HENRY A. v. Willden

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HENRY A.; CHARLES B.; CHARLOTTE 

B.; LEO C.; VICTOR C.; DELIA D.;

MAIZY D.; JONATHAN D.; LINDA E.;

CHRISTINE F.; OLIVIA G.; SHELDON

H.; MASON I., individually and on

behalf of others so situated,

Plaintiffs-Appellants,

No. 10-17680

v.

D.C. No.

MICHAEL WILLDEN, Director,  2:10-cv-00528-

Nevada Department of Health and RCJ-PAL

Human Services; DIANE COMEAUX,

OPINION

Administrator, Nevada Division of

Child and Family Services;

VIRGINIA VALENTINE, Clark County

Manager; CLARK COUNTY; TOM

MORTON, Director of Clark County

Department of Family Services,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, Chief District Judge, Presiding

Argued and Submitted

February 13, 2012—San Francisco, California

Filed May 4, 2012

Before: Procter Hug, Jr., Betty B. Fletcher, and

Richard A. Paez, Circuit Judges.

Opinion by Judge B. Fletcher

4745

HENRY A. v. WILLDEN 4749

COUNSEL

Brian R. Matsui, Morrison & Foerster LLP, Washington, DC

(argued); Lori A. Schechter, Dorothy L. Fernandez, Jeffrey K.

Rosenberg, Morrison & Foerster LLP, San Francisco, Califor-

nia; William Grimm, Leecia Welch, Bryn Martyna, National

Center for Youth Law, Oakland, California; Bruno Wolfen-

4750 HENRY A. v. WILLDEN

zon, Gregory M. Schulman, Wolfenzon Schulman & Rolle,

Las Vegas, Nevada, for plaintiffs-appellants Henry A.,

Charles B., Charlotte B., Leo C., Victor C., Delia D., Maizy

D., Jonathan D., Linda E., Christine F., Olivia G., Sheldon H.,

and Mason I.

Margaret G. Foley, Buckley King LPA, Las Vegas, Nevada,

for defendants-appellees Virginia Valentine, Tom Morton,

and Clark County.

Linda C. Anderson, Chief Deputy Attorney General, Las

Vegas, Nevada, for defendants-appellees Michael Willden

and Diane Comeaux.

OPINION

B. FLETCHER, Circuit Judge:

Plaintiff-appellants (“Plaintiffs”), a group of foster children

in Clark County, Nevada, appeal the dismissal of their com-

plaint pursuant to Federal Rule of Civil Procedure 12(b)(6).1

For the reasons that follow, we reverse the dismissal of

Counts One, Two, Three, Eight, and Eleven; affirm the dis-

missal of counts Nine and Ten; and remand for further pro-

ceedings.

1

At oral argument, counsel for Defendants suggested that some of the

named plaintiffs are no longer in government custody but provided no fur-

ther information. Without knowing which plaintiffs are no longer in cus-

tody and what claims for injunctive relief relate to them, there is simply

no way for us to determine whether some claims for injunctive relief are

now moot. On remand, any mootness arguments should be brought to the

attention of the district court. We note, however, that Plaintiffs’ damages

claims are not moot in any event. See Bernhardt v. Cnty. of Los Angeles,

279 F.3d 862, 872 (9th Cir. 2002) (noting that a live claim for even nomi-

nal damages will prevent dismissal for mootness).

HENRY A. v. WILLDEN 4751

I. BACKGROUND

Plaintiffs brought this action under 42 U.S.C. § 1983

against State and County officials, alleging violations of their

substantive due process rights under the Fourteenth Amend-

ment and violations of their federal statutory rights under the

Adoption Assistance and Child Welfare Act (CWA), 42

U.S.C. § 670 et seq.; the Child Abuse Prevention and Treat-

ment Act (CAPTA), 42 U.S.C. § 5101 et seq.; and the Indi-

viduals with Disabilities Education Act (IDEA), 20 U.S.C.

§ 1431 et seq.2 Plaintiffs’ action consists of individual claims

for damages and injunctive relief and class claims for injunc-

tive relief.

The defendants (“Defendants”) named in the action are

Clark County; Virginia Valentine, the Clark County Manager;

Tom Morton, the Director of Clark County’s Department of

Family Services; Diane Comeaux, the Administrator of

Nevada’s Division of Child and Family Services; and Michael

Willden, the Director of Nevada’s Department of Health and

Human Services. The complaint also lists as “John Doe”

defendants ten caseworkers and ten supervisors for Clark

County’s Department of Family Services. According to the

complaint, the State of Nevada was responsible for providing

foster care services until October 2004, when that responsibil-

ity was transferred to Clark County. The State retains respon-

sibility for supervision and oversight of Clark County’s foster

care system, including the County’s compliance with state

and federal law.3

The complaint alleges that Clark County’s foster care sys-

2

Plaintiffs also raised claims under the supremacy clause, which they

voluntarily dismissed, and several pendent state law claims, which the dis-

trict court dismissed pursuant to 28 U.S.C. § 1367(c).

3

For the purposes of reviewing a Rule 12(b)(6) dismissal, we accept as

true all well-pleaded facts in the complaint. ASW v. Oregon, 424 F.3d 970,

974 (9th Cir. 2005).

4752 HENRY A. v. WILLDEN

tem is plagued by systemic failures that result in violations of

the rights guaranteed to foster children by federal statutes and

the Due Process clause of the Fourteenth Amendment. The

specific allegations include the failure to provide caseworkers

with even basic training; the failure to provide foster children

and their foster parents with case plans and medical records;

the failure to provide foster children with necessary medical

care; the failure to provide foster children with guardians ad

litem; the failure to investigate reports of abuse and neglect in

foster homes; the failure of Clark County to incorporate state

and federal requirements into its child welfare policies; and

the failure of the State to ensure that Clark County is operat-

ing its foster care system in compliance with federal law.

The complaint’s allegations also describe how these sys-

temic failures have injured the named plaintiffs. For the sake

of brevity, we summarize only a few examples.

The alleged failure to provide adequate medical care has

had serious consequences for several of the named plaintiffs.

Henry A. was forced to change treatment providers more than

ten times, but his medical records were not transferred prop-

erly. As a result, Henry was given a dangerous combination

of psychotropic medications and was hospitalized in an inten-

sive care unit for two weeks, on the brink of organ failure.

Upon release from the hospital, Henry was administered the

same medications again and returned to the ICU.

When Jonathan D. became seriously ill with an impacted

colon, the County failed to approve a colonoscopy or other

treatment measures, despite repeated requests from Jonathan’s

doctor and his foster parent. Without the County’s consent,

Jonathan’s doctor was forced to wait until Jonathan’s condi-

tion became life-threatening, justifying emergency surgery

without the County’s permission. By that point, Jonathan had

been in severe pain for months.

Other plaintiffs were injured by the failure to provide foster

children and their foster parents with the records and docu-

HENRY A. v. WILLDEN 4753

mentation required by federal law. For example, when Olivia

G. was placed with a foster parent after being discharged from

a psychiatric facility, her foster parent did not receive the

authorization to fill her prescriptions, forcing Olivia to go

through a painful withdrawal.

Finally, some plaintiffs were left in foster homes without

any intervention despite their reports of abuse and neglect.

