983. 11 Based on the foregoing, the Court dismisses this cause of action for failure to state a 12 claim for relief. In addition, the Court finds that Defendants are entitled to qualified immunity 13 on this claim because there is no “clearly established” constitutional right under 42 U.S.C. § 14 671(a)(10). c. 42 U.S.C. § 675(5)(A)(ii) 15 16 Plaintiffs have also asserted that they have a constitutional right to be visited by a 17 caseworker at least every six months when Plaintiffs are placed in an out of state placement. 18 Plaintiffs state that 42 U.S.C. § 675(5)(A)(ii) provides them with a private right of action when 19 that provision is cross-referenced with § 622(b)(8)(A)(ii). 20 42 U.S.C. § 675(5)(A)(ii) is a definitional provision which provides that the term “case 21 review system” means that “each child has a case plan designed to achieve placement in a 22 safe setting” and if the “child has been placed in foster care outside the State in which the 23 home of the parents of the child is located, requires that periodically, but not less frequently 24 than every 6 months, a caseworker . . . visit such child.” Section 622(b)(8)(A)(ii), which is not 25 referenced in the complaint, states that in order to be eligible for payment under this statute, 26 “a State must have a plan for child welfare services,” and such plan must include a “case 27 review system.” 42 U.S.C. § 622(b)(8)(A)(ii). 28 /// 17 1 In this matter, the Court finds that section 675(5)(A)(ii) does not provide a private 2 constitutional cause of action. First, because 42 U.S.C. § 675(5)(A)(ii) is a definitional 3 section, it does not, standing alone, confer a right upon Plaintiffs enforceable pursuant to § 4 1983. See B.H. v. Johnson, 715 F.Supp. 1387, 1401 (N.D.Ill. 1989)(noting that “it would be 5 strange for Congress to create enforeceable rights solely in the definitional section of a 6 statute”). However, even cross referencing this provision with § 622(b)(8)(A)(ii), there is no 7 rights-creating language as required to bring a claim under section 1983. In this regard, as 8 noted previously, Congress reviewed this statutory provision and did not include a private right 9 of action for this provision. In addition, the language found in § 622 limits the remedy for 10 failure to comply with its provision to loss of federal funds. In this regard, the statute states 11 that a State must have a case plan “[i]n order to be eligible for payment” under the statute. Thus, this statutory provision does not create a constitutional right of action under 12 13 section 1983, and, therefore, is dismissed. 14 3. Child Abuse Prevention and Treatment Act; Guardian ad litem 15 Plaintiffs’ Ninth Claim for Relief is alleged on behalf of the “Guardian ad Litem Class 16 Representatives” and asserts a § 1983 claim for violation of 42 U.S.C. § 5106a(b)(2)(A)(xiii). 17 (Compl. (#1) at 75). 18 representation from a guardian ad litem in all proceedings before the juvenile court. Plaintiffs 19 assert that Defendants’ acts and omissions violated this right. According to Plaintiffs, they are entitled, under federal law, to 20 Defendants argue that they are entitled to qualified immunity under this provision 21 because there is no enforceable constitutional right under the guardian ad litem provision of 22 the Child Abuse Prevention and Treatment Act (“CAPTA”). (Mot. to Dismiss (#21) at 20). In 23 addition, Defendants argue that this cause of action should be dismissed because the proper 24 parties in the state court system have not been named. Defendants further argue that the 25 Court should abstain from hearing this claim because it is an issue closely connected to the 26 discretion of state juvenile courts and any determination on this issue would require this Court 27 to interfere in the juvenile courts’ administration and workings. 28 /// 18 1 a. Guardian ad litem private right of action 2 CAPTA requires states to implement procedures for investigation of child abuse and 3 protection of children in order to receive federal funds. Jordan v. City of Philadelphia, 66 4 F.Supp. 2d 638, 648 (E.D. Pa. 1999). 42 U.S.C. § 5106a provides for grants to states for child 5 abuse and neglect prevention and treatment programs. Section 5106a(b)(2)(A)(xiii) provides 6 that to be eligible to receive a grant under the statute, a state shall submit a plan and that plan 7 “shall contain an outline of the activities that the State intends to carry out using amounts 8 received under the grant to achieve the purposes of this subchapter,” including “provisions 9 and procedures requiring that in every case involving an abused or neglected child which 10 results in a judicial proceeding, a guardian ad litem . . . shall be appointed to represent the 11 child in the proceedings . . . .” 