Kueck v. Contra Costa County

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 A.M.K., et al., Case No. 18-cv-06004-DMR

8 Plaintiffs,

ORDER ON DEFENDANTS' MOTION

9 v. TO DISMISS SECOND AMENDED

COMPLAINT

10 CONTRA COSTA COUNTY, et al.,

Re: Dkt. No. 56

11 Defendants.

12 Defendants Contra Costa County (“the County”) and Charm Wright move pursuant to

13 Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss Plaintiffs AMK and LTK’s

14 second amended complaint (“SAC”). [Docket No. 56.] The court held a hearing on June 13,

15 2019, and subsequently ordered the parties to submit supplemental briefing, which they timely

16 filed. [Docket Nos. 70-72.] For the following reasons, the motion is granted in part and denied in

17 part. Plaintiffs are granted leave to file a third and final amended complaint by no later than 14

18 days from the date of this order.

19 I. BACKGROUND

20 A. Allegations in the SAC

21 This action arises out of the removal in 2014 of Plaintiffs AMK and LTK, who are children

22 (together, the “children”) from the custody of their parents, Fred Kueck and Sharon Kueck (for

23 clarity, the court refers to them as “Fred” and “Sharon,” and together as the “Kuecks”). Plaintiffs

24 allege that Contra Costa County Children and Family Services (“CFS”), CFS social worker

25 Wright, and 50 Doe Defendants violated their constitutional rights in connection with the juvenile

26 dependency proceedings. [Docket No. 55 (SAC).] Plaintiffs make the following allegations in the

27

1 SAC, all of which are taken as true for purposes of this motion.1

2 AMK has “obvious developmental issues” and “a long history of physical development

3 issues and mental disabilities since kindergarten.” SAC ¶¶ 32, 34. According to Plaintiffs,

4 AMK’s school and medical records documented “a history of physical disability such as a lack of

5 coordination, clumsiness, issues with speech and language . . . [and] lack of bladder and bowel

6 control[.]” Id. at ¶ 33. She is “clumsy and uncoordinated” and bruises easily and at some point

7 was “diagnosed with a possibility of having the Elhers-Danlos Syndrome (EDS),” which is “a

8 group of inherited disorders that mostly affect the skin, joints, and blood vessels.” Id. at ¶ 36.

9 AMK’s school and medical records also included a history of mental disabilities, including

10 “disruptive and aggressive behaviors, non-compliance and non-cooperation, rough playing,

11 hurting other children for no reasons, throwing herself hard on the ground, inappropriate

12 disrobing, . . . emotional lability, outbursts and inexplicable inconsolable crying, [and] use of

13 profanity[.]” Id. at ¶ 38. In January 2014, AMK began receiving an individual education plan for

14 her special needs. Id. at ¶ 40.

15 In January 2014 and February 2014, Wright interviewed the Kuecks, apparently due to

16 visible bruising on AMK. They informed Wright that AMK had a visible bruise “because LTK

17 threw ice at her at a church event, and that AMK “was clumsy, played rough and bruised easily

18 from a possible genetic disorder.” Id. at ¶¶ 42, 43. The Kuecks also informed Wright several

19 times that AMK had “developmental delays and issues.” Id. at ¶ 41. Wright subsequently

20 interviewed the children at their school without their parents’ knowledge or consent, and LTK told

21 Wright that he had thrown ice at AMK, causing a bruise. Id. at ¶¶ 44, 45.

22 On June 4, 2014, Wright reported that she received a report from AMK’s school that

23 AMK had complained that “her legs hurt from the bruises she got from being hit by Fred with a

24 belt.” Id. at ¶ 47. Police Officer Pliler, visited the Kuecks’ home for a health and safety check,

25 where the children and their older brother told him “that they had never seen a belt used to punish

26

1 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all

27

of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

1 AMK.” Officer Pliler later reported that AMK has special needs, that he suspected that all of the

2 children in the Kuecks’ home have special needs, and that “[h]e could not obtain any evidence of

3 bruises.” Id. at ¶¶ 48-50.

4 During a follow-up visit to the Kuecks’ home “to investigate,” “AMK wore clothes that

5 allowed Wright to observe[ ] that there [were] no bruises on AMK’s legs,” and Sharon informed

6 Wright that AMK has a genetic disorder that causes her to bruise easily. Id. at ¶¶ 51-53. Wright

7 observed a “bump” on Sharon’s head that Sharon told her had been caused by a fall during her

8 childhood. Wright later “submitted to the dependency court that she had never seen the bump

9 before, implying that the bump was caused by Fred hitting [Sharon].” Id. at ¶¶ 54-55.

10 On June 5, 2014, Wright went to AMK’s school to interview her and school staff “because

11 of a report of abuse.” Id. at ¶ 58. “[S]ome school staff said they had observed that AMK played

12 rough and threw herself onto the ground.” Id.

13 On June 6, 2014, Wright reported that she received a report that “Fred slept in AMK’s bed,

14 [and] pushed her out of the bed resulting [in] a mark on her knee.” Id. at ¶ 59. Wright received

15 another report that “AMK played with two dolls, one male and one female, that AMK made the

16 dolls kiss [each]other,” and that AMK “said that Fred kissed her,” but “would not tell what kind of

17 kissing.” Id. at ¶ 60.

18 Wright then requested permission to “seize the children from their home” with the

19 assistance of sheriff deputies. The sheriff deputies entered the Kuecks’ home “by force, arrested

20 Fred with excessive force causing injuries in view of the children,” and “helped Wright [take] the

21 children from their home.” Id. at ¶¶ 61, 63. When Fred asked the officers about a warrant, “the

22 officers told Fred that they did not need any warrant because the social workers told them that the

23 children were in immediate danger,” and that “they would do whatever the social worker told them

24 to do.” Id. at ¶ 62. “LTK was very upset at being taken,” and told Wright “that neither he nor

25 AMK were hit.” Id. at ¶ 64. The children’s older brother “called Wright and told her that AMK

26 has a medical conditions [sic] that caused her to fall down a lot, to bruise easily and to tell strange

27 stories.” Id. at ¶ 65. However, “Wright only reported that the brother told her that Fred hit

1 made no “incriminating statement” against Fred. Id. at ¶ 69.

2 In the dependency petitions, Wright alleged that Fred physically abused AMK, including

3 with a belt causing bruises; that Fred displayed a pattern of “irrational, abusive and angry behavior

4 toward AMK”; and that Fred slept in AMK’s bed and kissed her inappropriately. Id. at ¶¶ 27, 28.

5 Wright further alleged that LTK was in danger because Fred abused AMK and that Sharon failed

6 to protect AMK from physical harm. Id. at ¶¶ 29, 30. Based on these allegations, the children

7 were ordered dependents of the court and the parents were denied contact with the children. Id. at

8 ¶¶ 31, 67.

9 CFS placed the children in foster homes. AMK was placed in the home of foster parent

10 Michael Mallett. Id. at ¶¶ 70, 72. Plaintiffs allege upon information and belief that at some point,

11 a former foster child reported to law enforcement that Mallett had molested him or her. They

12 further allege that “Mallett committed suicide by cop in 2016 after the police came to arrest him.”