According to the complaint, Defendants failed to investigate

Linda E.’s reports of physical abuse in her foster home;

placed Leo C. and Victor C. in a foster home that had a

known history of neglect; and placed Mason I. in an out-of-

state facility despite numerous reports of patient abuse there

and Mason’s own complaints of sexual abuse.

II. JURISDICTION & STANDARD OF REVIEW

These factual allegations, among others, form the basis for

the parts of the complaint that are at issue in this appeal:

Counts One, Two, and Eleven, based on the Fourteenth

Amendment to the United States Constitution; Counts Three

and Eight, based on the CWA; Count Nine, based on CAPTA;

and Count Ten, based on CAPTA and the IDEA.4 The district

court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a).

The district court dismissed these claims pursuant to Federal

Rule of Civil Procedure 12(b)(6) and entered final judgment

in favor of Defendants on October 27, 2010. Plaintiffs filed a

timely notice of appeal, and we have jurisdiction under 28

U.S.C. § 1291.

We discuss each claim in detail below. We review de novo

the district court’s decision to grant Defendants’ motion to

dismiss under Rule 12(b)(6). ASW, 424 F.3d at 974. “We

accept as true all well pleaded facts in the complaint and con-

strue them in the light most favorable to the nonmoving

4

The dismissal of the remaining counts has not been challenged on

appeal. See supra note 2.

4754 HENRY A. v. WILLDEN

party.” Id. We also review whether the district court abused

its discretion by dismissing the complaint without granting

leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

2000).

III. DISCUSSION

A. Substantive Due Process Claims

Generally, “the Fourteenth Amendment’s Due Process

Clause . . . does not confer any affirmative right to govern-

mental aid” and “typically does not impose a duty on the state

to protect individuals from third parties.” Patel v. Kent Sch.

Dist., 648 F.3d 965, 971 (9th Cir. 2011) (citations and alter-

ations omitted). There are, however, two exceptions to this

rule. First, there is the “special relationship” exception —

when a custodial relationship exists between the plaintiff and

the State such that the State assumes some responsibility for

the plaintiff ’s safety and well-being. Id. at 971 (citing

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S.

189, 198-202 (1989)). Second, there is the “state-created dan-

ger exception” — when “the state affirmatively places the

plaintiff in danger by acting with ‘deliberate indifference’ to

a ‘known and obvious danger[.]’ ” Id. at 971-72 (quoting L.W.

v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). “If either excep-

tion applies, a state’s omission or failure to protect may give

rise to a § 1983 claim.” Id. at 972.

Plaintiffs here have raised claims under both exceptions,

arguing (1) that Defendants have a custodial relationship with

foster children and have failed to provide adequate safety and

medical care, and (2) that Defendants have affirmatively

placed some of the children in danger by putting them in fos-

ter care placements that were known to be abusive.

1. Special Relationship Exception (Counts One and

Eleven)

Counts One and Eleven of the complaint allege that Defen-

dants have violated Plaintiffs’ “right to be free from harm

HENRY A. v. WILLDEN 4755

while involuntarily in government custody and their right to

medical care, treatment, and services.” Count One seeks dam-

ages and injunctive relief for the individual plaintiffs and

Count Eleven seeks injunctive relief on behalf of a class of

foster children who have failed to receive early intervention

services that they are entitled to under federal law.

Both counts proceed to provide more detailed factual alle-

gations. Count One provides a list of the conduct that alleg-

edly has violated Plaintiffs’ rights to adequate safety and

medical care:

(a) failure to adequately provide medical, dental, and

mental health services, including but not limited to

standardized periodic health screenings and treat-

ments, medical services for maximum reduction of

physical or mental disability, and monitoring of,

administration, and use of psychotropic drugs by fos-

ter children;

(b) failure to inform caregivers of essential informa-

tion;

(c) failure to conduct legally required visits with fos-

ter children;

(d) failure to adequately respond to reports of abuse;

(e) failure to ensure adequacy of relative caregiver

placements; and

(f) failure to adequately inspect out of state facilities

and monitor treatment and services provided to fos-

ter children placed in out of state facilities.

Count One also incorporates the detailed examples of how

Defendants failed to provide adequate medical care and safety

to the individual plaintiffs, such as the failure to approve Jon-

4756 HENRY A. v. WILLDEN

athan’s necessary medical treatment despite knowledge that

he was seriously ill; the failure to provide Olivia’s foster par-

ents with the information and authorization to fill her pre-

scriptions; and the failure to respond to reports of abuse and

neglect at Linda and Mason’s foster care placements. Count

Eleven alleges that Defendants’ routine failure to refer eligi-

ble children to early intervention services amounts to a denial

of adequate medical care.

The district court dismissed Counts One and Eleven after

concluding that Defendants were entitled to qualified immu-

nity because Plaintiffs failed to allege a violation of a clearly

established constitutional right. The district court explained

that while the State must “provide individuals in state custody

with their basic human needs,” the specific examples of medi-

cal care and services listed by Plaintiffs were not clearly

established constitutional rights.

[1] This conclusion is plainly wrong with respect to Plain-

tiffs’ damages claim against Clark County and Plaintiffs’

claims for injunctive relief. “Qualified immunity shields fed-

eral and state officials from money damages unless a plaintiff

pleads facts showing (1) that the official violated a statutory

or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Ashcroft

v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (emphasis added).

Qualified immunity is not available as a defense in § 1983

cases “against a municipality” or “against individuals where

injunctive relief is sought instead of or in addition to dam-

ages.” Pearson v. Callahan, 555 U.S. 223, 242 (2009). Defen-

dants do not dispute the law on this point. We therefore

reverse the district court’s dismissal of Count Eleven, which

seeks only injunctive relief, and reverse the dismissal of

Count One with respect to the claims for injunctive relief and

the damages claim against Clark County. Qualified immunity

simply does not apply to these claims.5

5

For the first time on appeal, the County defendants argue that dismissal

against Clark County is proper because Plaintiffs have failed to suffi-

HENRY A. v. WILLDEN 4757

Qualified immunity is, however, a possible defense to the

claims for damages against the individual defendants in Count

One. Even if a complaint sufficiently alleges that a govern-

ment official violated a federal constitutional or statutory

right, that official is entitled to qualified immunity from

money damages if the right was not “clearly established” at

the time of the challenged conduct. See al-Kidd, 131 S. Ct. at

2080. “A Government official’s conduct violates clearly

established law when, at the time of the challenged conduct,

the contours of a right are sufficiently clear that every reason-

able official would have understood that what he is doing vio-

lates that right.” Id. at 2083 (internal quotation marks and

alterations omitted). “This is not to say that an official action

is protected by qualified immunity unless the very action in

question has previously been held unlawful, but it is to say

that in the light of pre-existing law the unlawfulness must be

apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal

citations omitted).

[2] In this case, the district court’s qualified immunity

analysis was too narrow. The district court looked at Plain-

tiffs’ detailed factual allegations and essentially determined

that Defendants were entitled to qualified immunity because

the “very action[s] in question” had not “previously been held

ciently plead that the violations of their constitutional rights were pursuant

to a policy, practice, or custom as required by Monell v. Dep’t of Soc.

Servs., 436 U.S. 658 (1978). Although ordinarily we may consider affirm-

ing dismissal on any ground supported by the record, Dougherty v. City

of Covina, 654 F.3d 892, 900 (9th Cir. 2011), that discretion “extends to

issues raised in a manner providing the district court an opportunity to rule

on it.” Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 974 (9th Cir.