12 In Charlie H., the New Jersey district court held that “under the Blessing test, the weight 13 of case law dictates that 42 U.S.C. § 5106a(b)(2) ‘does not create a private right of action’ 14 under section 1983.” 83 F.Supp.2d at 496 (quoting Jordan v. City of Philadelphia, 66 15 F.Supp.2d 638, 648-49 (E.D.Pa. 1999)(holding that CAPTA clearly does not create a private 16 right of action under 42 U.S.C. § 1983); see also Doe v. District of Columbia, 93 F.3d 861, 868 17 (D.C. Cir. 1996)(holding that “Section 5106a(b)(2) of CAPTA fails to unambiguously confer 18 an enforceable right upon its beneficiaries, therefore [plaintiff’s] claim under § 1983 was 19 appropriately rejected by the district court”); Tony L. v. Childers, 71 F.3d 1182, 1189 (6th Cir. 20 1995)(holding that “neither CAPTA nor the relevant regulations mandate a particular means 21 of investigation or state what type of actions must be taken to protect abused or neglected 22 children”); A.S. v. Tellus, 22 F.Supp. 2d 1217, 1224 (D. Kan. 1998)(agreeing with “the majority 23 of courts” and holding that the requirements of 42 U.S.C. § 5106a(b)(2) “are too vague to 24 create an enforceable right”); but see Clark K., 2007 WL 1435428 * 13 (finding that plaintiffs 25 section 5106a(b)(2) was sufficient to survive a motion to dismiss). 26 In Clark K., the Court found that Plaintiffs’ claim for violation of 42 U.S.C. § 27 5106a(b)(2)(A)(xiii) was sufficient to state a claim for relief under the Blessing analysis. 28 According to the court, under the first Blessing prong, “the language clearly indicates that 19 1 Plaintiffs (foster children) are the intended beneficiaries of the CAPTA provisions at issue.” 2 2007 WL 1435428 *13. “Moreover, the statutory language requires that ‘in every case’ the 3 state must provide a guardian ad litem.” Id. The court found that this language “sets forth 4 clear conditions the state must satisfy to qualify for a federal grant and does so through the 5 use of mandatory and not precatory language.” Id. Further, the court held that the “CAPTA 6 provision at issue is not so vague and amorphous as to be beyond the enforcement power of 7 the Court.” Id. “This Court certainly is competent to determine whether Defendants have 8 made any efforts to comply with this provision.” Id. 9 In this matter, Defendants argue that the foregoing statutory provision does not create 10 a section 1983 private right of action because the language of section 5106a(b)(2) merely 11 requires that a State submit a plan which contains an assurance that the State has in effect 12 and is enforcing a state law that includes a provision that a guardian ad litem be appointed 13 in every case involving an abused or neglected child. (State Defendants’ Motion to Dismiss 14 (#21) at 21). Defendants argue that they have satisfied and complied with the foregoing 15 federal statutory mandate because Nevada has a procedure for the appointment of a guardian 16 ad litem in every case. Id. NRS 432B.500 provides that after “a petition is filed that a child 17 is in need of protection pursuant to NRS 432B.490, the court shall appoint a guardian ad litem 18 for the child.” As such, Defendants argue that Nevada has satisfied the requirements of 19 section 5106a(b)(2)(A)(xiii) because it enacted a law requiring the appointment of a guardian 20 ad litem. Unfortunately, according to the State Defendants, despite this law, “there appears 21 to be an insufficient number of volunteers to serve in that capacity in Clark County.” Id. at 22. 22 Accordingly, and further, the State Juvenile judges do not order such appointment in every 23 case, as is within their judicial discretion. 24 In this matter, the Court finds that Defendants are entitled to qualified immunity on 25 Defendants’ guardian ad litem claim because Plaintiffs have not asserted a violation of a 26 “clearly established” statutory, constitutional right. In this regard, although the court found in 27 Clark K. that Plaintiffs stated a section 1983 claim for relief under section 5106a(b)(2)(A)(xiii), 28 other courts reviewing that statute have held that there is no constitutional claim under section 20 1 5106a(b)(2). Moreover, the analysis under Blessing is not definite. Although this court 2 previously found that a complaint sufficiently stated a section 1983 claim under that provision, 3 the court limited its holding, stating that the claim was merely sufficient “for the purposes of 4 surviving Defendants’ Motion to Dismiss.” Clark K., 2007 WL 1435428 *13. The court did not, 5 as a matter of law, hold that the failure to appoint a guardian ad litem in every case constituted 6 a violation of a federal right. 