13 Id. at ¶¶ 73, 74. Plaintiffs do not allege that Mallett abused or molested AMK.

14 Plaintiffs allege that “state law requires the dependency court to hold a jurisdiction hearing

15 to determine the validity of the allegations in the detention report,” and that the court continued

16 this hearing several times. Id. at ¶¶ 76, 77. On July 29, 2014, the dependency court returned the

17 children to Sharon’s custody with an order that Fred move out of the home. Id. at ¶ 78. Plaintiffs

18 allege that AMK came home “with numerous bruises and wearing training pants,” and that LTK

19 came home with “a cut lip” and was “traumatized” by the experience of being separated from his

20 family. Id. at ¶¶ 79, 81. On August 16, 2014, the court permitted Fred to return home and

21 dismissed the case without prejudice. Id. at ¶ 82. As a result of the child abuse allegations, Fred

22 lost his job with the school district. Id. at ¶ 71.

23 At some point in 2016, an officer with the County Sheriff and a social worker visited the

24 Kuecks’ home “to inform the parents about Mallett.” Id. at ¶ 83. Additionally, in 2016, AMK

25 was diagnosed with a “congenital brain malformation,” which a doctor concluded “is the cause for

26 many of her disabilities and abnormal behaviors[.]” Id. at ¶ 84.

27 Plaintiffs allege that the County and Wright knew or should have known of AMK’s

1 experts. They further allege that the County did not adequately train Wright to distinguish

2 between child abuse and “actual mental and physical conditions that have nothing to do with child

3 abuse or molestation.” Id. at ¶¶ 85, 86. According to Plaintiffs, “Wright did not consider that

4 AMK’s mental disabilities caused her to be easily susceptible [to] suggestions and coaching from

5 school staff or other third parties[.]” Id. at ¶ 87.

6 The SAC alleges seven claims for relief: 1) a 42 U.S.C. § 1983 claim for violation of the

7 Fourth and Fourteenth Amendments against Wright based on Wright’s warrantless seizure of the

8 children; 2) a section 1983 claim for violation of the fourth and Fourteenth Amendments against

9 the sheriff deputies based on their warrantless seizure of the children; 3) a section 1983 claim for

10 violation of the Fourteenth Amendment against Wright and CFS Doe Defendants based on their

11 failure to investigate AMK’s condition prior to seizing her and her brother, presentation of false

12 evidence to support the seizure, and failure to provide the dependency court with exculpatory

13 evidence; 4) a section 1983 claim for violation of the Fourteenth Amendment by AMK against

14 CFS Doe Defendants for failing to properly screen Mallett as a foster parent and placing AMK in

15 his home; 5) a section 1983 for violation of the Fourteenth Amendment by LTK against CFS Doe

16 Defendants for the injury he suffered in foster care; 6) a section 1983 claim against the County

17 under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), based on

18 its policies, practices, training, or deliberate indifference to constitutional violations by CFS’s

19 employees; and 7) a Monell claim against the County based on its policies, practices, training, or

20 deliberate indifference to warrantless searches and seizures of children by sheriff deputies without

21 questioning reports by CFS social workers.

22 B. Procedural History

23 The Kuecks filed their complaint on September 28, 2018. The County moved pursuant to

24 Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the complaint on numerous

25 grounds, including that the claims are barred by the Rooker-Feldman doctrine as well as the failure

26 to comply with the California Tort Clams Act, and are untimely under the applicable statute of

27 limitations. The county also argued that the complaint failed to state a claim. [Docket No. 21.]

1 amended complaint addressing the issues raised by the County. [Docket No. 26.] The court

2 construed the opposition as a request to file an amended complaint and granted the request,

3 ordering the Kuecks to file an amended complaint by January 11, 2019 and warning them to

4 “plead their best case in the amended complaint in light of the deficiencies the County identified in

5 its motion.” [Docket No. 33.] The Kuecks, along with AMK and LTK, timely filed the FAC, but

6 did not simultaneously request leave to add the children as plaintiffs.

7 Defendants moved to dismiss the FAC in its entirety. [Docket No. 41.] The court held a

8 hearing on March 28, 2019, at which the court granted the motion to dismiss in part and granted

9 leave to join the minor children as plaintiffs. At the hearing, Plaintiffs conceded that the section

10 1983 claims brought on behalf of Fred Kueck and Sharon Kueck were time-barred and the court

11 dismissed those claims. Plaintiffs also withdrew their declaratory and injunctive relief claims.

12 [Docket No. 54 (Minute Order).] The court ordered Plaintiffs to file any second amended

13 complaint on behalf of the children by no later than April 11, 2019, and ordered that any such

14 complaint be limited to the following claims described by counsel at the hearing: Section 1983

15 claims based on the seizure of the children, continued detention of the children, and alleged failure

16 to protect the children while they were detained, and Monell claims based on the same alleged

17 constitutional violations. Id.

18 AMK and LTK timely filed the SAC. On May 1, 2019, the court appointed David Kueck,

19 the children’s adult brother, as their guardian ad litem. [Docket No. 60.] Defendants now move to

20 dismiss. At the June 13, 2019 hearing on the motion, Plaintiffs’ counsel improperly cited a case

21 for the first time in support of his argument that the Rooker-Feldman doctrine does not bar

22 Plaintiffs’ first three claims for relief. Following the hearing, the court ordered the parties to

23 submit briefing regarding the case, Anderson-Francois v. County of Sonoma, No. C 08-00724

24 WHA, 2009 WL 1458240 (N.D. Cal. May 22, 2009), aff'd in part, appeal dismissed in part and

25 remanded, 415 F. App'x 6 (9th Cir. 2011), which the parties timely filed. [Docket Nos. 70, 71

26 (Defs.’ Supp. Br.), 72 (Pls.’ Supp. Br.).]2

27

II. LEGAL STANDARDS

1

The County moves to dismiss the SAC pursuant to Federal Rules of Civil Procedure

2

12(b)(1) and 12(b)(6). A motion to dismiss filed pursuant to Rule 12(b)(1) is a challenge to the

3

court’s subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). A court will dismiss a party’s

4

claim for lack of subject matter jurisdiction “only when the claim is so insubstantial, implausible,

5

foreclosed by prior decisions of th[e Supreme] Court, or otherwise completely devoid of merit as

6

not to involve a federal controversy.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89

7

(1998) (citation and quotation marks omitted); see Fed. R. Civ. P. 12(b)(1). The challenging party

8

may make a facial or factual attack challenging subject matter jurisdiction. White v. Lee, 227 F.3d

9

1214, 1242 (9th Cir. 2000). A facial challenge asserts that “the allegations contained in a

10

complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v.

11

Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In contrast, a factual attack disputes “the truth of the

12

allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. at 1039. A

13

factual challenge permits the court to look beyond the complaint, without “presum[ing] the

14

truthfulness of the plaintiff’s allegations.” White, 227 F.3d at 1242 (citation omitted). Even the

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presence of disputed material facts “will not preclude the trial court from evaluating for itself the

16

merits of jurisdictional claims.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)

17

(citations omitted).

