John Benavidez v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN BENAVIDEZ; HEATHER No. 19-55274

BENAVIDEZ; J.C.B., a minor; A.J.B.,

a minor by and through their D.C. No.

Guardian Ad Litem Diana 3:18-cv-00558-

Benavidez, CAB-AGS

Plaintiffs-Appellants,

v. OPINION

COUNTY OF SAN DIEGO; JENNIFER

LISK; BENITA JEMISON,

Defendants-Appellees,

and

SAN DIEGO HEATH AND HUMAN

SERVICES AGENCY; POLINKSY

CHILDREN'S CENTER; DOES, 1

through 50 inclusive,

Defendants.

Appeal from the United States District Court

for the Southern District of California

Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted July 7, 2020

Pasadena, California

2 BENAVIDEZ V. COUNTY OF SAN DIEGO

Filed April 12, 2021

Before: Marsha S. Berzon and Daniel P. Collins, Circuit

Judges, and Gary S. Katzmann, * Judge.

Opinion by Judge Katzmann;

Concurrence by Judge Collins

SUMMARY **

Civil Rights

The panel affirmed in part and reversed in part the

district court’s dismissal of an action brought pursuant to 42

U.S.C. § 1983 asserting that County social workers used

judicial deception and violated plaintiffs’ constitutional

rights in securing a juvenile court order resulting in the

medical examinations of plaintiffs’ minor children while the

children were in protective custody, without notice to the

parents or their consent.

The panel first held that the district court correctly ruled

that the Rooker-Feldman doctrine did not bar the exercise of

subject matter jurisdiction over this case. The panel held that

plaintiffs’ claims were not a de facto appeal from the

juvenile court orders. Instead, plaintiffs alleged that the

misrepresentations and inaction by social workers and other

The Honorable Gary S. Katzmann, Judge for the United States

*

Court of International Trade, 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.

BENAVIDEZ V. COUNTY OF SAN DIEGO 3

County employees resulted in violations of their

constitutional rights.

The panel held that the amended complaint sufficiently

alleged facts in support of a reasonable inference that County

social workers committed judicial deception that allowed

them to be held liable for the resulting unconsented-to

medical examinations. The amended complaint alleged that

social workers knowingly and falsely represented to the

juvenile court that they had made reasonable efforts to notify

the parents about the medical examinations. The parents did

not learn of the examinations, however, until after their

children were released from custody. The allegations

supported a plausible inference that the social workers

submitted their report and request for court authorization

with at least a reckless disregard for the truth and the alleged

misrepresentations were material to the granting of the

juvenile court’s orders.

The claims were also sufficient under Fed. R. Civ. P. 9(b)

because they alleged with particularity a claim involving

fraud. Finally, by asserting that the parents did not have

knowledge of the medical examinations until after they took

place, the amended complaint also sufficiently alleged

Fourth and Fourteenth Amendment violations arising from

the examinations.

The panel held that the social workers were not entitled

to qualified immunity for the alleged unconstitutional

judicial deception and unconstitutional medical

examinations. The panel held that this court’s precedent

established the right to be free from judicial deception in

child custody proceedings. Thus, a reasonable social worker

would understand that providing false information

concerning notification to parents when requesting a

4 BENAVIDEZ V. COUNTY OF SAN DIEGO

juvenile court order for a medical examination on minors in

protective custody would violate or at least disregard a

substantial risk of a violation of the parents’ rights. The

panel therefore reversed the district court’s dismissal of the

claims against the social workers on qualified immunity

grounds and remanded for proceedings consistent with the

panel’s opinion.

The panel held that none of the allegations regarding the

County’s alleged unconstitutional policy, practice, custom,

or failure to train its employees provided factual support for

Monell liability. The panel noted that plaintiffs failed to

provide anything more than the 2015 County policy

pertaining to parental consent, which was allegedly violated,

and the facts of a single incident of an unconstitutional

medical examination and judicial deception. These

allegations were insufficient to establish a Monell claim.

Therefore, the panel affirmed the district court’s dismissal of

plaintiffs’ claims against the County.

Concurring in the judgment, Judge Collins stated that

this was a relatively straightforward case that did not warrant

the extended discussion and broader statements contained in

the majority opinion. Judge Collins wrote that the

complaint’s allegations were sufficient to state a plausible

claim of knowing and intentional judicial deception that

escaped qualified immunity. He also agreed that plaintiffs’

Monell claim was properly dismissed with prejudice,

because the operative complaint did not allege sufficient

facts to support such a claim.

BENAVIDEZ V. COUNTY OF SAN DIEGO 5

COUNSEL

Donnie R. Cox (argued), Law Office of Donnie R. Cox,

Oceanside, California; Paul W. Leehey, Law Office of Paul

W. Leehey, Fallbrook, California; for Plaintiffs-Appellants.

Jeffrey P. Michalowski (argued) and Christina Snider,

Senior Deputies; Thomas E. Montgomery, County Counsel;

Office of County Counsel, San Diego, California; for

Defendants-Appellees.

OPINION

KATZMANN, Judge:

This appeal turns on the sufficiency of allegations in an

amended complaint asserting judicial deception and

violation of other constitutional rights in securing a court

order resulting in medical examinations of minors without

notice to or consent of the parents. The Benavidezes, John

and Heather Benavidez (“Parents”) and their children J.C.B.

and A.J.B. (“Minors”), assert claims against the County of

San Diego, the San Diego County Health and Human

Services Agency (“HHSA”), the Polinsky Children’s Center

(“PCC”) (collectively, “the County”) and the County’s

social workers, Jennifer Lisk and Benita Jemison (“Lisk and

Jemison”), based on medical examinations of Minors during

their time in protective custody. The Benavidezes seek to

hold Lisk and Jemison liable under 42 U.S.C. § 1983 for

unconstitutional judicial deception in seeking a state juvenile

court order to authorize unconstitutional medical

examinations of the Minors without notice to or consent of

the Parents. They further seek to hold the County liable for

the unconstitutional medical examinations. The district

6 BENAVIDEZ V. COUNTY OF SAN DIEGO

court dismissed with prejudice the claim against Lisk and

Jemison based on qualified immunity and the claim against

the County based on a failure to allege Monell liability. We

affirm in part and reverse in part.

FACTUAL AND PROCEDURAL HISTORY

The Second Amended Complaint (“SAC”) alleges as

follows: Acting on behalf of the County, HHSA social

workers Lisk and Jemison obtained a protective custody

warrant and, with police assistance, removed the Minors

from their home to PCC. Three days later, on March 21,

2016, a California juvenile court held a detention hearing to

review the removal of the Minors and issued an “Order

Authorizing Medical Examination and Treatment” for each

of the Minors (collectively, “Orders”). The Parents were

present at the detention hearing. However, neither Lisk,

Jemison, nor any County employee discussed the medical

examinations with the Benavidezes before or after the

hearing. Furthermore, there was no discussion of medical

examinations at the hearing.

Prior to this hearing, the County submitted a Detention

Report to the court. The Report notably did not contain any

discussion of efforts made to obtain the Parents’ consent to

medical examinations of the Minors. The SAC alleges that

neither Lisk nor Jemison nor any County employee sought

the Parents’ consent or advised them of their right to be

present at the medical examinations of the Minors at any

point between the date of the Minors’ removal and the date

of the hearing and subsequent issuance of the Orders. These

alleged events contravene a policy enacted by the County in

2015 (“2015 Policy”), which required County employees to

obtain parental consent and to advise parents of their right to

be present at medical examinations at PCC.

BENAVIDEZ V. COUNTY OF SAN DIEGO 7

As a result of the Orders, the Minors were subjected to

medical examinations at PCC on March 22, 2016, one day

after the hearing and four days after the Minors were

removed from their home. The medical examinations

included “a full body inspection including the children’s

genital and/or anal areas, obtaining urine to test, and drawing

blood and/or vaccinations.” The Parents were not informed

of these medical examinations until after they happened, did

not consent to these medical examinations, and were not

present or given the opportunity to be present at these

medical examinations. The Parents “did not become aware

that the examinations had occurred until after the Minor

Plaintiffs were released from PCC.” The Benavidezes then

appealed the juvenile court decisions involving removal of

the Minors from their home in California state court but did

not there challenge the medical examinations or related

Orders.

The Benavidezes filed this action in the U.S. District

Court for the Southern District of California on March 16,

2018. The Benavidezes amended their complaint on July 5,

2018, after the County filed a motion to dismiss. The district

court dismissed their first amended complaint, concluding

that it was a prohibited de facto appeal of the state court

decision under the Rooker-Feldman doctrine, failed to allege

constitutional violations, and failed to allege claims against

the County. The district court dismissed the complaint with

leave to amend. On November 9, 2018, the Benavidezes

filed the SAC. On February 12, 2019, the district court again

dismissed their complaint, this time with prejudice. The

district court concluded that: (1) the Rooker-Feldman

doctrine did not bar exercise of jurisdiction; (2) the

Benavidezes alleged constitutional violations in the medical

examinations; (3) the Benavidezes failed to allege a claim

against Lisk and Jemison because the government

8 BENAVIDEZ V. COUNTY OF SAN DIEGO

employees were entitled to qualified immunity; (4) the

Benavidezes failed to allege a claim against the County

because they did not allege “a direct causal link between a

municipal policy or custom and the alleged constitutional

deprivation”; and (5) further amendments would be futile, so

the case was dismissed with prejudice. The Benavidezes

timely appealed.