7 b. Younger Abstention 8 In addition, abstention under the Younger doctrine is necessary on this claim. As noted 9 by Defendants, section 5106a(b)(2)(A)(xiii) does not specifically grant each foster child a right 10 to a guardian ad litem. Rather, it requires that the State, in order to receive federal funds, 11 implement provisions and procedures for the appointment of a guardian ad litem in every 12 case. Nevada has enacted a law providing for the appointment of a guardian ad litem. 13 Nevada’s law provides that “the court” shall appoint a guardian ad litem in cases where a child 14 is in need of protection. NRS 432B.500(1). As such, Nevada law mandates that the state 15 court system be responsible for the appointment of a guardian ad litem. 16 Because the Nevada statute directs the state court to appoint the guardian ad litem, 17 the Clark County Defendants request that the Court abstain from determining the merits of this 18 claim. (Mot. to Dismiss (#20) at 17). In this regard, the Clark County Defendants state that 19 because the state juvenile court is directed to appoint the guardian ad litem under Nevada 20 law, this Court’s involvement in that issue would interfere with the discretion of the state 21 juvenile court, as well as the state court’s administration and workings. In addition, the Clark 22 County Defendants argue that a federal injunction in this case would interfere with the Nevada 23 juvenile court’s management of its own cases. (Mot. to Dismiss (#20) at 19). According to 24 Defendants, the juvenile court retains continuing jurisdiction over every child in Clark County 25 foster care, including the Plaintiffs in this action, pursuant to NRS 432B.580. Under that 26 statute, “if a child is placed pursuant to NRS 432B.550 other than with a parent, the placement 27 must be reviewed by the court at least semiannually, and within 90 days after a request by a 28 party to any of the prior proceedings.” NRS 432B.580(1). As a result, the Clark County 21 1 Defendants state that the Plaintiffs, and all members of the putative classes, are subject to 2 ongoing state court proceedings in juvenile court. (Mot. to Dismiss (#20) at 20). Because 3 Plaintiffs are subject to ongoing state court proceedings, Defendants argue that this Court 4 should abstain from interfering with those proceedings.3 Defendants state injunctive relief on 5 this claim would “improperly give this court an oversight role and direct control over decisions 6 currently vested in the juvenile court.” Id. at 22. 7 In response, Plaintiffs assert that there is no reason for this Court to abstain because 8 Plaintiffs are seeking to enforce “a federal statute” under which Defendants “ensure guardian 9 ad litem representation.” (Opp’n (#36) at 51). Because they are seeking federal relief, 10 Plaintiffs assert that abstention is unwarranted. Plaintiffs concede that they are “involved in 11 ongoing dependency proceedings in the state juvenile court;” however, Plaintiffs state that 12 injunctive relief on this claim would not interfere with the state proceedings because this Court 13 would not be required to review any decisions made by the state court, nor would this Court 14 be required to overrule the state court and appoint or replace a guardian ad litem. Id. at 56. 15 Rather, Plaintiffs state they are merely seeking relief from county and state officials for 16 violations of a federal duty. Id. According to Plaintiffs, “[r]equiring Defendants to recruit and 17 train more guardians ad litem in any way Defendants see fit to do would not interfere with or 18 enjoin the dependency court proceedings.” Id. 19 Generally, the Supreme Court’s decision in Younger and its progeny direct federal 20 courts to abstain from granting injunctive or declaratory relief that would interfere with pending 21 state judicial proceedings. Younger v. Harris, 401 U.S. 37, 40-41, 91 S.Ct. 746 (1971); 22 Samuel v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764 (1971)(holding that “where an injunction 23 would be impermissible under these principles, declaratory relief should ordinarily be denied 24 as well”). The Younger doctrine “reflects a strong policy against federal intervention in state 25 judicial processes in the absence of great and immediate injury to the federal plaintiff.” Moore 26 27 28 3 According to Defendants, not only are Plaintiffs involved in ongoing state court proceedings, but Defendants assert that these proceedings are matters of important state interest and any claim regarding the appointment of a guardian ad litem may, and should be raised in the juvenile court. 22 1 v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371 (1979). When federal courts disrupt a state court’s 2 opportunity to “intelligently mediate federal constitutional concerns and state interests” and 3 interject themselves into such disputes, “they prevent the informed evolution of state policy 4 by state tribunals.” Moore, 442 U.S. at 429-30, 99 S.Ct. 2371. 