18

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in

19

the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

20

When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all

21

of the factual allegations contained in the complaint,” Erickson, 551 U.S. at 94 (2007) (citation

22

omitted), and may dismiss a claim “only where there is no cognizable legal theory” or there is an

23

absence of “sufficient factual matter to state a facially plausible claim to relief.” Shroyer v. New

24

Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556

25

26

[Docket No. 73.] Defendants opposed the motion. [Docket No. 74.] Plaintiffs offer no

27

explanation about when they learned of the evidence discussed in their brief or why they could not

1 U.S. 662, 677-78 (2009); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)) (quotation marks

2 omitted). A claim has facial plausibility when a plaintiff “pleads factual content that allows the

3 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

4 Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate

5 “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

6 will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citing Papasan v. Allain, 478

7 U.S. 265, 286 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001), overruled on

8 other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

9 III. DISCUSSION

10 A. The Rooker-Feldman Doctrine

11 Defendants first argue that the court lacks subject matter jurisdiction over this action.

12 They assert that “the entirety of the SAC” is a collateral attack on the state court’s child

13 dependency proceedings that resulted in the children being separated from their parents, and that it

14 is therefore barred by the Rooker-Feldman doctrine. Mot. 9.

15 “The Rooker-Feldman doctrine is a well-established jurisdictional rule prohibiting federal

16 courts from exercising appellate review over final state court judgments.” Reusser v. Wachovia

17 Bank, N.A., 525 F.3d 855, 858-9 (9th Cir. 2008).3 The “doctrine forbids a losing party in state

18 court from filing suit in federal district court complaining of an injury caused by a state court

19 judgment, and seeking federal court review and rejection of that judgment.” Bell v. City of Boise,

20 709 F.3d 890, 897 (9th Cir. 2013). In order to determine whether the doctrine applies, “a district

21 court first must determine whether the action contains a forbidden de facto appeal of a state court

22 decision.” Id. (citing Noel v. Hall, 342 F.3d 1148, 1158 (9th Cir. 2003)). “A de facto appeal

23 exists when ‘a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state

24 court, and seeks relief from a state court judgment based on that decision.’ In contrast, if ‘a

25 federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party,

26 Rooker-Feldman does not bar jurisdiction.’” Id. (quoting Noel, 342 F.3d at 1164).

27

1 If a plaintiff seeks to bring a forbidden de facto appeal, the plaintiff “may not seek to

2 litigate an issue that is ‘inextricably intertwined’ with the state court judicial decision from which

3 the forbidden de facto appeal is brought.” Id. (quoting Noel, 341 F.3d at 1158). The Ninth Circuit

4 has clarified that the “inextricably intertwined” language “is not a test to determine whether a

5 claim is a de facto appeal, but is rather a second and distinct step in the Rooker-Feldman analysis.

6 Should the action not contain a forbidden de facto appeal, the Rooker-Feldman inquiry ends.” Id.

7 (emphasis in original) (internal citation omitted).

8 “The purpose of the doctrine is to protect state judgments from collateral federal attack.

9 Because district courts lack power to hear direct appeals from state court decisions, they must

10 decline jurisdiction whenever they are ‘in essence being called upon to review the state court

11 decision.’” Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001)

12 (quoting D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 n.16 (1983)). The doctrine applies

13 to both final judgments and “interlocutory state court decisions,” Doe & Assocs., 252 F.3d at

14 1030, and the Ninth Circuit has applied the Rooker-Feldman doctrine to child custody and

15 dependency proceedings. See Watkins v. Proulx, 235 Fed. Appx. 678, 679 (9th Cir. 2007)

16 (affirming dismissal of action “amount[ing] to a de facto appeal of a state court child custody

17 order” pursuant to Rooker-Feldman doctrine); Lacy-Curry v. Alameda Cty. Soc. Servs. Agency,

18 262 Fed. Appx. 9, 10 (9th Cir. 2007) (holding that Rooker-Feldman doctrine precluded claims

19 related to state court child dependency proceedings).

20 Defendants appear to argue that only the first three claims are subject to dismissal based on

21 the Rooker-Feldman doctrine, as they do not address the fourth through seventh claims for relief in

22 their discussion of the doctrine. Claims one and two allege constitutional violations based on the

23 warrantless seizure of the children from their home by Wright and the sheriff deputies “when there

24 [were] no exigent circumstances, namely any imminent danger of serious bodily injury[.]” SAC

25 ¶¶ 93, 94, 96, 113, 115, 116. Defendants argue that these claims are barred because they seek

26 review of the state court juvenile dependency proceeding.

27 “In California, dependency proceedings in the juvenile court are special proceedings

1 Baldovinos, No. 10-CV-02507-LHK, 2012 WL 464003, at *1 (N.D. Cal. Feb. 13, 2012). Welfare

2 and Institutions Code (“WIC”) section 300 describes situations that will bring a child “within the

3 jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the

4 court.” Such situations include where “there is a substantial risk that the child will suffer serious

5 physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian,” where

6 “[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious

7 emotional damage . . . as a result of the conduct of the parent or guardian,” or where “[t]he child

8 has been sexually abused, or there is a substantial risk that the child will be sexually abused . . . by

9 his or her parent or guardian or a member of his or her household . . . .” Cal. Welf. & Inst. Code §

10 300(a), (c), (d).

11 “A peace officer, probation officer, or social worker, who has reason to believe that a child

12 falls within the definitions set forth in section 300 and is in immediate danger as a result thereof,

13 may remove the child from the home.” Cynthia D. v. Superior Court, 5 Cal. 4th 242, 247-48

14 (1993) (citing Cal. Welf. & Inst. Code §§ 305, 306). “A ‘detention hearing’ must be held by the

15 juvenile court no later than the next judicial day,” at which “the department of social services

16 bears the burden of making a prima facie showing that the minor comes within section 300 and

17 that there is a need for detention under specified conditions.” Id. at 248 (citing Cal. Welf. & Inst.

18 Code § 319(c)); see also Cal. Welf. & Inst. Code § 315 (requiring detention hearing to occur “as

19 soon as possible, but in any event before the expiration of the next judicial day after a petition to

20 declare the minor a dependent child has been filed.”). Additionally, “[t]he court must make

21 findings regarding whether reasonable efforts were made ‘to prevent or eliminate the need for

22 removal of the minor from his or her home’ and, if the minor is to be detained, must order services

23 ‘to be provided as soon as possible to reunify the minor and his or her family if appropriate.’”

24 Cynthia D., 5 Cal. 4th at 248 (citing Cal. Welf. & Inst. Code § 319(f)(1), (g)).

25 Here, Plaintiffs allege that “[t]he state dependency court held a detention hearing . . . and

26 ordered, upon the recommendation by Wright and CFS, that the children were dependents of the

27 court.” SAC ¶ 67. Defendants argue that any constitutional claim premised on the warrantless

1 determination at the detention hearing that AMK and LTK fell within one or more of the

2 circumstances enumerated in WIC section 300. Therefore, they argue, the first and second claims

3 for relief amount to a de facto appeal of the dependency decision and accordingly are barred under

4 Rooker-Feldman.

5 Plaintiffs dispute that their claims seek review of the state court dependency proceedings.

6 They assert that their claims instead challenge the warrantless removal of the children from their

7 parents, and that the state court did not actually determine the propriety of the warrantless removal

8 of the children at the detention hearing or in subsequent proceedings, citing Anderson-Francois.

