Opinion

O'Neel v. City of Folsom

Court
District Court, E.D. California
Filed
Jul 15, 2022
Cited by
0 cases
Authority
More cited than 18.1%

“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

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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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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