Hernandez v. County of Fresno

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6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF CALIFORNIA

8

9 VERONICA HERNANDEZ, et al., Case No. 1:22-cv-01145-ADA-EPG

10 Plaintiffs, ORDER DIRECTING CLERK TO ADD

DEFENDANTS TO THE DOCKET

11 v.

FINDINGS AND RECOMMENDATIONS

12 COUNTY OF FRESNO, et al., TO DENY COUNTY OF FRESNO’S

MOTION TO DISMISS

13 Defendants.

(ECF No. 31)

14

OBJECTIONS, IF ANY, DUE WITHIN

15 FOURTEEN DAYS

16

17 Plaintiff Veronica Hernandez, individually, and as the guardian ad litem for Plaintiffs

18 R.H. and M.H., brings this lawsuit alleging that Defendants failed to prevent and end abuse

19 Plaintiffs suffered while in foster care. (ECF No. 25). Defendant County of Fresno (the County)

20 moves to dismiss Plaintiffs’ 42 U.S.C. § 1983 claims for failure to state a claim upon which

21 relief may be granted. (ECF No. 31). The presiding District Judge has referred the motion for

22 the preparation of findings and recommendations. (ECF No. 32).

23 For the reasons given below, the Court will recommend that the County’s motion to

24 dismiss be denied.

25 I. BACKGROUND

26 A. Summary of the Complaint

27 Plaintiffs filed this lawsuit on September 8, 2022. (ECF No. 1). The initial complaint

28 named the County, Proteus Foster Family Agency (Proteus), and Doe Defendants. On February

1 17, 2023, Plaintiffs filed their first amended complaint, which added individual social workers:

2 Social Worker Christina Lara, Social Worker Torres, Social Worker Lakeisha Atkins, Social

3 Worker Supervisor Marshunda Harding, Social Worker Sergio Klassen, Social Worker

4 Supervisor Annette Jones.1 (ECF No. 25).

5 The first amended complaint alleges that, in 2008, Plaintiffs (who were all minors at the

6 time) were placed in the custody of the County, which through an agreement with Defendant

7 Proteus, led to Plaintiffs being placed in the foster home of Eli and Martha Mendoza in 2014.

8 “Almost immediately, the Mendozas began engaging in neglectful and abusive conduct towards

9 Plaintiffs,” including failing to provide adequate food and clothing. (Id. at 6).

10 Plaintiffs lived with the Mendozas from approximately 2014 to 2016. During this time,

11 Eli Mendoza sexually assaulted Plaintiffs. “In or around 2015, one of Plaintiffs’ older siblings

12 found R.H.’s journal, in which R.H. had described the sexual assaults she had been suffering.”

13 (Id. at 7). While the abuse was reported to the County, it failed to completely investigate or

14 report it. For example, the County failed to conduct appropriate interviews of the children in

15 the foster home or report the abuse to law enforcement. Based on their allegations, Plaintiffs

16 bring five causes of action:

17 1. A deprivation of civil-rights claim under § 1983 “[b]y Plaintiffs R.H. and

M.H. against Defendants SW Lara, SW Torres, SW Atkins, SWS Harding,

18 SW Klassen, SWS Jones, and DOES 8-20”;

19

2. A Monell2 claim under § 1983 “[b]y Plaintiffs R.H. and M.H Against

20 Defendant County”;

21 3. A breach-of-mandatory duties claim under California Government Code

22 § 815.6 “[b]y all Plaintiffs Against Defendants County, SW Lara, SW

Torres, SW Atkins, SWS Harding, SW Klassen, SWS Jones, and DOES 8-

23 20”;

24

4. A negligence claim “[b]y all Plaintiffs Against all Defendants”; and

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5. A negligent supervision claim “[b]y all Plaintiffs Against all Defendants.”

26

27

1 None of these Defendants have yet appeared, and it is not clear from the docket whether Plaintiffs have

28 served any of them.

2 See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

1 (Id. at 10-19).

2 As for relief, Plaintiffs seek monetary damages, “[a]ny appropriate statutory

3 damages,” costs, and attorney fees. (Id. at 22).