2010). In any event, we note that the complaint does make specific factual

allegations regarding the County’s policies and customs, including a cus-

tom of failing to provide even basic training to caseworkers before assign-

ing them caseloads; County policies that do not incorporate State and

federal requirements; and a custom of failing to share necessary medical

information between State and County officials. Compare Dougherty, 654

F.3d at 900-01.

4758 HENRY A. v. WILLDEN

unlawful.” See id. Instead, the district court should have (1)

determined the contours of a foster child’s clearly established

rights at the time of the challenged conduct under the “special

relationship” doctrine of substantive due process, and (2)

examined whether a reasonable official would have under-

stood that the specific conduct alleged by Plaintiffs violated

those rights. See al-Kidd, 131 S. Ct. at 2083. Using the correct

analysis, we conclude that Plaintiffs have alleged violations of

their clearly established constitutional rights, and the individ-

ual defendants are not entitled to qualified immunity at this

stage of the litigation.

[3] It is clearly established that “when the State takes a

person into its custody and holds him there against his will,

the Constitution imposes upon it a corresponding duty to

assume some responsibility for his safety and general well-

being.” DeShaney, 489 U.S. at 199-200. When the State

asserts this type of custody over a person “and at the same

time fails to provide for his basic human needs — e.g., food,

clothing, shelter, medical care, and reasonable safety — it

transgresses the substantive limits on state action set by . . .

the Due Process clause.” Id. at 200.

[4] It is also clearly established that this special relation-

ship doctrine applies to children in foster care. We recently

clarified that it has been clearly established since at least 1996

that foster children have “a federal constitutional right to state

protection” while they remain in the care of the State. Tamas

v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 846-47 (9th

Cir. 2010). Our circuit recognized the State’s duty to protect

foster children as early as 1992, when we observed that

“[o]nce the state assumes wardship of a child, the state owes

the child, as part of that person’s protected liberty interest,

reasonable safety and minimally adequate care and treatment

appropriate to the age and circumstances of the child.” Lips-

comb v. Simmons, 962 F.2d 1374, 1379 (9th Cir. 1992).

[5] All of the conduct challenged here occurred after 1996,

so there is no question that a foster child’s right to the basic

HENRY A. v. WILLDEN 4759

needs identified in DeShaney — food, clothing, shelter, medi-

cal care, and reasonable safety — was clearly established “at

the time of the challenged conduct.” See al-Kidd, 131 S. Ct.

at 2080. We can further clarify the contours of this right by

looking to our recent decision in Tamas.

First, Tamas itself held that this right encompasses “a foster

child’s liberty interest in social worker supervision and pro-

tection from harm inflicted by a foster parent.” 630 F.3d at

842. Tamas also clarified that the proper standard for deter-

mining whether a foster child’s due process rights have been

violated is “deliberate indifference,” the same standard

applied to substantive due process claims by prisoners. Id. at

844-45. This standard “requires an objective risk of harm and

a subjective awareness of that harm.” Id. at 844 (quoting

Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010)).

To be more specific, it requires (1) “a showing of an objec-

tively substantial risk of harm”; and (2) “a showing that the

officials were subjectively aware of facts from which an infer-

ence could be drawn that a substantial risk of serious harm

existed” and (a) “the official actually drew that inference” or

(b) “that a reasonable official would have been compelled to

draw that inference.” Id. at 845. “[T]he subjective component

may be inferred from the fact that the risk of harm is obvi-

ous.” Id. (internal quotation marks and citation omitted).

[6] Second, we can look to the clearly established law from

other circuits cited by the Tamas court. Those cases demon-

strate, for example, that a foster child’s due process rights are

violated when a state official exhibits deliberate indifference

to a child’s serious medical needs, Norfleet v. Ark. Dep’t of

Human Servs., 989 F.2d 289, 291 (8th Cir. 1993); to sus-

pected physical abuse in a foster home, Hernandez v. Tex.

Dep’t of Protective and Regulatory Servs., 380 F.3d 872, 881

(5th Cir. 2004); and to suspected sexual abuse in a foster

home, J.H. v. Johnson, 346 F.3d 788, 791 (7th Cir. 2003).

Because the substantive due process rights of foster children

are analogous to those of prisoners, see Tamas, 630 F.3d at

4760 HENRY A. v. WILLDEN

844-45, we can also look to our prisoner cases to further

define what constitutes a “serious medical need.” Those cases,

for example, have held that ignoring the instructions of a

treating physician, or failing to provide a prisoner with neces-

sary psychotropic medication, can amount to deliberate indif-

ference to serious medical needs. Wakefield v. Thompson, 177

F.3d 1160, 1164-65 (9th Cir. 1999).

[7] Having examined the relevant contours of a foster

child’s clearly established due process rights to adequate

safety and medical care, we conclude that a reasonable offi-

cial would have understood that at least some of the specific

conduct alleged by Plaintiffs violated those rights. Count One

of the complaint alleges generally that Defendants exhibited

deliberate indifference and violated the children’s rights to

“be free from harm while involuntarily in government custody

and their right to medical care”; alleges more specifically that

Defendants failed to provide adequate medical care, monitor

the administration of medication, or respond to reports of

abuse; and provides detailed factual allegations relating to the

individual plaintiffs. A reasonable official would have under-

stood that failing to authorize Jonathan’s medical treatment

despite knowledge of his serious illness and repeated requests

from his treating physician amounted to deliberate indiffer-

ence to a serious medical need. A reasonable official would

also have understood that failing to respond to Linda’s reports

of physical abuse in her foster home or the numerous reports

of abuse in Mason’s out-of-state placement would constitute

deliberate indifference to the children’s right to safety in their

foster care placements.

[8] It may be that Plaintiffs cannot prove these allegations,

or that they can only prove some of their less serious allega-

tions, such as the failure to provide standardized periodic

health screenings. If that turns out to be the case, the individ-

ual defendants can again raise the defense of qualified immu-

nity at a later stage in the proceedings. See Ortiz v. Jordan,

131 S. Ct. 884, 889 (2011). But at this stage, when we accept

HENRY A. v. WILLDEN 4761

as true all well pleaded facts in the complaint, Plaintiffs have

alleged violations of their clearly established constitutional

rights, and qualified immunity is not appropriate. We reverse

the district court’s dismissal of the damages claims in Count

One.

2. State-Created Danger Exception (Count Two)

[9] The State can also be held liable under the Fourteenth

Amendment’s Due Process clause for failing to protect an

individual from harm by third parties “where the state action

‘affirmatively place[s] the plaintiff in a position of danger,’

that is, where state action creates or exposes an individual to

a danger which he or she would not have otherwise faced.”

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir.

2006) (quoting DeShaney, 489 U.S. at 197). To determine

whether an official affirmatively placed an individual in dan-

ger, we ask: (1) whether any affirmative actions of the official

placed the individual in danger he otherwise would not have

faced; (2) whether the danger was known or obvious; and (3)

whether the officer acted with deliberate indifference to that

danger. Id. at 1062-64.

In Count Two of their complaint, Plaintiffs allege that

Defendants

act[ed] with deliberate indifference to known or

obvious danger in removing Plaintiffs from their

homes and placing them in the care of foster parents,

including in the care of relative caregivers and out of

state facilities and homes, who were unfit to care for

them and posed an imminent risk of harm to Plain-

tiffs’ safety.

