“Liability under section 1983 arises only upon a showing 16 of personal participation by the defendant.”
How later courts described this case
- “Liability under section 1983 arises only upon a showing 16 of personal participation by the defendant.”
- considering prior 21 incidents in deciding whether municipal liability claim 22 adequately identified unlawful practice or custom
- noting complaint 25 alleged defendants deprived child of both “the right to be free 26 from unreasonable searches and seizures” and “the right to be 27 with her parents,” and analyzing both under the Fourth 28 Amendment
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 ----oo0oo----
11
12 FAUN O’NEEL, individually and as No. 2:21-cv-02403 WBS DB
Guardian Ad Litem for her
13 children B.T., A.O., D.O., and
A.T.,
14 ORDER RE: DEFENDANTS’ MOTION
Plaintiffs, FOR JUDGMENT ON THE PLEADINGS
15
v.
16
CITY OF FOLSOM, a public entity;
17 SPENSER HEICHLINGER, an
individual; MELANIE CATANIO, an
18 individual; LOU WRIGHT, an
individual; [FNU] AUSTIN, an
19 individual; [FNU] HUSAR, an
individual, DOE CITY OF FOLSOM
20 DEFENDANTS, individuals; COUNTY
OF SACRAMENTO, a public entity;
21 DOE DCFAS DEFENDANTS,
individuals; and DOES 1 through
22 10, inclusive,
23 Defendants.
24
25 ----oo0oo----
26 Plaintiff Faun O’Neel, individually and on behalf of
27 her children B.T., A.O., D.O., and A.T. (collectively,
28 “plaintiffs”), brought this § 1983 action against the City of
1 Folsom (the “City”); various Folsom police officers; the County
2 of Sacramento; and various Sacramento Department of Child, Family
3 and Adult Services officials challenging defendants’ alleged
4 unlawful entry of O’Neel’s home and their alleged unlawful
5 seizure and removal of B.T., A.O., D.O., and A.T. (See First
6 Amended Complaint (“FAC”) (Docket No. 18).) Specifically,
7 plaintiffs assert claims for (1) warrantless seizure of children
8 under the Fourth Amendment and denial of due process under the
9 Fourteenth Amendment, (2) unlawful search under the Fourth
10 Amendment; (3) municipal liability; (4) false imprisonment; and
11 (5) intentional infliction of emotional distress. (Id. at ¶¶ 56-
12 110.) Defendants City of Folsom, Spenser Heichlinger, Melanie
13 Catanio, Lou Wright, [FNU] Austin, and [FNU] Husar now move for
14 judgment on the pleadings. (Mot. (Docket No. 23-1).)1
15 I. Factual and Procedural Background2
16 Plaintiff O’Neel is a resident of the County of
17 Sacramento and is married, with four minor children: B.T., A.T.,
18 A.O., and D.O. (FAC at ¶¶ 1, 24, 26.) On December 20, 2020,
19 before the family left home to go to dinner, O’Neel asked D.O. to
20 put away some cookies so that the dog would not get to them while
21 the family was out. (Id. at ¶ 31.) When the family returned,
22 O’Neel saw that the cookies had not been put away and that the
23
24 1 Because only the City of Folsom and the Folsom police
officer defendants are party to the instant motion, in this Order
25
the court uses “defendants” to refer only to the Folsom
defendants, notwithstanding the fact that they are not the only
26
defendants in this action.
27
2 All facts described herein are as alleged in the First
28 Amended Complaint except as otherwise noted.
1 dog had eaten most of them and made a mess in the kitchen. (Id.
2 at ¶ 32.) O’Neel called D.O. over to clean up the mess, and
3 after he had done so she sent him to his room as a form of
4 discipline. (Id. at ¶ 33.)
5 At around 9:00 p.m., there was loud banging at the
6 front door, which O’Neel’s husband opened to find defendant
7 officers Heichlinger, Austin, and Husar standing at the entryway.
8 (Id. at ¶ 34.) They informed him that they were there to carry
9 out a welfare check on the children because B.T. had called 911
10 to ask whether grabbing a child by the neck was child abuse.
11 (Id. at ¶ 35.) Evidently, after being made to clean the kitchen,
12 D.O. had gone to B.T.’s room and falsely stated that O’Neel had
13 picked D.O. up by the neck and carried him to the kitchen. (Id.)
14 The officers then entered the home without O’Neel’s or
15 her husband’s consent and without a warrant. (Id. at ¶ 37.)
16 They ordered O’Neel and her husband to wake the children up so
17 they could be interviewed and proceeded to interview each child
18 outside the presence of O’Neel and her husband. (Id.) The
19 officers then photographed D.O., who had no marks or bruises on
20 him. (Id.) The officers then left without interviewing anyone
21 else who was at the home or providing any paperwork, contact
22 information, or any indication of what might happen next. (Id.
23 at ¶¶ 38-39.)
