Jonathan Capp v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JONATHAN C. CAPP; N.C., a minor, No. 18-55119

by and thru their Guardian ad litem;

J.C., a minor, by and thru their D.C. No.

Guardian ad litem, 3:16-cv-02870-

Plaintiffs-Appellants, AJB-MDD

v.

ORDER AND

COUNTY OF SAN DIEGO; KATHY OPINION

JACKSON; BOB PROKESCH; JOHANNA

FIRTH; SAN DIEGO HEALTH AND

HUMAN SERVICES AGENCY,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of California

Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted July 10, 2019

Pasadena, California

Filed October 4, 2019

2 CAPP V. COUNTY OF SAN DIEGO

Before: MILAN D. SMITH, JR. and MICHELLE T.

FRIEDLAND, Circuit Judges, and STANLEY A.

BASTIAN, * District Judge.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY **

Civil Rights

The panel withdrew its opinion filed August 30, 2019,

and filed a superseding opinion that affirmed in part and

reversed in part the district court’s dismissal of plaintiffs’

claims as insufficiently pled in an action brought by

Jonathan Capp and his two minor children arising from a

child welfare investigation undertaken by County of San

Diego social workers that allegedly violated plaintiffs’ First,

Fourth, and Fourteenth Amendment rights.

Plaintiffs asserted, in part, that social workers retaliated

against Capp in violation of the First Amendment after he

questioned abuse allegations against him and criticized the

County. Plaintiffs asserted that defendants placed Capp on

the Child Abuse Central Index and coerced his ex-wife to

file an ex parte custody application.

*

The Honorable Stanley A. Bastian, United States District Judge for

the Eastern District of Washington, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

CAPP V. COUNTY OF SAN DIEGO 3

The panel first rejected the retaliation claim premised on

the Child Abuse Central Index listing. The panel held that

taking the allegations as a whole, the first amended

complaint did not plausibly allege that Capp was placed on

the Index as intentional retaliation. Focusing on plaintiffs’

allegation that defendant social worker coerced Capp’s

former wife to file the ex parte custody application, the panel

found that pursuant to the liberal pleading standard afforded

pro se litigants, plaintiffs plausibly alleged that Capp

engaged in protected activity, that the alleged retaliation

would objectively have had a chilling effect and that

retaliation was the but-for motive for the social worker’s

actions. Plaintiffs therefore pleaded a plausible First

Amendment retaliation claim. The panel further concluded

that the accused defendant social worker was not entitled to

qualified immunity. The panel held that a reasonable official

would have known that taking the serious step of threatening

to terminate a parent’s custody of his children, when the

official would not have taken this step absent her retaliatory

intent, violates the First Amendment. The panel held that

because plaintiffs alleged that retaliatory animus was the

but-for cause of defendant’s conduct, defendant was not

entitled to qualified immunity.

The panel held that the district court properly dismissed

plaintiffs’ Fourth Amendment and Fourteenth Amendment

claims, and claims brought pursuant to Monell v.

Department of Social Services, 436 U.S. 658 (1978), which

alleged that defendants interviewed the minor children while

they were at school without Capp’s consent. The panel held

that the first amended complaint contained no facts as to

whether the interviews were conducted without either

parent’s permission, the length of the interviews, or the

specific circumstances of the interviews. Moreover, the

panel held that even if plaintiffs had pleaded a plausible

4 CAPP V. COUNTY OF SAN DIEGO

Fourth Amendment claim, defendants would be entitled to

qualified immunity because the right of minor children to be

free from unconstitutional seizures and interrogations by

social workers had not been clearly established.

Rejecting the Fourteenth Amendment substantive due

process claim, the panel held that although Capp might have

been subjected to an investigation by the County’s Health

and Human Services Agency, that alone was not cognizable

as a violation of the liberty interest in familial relations. The

panel rejected the Monell claim, concluding that plaintiffs

failed to plead a plausible constitutional violation stemming

from defendants’ interviews with the children. Moreover,

even if plaintiffs had pleaded a plausible Fourth Amendment

claim, the first amended complaint ascribed defendants’

alleged misconduct to official policy in a conclusory fashion

that was insufficient to state a viable claim.

COUNSEL

Jonathan Charles Capp (argued), Law Offices of Jonathan C.

Capp, San Diego, California, pro se Plaintiff-Appellant.

Christina Snider (argued), Senior Deputy; Thomas E.

Montgomery, County Counsel; Office of County Counsel,

San Diego, California; for Defendant-Appellee.

CAPP V. COUNTY OF SAN DIEGO 5

ORDER

The opinion filed August 30, 2019, and reported at

— F.3d —, 2019 Westlaw 4123515, is hereby withdrawn. A

superseding opinion will be filed concurrently with this

order.

OPINION

M. SMITH, Circuit Judge:

Plaintiffs Jonathan Capp and his children, N.C. and J.C.,

assert § 1983 and Monell claims against Defendants County

of San Diego (the County); the County’s Health and Human

Services Agency (the Agency); and Kathy Jackson, Bob

Prokesch, and Johanna Firth, social workers employed by

the Agency. The action stems from a child welfare

investigation undertaken by Defendants that allegedly

violated Plaintiffs’ First, Fourth, and Fourteenth

Amendment rights.