The complaint also contains more detailed factual allegations,

including that Defendants placed Leo and Victor in a foster

home that had a known history of neglect; that Defendants

required Mason to have unsupervised visits with his grandpar-

4762 HENRY A. v. WILLDEN

ents despite having knowledge that they had abused him; and

that Defendants placed Mason in an out-of-state facility that

had a known history of chronic neglect and abuse.

The district court dismissed Count Two for failure to state

a claim under the state-created danger doctrine, and ruled in

the alternative that Defendants were entitled to qualified

immunity because Plaintiffs’ rights under the state-created

danger doctrine were not clearly established. Citing repeat-

edly to the dissent from denial of rehearing en banc in Ken-

nedy v. City of Ridgefield, rather than the opinion itself, the

district court reasoned that the complaint did not sufficiently

allege that Defendants “did more than simply expose the

plaintiff to a danger that already existed” because Defendants

merely “place[d] foster children into an already broken sys-

tem.”

[10] The district court’s reasoning was erroneous. The test

that the district court took from the dissent from denial in

Kennedy — that the official must do more than “expose the

plaintiff to a danger that already existed” — is not the law of

this circuit. Compare 440 F.3d 1091, 1093 (9th Cir. 2006)

(Tallman, J., dissenting from denial of rehearing en banc) with

439 F.3d at 1061 (opinion of the court). Such a test would

render the state-created danger doctrine meaningless. As dis-

cussed above, this doctrine provides an exception to the gen-

eral rule that the Fourteenth Amendment does not impose a

duty on the State to protect individuals from third parties.

Thus, by its very nature, the doctrine only applies in situations

where the plaintiff was directly harmed by a third party — a

danger that, in every case, could be said to have “already

existed.” The “dangers” examined in our previous cases —

such as a vengeful, unstable neighbor, see Kennedy, 439 F.3d

1055; a violent, predatory inmate, see L.W., 92 F.3d 894; or

a rapist prowling a high-crime area late at night, see Wood v.

Ostrander, 879 F.2d 583 (9th Cir. 1989) — already “existed”

before the plaintiffs were harmed by them. But the point of

the state-created danger doctrine is that the affirmative actions

HENRY A. v. WILLDEN 4763

of a state official “create[d] or expose[d] an individual to a

danger which he or she would not have otherwise faced.”

Kennedy, 439 F.3d at 1061 (opinion of the court) (emphasis

added).

[11] That is precisely what Plaintiffs have alleged here.

They allege that Defendants knew of the danger of abuse and

neglect that Plaintiffs faced in certain foster homes and acted

with deliberate indifference by exposing Plaintiffs to that dan-

ger anyway. This is sufficient to state a claim under the con-

trolling opinion in Kennedy. The fact that the dangerous foster

homes “already existed” is irrelevant.

[12] Moreover, we have already held that the state-created

danger doctrine applies to placing a foster child in a home

where there is a known danger of abuse. Tamas, 630 F.3d at

843-44. As we explained in Tamas, the State’s approval of a

foster care placement despite reports of suspected abuse

creates a danger of abuse that the foster child would not other-

wise have faced. Id. We therefore reverse the district court’s

dismissal of Count Two for failure to state a claim under the

state-created danger doctrine. Because Tamas also held that

these rights were clearly established, we reject the district

court’s conclusion that qualified immunity provides an alter-

native ground for dismissal. See id. at 837-38, 846 (holding

that the due process rights of foster children are clearly estab-

lished and applying the state-created danger doctrine to foster

care licenses issued in 1997 and 1999).

3. Liability of the State Officials

The State defendants also argue that, with respect to them,

the complaint fails to state a claim for substantive due process

violations because it does not adequately allege that the State

officials had a custodial relationship with the foster children

or that they are liable as supervisors.6 Although the district

6

The County defendants did not raise this argument in their motion to

dismiss and have not raised it before this court.

4764 HENRY A. v. WILLDEN

court did not address this argument, the State raised it below,

and we may affirm the district court’s dismissal on any

ground supported by the record. Dougherty, 654 F.3d at 900.

[13] First, the State defendants argue that they cannot be

held liable under the “special relationship” exception in Count

One because the plaintiff foster children are technically in the

custody of Clark County. This argument is not persuasive.

The complaint alleges that defendant Willden has “responsi-

bility for ensuring the provision of child welfare services

throughout the state” and that defendant Comeaux leads the

agency which “must evaluate all child welfare services pro-

vided throughout the State and take corrective action against

any agency providing child welfare services which is not

complying with any applicable laws, regulations, or policies.”

Furthermore, the complaint also alleges that at least two plain-

tiffs, Henry and Linda, were in the custody of the State before

the foster care system was transferred to Clark County. This

is sufficient to plead a custodial relationship between the fos-

ter children and the State defendants.

Second, the State defendants argue that plaintiffs have

failed to state a claim against them for supervisory liability.

We recently reaffirmed that a plaintiff may state a claim under

§ 1983 against a supervisor for deliberate indifference. Starr

v. Baca, 652 F.3d 1202 (9th Cir. 2011). “A defendant may be

held liable as a supervisor under § 1983 if there exists either

(1) his or her personal involvement in the constitutional depri-

vation, or (2) a sufficient causal connection between the

supervisor’s wrongful conduct and the constitutional viola-

tion.” Id. at 1207 (internal quotation marks and citation omit-

ted). “A supervisor can be liable in his individual capacity for

his own culpable action or inaction in the training, supervi-

sion, or control of his subordinates; for his acquiescence in

the constitutional deprivation; or for conduct that showed a

reckless or callous indifference to the rights of others.” Id. at

1208 (quoting Watkins v. City of Oakland, 145 F.3d 1087,

1093 (9th Cir. 1998)). In order to adequately plead such a

HENRY A. v. WILLDEN 4765

claim, “allegations in a complaint . . . may not simply recite

the elements of a cause of action, but must contain sufficient

allegations of underlying facts to give fair notice and to

enable the opposing party to defend itself effectively.” Id. at

1216. These factual allegations “must plausibly suggest an

entitlement to relief, such that it is not unfair to require the

opposing party to be subjected to the expense of discovery

and continued litigation.” Id.

After thoroughly examining the plaintiffs’ complaint, we

agree that there are few specific allegations against the State

defendants. Most of the allegations in the complaint simply

reference “Defendants,” without specifying whether the con-

duct at issue was committed by the named State officials,

County officials, or the “John Doe” supervisors or casework-

ers. For many of the detailed factual allegations, such as the

failure to respond to a particular report of abuse or authorize

a particular medical procedure, it is implausible to suggest

that Willden or Comeaux personally committed the alleged

violation.

The allegations that do expressly reference the State defen-

dants are too general to state a claim for supervisory liability.

In Starr v. Baca, the plaintiff alleged that Sheriff Baca himself

had been given clear notice by the Department of Justice of

the specific unconstitutional conditions in the jails; that the

Sheriff received numerous reports documenting inmate vio-

lence caused by the unconstitutional conduct of his deputies;

and that the Sheriff ultimately acquiesced in these constitu-

tional violations. See 652 F.3d at 1208-10.

