Petition for Writ of Certiorari — Children's Hospital Los Angeles, et al., Petitioners v. N. L., a Minor, By and Through his Guardian ad Litem, Jacqueline Arce

NO.

In the Supreme Court of the United States

CHILDREN’S HOSPITAL LOS ANGELES; CHILDREN’S

HOSPITAL LOS ANGELES MEDICAL GROUP,

Petitioners,

v.

N. L., a minor, by and through his Guardian ad litem

and all others similarly situated

Guardian Ad Litem Jacqueline Arce,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

David P. Pruett

Counsel of Record

CARROLL, KELLY, TROTTER, FRANZEN,

MCBRIDE & PEABODY

111 W. Ocean Boulevard

14th Floor

P.O. Box 22636

Long Beach, California 90801

(562) 432-5855

dpruett@cktfmlaw.com

Counsel for Petitioners

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

Whether a private hospital and medical group

become “state actors” by examining a child, to assess

for evidence of abuse, at the behest of government

officials who took the child from parents’ custody

pursuant to a state statute.

ii

PARTIES TO THE PROCEEDING

1. Children’s Hospital Los Angeles, petitioner on

review, was the defendant-appellee below.

2. Children’s Hospital Los Angeles Medical Group,

petitioner on review, was the defendant-appellee below.

3. N.L., a minor, by and through his guardian ad

litem, his mother, Jacqueline Arce.

Children’s Hospital Los Angeles and Children’s

Hospital Los Angeles Medical Group (collectively

CHLA) respectfully petition for a writ of certiorari to

review the decision of the United States Court of

Appeals for the Ninth Circuit in this case.

RULE 29.6 DISCLOSURE STATEMENT

Children’s Hospital Los Angeles is a California

Corporation, and a 501(c)(3) nonprofit institution, that

has no parent corporation, and no publicly held

company owns 10% or more of its stock.

Children’s Hospital Los Angeles Medical Group is a

California Corporation that has no parent corporation,

and no publicly held company owns 10% or more of its

stock.

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii

RULE 29.6 DISCLOSURE STATEMENT . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 4

REASONS FOR GRANTING THE PETITION . . . . 5

The Decision Below Conflicts with this Court’s

Precedents and Was Incorrect . . . . . . . . . . . . . . . 5

A. State Action Not Attributable to CHLA . . . . 5

B. West v. Atkins Actually Supports Affirming

District Court’s Dismissal . . . . . . . . . . . . . . 11

C. Dennis v. Sparks Also Supports Affirming

Dismissal . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

D. CHLA Cannot Be Deemed a State Actor,

Acting Under Color of State Law – Plaintiff’s

Allegations Refute Such a Conclusion . . . . . 14

E. The Standards to Be Deemed a State Actor,

Acting Under Color of State Law, Requires

Some Exercise of Authority of Abuse of

Power by a Private Party . . . . . . . . . . . . . . . 15

iv

F. Plaintiff’s Allegations Are Inconsistent with

the Pertinent Tests for Whether a Private

Party May Be Considered a State Actor,

Acting under Color of State Law . . . . . . . . . 18

1. The Performance of a Medical

Examination Is Not By Its Nature an

Inherently Public Function . . . . . . . . . . . 18

2. CHLA’s Performance of an Examination

“at the Behest” of the Government, While

N.L. Was in the Legal Custody of the

Government Was Not Joint Action . . . . . 20

G. Performing an Examination While Plaintiff

was in DCFS Custody Was Not Action Under

Color of State Law and Did Not Make CHLA

a State Actor . . . . . . . . . . . . . . . . . . . . . . . . . 22

H. The Absence of Constitutional or Statutory

“Injury” Defeats The Requirement to Show a

“Deprivation” to Support a Claim Against

CHLA as a State Actor, Acting Under Color

of State Law . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

APPENDIX

Appendix A Memorandum Opinion in the United

States Court of Appeals for the Ninth

Circuit

(February 15, 2018) . . . . . . . . . . . App. 1

Appendix B Judgment in the United States

District Court, Central District of

California

(June 30, 2016) . . . . . . . . . . . . . . . App. 4

v

Appendix C Order Granting Motion to Dismiss

Second Amended Complaint [53] in

the United States District Court,

Central District of California

(June 22, 2016) . . . . . . . . . . . . . . . App. 6

Appendix D Order Granting Defendants’ Motion to

Dismiss And Dismissing Plaintiff’s

Complaint With Leave To Amend [38]

in the United States District Court,

Central District of California

(March 25, 2016) . . . . . . . . . . . . App. 21

Appendix E Order Denying Petition for Panel

Rehearing in the United States Court

of Appeals for the Ninth Circuit

(March 2, 2018) . . . . . . . . . . . . . App. 31

Appendix F Constitutional and Statutory

Provisions Involved . . . . . . . . . . App. 33

vi

TABLE OF AUTHORITIES

CASES

American Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40 (1999) . . . . . . . . . . . . . . . . . . . . . . . . 5

Ashcroft v. Iqbal,

556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . 14, 15

Bass v. Parkwood Hospital,

180 F.3d 234 (5th Cir. 1999) . . . . . . . . . . . . . . . 18

Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929

(2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Blum v. Yaretsky,

457 U.S. 991 (1982) . . . . . . . . . . . . . . . . . . . . 5, 18

Brentwood Acad. v. Tennessee Secondary Sch.