JURISDICTION

The district court had jurisdiction under 28 U.S.C.

§ 1331 and § 1343(a)(3). The Benavidezes timely filed

notice of appeal on March 8, 2019. This court has

jurisdiction of this appeal pursuant to 28 U.S.C. § 1291.

STANDARDS OF REVIEW

We review de novo a district court’s jurisdictional

determination under the Rooker-Feldman doctrine,

Manufactured Home Communities Inc. v. City of San Jose,

420 F.3d 1022, 1025 (9th Cir. 2005); a district court’s

dismissal for failure to state a claim, Palm v. L.A. Dep’t of

Water & Power, 889 F.3d 1081, 1085 (9th Cir. 2018); a

district court’s decision on qualified immunity, Thompson v.

Mahre, 110 F.3d 716, 721 (9th Cir. 1997); and a district

court’s decision on municipal liability under Monell v. Dep’t

of Soc. Servs., 436 U.S. 658 (1978); see, e.g., Dougherty v.

City of Covina, 654 F.3d 892, 897 (9th Cir. 2011). We

review for abuse of discretion a district court’s dismissal

with prejudice and without leave to amend. See OSU

Student All. v. Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).

DISCUSSION

The Benavidezes’ appeal involves two primary issues:

first, whether there is federal subject matter jurisdiction

BENAVIDEZ V. COUNTY OF SAN DIEGO 9

where the County contends that the Rooker-Feldman

doctrine bars this claim as a de facto appeal of a state court

decision, second, whether the Benavidezes sufficiently

pleaded section 1983 liability against Lisk and Jemison in

light of qualified immunity and limited liability against

municipalities under Monell. As to these issues, we hold that

the Rooker-Feldman doctrine permits federal subject matter

jurisdiction over this claim, that the Benavidezes adequately

pleaded Lisk and Jemison’s section 1983 liability, and that

the district court did not abuse its discretion by dismissing

with prejudice the Benavidezes’ claims against the County.

I. The Rooker-Feldman Doctrine Does Not Bar Subject

Matter Jurisdiction.

As a threshold matter, we conclude that the district court

correctly ruled that the Rooker-Feldman doctrine does not

bar the exercise of subject matter jurisdiction over this case.

The district court held that the claims alleged were based on

the asserted legal wrongs committed by Lisk and Jemison

and the County’s corresponding policy and custom and were

not challenging the Orders issued by the juvenile court. The

County argues, as it did below, that the Benavidezes’ claims

constitute a prohibited de facto appeal of the juvenile court’s

decision, and thus the court does not have jurisdiction under

the Rooker-Feldman doctrine. We disagree.

The Rooker-Feldman doctrine derives its name from two

Supreme Court cases: Rooker v. Fidelity Trust Company,

263 U.S. 413 (1923), and D.C. Court of Appeals v. Feldman,

460 U.S. 462 (1983). “Under Rooker-Feldman, a federal

district court is without subject matter jurisdiction to hear an

appeal from the judgment of a state court.” Bianchi v.

Rylaarsdam, 334 F.3d 895, 896 (9th Cir. 2003). The

Rooker-Feldman doctrine bars lower federal courts from

exercising jurisdiction “to review the final determinations of

10 BENAVIDEZ V. COUNTY OF SAN DIEGO

a state court in judicial proceedings.” Doe & Assocs. Law

Offices v. Napolitano, 252 F.3d 1026, 1029 (9th Cir. 2001)

(citing Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995),

overruled on other grounds by Amphastar Pharm. Inc. v.

Aventis Pharma SA, 856 F.3d 696, 710 (9th Cir. 2017))

(other citations omitted). “Rooker-Feldman is a statute-

based doctrine, based on the structure and negative

inferences of the relevant statutes rather than on any direct

command of those statutes.” Noel v. Hall, 341 F.3d 1148,

1154–55 (9th Cir. 2003) (citation omitted). Plaintiffs thus

cannot come to federal court to seek “what in substance

would be appellate review of the state judgment.” Johnson

v. De Grandy, 512 U.S. 997, 1005–06 (1994) (citations

omitted).

Noel provided the following “general formulation” of the

Rooker-Feldman doctrine: “If a . . . plaintiff asserts as a legal

wrong an allegedly erroneous decision by a state court . . . ,

Rooker-Feldman bars subject matter jurisdiction in federal

district court. If . . . [a] plaintiff asserts as a legal wrong an

allegedly illegal act or omission by an adverse party, Rooker-

Feldman does not bar jurisdiction.” 341 F.3d at 1164.

Our case law makes clear that “this doctrine applies even

where the challenge to the state court decision involves

federal constitutional issues,” including section 1983 claims.

Napolitano, 252 F.3d at 1029 (citing Worldwide Church of

God v. McNair, 805 F.2d 888, 891 (9th Cir. 1986)); see

Branson, 62 F.3d at 291 (citations omitted). Furthermore,

the doctrine applies to both final and interlocutory decisions

from a state court. See Napolitano, 252 F.3d at 1030. The

doctrine does not depend on the availability of a forum;

instead, it exists to protect state courts from collateral attack

by a federal judgment. Id. In Kougasian v. TMSL, Inc.,

359 F.3d 1136 (9th Cir. 2004), however, we explained that

BENAVIDEZ V. COUNTY OF SAN DIEGO 11

where a party alleges extrinsic fraud by an adverse party in

procuring a state court judgment, the Rooker-Feldman

doctrine does not apply, because such a claim does not

challenge the state court decision directly, id. at 1140–41.

The Benavidezes’ claims are not a de facto appeal from

the juvenile court Orders. Instead, they allege that the

misrepresentations by Lisk and Jemison and further inaction

by those social workers and other County employees

resulted in violations of their constitutional rights. As

discussed in more detail below, the Benavidezes’ claims are

based on section 1983, which provides a statutory cause of

action where state officials acting under color of law violate

constitutional rights. 42 U.S.C. § 1983. Despite the judicial

context and intermediate step of the juvenile court Orders,

the Benavidezes’ claims do not seek relief from or reversal

of the juvenile court’s Orders. Therefore, the Rooker-

Feldman doctrine does not serve as a jurisdictional bar to

their claims here.

The County fails to acknowledge that the Benavidezes

claim injury based on the alleged misrepresentation by Lisk

and Jemison that caused the juvenile court to issue the

Orders which authorized the medical examinations. In fact,

the Benavidezes challenge a legal wrong by Lisk and

Jemison preceding the issuance of the Orders, and the

County’s custom or failure to train to prevent against

unconstitutional medical examinations. As the district court

noted, the “alleged legal wrongs by Lisk and Jemison cannot

avoid scrutiny because they were successful in deceiving the

juvenile court.” Thus, the County is incorrect that the

Rooker-Feldman doctrine bars federal subject matter

jurisdiction.

This case is divergent from past cases in which the

Rooker-Feldman doctrine was held applicable. In Branson

12 BENAVIDEZ V. COUNTY OF SAN DIEGO

v. Nott, we determined that the Rooker-Feldman doctrine

barred a claim where the “complaint explicitly [sought]

reversal of the [California] appellate court’s decision.” 62

F.3d at 292. Similarly, in Napolitano, we explained that the

Rooker-Feldman doctrine barred jurisdiction where “the

state court had considered and rejected [plaintiff]’s

constitutional arguments” and “the district court could not

have found in favor of [plaintiff] on the constitutional claims

without holding that the state court had erred.” 252 F.3d at

1029–30. By contrast, the Benavidezes, for the first time,

challenge Lisk and Jemison’s alleged misrepresentation to

the state court, and the County’s alleged corresponding

liability for those wrongs. Cf. Johnson, 512 U.S. at 1006

(“The United States merely seeks to litigate its § 2 case for

the first time, and the Government’s claims, like those of the

private plaintiffs, are properly before the federal courts.”).

Even if the Benavidezes had directly challenged the

juvenile court decision, which they did not, the extrinsic

fraud corollary to the Rooker-Feldman doctrine would

apply. See Kougasian, 359 F.3d at 1141 (explaining that

extrinsic fraud is “not an error by [a] court,” but instead is “a

wrongful act committed by the party or parties who engaged

in the fraud”). The Benavidezes allege they did not become

aware of the medical examinations until after they took

place. This time sequence, they allege, precluded an

opportunity to be heard on the juvenile court’s Orders before

the medical examinations. And, they contend, the time

sequence also robbed them of their right to be present at

those medical examinations. As a result of the time

sequence, the Benavidezes had no opportunity to challenge

the Orders in state court, because they had no notice of the

examinations and because the examinations took place one

day after the juvenile court issued the Orders. Raising the

misrepresentation issue to the juvenile court or appealing the

BENAVIDEZ V. COUNTY OF SAN DIEGO 13

Orders after the medical examinations had taken place would

have been pointless, because there was no undoing the

negative impact on the family of medical examinations that

had already taken place. Under the circumstances, the

extrinsic fraud corollary to the Rooker-Feldman doctrine

applies. See id. at 1140–41.