The district court dismissed all of Plaintiffs’ claims as

insufficiently pleaded or barred by qualified immunity. We

agree that Plaintiffs’ first amended complaint (FAC) fails to

plausibly allege Fourth Amendment, Fourteenth

Amendment, and Monell claims. We also conclude,

however, that Plaintiffs plead a viable First Amendment

retaliation claim, and that Defendants are not entitled to

qualified immunity on this claim.

6 CAPP V. COUNTY OF SAN DIEGO

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

The facts as presented are derived from Plaintiffs’ FAC.

For purposes of our analysis, we accept the allegations as

true. See Karam v. City of Burbank, 352 F.3d 1188, 1192

(9th Cir. 2003).

Capp is the father of two minor children, N.C. (age 11 at

the time Plaintiffs filed their FAC) and J.C. (age 9), whose

legal custody he shares with their mother, Debora. Capp and

Debora were in the midst of divorce proceedings at the time

of Defendants’ investigation.

On August 13, 2015, the Agency received a referral

alleging that N.C. and J.C. “may be at-risk of General

Neglect, Severe Neglect, and Emotional Abuse by Jonathan

Capp.” Firth, a social worker, informed Capp that “she

wished to speak with him regarding his children and

referenced a substance abuse problem”; the two arranged a

meeting for August 26. During that meeting, Capp learned

that Firth had interviewed N.C. and J.C. at their elementary

school “without [Capp’s] consent.” Although Capp

repeatedly asked for clarification regarding the allegations

against him, Firth was evasive and “unilaterally terminated

the interview.”

That same day, Capp sent a letter to the Agency, calling

the interview “Kafkaesque” and deeming the “offensive

allegations (whatever they may be) [] bogus and extremely

offensive.” The letter chastised Firth for “fle[eing]” the

meeting, and for “interview[ing Capp’s] children without

[his] consent.” Capp concluded, “In any event, be in no

doubt that if you continue on your unlawful and

unconstitutional course I will take this matter even further.”

CAPP V. COUNTY OF SAN DIEGO 7

Soon after, Capp learned that Debora’s attorney “had

instructed her client to withhold custody of the children

pursuant to ‘instructions from [the Agency],’” which had

apparently told Debora to “apply ex-parte to the San Diego

family court . . . to take custody from [Capp].” Indeed, a

declaration from Debora filed with the application read in

part,

Firth gave me a letter . . . advising me not to

force our children to visit with their father. It

was suggested strongly to me that I seek legal

action immediately to keep our children safe.

They have been indicating to me that they do

not want to see their father, who is often

angry with them, yells at them, calls them

names (such as “spoiled” and “b—”), and

scares them.

Subsequently, the family court “denied the application and

rebuked [the Agency].” Capp spoke with Jackson, Firth’s

supervisor, who assured him that she “would make sure that

all appropriate procedures would be followed” and that “the

case would be closed.” Prokesch later interviewed Capp and

“could not in any way articulate any serious (or even

significant or any) allegations against [him],” though

Prokesch did mention an allegation that Capp “may have

driven the children in a car whilst under the influence.”

Eventually, Jackson, Firth, and Prokesch signed a letter to

the court indicating that the evidence against Capp was

“inconclusive.” The Agency then closed the referral.

The closing of the referral notwithstanding, Capp later

received a letter from the Agency informing him that “the

allegations of abuse or severe neglect” were, in fact,

“substantiated,” and that Capp had consequently been placed

8 CAPP V. COUNTY OF SAN DIEGO

on the Child Abuse Central Index (CACI). 1 After Capp

complained to Jackson and others, another employee of the

Agency allegedly “confirmed again that he was on the CACI

register but that she would recommend that he be taken off.”

Capp was later informed that “due to a clerical or

administrative error or issue,” he “had not been placed on the

CACI at all,” despite his having been informed otherwise.

He eventually received a letter from the Agency confirming

that his “name has not been listed on the [CACI].”

II. Procedural History

Plaintiffs filed their initial complaint in November 2016.

The district court granted Defendants’ first motion to dismiss

with leave to amend, and Plaintiffs subsequently filed the

FAC.

Plaintiffs’ § 1983 claim asserts in part that Defendants

retaliated against Capp in violation of the First Amendment.

They allege that after Capp exercised his First Amendment

rights by questioning the abuse allegations against him and

the legal basis for Firth’s interviews, and then by lodging

various criticisms against the County, Firth “coerced”

Debora to file the ex parte application and, together with

Jackson and Prokesch, placed him on the CACI. They also

allege that these actions, and the investigation generally,

violated Capp’s Fourteenth Amendment right to familial

association, and that the interviews with the children

violated their Fourth Amendment right to be free from

1

The CACI is an index of child abuse maintained pursuant to the

California Child Abuse and Neglect Reporting Act, which requires that

agencies “forward to the Department of Justice a report in writing of

every case it investigates of known or suspected child abuse or severe

neglect that is determined to be substantiated.” Cal. Penal Code

§§ 11164, 11169–70.

