Opinion
No. CIV. S-05-771 FCD/DAD.
October 5, 2006
MEMORANDUM AND ORDER
Plaintiff Kirsten Fisher ("Fisher"), on behalf of herself and as guardian ad litem of her minor children, Haley Fisher and McKensey Fisher-Mathis ("children"), has filed claims for violations of the Federal Civil Rights Act, 42 U.S.C. § 1983, and state tort claims based on the removal of her children. Plaintiffs seek both monetary and injunctive relief. Defendants Placer County, Tracy Mae Alvarez, Antoinette Fabela, Kevin Henderson, Diane Rose, and Greg Geisler (collectively "defendants") now move for summary judgment, or in the alternative, summary adjudication pursuant to Federal Rule of Civil Procedure 56(b). Plaintiffs oppose the motion. For the reasons stated herein, defendants' motion for summary judgment is GRANTED.
Because some claims are asserted on behalf of the children, the court refers to Fisher and her children, collectively, as "plaintiffs."
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 78-230(h).
Unless otherwise stated, further references to a "Rule" are to the Federal Rules of Civil Procedure.
BACKGROUND
The facts of this case are largely undisputed. (See Pls.' Statement of Undisputed and Disputed Facts, filed Sept. 29, 2006 ("SUF")).
Plaintiffs have also submitted a Separate Statement of Additional Facts. (Pls.' Separate Statement of Additional Facts, filed Sept. 29, 2006 ("SAF")). Many of these "facts," primarily those based upon the Declaration of Kirsten Fisher, are rife with argument and legal conclusions. (See Decl. of Kirsten Fisher in Opp'n of Mot. for Summ. J, filed Sept. 29, 2006 ("Fisher Decl.")). To the extent that the Separate Statement of Additional Facts and Declaration of Kirsten Fisher recount actual facts that have an appropriate foundation, the court considers these facts. To the extent that these documents assert argument and legal conclusions, the court does not consider these "facts."
In December 2003, Dr. Mark Knoble, plaintiffs' family physician, contacted Placer County Health and Human Services ("HHS"), Adult Systems of Care, and expressed concern about Fisher's ability to care for her two daughters. (SUF ¶ 1). Specifically, Dr. Knoble was concerned about Fisher's mental states as manifested by her concerns about toxic mold. (SUF ¶ 1). Defendant Tracy Mae Alvarez ("Alvarez"), an ACCESS social worker for the Children's Systems of Care division for Placer County HHS, received the referral. (Decl. of Tracy Mae Alvarez in Supp. of Defs.' Mot. for Summ. J., filed Apr. 14, 2006, ("Alvarez Decl.") ¶ 3). Shortly thereafter, Jacklyn Nielsen, Fisher's mother, reported to Alvarez what appeared to be irrational behavior by Fisher and the potential effect on Fisher's daughters. (Alvarez Decl. ¶ 4).
ACCESS social workers are responsible for emergency intervention to deal with families in crisis. (Alvarez Decl. ¶ 2).
Plaintiffs assert in their opposition that Ms. Nielsen has a history of mental health problems and is not credible. However, plaintiffs present no evidence that defendants had knowledge of any mental illness.
Alvarez's role in the process was to make the preliminary determination of Fisher's mental and emotional functioning and to determine whether intervention by the County for the sake of Fisher's children was required. (SUF ¶ 5). When it became clear to Alvarez that the Fisher family required intervention, she attempted to have Fisher agree to a voluntary plan of treatment. (SUF ¶ 6; Alvarez Decl. ¶ 7). However, Fisher was afraid that would lead to her children being taken from her and failed to appear for a meeting with Alvarez. (SUF ¶¶ 6-7). Based upon the information that Alvarez had received from Fisher's doctor, her mother, and others, and given her refusal to meet to discuss a voluntary plan, Alvarez obtained a warrant to take the minor children into protective custody. (SUF ¶ 8; Alvarez Decl. ¶ 8). Alvarez anticipated that Fisher's instability would further decompensate when her children were removed, and suggested that another social worker accompany the one serving the warrant in the event that Fisher needed to be placed on a three-day psychiatric hold pursuant to California Welfare and Institutions Code Section 5150 ("5150 hold"). (SUF ¶ 8; Alvarez Decl. ¶ 9).