In sum, the district court correctly determined that the

Rooker-Feldman doctrine does not bar federal subject matter

jurisdiction over the Benavidezes’ claims.

II. The Benavidezes Sufficiently Pleaded Section 1983

Liability Against Lisk and Jemison, but Not Against

the County.

The Benavidezes brought suit pursuant to section 1983,

which, in relevant part, creates a cause of action for “the

deprivation of any right[], privilege[], or immunit[y] secured

by the Constitution” by individuals acting “under color of”

law. 42 U.S.C. § 1983. “To state a claim under § 1983, a

plaintiff must allege two essential elements: (1) that a right

secured by the Constitution or laws of the United States was

violated, and (2) that the alleged violation was committed by

a person acting under the color of State law.” Long v. County

of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing

West v. Atkins, 487 U.S. 42, 48 (1988)). In the SAC, the

Benavidezes alleged violations of their Fourth and

Fourteenth Amendment rights in relation to the medical

examinations, caused by Lisk and Jemison’s judicial

deception of the juvenile court in procuring the Orders for

the medical examinations. The Benavidezes claimed that

both constitutional violations were the result of actions by

the County, its sub-divisions, and its employees, specifically

Lisk and Jemison. The parties do not dispute the second

prong of the Benavidezes’ section 1983 claim—that the

14 BENAVIDEZ V. COUNTY OF SAN DIEGO

violation was allegedly committed by Lisk, Jemison, and

other County employees acting under color of law.

The district court dismissed the Benavidezes’ section

1983 claims in the SAC with prejudice. In assessing

dismissal of claims pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure, the court must “accept factual

allegations in the complaint as true and construe the

pleadings in the light most favorable to the nonmoving

party.” Manzarek v. St. Paul Fire & Marine Ins. Co.,

519 F.3d 1025, 1031 (9th Cir. 2008) (citation omitted). To

survive a motion to dismiss under Rule 12(b)(6), a complaint

must allege “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). A plausible claim includes “factual content

that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” United

States v. Corinthian Colls., 655 F.3d 984, 991 (9th Cir. 2011)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Under

the pleading standards of Rule 8(a)(2), a party must make a

“short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see also

United States v. United Healthcare Ins. Co., 848 F.3d 1161,

1180 (9th Cir. 2016) (discussing pleading requirements for

claims regarding fraud under Rule 9(b), for which dismissals

are “functionally equivalent” to Rule 12(b)(6)). A complaint

“that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

Thus, “conclusory allegations of law and unwarranted

inferences are insufficient to defeat a motion to dismiss.”

Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).

The County seems to argue that the Benavidezes’ section

1983 claim regarding Lisk and Jemison’s alleged judicial

BENAVIDEZ V. COUNTY OF SAN DIEGO 15

deception must meet the heightened standard of Rule 9(b),

which governs pleading claims involving fraud. Under Rule

9(b), a plaintiff “must state with particularity the

circumstances constituting fraud.” Fed. R. Civ. P. 9(b).

Particularity includes “‘the who, what, when, where, and

how of the misconduct charged,’ including what is false or

misleading about a statement, and why it is false[.]

Knowledge, however, may be pled generally.” United

Healthcare Ins., 848 F.3d at 1180 (citations omitted)

(quoting Ebeid ex rel. United States v. Lungwitz, 616 F.3d

993, 998 (9th Cir. 2010)). This heightened standard serves

the dual purpose of (1) giving defendants notice of the

alleged misconduct so that they may defend themselves and

(2) deterring plaintiffs from using complaints as a “pretext

for the discovery of unknown wrongs” while protecting

defendants and the courts from the costs associated with

these complaints. Id. (quoting Bly-Magee v. California,

236 F.3d 1014, 1018 (9th Cir. 2001)). However, “this

standard ‘does not require absolute particularity or a recital

of the evidence.’” Id. (quoting 5A Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 1298

(3d ed. 2016)). Further, “a complaint need not allege ‘a

precise time frame,’ ‘describe in detail a single specific

transaction’ or identify the ‘precise method’ used to carry

out the fraud.” Id. (quoting Cooper v. Pickett, 137 F.3d 616,

627 (9th Cir. 1997)).

A. Threshold Constitutional Violations

“The first inquiry in any § 1983 suit . . . is whether the

plaintiff has been deprived of a right ‘secured by the

Constitution and laws.’” Baker v. McCollan, 443 U.S. 137,

140 (1979). The SAC alleged that the County conducted the

medical examinations without notice to, consent from, or the

opportunity to be present for the Parents, and that Lisk and

16 BENAVIDEZ V. COUNTY OF SAN DIEGO

Jemison caused these circumstances through judicial

deception. The district court relied on our previous decisions

to hold that the Benavidezes sufficiently alleged conducting

the medical examinations on the Minors at PCC without

parental notice or consent violated their constitutional rights.

Specifically, Plaintiffs’ claims sufficiently alleged a

violation of their constitutional right to family association,

which “includes the right of parents to make important

medical decisions for their children, and of children to have

those decisions made by their parents rather than the state.”

The district court did not independently address the

Benavidezes’ claims in the context of a constitutional

violation through judicial deception, nor did it address

whether these claims satisfied the heightened pleading

standard under Rule 9(b).

i. Due Process Violation in Connection with

Judicial Deception

The Benavidezes argue that the SAC alleges that Lisk

and Jemison procured the juvenile court Orders through

judicial deception in violation of their due process rights.

The SAC alleges that: (1) Lisk and Jemison requested that

the juvenile court issue the Orders, (2) the Orders were based

on the representation by Lisk and Jemison that “reasonable

efforts” had been made to notify the Minors’ parents about

the medical examinations, (3) that representation was false,

and (4) Lisk and Jemison knew that it was false because they

had made no effort to notify the Parents. Furthermore, the

SAC alleges that there were no hearings other than the

Detention Hearing at which the Parents were present and

where the Parents could have been notified of the

examinations. Thus, the Benavidezes argue, the SAC

sufficiently alleged facts in support of a reasonable inference

that Lisk and Jemison committed judicial deception that

BENAVIDEZ V. COUNTY OF SAN DIEGO 17

allows them to be held liable for the resulting unconsented-

to medical examinations. We agree.

We have previously recognized a constitutional right

under the Due Process Clause of the Fourteenth Amendment

to be free from judicial deception and fabrication of evidence

in the context of civil child custody cases. See Costanich v.

Dep’t of Soc. and Health Servs., 627 F.3d 1101,1108 (9th

Cir. 2010) (“[D]eliberately fabricating evidence in civil child

abuse proceedings violates the Due Process clause of the

Fourteenth Amendment when a liberty or property interest is

at stake . . . .”); Wallis v. Spencer, 202 F.3d 1126, 1142 (9th

Cir. 2000) (stating “parents have a right arising from the

liberty interest in family association to be with their children

while they are receiving medical attention” and “children

have a corresponding right to the love, comfort, and

reassurance of their parents while they are undergoing

medical procedures”).

“To support a § 1983 claim of judicial deception, a

plaintiff must show that the defendant deliberately or

recklessly made false statements or omissions that were

material to the finding . . . .” KRL v. Moore, 384 F.3d 1105,

1117 (9th Cir. 2004). A plaintiff who provides direct

evidence of false statements can allege deliberate fabrication

of evidence in violation of constitutional due process

guarantees. See Costanich, 627 F.3d at 1108. “Reporting

that a witness said something he or she did not cannot

reasonably be characterized as a recording error or a

misstatement,” but is instead fabricated evidence. Reynolds

v. County of San Diego, 224 F. Supp. 3d 1034, 1055 (S.D.

Cal. 2016) rev’d in part on other grounds sub nom. Reynolds

v. Bryson, 716 F. App’x 668 (9th Cir. 2018) (citation

omitted). Furthermore, in the search warrant context, we

have previously held that an omission of a fact necessary to

18 BENAVIDEZ V. COUNTY OF SAN DIEGO

establish probable cause presented a triable issue of material

facts about whether that omission “amounted to at least

reckless disregard for the truth.” Bravo v. City of Santa

Maria, 665 F.3d 1076, 1088 (9th Cir. 2011).

Examples of judicial deception in child protective

custody cases are illuminating. In Reynolds, a district court

held that omission of two words from medical notes was

“[a]t worst . . . a reporting error or misstatement” and not

sufficient evidence of deliberately or recklessly false

statements or material. 224 F. Supp. 3d at 1056 (citation

omitted). By contrast, in Costanich, we held that allegations

that a social worker falsely claimed to have interviewed

several witnesses in connection with a child protective

custody case presented a triable issue of material fact that

there was deliberate fabrication of evidence. 627 F.3d

at 1112–14. In Greene v. Camreta, 588 F.3d 1011 (9th Cir.