Athletic Assn.,

531 U.S. 288 (2001) . . . . . . . . . . . . . . . . . . . . 3, 16

Collins v. Womancare,

878 F.2d 1145 (9th Cir. 1989) . . . . . . . . . . . . . . 17

Dennis v. Sparks,

449 U.S. 24 (1980) . . . . . . . . . . . . . . . . . . . passim

Eclectic Props. E., Ltd. Liab. Co. v. Marcus &

Millichap Co.,

751 F.3d 990 (9th Cir. 2014) . . . . . . . . . . . . . . . 15

Florer v. Congregation Pidyon Shevuyim,

639 F.3d 916 (9th Cir. 2011) . . . . . . . . . . . . . . . 15

Franklin v. Fox,

312 F.3d 423 (9th Cir. 2002) . . . . . . . . . 10, 16, 17

vii

Jackson v. Metropolitan Edison Co.,

419 U.S. 345, 95 S. Ct. 449,

42 L. Ed. 2d 477 (1974) . . . . . . . . . . . . . . . . . . . . 3

Johnson v. Knowles,

113 F.3d 1114 (9th Cir. 1997) . . . . . . . . . . . . . . 17

Leer v. Murphy,

844 F.2d 628 (9th Cir. 1988) . . . . . . . . . . . . . . . 17

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) . . . . . . . . . . . . . . . . . . . . 5, 24

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . 4, 10, 24

Monroe v. Pape,

365 U.S. 167 (1961) . . . . . . . . . . . . . . . . . . . . . . 16

Nat’l Collegiate Athletic Assn. v. Tarkanian,

488 U.S. 179 (1988) . . . . . . . . . . . . . . . . . . . . 5, 16

Polk Cty. v. Dodson,

454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509

(1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Rendell-Baker v. Kohn,

457 U.S. 830 (1982) . . . . . . . . . . . . . . . . . . . . . . . 3

Starr v. Baca,

652 F.3d 1202 (9th Cir. 2011) . . . . . . . . . . . . . . 15

Sutton v. Providence Saint Joseph Medical Center,

192 F.3d 826 (9th Cir. 1999) . . . . . . . . . . . . . . . 15

West v. Atkins,

487 U.S. 42 (1988) . . . . . . . . . . . . . . . . . . . passim

viii

STATUTES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . passim

Cal. Bus. & Prof. Code § 2038 . . . . . . . . . . . . . . . . . 18

Cal. Pen. Code § 11165.7(a)(21) . . . . . . . . . . . . . . . 19

Cal. Pen. Code § 11165.9 . . . . . . . . . . . . . . . . . . . . . 19

Cal. Pen. Code § 11166(a)(1) . . . . . . . . . . . . . . . . . . 19

Cal. Pen. Code § 11171(a) . . . . . . . . . . . . . . . . . . . . 23

Cal. Pen. Code § 11171(b) . . . . . . . . . . . . . . . . . . . . 23

Cal. Pen. Code § 11171.2(a) . . . . . . . . . . . . . . . . . . 19

Cal. Welfare and Institutions Code

§ 306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 9, 22

Cal. Welfare and Institutions Code

§ 324.5(a) . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 8, 22

RULES

Fed. R. App. P. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fed. R. App. P. 40(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 13.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES

https://www.merriam-webster.com/

thesaurus/examination . . . . . . . . . . . . . . . . . . . 19

1

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The Ninth Circuit’s decision (Case No. 16-56019) is

submitted as Appendix A (App. 1-3) and is available at

711 F.App’x 433, 433 (9th Cir. 2018). The order of the

Ninth Circuit denying the CHLA defendants’ petition

for rehearing is submitted as Appendix E (App. 31-32),

and is available at 2018 U.S.App.LEXIS 5537, at *1

(9th Cir. Mar. 2, 2018).

The District Court’s judgment and the decision

granting the CHLA defendants’ motion to dismiss are

submitted as Appendices B and C (App. 4-5, 6-20).

JURISDICTION

The Ninth Circuit Memorandum Decision was

entered on February 15, 2018. App. 1. The CHLA

defendants’ petition for rehearing was timely filed on

March 1, 2018. Dkt. 48; FRAP 40(a)(1). The Ninth

Circuit denied the petition for rehearing on March 2,

2018. App. 31-32.

This petition for certiorari is being filed within 90

days of the date rehearing was denied. Supreme Court

Rule 13.3.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

INTRODUCTION

This case is about medical providers who examined

a child for evidence of abuse while that child was in the

custody of government officials. The petitioners,

Children’s Hospital Los Angeles and Children’s

2

Hospital Los Angeles Medical Group (“CHLA”) did not

have custody of the child and had no role in the actions

of the government officials in the removal of the child

from the custody of his parents.

While those

government officials had official custody of the child,

the officials exercised their legal authority, as parens

patriae, to request the examination by CHLA.

The government officials’ custody of the child was

apparently lawful, as California Welfare and

Institutions Code section 324.5, authorizes county

social workers to take a child into protective custody

based upon “allegations of physical or sexual abuse”

and “as soon as practically possible, consult with a

medical practitioner, who has specialized training in

detecting and treating child abuse injuries and neglect,

to determine whether a physical examination of the

child is appropriate.” Welfare and Institutions Code

section 306 authorizes “[a]ny social worker in a county

welfare department” to “[t]ake into and maintain

temporary custody of, without a warrant, a minor,”

based upon the social worker’s “reasonable cause to

believe” the child has suffered or is at risk to suffer

abuse.

