Underwood

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 LARRY UNDERWOOD & JOYCE Case No.: 25-cv-00088-JO-VET

AGIOBENEBO,

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Plaintiffs,

13 ORDER GRANTING IN PART

v. DEFENDANTS’ MOTION TO

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DISMISS [DKT. 35] WITH LEAVE

SAN DIEGO UNIFIED SCHOOL

15 TO FILE THIRD AMENDED

DISTRICT, et al.

COMPLAINT

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Defendants.

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20 On October 16, 2025, the Court held oral argument on Defendants’ motion to

21 dismiss Plaintiff’s1 Second Amended Complaint. At oral argument, Plaintiff clarified that

22 he was pursuing the following claims: (1) that Defendants Kern and Meredith made false

23 statements to police and child protective services on January 19, 2024 depicting Plaintiff

24 as neglecting his daughter A.A., and made false statements on January 22, 2024 that

25 Plaintiff was not A.A.’s father, and these false statements impacted the outcome of A.A.’s

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1 At oral argument, Plaintiff Underwood informed the Court that Ms. Agiobenebo is no longer a

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1 custody proceedings (i.e., a judicial deception claim); (2) that Defendant Kern denied

2 Plaintiff physical access to A.A. by lying about her whereabouts on January 19, 2024, in

3 violation of his right to familial association; (3) that Defendant Kern held A.A. after school

4 on January 22, 2024 for an interview with social workers without Plaintiff’s consent, in

5 violation of his right to familial association; (4) that Defendants Kern, Meredith, and

6 Kinoshita retaliated against Plaintiff for asking about Defendants’ January 19, 2024

7 investigation of the mandatory report of child abuse by removing Plaintiff’s name from

8 A.A.’s enrollment form and excluding him from the school on January 22, 2024; (5) that

9 Defendants Kern, Meredith, and Kinoshita excluded Plaintiff from participating in A.A.’s

10 education after removing his name from her enrollment form on January 22, 2024, violating

11 his Fourteenth Amendment right to direct his child’s education; and (6) that Defendants

12 violated Ms. Agiobenebo’s Fifth Amendment rights by pressuring her to do an interview

13 with a social worker on January 22, 2024.

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15 For the reasons stated on the record, the Court orders as follows:

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17 1. The Court maintains its prior ruling dismissing with prejudice Plaintiff’s claims

18 against Defendant San Diego Unified School District as barred by Eleventh

19 Amendment sovereign immunity. See Dkt. 27.

20 2. Plaintiff’s claims under the Individuals with Disabilities Education Act (“IDEA”),

21 20 U.S.C. § 1400 et seq.; the Protection of Pupil Rights Amendment (“PPRA”), 20

22 U.S.C. § 1232h; and the Family Educational Rights and Privacy Act (“FERPA”), 20

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2 Plaintiff previously stipulated to dismiss his judicial deception claim against Defendant Kinoshita.

26 See Dkt. 27. To the extent that Plaintiff seeks to bring his judicial deception claim against Defendant

Meredith, this claim is dismissed with prejudice because Plaintiff pleads that Meredith truthfully told him

27 that A.A. was still at the school on January 19, 2024. See Dkt. 32, Second Amended Complaint at 9:25–

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1 U.S.C. § 1232g, are dismissed with prejudice because Plaintiff failed to reallege

2 these claims in his Second Amended Complaint.

3 3. Plaintiff’s judicial deception claim that Defendants Kern and Meredith made false

4 statements to police and child protective services on January 19, 2024 depicting

5 Plaintiff as neglecting A.A., and false statements on January 22, 2024 that Plaintiff

6 was not A.A.’s father, and these false statements impacted the outcome of A.A.’s

7 custody proceedings, is dismissed with leave to amend. Because the Court

8 previously granted Plaintiff leave to amend this claim, this will be his final

9 opportunity to amend.

10 4. The Court grants Defendants the opportunity to specifically address Plaintiff’s claim

11 that Defendant Kern denied him physical access to his daughter A.A. on January 19,

12 2024 by lying about her whereabouts. The Court notes that parents have a familial

13 association right to not be separated from their children without consent or a court

14 order, unless the state actor has reasonable cause to believe that the child is in

15 imminent danger of serious bodily injury and removal is necessary to prevent the

16 imminent injury. Keates v. Koile, 883 F.3d 1228, 1236–38 (9th Cir. 2018) (right has

17 been analyzed under First, Fourth and Fourteenth Amendments). To make out this

18 type of claim, “plaintiffs must establish that an actual loss of custody occurred; the

19 mere threat of separation or being subject to an investigation, without more, is

20 insufficient.” Dees v. Cnty. of San Diego, 960 F.3d 1145, 1152 (9th Cir. 2020).

21 Additionally, a plaintiff must show that the government interference with the family

22 relationship “shocks the conscience.” See Rosenbaum v. Washoe Cnty., 663 F.3d

23 1071, 1079 (9th Cir. 2011). To show that conduct “shocks the conscience,” a

24 plaintiff must allege that the defendant acted with the purpose of harming the

25 plaintiff, or with deliberate indifference, which means that the defendant knew of

26 and disregarded a known or obvious risk to the plaintiff. Scott v. Smith, 109 F.4th

27 1215, 1228 (9th Cir. 2024). Because Defendants represented that they were not

28 aware of the specific nature of this claim, the Court grants Defendants the

1 opportunity to move to dismiss this claim after Plaintiff files his Third Amended

2 Complaint.

3 5. Plaintiff’s claim that Defendant Kern held A.A. after school on January 22, 2024 for

4 an interview with social workers without Plaintiff’s consent, in violation of his right

5 to familial association, is dismissed with prejudice. Even if Plaintiff has plausibly

6 alleged that Defendant Kern violated his familial association rights by holding A.A.