2009), vacated in part, 563 U.S. 692 (2011), 661 F.3d 1201

(9th Cir. 2011), we held that “proof, in the form of [an]

affidavit and deposition testimony, that [defendant] included

false statements in his affidavit requesting a protective

custody order,” id. at 1035, was sufficient to present a

genuine issue of material fact of judicial deception to which

qualified immunity did not apply and summary judgment

was inappropriate, see id. at 1035–36. The Benavidezes had

to allege judicial deception sufficient to meet the

constitutional standard, if not the heightened pleading

standard of Rule 9(b), to overcome the County’s motion to

dismiss under Rule 12(b)(6). The SAC alleges the following

facts regarding judicial deception:

30. Prior to the Detention Hearing,

Defendants LISK, JEMISON and DOES 1

through 50 submitted a Detention Report to

the court. . . . [In their report], LISK,

BENAVIDEZ V. COUNTY OF SAN DIEGO 19

JEMISON and DOES 1 through 50, included

no such discussion of the Consent forms or of

the Minor Plaintiffs being submitted to

medical procedures, including examinations,

or of the parents being informed they could

be present . . . .

32. Both HEATHER and JOHN attended the

Detention Hearing on March 21, 2016. At no

time before, during, or after the hearing, or

prior to the children’s medical procedures,

including examinations, did Defendants

LISK, JEMISON and/or DOES 1 to 50 speak

with or notify the PARENTS of the physical

examinations at PCC, or attempt to gain their

consent for those examinations, or inform

them that they could be present during any

such examination . . .

34. During the March 21, 2016 Detention

Hearing (the only court hearing in this matter

prior to the children’s examinations), there

was no request by the COUNTY that the

judge make any order regarding physical

examinations to be conducted of the Minor

Plaintiffs.

35. Instead, at some time before or after the

March 21, 2016 Detention Hearing,

Defendants LISK, JEMISON and/or DOES 1

through 50 submitted a request that the Court

sign an “Order Authorizing Medical

Examination and Treatment” (hereinafter

“ORDER”) of the minor Plaintiffs.

20 BENAVIDEZ V. COUNTY OF SAN DIEGO

The SAC also includes the text of the Orders, which states

that the juvenile court found that there had been an effort by

the County to notify the Parents, or the Parents objected to

medical examinations, and/or the County made “reasonable

efforts to schedule the examination of the child for a time

when the parent or guardian is available to attend, but such

efforts have been unsuccessful.” Finally, the SAC alleges

that the Parents did not learn of the medical examinations

until after the Minors were released from protective custody.

These statements allege a violation of constitutional

prohibition on judicial deception and meet the heightened

pleading standard of Rule 9(b).

1. Judicial Deception Under the

Constitution

To successfully allege a violation of the constitutional

right to be free from judicial deception, the Benavidezes

must make out a claim that includes (1) a misrepresentation

or omission (2) made deliberately or with a reckless

disregard for the truth, that was (3) material to the judicial

decision. See Greene, 588 F.3d at 1035.

First, the Benavidezes allege a misrepresentation by

referring to the Detention Order and request for

authorization for medical examinations submitted by the

County through Lisk and Jemison. The SAC alleges that

these documents omitted the County’s failure to attempt to

notify the Parents, despite the Parents being present and in

contact with the County, and the subsequent Orders making

findings of notice.

Second, taking the complaint as true and construing its

allegations in the light most favorable to the Benavidezes,

those allegations support a plausible inference that Lisk and

Jemison submitted the Detention Report and request for

BENAVIDEZ V. COUNTY OF SAN DIEGO 21

court authorization for medical examinations and did so with

at least reckless disregard for the truth. The Benavidezes

alleged that the Parents received no notice of the medical

examinations, that Lisk and Jemison submitted the

Detention Report, and that Lisk and Jemison requested

authorization for the medical examinations without

confirming that the Parents had been contacted, or that

contact had been attempted, regarding the medical

examinations. Thus, a plausible inference of a reckless

disregard for the truth can be made. See Costanich, 627 F.3d

at 1111 (explaining that both “an interviewer who

deliberately mischaracterizes witness statements” and “an

investigator who purposefully reports that she has

interviewed witnesses, when she has actually only attempted

to make contact with them, deliberately fabricates

evidence”). The alleged misrepresentations by Lisk and

Jemison are akin to falsely attributing statements to an

interviewee or falsely reporting that interviews took place

when they had not, situations we have previously recognized

as rising to the level of a deliberate misrepresentation. See

id.

Finally, the alleged misrepresentation was material to

granting of the juvenile court’s Orders. See Greene,

588 F.3d at 1035 (“The alleged misrepresentation was

‘material’ to the granting of the removal order if the Juvenile

Court would have declined to issue the order had [the

defendant] been truthful.”) (citation omitted). The SAC

creates a plausible inference that the juvenile court could not

have made findings related to parental consent and notice of

the medical examinations without the misrepresentations of

Lisk and Jemison. According to the SAC, the juvenile court

did not discuss the medical examinations at the hearing with

the Parents present, and there is no other probable source for

the information on which the court based its findings. The

22 BENAVIDEZ V. COUNTY OF SAN DIEGO

SAC, therefore, alleges a constitutional violation by making

out a claim based on violations of the Benavidezes’ right to

be free from judicial deception.

2. Judicial Deception under Rule 9(b)

The claims are also sufficient under Rule 9(b) because

they allege with particularity a claim involving fraud. The

SAC contained particular allegations in stating the who,

what, when, and where of the judicial deception. See United

Healthcare Ins., 848 F.3d at 1180. First, the SAC identifies

Lisk and Jemison as the social workers who presented the

Detention Report to the juvenile court. 1 Second, the SAC

alleges specific omissions regarding failure to notify the

Parents of the medical examinations to the juvenile court. It

does so by pointing to the 2015 Policy detailing the

requirements of notice or court authorization, the deficient

1

The SAC states, “Prior to the Detention Hearing, Defendants

LISK, JEMISON and DOES 1 through 50 submitted a Detention Report

to the court.” The County argues that including “Does 1 through 50”

indicates that the complaint does not allege with particularity specific to

each defendant the fraudulent statements or omissions. However, the

2015 Policy indicates that the Detention Report would have most likely

been submitted by the social workers involved in removing the children.

This, therefore, creates an inference that Lisk, having removed the

Minors from their parents’ custody in consultation with and under the

supervision of Jemison, would have been responsible for submitting the

deficient Detention Report. There being no other, more plausible

explanation behind the alleged events, viewing the complaint in the light

most favorable to the Benavidezes dictates the conclusion that the

Benavidezes alleged that Lisk and Jemison made misrepresentations or

omissions to the juvenile court. In any event, Plaintiffs represented that

they could, if allowed, address this issue through further amendment to

the complaint by clarifying that Lisk and Jemison were most likely the

parties to have made the misrepresentations. Providing an opportunity

for Plaintiffs to amend their complaint accordingly would provide useful

clarification on remand.

BENAVIDEZ V. COUNTY OF SAN DIEGO 23

Detention Report and request for authorization, and the

findings of the Orders based on those submissions to the

juvenile court. The SAC makes clear that the juvenile court

did not discuss the medical examinations with the Parents,

and the 2015 Policy indicates that the Detention Report

would have likely come from Lisk and Jemison. Therefore,

only Lisk and Jemison could have made statements to the

court regarding notice to the Parents for the juvenile court to

make this finding. In all, viewing the complaint in the light

most favorable to the Benavidezes, the juvenile court would

not have made its findings without the misrepresentations of

Lisk and Jemison regarding notice.

Additionally, the Order, as described by the

Benavidezes, “is a form . . . clearly developed by the County

. . . to be handed to judicial officers for signature,” plausibly

by the involved social workers. The SAC further alleges that

the court received this information sometime between March

18, 2016, when the County removed the Minors from their

home, and the issuance of the Orders on March 21, 2018.

This window is sufficiently specific to plead fraud with

particularity. See United Healthcare Ins., 848 F.3d at 1180

(“[A] complaint need not allege ‘a precise time frame.’”

(quoting Cooper, 137 F.3d at 627)). These details put the

County and Lisk and Jemison on notice of the timing, subject

of, and parties to the alleged misrepresentation that is

sufficient for them to prepare a defense. The SAC therefore

alleges, with the requisite particularity under Rule 9(b), Lisk

and Jemison’s judicial deception.

ii. Fourth and Fourteenth Amendment Violations

in Connection with the PCC Medical

Examinations

The Benavidezes also allege that their constitutional

rights were violated when the Minors were medically

24 BENAVIDEZ V. COUNTY OF SAN DIEGO

examined at PCC without the Parents’ notice, consent, or an

opportunity to be present. The district court agreed, noting

that “a court order is not an alternative to parental notice.