5 While the doctrine was first articulated in the context of pending state criminal 6 proceedings, the Supreme Court has applied it to civil proceedings in which important state 7 interests are involved. Id.; see Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200 (1975). 8 “The seriousness of federal judicial interference with state civil functions has long been 9 recognized by the Court. [It has] consistently required that when federal courts are confronted 10 with requests for such relief, they should abide by standards of restraint that go well beyond 11 those of private equity jurisprudence.” Huffman, 420 U.S. at 603, 95 S.Ct. 1200. 12 In the absence of “extraordinary circumstances,” abstention in favor of state judicial 13 proceedings is required if the state proceedings (1) are ongoing, (2) implicate important state 14 interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims. See 15 Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 16 2515, 73 L.Ed.2d 116 (1982). According to the Ninth Circuit, where these standards are met, 17 a district court “may not exercise jurisdiction” and there “is no discretion in the district courts 18 to do otherwise.” San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. 19 City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008). “Where Younger abstention is 20 appropriate, a district court cannot refuse to abstain, retain jurisdiction over the action, and 21 render a decision on the merits after the state proceedings have ended. To the contrary, 22 Younger abstention requires dismissal of the federal action.” Beltran v. State of Cal., 871 F.2d 23 777, 782 (9th Cir. 1988)(emphasis in original). 24 i. Interference with Ongoing State Proceedings 25 As noted in the foregoing, Plaintiffs concede that they are involved in ongoing 26 dependency proceedings in the state juvenile court. However, Plaintiffs state that injunctive 27 relief on this claim would not interfere with the state proceedings because this Court would 28 not be required to review any decisions made by the state court, nor would this Court be 23 1 required to overrule the state court and appoint or replace a guardian ad litem. 2 “Courts have concluded that continuing state dependency proceedings, which involve 3 the plaintiffs in a federal action that challenges the constitutionality of the services and 4 process received, are ‘ongoing state proceedings’ for purposes of Younger abstention.” E.T. 5 v. George, 681 F.Supp.2d 1151, 1169 (E.D.Cal. 2010)(quoting 31 Foster Children, 329 F.3d 6 1275).; see also H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000)(holding that 7 the ongoing proceeding element was satisfied because the plaintiffs’ complaint sought “an 8 order requiring procedural due process to be observed in the future course of litigation” of the 9 plaintiffs’ pending state custody proceedings); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291 10 (10th Cir. 1999); Laurie Q. v. Contra Costa County, 304 F.Supp.2d 1185, 1203 (N.D.Cal. 11 2004)(holding that challenge to county’s foster care system implicated ongoing dependency 12 court proceedings). 13 However, Younger abstention is only implicated “when the relief sought in federal court 14 would in some manner directly ‘interfere’ with ongoing state judicial proceedings.” Green v. 15 City of Tuscon, 255 F.3d 1086, 1097 (9th Cir. 2001)(en banc). “In order to decide whether the 16 federal proceeding would interfere with the state proceeding, [courts] look to the relief 17 requested and the effect it would have on the same proceedings.” 31 Foster Children, 329 18 F.3d at 1276 (holding that an action for declaratory and injunctive relief arising out of 19 challenges to Florida’s foster care system would interfere extensively with the ongoing 20 dependency cases of each plaintiff). In 31 Foster Children, plaintiffs filed constitutional claims 21 relating to Florida’s foster care system and requested that the court declare the defendants’ 22 practices unconstitutional and unlawful and grant injunctive relief that would prevent future 23 violations and ensure compliance. Id. The Eleventh Circuit held that the broad implication 24 of the relief sought was to take the responsibility away from state courts and put it under 25 control of the federal court. Id. Such action “constitute[d] federal court oversight of state court 26 operations, even if not framed as direct review of state court judgements that is problematic, 27 /// 28 /// 24 1 calling for Younger abstention.” Id. In J.B. ex rel Hart, the Tenth Circuit held that declaratory 2 and injunctive relief directed at state institutions involving dependant children warranted 3 abstention because the requested relief would require a supervisory role over the entire state 4 program. 