(PS) Moore v. County of Sacramento, Dept.of Child, Family and Adult Services

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 OTIS T. MOORE, and No. 2:19-cv-844-JAM-KJN PS

KRISTINA A. MOORE,

12 FINDINGS AND RECOMMENDATIONS

Plaintiffs, ON DEFENDANT’S MOTION TO DISMISS

13 AND MOTION FOR JUDGMENT ON THE

v. PLEADINGS

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COUNTY OF SACRAMENTO, (ECF No. 23.)

15 DEPARTMENT OF CHILD, FAMILY

AND ADULT SERVICES,

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Defendant.

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18 Plaintiffs Otis and Kristina Moore, proceeding pro se, allege the County of Sacramento

19 wrongfully removed their grandchildren from their custody.1 Plaintiffs primarily claim their

20 First, Fourth, and Fourteenth Amendment Constitutional rights were violated; they seek monetary

21 and injunctive relief. (ECF No. 1.) The County now moves to dismiss, arguing that the court

22 lacks subject matter jurisdiction to hear some of plaintiffs’ claims, all claims are time-barred, and

23 the Complaint otherwise fails to state claims on which relief might be granted. (ECF No. 23.)

24 For the reasons that follow, the court recommends the County’s motion be granted, and

25 plaintiffs be denied leave to amend.

26 ///

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1 This action proceeds before the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Local Rule

28 302(c)(21).

1 Background2

2 Otis and Kristina Moore have two adult-age children, Karissa and Kamara, and six

3 grandchildren: S.S., E.G., Ps.M, Pc.M., C.M., and K.M.3 (ECF No. 1 at 4; see also ECF No. 18 at

4 8, 13.) In the summer of 2014, Sacramento Human Services Supervisor Essence Webb (“Webb”)

5 requested plaintiffs provide shelter for Karissa, Kamara, S.S., E.G., Pc.M., and C.M. (ECF No. 1

6 at 6; see also ECF No. 18 at 9.) At that time, K.M. was not yet born, and Ps.M. was already

7 living with his grandparents—and had been so for close to a decade. (See Id. at 20-21.) Plaintiffs

8 agreed to shelter the four grandchildren, but did not want to house their daughters, given their

9 drug history. (Id.) However, after Webb insisted, plaintiffs agreed to take in everyone. (Id.; see

10 also ECF No. 25 at 8.) Webb had plaintiffs sign a “Voluntary Caretaker Authorization Form,”

11 which gave plaintiffs temporary authority to care for the four grandchildren; this form did not

12 otherwise affect legal custody. (ECF No. 1 at 6.) Webb did not discuss the County’s “Family

13 Maintenance Program” with plaintiffs at that time. (Id.)

14 In mid-August of 2014, Kamara gave birth to K.M. (ECF No. 18 at 9-10). On September

15 4, plaintiffs visited their granddaughter at U.C. Davis Medical Center after the infant sustained an

16 injury. (ECF No. 1 at 6.) During the hospital visit, plaintiffs (alongside Karissa and Kamara) met

17 with Emergency Response Social Worker Nikkita Moorer (“Moorer”). (ECF No. 1 at 6.) Moorer

18 informed plaintiffs that the County was going to place all six grandchildren in foster care because

19 plaintiffs house was a “drug and violent house.” (Id.) Plaintiffs responded that Moorer had

20 mistaken their home for Karissa and Kamara’s former house. (Id.) Five days later, Sacramento

21 2 These facts primarily derive from the Complaint (ECF No. 1), as well as certain public records

which have been submitted to the court in this proceeding. (See ECF No. 18 at Exhibit A). The

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court finds it appropriate to take judicial notice of these public records under Fed. R. Evid.

23 201(b). United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (finding that a court may

consider matters subject to judicial notice without converting the motion to dismiss into a motion

24 for summary judgment.”); see also Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746

n.6 (9th Cir. 2006) (judicial notice of court filings and other matters of public record appropriate).

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All facts are construed in the light most favorable to plaintiff—the non-moving party. Faulkner v.

ADT Sec. Servs., 706 F.3d at 1019. However, the court does not assume the truth of any

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conclusory factual allegations or legal conclusions. Paulsen, 559 F.3d at 1071.

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3 At times the court will use the first names of the individuals involved, given the familial

28 relations. No disrespect is intended.

1 Superior Court Referee Carol Chrisman informed plaintiffs that the grandchildren would be

2 “detained by the court” and placed in foster care. (ECF No. 1 at 6.) Plaintiffs again argued that

3 the County “had the wrong house.” (Id. at 6-7.)