CAPP V. COUNTY OF SAN DIEGO 9

unreasonable seizure. Plaintiffs also assert a cause of action

pursuant to Monell v. Department of Social Services,

436 U.S. 658 (1978), based on the County’s alleged “policy

of detaining and interviewing children without exigent

circumstances . . . , court order or consent of their parent,” in

violation of the Fourth Amendment.

Defendants again moved to dismiss, and the district court

granted the motion as to all causes of action except the First

Amendment retaliation claim. As to this remaining claim,

the district court concluded that, “[w]hile there is no

precedent directly on point that allows First Amendment

retaliation claims to go forward against social workers,”

Firth and Prokesch could not claim qualified immunity

because “[r]easonable social workers in Defendants’

positions know or should know that baselessly taking action

that could lead to a child being wrongfully removed from its

parents would [run] afoul of the First Amendment.”

Defendants then filed a motion for reconsideration,

contending that the district court’s qualified immunity

analysis had been flawed. The court agreed, concluding that

“there was [] no clearly established law at the time denoting

defendants’ specific actions in this case as unlawful,” and

therefore that “qualified immunity [] attache[d]” to both

Firth and Prokesch. All claims having been dismissed, the

district court entered final judgment, and this timely appeal

followed.

JURISDICTION AND STANDARD OF REVIEW

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

“We review de novo a district court’s dismissal of a

complaint under [Federal Rule of Civil Procedure] 12(b)(6)

for failure to state a claim.” Applied Underwriters, Inc. v.

10 CAPP V. COUNTY OF SAN DIEGO

Lichtenegger, 913 F.3d 884, 890 (9th Cir. 2019) (quoting

Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011)). “When

ruling on a motion to dismiss, we accept all factual

allegations in the complaint as true and construe the

pleadings in the light most favorable to the nonmoving

party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.

2005). The allegations “must ‘plausibly give rise to an

entitlement to relief.’” Dougherty v. City of Covina,

654 F.3d 892, 897 (9th Cir. 2011) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009)). We have emphasized that pro se

pleadings, such as the FAC in this case, are to be liberally

construed on a motion to dismiss. See, e.g., Thompson v.

Davis, 295 F.3d 890, 895 (9th Cir. 2002).

We review a grant of qualified immunity de novo. Entler

v. Gregoire, 872 F.3d 1031, 1038 (9th Cir. 2017).

ANALYSIS

I. First Amendment Retaliation Claim

After considering Defendants’ motion for

reconsideration, the district court concluded that qualified

immunity attaches to this claim.

“The doctrine of qualified immunity protects

government officials ‘from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). It “gives government officials breathing room to

make reasonable but mistaken judgments about open legal

questions,” and, “[w]hen properly applied, [] protects ‘all but

the plainly incompetent or those who knowingly violate the

CAPP V. COUNTY OF SAN DIEGO 11

law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

The Supreme Court has articulated a discretionary

two-step sequence for resolving government

officials’ qualified immunity claims. First, a

court must decide whether the facts that a

plaintiff has alleged or shown make out a

violation of a constitutional right. Second, if

the plaintiff has satisfied this first step, the

court must decide whether the right at issue

was “clearly established” at the time of

defendant’s alleged misconduct.

Pearson, 555 U.S. at 232 (citations omitted) (quoting

Saucier v. Katz, 533 U.S. 194, 201 (2001)). Accordingly,

we first consider whether Plaintiffs plausibly plead a

violation of a constitutional right, before deciding whether

that right was clearly established.

A. Violation of a Constitutional Right

To state a First Amendment retaliation claim, a plaintiff

must plausibly allege “that (1) he was engaged in a

constitutionally protected activity, (2) the defendant’s

actions would chill a person of ordinary firmness from

continuing to engage in the protected activity and (3) the

protected activity was a substantial or motivating factor in

the defendant’s conduct.” O’Brien v. Welty, 818 F.3d 920,

932 (9th Cir. 2016) (quoting Pinard v. Clatskanie Sch. Dist.

6J, 467 F.3d 755, 770 (9th Cir. 2006)). To ultimately

“prevail on such a claim, a plaintiff must establish a ‘causal

connection’ between the government defendant’s

‘retaliatory animus’ and the plaintiff’s ‘subsequent injury.’”

Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (quoting

12 CAPP V. COUNTY OF SAN DIEGO

Hartman v. Moore, 547 U.S. 250, 259 (2006)). Specifically,

a plaintiff must show that the defendant’s retaliatory animus

was “a ‘but-for’ cause, meaning that the adverse action

against the plaintiff would not have been taken absent the

retaliatory motive.” Id. (quoting Hartman, 547 U.S. at 260).

Plaintiffs premise their First Amendment retaliation

claim on two allegedly retaliatory actions: (1) Firth’s

coercing Debora to file the ex parte custody application, and

(2) Firth’s, Prokesch’s, and Jackson’s placing Capp on the

CACI.