Analogous to private medical laboratories that run

tests for blood-alcohol concentrations on blood samples

obtained by government officials, including law

enforcement agencies, CHLA applied its medical

knowledge and skills to performing a medical

examination at the request of the government officials

who had apparently lawful custody of the child.

By performing a medical examination of plaintiff

N.L., as a private medical provider who did not have

control or custody over N.L., CHLA did not performed

3

a function that was “traditionally exclusively reserved

to the State.” Jackson v. Metropolitan Edison Co., 419

U.S. 345, 352, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974).

The agreement by CHLA to provide the medical

examination, by a contract for services and for

payment, did not “convert” them “into public actors.”

Brentwood Academy v. Tennessee Secondary School

Athletic Assn., 531 U.S. 288, 299 (2001); citing RendellBaker v. Kohn, 457 U.S. 830, 839-843 (1982). The

firmness of this important principle is shown by the

dissenting opinion in Brentwood Academy, agreeing

that a private party’s provision of a service to a state

government or “fiscal relationship with the State is not

different from that of many contractors performing

services for the government,” and is regarded as

insufficient grounds to subject the private party to

scrutiny as a state actor. Brentwood Academy, supra,

531 U.S. at 311 (Justice Thomas’ dissent); citing

Rendell-Baker, supra, at 843.

The Ninth Circuit’s conclusion that CHLA could be

considered to have acted under color of state law

merely based upon such alleged “collaboration,”

medical providers performing a medical examination of

a child in government custody, is out of step with this

Court’s decisions. Even a private entity’s “close

relationship with the State,” including as shown by

funding, regulation, and function, are not enough to

support a claim that the private entity is subject to

scrutiny as a state actor. Rendell-Baker, supra, 457

U.S. 830, 836.

The facts plainly asserted in the operative

complaint clearly refute any characterization of the

CHLA defendants as state actors, acting under color of

4

state law. Therefore, this Court’s intervention is

needed now to correct the Ninth Circuit’s erroneous

interpretation of an important federal question.

Petitioners ask this Court to grant review on a writ

of certiorari because the Ninth Circuit Court of Appeals

has decided the above-stated issue, an important

federal question, in a way that conflicts with relevant

decisions of this Court. FRAP 10(c).

STATEMENT OF THE CASE

1. The District Court correctly concluded that

Plaintiff failed to establish that Defendants were state

actors under any of the tests applicable to private

entities. App. 6 (ECF 60).

2. The District Court correctly decided that

Plaintiff “failed to allege an injury in fact,” and that

“Without an injury in fact, Plaintiff lacks standing to

advance a claim against Defendants.” App. 21 (ECF

49), citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992). (The order finding no injury in fact was

incorporated by reference in the District Court’s order

dismissing the second amended complaint, with

prejudice, App. 6 (ECF 60).)

3. In its Memorandum decision, the Ninth Circuit

stated: “The pleading plausibly alleges that, in

performing an intrusive forensic examination of N.L.,

CHLA was not providing medical treatment but

instead was exercising its discretion to collaborate with

county government in the laudable endeavor of

investigating child abuse, a potential crime,” citing as

examples West v. Atkins, 487 U.S. 42, 54-55 (1988), and

Dennis v. Sparks, 449 U.S. 24, 27 (1980). App. 1-2.

5

4. The Ninth Circuit summarily denied a petition

for rehearing. App. 31.

5. This petition follows.

REASONS FOR GRANTING THE PETITION

The Decision Below Conflicts with this Court’s

Precedents and Was Incorrect

A. State Action Not Attributable to CHLA

The state action element of 42 U.S.C. § 1983

excludes from its coverage “merely private conduct,

however discriminatory or wrongful.” American Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)

(internal quotation marks omitted).

“Careful adherence to the ‘state action’

requirement” thus “preserves an area of individual

freedom by limiting the reach of federal law and federal

judicial power.” Lugar v. Edmondson Oil Co., 457 U.S.

922, 936 (1982). The state-action doctrine also

promotes important values of federalism, “avoiding the

imposition of responsibility on a State for conduct it

could not control.” National Collegiate Athletic Assn. v.

Tarkanian, 488 U.S. 179, 191 (1988).

This Court’s precedents reflect that although

different tests may be applied to identify state action,

the goal in every case is to determine whether an

action “can fairly be attributed to the State.” Blum v.

Yaretsky, 457 U.S. 991, 1004 (1982); American Mfrs.,

supra, at 52.

The operative complaint set forth that the County

of Los Angeles, through its Department of Child and

Family Services (“DCFS”) unilaterally, without any

6

involvement of CHLA, “seized” the minor plaintiff,

placed him in foster care, and filed a juvenile

dependency petition in state court, pursuant to a

California statute.

The operative complaint alleged, “DCFS phoned the

Hospital to schedule an appointment for N.L. to have

an investigatory forensic medical examination,” which

took place while N.L. was in DCFS custody. While

DCFS had the authority to make decisions for the

minor, N.L., it exercised the authority of a parent to

arrange and consent to the examination to assess for

child abuse.