4 On September 15, 2014, “Psychosocial Social Worker” Jillian Cuevas visited plaintiffs’

5 residence, under the premise of conducting a “home assessment.” (Id. at 9.) Instead, Cuevas

6 conducted an “in-home psychological assessment.” (Id.) Cuevas’s report “gave 10 reasons why

7 [plaintiffs] should not have [their] grandchildren placed in [their] home.” (Id.) Plaintiffs

8 contended Cuevas was biased and relied on erroneous information. (Id.) The home assessment

9 was conducted on a later date. (Id.)

10 On December 2, 2014, plaintiffs met with Sacramento County Counsel Christophe

11 Guillon. (Id. at 7.) There, plaintiffs questioned Guillon about why he failed to turn over a

12 Detention Report from August 2010. (Id. at 7.) Plaintiffs accused Guillon of using the Report “to

13 create a negative narrative” about their family life, and argued that some of the details contained

14 therein were fabricated by a County social worker. (Id.) Guillon accused plaintiffs of stealing

15 their copy of the Report. (Id.) That same day, Sacramento Superior Court Referee Marlene

16 Hertoghe issued an order permanently removing the grandchildren from plaintiffs’ home. (Id. at

17 7.) Referee Hertoghe noted that Mrs. Moore failed to “take parenting classes” as ordered, and

18 stated “the apple doesn’t fall far from the tree.” (Id. at 8.) The grandchildren have since been

19 adopted. (See ECF No. 21 at 2:11-14.)

20 Plaintiffs complained to then-Director of Health and Human Services, Dr. Sherri Heller,

21 and in 2016, Heller ordered an investigation. (ECF No. 1 at 8-9) Two weeks later, a County

22 investigator informed plaintiffs that her investigation showed Mrs. Moore was never ordered to

23 take parenting classes (contrary to Referee Hertoghe’s findings). (Id.) Sometime after this

24 conversation, plaintiffs met with County Supervisor Don Nottoli, then-Deputy Executive Paul

25 Lake, and Heller. (Id.) Plaintiffs complained of County employees’ biases, and questioned why

26 the County did not utilize the “Emergency Housing Program” in July 2014 (instead of the

27 “Voluntary Caretaker Form.”). (Id.) Heller said this program had been shut down, but plaintiffs

28 disputed this assertion and accused Heller of lying. (Id.)

1 Procedural Posture

2 Plaintiffs filed their Complaint with this court on May 13, 2019. (ECF No. 1.) Therein,

3 they prayed for compensatory and punitive damages for the “pain and suffering, emotional

4 distress, and trauma” suffered by both them and their grandchildren. Plaintiffs also prayed for

5 injunctive relief, that “this court [order] all 6 grandchildren returned.” (Id.)

6 The County answered in November 2019, and plaintiffs filed a response to the County’s

7 answer. (ECF Nos. 13, 18.) On December 2, the County indicated it anticipated filing a motion

8 for judgment on the pleadings, and so at a February 3, 2020 hearing, the court set a briefing

9 schedule. (ECF Nos. 14, 22.)

10 On March 5, 2020, the County filed its Motion to Dismiss or, in the alternative, Motion

11 for Judgment on the Pleadings. (ECF No. 23.) Plaintiffs failed to file timely opposition, and so

12 the court vacated the hearing and ordered an opposition brief. (ECF No. 24.) On April 2,

13 plaintiffs filed their opposition. (ECF No. 25.) On April 30, 2020, the County filed its reply

14 brief. (ECF No. 26.)

15 Parties’ Arguments

16 The County’s motion under Rule 12 is multifaceted. First, the County argues plaintiffs

17 are seeking a de-facto appeal of the state court judgment, and federal courts have “no jurisdiction

18 to revisit, review, or modify a state court judgment.” Second, it argues plaintiffs lack standing to

19 assert any “Right to Familial Association” claim, arguing grandparents have no such right under

20 Ninth Circuit precedent. Third, it asserts plaintiffs’ constitutional claims are time barred, as the

21 allegedly-wrongful conduct occurred in 2014. Fourth, the County avers the Complaint either fails

22 to allege sufficient facts to support a claim, or asserts injuries under inapplicable statutes. Thus,

23 the County requests dismissal of the complaint without leave to amend.

24 Plaintiffs’ pro se opposition brief reasserts their belief that the sources of law cited in the

25 Complaint are appropriate, and enough facts exist to support those claims. They further argue

26 their relationship with their grandchildren is “so intimate and essential” that it is worthy of

27 Constitutional protections. Plaintiffs contend they are not trying to relitigate a state court

28 proceeding, and argue that events occurring after 2014 effectively tolled the limitations period.