At the outset, we reject Plaintiffs’ retaliation claim

premised on the CACI listing. In ruling on Defendants’

motion to dismiss, the district court concluded that the FAC

did not actually plead that Capp was ever placed on the

CACI. We agree that, taking the allegations as a whole, the

FAC does not plausibly allege that Capp was placed on the

CACI as intentional retaliation. According to the FAC,

Capp was twice informed that he had never been placed on

the CACI, so the more plausible inference to draw from the

FAC is that Capp was either never listed on the CACI, or

that he was briefly and accidentally listed and then promptly

removed. Thus, even if Capp might have “reasonably

believed that he had been placed on the register,” this does

not give rise to Plaintiffs’ retaliation claim, since such a

belief is distinct from actual, intentional placement on the

register. Accordingly, even under the liberal pleading

standards afforded to the FAC, we cannot accept the CACI

listing as a plausible foundation for Plaintiffs’ First

Amendment retaliation claim.

CAPP V. COUNTY OF SAN DIEGO 13

We therefore focus only on Plaintiffs’ allegation that

Firth coerced Debora to file the ex parte custody application

in retaliation for Capp’s criticism. 2

i. Constitutionally Protected Activity

The first O’Brien element is satisfied here. It is well

settled that the activity for which Capp was allegedly

retaliated against—voicing criticism of the Agency’s

conduct—is constitutionally protected. See Hartman,

547 U.S. at 256 (“[T]he law is settled that as a general matter

the First Amendment prohibits government officials from

subjecting an individual to retaliatory actions . . . for

speaking out.”); Ford v. City of Yakima, 706 F.3d 1188,

1192–93 (9th Cir. 2013) (per curiam) (“While an

individual’s critical comments may be ‘provocative and

challenging,’ they are ‘nevertheless protected against

censorship or punishment, unless shown likely to produce a

clear and present danger of a serious substantive evil that

rises far above public inconvenience, annoyance, or unrest.’”

(quoting City of Houston v. Hill, 482 U.S. 451, 461 (1987))),

abrogated on other grounds by Nieves, 139 S. Ct. 1715.

ii. Chilling Effect

Defendants correctly observe that Capp was not muzzled

by the ex parte custody application. The FAC alleges that

2

Although the district court apparently interpreted the ex parte

application allegation as being directed against both Firth and Prokesch,

the FAC does not clearly attribute this alleged misconduct to Prokesch.

Instead, it reads, “At least Defendant [Firth] coerced the children’s

mother to file an ex-parte application . . . .” Given this language, and in

light of the allegations contained elsewhere in the complaint, we construe

this specific claim as being directed against Firth only, and not against

Prokesch or any other Defendant.

14 CAPP V. COUNTY OF SAN DIEGO

“[u]pon receiving the ex-parte application,” Capp

“immediately contacted his State Assembly member . . . and

his local San Diego county supervisor . . . to protest what

was happening,” and “as a result . . . was advised to contact”

supervisor Jackson. Clearly, Capp was not chilled by the

alleged retaliation; he continued, and even escalated, his

protected activity.

Our inquiry, however, is not whether Defendants’

actions actually chilled Capp, but rather whether the alleged

retaliation “would chill a person of ordinary firmness from

continuing to engage in the protected activity.” O’Brien,

818 F.3d at 932 (emphasis added) (quoting Pinard, 467 F.3d

at 770); see also id. at 933 (“The test is generic and objective.

Whether O’Brien himself was, or would have been, chilled

is not the test.”); Mendocino Envtl. Ctr. v. Mendocino

County, 192 F.3d 1283, 1300 (9th Cir. 1999) (“Because it

would be unjust to allow a defendant to escape liability for a

First Amendment violation merely because an unusually

determined plaintiff persists in his protected activity, we

conclude that the proper inquiry asks ‘whether an official’s

acts would chill or silence a person of ordinary firmness

from future First Amendment activities.’” (quoting

Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996))).

The threat of losing custody of one’s children is a severe

consequence that would chill the average person from

voicing criticism of official conduct. Accordingly,

notwithstanding the fact that Capp himself was not chilled

by Firth’s conduct, we conclude that the alleged retaliation

would objectively have had a chilling effect.

iii. Substantial or Motivating Factor

The closest issue before us is whether Plaintiffs plausibly

plead that Capp’s criticism “was a substantial or motivating

factor” in Firth’s decision to instruct Debora to seek custody

CAPP V. COUNTY OF SAN DIEGO 15

of N.C. and J.C. O’Brien, 818 F.3d at 932 (quoting Pinard,

467 F.3d at 770).

The FAC alleges that Firth “coerced [Debora] to file an

ex-parte application in an attempt to strip [Capp] of custody

of the children,” and that this act was “purely motivated by

[Defendants’] desire to retaliate against” Capp. Specifically,

Plaintiffs appear to allege that Firth coerced Debora into

entering a safety plan—which provided that Debora would

seek sole custody—by threatening to “instigate juvenile

proceedings.” 3 Plaintiffs further allege that Defendants

“would not have otherwise acted as such but for the activity

of [Capp] as described” in the complaint because “there was

no objective basis to . . . strip him of custody.”

Defendants argue that Plaintiffs “offer[] nothing but

suspicion and speculation to support [their] allegations that

the social workers’ actions were motivated by retaliatory

animus.” But we have recognized that such speculation is

hardly unusual in retaliation cases. See Watison v. Carter,

668 F.3d 1108, 1114 (9th Cir. 2012) (“Because direct

evidence of retaliatory intent rarely can be pleaded in a

complaint, allegation of a chronology of events from which

retaliation can be inferred is sufficient to survive

dismissal.”).