186 F.3d at 1280. 5 In this case, the relief requested by Plaintiffs on this claim would necessarily interfere 6 with ongoing juvenile court proceedings. The juvenile court retains continuing jurisdiction over 7 every child in foster care, including the Plaintiffs in this action, pursuant to NRS 432B.580. 8 Under that statute, “if a child is placed pursuant to NRS 432B.550 other than with a parent, 9 the placement must be reviewed by the court at least semiannually, and within 90 days after 10 a request by a party to any of the prior proceedings.” NRS 432B.580(1). As a result, 11 Plaintiffs, and all members of the putative classes, are subject to ongoing state court 12 proceedings in juvenile court. In addition, NRS 432B.500 provides that the juvenile court 13 “shall appoint a guardian ad litem for the child.” As such, this Court’s intervention on the 14 appointment of a guardian ad litem would directly interfere with the juvenile court’s mandate 15 to appoint a guardian ad litem. The injunctive relief sought by Plaintiffs would require this 16 Court to monitor the state court system and would take the responsibility away from that court 17 and put it under control of the federal court. As discussed by the Eleventh Circuit, such 18 oversight calls for abstention under the principles of Younger. 19 Thus, the Court finds that the relief requested by Plaintiffs severely interferes with the 20 operation of state court proceedings. Any injunctive or declaratory relief necessarily 21 implicates the validity of pending dependency court proceedings, as well as Nevada law 22 mandating certain actions be taken by the state court. Further, the requested relief would 23 likely be impossible to enforce without violation of established principles of federalism and 24 comity. As such, the first element of Younger abstention is present in this case. 25 ii. Important State Interests 26 It does not appear from the parties’ briefs that they dispute that this litigation implicates 27 important state interests. Indeed, the law is clear that “[f]amily relations are a traditional area 28 of state concern.” Moore, 442 U.S. at 435, 99 S.Ct. 2371. Further, “[p]roceedings necessary 25 1 for the vindication of important state policies or for the functioning of the state judicial system 2 . . . evidence the state’s substantial interest in the litigation.” Middlesex County Ethics Comm., 3 457 U.S. at 432, 102 S.Ct. 2515. Accordingly, the Court finds that the second element of 4 Younger abstention is present in this case. iii. Adequate Opportunity to Present Federal Claims 5 6 Plaintiffs contend that the juvenile court proceedings do not afford them an adequate 7 opportunity to raise the guardian ad litem class claim. (Consolidated Opp’n (#36) at 56). 8 According to Plaintiffs, without an appointed guardian ad litem, Plaintiffs have no opportunity 9 to raise their right to representation in their juvenile court cases or to exercise their right to 10 appeal. 11 In determining whether a state court provides an adequate opportunity to present 12 federal claims, courts hold that “[m]inimal respect for state processes . . . precludes any 13 presumption that the state court will not safeguard federal constitutional rights.” Middlesex 14 County Ethics Comm., 457 U.S. at 431, 102 S.Ct. 2515. Rather, a federal court “should 15 assume that state procedures will afford an adequate remedy, in the absence of unambiguous 16 authority to the contrary.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 S.Ct. 1519 (1987). As 17 such, a plaintiff opposing abstention bears the burden of establishing that the pending state 18 proceedings do not provide an adequate remedy for their federal claims. 31 Foster Children, 19 329 F.3d at 1279. 20 In this matter, Defendants have provided Nevada case law which provides that the 21 Nevada Supreme Court has the authority, on appeal, to determine constitutional issues 22 involved in a juvenile proceeding. See Scott E. v. State, 113 Nev. 234, 238, 931 P.2d 1370 23 (Nev. 1997). As such, any constitutional questions, arising under the federal or state 24 constitution, in juvenile proceedings may be addressed and appealed to the Nevada Supreme 25 Court. Plaintiffs do not dispute this authority. Rather, Plaintiffs state that if they are not 26 appointed a guardian ad litem at the outset, they will have no one to raise a constitutional 27 issue on their behalf. However, Plaintiffs’ argument is belied by this very case. The same 28 representatives that brought the federal constitutional claims in this action, could challenge 26 1 the constitutionality of the juvenile court proceedings without implicating sensitive issues of 2 federalism and comity. Thus, Plaintiffs have failed to overcome the presumption that their 3 pending state court proceedings provide an adequate opportunity for judicial review of their 4 federal claims. 