1 Legal Standard

2 Rule 8(a)4 requires that a complaint be “(1) a short and plain statement of the grounds for

3 the court’s jurisdiction . . . ; (2) a short and plain statement of the claim showing that the pleader

4 is entitled to relief; and (3) a demand for the relief sought, which may include relief in the

5 alternative or different types of relief.” A responding party may present certain defenses to a

6 complaint by motion, including: (a) challenges to the court’s subject-matter jurisdiction, and

7 (b) challenges to the sufficiency of the complaint. See Rule 12(b).

8 (a) Subject Matter Jurisdiction

9 A Rule 12(b)(1) challenge to the court’s subject-matter jurisdiction may be raised at any

10 point in the litigation. See Rule 12(h)(3). This is so because subject-matter jurisdiction concerns

11 “the courts' statutory or constitutional power to adjudicate the case.” Steel Co. v. Citizens for

12 Better Environment, 523 U.S. 83, 89 (1998) (emphasis omitted). Constitutional power is

13 governed by Article III, which requires the existence of “an actual case or controversy”—a core

14 component of which is “standing.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The

15 “standing” doctrine requires a plaintiff to show (1) he or she has “suffered an ‘injury in fact’ that

16 is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;

17 (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as

18 opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends

19 of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).

20 Federal courts are courts of limited jurisdiction, and are presumptively without subject-

21 matter jurisdiction over civil actions. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

22 377 (1994). Thus, burden of establishing subject matter jurisdiction—including standing, rests

23 upon the party asserting jurisdiction. Id.; Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir.

24 2011) (“[A] lack of Article III standing requires dismissal for lack of subject matter

25 jurisdiction[.]”) Because subject matter jurisdiction involves a court's power to hear a case, it can

26 never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630 (2002).

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28 4 Citations to the “Rule(s)” are to the Federal Rules of Civil Procedure, unless otherwise noted.

1 Rule 12(b)(1) jurisdictional attacks can be either facial or factual. White v. Lee, 227 F.3d

2 1214, 1242 (9th Cir. 2000). In a facial attack, the challenger asserts that the allegations contained

3 in a complaint are insufficient on their face to invoke federal jurisdiction. Safe Air for Everyone

4 v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In deciding a facial Rule 12(b)(1) motion, the

5 court “must assume the allegations in the complaint are true and draw all reasonable inferences in

6 the plaintiff's favor.” Ryan v. Salisbury, 382 F. Supp. 3d 1062, 1073 (D. Haw. 2019) (citing

7 Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004)). By contrast, in a factual attack, the

8 challenger disputes the truth of the allegations that, by themselves, would otherwise invoke

9 federal jurisdiction. Safe Air, 373 F.3d at 1039.

10 Further, federal courts have no jurisdiction over claims that are “obviously frivolous,” or

11 “obviously without merit.” Hagans v. Lavine, 415 U.S. 528, 537 (1974). A claim is legally

12 frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S.

13 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may,

14 therefore, dismiss a claim as frivolous under Rule 12(b)(1) where it is based on an indisputably

15 meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at

16 327.

17 (b) Sufficiency of the Pleadings

18 Prior to the filing of a responsive pleading, a defendant may challenge the sufficiency of

19 the complaint under Rule 12(b)(6). Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104,

20 1109 (E.D. Cal. 2009). After the responsive pleading is filed, however, a defendant may also

21 move for “judgment on the pleadings” under Rule 12(c). Gregg v. Hawaii, Dep't of Pub. Safety,

22 870 F.3d 883, 887 (9th Cir. 2017). These two motions are “functionally identical,” as the same

23 legal standards apply. Id. A judgment on the pleadings is properly granted when, “taking all the

24 allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law.”

25 Id. A claim can be dismissed for insufficiency in one of two scenarios: where the complaint lacks

26 a cognizable legal theory, or where it lacks “sufficient factual matter, accepted as true, to state a

27 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mollett

28 v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015).

1 In considering a Rule 12(c) motion, the allegations of the non-moving party must be

2 accepted as true and viewed in a light most favorable to the plaintiff. Gregg, 870 F.3d at 887;

3 Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007). The court is not, however, required

4 to accept as true “conclusory [factual] allegations that are contradicted by documents referred to

5 in the complaint,” or “legal conclusions merely because they are cast in the form of factual

6 allegations.” Paulsen v. CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). Thus, to avoid dismissal

7 for insufficiency, a complaint must contain more than “naked assertions,” “labels and

8 conclusions,” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v.