More problematic to Plaintiffs’ claim is the Supreme

Court’s admonition that an allegation is not plausible where

there is an “obvious alternative explanation” for alleged

3

The safety plan attached to the FAC stated that its purpose “is to

allow children to remain in their homes pending completion of the

investigation by Child Welfare Services (CWS) when one or more Safety

Factors are identified.” It specified that “Mom plans to keep the children

in her care until her Family Court attorney can file for an emergency

custody order next week.”

16 CAPP V. COUNTY OF SAN DIEGO

misconduct. Iqbal, 556 U.S. at 682 (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 567 (2007)). Here, in its

reconsideration order, the district court concluded that

[i]t is not entirely clear from Capp’s

complaint that defendants’ motives were to

punish Capp for exercising his first

amendment rights. . . . A social worker’s job

is to make recommendations when they fear

a minor might be in danger—thus it appears

to this Court that Firth may have been simply

doing her job.

We recognize that social workers like Firth have a legal

obligation to investigate allegations of child abuse. See, e.g.,

Cal. Welf. & Inst. Code § 328 (requiring a social worker to

“immediately make any investigation he or she deems

necessary” if child abuse is suspected); cf. Mann v. County

of San Diego, 907 F.3d 1154, 1156 (9th Cir. 2018)

(recognizing “the state’s interest in protecting children from

abusive or neglectful conditions”). Here, Debora’s

declaration accompanying her ex parte application, which

was included in the FAC, stated that Capp’s children “ha[d]

been indicating . . . that they do not want to see their father,

who is often angry with them, yells at them, calls them

names . . . and scares them.” Defendants contend that,

“[b]ased on these statements from Debora alone, it was

reasonable for Firth to encourage Debora to seek to limit

Capp’s custody.”

It is true that the allegations about Debora’s concerns

lead to the inference, which the district court made, that Firth

was at least partially motivated by her legal obligations to

protect the children. It is also true that if this were Firth’s

only motive, Plaintiffs’ First Amendment retaliation claim

CAPP V. COUNTY OF SAN DIEGO 17

would necessarily fail because the third O’Brien element

would not be satisfied.

And yet, we conclude that the mere existence of a

legitimate motive, supported though it might be by the FAC,

is insufficient to mandate dismissal. If Firth would not have

made the recommendation absent retaliatory animus, there

could still be a viable retaliation claim. See O’Brien,

818 F.3d at 936 (“We have previously made it clear that

there is a right to be free from retaliation even if a non-

retaliatory justification exists for the defendants’ action.”).

And Plaintiffs have plausibly alleged that retaliatory animus

was a but-for cause of Firth’s actions.

We find instructive the Supreme Court’s decision in

Nieves. There, the Court held that plaintiffs bringing “First

Amendment retaliatory arrest claims” must generally “plead

and prove the absence of probable cause.” Nieves, 139 S.

Ct. at 1723. In “retaliatory arrest cases,” the Court

explained, there is “a tenuous causal connection between the

defendant’s alleged animus and the plaintiff’s injury.” Id.

(quoting Reichle v. Howards, 566 U.S. 658, 668 (2012)).

“[P]rotected speech is often a ‘wholly legitimate

consideration’ for officers when deciding whether to make

an arrest,” given that “a suspect’s speech may convey vital

information” like whether the suspect is willing to cooperate.

Id. at 1724 (quoting Reichle, 566 U.S. at 668). If the plaintiff

demonstrates that the arresting officer lacked probable

cause, that showing bridges the causal gap by “reinforc[ing]

the retaliation evidence and show[ing] that retaliation was

the but-for basis” of the official’s action. Id. at 1723

(quoting Hartman, 547 U.S. at 261).

But the Court carved out an exception to the “no-

probable-cause requirement” in retaliatory arrest cases. Id.

at 1727. That requirement does “not apply when a plaintiff

18 CAPP V. COUNTY OF SAN DIEGO

presents objective evidence that he was arrested when

otherwise similarly situated individuals not engaged in the

same sort of protected speech had not been.” Id. For

example, “[i]f an individual who has been vocally

complaining about police conduct is arrested for

jaywalking”—an offense that “rarely results in arrest”—“it

would seem insufficiently protective of First Amendment

rights to dismiss the individual’s retaliatory arrest claim on

the ground that there was undoubted probable cause for the

arrest.” Id. A plaintiff who shows differential treatment

“addresses [the] causal concern by helping to establish that

‘non-retaliatory grounds [we]re in fact insufficient to

provoke the adverse consequences.’” Id. (second alteration

in original) (quoting Hartman, 547 U.S. at 256).

In this case, Plaintiffs have pleaded both a lack of any

substantiated concern for the children’s safety (which may

well be the equivalent of probable cause in this context) 4 and

4

We have not previously decided, and do not decide in this case,

what the Constitution requires before a social worker may coerce a

parent into entering a safety plan—as Plaintiffs appear to allege Firth did

here. The two circuits that have addressed this question have held that

social workers must have “reasonable suspicion” of abuse. Hernandez

ex rel. Hernandez v. Foster, 657 F.3d 463, 482 (7th Cir. 2011) (requiring

“‘some definite and articulable evidence giving rise to a reasonable

suspicion’ of past or imminent danger of abuse” (quoting Brokaw v.