5 Therefore, based on the foregoing analysis, the Court finds that it must abstain from 6 adjudicating this claim pursuant to Younger v. Harris. If this Court were to adjudicate this 7 claim, it would interfere with ongoing state juvenile proceedings that implicate important state 8 interests. In addition, Plaintiffs have failed to overcome the presumption that their pending 9 state court proceedings provide an adequate opportunity for judicial review of their federal 10 claims. 4. Child Abuse Prevention and Treatment Act; Early Intervention Services 11 12 Plaintiffs’ Tenth Cause of Action asserts a class claim under § 1983 for violation of 42 13 14 U.S.C. § 5106a(b)(2)(A)(xxi) and 20 U.S.C. § 1437(a)(6)(A). According to Plaintiffs, 15 Defendants’ “acts and omissions” deprived the class members “of particular statutory rights.” 16 Defendants argue that this claim should be dismissed because there is no section 1983 17 enforceable right to early intervention services. In addition, Defendants argue that they are 18 entitled to qualified immunity on this claim. 19 As noted in the foregoing, 42 U.S.C. § 5106a provides for grants to states for child 20 abuse and neglect prevention and treatment programs. Section 5106a(b)(2)(A)(xxi) provides 21 that to be eligible to receive a grant under the statute, a state shall submit a plan and that plan 22 “shall contain an outline of the activities that the State intends to carry out using amounts 23 received under the grant to achieve the purposes of this subchapter,” including “provisions 24 and procedures for referral of a child under the age of 3 who is involved in a substantial case 25 of child abuse or neglect to early intervention services funded under part C of the Individuals 26 with Disabilities Education Act.” 27 /// 28 /// 27 1 As noted in the previous analysis under CAPTA, most courts have held that under the 2 Blessing test there is no private right of action for claims brought under 42 U.S.C. § 3 5106a(b)(2). The Court agrees with that analysis and finds that there is no private right of 4 action. Also, the Court finds that even if there were a private right of action, Defendants are 5 entitled to qualified immunity on Defendants’ early intervention services claim under CAPTA 6 because Plaintiffs have not asserted a violation of a “clearly established” statutory 7 constitutional right. 8 The other statutory basis for Plaintiffs’ early intervention services claim is also 9 dismissed on the grounds that Plaintiffs’ failed to state a claim for relief. The Individuals with 10 Disabilities Education Act (“IDEA”) provides that “[t]he Secretary shall . . . make grants to 11 States . . . to assist each State to maintain and implement a statewide, comprehensive, 12 multidisciplinary, interagency system to provide for early intervention services for infants and 13 toddlers with disabilities and their families.” 20 U.S.C. § 1433. Section 1437 of that act 14 provides for the application and assurances a state must provide to receive a grant under the 15 statute. Under Section 1437(a)(6)(A), a state seeking a grant under the Act, must submit an 16 application to the Secretary, and the application must contain “a description of the State 17 policies and procedures that require the referral for early intervention services under this 18 subchapter of a child under the age of 3" who is either involved in a substantial case of child 19 abuse or neglect, or is identified as affected by illegal substance abuse, or withdrawal 20 symptoms resulting from prenatal drug exposure. 21 In Blanchard v. Morton School Dist., the Ninth Circuit held that there was no private 22 section 1983 claim for the violation of rights under the IDEA. 509 F.3d 934, 938 (9th Cir. 23 2007). In that case, plaintiff was seeking damages to compensate her for lost income and the 24 emotional distress she experienced during her ultimately successful efforts to obtain benefits 25 for her son under the IDEA, 20 U.S.C. §§ 1400-1482. In that case, the court noted that 26 section 1983 does not, in itself, create any right under federal law. Id. Rather, “[i]t provides 27 remedies for violations of federal rights only where a ‘federal statute creates an individually 28 enforceable right in the class of beneficiaries to which [plaintiff] belongs.’” Id. (quoting City of 28 1 Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120, 125 S.Ct. 1453 (2005)). The court noted 2 that in Smith v. Robinson, 468 U.S. 992, 1013, 104 S.Ct. 3457 (1984), the Supreme Court held 3 that “the Education of the Handicapped Act (‘EHA’), the predecessor to the IDEA, was the 4 exclusive means of remedying violations of the rights it guaranteed.” Id. at 937. In response, 5 according to the Ninth Circuit, “Congress amended the statute to include what now is 20 6 U.S.C. § 1415(l).” Id. That amendment stated that: “Nothing in this chapter shall be construed 7 to restrict or limit the rights, procedures, and remedies available under the Constitution, the 8 Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other 9 Federal laws protecting the rights of children with disabilities . . . .” 