In contrast, the allegations here claim that the agencies

directed by Willden and Comeaux have oversight responsibil-

ity for Clark County’s foster care system and are required to

ensure that Clark County is complying with state and federal

law. The complaint also alleges that all of the defendants had

knowledge of independent reports documenting the systemic

failures of foster care in Nevada. But it does not allege that

4766 HENRY A. v. WILLDEN

Willden or Comeaux had any personal knowledge of the spe-

cific constitutional violations that led to Plaintiffs’ injuries, or

that they had any direct responsibility to train or supervise the

caseworkers employed by Clark County.

The allegations that come closest to pleading personal

involvement by Willden and Comeaux concern the failure to

provide medical records to the children and their foster par-

ents in order to facilitate their medical care. Paragraphs 27

and 28 allege that Willden is responsible for “ensuring county

compliance with all federal mandates of the Medicaid pro-

gram” and that Comeaux is “responsible for administering the

Medicaid program with respect to children in the child wel-

fare system.” Paragraph 42 alleges that “State Defendants . . .

are responsible for the management and day-to-day operation

of Nevada’s Children’s Mental Health Services program.”

Finally, Paragraph 59 alleges that the State defendants fail to

share the medical records from the State’s Medicaid database

and the Mental Health Services program with the County

defendants, which in turn prevents County employees from

sharing that information with foster parents.

When read together, these allegations suggest that there

may be a causal connection between the State defendants’

failure to share these medical records and the injuries suffered

by plaintiffs such as Henry, who received a dangerous combi-

nation of prescription drugs because his medical records were

not given to his treatment providers.

But even if the complaint in its current form fails to state

a claim against the State officials for substantive due process

violations, the district court abused its discretion by failing to

give the plaintiffs an opportunity to amend their complaint.

“[W]e have repeatedly held that a district court should grant

leave to amend even if no request to amend the pleading was

made, unless it determines that the pleading could not possi-

bly be cured by the allegation of other facts.” Lopez, 203 F.3d

at 1130 (internal quotation marks omitted). Here, Plaintiffs

HENRY A. v. WILLDEN 4767

offered to amend their complaint if necessary in their

response to the motion to dismiss, but the district court did

not grant leave to amend and did not provide any reasons for

its decision.

[14] As we have already concluded, the complaint ade-

quately pleads violations of Plaintiffs’ clearly established sub-

stantive due process rights, and it plausibly suggests an

entitlement to relief from at least some of the defendants.

Where the complaint falls short in some places is tying its fac-

tual allegations to particular defendants. But this type of defi-

ciency can likely be cured by amending the complaint, and

there is certainly no evidence to suggest that allowing amend-

ment would be futile.

[15] Therefore, on remand, Plaintiffs should be given an

opportunity to amend their substantive due process claims.

We note that in any future proceedings in the district court,

each defendant’s liability must be analyzed individually using

the proper standard, whether that individual is a line-level

caseworker, a supervisory official, or a municipality. See

Tamas, 630 F.3d at 847.

B. Federal Statutory Claims

[16] Section 1983 can also be used to enforce federal stat-

utes. Blessing v. Freestone, 520 U.S. 329, 340 (1997). For a

statutory provision to be privately enforceable, however, it

must create an individual right. See id. (“In order to seek

redress through § 1983, however, a plaintiff must assert the

violation of a federal right, not merely a violation of federal

law.”).

Blessing established a three-prong test for determining

whether a federal statute creates an individual right. “The

Blessing test requires: 1) that Congress intended the statutory

provision to benefit the plaintiff; 2) that the asserted right is

not so ‘vague and amorphous’ that its enforcement would

4768 HENRY A. v. WILLDEN

strain judicial competence; and 3) that the provision couch the

asserted right in mandatory rather than precatory terms.” Wat-

son v. Weeks, 436 F.3d 1152, 1158 (9th Cir. 2006) (citing

Blessing, 520 U.S. at 340-41). In Gonzaga University v. Doe,

the Supreme Court clarified that the first prong of the Blessing

test is meant to determine whether Congress “unambiguously

conferred” a federal right. 536 U.S. 273, 283 (2002). This

requires “rights-creating language,” meaning that the text of

the statute “must be phrased in terms of the persons benefit-

ed.” Id. at 284, 284 n.3 (quotation marks and citations omit-

ted).

If a statutory provision satisfies the Blessing test, it is pre-

sumptively enforceable through § 1983. Watson, 436 F.3d at

1158 (citing Blessing, 520 U.S. at 341). This presumption is

rebutted “if Congress expressly or impliedly foreclosed

enforcement under section 1983.” Id. “[A]n implied foreclo-

sure occurs if Congress created ‘a comprehensive enforce-

ment scheme that is incompatible with individual

enforcement.’ ” Id. at 1158-59 (quoting Blessing, 520 U.S. at

341).

Here, the plaintiffs seek to enforce four sets of federal stat-

utory provisions through § 1983: the case plan provisions of

the CWA, the records provisions of the CWA, the guardian ad

litem provision of CAPTA, and the early intervention services

provisions of CAPTA and the IDEA. All of these are spend-

ing statutes; the State of Nevada has agreed to administer its

foster care system in accordance with these federal laws in

return for financial assistance from the federal government.

The district court dismissed these claims on the basis that

none of the provisions are privately enforceable.7

7

The district court’s order occasionally refers to these claims as “statu-

tory, constitutional violations” and explains that Defendants are entitled to

qualified immunity because it is not “clearly established” that the statutory

provisions at issue are privately enforceable. These statements are incor-

rect. First, enforcement through § 1983 does not transform a statutory

HENRY A. v. WILLDEN 4769

1. CWA: Case Plan Provisions (Count Eight)

Count Eight of the complaint seeks injunctive relief for a

class of children who have not received a case plan as

required by the CWA. The case plan provisions of the CWA

are codified at 42 U.S.C. §§ 671(a)(16) and 675(1). Section

671(a)(16) states that:

In order for a State to be eligible for payments under

this part, it shall have a plan approved by the Secre-

tary which . . . provides for the development of a

case plan (as defined in section 675(1) of this title)

for each child receiving foster care maintenance pay-

ments under the State plan . . . .

Section 675(1) provides a detailed definition of what a case

plan must include, such as the child’s health and educational

records, a description of the child’s permanency plan, and a

plan for ensuring the child’s educational stability.

The district court concluded that these provisions do not

contain sufficient “rights-creating language” to satisfy the

first prong of the Blessing test. We disagree and join the

majority of federal courts in holding that the case plan provi-

sions are enforceable through § 1983. See, e.g., L.J. v. Mas-

singa, 838 F.2d 118, 123 (4th Cir. 1988); Lynch v. Dukakis,

719 F.2d 504, 512 (1st Cir. 1983); Sam M. v. Chafee, 800 F.

Supp. 2d 363, 386-88 (D.R.I. 2011); Connor B. v. Patrick,

771 F. Supp. 2d 142, 170-72 (D. Mass. 2011); Kenny A. v.

right into a constitutional right. Section 1983 provides for enforcement of

rights guaranteed by federal statutes alone. See Blessing, 520 U.S. at 340.

Second, whether a federal statute is privately enforceable and whether an

official is entitled to qualified immunity for a violation of that statute are

two separate inquiries. There need not be “clearly established law” show-

ing that a statute is privately enforceable. See, e.g., ASW, 424 F.3d 970

(considering as a matter of first impression whether §§ 671(a)(12) and

673(a)(3) of the CWA are privately enforceable).