24 Plaintiffs allege that the following day, one or more
25 City officials contacted Sacramento Department of Child, Family
26 and Adult Services to file a report of suspected child abuse.
27 (Id. at ¶ 40.) Plaintiffs further allege that multiple City and
28 County defendants agreed to seize the four children from O’Neel’s
1 care and custody without seeking court authorization, despite the
2 lack of any imminent risk of serious bodily injury to any of the
3 children. (Id. at ¶ 41.)
4 Between the December 20, 2022 welfare check and
5 December 22, 2022, there were no further incidents involving the
6 children. (Id. at ¶ 42.) Plaintiffs also allege that no further
7 investigation occurred during this time. (Id.) Nevertheless, on
8 December 22, defendant officers Catanio, Wright, and Does 1
9 through 4 came to plaintiffs’ home and informed O’Neel that they
10 were there to seize all of the children and remove them from her
11 custody. (Id.) None of the defendants presented a warrant or
12 court order authorizing seizure of the children. (Id. at ¶ 43.)
13 These officers entered the home without O’Neel’s or her husband’s
14 consent and ordered O’Neel and her husband to bring the children
15 to the officers so the children could be interviewed again. (Id.
16 at ¶ 44.) Catanio interviewed the children without parental
17 consent and outside of O’Neel’s presence. (Id. at ¶ 47.)
18 Plaintiffs allege that Catanio did not gain any new
19 information from the December 22 interviews of the children.
20 (Id. at ¶ 48.) Notwithstanding the lack of any indication any
21 child was at imminent risk of serious harm, after the interviews
22 the defendant officers removed all four children from O’Neel’s
23 home, drove the children to the Folsom Police Department, and
24 continued to interrogate the children. (Id. at ¶¶ 48-49.)
25 O’Neel’s mother sought to have the children placed in her care,
26 but defendants refused and instead decided to place the children
27 in non-relative foster care. (Id. at ¶¶ 50-52.)
28 Plaintiffs served a government claim against the City
1 on June 16, 2021, which the City rejected on June 24, 2021. (Id.
2 at ¶ 54.) Plaintiffs brought this action in this court on
3 December 24, 2021. (Docket No. 1.)
4 II. Legal Standard
5 “After the pleadings are closed -- but early enough not
6 to delay trial -- a party may move for judgment on the
7 pleadings.” Fed. R. Civ. P. 12(c). A Rule 12(c) motion may ask
8 for judgment on the basis of a plaintiff’s “[f]ailure to state a
9 claim upon which relief can be granted.” Fed. R. Civ. P.
10 12(h)(2)(B). “A Rule 12(c) motion for judgment on the pleadings
11 and a Rule 12(b)(6) motion to dismiss are virtually
12 interchangeable.”3 Sprint Telephony PCS, L.P. v. Cnty. of San
13 Diego, 311 F. Supp. 2d 898, 902 (S.D. Cal. 2004). “Because the
14 two motions are analyzed under the same standard, a court
15 considering a motion for judgment on the pleadings may give leave
16 to amend and ‘may dismiss causes of action rather than grant
17 judgment.’” Id. at 903 (citing William W. Schwarzer, et al.,
18 Federal Civil Procedure Before Trial § 9:341 (2003); Moran v.
19 Peralta Cmty. Coll. Dist., 825 F. Supp. 891, 893 (N.D. Cal.
20 1993)).
21 As with a motion to dismiss made under Rule 12(b)(6),
22
23 3 “The motions differ in only two respects: ‘(1) the
timing (a motion for judgment on the pleadings is usually brought
24 after an answer has been filed, whereas a motion to dismiss is
typically brought before an answer is filed), and (2) the party
25
bringing the motion (a motion to dismiss may be brought only by
the party against whom the claim for relief is made, usually the
26
defendant, whereas a motion for judgment on the pleadings may be
27 brought by any party).’” Lewis v. Russell, 838 F. Supp. 2d 1063,
1067 n.2 (E.D. Cal. 2012) (Shubb, J.) (quoting Sprint, 311 F.
28 Supp. 2d at 902-03).
1 the inquiry before the court is whether, accepting the
2 allegations in the complaint as true and drawing all reasonable
3 inferences in the plaintiff’s favor, the complaint has alleged
4 “sufficient facts . . . to support a cognizable legal theory,”
5 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001), and thereby
6 stated “a claim to relief that is plausible on its face,” Bell
7 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In deciding the
8 motion, the court must accept all factual allegations in the
9 complaint as true and construe them in the light most favorable
10 to the non-moving party. Fleming v. Pickard, 581 F.3d 922, 925
11 (9th Cir. 2009) (citing Turner v. Cook, 362 F.3d 1219, 1225 (9th
12 Cir. 2004)). Courts are not, however, “required to accept as
13 true allegations that are merely conclusory, unwarranted
14 deductions of fact, or unreasonable inferences.” Sprewell v.