9 In Anderson-Francois, local officials removed two of the plaintiff’s children from her

10 custody without a warrant. The county instituted dependency proceedings in state court in

11 accordance with California law and the court held a detention hearing five days after the children

12 were removed from the plaintiff’s custody. 2009 WL 1458240, at *2-3. Following the hearing,

13 the court held “that the children should remain detained” based on findings “that [the] plaintiff had

14 ‘physically abused minors with excessive corporal punishment,’ that there was substantial danger

15 to the children’s physical health, and that remaining in [the] plaintiff’s care would be contrary [to]

16 the children’s welfare[.]” Id. at *3. The plaintiff alleged section 1983 claims based on the initial

17 warrantless removal of the children and the detention of the children for the five days between

18 their removal and the detention hearing. Id. at *4.

19 The defendants moved for summary judgment, arguing in part that collateral estoppel or

20 the Rooker-Feldman doctrine barred the plaintiff’s claims. The court articulated the dispositive

21 question as follows:

22 Both the preclusion and Rooker-Feldman arguments hinge in large

part on whether the juvenile court’s findings from the February 6

23 detention hearing constituted state-court review of the initial

warrantless removal of the two children (in which case the matter was

24 decided by the state court and plaintiff received adequate due

process), or whether the February 6 hearing instead addressed only

25 the need for continued detention of the children going forward (in

which case the state court did not decide the propriety of the

26 warrantless removal).

27 2009 WL 1458240, at *5 (emphasis in original). The court noted the absence of authority

1 warrantless removal,” and examined the relevant provisions of the WIC. Id. In particular, the

2 court discussed WIC section 319, which details the requirements for detention hearings and

3 “require[s] the state court (among several other requirements) to ‘specify why the initial removal

4 was necessary’ if the court ordered the children detained.” Id. (emphasis in original); see Cal.

5 Welf. & Inst. Code § 319(g). The court found that this requirement “is not the same as [requiring

6 the court to rule on the question of] ‘why the initial removal without a warrant was necessary.” It

7 also found that the determination of “why the initial removal was necessary” was “not quite the

8 same test as demanded by the Ninth Circuit, which is whether, at the time of the seizure,

9 defendants had “reasonable cause to believe that the child [was] in imminent danger of serious

10 bodily injury.’” Id. at *5-6; see Mabe v. San Bernardino Cty., Dep’t of Pub. Soc. Servs., 237 F.3d

11 1101, 1106-07 (9th Cir. 2001). The court concluded that the claims were not barred by collateral

12 estoppel or the Rooker-Feldman doctrine because “the juvenile court did not clearly rule on the

13 pre-hearing exigency issue . . . i.e., the propriety of the initial warrantless removal, and because no

14 decision has ever found such a detention hearing to bar federal claims in these circumstances[.]”

15 Anderson-Francois, 2009 WL 1458240, at *6 (emphasis in original). See also Zeigler v. Cty. of

16 San Luis Obispo, No. CV 17-9295-MWF (AFMx), 2019 WL 3082728, at *5-6 (C.D. Cal. May 16,

17 2019) (holding plaintiff was not collaterally estopped from challenging warrantless removal of her

18 son from her custody because “the issue of the warrantless removal of E.Z. underlying Plaintiff’s

19 claims was not actually heard and litigated at the juvenile dependency proceedings,” citing

20 Anderson-Francois).

21 Defendants dispute the applicability of Anderson-Francois. While Defendants do not

22 contend that the state court expressly determined the propriety of the warrantless removal of the

23 children at the detention hearing, they argue that the state court’s standards for detaining the

24 children “are nearly identical” to the federal standard for seizing the children without a warrant.

25 Specifically, they cite WIC section 306, which provides that a social worker may take a child into

26 temporary custody without a warrant when the social worker “has reasonable cause to believe that

27 the child . . . is in immediate danger of physical or sexual abuse or the physical environment poses

1 note that at the detention hearing following the initial removal, the state court must order the

2 release of the child unless there is a “prima facie showing . . . that continuance in the parent’s or

3 guardian’s home is contrary to the child’s welfare, and . . . [t]here is a substantial danger to the

4 physical health of the child or the child is suffering severe emotional damage . . .” Cal. Welf. &

5 Inst. Code § 319(c)(1). Defendants assert that these provisions “are nearly identical [to]” and

6 “mesh[ ] with the federal standard,” Defs.’ Supp. Br. 1, 2, which provides that “[g]overnment

7 officials are required to obtain prior judicial authorization before intruding on a parent’s custody

8 of her child unless they possess information at the time of the seizure that establishes ‘reasonable

9 cause to believe that the child is in imminent danger of serious bodily injury and that the scope of

10 the intrusion is reasonably necessary to avert that specific injury.’” Mabe, 237 F.3d at 1106-07

11 (quoting Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000) (citation omitted)).

12 Essentially, Defendants’ position is that even if the state court did not make express

13 findings regarding the necessity of the removal of the children from their parents’ custody without

14 a warrant, the facts presented to the dependency court supporting its decision to further detain the

15 children satisfy the federal standard for the warrantless removal. Defendants’ position is not

16 persuasive. Defendants ask the court to conclude that the state court’s finding “that the children

17 should remain detained” is the same thing as finding that the initial warrantless removal was

18 proper, but as the court in Anderson-Francois found, nothing in the relevant WIC provisions

19 requires a state court to address at the detention hearing “why [an] initial removal without a

20 warrant was necessary,” let alone address whether it satisfied the Ninth Circuit’s standard for such

21 a removal. See Anderson-Francois, 2009 WL 1458240, at *5-6 (emphasis removed); see also

22 Anderson-Francois v. Cty. of Sonoma, 415 Fed. Appx. 6, 8 (9th Cir. 2011) (“even if the California

23 statutes governing warrantless removal . . . are deemed equivalent to the federal constitutional

24 exigency requirement, the California statutes do not require the judge conducting a detention

25 hearing to make an exigency determination . . .”). The court concludes that Plaintiffs’

26 constitutional claims premised on the warrantless removal of the children from their home are not

27 a de facto appeal of a state court decision. They are therefore not barred by the Rooker-Feldman

1 Plaintiffs’ third claim alleges that Wright failed to properly investigate reports of AMK’s

2 bruises and behavioral problems before separating the children from their parents (SAC ¶¶ 127-

3 131), presented false evidence in the juvenile dependency petitions (SAC ¶¶ 18, 27-31, 136-139),

4 and failed to disclose exculpatory evidence to the juvenile court (SAC ¶¶ 140-141). Plaintiffs

5 allege that “[a]s a direct and proximate result of the failure to investigate, the presentation of false

6 evidence, [and] the failure to present exculpatory evidence,” the children’s “rights under the 14th

7 amendments [sic] were violated by the warrantless seizures of the children by CFS.” SAC ¶ 142.

8 None of these allegations are premised upon “an allegedly erroneous decision by a state court.”

9 Instead, they are based upon “an allegedly illegal act or omission by an adverse party,” that is,

10 Wright’s alleged wrongful conduct before and during the dependency proceedings. See Bell, 709

11 F.3d at 897 (“if a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by

12 an adverse party, Rooker-Feldman does not bar jurisdiction.” (quotation omitted)). Accordingly,

13 the Rooker-Feldman doctrine does not bar the third claim.

14 Defendants’ remaining arguments are that Defendants are entitled to qualified and/or

15 absolute immunity as to certain claims and that the complaint fails to state a claim. The court

16 addresses each of these arguments in turn.