7 at the school for an interview with a social worker without consent, Defendant Kern

8 is entitled to qualified immunity because parents’ and children’s right to be free from

9 schoolhouse interviews by social workers was not clearly established as of January

10 22, 2024. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (qualified immunity

11 shields Defendants if right at issue was not “‘clearly established’ at the time of

12 defendant’s alleged misconduct”); Scanlon v. Cnty. of Los Angeles, 92 F.4th 781,

13 809 (9th Cir. 2024) (as of February 2024, no clearly established right to be free from

14 schoolhouse interviews by social workers investigating abuse or neglect claims).3

15 6. Plaintiff clarified at oral argument that he claims that Defendants Kern, Meredith,

16 and Kinoshita retaliated against him for asking about Defendants’ January 19, 2024

17 investigation of the mandatory report of child abuse by removing his name from

18 A.A.’s enrollment form and excluding him from the school. Because the scope of

19 this claim was only clarified at oral argument and Defendants have not had an

20 opportunity to fully brief it, Defendants may challenge this claim in their motion to

21 dismiss Plaintiff’s Third Amended Complaint.

22 7. Plaintiff’s claim that Defendants Kern, Meredith, and Kinoshita excluded Plaintiff

23 from participating in A.A.’s education after removing his name from her enrollment

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26 3 To the extent that Plaintiff seeks to bring this claim as a Fourth Amendment claim on A.A.’s

behalf, he may not do so because he is proceeding pro se. Johns v. Cnty. of San Diego, 114 F.3d 874, 877

27 (9th Cir. 1997) (“a parent or guardian cannot bring an action on behalf of a minor child without retaining

a lawyer”). At oral argument, Plaintiff confirmed that he is not bringing this claim as a Fourth Amendment

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1 form on January 22, 2024 is dismissed with leave to amend. Parents have a

2 substantive due process right under the Fourteenth Amendment to “direct the

3 upbringing and education of children under their control.” Hartzell v. Marana

4 Unified Sch. Dist., 130 F.4th 722, 744 (9th Cir. 2025), cert. denied sub nom.

5 HARTZELL, REBECCA v. MARANA SCH. DIST., ET AL., No. 25-143, 2025 WL

6 2906524 (U.S. Oct. 14, 2025) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)

7 (plurality opinion); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Pierce v. Soc’y of

8 Sisters, 268 U.S. 510, 535 (1925)). This right “is often called the Meyer-Pierce

9 right.” Id. Here, the Court dismisses Plaintiff’s Meyer-Pierce claim because

10 Plaintiff has not alleged how these Defendants excluded him from participating in

11 A.A.’s education after his name was removed from her enrollment form on January

12 22, 2024. The Court grants Plaintiff leave to amend so he may add these allegations.

13 8. Plaintiff’s claim that Defendants violated Ms. Agiobenebo’s Fifth Amendment

14 rights by pressuring her to do an interview with a social worker on January 22, 2024

15 is dismissed with prejudice because Ms. Agiobenebo is no longer a plaintiff in the

16 suit and Plaintiff may not maintain claims on her behalf. See Johns, 114 F.3d at 874

17 (pro se plaintiff may not bring claims on behalf of others). If she wishes, Ms.

18 Agiobenebo may bring this claim in a separate suit.

19 9. To the extent that Plaintiff brings any other claims, the Court dismisses those claims

20 under Fed. R. Civ. P. 8 because the Court is unable to decipher them.

21 10. Plaintiff is granted leave to file a Third Amended Complaint by November 5, 2025.

22 In his Third Amended Complaint, Plaintiff may not add new claims and shall only

23 include the following claims that remain after this Court’s rulings: (1) Plaintiff’s

24 judicial deception claim that Defendants Kern and Meredith made false statements

25 to police and child protective services on January 19, 2024 depicting Plaintiff as

26 neglecting his daughter A.A., and false statements on January 22, 2024 that Plaintiff

27 was not A.A.’s father, and these false statements impacted the outcome of A.A.’s

28 custody proceedings; (2) that Defendant Kern denied him physical access to A.A.

1 on January 19, 2024 by lying about her whereabouts; (3) that Defendants Kern,

2 Meredith, and Kinoshita retaliated against Plaintiff for asking about Defendants’

3 January 19, 2024 investigation of the mandatory report of child abuse by removing

4 Plaintiff's name from A.A.’s enrollment form and excluding him from the school on

5 January 22, 2024; and (4) that Defendants Kern, Meredith, and Kinoshita excluded

6 Plaintiff from participating in A.A.’s education after removing his name from her

7 enrollment form on January 22, 2024, violating his Fourteenth Amendment right to

8 direct his child’s education.

9 11.Plaintiff's Third Amended Complaint must be complete by itself without reference

10 to prior pleadings; any defendants not named and claims not re-alleged in the Third

11 Amended Complaint will be considered waived. See S.D. Cal. Civ. L. R. 15.1; Hal

12 Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989)

13 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693

14 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend may

15 be considered “waived if not repled” in the amended pleading).

16 12.If Plaintiff does not amend, Defendants may file a motion to dismiss the remaining

17 claims by November 12, 2025. Per the Court’s June 16, 2025 minute order, the

18 Third Amended Complaint must refer to A.A. and any other minor children by

19 initials only. See Dkt. 23.

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21 ISSO ORDERED.

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23 || Dated: October 22, 2025

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95 Honorable Jinsook Ohta

United States District Judge

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