15 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
16 III. Discussion
17 Defendants move for judgment on several of plaintiffs’
18 claims, on multiple grounds. The court will address each in
19 turn. Because the court has discretion to consider a motion for
20 judgment on the pleadings as it would a motion to dismiss, and
21 because no evidence is currently before the court, the court
22 declines to grant judgment at this stage and will instead
23 consider whether the challenged claims merit dismissal. See
24 Sprint, 311 F. Supp. 2d at 903.
25 Certain claims brought by plaintiffs primarily concern
26 defendants’ alleged entry into plaintiffs’ home on December 20,
27 2020, whereas others primarily concern defendants’ alleged
28 conduct on December 22, 2020, including removing B.T., A.T.,
1 A.O., and D.O. from their home. The court will first address
2 defendants’ arguments for dismissal of the former category of
3 claims, followed by those for dismissal of the latter category.4
4 A. Claims Based on December 20 Entry
5 1. Qualified Immunity
6 In the First Amended Complaint, plaintiffs claim
7 defendants are liable for unlawful searches of their home, based
8 on defendants’ alleged warrantless entries on December 20 and 22,
9 2022. (See FAC at ¶¶ 70-76.) Defendants argue that defendants
10 Heichlinger, Austin, and Husar are entitled to qualified immunity
11 as to their alleged unlawful entry on December 20, 2022. (Mot.
12 at 8.)5
13 In § 1983 actions, qualified immunity “protects
14 government officials ‘from liability for civil damages insofar as
15 their conduct does not violate clearly established statutory or
16 constitutional rights of which a reasonable person would have
17
4 In their motion, defendants argued that (1) plaintiffs’
18 claims for damages were barred pursuant to California Government
Code § 945.3 and (2) the court should abstain from exercising
19 jurisdiction over the action under Younger v. Harris, 401 U.S. 37
(1971), and its progeny, due to a criminal prosecution that was
20 pending against plaintiff O’Neel in state court. (Mot. at 3-5;
see Reply at 2-5 (Docket No. 25).) However, the parties have
21
since notified the court that the pending criminal charge has
22 been dropped, and defendants state that they withdraw these two
arguments. (Docket Nos. 27-29.) Accordingly, the court will not
23 address them in this Order.
Because defendants’ request for judicial notice (Docket
24 No. 23-2) appears to pertain exclusively to these arguments, that
request is denied as unnecessary to the resolution of the instant
25
motion.
26
5 Defendants have not raised qualified immunity as to
27 plaintiffs’ other claims, challenging defendants’ alleged
unlawful entry of plaintiffs’ home and removal of the children on
28 December 22, 2020. (See Mot. at 8-9.)
1 known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
2 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine
3 whether an officer is entitled to qualified immunity, the court
4 considers (1) whether there has been a violation of a
5 constitutional right and (2) whether the defendants’ conduct
6 violated “clearly established” federal law. Sharp v. Cnty. of
7 Orange, 871 F.3d 901, 909 (9th Cir. 2017) (citation omitted).
8 The court has discretion to decide which prong to address first
9 and, if analysis of one proves dispositive, the court need not
10 analyze the other. See Pearson, 555 U.S. at 236. Here, the
11 court will exercise its discretion to analyze the second prong
12 first: whether defendants’ conduct violated a clearly established
13 constitutional right.
14 “A right is clearly established when it is
15 ‘sufficiently clear that every reasonable official would have
16 understood that what he is doing violates that right.’” Rivas-
17 Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (quoting Mullenix
18 v. Luna, 577 U.S. 7, 11 (2015)). When determining whether a
19 right is clearly established, the court may not “define clearly
20 established law at a high level of generality.” Kisela v.
21 Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting Ashcroft v. Al-
22 Kidd, 563 U.S. 731, 742 (2011)). Rather, “[t]his inquiry must be
23 undertaken in light of the specific context of the case.” Rivas-
24 Villegas, 142 S. Ct. at 8 (citation and internal quotation marks
25 omitted). The inquiry is ordinarily made by “compar[ing] the
26 factual circumstances faced by the defendant to the factual
27 circumstances of prior cases to determine whether the decisions
28 in the earlier cases would have made clear to the defendant that
1 his conduct violated the law.” Sandoval v. Cnty. of San Diego,
2 985 F.3d 657, 674 (9th Cir. 2021).
3 Defendants argue that, on December 20, 2022, it was not
4 clearly established that officers’ warrantless entry into a home
5 in response to a 911 call reporting physical abuse of a child
6 therein violates the Fourth Amendment. (Mot. at 8-9.)6 They
7 also argue that the Ninth Circuit has recognized that such a
8 scenario may fall within the exigency exception to the Fourth
9 Amendment’s warrant requirement, showing that the
10 unconstitutionality of their alleged conduct was not clearly
11 established. (Id. at 9 (citing Jeffries v. Las Vegas Metro.
12 Police Dep’t, 713 F. App’x 549 (9th Cir. 2017); United States v.
13 Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005)).)