9 Twombly, 550 U.S. 544, 555-57 (2007). Simply, the complaint “must contain sufficient factual

10 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

11 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). Plausibility means pleading

12 “factual content that allows the court to draw the reasonable inference that the defendant is liable

13 for the misconduct alleged.” Id.

14 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & fn. 7

15 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is

16 to tell the plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure

17 them––if it appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d

18 1122, 1130-31 (9th Cir. 2000). However, if amendment would be futile, no leave to amend need

19 be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). Although the court

20 may not consider an opposition brief to determine the propriety of a Rule 12 motion, it may

21 consider allegations raised in opposition papers in deciding whether to grant leave to amend. Cf.

22 Schneider v. Cal. Dep’t of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) with Broam v.

23 Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).

24 Analysis

25 Here, plaintiffs’ factual scenario is tied to a single event—the alleged wrongful-removal

26 of their six grandchildren from their home in the latter half of 2014. To this end, plaintiffs have

27 alleged numerous theories in their Complaint, including under 42 U.S.C. §§ 1983 and 1985;

28 49 U.S.C. § 40115; and 18 U.S.C. § 1519. Under Section 1983, the Complaint asserts violations

1 of plaintiffs’ First Amendment rights, their Fourth Amendment right to be free from unlawful

2 seizures, their Fourteenth Amendment right to due process, and their Fourteenth Amendment

3 substantive due process right to “familial association.” Plaintiffs seek money damages and

4 injunctive relief (a return of the grandchildren). They state claims against two Sacramento

5 County departments, though they name seven individual actors throughout the Complaint.

6 Further, plaintiffs have expanded their factual allegations and theories in their briefs filed with

7 this court, appearing at times to assert race-based equal-protection claims relating to the actions of

8 the County’s department supervisors.

9 Treating plaintiffs’ allegations liberally, the court finds it lacks subject matter jurisdiction

10 over some of the claims, and the remainder fail under Rule 12(c). More importantly, it does not

11 appear possible for plaintiffs to cure these defects upon amendment. Thus, the undersigned

12 recommends dismissal with prejudice.

13 I. The court has no power to reverse a state-court custody decision.

14 First, it is important that plaintiffs be aware of the following: this court has no jurisdiction

15 to review a state court’s custody determinations, as this issue is barred by the Rooker-Feldman

16 doctrine. See Wolfe, 392 F.3d at 362 (“Rooker-Feldman bars federal district courts from

17 exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court

18 judgment.”). The Ninth Circuit has described the Rooker-Feldman prohibition thusly:

19 If a federal plaintiff asserts as a legal wrong an allegedly erroneous

decision by a state court, and seeks relief from a state court

20 judgment based on that decision, Rooker– Feldman bars subject

matter jurisdiction in federal district court. If, on the other hand, a

21 federal plaintiff asserts as a legal wrong an allegedly illegal act or

omission by an adverse party, Rooker– Feldman does not bar

22 jurisdiction.

23 Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003) (emphasis added).

24 The court notes plaintiffs’ contention that their case concerns alleged violations of

25 federally-protected rights (ECF No. 25 at 9), and for this reason the court’s analysis continues

26 below. However, the Complaint also clearly requests “this court to have all 6 grandchildren

27 returned to them . . . .” (ECF No. 1 at 10.) The undersigned notes from the parties’ filings that

28 the grandchildren have since been adopted, (see ECF No. 21 at 2:11-14.), which indicates custody

1 proceedings have taken place in the Superior Court. Thus, the Complaint’s prayer for injunctive

2 relief goes to the heart of the Superior Court’s custody proceedings, and is therefore barred by

3 Rooker-Feldman. See, e.g., Wood v. Kern Cty. Child Protective Servs., 2014 WL 1664885, at *7

4 (E.D. Cal. Apr. 23, 2014) (determining that, to the extent plaintiffs’ complaint concerned the

5 state-court custody proceedings, “the Court is unable to review the propriety of the juvenile

6 dependency proceedings, the termination of parental rights, or the children's ultimate adoption

7 according to the Rooker–Feldman doctrine.”).

8 II. The court has no subject matter jurisdiction over the following frivolous claims.

9 As noted in the legal standard section, federal courts have no jurisdiction over claims that

10 lack an arguable basis either in law or in fact. Hagans, 415 U.S. at 537 (1974); Neitzke, 490 U.S.

11 at 325; Franklin, 745 F.2d at 1227-28. Here, the Complaint asserts claims under 49 U.S.C.

12 § 40115and 18 U.S.C. § 1519. (ECF No. 1 at 3.)