The Ninth Circuit’s decision ignored the statutory

authority held by DCFS to take N.L. into custody and

arrange for his examination. California statutes

authorized DCFS to take custody of N.L. and have him

examined. The Lance Helms Child Safety Act,

California Welfare and Institutions Code section

324.5(a) provides authorized county social workers, to

take a child into protective custody based upon

“allegations of physical or sexual abuse” and “as soon

as practically possible, consult with a medical

practitioner, who has specialized training in detecting

and treating child abuse injuries and neglect, to

determine whether a physical examination of the child

is appropriate.” Further, Welfare and Institutions

Code section 306 authorizes “[a]ny social worker in a

county welfare department” to “[t]ake into and

maintain temporary custody of, without a warrant, a

minor … who the social worker has reasonable cause to

believe is a person described in subdivision (b) [e.g.,

‘The child has suffered, or there is a substantial risk

that the child will suffer, serious physical harm or

7

illness’] or (g) [‘The child has been left without any

provision for support’] of Section 300….”

Moreover, demonstrating that CHLA did not abuse

some position given to it by the State, CHLA’s

examination reached a conclusion conflicting the DCFS’

allegedly improper assertion of custody over N.L., as

CHLA reported “normal” findings “and indicated that

he was not the victim of sexual abuse or physical

abuse,” as plaintiff has acknowledged.

In its Memorandum decision, the Ninth Circuit

concluded that mere allegations that the petitionersdefendants, Children’s Hospital Los Angeles and

Children’s Hospital Los Angeles Medical Group

(CHLA) performed an examination “exercising its

discretion to collaborate with county government in the

laudable endeavor of investigating child abuse, a

potential crime,” constitute allegations sufficient to

subject CHLA to suit under 42 U.S.C. § 1983. App. 2.

Although in reaching that conclusion, the Ninth Circuit

cited West v. Atkins, 487 U.S. 42, 54-55 (1988), and

Dennis v. Sparks, 449 U.S. 24, 27 (1980), its conclusion

and description of those authorities decides an

important federal question, in the context of a putative

class action, in way that conflicts with this Court’s

decisions.

This Court’s decisions firmly establish that a

private party’s collaboration with the government is

not enough to support a claim that the private person

acted under color of law and is subject to scrutiny as a

state actor, forced to defend against constitutional

claims asserted pursuant to 42 U.S.C § 1983.

8

Moreover, the Ninth Circuit’s decision failed to

genuinely address the salient facts, by describing the

operative complaint as alleging “that CHLA violated

N.L.’s constitutional rights by conducting an invasive

forensic medical examination for signs of child abuse

without judicial authorization and without his parents’

knowledge or consent.” App. 2. In actuality, the

operative complaint set forth that the County of Los

Angeles, through its Department of Child and Family

Services (“DCFS”) unilaterally, without any

involvement of CHLA, “seized” the minor plaintiff,

placed him in foster care, and filed a juvenile

dependency petition in state court, pursuant to a

California statute.

The operative complaint alleged, “DCFS phoned the

Hospital to schedule an appointment for N.L. to have

an investigatory forensic medical examination,” which

took place while N.L. was in DCFS custody. While

DCFS had the authority to make decisions for the

minor, N.L., it exercised the authority of a parent to

arrange and consent to the examination to assess for

child abuse.

The Ninth Circuit’s decision ignored the statutory

authority held by DCFS to take N.L. into custody and

arrange for his examination. California statutes

authorized DCFS to take custody of N.L. and have him

examined. The Lance Helms Child Safety Act,

California Welfare and Institutions Code section

324.5(a) provides authorized county social workers, to

take a child into protective custody based upon

“allegations of physical or sexual abuse” and “as soon

as practically possible, consult with a medical

practitioner, who has specialized training in detecting

9

and treating child abuse injuries and neglect, to

determine whether a physical examination of the child

is appropriate.” Further, Welfare and Institutions

Code section 306 authorizes “[a]ny social worker in a

county welfare department” to “[t]ake into and

maintain temporary custody of, without a warrant, a

minor … who the social worker has reasonable cause to

believe is a person described in subdivision (b) [e.g.,

‘The child has suffered, or there is a substantial risk

that the child will suffer, serious physical harm or

illness’] or (g) [‘The child has been left without any

provision for support’] of Section 300….”

Moreover, demonstrating that CHLA did not abuse

some position given to it by the State, CHLA’s

examination reached a conclusion conflicting the DCFS’

allegedly improper assertion of custody over N.L., as

CHLA reported “normal” findings “and indicated that

he was not the victim of sexual abuse or physical

abuse,” as plaintiff has acknowledged.

The facts plainly asserted in the operative

complaint clearly refute any characterization of the

CHLA defendants as state actors, acting under color of

law. Therefore, this Court’s intervention is needed now

to correct the Ninth Circuit’s erroneous interpretation

of an important federal question.

The County of Los Angeles removed Plaintiff N.L.

from the custody of his parents and placed him in

foster care. While in foster care, the County exercised

its custodial authority to have N.L. examined at

Children’s Hospital Los Angeles, by a physician

employed by Children’s Hospital Los Angeles Medical

Group, the defendant-petitioners, collectively referred

to as CHLA herein.