Nor does the existence of a court order automatically entitle

the County to conduct the examinations outside of the

presence of the parents.”

We first addressed a family’s Fourth and Fourteenth

Amendment rights in the context of medical examinations of

children while in protective custody in Wallis, 202 F.3d

1126. In Wallis, we explained that “[p]arents and children

have a well-elaborated constitutional right to live together

without governmental interference” that “includes the right

of parents to make important medical decisions for their

children, and of children to have those decisions made by

their parents rather than the state.” 202 F.3d at 1136, 1141

(citations omitted). Thus, Wallis recognized the right of

parents to notice and consent or judicial authorization in

advance of medical examinations of their children, unless a

“reasonable concern that material physical evidence might

dissipate” or an “urgent medical problem” exists. Id. at 1141

(citations omitted). We explained that the Constitution also

provides the right of parents and children to have a parent

present at children’s medical examinations. Id. at 1142

(stating “parents have a right arising from the liberty interest

in family association to be with their children while they are

receiving medical attention” and “children have a

corresponding right to the love, comfort, and reassurance of

their parents while they are undergoing medical

procedures”).

We again addressed the constitutional right of parents to

be present at their children’s medical examinations in

Greene, 588 F.3d 1011. Relying on Wallis, we reiterated the

right of parents and children “to be with each other during

BENAVIDEZ V. COUNTY OF SAN DIEGO 25

potentially traumatic medical examinations” absent limited,

valid circumstances. Id. at 1036. We noted that the

“children’s right to their mother’s comfort and their mother’s

right to provide such comfort were . . . at their apex” where

the medical examination included inspection of and

photographing of the child’s genitals. Id. at 1037.

We most recently addressed these constitutional rights in

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

Mann involved medical examinations of children at PCC,

the same facility and type of examinations at issue here,

without notice to the children’s parents. See id. at 1158. We

concluded that, “under Wallis, the County is required to

notify the parents and obtain parental consent (or a court

order) in advance of performing the Polinsky medical

examinations, and permit parents to be present for these

examinations.” Id. at 1162. Where the County fails to notify

“parents about the examinations and [performs the

examinations] without obtaining either the parents’ consent

or judicial authorization,” the County violates the

constitutional rights of children and parents. Id. at 1161

(citing Wallis, 202 F.3d at 1141). First, the County “violates

parents’ Fourteenth Amendment substantive due process

rights.” Id. at 1160–61. Second, the County violates the

children’s Fourth Amendment “right to ‘be secure in their

persons . . . against unreasonable searches and seizures.’”

Id. at 1164 (ellipsis in original) (quoting U.S. Const. amend.

IV).

The Benavidezes pleaded unconstitutional medical

examinations on the Minors in violation of the rights of both

the Minors and the Parents. Our most recent case on point,

Mann, makes clear that the County is required to: (1) notify

the parents of a medical examination of their children;

(2) obtain parental consent or a court order in advance of the

26 BENAVIDEZ V. COUNTY OF SAN DIEGO

medical examination; and (3) permit the parent to be present

at the examination. Id. at 1162. While the juvenile court did

issue the Orders authorizing the medical examinations, the

Benavidezes alleged sufficient facts that the medical

examinations took place without their notice, consent, or

presence. At a minimum, these allegations are sufficient to

make out a violation of Mann’s requirement that parents

have an opportunity to be present, and, taking the allegations

as true and in the light most favorable to the Benavidezes,

they suffice to plead a constitutional violation as to the

medical examinations themselves. The district court

correctly rejected the County’s argument that the Orders

were all that was necessary to make the medical

examinations constitutional. Because the Benavidezes

pleaded that they did not have knowledge of the medical

examinations until after they took place, the Benavidezes

sufficiently alleged that the medical examinations on the

Minors at PCC violated their constitutional rights. See

Mann, 907 F.3d at 1160–61, 1164.

Thus, the SAC sufficiently alleged constitutional

violations by Lisk and Jemison, in the form of judicial

deception, and by the County and its employees, in the form

of unconstitutional medical examinations.

b. Lisk and Jemison’s Liability Under Section 1983

in Light of Qualified Immunity

The next inquiry is whether Lisk and Jemison can be held

liable under section 1983 for the alleged judicial deception

and unconstitutional medical examinations or whether

qualified immunity protects them from liability. The

Benavidezes argue that, because Lisk and Jemison’s alleged

judicial deception caused the subsequent unconstitutional

medical examinations, qualified immunity cannot shield

them from liability. The district court held that Lisk and

BENAVIDEZ V. COUNTY OF SAN DIEGO 27

Jemison were entitled to qualified immunity for the alleged

unconstitutional medical examinations and thus could not be

held liable under section 1983. The district court noted that,

while “Wallis and Mann, and the other cases discuss[]

parents’ right to advance notice when the County intends to

conduct a medical examination of their children,” those

cases “say nothing about a constitutional right to notice from

particular individuals or notice in a particular form.” The

district court stated that “the Parents only had a

constitutional right to be notified of the medical

examinations, not a constitutional right to be notified by Lisk

and Jemison.” Therefore, the district court concluded that,

because no precedent clearly prohibited “presenting a

proposed order granting the County the right to conduct

medical examinations of the Minor Plaintiffs without having

provided notice to the Parents themselves, or having a good

faith basis to believe that the Parents had been notified by

someone else,” Lisk and Jemison were not on notice that

their conduct would make them liable for a violation of

Plaintiffs’ constitutional rights. Furthermore, the district

court concluded that the Benavidezes’ claims regarding Lisk

and Jemison’s alleged misrepresentation to the juvenile

court were conclusory and so not sufficient to state a claim.

Thus, the district court held, Lisk and Jemison were entitled

to qualified immunity with respect to the unconstitutional

medical examinations.

We reverse that holding and the dismissal of the claims

against Lisk and Jemison. Because the district court

examined whether there was a clearly established

constitutional right at the time of Lisk and Jemison’s actions

through the lens of unconstitutional medical examinations

on children in protective custody, it incorrectly concluded

that Lisk and Jemison are entitled to qualified immunity.

28 BENAVIDEZ V. COUNTY OF SAN DIEGO

Lisk and Jemison are not entitled to qualified immunity for

unconstitutional judicial deception.

“Qualified immunity shields government actors from

civil liability under 42 U.S.C. § 1983 if ‘their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’”

Castro v. County of Los Angeles, 833 F.3d 1060, 1066 (9th

Cir. 2016) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). The purpose of qualified immunity is to

“give[] government officials breathing room to make

reasonable but mistaken judgments by protecting all but the

plainly incompetent or those who knowingly violate the

law.” Hardwick v. County of Orange, 844 F.3d 1112, 1117

(9th Cir. 2017) (alteration omitted) (quoting City & County

of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015)).

For a court to determine that a state actor is not entitled to

qualified immunity under section 1983, there must be a

constitutional violation on the facts alleged, and the

constitutional right violated must be “clearly established.”

Saucier v. Katz, 533 U.S. 194, 201 (2001). The “clearly

established” requirement guards state actors from liability

where “the law did not put the officer on notice that his

conduct would be clearly unlawful.” Id. at 202. Having

established above that the SAC meets the first prong of this

inquiry, we turn to the second: whether the constitutional

rights at issue were “clearly established” so as to put Lisk

and Jemison on notice that their conduct would violate the

Constitution.

Plaintiffs bear the burden of proving that a constitutional

right “was clearly established at the time of the incident.”

Greene, 588 F.3d at 1031 (citation omitted). “For a

constitutional right to be clearly established, its contours

‘must be sufficiently clear that a reasonable official would

BENAVIDEZ V. COUNTY OF SAN DIEGO 29

understand that what he is doing violates that right.’” Hope

v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). A constitutional right

is clearly established where a Supreme Court case or a case

within the relevant circuit prohibits the particular conduct at

issue. Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir.

2004). “[W]hile closely analogous prior case law involving

an identical fact context is not required for qualified

immunity to be withheld, the unlawfulness of the action in

question must be apparent in light of some pre-existing law.”

Devereaux v. Perez, 218 F.3d 1045, 1053 (9th Cir. 2000)

(citing Mendoza v. Block, 27 F.3d 1357, 1361–62 (9th Cir.

1994)).

Our precedent establishes the right to be free from

judicial deception in child custody proceedings. See, e.g.,

Costanich, 627 F.3d at 1111–12 (“We have previously held

that when genuine issues of material fact arise regarding

fabrication of evidence in a child abuse investigative report,

a police officer is not entitled to qualified immunity because

‘[c]redibility is an issue for the trier of fact.’”) (alteration in

original) (quoting McSherry v. City of Long Beach, 560 F.3d

1125, 1130 (9th Cir. 2009), withdrawn and superseded by

584 F.3d 1129). Most analogous to the Benavidezes’ claims

is Greene, in which we concluded that a defendant social

worker was not entitled to qualified immunity “as to the false

representation claim, as the [plaintiffs’] right to be free from

judicial deception in securing the removal order was clearly

established at the time of [defendant’s] alleged

misrepresentations to the court.” 588 F.3d at 1034. Prior

cases establishing this right in the context of protective

custody were decided well before the date of the alleged

conduct in March 2016. Therefore, Lisk and Jemison had

fair warning that material omissions and misrepresentations

30 BENAVIDEZ V. COUNTY OF SAN DIEGO

with a deliberate disregard for the truth to a juvenile court

would violate the Constitution.