13 First, 49 U.S.C. § 40115 concerns the public disclosure of information concerning air

14 safety and transportation. This statute is clearly inapplicable to plaintiffs’ claims. Second, 18

15 U.S.C. § 1519 is a federal criminal statute penalizing the falsification of documents in an attempt

16 to “to impede, obstruct, or influence” federal investigations. As many courts have noted, statutes

17 such as these do not afford a private citizen a right of action. See Diamond v. Charles, 476 U.S.

18 54, 64–65 (1986) (“a private citizen lacks a judicially cognizable interest in the prosecution or

19 nonprosecution of another”); Glassey v. Amano Corp., 2006 WL 889519, at *3 (N.D. Cal. Mar.

20 31, 2006), aff'd, 285 F. App'x 426 (9th Cir. 2008) (“Private parties generally lack standing to

21 enforce federal criminal statutes . . . [Plaintiff] lacks standing to enforce any cause of action based

22 on Title 18 that he has alleged.”) Thus, these two claims must be dismissed for lack of subject

23 matter jurisdiction, as they are obviously frivolous. Neitzke, 490 U.S. at 327; see also, e.g.,

24 Bratset v. Davis Joint Unified Sch. Dist., 2017 WL 6484308, at *4 (E.D. Cal. Dec. 19, 2017),

25 report and recommendation adopted, 2018 WL 684845 (E.D. Cal. Feb. 2, 2018) (18 U.S.C.

26 § 1519 is a federal criminal statute that does not provide a private right of action.”); see also

27 Peavey v. Holder, 657 F.Supp.2d 180, 190 (D. D.C. 2009) (“to date, no circuit or Supreme Court

28 opinion has held that § 1519 creates a private right of action”)).

1 III. Plaintiffs lack standing to bring a Fourth Amendment claim on behalf of others.

2 The court observes one more issue with its subject matter jurisdiction: plaintiffs’ claim

3 asserting violations of the Fourth Amendment’s prohibition on unreasonable seizures. This claim

4 arises under 42 U.S.C. § 1983—a federal statute—and so statutory subject matter jurisdiction is

5 had. However, the court has no constitutional power to hear this claim because plaintiffs lack

6 standing to bring it. Steel Co., 523 U.S. at 89; Lujan, 504 U.S. at 560. Simply, the Complaint’s

7 assertion of a Fourth Amendment injury is personal to the grandchildren, and generally cannot be

8 asserted by their grandparents. See Friends of the Earth, 528 U.S. at 180-81 (holding that

9 standing requires, among other things, the plaintiff to show “he or she has suffered an ‘injury in

10 fact’ . . . .”; see also Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir.

11 1998) (stating that a person does not have standing to vicariously assert the Fourth Amendment

12 rights challenging the seizure of another person). Further, as it appears from the parties’ joint

13 letter that the grandchildren have since been adopted, and so plaintiffs would have no right to

14 assert these claims on behalf of the grandchildren as, say, guardians ad litem. See, e.g., Rule

15 17(c)(2) (requiring a court to “appoint a guardian ad litem—or issue another appropriate order—

16 to protect a minor or incompetent person who is unrepresented in an action.”); Johns v. San

17 Diego, 114 F.3d 874, 877 (9th Cir. 1997) (affirming dismissal of minor-plaintiff, noting that

18 “[b]ecause Casey is a minor, he lacked the capacity to sue on own.”). Because the court has no

19 power to rule on the propriety of any Fourth Amendment claim, it must be dismissed for lack of

20 subject matter jurisdiction.

21 IV. The remainder of plaintiffs’ claims are time-barred.

22 The court has spent considerable time reviewing plaintiffs’ Complaint and accompanying

23 briefs. (ECF Nos. 1, 18, 25.) In doing so, the court has been mindful of the rules calling for

24 liberal treatment of pro se litigants’ filings, the liberal opportunities to amend, and the notion that

25 a court may take statements made in briefs into consideration when analyzing whether

26 amendment is proper. Hebbe, 627 F.3d at 342 & fn. 7; Lopez, 203 F.3d at 1130-31; Broam, 320

27 F.3d at 1026 n.2. Even with this liberal treatment, the undersigned concludes that the Complaint

28 fails under Rule 12(c), and amendment would be futile. Cahill, 80 F.3d at 339.

1 Plaintiffs’ complaint states claims under 42 U.S.C. § 1983 for alleged violations of their

2 First and Fourteenth Amendment substantive due process rights to privacy and familial

3 association,5 as well as a conspiracy-style claim under 42 U.S.C. § 1985. (ECF No. 1 at 2, 4.)