17 B. Claims One and Two, Warrantless Removal of the Children

18 As noted, claims one and two allege that Wright and the sheriff deputies violated the

19 children’s Fourth and Fourteenth Amendment rights by seizing them from their home without a

20 warrant in the absence of exigent circumstances. Defendants argue that Wright and the sheriff

21 deputies are entitled to qualified immunity on these claims.4

22 “[Q]ualified immunity protects government officials ‘from liability for civil damages

23 insofar as their conduct does not violate clearly established statutory or constitutional rights of

24

25

4 The court notes that its analysis is complicated by the fact that Defendants made certain

arguments in favor of dismissal without specifying which claims are at issue. For example,

26

Defendants’ motion appears to argue that Wright and other unnamed social workers are entitled to

absolute immunity for their actions related to the dependency proceedings. See Mot. 10-11. On

27

reply, they state that absolute immunity “applies only to certain acts taken by defendants, and not

1 which a reasonable person would have known.’” Moss v. U.S. Secret Serv., 675 F.3d 1213, 1222

2 (9th Cir. 2012) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The doctrine applies “if

3 (1) the law governing the official’s conduct was clearly established; and (2) under that law, the

4 official objectively could have believed that her conduct was lawful.” Mabe, 237 F.3d at 1106.

5 “Where a defendant presents a qualified immunity defense in a Rule 12(b)(6) motion, ‘dismissal is

6 not appropriate unless [the court] can determine, based on the complaint itself, that qualified

7 immunity applies.’” Romero v. Cty. of Washoe, 602 Fed. Appx. 408, 409 (9th Cir. 2015) (quoting

8 Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001)).

9 Defendants do not dispute that at the time the children were seized from their home, the

10 law was well-established that “[t]he Fourteenth Amendment guarantees that parents will not be

11 separated from their parents without due process of law except in emergencies.” Mabe, 237 F.3d

12 at 1107. Under Ninth Circuit law, “[o]fficials violate this right if they remove a child from the

13 home absent ‘information at the time of the seizure that establishes reasonable cause to believe

14 that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is

15 reasonably necessary to avert that specific injury.’” Rogers v. Cty. of San Joaquin, 487 F.3d 1288,

16 1294 (9th Cir. 2007) (quoting Mabe, 237 F.3d at 1106). Additionally, the Fourth Amendment

17 “protects children from removal from their homes absent such a showing,” and officials “who

18 remove a child from its home without a warrant must have reasonable cause to believe that the

19 child is likely to experience serious bodily harm in the time that would be required to obtain a

20 warrant.” Rogers, 487 F.3d at 1294 (citations omitted).

21 1. Qualified Immunity as to Defendant Wright

22 As to Wright, Defendants argue that the allegations in the SAC “justify the emergency

23 removal” of the children from their home. Mot. 12. They note that the SAC alleges that on June

24 4, 2014, Wright received a report from AMK’s school that AMK had “bruises she got from being

25 hit by Fred with a belt.” SAC ¶ 47. Wright then visited the Kuecks’ home and observed a bump

26 on Sharon’s head that she believed was caused by Fred hitting Sharon. Id. at ¶¶ 51, 54-55. On

27 June 6, 2014, Wright “received a report that Fred slept in AMK’s bed” and had pushed her out of

1 ¶¶ 59, 60. According to Defendants, these allegations disclose the existence of “exigent

2 circumstances, e.g. that the children were in danger of physical or sexual abuse.” Mot. 13. They

3 further assert that June 6, 2014, the date Wright received the reports of Fred sleeping in AMK’s

4 bed and kissing her, “was a Friday, meaning a warrant would have to wait until Monday.” Id.

5 Therefore, they contend, Wright is entitled to qualified immunity on this claim because her actions

6 were objectively reasonable.

7 The court concludes that dismissal of the claim against Wright on the basis of qualified

8 immunity is inappropriate at this stage given the absence of allegations in the SAC indicating that

9 the children were in imminent danger of serious bodily injury. “Serious allegations of abuse that

10 have been investigated and corroborated usually give rise to a ‘reasonable inference of imminent

11 danger sufficient to justify taking children into temporary custody’ if they might again be beaten

12 or molested during the time it would take to get a warrant.” Rogers, 487 F.3d at 1294-95. Here,

13 the SAC contains numerous allegations that the reports of abuse were not corroborated by

14 Wright’s investigation. Specifically, the SAC alleges that shortly before the children were

15 removed, Wright visited AMK’s school where school staff “said that they had observed that AMK

16 played rough and threw herself onto the ground.” SAC ¶ 58. The SAC further alleges that Officer

17 Pliler visited the children’s home where “[t]he children and an older brother” told him that “they

18 have never seen a belt used to punish AMK,” id. at ¶ 50, and both Officer Pliler and Wright

19 observed that there were no bruises on AMK’s legs during their visits to the Kuecks’ home. See

20 id. ¶¶ 48-49, 51-52.

21 As to the reports that “Fred slept in AMK’s bed” and AMK’s statement at her school “that

22 Fred kissed her,” the Ninth Circuit has held that “[a]n allegation that sexual abuse occurred in the

23 home, without additional facts regarding exigency, is insufficient to show the imminent danger of

24 serious bodily injury necessary to intrude on a parent’s custody of her child without prior judicial

25 authorization.” Romero, 602 Fed. Appx. at 409 (affirming district court’s denial of motion to

26 dismiss section 1983 claim based on warrantless removal of a child on the basis of qualified

27 immunity). Ultimately, whether Wright had reasonable cause to believe that the children were in

1 resolution on the pleadings. Dismissal of the first claim against Wright on the basis of qualified

2 immunity is therefore denied without prejudice to Defendants’ renewing the defense on a full

3 record at summary judgment. See Romero, 602 Fed. Appx. at 409 (affirming denial of motion to

4 dismiss with leave to pursue qualified immunity defense at summary judgment).

5 2. Qualified Immunity as to the Sheriff Deputies

6 Defendants next argue that the sheriff deputies are entitled to qualified immunity as to the

7 second claim because law enforcement officers are permitted to rely on the assertions of social

8 workers in removing children from their homes. In support, they cite Sjurset v. Button, 810 F.3d

9 609 (9th Cir. 2015). In Sjurset, the plaintiff brought section 1983 claims against Department of

10 Human Services (“DHS”) officials and police officers for violation of his Fourth and Fourteenth

11 Amendment rights based on the warrantless removal of his two children from his home. Id. at

12 612-613. It was undisputed that the police officers had not participated in the decision to take the

13 children into protective custody but had instead relied on the DHS workers’ determination, and the

14 Ninth Circuit held that the officers were entitled to qualified immunity. Id. at 617, 618. The court

15 concluded that it was not clearly established at the time of the seizure that the officers violated the

16 plaintiff’s constitutional rights by acting in reliance on the DHS’s protective custody

17 determination, id. at 619-20, and that even if they “did violate clearly established law in entering

18 the home and removing the children at the direction of the DHS officials,” the officers “acted

19 reasonably under the circumstances and would therefore be entitled to qualified immunity.” Id. at

20 621. Noting that it is well-established that “[l]aw enforcement officers and agencies are entitled to

21 rely on one another to a certain extent,” the court found that the officers did not “act[ ] blindly at

22 the instruction of DHS,” but instead “had knowledge of the key details that informed DHS’s

23 determination.” Id. at 621-22. These details included the children’s mother testing positive for

24 methamphetamine and other drugs shortly before the children’s removal and the mother’s prior

25 conviction for child endangerment. The officers had also witnessed the parents’ refusals to allow

26 the officials to meet with or speak with the children and knew that a warrant could not be obtained

27 for at least 36 hours. Id. Under such circumstances, the court concluded that the officers’

1 that the fact that the officers “had no reason to believe that DHS’s investigation was inadequate or

2 incompetently performed” supported the objective reasonableness of their conduct, since the

3 officers “knew that DHS had initiated the investigation based on a reliable tip from a doctor’s

4 office, had made several attempts to carry out its investigation, and had been prevented from doing

5 so by” the children’s parents. Id.