It was reasonably foreseeable that unconstitutional

misrepresentations to the juvenile court would result in

medical examinations on the Minors without their parents’

knowledge or consent. Thus, a reasonable social worker

would understand that providing false information

concerning notification to parents when requesting a

juvenile court order for a medical examination on minors in

protective custody would violate or at least disregard a

substantial risk of a violation of the Parents’ rights. Cf.

Hope, 536 U.S. at 739. Lisk’s and Jemison’s

misrepresentations to the juvenile court set in motion a path

by which the Minors would be subjected to unconstitutional

medical examinations. This scenario is comparable to an

individual who provides false information to obtain a search

warrant. Cf. Mann, 907 F.3d at 1164 (citing U.S. Const.

amend. IV). Regardless of whether they were responsible

for issuing or executing a warrant that resulted in an

unconstitutional search, their judicial deception alone is

sufficient to overcome their qualified immunity. See Hervey

v. Estes, 65 F.3d 784, 788 (9th Cir. 1995) (“[I]f an officer

‘submitted an affidavit that contained statements he knew to

be false or would have known were false had he not

recklessly disregarded the truth[,] . . . he cannot be said to

have acted in an objectively reasonable manner,’ and the

shield of qualified immunity is lost.” (quoting Branch v.

Tunnell, 937 F.2d 1382, 1387 (9th Cir. 1991), overruled on

other grounds in Galbraith v. County of Santa Clara,

307 F.3d 1119 (9th Cir. 2002))); Whitaker v. Garcetti,

486 F.3d 572, 581 (9th Cir. 2007) (“A seizure conducted

pursuant to a warrant obtained by judicial deception violates

the Fourth Amendment.” (citation omitted)). Thus, Lisk and

Jemison, through their alleged judicial deception, can be

BENAVIDEZ V. COUNTY OF SAN DIEGO 31

held liable for the unconstitutional medical examinations.

We reverse the dismissal by the district court as to the claims

against Lisk and Jemison and hold that Lisk and Jemison are

not entitled to qualified immunity.

c. The County’s Liability Under Section 1983 in

Light of Monell

The second claim of the SAC alleges that the County is

liable for its employees’ conducting unconstitutional

medical examinations. The district court held that the

County could not be held liable under section 1983 for the

alleged constitutional violations because the Benavidezes

“failed to allege a direct causal link between a County

policy, custom, or practice and the alleged constitutional

violations.” We agree and affirm dismissal of the claims

against the County.

The Supreme Court in Monell held that municipalities

may only be held liable under section 1983 for constitutional

violations resulting from official county policy or custom.

436 U.S. at 694. “[A] municipality cannot be held liable

solely because it employs a tortfeasor—or, in other words, a

municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Id. at 691. The custom or

policy must be a “deliberate choice to follow a course of

action . . . made from among various alternatives by the

official or officials responsible for establishing final policy

with respect to the subject matter in question.” Castro,

833 F.3d at 1075 (ellipsis in original) (quoting Pembaur v.

City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality

opinion)).

The Supreme Court has made clear that policies can

include written policies, unwritten customs and practices,

failure to train municipal employees on avoiding certain

32 BENAVIDEZ V. COUNTY OF SAN DIEGO

obvious constitutional violations, see City of Canton v.

Harris, 489 U.S. 378, 387 (1989), and, in rare instances,

single constitutional violations are so inconsistent with

constitutional rights that even such a single instance

indicates at least deliberate indifference of the municipality,

see Bd. of County Comm’rs v. Brown, 520 U.S. 397, 405–06.

The Benavidezes variously characterize their theory of

Monell liability as a policy, practice, or custom, inadequate

training or failure to train, and a single incident that indicates

a failure to adequately train.

With respect to the custom or policy rubric, after a

district court held that the County’s policy on medical

examinations conducted at PCC on children in protective

custody was unconstitutional, the County implemented its

2015 Policy. See Mann, 907 F.3d at 1159 (discussing

Swartwood v. County of San Diego, 84 F. Supp. 3d 1093

(S.D. Cal. 2014)). The district court concluded that “[t]he

SAC does not allege, and Plaintiffs do not argue, that this

2015 Policy caused the alleged violations of Plaintiffs’

constitutional rights. Instead, Plaintiffs essentially assume

that because the 2015 Policy allegedly was not followed

here, it also must not be followed in other situations.”

Failure to train may constitute a basis for Monell liability

where the failure amounts to deliberate indifference to the

rights of those who deal with municipal employees. City of

Canton, 489 U.S. at 388–89. Mere negligence will not

suffice to show Monell liability. Dougherty, 654 F.3d at 900

(citation omitted). To allege a failure to train, a plaintiff

must include sufficient facts to support a reasonable

inference (1) of a constitutional violation; (2) of a municipal

training policy that amounts to a deliberate indifference to

constitutional rights; and (3) that the constitutional injury

would not have resulted if the municipality properly trained

BENAVIDEZ V. COUNTY OF SAN DIEGO 33

their employees. Blankenhorn v. City of Orange, 485 F.3d

463, 484 (9th Cir. 2007) (citing Lee v. City of Los Angeles,

250 F.3d 668, 681 (9th Cir. 2001)). “A municipality’s

culpability for a deprivation of rights is at its most tenuous

where a claim turns on a failure to train.” Connick v.

Thompson, 563 U.S. 51, 61 (2011) (citation omitted).

As to the single instance category, generally, a single

instance of unlawful conduct is insufficient to state a claim

for municipal liability under section 1983. See, e.g., Fed’n

of Afr. Am. Contractors v. City of Oakland, 96 F.3d 1204,

1216 (9th Cir. 1996). Single acts may trigger municipal

liability where “fault and causation” were clearly traceable

to a municipality’s legislative body or some other authorized

decisionmaker, Brown, 520 U.S. at 406. Where, for

example, a “city has armed its officers with firearms[,] . . .

the need to train officers in the constitutional limitations on

the use of deadly force can be said to be ‘so obvious,’ that

failure to do so could properly be characterized as deliberate

indifference to constitutional rights.” City of Canton,

489 U.S. at 390 n.10.

Each of the Benavidezes’ three Monell theories fails.

First, the Benavidezes did not sufficiently allege that the

County’s written 2015 Policy caused the constitutional

violations. The 2015 Policy was adopted as part of the

settlement agreement that resolved the Swartwood dispute,

Mann, 907 F.3d at 1159, and requires municipal actors “to

obtain parental consent and provide advance notice to the

parents so that they can be present at the examination,” id. at

1166. Thus, our previous cases holding that the County’s

former policy was unconstitutional do not speak to the

County’s policy as of March 2016. Because the Benavidezes

allege that Lisk and Jemison violated the 2015 Policy, the

34 BENAVIDEZ V. COUNTY OF SAN DIEGO

SAC does not support Monell liability on the basis of that

policy.

Second, the Benavidezes argue that the previous cases

finding the County’s policy unconstitutional also evince a

custom deliberately indifferent to the rights of parents and

children that continues to this day, despite the adoption of

the 2015 Policy. However, one instance of County

employees violating the constitutional rights of parents and

children is insufficient to demonstrate a custom supporting

Monell liability. See City of Oklahoma City v. Tuttle,

471 U.S. 808, 824 (1985). The implementation of the 2015

Policy, which included the Detention Report form and the

juvenile court order form, indicates a changed policy or

custom since the court’s previous decisions. Absent a

pattern of conduct, alleging that the forms used are worded

in a way that allows County employees to circumvent the

County’s written policies in violation of the Constitution is

insufficient evidence of a County custom. Cf. Castro,

833 F.3d at 1075 n.10 (explaining that a plaintiff may prevail

on a Monell claim by “show[ing] a custom or practice of

violating a written policy”).

Third, the Benavidezes characterize their Monell claim

as a failure to train, but again support this claim only with a

single incident. As with single violations of a written policy,

“[T]hat a particular officer may be unsatisfactorily trained

will not alone suffice to fasten liability on the city, for the

officer’s shortcomings may have resulted from factors other

than a faulty training program.” City of Canton, 489 U.S.

at 390–91 (citations omitted); see also Blankenhorn,

485 F.3d at 485 (“Because Blankenhorn has limited his

proof to the City’s failure to train only Nguyen, he did not

meet his burden to withstand Defendants’ motion for

summary judgment.”).

BENAVIDEZ V. COUNTY OF SAN DIEGO 35

The Benavidezes also argue that the single incident

exception previously identified by the Supreme Court should

directly apply here. Where, as here, the County employees

are not making life-threatening decisions, see Connick,

563 U.S. at 64, and because micromanaging of municipal

policies should be avoided, the single incident exception is

inapplicable.