Mercer County, 235 F.3d 1000, 1019 (7th Cir. 2000))); Croft v.

Westmoreland Cty. Children & Youth Servs., 103 F.3d 1123, 1126 (3d

Cir. 1997) (requiring “an objectively reasonable suspicion of abuse”). If

this is the correct standard, then a social worker would likely need to

corroborate allegations of abuse to satisfy it. Cf. United States v.

Williams, 846 F.3d 303, 308–09 (9th Cir. 2016) (holding that officers

had reasonable suspicion when an identified tipster’s information was

“verified . . . through independent observation”); United States v.

Rowland, 464 F.3d 899, 907–08 (9th Cir. 2006) (holding that agents had

reasonable suspicion when they met with the informant and

“corroborated the informant’s tip”).

CAPP V. COUNTY OF SAN DIEGO 19

differential treatment. These allegations together support the

inference that Firth was motivated by retaliatory animus.

Plaintiffs plead that Debora’s allegations—that the

children “do not want to see their father, who is often angry

with them, yells at them, calls them names . . . and scares

them”—were not “serious” enough to warrant Firth’s

instructing Debora to seek sole custody. The FAC also

pleads that the allegations about Capp were not

substantiated. Plaintiffs allege that Prokesch “could not in

any way articulate any serious (or even significant or any)

allegations against [Capp],” that a judge declined to modify

Capp’s custody arrangement in response to Debora’s

allegations that their children were scared of Capp, and that

a judge “confirmed that [the County] had reported to the

court that the emotional abuse claims made against [Capp]

were inconclusive.” Accepting these allegations as true, we

infer from the FAC that retaliatory rather than legitimate

motives drove Firth’s actions.

Plaintiffs further allege that Firth only tried to modify

Capp’s custody, even though Debora had engaged in unsafe

behavior around the children. The FAC states that Firth

instructed Debora to seek sole custody, “even though

[Debora] was, at that very same time, on probation due to

her recently driving under the influence of alcohol with J.C.

and N.C. in the car[,] for which [Debora] was charged with

child endangerment as well as a D.U.I.” The FAC

additionally alleges that a “family law judge came within a

hair’s breadth of stripping [Debora] of her physical

custody.” “[C]onstru[ing] the complaint in the light most

favorable” to Plaintiffs, Doe v. United States, 419 F.3d 1058,

1062 (9th Cir. 2005), the FAC pleads that even though there

was reason to be concerned about both Capp and Debora,

20 CAPP V. COUNTY OF SAN DIEGO

Firth only ever took action against the parent who had

decided to exercise his First Amendment rights.

We acknowledge that this is likely to be a very close

case. 5 At summary judgment or at trial, Defendants could

well marshal evidence that Firth and her colleagues were

motivated primarily by their legal obligation to investigate

allegations of child abuse, and would have made the custody

recommendation for that reason alone. See Karam, 352 F.3d

at 1194 (rejecting First Amendment retaliation claim where

plaintiff’s “speculation as to [] improper motive does not rise

to the level of evidence sufficient to survive summary

judgment”). But Plaintiffs plead that Defendants, Firth

included, “were purely motivated by their desire to retaliate

against” Capp, acted “without proper reason or authority”

and “without reasonable probable cause,” and “ma[de] false

and misleading statements to retaliate against [Capp] and in

order to unduly influence and threaten [Debora] to file an

application with the Family court.” Taking these allegations

in the light most favorable to Plaintiffs, and emphasizing the

liberal pleading standard afforded to pro se litigants, we

conclude that Plaintiffs have plausibly alleged that

retaliation was the but-for motive for Firth’s actions.

Plaintiffs therefore plead a plausible First Amendment

retaliation claim. 6

5

To underscore this point, we observe that the district court initially

concluded that Plaintiffs pleaded a viable First Amendment retaliation

claim, before reconsidering its position.

6

Our conclusion that Plaintiffs have plausibly alleged but-for

causation should not be read as disturbing our court’s prior cases holding

that plaintiffs need only plausibly allege that retaliatory animus was a

substantial or motivating factor to state a First Amendment retaliation

claim that survives a motion to dismiss. See, e.g., The Koala v. Khosla,

CAPP V. COUNTY OF SAN DIEGO 21

B. Clearly Established

Having determined that Plaintiffs plead a plausible First

Amendment retaliation claim, we now move to the second

prong of the qualified immunity analysis: whether “the right

at issue was ‘clearly established’ at the time of defendant’s

alleged misconduct.” Pearson, 555 U.S. at 232 (quoting

Saucier, 533 U.S. at 201). We conclude that Plaintiffs have

sufficiently pleaded a violation of their clearly established

First Amendment rights, and that Firth is therefore not

entitled to qualified immunity.