14 Plaintiffs argue that because neither of the Ninth
15 Circuit decisions defendants cite addressed qualified immunity,
16 they are irrelevant to whether the law at issue was clearly
17 established. (See Opp. at 16-17.) This misunderstands the
18
19 6 The First Amended Complaint alleges that these
defendants “purposefully failed to seek and/or obtain a warrant,
20 knowing that insufficient grounds or evidence existed to support
such application.” (FAC at ¶ 74.) However, it also alleges that
21
their entry into plaintiffs’ home was in response to a 911 call
22 by B.T. “ask[ing] whether grabbing a child by the neck was child
abuse.” (Id. at ¶ 35.)
23 At oral argument, counsel for plaintiff noted that the
First Amended Complaint alleges the 911 call was framed as a
24 question, rather than as an explicit accusation of abuse. On
this basis, he contended that the court cannot conclude, based on
25
that allegation, that defendants had reason to believe abuse
actually occurred. Even viewing the allegations in the light
26
most favorable to plaintiffs, however, the court cannot agree. A
27 question as to the lawfulness of conduct as specific as was
referenced here -- “grabbing a child by the neck” –- clearly
28 gives rise to an inference that such conduct occurred.
1 qualified immunity analysis, however, as the question is whether
2 existing precedent would have made clear to a reasonable officer
3 that their conduct was unconstitutional, not whether previous
4 cases had themselves proscribed or allowed such conduct on
5 qualified immunity grounds. See Pearson, 555 U.S. at 231;
6 Sandoval, 985 F.3d at 674. Likewise, although plaintiffs argue
7 in their opposition, and maintained at oral argument, that the
8 warrant requirement for entries of the home was clearly
9 established by the text of the Fourth Amendment and precedent
10 interpreting it, (see Opp. at 16), this frames the right at too
11 high a level of generality. See Kisela, 138 S. Ct. at 1152.
12 Rather, “the clearly established law must be ‘particularized’ to
13 the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552
14 (2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
15 When asked at oral argument for the case which would
16 most clearly establish the unlawfulness of defendants’ alleged
17 warrantless entry into plaintiffs’ home on December 20, 2020,
18 counsel for plaintiffs cited the court to Bonivert v. City of
19 Clarkston, 883 F.3d 865 (9th Cir. 2018), which plaintiffs also
20 cite in their opposition brief. (See Opp. at 16.) Bonivert,
21 however, involved circumstances meaningfully different from those
22 alleged here. There, officers broke the plaintiff’s window to
23 force their way into his home, without a warrant, after the
24 plaintiff had repeatedly and physically denied them access. 883
25 F.3d at 870-71, 875. By the time the officers arrived, the
26 victims of the alleged domestic disturbance “had safely departed
27 the home,” establishing that they were in no danger. See id. at
28 868. Here, although plaintiffs allege O’Neel’s husband
1 “protested” when defendants entered their home, they do not
2 allege defendants used force to gain entry. (See FAC at ¶¶ 34-
3 37.) More significantly, based on plaintiffs’ allegations that
4 defendants came because of a 911 call asking if “grabbing a child
5 by the neck was child abuse,” the First Amended Complaint gives
6 no indication that defendants were aware that any victims or
7 potential victims of domestic violence were no longer in the home
8 at the time they arrived. (See id.)
9 Moreover, Bonivert reaffirmed that the emergency
10 exception to the warrant requirement applies where “police
11 respon[ding] to reports of domestic violence” have “an
12 objectively reasonable basis for believing” that warrantless
13 entry is necessary “to render emergency assistance to an injured
14 occupant or to protect an occupant from imminent injury.” 883
15 F.3d at 876-77 (quoting Brigham City v. Stuart, 547 U.S. 398, 403
16 (2006)); see id. at 874 (“No question has been raised, or
17 reasonably could be, about the authority of the police to enter a
18 dwelling to protect a resident from domestic violence.”) (quoting
19 Georgia v. Randolph, 547 U.S. 103, 118 (2006)). It also noted
20 that the exigency exception may apply when officers respond to
21 reports of domestic violence and “the . . . victim is still in
22 the home.” Id. at 878 (quoting United States v. Martinez, 406
23 F.3d 1160, 1164 (9th Cir. 2005)). Thus, if anything, Bonivert
24 suggests that Heichlinger, Austin, and Husar’s conduct here, as
25 alleged in the First Amended Complaint, was in fact lawful. It
26 does not clearly establish the unconstitutionality of defendants’
27 alleged conduct here.
28 Plaintiffs have thus not identified, nor is the court
1 aware of, any precedent that existed as of December 20, 2020
2 clearly establishing that a warrantless entry into the home in
3 response to a 911 call alleging physical abuse of a child
4 violates the Fourth Amendment. Accordingly, the court will grant
5 qualified immunity to defendants Heichlinger, Austin, and Husar
6 as to plaintiffs’ claim alleging unlawful entry on December 20,
7 2020.