4 B. Overview of Parties’ Briefs

5 The County filed its motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)

6 on March 21, 2023. (ECF No. 31). It argues that the first and second causes of action fail to

7 state a claim upon which relief may be granted because the first amended complaint “does not

8 allege whether the recently named individual defendant social workers are named in either their

9 official or individual capacities,” and thus “Plaintiff[s] ha[ve] failed to provide requisite notice

10 of the basis of the claim[s] against them, and against the County.” (ECF No. 31, p. 4). As to the

11 second cause of action, the Monell claim, the County also argues that Plaintiffs fail to state a

12 claim because they offer only conclusory allegations that the County had policies, customs, or

13 practices that led to the alleged civil rights violations. Moreover, the County alleges that

14 Plaintiffs’ allegations regarding its failure to train employees are insufficient to show that it

15 acted with deliberate indifference. Lastly, the County argues that, if the Court agrees to dismiss

16 the § 1983 claims, it should decline supplemental jurisdiction over Plaintiffs’ state law claims.

17 Plaintiffs filed an opposition on April 4, 2023. They concede that they failed to

18 explicitly state whether the individual Defendants are sued in their personal or official

19 capacities. (ECF No. 35). However, they argue this is not dispositive because none of the

20 individual Defendants have moved to dismiss a claim against them; their complaint otherwise

21 makes it clear that the individual Defendants are sued in their personal capacities; and caselaw

22 establishes a presumption in such situations that a defendant is being sued in his or her personal

23 capacity. As for the Monell claim, Plaintiffs argue that they have cited five prior instances of

24 similar failures by the County, which are sufficient to support their allegations that the County

25 had policies, customs, or practices that led to the civil rights violations. Moreover, they assert

26 that they have provided sufficient allegations to show that the County was deliberately

27 indifferent regarding its alleged failure to train its employees. Lastly, Plaintiffs argue that, even

28 if the Court were to dismiss some of the federal claims against the County, it should not decline

1 supplemental jurisdiction over the remaining state law claims against the County because

2 federal claims would remain as to the individual Defendants, which form part of the same case

3 or controversy as the state claims against the County.

4 The County filed a reply on April 14, 2023, reiterating its arguments from the motion to

5 dismiss. (ECF No. 36).

6 With briefing being complete, the Court concludes that this matter would not benefit

7 from oral argument and is thus ripe. See Local Rule 230(g) (providing that a Court may address

8 a motion on the briefs without oral argument).

9 II. STANDARDS FOR MOTION TO DISMISS

10 Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the

11 pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is

12 and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

13 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Furthermore, Rule 8(a) establishes a

14 pleading standard without regard to whether a claim will succeed on the merits. Indeed it may

15 appear on the face of the pleadings that a recovery is very remote and unlikely but that is not

16 the test.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002) (internal citation and

17 quotation marks omitted).

18 “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro v. Block, 250

19 F.3d 729, 732 (9th Cir. 2001). In considering a motion to dismiss, the Court must accept all

20 allegations of material fact in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94

21 (2007). “[T]he court must construe the complaint in the light most favorable to the plaintiff,

22 taking all [of the plaintiff’s] allegations as true and drawing all reasonable inferences from the

23 complaint in [the plaintiff’s] favor.” Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005).

24 However, “conclusory allegations of law and unwarranted inferences are insufficient to defeat a

25 motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).

26 Further, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

27 conclusory statements, do not suffice.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To

28 survive a motion to dismiss, a claim must be facially plausible, i.e., the complaint must “plead[]

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

2 for the misconduct alleged.” Id. This standard is not akin to a “probability requirement,” but

3 requires “more than a sheer possibility that a defendant has acted unlawfully.” Id.

4 III. ANALYSIS OF CLAIMS

5 A. Personal Versus Official Capacity

6 The County argues that “[a]ll of the § 1983 counts have [a] common defect[] that

7 render[s] the Complaint legally insufficient,” specifically, “[t]he Complaint does not allege

8 whether the recently named individual defendant social workers are named in either their

9 official or individual capacities.” (ECF No. 31, p. 4). Noting that official capacity suits are

10 treated as one against the entity, and that personal capacity suits seek to hold the individual

11 government official liable, the County argues that, “[b]y failing to distinguish which claims and

12 actions are alleged against them in official versus personal capacities, Plaintiff has failed to