10

By a detailed order, the District Court correctly

concluded that Plaintiff’s allegations did not support a

cause of action asserting that the CHLA defendants

could be held liable under section 1983 as “state

actors,” finding “that Plaintiff has not established that

Defendants acted under color of law under the four

tests applied by courts ((1) the public function test,

(2) the joint action test, (3) the state compulsion test,

and (4) the governmental nexus test.) APP. 6 (ECF 60);

citing Franklin v. Fox, 312 F.3d 423, 444–45 (9th Cir.

2002). Further, District Court concluded that Plaintiff

“failed to allege an injury in fact” and , therefore,

“lack[ed] standing to advance a claim against

Defendants.” APP. 6 (ECF 60), referring to APP. 21

(ECF 49), citing Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992).

In a Memorandum decision, the Ninth Circuit

stated: “The pleading plausibly alleges that, in

performing an intrusive forensic examination of N.L.,

CHLA was not providing medical treatment but

instead was exercising its discretion to collaborate with

county government in the laudable endeavor of

investigating child abuse, a potential crime,” citing as

examples West v. Atkins, 487 U.S. 42, 54-55 (1988), and

Dennis v. Sparks, 449 U.S. 24, 27 (1980). The Ninth

Circuit’s conclusion and its description of cited

authorities overlooked and misapprehended points of

law and fact.

11

B. West v. Atkins Actually Supports Affirming

District Court’s Dismissal

Relative to West v. Atkins, 487 U.S. 42, 54-55 (1988),

the Ninth Circuit described that decision as

“concluding that a private physician who assists the

state in carrying out a governmental function is a state

actor.” App. 2. But, West did not reach such a

conclusion. This description fails to consider the

aspects of West that explain that a private party’s

provision of assistance to the state in carrying out a

governmental function, alone, does not subject the

private party to liability as a “state actor.”

Defendants did not become state actors because

they examined Plaintiff “at the behest of DCFS.”

Appellee’s brief, pp. 74-81, pp. 27-33.

In reaching a conclusion that a contracted prison

doctor acted under color of law, in West v. Atkins 487

U.S. 42 (1988), the Supreme Court first observed that

allegations against the doctor in that case sufficiently

alleged that the doctor violated the plaintiff’s rights by

“deliberate indifference to a prisoner’s serious medical

needs.” Id. at 48-49. Going on, the Court explained,

“[t]o constitute state action, ‘the deprivation must be

caused by the exercise of some right or privilege

created by the State ... or by a person for whom the

State is responsible,’ and ‘the party charged with the

deprivation must be a person who may fairly be said to

be a state actor.’” Id. at 49-50; citation omitted.

While West observed that “‘[s]tate employment is

generally sufficient to render the defendant a state

actor,’” it also instructed that liability under § 1983

may be found only “when he abuses the position given

12

to him by the State.” Ibid. Here, Plaintiff made no

allegations of abuse against CHLA.

Rather, Plaintiff’s Complaint, and the matters

subject to judicial notice, established that defendants’

performance of their professional obligations cast them

as “an adversary of the State,” as they applied their

independent medical judgment to report “normal”

findings that “indicated that he was not the victim of

sexual abuse or physical abuse.” ECF 52, 8:18-19

(¶38); West v. Atkins, 487 U.S. 42, 51-52.

In West, the Court cited Polk Cty. v. Dodson, 454

U.S. 312, 102 S. Ct. 445, 70 L.Ed.2d 509, 518 (1981),

wherein the court described “adversarial functions”

relative to which it would be “peculiarly difficult to

detect any color of state law in such activities. Id. at

320. While CHLA’s professional status may not by

itself preclude a claim under § 1983, and CHLA was

not obligated to take an adversarial function, its

actions were adversarial to what plaintiff alleged was

the government’s purpose, to interfere with plaintiff’s

relationship with his parents. Cf., West at 52.

Moreover, to be a “state actor,” with liability under

§ 1983, there must be some action “to fulfill the undercolor-of-state-law requirement.” West at 53, fn. 11;

Polk at 319-320. Even a government official will not

have § 1983 liability if there was no action under-colorof-state-law. Ibid.

13

C. Dennis v. Sparks Also Supports Affirming

Dismissal

Relative to Dennis v. Sparks, 449 U.S. 24, 27, the

Ninth Circuit described it as “holding that a private

defendant can act under color of state law if it is a

‘willful participant in joint action with the State or its

agents.’” But, that interpretation fails to consider the

definition of “joint action,” and the applicable

standards for assessment. Taking into consideration

those standards, the decision actually supports

dismissal.

In Dennis, the Court admonished: “Of course,

merely resorting to the courts and being on the winning

side of a lawsuit does not make a party a co-conspirator

or a joint actor with the judge.” Id. at 28.

Rather, the “joint action” pertains to the private

party acting under color of state law to abuse rights. In

Dennis, the Court observed: “here the allegations were

that an official act of the defendant judge was the

product of a corrupt conspiracy involving bribery of the

judge,” supporting the conclusion that “the private

parties conspiring with the judge were acting under

color of state law.” Dennis at 28. Emphasizing that

point, the Court stated: “Private parties who corruptly

conspire with a judge in connection with such conduct

are thus acting under color of state law within the

meaning of § 1983 as it has been construed in our prior

cases.” Id. at 28-29.