8 B. Claims Based on December 22 Entry and Removal
9 1. Procedural Due Process Claim
10 Defendants also challenge plaintiffs’ procedural due
11 process claim, which challenges defendants’ alleged unlawful
12 removal of the children, contending that plaintiffs have failed
13 to identify a protected liberty interest of which they were
14 deprived, as is necessary to state such a claim. (Mot. at 6.)
15 However, in the First Amended Complaint, plaintiffs allege they
16 were unlawfully deprived of “[t]he right to familial
17 association,” (FAC at ¶¶ 57-58), and the Ninth Circuit has
18 recognized that this right “is a fundamental liberty interest,”
19 Keates v. Koile, 883 F.3d 1228, 1236 (9th Cir. 2018) (citations
20 omitted); see also Troxel v. Granville, 530 U.S. 57, 65 (2000)
21 (plurality opinion) (“[T]he interest of parents in the care,
22 custody, and control of their children [ ] is perhaps the oldest
23 of the fundamental liberty interests recognized by this Court.”);
24 Santosky v. Kramer, 455 U.S. 745, 753 (1983) (noting the “Court’s
25 historical recognition that freedom of personal choice in matters
26 of family life is a fundamental liberty interest protected by the
27 Fourteenth Amendment”). Accordingly, the court rejects this
28 asserted basis for dismissal of plaintiffs’ procedural due
1 process claim.
2 Defendants also argue, however, that the children
3 cannot maintain a procedural due process claim based on their
4 allegedly unlawful separation from O’Neel. (Mot. at 6.) They
5 point to the Ninth Circuit’s statement that federal courts
6 “evaluate the claims of children who are taken into state custody
7 under the Fourth Amendment right to be free from unreasonable
8 seizures rather than the Fourteenth Amendment right to familial
9 association.” Keates, 883 F.3d at 1236 (citation omitted).
10 Plaintiffs do not address this argument, even though in their
11 opposition they reiterate their intent to maintain “a procedural
12 due process claim for the warrantless seizure of the children
13 that arises under the Fourteenth Amendment and applies to all
14 Plaintiffs.” (Opp. at 15 n.2 (Docket No. 24).)
15 The Ninth Circuit has repeatedly made clear, however,
16 that although “parents ‘have a well-elaborated constitutional
17 right to live’ with their children that ‘is an essential liberty
18 interest protected by the Fourteenth Amendment[ ],’” children
19 must bring claims challenging the failure of “government
20 officials . . . to obtain prior judicial authorization before
21 removing a child from the custody of their parent” under the
22 Fourth Amendment. Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784,
23 789-90 (9th Cir. 2016) (en banc) (quoting Wallis v. Spencer, 202
24 F.3d 1126, 1136 (9th Cir. 1999)); see id. (noting complaint
25 alleged defendants deprived child of both “the right to be free
26 from unreasonable searches and seizures” and “the right to be
27 with her parents,” and analyzing both under the Fourth
28 Amendment). Because plaintiffs identify no contrary authority
1 establishing that B.T., A.O., D.O., and A.T. may maintain a
2 procedural due process claim separate and apart from their Fourth
3 Amendment claim, those plaintiffs’ procedural due process claims
4 will be dismissed.
5 C. Fourth Amendment Claim
6 Defendants next argue that plaintiffs’ first claim for
7 relief asserts a Fourth Amendment claim on behalf of O’Neel that
8 cannot be supported because plaintiffs have not alleged O’Neel
9 was personally subjected to any unlawful seizure. (Mot. at 7.)
10 As the First Amended Complaint indicates, however, and as
11 plaintiffs make clear in their opposition, the challenged
12 allegations do not include a Fourth Amendment claim on behalf of
13 O’Neel. (See FAC at ¶¶ 57-63 (alleging a Fourth Amendment
14 violation only as to the children); Opp. at 15 & n.2.) Because
15 the First Amended Complaint does not include the claim defendants
16 challenge, the court cannot dismiss it.
17 D. Seizure of Children
18 Plaintiffs’ first and fourth claims are asserted
19 against several defendants, including defendants Wright,
20 Heichlinger, Austin, and Husar. (FAC at 12, 20-21.) Defendants
21 argue these claims should be dismissed as against these four
22 defendants because, although in these claims plaintiffs allege
23 these defendants both violated plaintiffs’ procedural due process
24 rights and falsely imprisoned them in the course of removing
25 B.T., A.O., D.O., and A.T. from their home and from O’Neel, (see
26 id. at ¶¶ 61, 97), the First Amended Complaint does not actually
27 allege these defendants were present during or participated in
28 the removal of the children. (Mot. at 7.)