4 Further, in plaintiffs’ opposition brief, they appear to contend the County has a custom of treating

5

5 Claims concerning a parent’s right to familial association are typically analyzed under the

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Fourteenth Amendment due process clause. See Lee v. City of L.A., 250 F.3d 668, 685 (9th Cir.

7 2001) (“It is well established that a parent has a ‘fundamental liberty interest’ in ‘the

companionship and society of his or her child.’”); see also Quiroz v. Short, 85 F. Supp. 3d 1092,

8 1108 (N.D. Cal. 2015) (collecting cases and noting that the right to maintain familial relationships

is more properly categorized under the Fourteenth Amendment rather than the First Amendment).

9 As the County notes, this “constitutionally protected liberty interest in making decisions about the

care, custody, and control of [] children” is typically afforded to parents, but has never been

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extended to grandparents in the Ninth Circuit. Miller v. Cal. Dep't of Soc. Servs., 355 F.3d 1172,

11 1175-76 (9th Cir. 2004); see also Mullins v. Oregon, 57 F.3d 789, 794, 797 (9th Cir. 1995)

(holding that grandparents, by virtue of genetic link alone, had no liberty interest in parenting

12 their grandchildren). To plaintiffs’ credit, they persuasively argue that cases exist that grant

grandparents standing to bring a parental-liberty claim if they had a ‘long-standing custodial

13 relationship’ with their grandchildren. See Osborne v. Cty. of Riverside, 385 F. Supp. 2d 1048,

1054-55 (C.D. Cal. 2005) (“The court concludes that . . . grandparents have no liberty interest in

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familial integrity or association with their grandchildren ‘by virtue of genetic link alone,’ but

15 grandparents who have ‘a long-standing custodial relationship’ with their grandchildren such that

together they constitute an ‘existing family unit’ do possess a liberty interest in familial integrity

16 and association.”) (citing Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) and

distinguishing Mullins, 57 F.3d at 794); see also Sanchez v. Cty. of Santa Clara, 2018 WL

17 3956427, at *8-9 (N.D. Cal. Aug. 17, 2018); Rees v. Office of Children & Youth, 744 F. Supp. 2d

434, 443-56 (W.D. Pa. 2010); Caldwell v. Brown, 2010 WL 3501839, at *2 (W.D. Wash. Sep. 3,

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2010) (“The mere fact of blood relation or even the close personal ties associated with extended

19 family do not [] give rise to a constitutionally-protected interest. It is only when extended family

members have long-standing custodial relationships and constitute an ‘existing family unit’ that a

20 liberty interest in familial association and integrity arises.”); but see Sims v. Cortese, 2007 WL

1394505, at *4 (N.D. Cal. May 10, 2007) (questioning the authority and applicability of the rule

21 in Osborne, and relying instead on the plain language of Miller).

The court provides this primer for one reason only: in order for the court to speak on the

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issue it has determined is dispositive—that plaintiffs’ claims are time-barred—it must have

23 subject matter jurisdiction over these claims—meaning plaintiffs must have standing. For

purposes of expedience, the court will assume the test described in Osborne is viable—thereby

24 theoretically providing an opportunity for plaintiffs to plead standing. The Complaint clearly

lacks facts responsive to Osborne, as there is little indication of plaintiffs’ involvement with the

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grandchildren prior to fall 2014 events. Thus, even if the parental-liberty claim was time-barred,

it would be dismissed under Rule 12(c). However, the court also needs to determine whether

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amendment is appropriate. Plaintiffs have indicated in their briefing that at least one of their

27 grandchildren, Ps.M., was under their care from infancy through age 8. (See ECF No. 18 at 20-

21.) Therefore, the Court will assume that plaintiffs could state adequate facts under Osborne in

28 an amended complaint—for the sole purpose of reaching the statute-of-limitations issue.

1 African-American families differently from other races in matters of child custody, which the

2 undersigned interprets as a potential Equal Protection claim under the Fourteenth Amendment.

3 See Hines v. Youseff, 914 F.3d 1218, 1234 (9th Cir. 2019) (“[T]he Constitution generally

4 demands race neutrality.”). Finally, the undersigned notes that plaintiffs have named the County,

5 and not the individual actors, as the sole defendant, indicating they intend to assert their

6 Constitutional claims under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) (allowing for

7 constitutional claims to be asserted against a local governmental where the constitutional harms

8 are directly attributable to the government entity itself, as when the entity has a policy or custom

9 that impinges a constitutional right or has failed to train its employees regarding that right). For

10 purposes of the court’s liberal interpretation of the Complaint, and its liberal policy concerning

11 amendment, the court analyzes these Constitutional claims as they might apply to both the County

12 and the seven individual actors named in the Complaint. (Compare ECF No. 18 at 3, indicating

13 plaintiffs’ rationale for why “the County is named as a defendant[.]”; with ECF No. 1, asserting

14 facts regarding the individual actions of seven County employees.) Construing the claims for

15 parental-liberty, equal protection, Monell liability, and Section 1985 conspiracy as all potentially

16 cognizable (see fn. 5, above), the undersigned finds them time-barred.