On January 23, 2004, Defendant Diana Rose ("Rose"), a crisis social worker, and peace officers came to the hotel room in which plaintiffs were living. (SUF ¶ 10; SUF ¶ 33). Rose took custody of the children and delivered them to their grandfather's house. (SUF ¶ 33). Rose allegedly told the children's grandfather that the children could be there a "long time." (SUF ¶ 34). Rose has no other involvement in this case. (SUF ¶ 36).
Fisher was taken into custody because she stated that she would kill herself if Child Protective Services took her children. (Discharge Summary, Ex. B to Decl. of David. K. Huskey in Supp. of Defs.' Mot. for Summ. J. ("Huskey Decl."), filed Apr. 14, 2006, at 1). She was placed in Heritage Oaks Hospital, a psychiatric hospital, and Alvarez followed up on her care while she was there. (SUF ¶ 11; Alvarez Decl. ¶ 11). Fisher was discharged from Heritage Oaks Hospital on or about January 28, 2004. The discharge summary provided that the on-call physician noted that she was "very anxious" and "obsessed about mold." (Discharge Summary at 2). Her attending physician noted that although she was not "deemed acute enough to be in inpatient treatment," she continued "to perserverate on the mold situation, however, in a more appropriate way." (Discharge Summary at 2). The Discharge Summary stated that Fisher did not "appear to be overtly delusional" at the time of her discharge. (Discharge Summary at 2-3; SUF ¶ 13).
On January 29, 2004, Alvarez transferred the case to defendant Antoinette Fabela ("Fabela"), the ongoing social worker assigned to the case. (SUF ¶ 9). Alvarez did not have any responsibility for the case once it was transferred to Fabela. (Alvarez Decl. ¶ 13). Once the transfer took place, Fabela had responsibility for handling the Placer County Superior Court case related to reunification of the Fisher family. (Decl. of Antoinette Fabela in Supp. of Defs.' Mot. for Summ. J., filed Apr. 14, 2006, ¶ 1).
Shortly after taking over the case, Fabela familiarized herself with the Discharge Summary as well as all other documents in the file. (Fabela Decl. ¶ 2). Defendants present evidence that the file information suggested to Fabela that Fisher was behaving irrationally with respect to obtaining treatment for alleged symptoms of toxic mold poisoning suffered by herself and her children. (Fabela Decl. ¶ 4). Fabela contends that it was not clear to her whether toxic mold or mental illness was causing Fisher's irrational behavior. Fisher provided Fabela with material concerning the effects of toxic mold, which Fabela read and considered. (Fabela Decl. ¶ 9). Fabela asserts that even if the information provided by Fisher about toxic mold was true, she believed that Fisher's focus on toxic mold and expression of concern about it in front of her children, both of whom were under ten years old at the time, were inappropriate and harmful to the children. (Fabela Decl. ¶ 10).
On February 20, 2004, defendant Greg Geisler, a social worker for the County of Placer, filed a Jurisdiction/Disposition Report ("JDR") with the Placer County Superior Court. (Decl. of Greg Geisler in Supp. of Defs.' Mot. for Summ. J. ("Geisler Decl."), filed Apr. 14, 2004, ¶¶ 2-3). Geisler recommended that the children be removed from Fisher and placed in the home of a relative because he believed that there was a substantial danger to the physical health or physical and emotional well-being of the children if they were returned home. (Geisler Decl. ¶ 6). He believed that the Fisher children were suffering from severe emotional distress as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior. (Geisler Decl. ¶ 7). He also believed that Fisher's mental status appeared to be significantly compromised at the time that he interviewed her and the children. (Geisler Decl. ¶ 12). In the JDR, Geisler expressed his concerns about Fisher's mental health as follows:
Regardless of whether or not Ms. Fisher is suffering from toxic mold related illnesses, continuously obsessing on her symptoms cannot be healthy for her or her children. If one were afflicted with AIDS, cancer or any other disease, one ought not to concern one's every hour with the subject. This would only bring about despondent depressions, and distraction, and worsen the situation. This seems to be happening in Ms. Fisher's case, and her children are suffering because of this. Regardless of whether toxic mold or other factors are responsible for her present mental state and apparent mental illness, she is nonetheless exhibiting symptoms of mental disorders that compromise her ability to parent. These, combined with her obsession with toxic mold, whether with a factual basis or not, have rendered Ms. Fisher incapable of parenting sufficiently to ensue [sic] her children's safety.