1 Plaintiffs do not address this argument in their
2 opposition, and defendants appear for the most part to be
3 correct. The factual allegations in the First Amended Complaint
4 state that defendants Heichlinger, Austin, and Husar entered
5 plaintiffs’ home to perform a welfare check on December 20, 2022,
6 and that defendants Catano, Wright, and Does 1 through 4 came on
7 December 22, 2022 and participated in the removal of the
8 children. (See FAC at ¶¶ 29-38, 42-49.) The First Amended
9 complaint does not allege that there was any overlap between the
10 officers present on December 20 and those present on December 22.
11 (See id.) Accordingly, plaintiffs fail to allege facts
12 indicating that defendants Heichlinger, Austin, and Husar
13 participated in the removal of B.T., A.O., D.O., and A.T. on
14 December 22. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
15 1989) (“Liability under section 1983 arises only upon a showing
16 of personal participation by the defendant.”); Sprewell, 266 F.3d
17 at 988. But as noted, the First Amended Complaint does allege
18 that defendant Wright was present on December 22 and participated
19 in the removal of the children. Accordingly, the court will
20 dismiss plaintiffs’ Count One and Four claims as to defendants
21 Heichlinger, Austin, and Husar, but not as to defendant Wright.
22 E. Municipal Liability Claim
23 Defendants also seek dismissal of plaintiffs’ claim for
24 municipal liability as against the City.7 (Mot. at 9.) To state
25 a § 1983 claim against a municipality, a plaintiff must allege
26
27 7 Plaintiffs also assert a municipal liability claim
against defendant County of Sacramento, which is not a party to
28 the instant motion.
1 “(1) that he possessed a constitutional right of which he was
2 deprived; (2) that the municipality had a policy; (3) that this
3 policy ‘amounts to deliberate indifference’ to the plaintiff’s
4 constitutional right; and (4) that the policy is the ‘moving
5 force behind the constitutional violation.’” Oviatt ex rel.
6 Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting
7 City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)). The
8 existence of such a “policy” may be shown through a variety of
9 means, including by (1) “prov[ing] the existence of a widespread
10 practice that, although not authorized by written law or express
11 municipal policy, is so permanent and well settled as to
12 constitute a custom or usage with the force of law,” City of St.
13 Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion)
14 (citation and internal quotation marks omitted), and
15 (2) demonstrating that the municipality failed to adequately
16 train employees so as to avoid the constitutional violations that
17 occurred, see Harris, 489 U.S. at 388.
18 Plaintiffs argue the existence of an unlawful policy is
19 adequately pled because the First Amended Complaint alleges the
20 City had a “long standing practice and custom” of removing
21 children from their parents without performing a reasonable
22 investigation and without cause to believe the children were in
23 such imminent danger as to justify a failure to obtain a warrant
24 for seizure of the children. (FAC at ¶ 86.) They similarly
25 allege the City had a longstanding practice and custom of
26 removing all children from a home after determining that any
27 child there is at risk, without performing an individualized
28 investigation into whether the other children are also
1 sufficiently at risk to justify removal. (Id. at ¶ 88.) In
2 support of these alleged practices and customs, plaintiffs
3 identify seven cases brought in this court or in state court that
4 they contend involved the unlawful removal of children under
5 circumstances similar to those alleged here. (Id. at ¶ 90.)
6 Each of these cases, however, appears to involve claims
7 against the County of Sacramento, rather than against the City of
8 Folsom, (id.), a point that plaintiffs do not dispute (see Opp.
9 at 17-20) and that plaintiffs’ counsel conceded at oral argument.
10 Accordingly, these cases do not create a plausible inference that
11 the City maintains the alleged practices and customs plaintiffs
12 identify, because plaintiffs’ citation of them does not amount to
13 an allegation that the City has previously operated under the
14 alleged practices and customs, as would be necessary to make them
15 “long standing.” See Hyun Ju Park v. City & Cnty. of Honolulu,
16 952 F.3d 1136, 1142 (9th Cir. 2020) (to state a claim for
17 municipal liability based on custom or practice, plaintiff “must
18 ordinarily point to a pattern of prior, similar violations of
19 federally protected rights”); Perryman v. City of Pittsburg, 545
20 F. Supp. 3d 796, 800-01 (N.D. Cal. 2021) (considering prior
21 incidents in deciding whether municipal liability claim
22 adequately identified unlawful practice or custom); Hughey v.
23 Drummond, 2:14-cv-00037 TLN AC, 2017 WL 590265, at *6 (E.D. Cal.
24 Feb. 14, 2017) (same); Bagley v. City of Sunnyvale, 16-cv-02250
25 LHK, 2017 WL 344998, at *15 (N.D. Cal. Jan. 24, 2017) (dismissing
26 municipal liability claim because plaintiff failed to “allege any
27 facts that indicate that the [city’s] police force is regularly
28 taking actions involving excessive force or unlawful arrests” and
1 instead “only [pled] actions related to his own arrest and
2 prosecution”).