13 state a plausible claim upon which relief may be granted” by not “provid[ing] requisite notice

14 of the basis of the claim against them, and against the County.” (Id. at 5); see Hafer v. Melo,

15 502 U.S. 21, 25 (1991) (noting difference between claims against individual in his or her

16 official capacity (a suit treated as one against a governmental entity) and individual in his or her

17 personal capacity (a suit seeking to impose personal liability)); Pena v. Gardner, 976 F.2d 469,

18 472 (9th Cir. 1992), as amended (Oct. 9, 1992) (“The eleventh amendment bars [] a federal

19 court action for damages (or other retroactive relief) brought by . . . a citizen against a state

20 official acting in his official capacity” but does not “bar [such] claims against the state officials

21 in their personal capacities.”).

22 Plaintiffs concede that the first amended complaint does not specify whether the

23 individual Defendants are sued in their personal or official capacities. (ECF No. 35). However,

24 they argue that this is not fatal to their claims because none of the individual Defendants have

25 moved to dismiss a claim against them; their complaint otherwise makes it clear that the

26 individual Defendants are sued in their personal capacities; and caselaw establishes a

27 presumption in such situations that a defendant is being sued in his or her personal capacity.

28 As an initial matter, each claim in the first amended complaint specifies which Plaintiffs

1 and Defendants are at issue. (See ECF No. 25, p. 10-11, noting that the first cause of action

2 under § 1983 claim, is “[b]y Plaintiffs R.H. and M.H. against Defendants SW Lara, SW Torres,

3 SW Atkins, SWS Harding, SW Klassen, SWS Jones, and DOES 8-20” and the second cause of

4 action under § 1983, the Monell claim, is “[b]y Plaintiffs R.H. and M.H. Against Defendant

5 County”). Thus, the first amended complaint indicates—and Plaintiffs confirm in their

6 opposition—that the first cause of action is against only the individual Defendants in their

7 personal capacities and the second cause of action is the only § 1983 claim asserted against the

8 County. (See ECF No. 35, p. 10, “The First Claim was clearly brought against the Individual

9 Defendants only (FAC, ¶¶ 32-38) and seeks damages against the Individual Defendants only.”).

10 But to the extent that Plaintiffs’ silence in the first amended complaint leaves doubt as

11 to whether the first claim against the individual Defendants extends to their official capacities

12 (and thus the County), caselaw provides the answer.

13 Where state officials are named in a complaint which seeks damages under 42

U.S.C. § 1983, it is presumed that the officials are being sued in their individual

14 capacities. Price v. Akaka, 928 F.2d 824, 828 (9th Cir.1990), cert. denied, 502

U.S. 967, 112 S.Ct. 436, 116 L.Ed.2d 455 (1991). Any other construction would

15

be illogical where the complaint is silent as to capacity, since a claim for

16 damages against state officials in their official capacities is plainly barred. See

id.

17

Shoshone-Bannock Tribes v. Fish & Game Comm’n, Idaho, 42 F.3d 1278, 1284 (9th Cir.

18

1994).

19

Here, Plaintiffs seek damages under § 1983, and thus it is presumed that the individuals

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listed in the first cause of action are sued in their personal capacities.

21

Having established that the first cause of action proceeds against only the individual

22

Defendants, the Court notes that none of these Defendants have appeared, let alone moved to

23

dismiss any claim against them. Moreover, the County cannot move to dismiss a cause of

24

action directed solely to the individual Defendants. See Woods v. Cnty. of Los Angeles, No.

25

2:20-CV-04474-AB (MAA), 2022 WL 980649, at *3-5 (C.D. Cal. Mar. 10, 2022), report and

26

recommendation adopted, No. 2:20-CV-04474-AB (MAA), 2022 WL 971951 (C.D. Cal. Mar.

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30, 2022) (noting that, generally, a party can only assert its own legal rights and concluding

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1 that the County of Los Angeles lacked standing to bring a motion on behalf of another

2 defendant); cf. Parlante v. Cazares, No. 2:11-CV-2696 MCE GGH, 2012 WL 2571207, at *5

3 n.4 (E.D. Cal. July 2, 2012), report and recommendation adopted, 2012 WL 13042508 (E.D.