Ultimately, none of the allegations regarding the

County’s alleged unconstitutional policy, practice, custom,

or failure to train its employees provides factual support for

Monell liability. Therefore, the court affirms the district

court’s dismissal of the Benavidezes’ claims against the

County.

The Benavidezes also appeal the district court’s

dismissal with prejudice. The district court clearly acted

within its discretion in dismissing the Benavidezes’ claims

against the County without leave to amend. See Albrecht v.

Lund, 845 F.2d 193, 195 (9th Cir. 1988) (“If the district court

determines that the ‘allegation of other facts consistent with

the challenged pleading could not possibly cure the

deficiency,’ then the dismissal without leave to amend is

proper.” (quoting Schreiber Distrib. Co. v. Serv-Well

Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986))).

Despite three attempts to allege facts to support Monell

liability, Plaintiffs failed to provide anything more than the

2015 Policy itself and the facts of a single incidence of an

unconstitutional medical examination and judicial

deception. As discussed above, these allegations were

insufficient to establish a Monell claim. The Plaintiffs

apparently did not attempt to remedy this deficiency after the

district court first identified it in relation to the first amended

complaint. We affirm the district court’s dismissal of the

complaint against the County with prejudice.

36 BENAVIDEZ V. COUNTY OF SAN DIEGO

CONCLUSION

For the reasons stated, we (1) AFFIRM the district

court’s determination that the Rooker-Feldman doctrine is

inapplicable; (2) REVERSE the district court’s dismissal of

the claims against Lisk and Jemison; and (3) AFFIRM the

dismissal with prejudice of the claims against the County.

Accordingly, the case is REMANDED to the district court

and shall proceed consistent with this opinion.

COLLINS, Circuit Judge, concurring in the judgment:

This is a relatively straightforward case that did not

warrant the extended discussion and broader statements

contained in the majority opinion. I therefore concur only in

the judgment.

I

Plaintiffs John and Heather Benavidez and their minor

children, J.C.B. and A.J.B., brought this § 1983 action

alleging that two county social workers, Jennifer Lisk and

Benita Jemison, engaged in “judicial deception” by

“misrepresenting and concealing facts” in their request for a

state juvenile court order that would allow them to conduct

intrusive examinations of the children without their parents’

knowledge, consent, or participation. 1 Based on these

1

The operative complaint states, somewhat equivocally, that the

judicial deception was committed by Lisk, Jemison, “and/or” unnamed

Doe defendants. But the district court effectively ignored these

placeholder Doe allegations by construing the complaint as alleging that

“Lisk and Jemison” were the ones who “presented the Orders to the

juvenile court for signature outside of the presence of the Parents and

BENAVIDEZ V. COUNTY OF SAN DIEGO 37

allegations, Plaintiffs asserted a single § 1983 claim against

Lisk and Jemison, and they also asserted, under Monell v.

Dep’t of Soc. Servs., 436 U.S. 658 (1978), a single § 1983

claim against the County of San Diego (including its relevant

agencies). After Defendants moved to dismiss, the district

court concluded that the operative complaint did not

sufficiently allege that Lisk and Jemison engaged in judicial

deception and that, in the absence of such allegations, they

were entitled to qualified immunity. The court also

dismissed the Monell claim, concluding that the complaint

failed sufficiently to allege that any constitutional violation

was caused by an official policy of the County. Plaintiffs

timely appealed.

II

As an initial matter, Defendants contend that the district

court lacked subject matter jurisdiction under the Rooker-

Feldman doctrine, which “prohibits a federal district court

from exercising subject matter jurisdiction over a suit that is

a de facto appeal from a state court judgment.” Kougasian

v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004); see also

Lance v. Dennis, 546 U.S. 459, 463 (2006). The district

without personally notifying the Parents that they were doing so or

confirming that such notice had been given” and who “made affirmative

misrepresentations to the juvenile court.” At oral argument in this court,

Plaintiffs confirmed that, if given leave to amend, they would

affirmatively allege that Lisk and Jemison were the only two social

workers assigned to the case and therefore were the only parties who

could have been responsible for making the false statements.

Accordingly, for purposes of evaluating the adequacy of Plaintiffs’

allegations, I construe them as alleging that the judicial deception was

committed only by Lisk and Jemison and not by some unnamed Doe

defendant.

38 BENAVIDEZ V. COUNTY OF SAN DIEGO

court correctly rejected this argument as contrary to

controlling Ninth Circuit precedent.

We have held that, where a party commits “extrinsic

fraud” on a state court by submitting a false declaration and

preventing the other side from presenting any response, the

Rooker-Feldman doctrine will not preclude a federal court

from hearing certain claims based on injuries arising from

the state court order that resulted from this extrinsic fraud.

See Kougasian, 359 F.3d at 1140; cf. Reusser v. Wachovia

Bank, N.A., 525 F.3d 855, 859–60 (9th Cir. 2008) (Rooker-

Feldman does apply, despite alleged fraud by the opposing

party, when the federal plaintiffs’ objections to the

fraudulently obtained judgment had been presented and

rejected in state court); Kougasian, 359 F.3d at 1140 n.1

(fraud claims that are not based on extrinsic fraud do not fall

within this particular exception to Rooker-Feldman). Here,

Plaintiffs allege that Lisk and Jemison knowingly submitted

false information to the state court in order to obtain an order

authorizing examination of the Benavidez children; that they

did so without affording Plaintiffs any opportunity to

respond or be heard and without informing the state court

that this was the case; and that the examinations were

completed the next day before the Benavidez parents knew

that they had been requested or had taken place. Moreover,

the single § 1983 cause of action alleged against Lisk and

Jemison, as well as the single derivative Monell claim

asserted against the County, both rest dispositively on the

premise that Lisk and Jemison committed a due process

violation by engaging in this extrinsic fraud. By thus

asserting extrinsic-fraud-based claims predicated on the

allegation that Lisk and Jemison used extrinsic fraud to

procure a state court order in a manner that effectively

deprived Plaintiffs of any opportunity to contest it prior to

its execution, Plaintiffs have pleaded sufficient allegations

BENAVIDEZ V. COUNTY OF SAN DIEGO 39

to invoke the exception to Rooker-Feldman that we

recognized in Kougasian.

III

The district court, however, erred in concluding that

Plaintiffs did not plead sufficient facts to support a claim for

judicial deception and that Lisk and Jemison were therefore

entitled to qualified immunity.

A

“To state a claim for relief in an action brought under

§ 1983, [Plaintiffs] must establish that they were deprived of

a right secured by the Constitution or laws of the United

States, and that the alleged deprivation was committed under

color of state law.” American Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 49–50 (1999). Here, the loadbearing allegation

in the sole § 1983 cause of action against Lisk and Jemison

is that, acting under color of state law, they engaged in

“judicial deception” by affirmatively “misrepresent[ing]

and/or conceal[ing]” crucial facts when they requested the

order authorizing intrusive examinations of the Benavidez

children and that they “knew” that the facts presented “were

not true.”

Where, as in this case, the individual defendants have

asserted qualified immunity, the § 1983 claim against them

will fail unless their actions violated a “clearly established

right”—i.e., a right whose contours were “‘sufficiently

definite that any reasonable official in the defendant’s shoes

would have understood that he [or she] was violating it.’”

City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019)

(citation omitted). At least where, as here, a claim of judicial

deception resting upon affirmative fraud is asserted, the

merits of the underlying constitutional claim largely collapse

40 BENAVIDEZ V. COUNTY OF SAN DIEGO

into the qualified immunity inquiry: every reasonable

official would understand that committing affirmative fraud

on a court in order to obtain authorization for intrusive

examinations is unconstitutional. 2 See, e.g., KRL v. Moore,

384 F.3d 1105, 1117 (9th Cir. 2004) (“It is clearly

established that judicial deception may not be employed to

obtain a search warrant.”); Costanich v. Dep’t of Soc. &

Health Servs., 627 F.3d 1101, 1108 (9th Cir. 2010)

(“deliberately fabricating evidence in civil child abuse

proceedings violates the Due Process clause of the

Fourteenth Amendment when a liberty or property interest is

at stake”); see generally Sandoval v. County of San Diego,

985 F.3d 657, 687–88 (9th Cir. 2021) (Collins, J., concurring

in judgment in part & dissenting in part) (noting that, where

the requisite scienter is high enough, the merits of the

scienter issue and the qualified immunity inquiry may

overlap). Indeed, at oral argument, Defendants’ counsel

conceded that, at the time Lisk and Jemison acted, it was

clearly established that making a knowingly false statement

to obtain a court order for an intrusive examination was a

violation of constitutional rights.