“[F]or a right to be clearly established, existing

precedent must have placed the statutory or constitutional

question beyond debate,” though there need not be “a case

directly on point.” Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (per curiam) (quoting White v. Pauly, 137 S. Ct. 548,

551 (2017) (per curiam)); see also White, 137 S. Ct. at 552

(“Today, it is again necessary to reiterate the longstanding

principle that ‘clearly established law’ should not be defined

‘at a high level of generality.’” (quoting al-Kidd, 563 U.S.

at 742)); Reese v. County of Sacramento, 888 F.3d 1030,

1038–39 (9th Cir. 2018) (noting that while we “do not

demand a case with ‘materially similar’ factual

circumstances or even facts closely analogous to [plaintiff’s]

case,” existing caselaw must “demonstrate that the contours

of [the] right were sufficiently clear such that ‘any

reasonable official in [his] shoes would have understood that

he was violating it’” (third alteration in original) (first

quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002); and then

931 F.3d 887, 905 (9th Cir. 2019); Ariz. Students’ Ass’n v. Ariz. Bd. of

Regents, 824 F.3d 858, 867 (9th Cir. 2016); O’Brien, 818 F.3d at 932,

935–36.

22 CAPP V. COUNTY OF SAN DIEGO

quoting City and County of San Francisco v. Sheehan,

135 S. Ct. 1765, 1774 (2015))). 7

In holding that Plaintiffs plead a plausible retaliation

claim, we already determined that the threat of losing

custody of one’s children would ordinarily chill First

Amendment activity. And it was clear at the time Firth acted

that a government actor could not take action that would be

expected to chill protected speech out of retaliatory animus

for such speech. See Nieves, 139 S. Ct. at 1722 (“‘[A]s a

general matter the First Amendment prohibits government

officials from subjecting an individual to retaliatory actions’

for engaging in protected speech.” (alteration in original)

(quoting Hartman, 547 U.S. at 256)); Mulligan v. Nichols,

835 F.3d 983, 989 n.5 (9th Cir. 2016) (recognizing that

“[i]nformal measures, such as ‘the threat of invoking legal

sanctions and other means of coercion, persuasion, and

intimidation,’ can violate the First Amendment” (alteration

in original) (quoting White v. Lee, 227 F.3d 1214, 1228 (9th

Cir. 2000))). A reasonable official would have known that

taking the serious step of threatening to terminate a parent’s

custody of his children, when the official would not have

taken this step absent her retaliatory intent, violates the First

Amendment. Because Plaintiffs have alleged that retaliatory

7

Plaintiffs suggest that Kisela, White, and Reese are inapplicable

here because they involved excessive force by police officers in violation

of the Fourth Amendment. But we have applied the general principles

of qualified immunity that these cases articulated in a variety of contexts.

See, e.g., Hoch v. Sanzberro, 723 F. App’x 513, 514 (9th Cir. 2018)

(psychiatric technician sued for search and seizure); Daniels Sharpsmart,

Inc. v. Smith, 889 F.3d 608, 617–18 (9th Cir. 2018) (state Department of

Health officials sued for violation of Commerce Clause); Reynolds v.

Bryson, 716 F. App’x 668, 668–69 (9th Cir. 2018) (social workers sued

for removal of child).

CAPP V. COUNTY OF SAN DIEGO 23

animus was the but-for cause of Firth’s conduct, Firth is not

entitled to qualified immunity.

Although we conclude at this early stage of the litigation

that Firth is not entitled to qualified immunity, that does not

necessarily mean that this case will progress to trial. “Once

an evidentiary record has been developed through discovery,

defendants will be free to move for summary judgment

based on qualified immunity.” O’Brien, 818 F.3d at 936.

II. Other Claims

We conclude that the district court properly dismissed

Plaintiffs’ Fourth Amendment, Fourteenth Amendment, and

Monell claims.

A. Fourth Amendment

Plaintiffs assert that Defendants violated their Fourth and

Fourteenth Amendment rights based on the interviews of

N.C. and J.C. while they were at school.

“A ‘seizure’ triggering the Fourth Amendment’s

protections occurs only when government actors have, ‘by

means of physical force or show of authority, . . . in some

way restrained the liberty of a citizen.’” Graham v. Connor,

490 U.S. 386, 395 n.10 (1989) (quoting Terry v. Ohio,

392 U.S. 1, 19 n.16 (1968)). The FAC provides insufficient

allegations to support Plaintiffs’ contention that the

interviews of N.C. and J.C. violated the Fourth Amendment.

It pleads that “the children were interviewed without the

consent of either of their parents, without the presence of

exigent circumstances, and without a prior judicial order or

warrant,” and includes the conclusory assertion that “[t]he

children were seized in that they were taken from their class

and had no choice but to comply with the demand that they

24 CAPP V. COUNTY OF SAN DIEGO

be detained and interviewed.” However, it contains no facts

as to whether the interviews were conducted without either

parent’s permission (and, here, their mother might have

consented), the length of the interviews, or the specific

circumstances of the interviews. Absent such allegations,

we cannot conclude that N.C. and J.C. were impermissibly

restrained.