Relative to the abuse of power, acting under color of

state law, to support claims of liability as a state actor,

Dennis did not just describe voluntary joint action with

the state, it recounted that an oil company had

14

obtained an injunction against a competitor, that

“enjoined the production of minerals from certain oil

leases,” an injunction that had been “corruptly issued

as the result of a conspiracy between the judge and the

other defendants, thus causing a deprivation of

property, i.e., two years of oil production, without due

process of law.” Dennis at 25-26. Under such

circumstances, the Court explained, § 1983 provides “a

remedy against those private persons who participate

in subverting the judicial process and in so doing inflict

injury on other persons.” Dennis at 31-32.

In contrast to the facts alleged in Dennis v. Sparks,

here there are no allegations of corruption on the part

of CHLA to conspire with government officials to

deprive Plaintiff of any rights – and no action on the

part of CHLA deprived Plaintiff of any rights.

D. CHLA Cannot Be Deemed a State Actor,

Acting Under Color of State Law –

Plaintiff’s Allegations Refute Such a

Conclusion

The progeny of West and Dennis, and other

authorities, demonstrate that CHLA should be

dismissed, as Plaintiff’s allegations fail to demonstrate

that CHLA was a state actor, acting under color of

state law.

Regarding the standard for review of a motion to

dismiss, Iqbal explained, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,

1974, 167 L.Ed.2d 929, 949 (2007). “A claim has facial

15

plausibility when the Plaintiff pleads factual content

that allows the court to draw the reasonable inference

that the Defendant is liable for the misconduct

alleged.” Iqbal at 678; citing Twombly at 556. That

pleading standard requires “more than a sheer

possibility that a Defendant has acted unlawfully

“[w]here a complaint pleads facts that are ‘merely

consistent with’ a Defendant’s liability, it ‘stops short

of the line between possibility and plausibility of

“entitlement to relief.”’” Iqbal at 678; Twombly at 557.

The dismissal should be affirmed when a claim has

not sufficiently been pled and is based upon “bare

assertions” that “amount to nothing more than a

‘formulaic recitation of the elements’ of a constitutional

[] claim.” Iqbal at 681; Twombly at 555. Indeed, when

a plaintiff has failed to “plausibly suggest an

entitlement to relief,” the dismissal should be affirmed

because it would be “unfair to require the opposing

party to be subjected to the expense of discovery and

continued litigation.” Eclectic Props. E., Ltd. Liab. Co.

v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir.

2014); quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th

Cir. 2011).

E. The Standards to Be Deemed a State Actor,

Acting Under Color of State Law, Requires

Some Exercise of Authority of Abuse of

Power by a Private Party

Courts are required to “start with the presumption

that conduct by private actors is not state action.”

Florer v. Congregation Pidyon Shevuyim, 639 F.3d 916,

922 (9th Cir. 2011); Sutton v. Providence Saint Joseph

Medical Center, 192 F.3d 826, 836 (9th Cir. 1999).

16

While Franklin v. Fox, 312 F.3d 423 (9th Cir. 2002),

generally observed that “[a] private individual may be

liable under § 1983 if she conspired or entered joint

action with a state actor,” it further explained that to

support such a conspiracy a plaintiff “must show ‘an

agreement or “meeting of the minds” to violate

constitutional rights.’” Id. at 441; citation omitted.

Going on, Franklin explained: “To be liable, each

participant in the conspiracy need not know the exact

details of the plan, but each participant must at least

share the common objective of the conspiracy.” Ibid.

The District Court correctly concluded that by

application of such standards, § 1983 liability could not

be asserted against CHLA.

Further, Franklin recounted, “Section 1983 liability

attaches only to individuals ‘who carry a badge of

authority of a State and represent it in some capacity.’”

Franklin at 444; citing Monroe v. Pape, 365 U.S. 167,

172 (1961). Further, Franklin explained: “‘In the

typical case raising a state-action issue, a private party

has taken the decisive step that caused the harm to the

plaintiff, and the question is whether the State was

sufficiently involved to treat that decisive conduct as

state action. This may occur … sometimes if [the

State] knowingly accepts the benefits derived from

unconstitutional behavior.’”

Ibid.; quoting Nat’l

Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179,

192 (1988). “Constitutional standards should be

invoked only ‘when it can be said that the State is

responsible for the specific conduct of which the

plaintiff complains.’” Ibid.; quoting Brentwood Acad. v.

Tennessee Secondary Sch. Athletic Assn., 531 U.S. 288,

295 (2001) (emphasis in original).

17

Continuing, Franklin instructed: “A § 1983 plaintiff

therefore must show that a defendant’s actions are

‘fairly attributable’ to the government.” Ibid.; citing

Collins v. Womancare, 878 F.2d 1145, 1151 (9th Cir.

1989). “A private individual’s action may be ‘under

color of state law’ where there is ‘significant” state

involvement in the action.” Ibid.; citing Johnson v.

Knowles, 113 F.3d 1114, 1118 (9th Cir. 1997).

The state actor analysis is not done in a vacuum. To

state a claim for relief under Section 1983, Plaintiff

must allege “that the conduct deprived the claimant of

some right, privilege, or immunity protected by the

Constitution or laws of the United States.”

Leer v. Murphy, 844 F.2d 628, 632-633 (9th Cir. 1988),

citing West v. Atkins, 487 U.S. 42, 48.