As a result, Plaintiffs’ operative complaint states a

§ 1983 claim against Lisk and Jemison, and defeats their

assertion of qualified immunity, if it pleads sufficient facts

with particularity to raise a plausible inference that Lisk and

Jemison affirmatively misstated or concealed crucial facts

2

The same might not be true in a case involving a claim that an

official committed judicial deception by making inaccurate statements

with “reckless[]” disregard for their truth. KRL, 384 F.3d at 1117. It is

perhaps possible that an official could recklessly make an inaccurate

statement in a manner that not every reasonable official in that person’s

shoes would recognize violates the plaintiff’s constitutional rights.

Because this issue need not be addressed in order to resolve this appeal,

I express no further view on it.

BENAVIDEZ V. COUNTY OF SAN DIEGO 41

from the state court when they requested the examination

order. Reviewing the district court’s assessment of the

complaint’s allegations de novo, Patterson v. Van Arsdel,

883 F.3d 826, 829 (9th Cir. 2018), I conclude that Plaintiffs’

allegations were sufficient under this standard.

B

To survive a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), a plaintiff must allege “enough

facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

claim is plausible on its face “when the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Under the assumption that the heightened pleading standards

of Federal Rule of Civil Procedure 9(b) apply to claims of

judicial deception, the complaint’s allegations must “be

specific enough to give defendants notice of the particular

misconduct so that they can defend against the charge and

not just deny that they have done anything wrong.” Vess v.

Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)

(simplified). In other words, to satisfy Rule 9(b), a plaintiff

must allege “‘the who, what, when, where, and how’ of the

misconduct charged.” Id. (citation omitted). At the motion

to dismiss stage, we accept as true all well-pleaded factual

allegations set forth in the complaint and construe them in

the light most favorable to the plaintiffs. Patterson, 883 F.3d

at 829. So construed, Plaintiffs’ operative complaint alleges

the following facts.

The Benavidez children were removed from their

parents’ home on March 18, 2016. A detention hearing to

review the removal was held three days later, which the

parents attended. In connection with that hearing, Lisk and

42 BENAVIDEZ V. COUNTY OF SAN DIEGO

Jemison submitted a detention report to the court, and that

report made no mention of whether they had contacted the

parents about potential medical examinations, had requested

consent from the parents, or had told the parents that they

could be present during any examinations. Throughout that

three-day period, the Benavidez parents were available to

speak with Lisk and Jemison about such subjects, but Lisk

and Jemison never discussed those matters with them before,

during, or after the hearing. At the detention hearing, the

County did not request any order from the court regarding

physical examinations of the Benavidez children.

Nonetheless, at some point before or shortly after the

March 21, 2016 detention hearing, Lisk and Jemison

submitted a request that the state court sign two pre-printed

court forms entitled “Order Authorizing Medical

Examination and Treatment,” one for each of the Benavidez

children. As reflected on the face of the orders, which

Defendants submitted in the district court in support of their

motion to dismiss, the state court judge signed the orders on

March 21. The form orders contain a recital specifying the

finding that the court must make before it may issue such an

order. Accordingly, by issuing the orders, the state court

necessarily found that one or more of the following three

statements were true:

(1) the County of San Diego Health and

Human Services Agency (“Agency”) has

made reasonable efforts to locate or contact a

parent and/or guardian of the above-named

child to notify them of the Agency’s request

for a medical examination and treatment of

their child who is in the care of the Agency,

but such efforts have been unsuccessful; or

(2) upon request of the Agency, the child’s

BENAVIDEZ V. COUNTY OF SAN DIEGO 43

parent or guardian has objected to the

medical examination and treatment of the

child; and/or (3) the Agency has made

reasonable efforts to schedule the

examination of the child for a time when the

parent or guardian is available to attend, but

such efforts have been unsuccessful . . . .

The complaint alleges that the court’s findings in the

orders were based on representations made by Lisk and

Jemison to the court, and that, at the time they made such

representations, Lisk and Jemison knew that all three

statements contained in the recital were false. Specifically,

they knew that no effort had been made to locate and contact

the Benavidez parents about medical examinations; that the

parents were never told about the County’s request and were

not given an opportunity to object to any examinations; and

that the parents were never told that an examination was

being requested or scheduled, nor were they told when or

where the children were scheduled for physical

examinations. Medical procedures and examinations were

conducted on the Benavidez children the very next day, and

the parents did not learn about those examinations until well

after they had occurred.

These factual allegations are more than sufficient to state

a claim for judicial deception under Iqbal and Rule 9(b). The

complaint alleges ample facts to establish that each of the

recitals in the order was false, and—given the complaint’s

allegation that the court’s findings were based on the

representations made by Lisk and Jemison—the complaint

sufficiently alleges that these two defendants made the false

representations on which those findings were based. The

district court stated that Plaintiffs had to “allege exactly what

Lisk and Jemison each told the juvenile court,” but that is

44 BENAVIDEZ V. COUNTY OF SAN DIEGO

wrong. Even under Rule 9(b)’s heightened pleading

standards, Plaintiffs sufficiently alleged the “‘who, what,

when, where, and how’” of the misconduct. Vess, 317 F.3d

at 1106 (citation omitted). Under the complaint’s

allegations, Lisk and Jemison were the ones who made the

challenged statements in presenting the request (either both

personally or Lisk acting personally with Jemison’s

approval); the statements consisted of representations that

one or more of the recitals in the court form were true; the

representations were made on or about March 21, 2016; and

they were made in some form of ex parte communication

with the court. These specifics are more than enough to

allow Lisk and Jemison to “‘defend against the charge and

not just deny that they have done anything wrong.’” Id.

(citation omitted).

Even under Rule 9(b), scienter “may be alleged

generally,” see Fed. R. Civ. P. 9(b), and the complaint’s

allegations are sufficient on this score as well. The

complaint alleges that Lisk and Jemison knew that those

representations were false, because they were the social

worker and supervisor assigned to the Benavidez case and

therefore knew that no efforts had been made to contact the

parents about medical examinations. Moreover, the

allegation that Lisk and Jemison obtained the order in some

form of direct communication with the court, and outside the

context of the detention hearing attended by the parents,

further strengthens a reasonable inference that Lisk and

Jemison knew that the parents were unaware of the medical-

examination request and that Lisk and Jemison were taking

steps to ensure that the parents did not learn of the request in

advance.

Accordingly, the complaint’s allegations are sufficient to

state a plausible claim of knowing and intentional judicial

BENAVIDEZ V. COUNTY OF SAN DIEGO 45

deception that escapes qualified immunity. See KRL,

384 F.3d at 1117. The district court erred in concluding

otherwise.

IV

I agree that Plaintiffs’ Monell claim was properly

dismissed with prejudice, because the operative complaint

does not allege sufficient facts to support such a claim.

The complaint alleges that, in response to the decision in

Swartwood v. County of San Diego, 84 F. Supp. 3d 1093

(S.D. Cal. 2014), the County in February 2015 adopted a

formal policy that required adherence to the sort of parental

notice and consent measures that Plaintiffs allege were

violated here. The complaint then goes on to say that the

County has a policy or practice of causing or allowing

violations of the February 2015 policy, but the district court

correctly held that these allegations were utterly conclusory

and inadequate under Iqbal. Apart from pointing to

violations that predated the 2015 policy, the complaint

alleges only that (1) Lisk and Jemison were able to violate

that 2015 policy in this case and (2) the County’s “Detention

Report form” lacked a design that was sufficient to ensure

compliance with the 2015 policy. These meager allegations

fail to raise a plausible inference that the County has a policy

or practice of affirmatively allowing violations of its 2015

policy. See City of Oklahoma City v. Tuttle, 471 U.S. 808,

823–24 (1985) (“Proof of a single incident of

unconstitutional activity is not sufficient to impose liability

under Monell, unless proof of the incident includes proof that

it was caused by an existing, unconstitutional municipal

policy, which policy can be attributed to a municipal

policymaker.”); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.

1996) (“Liability for improper custom may not be predicated

on isolated or sporadic incidents.”).

46 BENAVIDEZ V. COUNTY OF SAN DIEGO

For similar reasons, Plaintiffs’ failure-to-train

allegations are also inadequate. Such a theory of Monell

liability usually requires a “pattern of similar constitutional

violations by untrained employees,” see Connick v.

Thompson, 563 U.S. 51, 62 (2011), and no such pattern has

been alleged here. See also Board of County Comm’rs of

Bryan County v. Brown, 520 U.S. 397, 407–08 (1997) (a

“one-time negligent administration” of a training program

does not “tend to show . . . the lack of proper training”). Nor

have Plaintiffs alleged facts to show that the “patently

obvious” consequence of the County’s training will be

constitutional violations such as the one alleged here.

Connick, 563 U.S. at 64.

Finally, Plaintiffs’ failure-to-discipline theory of Monell

liability fails for substantially the same reasons. See

Rodriguez v. County of Los Angeles, 891 F.3d 776, 803 (9th

Cir. 2018) (noting that such a theory requires a showing of

“‘widespread’” or “repeated constitutional violations” that

were ignored (citation omitted)).

* * *

For the foregoing reasons, I concur in the judgment

affirming the dismissal of the Monell claim with prejudice

and reversing the dismissal of the § 1983 claim against Lisk

and Jemison.