6 Contrary to Defendants’ suggestion, Sjurset does not stand for the proposition that officers

7 are per se immune from liability when they “rely on the assertions of social workers in removing

8 children from their homes.” See Mot. 18. Instead, Sjurset examined the facts of the case and

9 concluded that the officers had acted reasonably given the circumstances they faced. See Sjurset,

10 810 F.3d at 621 (“[t]he reasonableness of an officer’s conduct is . . . context-sensitive and

11 dependent upon the details known to the officers at the time” of the conduct). Here, the SAC

12 alleges that when the officers went to the Kuecks’ home with Wright, they “told Fred that they did

13 not need any warrant because the social workers told them that the children were in immediate

14 danger,” and that “they would do whatever the social worker told them to do.” SAC ¶ 62. It

15 further alleges that the officers “blindly relied on the words of the social workers that the children

16 were at imminent dangers of suffering serious bodily injury,” “blindly followed the requests of the

17 social workers to assist them in seizing the children,” and “had time but did not make any

18 reasonable inquiries into the validity of the requests by the social workers.” Id. at ¶¶ 117-119.

19 Given the limited allegations about the officers’ conduct and knowledge at the time they removed

20 the children from their home, dismissal of the second claim on the basis of qualified immunity is

21 denied. As with the first claim against Wright, the dismissal is denied without prejudice to

22 Defendants renewing the defense on a full record at summary judgment.

23 C. Claim Three

24 Claim three alleges that Wright and CFS Doe Defendants violated the children’s

25 Fourteenth Amendment rights by failing to perform a proper investigation before and after seizing

26 the children; presenting false evidence to the court; and failing to provide the court with

27 exculpatory evidence. SAC ¶¶ 126-143.

1 related to the dependency proceedings, including the decision to institute the proceedings and the

2 filing and contents of the dependency petition. The Ninth Circuit has “recognized absolute

3 immunity for social workers . . . for the discretionary, quasi-prosecutorial decisions to institute

4 court dependency proceedings to take custody away from parents.” Miller v. Gammie, 335 F.3d

5 889, 898 (9th Cir. 2003). However, “the scope of absolute immunity for social workers is

6 extremely narrow.” Id. Social workers “are not entitled to absolute immunity from claims that

7 they fabricated evidence during an investigation or made false statements in a dependency petition

8 affidavit that they signed under penalty of perjury, because such actions aren’t similar to

9 discretionary decisions about whether to prosecute.” Beltran v. Santa Clara Cty., 514 F.3d 906,

10 908 (9th Cir. 2008) (per curiam) (quotation omitted). Social workers are also not immune for

11 investigatory conduct. Id. at 908-09. Here, Plaintiffs do not assert that Wright’s institution of the

12 dependency proceeding violated their rights. Instead, they allege that Wright’s investigatory

13 conduct, fabrication of evidence, and failure to provide exculpatory evidence led to the violation

14 of their constitutional rights. Accordingly, absolute immunity does not apply to this claim.

15 Defendants next argue that the allegations in the SAC are insufficient to support claims of

16 an alleged deficient investigation, fabrication of evidence, and failure to present exculpatory

17 evidence.

18 “The Fourteenth Amendment prohibits the deliberate fabrication of evidence by a state

19 official.” Spencer v. Peters, 857 F.3d 789, 793 (9th Cir. 2017) (citing Devereaux v. Abbey, 263

20 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc)). In order “[t]o prevail on a § 1983 claim of

21 deliberate fabrication, a plaintiff must prove that (1) the defendant official deliberately fabricated

22 evidence and (2) the deliberate fabrication caused the plaintiff’s deprivation of liberty.” Id. at 798

23 (citing Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1111 (9th Cir. 2010)). A

24 plaintiff can establish a claim of deliberate fabrication by circumstantial or direct evidence. “For

25 example, evidence that officials ‘continued their investigation of [a person] despite the fact that

26 they knew or should have known that he was innocent’ can raise the inference that the investigator

27 has an ‘unlawful motivation’ to frame an innocent person.” Id. at 793 (internal citation omitted).

1 deliberately mischaracterizes witness statements in her investigative report.’” Id. (citation

2 omitted). However, the Ninth Circuit has held that “there is no constitutional due process right to

3 have child witnesses in a child sexual abuse investigation interviewed in a particular manner, or to

4 have the investigation carried out in a particular way.” Devereaux, 263 F.3d at 1075. Further, an

5 investigator’s carelessness or inaccuracy during an investigation does not establish a constitutional

6 violation. Gausvik v. Perez, 345 F.3d 813, 817 (9th Cir. 2003). Therefore, Plaintiffs cannot

7 maintain a constitutional claim premised solely on Wright’s alleged deficient investigation prior to

8 and following the seizure of the children.

9 As to Plaintiffs’ fabrication of evidence claim against Wright, they allege that Wright

10 presented three falsehoods to the court: 1) “that Fred committed domestic violence on Sharon

11 causing the bump on her head,” even though Sharon told her that she had had the bump since

12 childhood; 2) “that an older sibling called her to report that Fred hit Sharon when in fact he called

13 her to tell her about AMK’s true conditions (i.e., she is easily bruised, mentally delayed, felt [sic[

14 down a lot, etc.) and that he did not see any physical abuses by Fred on the children”; and 3) “that

15 Fred slept in AMK’s bed. AMK sometimes went to her parent beds [sic] to seek security as young

16 children often do.” SAC ¶¶ 137-138. They further allege that as a result of Wright’s presentation

17 of false evidence, their Fourteenth Amendment rights were violated when they were seized from

18 their parents without a warrant and placed in foster care. Id. at ¶ 142.

19 In their motion, Defendants challenge the credibility and significance of the first and third

20 alleged falsehoods. See Mot. 16-17. They do not address Plaintiffs’ allegation that Wright lied

21 about the older sibling’s report that AMK is “easily bruised, mentally delayed, fel[l] down a lot”

22 and that he had not witnessed physical abuse by Fred. Accepting the allegations in the SAC as

23 true, the court concludes that Plaintiffs have adequately stated a claim for deliberate fabrication of

24 evidence.

25 Plaintiffs also bring a Fourteenth Amendment claim based on Wright’s failure to provide

26 the court with exculpatory evidence following the seizure of the children. Plaintiffs allege that

27 after the children were taken into custody, Wright and the CFS Defendants were unable to “obtain

1 dismissal of the case. They further allege that Wright and the Doe Defendants learned that “AMK

2 continued to suffered [sic] bruises and exhibits [sic] the same behavioral problems and that LTK

3 became worse off,” but “did not disclose this exculpatory evidence to the court.” SAC ¶¶ 140,

4 141.