4 Cal. Aug. 6, 2012) (noting that non-party lacked standing to participate in case).

5 For the reasons given, the Court recommends that the County’s motion to dismiss

6 Plaintiff’s first or second causes of actions against the individual defendants—based on

7 Plaintiffs’ failure to specify whether their claims are asserted in a personal or official

8 capacity—be denied.

9 B. Monell Liability

10 1. Introduction

11 The County next argues that Plaintiffs fail to state a Monell claim because Plaintiffs

12 have not adequately established a pattern of misconduct nor provided sufficient factual support

13 to show that the County acted with deliberate indifference regarding its alleged failure to train

14 its employees. (ECF No. 31, p. 6).

15 2. Standards for Monell claim

16 Before addressing the parties’ arguments on these issues, the Court reviews the

17 applicable standards for Monell claims and the relevant allegations in the complaint.

18 Section § 1983 provides as follows:

19 Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes

20 to be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

21

secured by the Constitution and laws, shall be liable to the party injured in an

22 action at law, suit in equity, or other proper proceeding for redress . . . .

23 42 U.S.C. § 1983.

24 In Monell, the Supreme Court concluded that § 1983’s use of the word “person”

25 extended to municipalities and other local governments. 436 U.S. at 690 (“Our analysis of the

26 legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did

27 intend municipalities and other local government units to be included among those persons to

28 whom § 1983 applies.”). However, a local government cannot be held liable for a constitutional

1 violation “solely because it employs a tortfeasor.” Id. at 691.

2 Rather, a local government “may be held liable under § 1983 ‘when execution of a

3 government’s policy or custom, whether made by its lawmakers or by those whose edicts or

4 acts may fairly be said to represent official policy, inflicts the injury.’” Burke v. County of

5 Alameda, 586 F.3d 725, 734 (9th Cir. 2009) (quoting Monell, 436 U.S. at 694). “Official

6 [government] policy includes the decisions of a government’s lawmakers, the acts of its

7 policymaking officials, and practices so persistent and widespread as to practically have the

8 force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011); see Gillette v. Delmore, 979 F.2d

9 1342, 1346 (9th Cir. 1992) (noting that a Monell claim may be based on a formal governmental

10 policy or a longstanding practice or custom constituting the standard operating procedure of the

11 relevant local government).

12 To establish Monell liability, a plaintiff “must show that (1) she was deprived of a

13 constitutional right; (2) the County had a policy; (3) the policy amounted to a deliberate

14 indifference to her constitutional right; and (4) the policy was the moving force behind the

15 constitutional violation.” Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d

16 1101, 1110-11 (9th Cir. 2001) (internal quotation marks and citation omitted).

17 3. Pertinent Monell allegations from the first amended complaint

18 In support of their Monell claim, Plaintiffs’ first amended complaint alleges that the

19 County “maintained the following unconstitutional policies, practices, or customs:”

20 1. Assigning foster children to foster parents without adequate background

checks, failing to provide adequate supervision of foster children, and failing

21 to investigate reports of potential neglect or abuse;

22

2. Providing inadequate training regarding placement, background checks,

23 supervision of foster children, or investigating reports of potential neglect or

abuse; and

24

25 3. Inadequately supervising and disciplining employees whom the County

knew had violated foster children’s constitutional rights as set forth above.

26

(ECF No. 25, p. 12).

27

And in support of “the existence of the County’s unconstitutional customs, practices,

28

and policies,” Plaintiffs offer the five following cases:

1. L.O. v. County of Fresno, Fresno Sup. Ct. Case No. 21CECG00289 – the

1

plaintiff was allegedly placed in a foster home with a foster parent with a

2 known history of criminal sexual misconduct, and defendants allegedly

failed to conduct an adequate background check, to investigate potential

3 abuse, to supervise the plaintiff, and to adequately train employees, which

resulted in the abuse of the plaintiff from November 2000 to April 2001;

4

5 2. Y.V. v. County of Fresno, Fresno Sup. Ct. Case No. 22CECG02413 – the

plaintiff was allegedly placed in foster care in 1999, and from 2000 to 2004

6 was abused by the foster mother’s adult nephew who resided in the home;

the plaintiff allegedly reported the abuse to her social worker, an agent or

7

employee of the County a few months after the abuse began, in 2001, but

8 there was no investigation, and the abuse continued;