3 Plaintiffs also contend the First Amended Complaint
4 states a claim for municipal liability based on a failure-to-
5 train theory. (Opp. at 19.) It alleges:
6 Based on the duties charged to City of Folsom . . .
related to the nature of work (child abuse
7 investigations) which is a usual and recurring
situation with which [its] employees are engaged, the
8 failure to adequately train [its] employees evinced by
the conduct of removing Plaintiff Faun O’[N]eel’s
9 children as factually alleged in this case . . .
make[s] it reasonable to believe -- and plaintiffs
10 allege -- that the . . . [City is] deliberately
indifferent to the constitutional rights of familial
11 association enjoyed by parents and children . . . and
that [its] failure to provide adequate training of
12 employees such as the individually named Defendants
herein was the moving force behind the removal of the
13 minor children in this suit and the constitutional
violations related thereto . . . .
14
15 (FAC at ¶ 82.) More specifically, plaintiffs allege the City
16 fails to train officers as to “the full considerations that . . .
17 law enforcement personnel must evaluate and the standards that
18 must be met . . . for the removal or separation of a child from
19 his or her parents to be lawful under the U.S. Constitution . . .
20 and the circumstances that can make removal of a child both
21 ‘truly exigent’ and done without violating a famil[y’s] rights.”
22 (Id. at ¶ 83.) They further allege the City takes no measures
23 “to ‘audit’ the efficacy of the trainings [it] do[es] provide
24 employees,” such that the City renders itself incapable of
25 knowing “whether or not the employees are . . . actually
26 understanding or comprehending the gravamen” of any training the
27 City does provide. (See id. at ¶ 84.)
28 The court agrees that the First Amended Complaint
1 adequately states a claim for municipal liability based on a
2 failure to train. Based on plaintiffs’ allegations, at least at
3 the pleading stage, this appears to be one of those rare cases in
4 which, “in light of the duties assigned to specific officers or
5 employees[,] the need for more or different training is so
6 obvious, and the inadequacy so likely to result in the violation
7 of constitutional rights, that the policymakers of the city can
8 reasonably be said to have been deliberately indifferent to the
9 need.” Harris, 489 U.S. at 390. Specifically, the need for a
10 municipality to provide adequate training regarding the Fourth
11 Amendment requirement to obtain a warrant when removing children
12 from their home, and regarding the exceptions thereto, should be
13 obvious to any municipality that maintains a police department,
14 as officers may sometimes come to believe such removal is
15 permitted for the children’s protection.
16 Here, plaintiffs plausibly allege that defendants
17 Heichlinger, Austin, and Husar came to their home and interviewed
18 the children on December 20, 2022, and that defendants Catanio
19 and Wright -- officers of the same police department as
20 Heichlinger, Austin, and Husar -- returned two days later, with
21 no warrant, to remove all four children. (See FAC at ¶¶ 34-43.)
22 Although plaintiffs also allege that Catanio and Wright
23 interviewed the children later during their visit on December 22,
24 they allege that upon arrival, these officers informed O’Neel
25 that they had come to take the children. (Id. at ¶¶ 42-44, 47.)
26 Thus, viewing the allegations in the light most favorable to
27 plaintiffs, the December 22 interviews did not form the basis of
28 the decision to remove the children without a warrant. Rather,
1 the allegations indicate that Catanio and Wright came to
2 plaintiffs’ home on December 22 for the specific purpose of
3 seizing the children, based solely on what defendants had learned
4 on December 20, and without any subsequent contact with O’Neel or
5 the children. They allegedly did so without having obtained a
6 warrant during the intervening two-day period, even though such a
7 period would have been ample time to obtain one.
8 These allegations give rise to a plausible inference
9 that the City failed to adequately train its officers on the
10 requirement that they obtain a warrant prior to removing children
11 from their homes and on the limited applicability of exceptions
12 to that requirement, including that to constitute a valid
13 exception, any emergency or exigency must afford officers
14 insufficient time to obtain a warrant. See Kirkpatrick v. Cnty.
15 of Washoe, 843 F.3d 784, 792 (9th Cir. 2016) (en banc) (“[I]t
16 [i]s well-settled that a child c[an]not be removed without prior
17 judicial authorization absent evidence that the child [i]s in
18 imminent danger of serious bodily injury.”). Because “[C]ity
19 policymakers know to a moral certainty that their police officers
20 will be required” to address domestic violence, including by
21 separating abused children from abusive parents, and because the
22 City has vested its officers with the authority to effectuate
23 such separations, the need to adequately train officers “in the
24 constitutional limitations on [such conduct] can be said to be
25 ‘so obvious,’ that failure to do so” could give rise to municipal
26 liability if plaintiffs’ allegations are proven true. Harris,
27 489 U.S. at 390 n.10.
28 This conclusion finds strong support in the Ninth
1 Circuit’s decision in Kirkpatrick v. County of Washoe. There, in
2 reviewing a grant of summary judgment, the court concluded that
3 “evidence that [defendant officials] violated [the minor
4 plaintiff’s] Fourth Amendment rights” by removing him without a
5 warrant, “in conjunction with . . . testimony that the County had
6 no policy of obtaining warrants before removing children from
7 parental custody and that it was [officials]’ regular practice to
8 remove children regardless of the risk of imminent bodily
9 harm, raises more than a spectre of deliberate indifference by
10 [the] County.” 843 F.3d at 796.