5 Under Brady v. Maryland, 373 U.S. 83 (1963), “the prosecution violates a defendant’s due

6 process rights if it fails to turn over evidence that is ‘material either to guilt or to punishment.’”

7 Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (quoting Brady, 373 U.S. at 87). It is not clear

8 whether the Brady rule applies to civil child dependency proceedings, see Clarke v. Upton, No.

9 CV-F-07-888OWWSMS, 2009 WL 1460815, at *18 (E.D. Cal. May 26, 2009) (collecting cases),

10 and Plaintiffs offer no authority supporting such a claim. However, even if Brady applies in such

11 proceedings, Plaintiffs have failed to state a claim based upon an alleged failure to turn over

12 exculpatory evidence. In the Ninth Circuit, the test for a due process violation based on the Brady

13 rule is as follows: a party “must demonstrate that: (1) the evidence at issue is favorable, either

14 because it is exculpatory or because it is impeaching; (2) such evidence was suppressed by the

15 State, either willfully or inadvertently; and (3) prejudice resulted.” Raley, 470 F.3d at 804.

16 Here, the allegedly exculpatory information that Wright and the CFS Defendants failed to

17 turn over was evidence of AMK continuing to suffer bruises and exhibit the same behavioral

18 problems that she exhibited before she was removed from the Kuecks’ home. However, this

19 information is not exculpatory, as it does not exculpate the allegations in the dependency petition

20 that Fred physically abused his children and may have sexually abused AMK. Moreover, Wright

21 and the CFS Defendants could have learned of the allegedly exculpatory evidence only after the

22 detention hearing. Therefore, they could not have turned over the evidence prior to the detention

23 hearing. Accordingly, Plaintiffs’ third claim based upon withholding of exculpatory evidence is

24 dismissed. As Plaintiffs have not previously been granted leave to amend this claim, the dismissal

25 is without prejudice and with leave to amend.

26 D. Claims Four and Five, Failure to Protect

27 Claim four is a section 1983 claim for violation of the Fourteenth Amendment by AMK

1 AMK in his home, and failing “to monitor the health and safety of foster children including AMK

2 who were put in Mallett’s home.” SAC ¶ 149. Plaintiffs allege that “AMK had a clearly

3 established right to be protected from harms while she was under the custody of CFS.” Id. at ¶

4 146. Similarly, claim five is a section 1983 claim for violation of the Fourteenth Amendment by

5 LTK against CFS Doe Defendants for the cut lip that he suffered in foster care. SAC ¶ 156.

6 “The Fourteenth Amendment substantive due process clause protects a foster child’s

7 liberty interest in social worker supervision and protection from harm inflicted by a foster parent.”

8 Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 842 (9th Cir. 2010). “To violate due

9 process, state officials must act with such deliberate indifference to the liberty interest that their

10 actions ‘shock the conscience.’ Conduct that ‘shocks the conscience’ is ‘deliberate indifference to

11 a known or so obvious as to imply knowledge of, danger.’” Id. at 844 (internal citations omitted).

12 As applied to children in foster care, the deliberate indifference standard “requires a showing of an

13 objectively substantial risk of harm and a showing that the officials were subjectively aware of

14 facts from which an inference could be drawn that a substantial risk of serious harm existed and

15 that either the official actually drew that inference or that a reasonable official would have been

16 compelled to draw that inference.” Id. at 845.

17 Here, the SAC does not plead any facts supporting a claim that County employees were

18 deliberately indifferent to an “objectively substantial risk of harm” posed by the foster parents or

19 families with which AMK and LTK were placed. There are no allegations that the County knew

20 that either home was unsafe at the time it placed the children. With respect to AMK’s placement

21 with Mallett, although the SAC alleges that Mallett “molested many foster children put in his

22 home,” it does not allege that Mallett abused AMK. See SAC ¶ 75. Instead, it alleges that AMK

23 “came home with numerous bruises and wearing training pants,” id. at ¶ 79, but does not allege

24 that Mallett was responsible for the bruising or the fact that she was wearing training pants. It also

25 does not allege that any County employee was aware of the danger Mallett posed when placing

26 AMK in his home nor does it allege any facts to support the inference that County employees

27 should have been aware of the danger he posed at that time. While Plaintiffs allege that a former

1 they allege that Mallett was killed in 2016, two years after AMK was returned to her parents.

2 As to LTK, Plaintiffs do not allege the cause of LTK’s cut lip. They also do not allege any

3 connection between County employees and the injury, such as LTK’s placement in the home of a

4 foster parent known to be violent.

5 In sum, Plaintiffs have failed to state Fourteenth Amendment substantive due process

6 claims based on their placement in foster care and injuries while in foster care. At the hearing,

7 Plaintiffs’ counsel conceded that he is unable to allege additional facts to support these claims.

8 Accordingly, the fourth and fifth claims are dismissed with prejudice.5

9 E. Claims Six and Seven for Municipal Liability

10 The sixth and seventh claims are for municipal liability under Monell.

11 A municipality may face section 1983 liability if it “‘subjects’ a person to a deprivation of

12 rights or ‘causes’ a person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 563 U.S.

13 51, 60 (2011) (quoting Monell, 436 U.S. at 692). However, the municipality may be held liable

14 “only for ‘[its] own illegal acts.’” Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)).

15 It cannot be held vicariously liable for its employees’ actions. Id. (citations omitted). To establish

16 municipal liability, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused

17 their injury.” Id. (quoting Monell, 436 U.S. at 691). “The ‘official policy’ requirement ‘was

18 intended to distinguish acts of the municipality from acts of employees of the municipality,’ and

19 thereby make clear that municipal liability is limited to action for which the municipality is

20 actually responsible.” Pembaur, 475 U.S. at 479-80 (emphasis in original). Official municipal

21 policy includes “the decisions of a government’s lawmakers, the acts of its policymaking officials,

22 and practices so persistent and widespread as to practically have the force of law.” Connick, 563

23 U.S. at 61 (citations omitted). Such policy or practice must be a “moving force behind a violation

24 of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing

25 Monell, 436 U.S. at 694).

26

27

5 As the court concludes that the SAC does not state a claim based on an alleged failure to protect

1 In order to establish Monell liability, a plaintiff must prove that (1) he or she possessed a

2 constitutional right of which he was deprived; (2) “that the municipality had a policy”; (3) “that

3 this policy amounts to deliberate indifference to the plaintiff’s constitutional right”; and (4) “that

4 the policy is the moving force behind the constitutional violation.” Dougherty, 654 F.3d at 900

5 (quotation omitted). “A single constitutional deprivation ordinarily is insufficient to establish a

6 longstanding practice or custom.” Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999).

7 However, an isolated constitutional violation may be sufficient to establish a municipal policy in

8 the following three situations: 1) “when the person causing the violation has ‘final policymaking

9 authority,’” see id. at 1235; 2) when “the final policymaker ‘ratified’ a subordinate’s actions,” see

10 id. at 1238; and 3) when “the final policymaker acted with deliberate indifference to the

11 subordinate’s constitutional violations.” See id. at 1240.