Additionally, Leer explained, to assert liability

against a private party as a state actor, a Plaintiff

must show “that a person acting under color of state

law committed the conduct at issue,” and that their

action may be attributable to the state.” Leer, 844 F.2d

at 632-33.

Further, Leer explained: “A person deprives another

‘of a constitutional right, within the meaning of section

1983, if he does an affirmative act, participates in

another’s affirmative acts, or omits to perform an act

which he is legally required to do that causes the

deprivation of which [the plaintiff complains].’” Leer at

633, emphasis added, citation omitted.

All CHLA did was perform an authorized exam,

exercise medical judgment in assessing Plaintiff, and

report the finding of no evidence of abuse. Considering

Defendants had no role in taking custody away from

18

the parents and no role in deciding whether to do an

examination (and was aware that Plaintiff’s brother

was at CHLA due to life-threatening physical abuse),

Plaintiff cannot maintain a section 1983 claim against

them.

F. Plaintiff’s Allegations Are Inconsistent

with the Pertinent Tests for Whether a

Private Party May Be Considered a State

Actor, Acting under Color of State Law

1. The Performance of a Medical

Examination Is Not By Its Nature an

Inherently Public Function

Generally, a private hospital and its employees are

not state actors. Bass v. Parkwood Hospital, 180 F.3d

234, 241-43 (5th Cir. 1999). The performance of a

medical examination is not an inherently public

function. That’s all that CHLA did.

Health care providers do not act under color of state

law, and are not state actors, when their actions

“ultimately turn on medical judgments made by private

parties according to professional standards that are not

established by the state.” Blum v. Yaretsky, 457 U.S.

991, 1008 (1982).

Any medical examination is inherently

investigative, necessarily involving a process of

inspecting or testing, checking closely and carefully, for

evidence of disease or abnormality. For example,

“diagnose” is defined as including “any undertaking by

any method, device, or procedure whatsoever, and

whether gratuitous or not, to ascertain or establish

whether a person is suffering from any physical or

mental disorder.” Cal. Bus. & Prof. Code § 2038.

19

“Examination” and “investigation” are synonyms – so

allegations based upon “investigation” do nothing more

to support a theory of color of state law than does the

word examination. [https://www.merriamwebster.com/thesaurus/examination.]

The nature of medical examinations is such that

indications of abuse may be observed when such

examinations are done.

In recognition of that, California statutes require

licensed health care providers, including physicians,

residents, interns, nurses, and clinical social workers,

to be observant for signs of child abuse and neglect as

they are specified by statute as “mandated reporters”

make reports to law enforcement, or other

governmental agencies, regarding “suspected child

abuse or neglect.” Penal Code §§ 11165.7(a)(21),

11165.9.

In accordance with their professional

capacity, health care providers are required to report

suspicions of abuse when they form a “reasonable

suspicion,” based on “training and experience, to

suspect child abuse or neglect.”

Penal Code

§ 11166(a)(1). Although health care providers must

report suspicion, the mandated reporter statutes do not

call for them to determine that abuse actually occurred.

Ibid.

Moreover, “A physician and surgeon or dentist or

their agents and by their direction may take skeletal Xrays of the child without the consent of the child’s

parent or guardian, but only for purposes of diagnosing

the case as one of possible child abuse or neglect and

determining the extent of the child abuse or neglect.”

Cal. Pen. Code § 11171.2(a).

20

The performance of a medical examination is not an

inherently public function.

2. CHLA’s Performance of an Examination

“at the Behest” of the Government,

While N.L. Was in the Legal Custody of

the Government Was Not Joint Action

In this action, Plaintiff’s § 1983 claim arose from

circumstances that occurred while he was in the legal

custody of the Los Angeles County Department of Child

and Family Services (“DCFS”). Plaintiff conclusorily

alleged that “DCFS phoned the Hospital to schedule an

appointment for N.L. to have an investigatory forensic

medical examination,” and that CHLA performed such

examination. ECF 52, 7:5-7, 7:11-15. In conducting the

examination, Plaintiff’s allegations show that CHLA

did not act under color of state law, such that CHLA

cannot be subject to liability as a state actor. Rather,

the following facts, alleged by Plaintiff, demonstrate

that DCFS had custody of Plaintiff and legal authority

to authorize the examination of Plaintiff. That

authority was not the result of any actions by CHLA.

Without defendants’ involvement, DCFS exercised

its authority to take custody of Plaintiff. Plaintiff’s

allegations, and matters subject to judicial notice

demonstrated that CHLA became involved after

Plaintiff’s brother, A.L. “sustained a serious brain

injury” while at daycare and “was airlifted to

Defendant Hospital for treatment.” ECF 52, 4:8-10;

ECF 35, 4:11-13. At CHLA, “a hospital social worker

made a suspected child abuse referral to the Los

Angeles County Child Abuse Hotline to report a

suspected incident of child abuse by Ms. Downs,” the

21

operator of the daycare facility. ECF 52, 4:10-13; ECF

35, 4:13-16.

In response to that report, Plaintiff alleged DCFS

investigators seized A.L. from his parents’ custody.

ECF 52, 4:14-18; ECF 35, 4:17-22.