(Geisler Decl. ¶ 13). Fisher also told Geisler during the interview that she was not functioning well mentally. (Geisler Decl. ¶ 14). Fisher also admitted that she "had become obsessed with doctors" for her mold concerns and that she had been having great difficulty getting things done in a timely manner. (Geisler Decl. ¶¶ 15-16). Geisler asserts that he was left with an unclear picture regarding possible domestic violence in their household. (Geisler Decl. ¶ 17). Geisler also asserts that Fisher's father confirmed most of the concerns that others had expressed about her mental health and inability to care for her children. (Geisler Decl. ¶ 18). Fisher contends that Geisler obtained accurate information in his report, but misinterpreted what it meant. (Dep. of Karen Fisher ("Fisher Dep."), Ex. A to Huskey Decl., 158:10-12).
Fisher and Fabela entered into a voluntary Unified Services Plan ("USP") on April 13, 2004. (SUF ¶ 25). The USP provided that Fisher would be reunited with her children on condition that she would not speak of toxic mold to her children, or to adults in front of her children. (SUF ¶ 24). Fisher was free to consult with doctors, lawyers or other professionals about mold related issues outside the presence of her children. (SUF ¶ 24). The termination of the court proceeding occurred on April 14, 2005, and the Fisher family reunited that day. (SUF ¶ 26). The term of the USP was from April 13, 2004 through July 14, 2004, and Fisher believes that it was extended a month beyond that date. (SUF ¶ 27).
Less than two weeks after Fisher agreed to the conditions of the USP, Fabela received a telephone call from Mr. Haney, an environmental specialist, who was in his office with Fisher. (Fabela Decl. ¶ 13; Decl. of Doug Haney in Opp'n to Defs.' Mot. for Summ. J. ("Haney Decl."), filed Sept. 29, 2006, ¶¶ 2-3). In response to Fisher's further inquiry into the condition of the USP regarding not speaking about toxic mold in front of her children, Fabela allegedly told Fisher over the phone, "if you choose to pursue this any further, you know what this will mean!" (SUF ¶¶ 29-30). Fabela took no adverse action against plaintiff following the exchange over the telephone. (SUF ¶ 31). However, Fisher understood Fabela's statement to be a threat that her children would be taken away if she did not cooperate. (SAF ¶ 54).
Defendant Kevin Henderson ("Henderson") was the supervisor of the ACCESS p.m. program in December 2003 and January 2004. (SUF ¶ 42). He had been the caseworker for Fisher when her children were taken away from her in 1999 because of her threat to commit suicide and kill her older daughter. (SUF ¶ 42; Fisher Dep. 77:22-78:3). From that contact, Henderson became aware that she had a history of abuse of methamphetamines. (Decl. of Kevin Henderson in Supp. of Defs.' Mot. for Summ. J. ("Henderson Decl."), filed Apr. 14, 2004, ¶ 3; Fisher Dep. 77:8-11). Henderson informed various social workers dealing with the case of his experiences with the Fishers when he was a case worker because he believed that Fisher's mental health background and history of drug use was potentially relevant to the issues involving reunification with her children. (SUF ¶ 46). Fisher agrees that Henderson's information about the prior time that her children were taken from her was relevant to the handling of her case, but believes that Henderson improperly intervened in her case from January 22, 2004 through April of 2004. (SUF ¶¶ 43, 45). Henderson did not supervise Fabela's handling of the case and did not have any direct involvement in the Fisher case in 2003 and 2004. (Henderson Decl. ¶¶ 2, 5-6).
