James Endy v. County of Los Angeles

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 27 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES ENDY, No. 16-56613

Plaintiff-Appellant, D.C. No.

2:16-cv-03344-RGK-SK

v.

COUNTY OF LOS ANGELES; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted March 9, 2018

Pasadena, California

Before: TASHIMA and NGUYEN, Circuit Judges, and SIMON,** District Judge.

James Endy appeals the dismissal of his complaint against the County of Los

Angeles (“the County”) and various individuals employed by its Department of

Children and Family Services (“DCFS”) (collectively, “the social workers”) for

conduct surrounding allegations of abuse made against him that were ultimately

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The Honorable Michael H. Simon, United States District Judge for the

District of Oregon, sitting by designation.

ruled unsubstantiated. We have jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm in part, vacate in part, and remand to the district court with instructions to

dismiss without prejudice.

1. Endy contends that the County violated his due process rights.

California law sets forth a specific procedure for challenging a substantiated

allegation of abuse included in the California Child Abuse Central Index

(“CACI”). See Cal. Penal Code § 11169(d). Due process requires no more, and

the district court did not err in dismissing with prejudice Endy’s due process claim

regarding his inclusion in CACI. See Humphries v. County of Los Angeles, 554

F.3d 1170, 1184 (9th Cir. 2009), rev’d on other grounds sub nom. Los Angeles

County v. Humphries, 562 U.S. 29 (2010) (“In procedural due process claims, the

deprivation of a constitutionally protected interest ‘is not itself unconstitutional;

what is unconstitutional is the deprivation of such an interest without due process

of law.’” (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)).1

2. Endy’s argument that he cannot avail himself of the procedure set

forth in § 11169(d) is not convincing. Endy was told he could request a hearing

after his court proceeding had terminated, if the court found the allegations

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Nor was it error for the district court to conclude that a one-time failure to

notify Endy of his inclusion in CACI was not a violation of due process. See

Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“[I]mproper custom may not be

predicated on isolated or sporadic incidents.”).

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unsubstantiated. The most natural reading of § 11169(e), as a whole, confirms the

same: if a court finds allegations unsubstantiated, an accused may request a hearing

for removal from CACI, but if a court finds the allegations substantiated, he cannot

collaterally attack that finding.2

3. The district court properly dismissed the social workers because they

are entitled to qualified immunity for Endy’s due process claims. Endy fails to cite

any precedent that could have put the social workers on notice that their reporting

of Endy in CACI and the California Child Welfare Services Case Management

System (“CWS/CMS”), or their alleged failure to update that information, would

constitute a due process violation. See Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011) (“A Government official’s conduct violates clearly established law when, at

the time of the challenged conduct, the contours of a right are sufficiently clear that

every reasonable official would have understood that what he is doing violates that

right.” (internal quotation marks and alterations omitted)); cf. Humphries, 554 F.3d

2

Given that a challenging procedure is available, Endy’s claim that the

County’s failure to automatically remove him from CACI in violation of California

Penal Code § 11169(h) constitutes a violation of due process also fails. See

Zinermon v. Burch, 494 U.S. 113 (1990) (“The constitutional violation actionable

under § 1983 is not complete when the deprivation occurs; it is not complete unless

and until the State fails to provide due process.”); see also Galen v. County of Los

Angeles, 477 F.3d 652, 662 (9th Cir. 2007) (“Section 1983 requires [the plaintiff]

to demonstrate a violation of federal law, not state law.”). We note that although

Endy failed to utilize the grievance hearing procedure after state proceedings

against him concluded, the County’s counsel represented at oral argument that

Endy in fact has been removed from CACI.

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at 1202 (“‘[A]n officer who acts in reliance on a duly-enacted statute . . . is

ordinarily entitled to qualified immunity’ which is lost only if it is ‘so obviously

unconstitutional as to require a reasonable officer to refuse to enforce it.’” (quoting

Grossman v. City of Portland, 33 F.3d 1200, 1209–10 (9th Cir.1994))).

4. On this record, it is not clear whether there is a separate mechanism

for Endy to review and challenge information included in CWS/CMS. However,

Penal Code § 11169(d) allows him to challenge the factual allegations underlying

the abuse complaint. Until he avails himself of that procedure, it will not be clear

whether the information included in CWS/CMS is in violation of his due process

rights. Thus, Endy’s due process claim against the County regarding CWS/CMS

was properly dismissed as premature.3

***

We affirm the dismissal with prejudice of Endy’s due process claim against

the County regarding CACI and of all claims against the social workers. On

remand, the district court shall enter judgment dismissing Endy’s due process

claim against the County regarding the information included in CWS/CMS without

prejudice.

3

Without having adequately pled a constitutional violation, Endy’s civil

conspiracy claim also fails. See Woodrum v. Woodward County, 866 F.2d 1121,

1126 (9th Cir. 1989) (dismissing civil conspiracy claim where plaintiff had not

shown “any actual deprivation of his constitutional rights”).

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AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

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