Even if Plaintiffs had pleaded a plausible Fourth

Amendment claim, Defendants would be entitled to

qualified immunity because the right of minor children to be

free from unconstitutional seizures and interrogations by

social workers has not been clearly established. Plaintiffs

rely on Greene v. Camreta, in which we held that social

workers’ seizure and interrogation of a child, absent a

warrant, a court order, exigent circumstances, or parental

consent, was unconstitutional. See 588 F.3d 1011, 1030 (9th

Cir. 2009). The Supreme Court, however, vacated this

portion of Greene, and in so doing expressly acknowledged

that “[t]he point of vacatur is to prevent an unreviewable

decision ‘from spawning any legal consequences,’ so that no

party is harmed by what we have called a ‘preliminary’

adjudication.” Camreta v. Greene, 563 U.S. 692, 713 (2011)

(quoting United States v. Munsingwear, Inc., 340 U.S. 36,

40–41 (1950)); see also id. (noting that “a constitutional

ruling in a qualified immunity case is a legally consequential

decision” and hence that “[v]acatur [] rightly ‘strips the

decision below of its binding effect’” (quoting Deakins v.

Monaghan, 484 U.S. 193, 200 (1988))).

Additionally, although we determined in Greene that a

Fourth Amendment violation occurred in that case, we

nevertheless held that the social worker defendants had

qualified immunity because “our precedent did not clearly

establish that the in-school seizure of a student suspected of

CAPP V. COUNTY OF SAN DIEGO 25

being the victim of child sexual abuse can be subject to

traditional Fourth Amendment protections.” 588 F.3d

at 1033. The Supreme Court specifically “le[ft] untouched

the Court of Appeals’ ruling on qualified immunity and its

corresponding dismissal of [plaintiff’s] claim.” Camreta,

563 U.S. at 714 n.11. We are thus bound by Greene to

conclude that the Fourth Amendment right Plaintiffs seek to

vindicate was not clearly established.

B. Fourteenth Amendment

The basis for Plaintiffs’ Fourteenth Amendment claim is

the same as their First Amendment retaliation claim:

Defendants’ alleged retaliatory actions, which Plaintiffs

claim violated their “fundamental rights to familial

association and due process.”

“To establish a substantive due process claim, a plaintiff

must, as a threshold matter, show a government deprivation

of life, liberty, or property.” Nunez v. City of Los Angeles,

147 F.3d 867, 871 (9th Cir. 1998). Here, Plaintiffs have not

pleaded that Capp experienced such a deprivation. We have

recognized that “[o]fficial conduct that ‘shocks the

conscience’ in depriving parents of [a relationship with their

children] is cognizable as a violation of due process,”

Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)

(quoting Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir.

2008)), but Plaintiffs do not allege that Capp actually lost

custody of his children as a result of Defendants’ alleged

misconduct. 8 Capp might have been subjected to an

investigation by the Agency, but that alone is not cognizable

8

Quite the contrary, they claim that, after Debora filed the ex parte

application, the family court “denied the application and rebuked [the

Agency].”

26 CAPP V. COUNTY OF SAN DIEGO

as a violation of the liberty interest in familial relations. Cf.

Woodrum v. Woodward County, 866 F.2d 1121, 1124 (9th

Cir. 1989) (“A parent’s interest in the custody and care of his

or her children is a constitutionally protected liberty interest,

such that due process must be afforded prior to a termination

of parental status.” (emphasis added)). 9

C. Monell

Finally, Plaintiffs assert a Monell claim, based on the

allegedly unconstitutional interviews of N.C. and J.C. 10

As discussed above, we conclude that Plaintiffs failed to

plead a plausible constitutional violation stemming from

Defendants’ interviews with the children. Plaintiffs’ Monell

claim therefore fails. See Plumeau v. Sch. Dist. No. 40,

130 F.3d 432, 438 (9th Cir. 1997) (listing deprivation of a

constitutional right as an element of § 1983 municipal

liability). Moreover, even if Plaintiffs had pleaded a

plausible Fourth Amendment claim, the FAC ascribes

Defendants’ alleged misconduct to official policy in a

9

Plaintiffs also premise their Fourteenth Amendment claim on

Capp’s purported inclusion on the CACI, but as explained in our

discussion of the First Amendment retaliation claim, we conclude that

the FAC fails to plausibly plead that Capp was listed due to retaliatory

intent.

10

Although the FAC pleads that municipal “policies were the cause

of violation of Plaintiffs’ constitutional rights granted to them pursuant

to 42 U.S.C. § 1983 . . . including those under the First, Fourth[,] and

Fourteenth Amendments,” the only specific policy referenced relates to

“detaining and interviewing children without exigent circumstances

(imminent danger of serious bodily harm), court order or consent of their

parent or legal guardian.” The FAC does not indicate that the alleged

First and Fourteenth Amendment violations resulted from municipal

policy or custom.

CAPP V. COUNTY OF SAN DIEGO 27

conclusory fashion that is insufficient to state a viable claim.

See Dougherty, 654 F.3d at 900 (dismissing “Monell and

supervisory liability claims [that] lack[ed] any factual

allegations that would separate them from the ‘formulaic

recitation of a cause of action’s elements’ deemed

insufficient by Twombly” (quoting Twombly, 550 U.S.

at 555)).

CONCLUSION

Plaintiffs do not allege plausible § 1983 claims premised

on the Fourth and Fourteenth Amendments, and their Monell

claim is similarly insufficient. Plaintiffs do, however, plead

a plausible First Amendment retaliation claim, and we

conclude that Defendants are not entitled to qualified

immunity on this claim.

Each party shall bear its own costs on appeal.

AFFIRMED IN PART and REVERSED AND

REMANDED IN PART.