12 In claim six, Plaintiffs allege that the County “established, adopted, followed, and/or

13 implemented and/or turned a blind eye to customs, and/or practices which were followed,

14 complied with, and carried out by the Social Worker Defendants when Plaintiffs’ constitutional

15 rights were violated by and/or through their seizures without a warrant or other court order in the

16 absence of any exigency.” SAC ¶ 162. They allege that CFS “has a long history of staffing

17 issues,” including “massive staff turn-overs and a dysfunctional agency.” Id. at ¶¶ 163, 165.

18 Plaintiffs allege upon information and belief that social workers like Wright “usually are

19 overwhelmed because of heavy caseloads and unreasonable demands,” and as a result, “take short

20 cuts causing mistakes” like those in this case. Id. at ¶ 166. They further allege that “CFS has

21 policy, practice, and training that cause confirmation bias,” “a policy, practice, and training of

22 social workers putting priority on finding faults,” and “a practice to pile on numerous allegations,

23 as in this case where Fred was also accused of domestic violence.” Id. at ¶¶ 167-169. Plaintiffs

24 allege that the County also has a practice of “mak[ing] up allegations to make accusations against

25 both parents . . . to take all the children instead of sorting out the risk posed by the alleged parent

26 abusers,” “a policy, practice, and training favoring taking children from family,” including the

27 “unnecessary taking all children from the home upon allegation[s] of abuse and neglect of one

1 from their home and family separation because they want to maximize the amount of” federal

2 money it receives. Id. at ¶ 178.

3 The court concludes that the allegations in the SAC are insufficient to plead a custom,

4 practice, or policy by the County that caused Plaintiffs’ injuries. First, with respect to the alleged

5 customs and practices at issue here, the SAC alleges only facts specific to the seizure of AMK and

6 LTK. Although Plaintiffs allege numerous customs and practices related to the County’s

7 investigations of abuse allegations and separating children from their parents, such as

8 “confirmation bias,” “pil[ing] on numerous allegations . . . in the detention reports,” “mak[ing] up

9 allegations to make accusations against both parents . . . to take all the children,” “favoring taking

10 children from family,” and “unnecessary taking all children from the home upon allegation of

11 abuse and neglect of one child,” (see SAC ¶¶ 167, 169, 172, 174, 176), the SAC contains no

12 factual allegations to support the existence of a practice or custom beyond the dependency

13 proceedings involving Plaintiffs. “Liability for improper custom may not be predicated on

14 isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency

15 and consistency that the conduct has become a traditional method of carrying out policy.” Trevino

16 v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Absent from the SAC are any facts supporting

17 Plaintiffs’ claim that the County regularly takes certain actions related to fabricating allegations of

18 abuse and removing children from their parents. See Bagley v. City of Sunnyvale, No. 16-CV-

19 02250-LHK, 2017 WL 344998, at *15 (N.D. Cal. Jan. 17, 2017) (finding custom or practice

20 inadequately pleaded where plaintiff only pleaded actions relating to his own arrest and

21 prosecution).

22 As to Plaintiffs’ allegations of unconstitutional policies, an isolated constitutional violation

23 may be sufficient to establish a municipal policy in the following three situations: 1) “when the

24 person causing the violation has ‘final policymaking authority,’” see id. at 1235; 2) when “the

25 final policymaker ‘ratified’ a subordinate’s actions,” see id. at 1238; and 3) when “the final

26 policymaker acted with deliberate indifference to the subordinate’s constitutional violations.” See

27 id. at 1240. Plaintiffs allege that the County has the following policies, many of which overlap

1 confirmation bias” (SAC ¶ 167); a policy of “putting priority on [social workers] finding faults,

2 often employing a boilerplate template and a computer program to assess risk, to make decision[s]

3 and to level charges against parents” (SAC ¶ 168); a policy of “not admit[ting] to and

4 discipline[ing] their social workers for fabricating evidence” (SAC ¶ 170); a policy “favoring

5 taking children from family” (SAC ¶ 174); and a policy “favoring unnecessary taking all children

6 from the home upon allegation of abuse and neglect of one child” (SAC ¶ 176). These policy

7 allegations are insufficiently specific to plead a Monell claim, because the SAC contains no factual

8 allegations that Wright, who committed the alleged constitutional violations, was an individual

9 with final policymaking authority, that the violations were ratified by a final policymaker, or that a

10 final policymaker acted with deliberate indifference to Wright’s violations.

11 It appears that the SAC also attempts to plead a failure to train theory of Monell liability.

12 In order to establish that a municipality is liable under Monell based on inadequacy of training,

13 Plaintiffs must show that “the failure to train amounts to deliberate indifference to the rights of

14 persons with whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388

15 (1989). Here, the SAC contains the following allegations regarding the County’s alleged training

16 of its social workers: that the County has “training that cause[s] confirmation bias” (SAC ¶ 167);

17 that the County trains social workers to “put[ ] priority on finding faults” (SAC ¶ 168); that the

18 County trains social workers to “favor[ ] taking children from family” and to unnecessarily “tak[e]

19 all children from the home upon allegation of abuse and neglect of one child” (SAC ¶¶ 174, 176).

20 These allegations are insufficient, as the SAC does not allege with any specificity what training

21 the County social workers received and does not allege that any County policymaker was aware

22 that the training was deficient. Plaintiffs have insufficiently alleged a “failure to train” theory of

23 Monell liability.

24 Plaintiffs’ seventh claim for municipal liability fares no better. Plaintiffs allege upon

25 information and belief that the County’s Sheriff Office “has a practice, policy or training for, or

26 deliberate indifference to their officers to automatically [sic] accept, believe and trust any

27 allegations of abuse and claims of exigency from CFS social workers without independently

1 practice, policy, or training for or deliberate indifference to their officers not question [sic]

2 whether there is any other least intrusive method that could be used to avoid family separation,

3 traumas for the children and families.” Id. at ¶ 186. As with the sixth claim, the SAC does not

4 allege any facts supporting the existence of a practice or custom beyond the seizure of Plaintiffs.

5 As to the alleged policies, the SAC does not allege that the sheriff deputies had final policymaking

6 authority, that the constitutional violations committed by the sheriff deputies were ratified by a

7 final policymaker, or that a final policymaker acted with deliberate indifference to the sheriff

8 deputies’ violations. Finally, with respect to a failure to train theory of Monell liability, Plaintiffs

9 do not allege any facts about the training sheriff deputies receive or whether any County

10 policymaker was aware that the training was deficient. Accordingly, Plaintiffs’ seventh claim

11 must be dismissed.

12 IV. CONCLUSION

13 For the foregoing reasons, Defendants’ motion is granted in part and denied in part.

14 Plaintiffs’ third claim based upon withholding of exculpatory evidence is dismissed with leave to

15 amend. Claims four and five are dismissed with prejudice. Claims six and seven are dismissed

16 with leave to amend. Any third amended complaint must be filed within 14 days of the date of

17 this order. Plaintiffs are given one final opportunity to plead their best case in a third amended

18 complaint in a manner consistent with this order. Plaintiffs may not add any new claims without

19 leave of court.

20

21 IT IS SO ORDERED.

22 Dated: September 23, 2019

23 ______________________________________

Donna M. Ryu

24

United States Magistrate Judge

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