Then, as pertinent here, DCFS workers went to the

home where N.L. was staying and seized him –without

a warrant or court order, and without notifying his

parents.” ECF 52, 5:10-15. Relative to County’s

exercise of its authority, Plaintiff alleged, “N.L. was

placed in foster care” and “DCFS filed a juvenile

dependency petition shortly thereafter,” alleging

physical abuse of A.L. ECF 52, 5:23-24.

CHLA was not involved in the taking of N.L. into

DCFS custody. Rather, a DCFS official went to the

family home and asserted her governmental authority

by presenting “her DCFS badge and a letter from the

State of California.” ECF 54, 12:19-13:4. Five days

after N.L. was taken into County custody, DCFS filed

Juvenile Dependency Petitions for A.L. and N.L.,

“under section 300 of the California Welfare and

Institutions Code,” and filed “a Detention Report.”

ECF 54, 14:27-15:16. Plaintiff’s alleged that DCFS’

“maliciously fabricated allegations” against the

parents. Id., 14:27-15:11.

Defendants later performed the examination of N.L.

“at the behest” of DCFS. ECF 52, 7:5-15. That

examination occurred while Plaintiff was in DCFS

custody. ECF 52, 7:23-26; APP. 21 (ECF 49), p. 5. The

examination was done “at the specific request and

direction of DCFS,” “at the behest of DCFS,” with no

allegation that Defendants exceeded the scope of

22

examination that DCFS had asked them to perform.

ECF 52, 7:5-7, 7:27-8:6, 8:27-9:6, 9:20-10:1, 10:12-17,

16:10-18.

Consistent with Plaintiff’s assertion that he was not

a victim of abuse, CHLA’s examination resulted in

“normal” findings “and indicated that he was not the

victim of sexual abuse or physical abuse.” ECF 52,

8:18-19.

G. Performing an Examination While Plaintiff

was in DCFS Custody Was Not Action

Under Color of State Law and Did Not

Make CHLA a State Actor

California Welfare and Institutions Code section

324.5(a) authorizes county social workers to take a

child into protective custody based upon “allegations of

physical or sexual abuse” and, as parens patriae, “as

soon as practically possible, consult with a medical

practitioner, who has specialized training in detecting

and treating child abuse injuries and neglect, to

determine whether a physical examination of the child

is appropriate.”

Further, Welfare and Institutions Code section 306

authorizes “[a]ny social worker in a county welfare

department” to “[t]ake into and maintain temporary

custody of, without a warrant, a minor … who the

social worker has reasonable cause to believe is a

person described in subdivision (b) [e.g., ‘The child has

suffered, or there is a substantial risk that the child

will suffer, serious physical harm or illness’] or (g) [‘The

child has been left without any provision for support’]

of Section 300….”

23

Plaintiff’s theory of liability in this case is

inconsistent with Penal Code § 11171(a), which states:

(1) The Legislature hereby finds and declares

that adequate protection of victims of child

physical abuse or neglect has been hampered by

the lack of consistent and comprehensive

medical examinations.” The statute provides for

“Enhancing examination procedures,

documentation, and evidence collection relating

to child abuse or neglect will improve the

investigation and prosecution of child abuse or

neglect as well as other child protection efforts.”

Penal Code § 11171(a)(2). If further requires

governmental authorities and “child advocates”

and “other appropriate experts” to “establish

medical forensic forms, instructions, and

examination protocols for victims of child

physical abuse or neglect....

Penal Code § 11171(b).

The fact that CHLA performed an examination that

DCFS had the statutory authority to authorize did not

convert CHLA’s medical examination into action under

color of state law, it did not make CHLA state actor.

H. The Absence of Constitutional or Statutory

“Injury” Defeats The Requirement to Show

a “Deprivation” to Support a Claim Against

CHLA as a State Actor, Acting Under Color

of State Law

As explained at length in the appellee’s brief,

Plaintiff failed to assert a constitutional deprivation

that would support a claim against CHLA as a state

24

actor, acting under color of state law. Appellees’ brief,

pp. 33-52.

The District Court correctly decided that Plaintiff

“failed to allege an injury in fact,” and that “Without an

injury in fact, Plaintiff lacks standing to advance a

claim against Defendants.” APP. 6 (ECF 60), referring

to APP. 21 (ECF 49), citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). (The order finding

no injury in fact was incorporated by reference in the

District Court’s order dismissing the second amended

complaint, with prejudice, APP. 6 (ECF 60).)

As pointed out in the appellees’ brief, according to

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982),

§ 1983 “provides a remedy for deprivations of rights

secured by the Constitution and laws of the United

States when that deprivation takes place ‘under color

of any statute, ordinance, regulation, custom, or usage,

of any State or territory.’”

Id. at 924.

That

requirement was also stated in West v. Atkins 487 U.S.

42, 49-50, and Dennis v. Sparks, 449 U.S. 24, 25-26, 2829, 31-32. Without a deprivation, there is no possible

claim that a private party was a state actor, acting

under color of state law, subject to a § 1983 claim.

25

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

David P. Pruett

Counsel of Record

CARROLL, KELLY, TROTTER, FRANZEN,

MCBRIDE & PEABODY

111 W. Ocean Boulevard, 14th Floor

P.O. Box 22636

Long Beach, California 90801

(562) 432-5855

dpruett@cktfmlaw.com

Counsel for Petitioners