4770 HENRY A. v. WILLDEN

Perdue, 218 F.R.D. 277, 292-93 (N.D. Ga. 2003); Brian A. v.

Sundquist, 149 F. Supp. 2d 941, 946-49 (M.D. Tenn. 2000);

Jeanine B. v. Thompson, 877 F. Supp. 1268, 1283-84 (E.D.

Wis. 1995); B.H. v. Johnson, 715 F. Supp. 1387, 1402 (N.D.

Ill. 1989). But see Carson P. v. Heineman, 240 F.R.D. 456,

544 (D. Neb. 2007); Olivia Y. v. Barbour, 351 F. Supp. 2d

543, 562 (S.D. Miss. 2004); Charlie H. v. Whitman, 83 F.

Supp. 2d 476, 489-90 (D.N.J. 2000).

[17] Section 671(a)(16) unambiguously requires the State

to provide for the development of a case plan “for each child.”

As the Massachusetts district court wrote recently in Connor

B., rights-creating language “is readily discernible” in

§ 671(a)(16) because it “expresses a clear mandate by using

the term ‘shall’ ” and “discusses how the state must distribute

benefits to each child.” 771 F. Supp. 2d at 171. “Plainly, these

directives are both couched in mandatory terms and are

unmistakably focused on the benefitted class, i.e., foster chil-

dren.” Id.

Our court’s precedent also supports this conclusion. We

have concluded in two different cases that other provisions of

the CWA contain rights-creating language.8 In ASW, we held

that §§ 671(a)(1) and 673(a)(3) create a right to individualized

adoption assistance payment determinations and that

§ 671(a)(12) creates a right to a hearing when adoption assis-

tance payments are reduced. 424 F.3d at 975-79. In California

State Foster Parent Association v. Wagner, we held that

§§ 672(a) and 675(4)(A) create a right to foster care mainte-

nance payments that cover certain enumerated costs. 624 F.3d

974, 978-82 (9th Cir. 2010). Both of these decisions recog-

nized the importance of language phrasing the benefit in

terms of “each child,” see id. at 979-81, or “each family,” see

ASW, 424 F.3d at 976 (citing Rabin v. Wilson-Coker, 362

F.3d 190, 201 (2d Cir. 2004)). As in those cases, the reference

8

These decisions are not dispositive because we must examine each pro-

vision separately rather than the statute as a whole. ASW, 424 F.3d at 977.

HENRY A. v. WILLDEN 4771

here to a case plan “for each child” focuses squarely on the

protected individual, rather than an aggregate interest or a reg-

ulated entity. See Wagner, 624 F.3d at 980 (citing Gonzaga,

536 U.S. at 288-89).

Defendants’ argument to the contrary is not persuasive.

Defendants maintain that “Congress only required the State to

have a plan to ‘develop’ a case plan for each child.” But as

we recognized in ASW, Congress has directed that statutory

provisions within the Social Security Act should not “be

deemed unenforceable because of its inclusion in a section . . .

requiring a State plan or specifying the required contents of

a State plan.” 42 U.S.C. § 1320a-2; ASW, 424 F.3d at 977 n.11.9

We conclude that the first Blessing factor weighs in favor of

an enforceable right.

[18] The second and third Blessing factors also show that

the case plan provisions are presumptively enforceable. The

requirement that each child have a case plan is not “so vague

and amorphous that its enforcement would strain judicial

competence.” Watson, 436 F.3d at 1158 (internal quotation

marks omitted). The definition provided in § 675(1) describes

exactly what a case plan must include; as in ASW, “there is

no ambiguity as to what [the state is] required to do[.]” 424

F.3d at 976. In Wagner, we held that another detailed defini-

tion in § 675, which provided an itemized list of what

expenses “foster care maintenance payments” must cover, sat-

isfied the second Blessing prong. 624 F.3d at 981. We con-

9

This statute is known as the “Suter fix.” In Suter v. Artist M., 503 U.S.

347 (1992), the Supreme Court held that § 671(a)(15) of the CWA, which

requires a State to make “reasonable efforts” to reunify families, is not pri-

vately enforceable. The Court relied in part on the placement of that provi-

sion in a part of the statute detailing the requirements of a State plan. The

“Suter fix” overturned that reasoning with respect to all provisions in

Chapter 7 of Title 42 (the Social Security Act) without overturning the

specific holding that § 671(a)(15) is not privately enforceable. The CWA

is also known as Title IV-E of the Social Security Act. Wagner, 624 F.3d

at 978.

4772 HENRY A. v. WILLDEN

clude that § 675(1) does so as well. Finally, we have already

determined that the repeated use of the word “shall” in the

CWA shows that the statute is written in mandatory rather

than precatory terms. Id. at 982.

We now turn to whether the presumption that the case plan

provisions are enforceable is rebutted by Congressional action

that has “expressly or impliedly foreclosed enforcement under

section 1983[.]” Watson, 436 F.3d at 1158. In Wagner, we

recognized that the CWA provides no administrative forum

through which aggrieved foster children or parents can seek

redress, which weighs in favor of enforcement through

§ 1983. 624 F.3d at 982. Here, however, Defendants argue

that because Congress created an express cause of action to

enforce § 671(a)(18), it could not have intended the other sub-

sections of § 671(a) to be privately enforceable. See Charlie

H., 83 F. Supp. 2d at 489. The district court also relied on this

reasoning. This argument, however, has been implicitly

rejected by our holding in ASW that § 671(a)(12) creates an

enforceable right. Furthermore, because the express cause of

action created for § 671(a)(18) is actually broader than

§ 1983, it does not suggest an intent to limit § 1983 enforce-

ment. See Joseph A. v. Ingram, 275 F.3d 1253, 1264 (10th

Cir. 2002); cf. ASW, 424 F.3d at 978 (“[T]he dispositive issue

is whether the private remedy provided by statute is more

restrictive than those available through a § 1983 action, such

that the § 1983 action would function as an end run around

the enforcement mechanism Congress provided.”).

[19] We conclude that the case plan provisions of the

CWA, codified at §§ 671(a)(16) and 675(1), are enforceable

through § 1983. We therefore reverse the district court’s dis-

missal of Count Eight.

2. CWA: Records Provisions (Count Three)

Count Three is a claim for injunctive relief and damages on

behalf of the individual plaintiffs. It seeks to enforce the

HENRY A. v. WILLDEN 4773

requirement that a State provide updated health and education

records to foster parents as part of a “case review system.”

These provisions are codified at 42 U.S.C. §§ 671(a)(16),

675(1), and 675(5)(D).

As it does with respect to a case plan, § 671(a)(16) requires

a State to provide for a “case review system” for each child.

Section 675(5)(D) defines “case review system” to include “a

procedure for assuring that . . . a child’s health and education

record . . . is reviewed and updated, and a copy of the record

is supplied to the foster parent or foster care provider with

whom the child is placed, at the time of each placement of the

child in foster care.” Section 675(1)(C) outlines the detailed

information that must be included in a child’s health and edu-

cation record.