On April 20, 2005, plaintiffs filed a complaint against defendants, alleging federal civil rights violations and asserting pendant state tort claims. On July 22, 2005, the court issued an order, granting in part and denying in part defendants' motion to dismiss. (Mem. Order, filed July 22, 2005, Docket # 22). All of plaintiffs' § 1983 claims and Monell claims against Placer County were dismissed, except plaintiffs' claims relating to threatening comments by defendant Fabela. (Id.) Plaintiffs' negligence and intentional infliction of emotional distress claims for monetary relief were also dismissed, except to the extent said claims are predicated on defendants' alleged malicious failure to disclose exculpatory evidence. (Id.) Therefore, the remaining claims at issue in this case are (1) plaintiffs' § 1983 claims arising out of defendant Fabela's alleged threat; (2) plaintiffs' § 1983 claim against defendant Placer County arising out of defendant Fabela's alleged threat; (3) plaintiffs' state law claims predicated on defendants' malicious failure to disclose exculpatory evidence; and (4) plaintiffs' claims for injunctive relief.
STANDARD
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324. Indeed, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-289 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party,Id. at 251-52.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."First Nat'l Bank, 391 U.S. at 289. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party.Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356.
ANALYSIS
I. 42 U.S.C. § 1983 Claim
Plaintiffs' § 1983 claim is based solely on Fisher's claim that her rights were violated by defendant Fabela's alleged threat over the telephone. Plaintiffs present no evidence that any of the other named individual defendants were involved in this conduct. Therefore, defendants' motion for summary judgment regarding plaintiffs' § 1983 claim against defendants Alvarez, Henderson, Rose, and Geisler is GRANTED.
Plaintiffs assert that defendants violated their constitutionally protected rights under the First and Fourteenth Amendment when defendant Fabela threatened "if you choose to pursue this any further, you know what this will mean!" in response to a telephone call by Fisher about the restrictions in the USP.
Plaintiffs contend that Fabela's threat violated their rights under the Fourteenth Amendment. Courts have analyzed threats to remove a child from a family under the fundamental right to familial relations, which includes the liberty interests of parents in the care, custody and management of their children.Doe v. Heck, 327 F.3d 492, 524 (7th Cir. 2003); King v. Olmsted County, 117 F.3d 1065, 1066-68 (8th Cir. 1997). The liberty interest in maintaining the family unit is guaranteed by the Fourteenth Amendment. See Heck, 117 F.3d at 523 n. 29;King, 117 F.3d at 1066-68. However, plaintiffs also contend that the threat also violated Fisher's First Amendment rights by chilling her speech about toxic mold.
In general, "mere verbal threats made by a state-actor do not constitute a § 1983 claim." King, 117 F.3d at 1067 (quotingHopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992);see also Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 1998). "The Constitution does not protect all intrusions on one's peace of mind. Fear or emotional injury which results solely from verbal harassment or idle threats is generally not sufficient to constitute an invasion of an identified liberty interest." King, 117 F.3d at 1067 (quotingPittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991) (holding that police officers threat to children that "if we see your father on the streets again, you'll never see him again" did not constitute a 14th Amendment violation)); see Lamar v. Steele, 698 F.2d 1286 (5th Cir. 1983); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979). Courts have held that "a threat constitutes an actionable constitutional violation only when the threat is so brutal or wantonly cruel as to shock the conscience, or if the threat exerts coercive pressure on the plaintiff and the plaintiff suffers the deprivation of a constitutional right."King, 117 F.3d at 1067 (citing Hopson, 961 F.2d at 1378-79;Bishop v. Trace, 622 F.2d 349, 354 (8th Cir. 1980)); Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999).
The alleged threats made by Fabela do not rise to the level of a constitutional violation in regards to plaintiffs rights to familial relations. Fabela did not follow up on the alleged verbal threat and plaintiffs suffered no further adverse actions from Fabela. Fisher retained both legal and physical custody of the children during the term of the USP. See King, 117 F.3d at 1067-68.
Plaintiffs cite to the Seventh Circuit's opinion in Heck v. Doe in support of their claim. 327 F.3d 492. However, the facts of Heck are readily distinguishable from the facts of this case. There, the court held that threatening parents with removal of their children, in the absence of any evidence giving rise to a reasonable suspicion that the parent were abusing their children, violated the parents' constitutional rights. Id. at 520-21. In Heck, the defendant left a message on the parents voice mail, "stating that if she had not heard from the parents' attorney within 24 hours, `the Bureau will take steps to . . . protect the children in your home . . . under Chapter 48' and that she was `not messing around anymore!'" Id. at 524. However, defendants "had no basis to suspect the plaintiff parents of child abuse." Id. at 525. Therefore, defendants had no reason to interfere with their familial relationships by threatening removal. Id.