17 Sections 1983 and 1985 contain no statute of limitations. Accordingly, federal courts

18 apply the forum state's statute of limitations for personal injury actions, which in California is two

19 years. Butler v. Nat'l Cmty. Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014); Cal.

20 Civ. Proc. § 335.1. Though state law sets forth the length of the statute of limitations period,

21 federal law determines when the action accrues. Morales v. City of Los Angeles, 214 F.3d 1151,

22 1153–54 (9th Cir. 2000). Under federal law, an action runs from the date “when the plaintiff

23 knows or has reason to know of the injury which is the basis of the action.” Canatella v. Van De

24 Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007); see also Dyniewicz v. U.S., 742 F.2d 484, 486 (9th

25 Cir. 1984) (“The general rule in [] is that the claim accrues at the time of the plaintiff's injury.

26 Discovery of the cause of one's injury, however, does not mean knowing who is responsible for it.

27 The ‘cause’ is known when the immediate physical cause of the injury is discovered.”).

28 Here, plaintiffs allege that the County removed the grandchildren from their home

1 sometime in the latter half of 2014. Thus, any injury was sustained by plaintiffs at that time. See

2 Wallace v. Kato, 549 U.S. 384, 391-92 (2007) (holding that the cause of action based upon the

3 warrantless removal of the children from plaintiffs' care accrued once the juvenile court detained

4 the children through legal process). Under California law, plaintiffs had two years from this date

5 to file their claims in this court. Instead, they waited almost five years, until May of 2019, to file

6 the Complaint. See, e.g., Wood v. Kern County Child Protective Services, 2014 WL 1664885 at

7 *5 (E.D. Cal. April 14, 2014) (finding the statute of limitations ran on plaintiff’s Section 1983

8 claims tied to the removal of her children nearly four years prior); Olague v. Cty. of Sacramento,

9 2013 WL 2106010, at *6 (E.D. Cal. May 14, 2013) (dismissing parental-liberty claim as time-

10 barred pursuant to California’s two-year statute of limitations), aff'd, 601 F. App'x 557 (9th Cir.

11 2015). Further, plaintiffs’ factual scenario does not align with any of California’s equitable

12 tolling provisions. See Retail Clerks Union Local 648, AFL-CIO v. Hub Pharmacy, Inc., 707

13 F.2d 1030 (9th Cir. 1983) (“When federal courts borrow a state statute of limitations, they also

14 apply the state's tolling law if it is not inconsistent with federal law.”); accord Woods v. Storms,

15 793 F. App'x 542, 544 (9th Cir. 2020); see also 3 Witkin, Cal. Proc. 5th Actions § 694 (2020)

16 (listing the circumstances under which California’s statute of limitations can be suspended or

17 equitably tolled6).

18 Plaintiffs argue that statutes of limitation are left to the discretion of the court, but as

19 indicated above, this is not the rule. Further, plaintiffs indicate that the actions of, for example,

20 Dr. Heller in 2016 indicate that the statute of limitations may start to run from this point and not

21 6 “The statute of limitations may be suspended or equitably tolled under the following

circumstances: (1) The disability of the plaintiff; (2) The disability of the attorney for a party;

22

(3) The absence or non-residence of the defendant; (4) The death of a party; (5) A stay or other

23 prevention of the action; (6) The commencement of the action; (7) A prior action tolling the

statute on a subsequent action; (8) The trial of an insured's murder; (9) Revival by the

24 acknowledgement of a debt; (10) Probation with an order of restitution; (11) In actions against

insurers on policies of insurance, while an insurer is investigating a claim, or until final judgment

25

in an underlying action against the insured; (12) In cases involving construction defects, defective

products, and other breaches of warranty, during each period that the defendant attempts to repair

26

the defect. Other circumstances may have the same effect, including the following:

27 (a) Legislative changes in the limitations period, including the revival of an action previously

barred.; (b) Contractual changes in the limitations period, including extending the period by a

28 waiver; (c) Estoppel to plead the statute of limitations.”