9 3. Briseno v. County of Fresno, Fresno Sup. Ct. Case No. 06CECG00975 – the

10 plaintiff minor child was allegedly placed in a foster home with a foster

family that included a member that had a propensity for sexual misconduct,

11 which resulted in two years of abuse of the plaintiff between 2003 and 2005;

12 4. A.D. v. County of Fresno, Fresno Sup. Ct. Case No. 21CECG00434 – the

13 plaintiff was allegedly placed in foster care from 2006 to 2009 with foster

parents after prior foster children reported sexual abuse at the hands of the

14 foster father; in or about 2007, the plaintiff’s biological mother allegedly

reported physical signs of abuse on the plaintiff’s body to the County’s

15

social services department, but they failed to report or investigate and

16 otherwise failed to take measures to prevent further abuse; later, the plaintiff

allegedly informed her biological grandmother of the abuse, which was

17 reported to the County’s social services department, but they again failed to

report or investigate;

18

19 5. A.A. v. County of Fresno, Fresno Sup. Ct. Case No. 21CECG00432 – the

plaintiff was allegedly placed from 2005 to 2016 with a foster parent who

20 repeatedly sexually abused the plaintiff; multiple individuals allegedly

reported suspected abuse to the County’s social services department, but

21

they failed to investigate and otherwise failed to take measures to prevent

22 further abuse.

23 (ECF No. 25, pp. 13-14).

24 4. Parties’ arguments

25 The County first argues that Plaintiffs fail to state a Monell claim because the first

26 amended complaint “alleges the[] policies and practices in conclusory form.” (ECF No. 31, p.

27 6). While the County recognizes Plaintiffs’ citation to the five cases above in support of

28 unconstitutional policies, practices, or customs, the County argues that four of the cases

1 “involved alleged acts or omissions that occurred in the years 1999-2007 and so could not be

2 regarded as reflecting or showing a longstanding custom or practice in relevant years here

3 (2014-2016).” (Id. at 9). Moreover, “[w]hile the fifth example is an alleged abuse in 2015-

4 2016, one case of mishandling of an abuse claim, even if the allegations were later proven, is

5 not sufficient to show that neglect is so ‘widespread’ and ‘well-settled’ that it had become the

6 ‘standard operating procedure’ for the County in handling claims and in reacting to similar

7 situations.” (Id.) (citation omitted).

8 Plaintiffs acknowledge that “bare conclusory allegations of the existence of a pattern or

9 practice” are insufficient to state a Monell claim. (ECF No. 35, p. 6). However, citing the five

10 cases from their first amended complaint, they argue that they have sufficiently supported their

11 allegations “by identifying multiple specific prior instances of the same or similar constitutional

12 violations and injury.” (Id.). Moreover, they argue that, contrary to the County’s assertion, the

13 four cases from 1999 to 2007 are highly relevant, “since determining whether Plaintiffs have

14 sufficiently alleged a pre-existing custom or practice of the County of sufficient duration is the

15 very point” and “the age of the cases cited to in the FAC only bolsters Plaintiffs’ contention

16 that the County has had a longstanding pattern and practice of unconstitutional behavior, based

17 on the repetition of the same misconduct for over 17 years.” (Id. at 7).

18 a. Discussion

19 Because Plaintiff has not alleged that a formal policy—such as a written County

20 policy—is the moving force behind the constitutional violations, the Court must consider

21 whether there is some informal policy, custom, or practice that is “so persistent and widespread

22 as to practically have the force of law.” Connick, 563 U.S. at 61. Accordingly, the Court looks

23 to whether the five cases cited provide sufficient factual support for the alleged unconstitutional

24 policies, customs, or practices.

25 In resolving this issue, there is no concrete test applicable to all cases and courts look to

26 various considerations. Cf. Iqbal, 556 U.S at 679 (noting that determining whether a complaint

27 states a plausible claim for relief is “a context-specific task that requires the reviewing court to

28 draw on its judicial experience and common sense”). However, the Ninth Circuit has described

1 the informal policies, customs, or practices necessary to sustain a Monell claim as being

2 “longstanding, persistent and widespread,” and “founded upon practices of sufficient duration,

3 frequency and consistency that the conduct has become a traditional method of carrying out

4 policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (citation omitted). And in

5 evaluating the past practices at issue here, the Court finds persuasive the following

6 considerations that other courts have looked to: the number of pasts instances involved, their

7 factual similarity to the current allegations, and their timing. See Seever v. City of Modesto, No.