The district court analyzed the records provisions of the

CWA along with the case plan provisions and concluded that

the records provisions were also not enforceable. The district

court adopted the reasoning of the Eleventh Circuit in 31 Fos-

ter Children v. Bush, which held that the language describing

a case review system as “a procedure for assuring” that a fos-

ter child has accurate health and education records gives the

provision “an aggregate or system wide focus instead of one

that indicates concern with whether the needs of any particu-

lar child are met.” 329 F.3d 1255, 1272 (11th Cir. 2003).

[20] We disagree with this analysis and instead join the

federal courts that have found the records provisions of the

CWA to be privately enforceable along with the case plan

provisions. See, e.g., Lynch, 719 F.2d at 512; Kenny A., 218

F.R.D. at 291-92; Brian A., 149 F. Supp. 2d at 946-49. We are

persuaded by the statute’s repeated focus on the individuals

benefitted by §§ 671(a)(16) and 675(5)(D): A case review

system must be provided with respect to each child; the

child’s health and education record must be provided to the

foster parent; and this must happen at the time the child is

placed in foster care. As in Wagner, the “focus on individual

4774 HENRY A. v. WILLDEN

foster children,” and the language “designating foster parents”

to receive a benefit on their foster child’s behalf, “together

unambiguously reflect Congress’s intent” that the records pro-

visions benefit individual foster children and parents. 624

F.3d at 981. Furthermore, like the case plan provisions, the

records provisions are couched in mandatory terms and con-

tain detailed, concrete requirements that are capable of judi-

cial enforcement.10 To conclude otherwise would be

inconsistent with our decisions in ASW and Wagner, as well

as our analysis of the case plan provisions above.

[21] Defendants argue that the district court’s decision is

supported by a footnote in ASW, which distinguished 31 Fos-

ter Children by noting that unlike § 673(3), the provision at

issue in ASW, the statutory text of § 675(5) alone does not

mention “a right . . . to have medical and education back-

grounds provided to caregivers[.]” 424 F.3d at 977 n.12. We

agree with Plaintiffs, however, that this footnote has little sig-

nificance because ASW did not consider § 675(5) in the con-

text of related provisions such as § 671(a)(16) and

§ 622(b)(8)(A)(ii). We conclude that, like the case plan provi-

sions, the records provisions can be enforced through § 1983,

and we reverse the district court’s dismissal of Count Three.

3. CAPTA: Guardian ad litem provisions (Count Nine)

Count Nine of the complaint seeks injunctive relief on

behalf of a class of foster children who have not been

appointed guardians ad litem. It seeks to enforce the guardian

ad litem provision of CAPTA, codified at 42 U.S.C.

§ 5106a(b)(2)(B)(xiii), which provides that:

10

Additional evidence of Congress’s intent to create an enforceable right

can be found at 42 U.S.C. § 622(b)(8)(A)(ii), which requires each State to

assure that it is “operating” a case review system “for each child receiving

foster care under the supervision of the State.” See, e.g., Kenny A., 218

F.R.D. at 292-93; Brian A., 149 F. Supp. 2d at 947; cf. 31 Foster Children,

329 F.3d at 1271 n.8. But see Charlie H., 83 F. Supp. 2d at 485-89.

HENRY A. v. WILLDEN 4775

A State plan . . . shall contain a description of the

activities that the State will carry out using amounts

received under the grant . . . including . . . an assur-

ance in the form of a certification by the Governor

of the State that the State has in effect and is enforc-

ing a State law, or has in effect and is operating a

statewide program . . . that includes provisions and

procedures requiring that in every case involving a

victim of child abuse or neglect which results in a

judicial proceeding, a guardian ad litem . . . shall be

appointed to represent the child in such proceedings

. . . .[11]

As the district court observed, Nevada does have a law

directing state courts to appoint a guardian ad litem for every

eligible child. See Nev. Rev. Stat. § 432B.500(1) (“After a

petition is filed that a child is in need of protection . . . the

court shall appoint a guardian ad litem for the child.”). But

courts do not always order these appointments, because Clark

County does not have enough guardian ad litem volunteers.

See Nev. Rev. Stat. § 432B.500(2) (“No compensation may

be allowed a person serving as a guardian ad litem pursuant

to this section.”). Plaintiffs thus seek an injunction compelling

the State and County defendants to “make it possible for state

courts to appoint a guardian ad litem in every case.” The dis-

trict court held that the guardian ad litem provision of CAPTA

was not privately enforceable and that, in the alternative,

abstention was warranted under the doctrine set forth in Youn-

ger v. Harris, 401 U.S. 37 (1971).

[22] As best we can tell, no court has specifically

addressed whether the guardian ad litem provision of CAPTA

is enforceable through § 1983, and no federal appellate court

has considered whether any provision of the current version

of CAPTA is privately enforceable. As a matter of first

11

At the time the complaint was filed, this provision was codified at 42

U.S.C. § 5106a(b)(2)(A)(xiii).

4776 HENRY A. v. WILLDEN

impression, we conclude that the guardian ad litem provision

does not create an individual right enforceable through

§ 1983.

The Sixth Circuit and the D.C. Circuit have held that an

earlier version of CAPTA is not privately enforceable. Doe v.

District of Columbia, 93 F.3d 861, 866-67 (D.C. Cir. 1996);

Tony L. v. Childers, 71 F.3d 1182, 1188-89 (6th Cir. 1995).

That version required that in order to qualify for a grant, a

State “shall provide that upon receipt of a report of known or

suspected instances of child abuse or neglect,” the State

would initiate an investigation and take immediate steps to

protect the abused or neglected child. 42 U.S.C. § 5106a(b)(2)

(1988) (emphasis added). Despite this mandatory language,

both circuits held that CAPTA was not privately enforceable

because it did not “mandate a particular means of investiga-

tion or state what type of actions must be taken” to protect a

child. Tony L., 71 F.3d at 1189; see also Doe, 93 F.3d at 867.

The Sixth Circuit also observed that “Congress wanted to

leave states a certain amount of discretion in this area.” Id.

In 1996, the language of CAPTA was changed substan-

tially. The current version requires each State receiving a

grant to submit a plan that “specifies the areas of the child

protective services system” that the State will address with its

grant money. 42 U.S.C. § 5106a(b)(1)(A). That plan must

“contain a description of the activities that the State will carry

out,” including, as detailed above, a certification that the State

is enforcing a law or operating a program that includes provi-

sions and procedures requiring the appointment of guardians

ad litem. 42 U.S.C. § 5106a(b)(2)(B)(xiii).

Every federal district court to consider the question has

found that the more recent versions of CAPTA do not satisfy

the Blessing test.12 See, e.g., Charlie H., 83 F. Supp. 2d at

12

The current version (as amended in 2010) is substantially similar to

the other versions that have been in place since the significant changes

made in 1996.

HENRY A. v. WILLDEN 4777

496-97; A.S. v. Tellus, 22 F. Supp. 2d 1217, 1224 (D. Kan.

1998); Jeanine B., 967 F. Supp. at 1118. These courts have

generally agreed that CAPTA’s requirements have too broad

a focus to create individual, enforceable rights. At least one

district court has emphasized that the current version presents

a weaker case for private enforcement than the prior version.

Jeanine B., 967 F. Supp. at 1118.

[23] We agree with this reasoning and affirm the district

court’s decision below. Unlike the case plan and records pro-

visions of the CWA, the guardian ad litem provision of

CAPTA does not contain the unambiguous rights-creating

language necessary to satisfy the first prong of the Blessing

test. As discussed above, when Congress wrote the CWA, it

incorporated detailed requirements for what a child’s case

plan or health and education record must include and how

those records must be incorporated into a case review system.