1 2014. (ECF No. 25 at 9-10.) The court disagrees. Plaintiffs had ample knowledge of the alleged

2 wrong in 2014, when the grandchildren were removed from their home, and failed to bring their

3 claims in the two years that followed. See Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.2001)

4 (finding that allegations of continuing impact from past violations is not sufficient to toll the

5 statute of limitations); accord Baptiste v. Hopson, 649 Fed. Appx. 469 (9th Cir. 2016). However,

6 even accepting plaintiffs’ rationale, the complained-of actions by Dr. Heller appear to have taken

7 place in 2016—still occurred outside the two-year limitations period. See, e.g., Zeleny v. Brown,

8 2019 WL 3430734, at *2 (N.D. Cal. July 30, 2019) (“For conspiracy claims arising under

9 Sections 1983 and 1985, the statute of limitations begins to run from ‘the last overt act alleged

10 from which damage could have flowed.’”) quoting Lambert v. Conrad, 308 F.2d 571, 571 (9th

11 Cir. 1962).) More importantly, plaintiffs’ argument that they (and their grandchildren) continue

12 to suffer ill effects from the alleged Constitutional violations cannot save them from the statute of

13 limitations. Even if some of plaintiffs’ conversations with the County supervisors occurred

14 between 2017 and 2019, those complaints are rooted in the events that took place in 2014. See

15 Ramachandran v. City of Los Altos, 359 F.Supp.3d 801 (N.D. Cal. 2019) (“Even where acts

16 occur as part of an ongoing policy or practice, if the ‘heart of the plaintiffs' complaint does not

17 stem from the policy ... but rather from the individualized decisions that resulted from

18 implementation of the policy, ... [t]hese individualized decisions are best characterized as discrete

19 acts, rather than as a pattern or practice of discrimination.’”) (quoting Cherosky v. Henderson,

20 330 F.3d 1243, 1247–48 (9th Cir. 2003)).

21 For these reasons, the Complaint’s Monell-styled claim against the County—premised on

22 any alleged violations of their parental-liberty, equal protection, or Section 1985 rights—is time

23 barred. See, e.g., Doe v. City of Eugene, 2016 WL 1385450, at *1 (D. Or. Apr. 6, 2016) (finding

24 plaintiff’s Monell claim time-barred, despite the fact that information about the alleged policy

25 was uncovered later, where “it was clear or should have been clear that a policy or custom of the

26 municipality caused the wrongful act.”); Temple v. Adams, 2006 WL 2454275, at *10-11 (E.D.

27 Cal. Aug. 23, 2006) (stating that a Monell claim accrues “when it is clear, or should be clear, that

28 the ‘policy or custom’ caused the wrongful act,” and finding the plaintiff’s Monell claims time-

wOAOe YMOIT TE EAINTT Ot POC □□ Ee OY tw VI te

1 | barred as it should have been clear to him that he sustained his injury well prior to learning of the

2 | municipality’s policies) (citing Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995)).

3 | Further, any amended complaint that would attempt to assert these same Constitutional claims

4 | against the individual County employees would also be time barred, as their acts occurred outside

5 | the limitations period. Wallace v. Kato, 549 U.S. at 391-392; Lacey v. Maricopa Cnty., 693 F.3d

6 | 896, 935 (9th Cir. 2012) (“Conspiracy is not itself a constitutional tort under § 1983, [and] does

7 | not enlarge the nature of the claims asserted by the plaintiff, as there must always be an

8 | underlying constitutional violation.”); see also Wood, 2014 WL 1664885 at *5; Olague, 2013 WL

9 | 2106010, at *6. For these reasons, the court recommends the County’s motion for judgment on

10 | the pleadings be granted, and leave to amend be denied.

11 RECOMMENDATIONS

12 Accordingly, IT IS HEREBY RECOMMENDED that:

13 1. Defendant’s motion for judgment on the pleadings (ECF No. 23) be GRANTED;

14 2. Plaintiffs’ Complaint (ECF No. 1) be DISMISSED WITH PREJUDICE; and

15 3. The Clerk of the Court be directed to CLOSE this case.

16 These findings and recommendations are submitted to the United States District Judge

17 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14)

18 | days after being served with these findings and recommendations, any party may file written

19 | objections with the court and serve a copy on all parties. Such a document should be captioned

20 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

21 | shall be served on all parties and filed with the court within fourteen (14) days after service of the

22 | objections. The parties are advised that failure to file objections within the specified time may

23 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

24 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

25 | Dated: May 14, 2020

Foci) Aharon

7 KENDALL J. NE

moor.844 UNITED STATES MAGISTRATE JUDGE

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