8 1:21-CV-01373-JLT-EPG, 2022 WL 17418355, at *3 (E.D. Cal. Dec. 5, 2022) (“To evaluate

9 whether a sufficient pattern of unconstitutional conduct exists, courts typically consider the

10 number of incidents, the factual similarity of those incidents, [and] their timing . . . .”); Calhoon

11 v. City of S. Lake Tahoe, No. 2:19-CV-02165-KJM-JDP, 2020 WL 5982087, at *5 (E.D. Cal.

12 Oct. 8, 2020) (“[C]ourts generally only are willing to infer an unconstitutional policy or custom

13 when the plaintiff provides multiple incidents of prior, similar conduct, as opposed to the one

14 previous incident plaintiff alleges here.”).

15 i. Past Instances

16 As for the number of past instances, Plaintiffs cite five cases in support of their Monell

17 claim. (ECF No. 35, p. 7). Among other things, Plaintiffs assert for each of the five cases that

18 the County failed to investigate potential child abuse, one of the key allegations here. While the

19 County disputes whether all five cases are relevant based on their timing, an issue the Court

20 addresses below, the County offers no substantive argument that five prior cases would not be

21 sufficient to establish a practice.

22 While there is no precise number, the Court concludes that the five cases here are

23 sufficient to support a pattern so as to establish an unconstitutional policy, practice, or custom.

24 See Menotti v. City of Seattle, 409 F.3d 1113, 1148 (9th Cir. 2005) (concluding that five

25 instances on same day regarding suppression of speech was sufficient to create genuine issue of

26 material fact as to existence of unconstitutional policy); Est. of Mendez v. City of Ceres, 390 F.

27 Supp. 3d 1189, 1209 (E.D. Cal. 2019) (“[T]he line between adequate and inadequate evidence

28 of repeated constitutional violations does not involve a specific quantum or number of

1 allegations.”).

2 ii. Factual similarity

3 Turning to the factual similarity of the five cases, the County argues that Plaintiffs do

4 not provide “any allegations of outcomes or final judgments against the County or a County

5 employee for such actions.” (ECF No. 31, p. 8). While true, this is not dispositive, as courts

6 have considered prior instances of misconduct absent court findings as to whether they

7 occurred. Seever, 2022 WL 17418355, at *6 (“Courts of this district regularly allow plaintiffs

8 to rely on similar prior incidents that resulted in substantial settlements or in ongoing litigation

9 to evidence a practice or custom claim.”); J.M. by & Through Rodriguez, No. 1:18-CV-01034-

10 LJO-SAB, 2018 WL 5879725, at *6 (E.D. Cal. Nov. 7, 2018) (“The fact that the alleged

11 incidents do not include findings by a competent court that deputies used unconstitutional

12 levels of force is not dispositive, contrary to Defendant’s suggestion.”).

13 Moving to the facts at issue, the County states that the “short blurbs given” “only

14 summarize[] the purported allegations in those cases.” (ECF No. 31, pp. 8-9). True, the

15 descriptions of these cases are brief. However, Plaintiffs advise the County of the time frame of

16 the alleged misconduct (e.g., 2005 to 2016), describe what occurred (e.g., a minor was abused

17 by a family member that had a propensity for sexual misconduct), and identify relevant

18 unconstitutional policies, practices, and customs at issue (e.g., the County’s failure to

19 investigate potential abuse). The Court concludes that such facts are sufficient to give the

20 County “fair notice” to be able “to defend itself effectively.” AE ex rel. Hernandez v. Cnty. of

21 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.

22 2011)). Moreover, the facts offered are sufficiently similar to those alleged here, e.g., the

23 County failed to investigate reports of child abuse.

24 iii. Timing

25 Turning to the timing of the other cases, the County points out that four of the cases

26 L.O., Y.V., Briseno, and A.D.—involve allegations spanning 1999 to 2007, thus creating a gap

27 in time between the allegations beginning here in 2014. (ECF No. 31, pp. 8-9). While the

28 County acknowledges that the remaining case—A.A.—occurred during the relevant time

1 period, it argues that “one case of mishandling of an abuse claim, even if the allegations were

2 later proven, is not sufficient to show that neglect is so ‘widespread’ and ‘well-settled’ that it

3 had become the ‘standard operating procedure’ for the County in handling claims and in

4 reacting to similar situations.” (Id. at 9) (citation omitted).