In contrast, CAPTA gives little specific guidance, requiring

only that a State either enact a law or create a program that

includes procedures designed to accomplish broad goals, such

as representation for every child by a guardian ad litem.13

[24] This approach leads us to conclude that Congress

intended to focus on “the aggregate or systemwide policies

and practices of a regulated entity[,]” rather than “individual

rights to benefits.” Watson, 436 F.3d at 1159 (citing Gonzaga,

536 U.S. at 287-88). Our conclusion is bolstered by CAPTA’s

legislative history, which explains that Congress intended “to

ensure that States are responsible for planning and implement-

ing the essential elements of an effective and efficient child

protective service system without placing undue administra-

tive burdens on States.” S. Rep. No. 104-117, at 13 (1995).

We thus affirm the district court’s dismissal of Count Nine on

the basis that the guardian ad litem provision is not enforce-

13

Also in contrast to the CWA, the “Suter fix” does not apply to

CAPTA, which is codified in Chapter 67 of Title 42 rather than Chapter

7. See supra note 9.

4778 HENRY A. v. WILLDEN

able through § 1983. We need not consider the district court’s

alternative holding that Younger abstention was appropriate.

4. CAPTA and IDEA: Early Intervention Services

(Count Ten)

Count Ten seeks injunctive relief on behalf of a class of

foster children who were not referred to early intervention

services for which they were eligible. It seeks to enforce pro-

visions of both CAPTA and IDEA that require States to refer

certain children to early intervention services. The CAPTA

provision, 42 U.S.C. § 5106a(b)(2)(B)(xxi), provides:

A State plan . . . shall contain a description of the

activities that the State will carry out using amounts

received under the grant . . . , including . . . an assur-

ance in the form of a certification by the Governor

of the State that the State has in effect and is enforc-

ing a State law, or has in effect and is operating a

statewide program . . . that includes . . . provisions

and procedures for referral of a child under the age

of 3 who is involved in a substantiated case of child

abuse or neglect to early intervention services

funded under Part C of the [IDEA].[14]

The IDEA provision requires a State to have “policies and

procedures that require the referral for early intervention ser-

vices . . . of a child under the age of 3 . . . who is involved

in a substantiated case of child abuse or neglect[.]” 20 U.S.C.

§ 1437(a)(6)(A). The district court held that the CAPTA pro-

vision is not privately enforceable and that IDEA’s compre-

hensive enforcement scheme precludes enforcement of that

provision through § 1983. We affirm the decision of the dis-

trict court.

14

At the time Plaintiffs filed their complaint, this was codified at 42

U.S.C. § 5106a(b)(2)(A)(xxi).

HENRY A. v. WILLDEN 4779

[25] Our analysis of the CAPTA guardian ad litem provi-

sion applies with equal force to the early intervention provi-

sion. Because Congress did not “unambiguously confer” an

individual federal right, the early intervention provision fails

the first prong of the Blessing test. See Gonzaga, 536 U.S. at

283.

[26] With respect to the IDEA claim, we have previously

held that the IDEA has a comprehensive enforcement scheme

that forecloses enforcement through § 1983. Blanchard v.

Morton Sch. Dist., 509 F.3d 934, 938 (9th Cir. 2007). Plain-

tiffs do not dispute this point, but they argue — for the first

time on appeal — that they are seeking to enforce the IDEA

claim not through § 1983, as their complaint alleges, but

through the express cause of action contained in Part C of the

IDEA (codified at 20 U.S.C. § 1439(a)(1)). Plaintiffs concede

that IDEA’s express cause of action requires parties to

exhaust their administrative remedies. They urge us, however,

to reverse the district court’s dismissal; reinstate their IDEA

cause of action; and allow Defendants to argue exhaustion as

an affirmative defense on remand. See Payne v. Peninsula

Sch. Dist., 653 F.3d 863, 867 (9th Cir. 2011) (en banc) (hold-

ing that IDEA’s exhaustion requirement is not jurisdictional

and must be raised as an affirmative defense).

[27] This course of action would be inappropriate. The dis-

trict court correctly applied the law to Plaintiffs’ § 1983 claim

and had no opportunity to decide whether Plaintiffs could pro-

ceed under IDEA’s express cause of action. We thus affirm

the district court’s dismissal of Count Ten. If, on remand,

Plaintiffs wish to pursue a claim under IDEA’s express cause

of action, they can seek leave to amend their complaint.

C. Assignment on Remand

Plaintiffs request that we reassign this case to a different

district judge on remand. Our supervisory powers under 28

U.S.C. § 2106 permit reassignment when “unusual circum-

4780 HENRY A. v. WILLDEN

stances” are present. United Nat’l Ins. Co. v. R&D Latex

Corp., 242 F.3d 1102, 1118 (9th Cir. 2001). We consider

three factors to determine whether unusual circumstances

exist: (1) whether the original judge would have substantial

difficulty in putting out of his mind previously expressed

views or findings determined to be erroneous; (2) whether

reassignment is necessary to preserve the appearance of jus-

tice; and (3) whether reassignment would entail waste and

duplication out of proportion to any gain in preserving the

appearance of fairness. Id. at 1118-19 (citing United States v.

Sears, Roebuck & Co., 785 F.2d 777, 779-80 (9th Cir. 1986)).

Plaintiffs argue that reassignment is warranted under the

first two factors because Judge Jones has prejudged the merits

of the case and expressed hostility toward Plaintiffs’ counsel.

In support of this argument, Plaintiffs point to Judge Jones’s

comments during proceedings in this case as well as during an

earlier, closely related case, Clark K. v. Guinn, No. 2:06-CV-

1068-RCJ-RJJ, 2007 WL 1435428 (D. Nev. May 14, 2007).15

[28] After thoroughly reviewing the record, as well as the

transcripts from Clark K. submitted by Plaintiffs in their

request for judicial notice, we conclude that reassignment is

not necessary. We agree that Judge Jones occasionally

expressed frustration with Plaintiffs’ counsel and made a few

troubling comments, especially concerning his willingness to

approve a potential settlement or consent decree in Clark K.

But those comments were not made during the present case,

and our review of the entire record shows that Judge Jones

gave genuine consideration to the arguments of both parties

and provided a reasoned decision. There is no indication that

15

In Clark K., a different group of foster children who were also repre-

sented by the National Center for Youth Law brought a class action seek-

ing injunctive relief against many of the same defendants named here.

Judge Jones denied the motion for class certification. While an appeal of

that denial was pending in our court, the parties stipulated to dismissal of

the case with prejudice as to those particular plaintiffs.

HENRY A. v. WILLDEN 4781

Judge Jones is unwilling to follow our instructions on remand.

In short, reassignment is an extreme remedy, and it is not war-

ranted here.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the dismissal of

Counts One, Two, Three, Eight, and Eleven; AFFIRM the

dismissal of Counts Nine and Ten; and REMAND for further

proceedings. On remand, the district court should allow Plain-

tiffs leave to amend their substantive due process claims, and

Plaintiffs can seek further leave to amend if they wish to add

a claim under the IDEA’s express cause of action. Plaintiffs

shall recover their costs on appeal.

REVERSED in part, AFFIRMED in part, and

REMANDED.