11 Kirkpatrick was “therefore a case in which the
12 municipality’s ‘inadequacy [was] so likely to result in the
13 violation of constitutional rights’ that a jury could reasonably
14 find § 1983 liability without needing a pattern of violations to
15 find the County culpable.” Id. (quoting Harris, 489 U.S. at
16 390). “Given the work performed by [the defendant officials],”
17 the court reasoned, “the need for [the County] to train its
18 employees on the constitutional limitations of separating parents
19 and children [wa]s ‘so obvious’ that its failure to do so [wa]s
20 ‘properly characterized as deliberate indifference to the
21 constitutional rights’ of . . . County families.” Id. (quoting
22 Harris, 489 U.S. at 390 & n.10) (alterations adopted).
23 According to the First Amended Complaint, Catanio and
24 Wright came to plaintiffs’ home after three other officers had
25 come to interview the children two days earlier, giving rise to a
26 plausible inference that the visits and removal were to at least
27 some degree collaborated upon within the police department. The
28 failure of the officers to obtain a warrant for the removal of
1 the children despite this collaboration plausibly suggests that
2 responsibility for this failure rests at a higher level than that
3 of the individual defendants in this case. Based on plaintiffs’
4 allegations, and drawing all permissible inferences in their
5 favor, the court concludes the First Amended Complaint states a
6 claim for municipal liability, and the motion will be denied as
7 to this claim.
8 F. Intentional Infliction of Emotional Distress Claim
9 Finally, defendants seek dismissal of plaintiffs’ fifth
10 claim, alleging intentional infliction of emotional distress. To
11 state such a claim, “a plaintiff must show: (1) outrageous
12 conduct by the defendant; (2) the defendant’s intention of
13 causing or reckless disregard of the probability of causing
14 emotional distress; (3) the plaintiff’s suffering severe . . .
15 emotional distress; and (4) actual and proximate causation.”
16 Huntingdon Life Scis., Inc. v. Stop Huntingdon Animal Cruelty
17 USA, Inc., 129 Cal. App. 4th 1228, 1259 (4th Dist. 2005).
18 Plaintiffs adequately plead these elements. They
19 allege that defendants, by virtue of the alleged warrantless
20 removal of B.T., A.O., D.O., and A.T. from their mother and home
21 on December 22, 2020, acted outrageously and “with reckless
22 disregard for the possibility of [causing] severe emotional
23 distress to Plaintiffs,” in fact caused plaintiffs to suffer
24 severe emotional distress due to the separation, and actually and
25 proximately caused the distress by personally effectuating the
26 removal. (FAC at ¶¶ 104-09.)
27 This claim, however, suffers from the same flaw as with
28 plaintiffs’ other claims challenging defendants’ alleged conduct
1 during the December 22 visit to plaintiffs’ home, in that it
2 asserts liability against defendants Heichlinger, Austin, and
3 Husar even though the First Amended Complaint includes no factual
4 allegations stating that these defendants were in fact present on
5 that date. (See FAC at ¶¶ 42-49, 104-09.)8 Accordingly,
6 plaintiffs’ intentional infliction of emotional distress claim
7 will be dismissed as against defendants Heichlinger, Austin, and
8 Husar.
9 IT IS THEREFORE ORDERED that defendants’ Motion for
10 Judgment on the Pleadings (Docket No. 23-1), construed as a
11 motion to dismiss, be, and the same hereby is, GRANTED IN PART
12 and DENIED IN PART as follows:
13 • Plaintiffs B.T., A.O., D.O., and A.T.’s Count One
14 claim, to the extent that it alleges violation of these
15 plaintiffs’ procedural due process rights under the
16 Fourteenth Amendment, is DISMISSED;
17 • All plaintiffs’ Count One, Count Two, Count Four, and
18 Count Five claims are DISMISSED as to defendants
19 Heichlinger, Austin, and Husar;
20 • Defendants’ motion is DENIED in all other respects.
21 Plaintiffs have twenty days from the date of this Order to file a
22 second amended complaint, if they can do so consistent with this
23 Order.
24
25
8 Although in their motion defendants also contend that
Heichlinger, Austin, and Husar’s alleged conduct on December 20,
26
2022 is not “outrageous” as a matter of law, the First Amended
27 Complaint specifies that plaintiffs’ claim for intentional
infliction of emotional distress is based on the alleged removal
28 of the children on December 22, 2022. (See id. at ¶ 104.)
een en nnn
1 | Dated: July 15, 2022 bette 2d. □□
5 WILLIAMB.SHUBB i (ssti—(‘CS™~™~C~S
UNITED STATES DISTRICT JUDGE
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