5 Plaintiffs argue that “[t]his is a fundamentally incorrect approach” because

6 “determining whether Plaintiffs have sufficiently alleged a pre-existing custom or practice of

7 the County of sufficient duration is the very point” and “the age of the cases cited to in the

8 FAC only bolsters Plaintiffs’ contention that the County has had a longstanding pattern and

9 practice of unconstitutional behavior, based on the repetition of the same misconduct for over

10 17 years.” (ECF No. 35, p. 7).

11 The Court concludes that Plaintiff has the better argument. Importantly, the Court does

12 not find the gap from 2007 to 2014 among four of the cases to suggest the absence of a pattern.

13 Rather, taking the cases collectively, they sufficiently allege, at this stage in the case, a series of

14 alleged misconduct in the years leading up to the underlying incidents in this case, which is

15 then punctuated by another event closer in time. Accordingly, this is not case where the alleged

16 misconduct can fairly be characterized as isolated or sporadic incidents.

17 iv. Deliberate Indifference regarding Insufficient Training

18 Finally, the County argues that “[e]ven if it is established that a particular employee was

19 inadequately trained (not present here), this does not establish the entity’s deliberate

20 indifference to constitutional rights, because the employee’s shortcomings may have resulted

21 from factors other than a faulty training program.” (ECF No. 31, p. 10) (internal quotation

22 marks and citation omitted). The Court disagrees and recommends finding that Plaintiffs’

23 allegation of the County maintaining an unconstitutional policy, practice, or custom of

24 “providing inadequate training regarding placement, background checks, supervision of foster

25 children, or investigating reports of potential neglect or abuse” is sufficient to satisfy the

26 requirement that “the policy[,] [practice, or custom] amounted to a deliberate indifference to

27 her constitutional right.” Mabe, 237 F.3d at 1111. In other words, to the extent Plaintiff has

28 adequately alleged such a policy, practice, or custom as discussed above in conjunction with

1 Plaintiff’s presentation of the five cases establishing a pattern of misconduct by the County,

2 such also sufficiently alleges deliberate indifference by the County related to such a policy. See

3 Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 407 (1997) (“If a program

4 does not prevent constitutional violations, municipal decisionmakers may eventually be put on

5 notice that a new program is called for. Their continued adherence to an approach that they

6 know or should know has failed to prevent tortious conduct by employees may establish the

7 conscious disregard for the consequences of their action—the ‘deliberate indifference’—

8 necessary to trigger municipal liability”).

9 b. Conclusion

10 For the reasons given, the Court recommends that the County’s motion to dismiss

11 Plaintiffs’ Monell claim be denied.

12 IV. ORDER, CONCLUSION, AND RECOMMENDATIONS

13 Accordingly, IT IS ORDERED that the Clerk of Court is directed to add the following

14 Defendants to the docket: Social Worker Christina Lara, Social Worker Torres, Social Worker

15 Lakeisha Atkins, Social Worker Supervisor Marshunda Harding, Social Worker Sergio

16 Klassen, Social Worker Supervisor Annette Jones.

17 And for the reasons given above, IT IS RECOMMENDED that Defendant County of

18 Fresno’s motion to dismiss (ECF No. 31) be denied.

19 These Findings and Recommendations will be submitted to the United States District

20 Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within

21 fourteen (14) days after being served with a copy of these Findings and Recommendations, any

22 party may file written objections with the Court and serve a copy on all parties. Such a

23 document should be captioned “Objections to Magistrate Judge’s Findings and

24 Recommendations.” Any reply to the objections shall be served and filed within fourteen (14)

25 days after service of the objections.

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1 The parties are advised that failure to file objections within the specified time may

2 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

3 || 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

4

5 IT IS SO ORDERED.

6 || Dated: _May 1, 2023 [see hey

7 UNITED STATES MAGISTRATE JUDGE

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