20 U.S.C. § 1415(l). The 10 Ninth Circuit stated that there “is an existing circuit split on whether, with the amendment, 11 Congress intended the IDEA rights to be enforceable under § 1983.” Id. “The First, Third, 12 Fourth, and Tenth Circuits have held that Congress did not so intend.” Id. “The Second and 13 Seventh Circuits have held that Congress did so intend.” Id. The Ninth Circuit stated that it 14 was persuaded by the Third Circuit which found that there was no enforceable right under 15 section 1983 for a violation of the IDEA. The Ninth Circuit noted with approval the Third 16 Circuit’s holding that the IDEA is a comprehensive scheme, and that the IDEA provides judicial 17 remedies for violations of its provisions. Id. As such, the Ninth Circuit held that “Congress 18 did not intend § 1983 to be available to remedy violations of the IDEA.” Id. (quoting A.W. v. 19 Jersey City Pub. Sch., 486 F.3d 791, 797-803 (3d Cir. 2007)). 20 In Carney ex rel. Carney v. Nevada ex rel. Dept. of Educ., the Nevada district court held 21 that there was no enforceable section 1983 claim available under the IDEA. 2007 WL 777697 22 *2 (D.Nev. 2007). In that case, the court noted that “[w]hen the remedial devices provided in 23 a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional 24 intent to preclude the remedy of suits under § 1983.” Id. (quoting Middlesex County v. Nat’l 25 Sea Clammers Ass’n, 453 U.S. 1, 20, 101 S.Ct. 2615 (1981)). The court stated that the IDEA 26 had a comprehensive enforcement scheme and dismissed Plaintiffs’ § 1983 claims for 27 violations of rights granted by the IDEA. 28 /// 29 1 In this matter, based on the Ninth Circuit’s holding in Blanchard, Plaintiffs’ IDEA section 2 1983 claims are dismissed. The Ninth Circuit has sided with other courts and circuits in 3 holding that the IDEA has a comprehensive enforcement scheme, directed at resolution, that 4 is incompatible with enforcement through § 1983. 5 5. Negligence Claim 6 Finally, Defendants assert that they are entitled to immunity for the state law 7 negligence claim asserted against them. According to the Clark County Defendants, Plaintiffs’ 8 negligence claim should be dismissed because Defendants were exercising personal 9 decision-making and judgment in their administration of the Department of Family Services 10 (“DFS”). Because they were exercising personal deliberation, decision-making and judgment, 11 the Clark County Defendants state that their acts were discretionary and entitled to immunity 12 under Nevada law. The State Defendants also argue that this claim should be dismissed. 13 According to the State Defendants, Plaintiffs have failed to state a claim for relief because 14 Plaintiffs did not allege “with any specificity that State Defendants owe any duty of care or 15 describe how they breached that duty.” (State Defendants’ Motion to Dismiss (#21) at 26). 16 In addition, the State Defendants also argue that they are entitled to immunity on the 17 negligence claim because “their alleged actions involve individual judgment and are based 18 on policy considerations.” Id. at 27. 19 In response, Plaintiffs argue that Defendants are not entitled to immunity on the 20 negligence claim because Plaintiffs have asserted that Defendants failed “to initiate duties 21 which they have no discretion to ignore.” (Consolidated Opp’n (#36) at 30). In other words, 22 Plaintiffs argue that they have asserted ministerial acts against Defendants and the 23 discretionary immunity statute does not apply. 24 In this case, the Court declines to rule on Plaintiffs’ negligence and remaining state law 25 claims pursuant to 28 U.S.C. § 1367(c). Not only do these claims raise strict issues of state 26 law, but the Court has dismissed all claims over which it has original jurisdiction on the 27 grounds that Defendants are entitled to qualified immunity. 28 /// 30 1 2 CONCLUSION For the foregoing reasons, IT IS ORDERED that the Clark County Defendants’ Motion 3 to Dismiss (#20) and the State Defendants’ Motion to Dismiss (#21) are GRANTED. 4 Defendants are entitled to qualified immunity on the federal law claims asserted against them. 5 The Court declines to exercise jurisdiction over the remaining state law claims. 6 DATED: This 26th day of October, 2010. 7 8 9 _________________________________ United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31