However, in this case, prior to the alleged threat, Fisher's children had been removed from her based upon reports by Fisher's family doctor and mother that they had concerns about Fisher's ability to care for her children and further investigation by ACCESS social workers. Fisher had to be hospitalized after she threatened to kill herself upon removal of the children. The Summary Discharge reports reflect that she was "obsessed about mold" and continued "to perseverate on the mold situation" upon discharge. Geisler, a social worker with Placer County CPS, interviewed Fisher, her children, and her father, and reached the conclusion that Fisher's mental state, including her obsession with toxic mold, rendered her incapable of parenting sufficiently to ensure her children's safety. Geisler also concluded that Fisher's continuous obsession about the symptoms of toxic mold was not healthy for her children. (JDR, Ex. A to Geisler Decl., at 26). Plaintiffs' social worker, Fabela, agreed with this conclusion. A USP was entered into by Fisher and Fabela regarding conditions relating to the discussion of toxic mold in front of her children. Not two weeks after entering into the USP, plaintiff began questioning the conditions of the USP relating to toxic mold, while she was at the office of an environmental specialist seeking assistance in regards to toxic mold. It was in response to this questioning that Fabela made the alleged threat that if Fisher chose to pursue this any further, she knew what it would mean. Under the circumstances, the statement made by defendant Fabela, which did not overtly threaten removal and which was not acted upon, was not a constitutional violation.
Plaintiffs argue that all of the defendant social workers had no basis for their conclusion that Fisher was unable to care for her children. These arguments are not supported by the evidence as defendants have provided evidence demonstrating that they received references from sources that knew Fisher and her children, conducted interviews, contacted other sources in making their determination. Plaintiffs offer no evidence in rebuttal, except for plaintiffs' conclusory assertion that everyone else was wrong in their opinions.
In regards to plaintiffs' First Amendment claim, the court likewise finds that Fabela's threat did not amount to a constitutional violation. Plaintiffs attempt to reassert a claim that was already dismissed by this court based upon applicable immunities. The court previously held that defendants could not be held liable for drafting "the USP with parameters under which the court would approve the children being returned to Fisher's custody . . . [b]ecause these actions were taken while in pursuit of an outcome to the dependency proceedings." (Mem. Order, filed July 22, 2005, Docket # 22, at 12). Plaintiffs, however, continue to argue that the conditions of the USP violate Fisher's First Amendment rights. They argue that defendant Fabela's threat regarding Fisher's compliance with the conditions of the USP served to chill her right to free speech because the conditions of the USP violate her right to free speech. This argument is directly related to and intertwined with the constitutionality of the provisions of the USP regarding Fisher speaking about toxic mold in front of her children, a claim for which the court has held that defendant Fabela has immunity. As such, the court does not entertain plaintiffs' attempt to make an end-run around the court's prior rulings. Defendant Fabela's alleged threat that Fisher needed to comply with the conditions of the USP and not pursue her alleged obsession with toxic mold while bound by the conditions of the USP did not, by itself, chill Fisher's First Amendment rights.
Therefore, because defendant Fabela's alleged threat did not violate plaintiffs' First Amendment right to free speech or Fourteenth Amendment right to familial relations, defendants' motion for summary judgment regarding plaintiffs' § 1983 claim against defendant Fabela is GRANTED.
A. Qualified Immunity
Defendant Fabela argues that even if the alleged threat violated plaintiffs' constitutional rights, she is protected by qualified immunity. The doctrine of qualified immunity protects from suit government officers who do not knowingly violate the law. Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994). Qualified immunity is a generous standard designed to protect "all but the plainly incompetent or those who knowingly violate the law." Burns v. Reed, 500 U.S. 478, 495 (1991) (citation omitted). A government actor can establish qualified immunity by demonstrating (1) that the law governing the actor's conduct was not clearly established at the time of the challenged actions, or (2) that under the clearly established law, a government actor could reasonably have believed that the alleged conduct was lawful. See Katz v. United States, 194 F.3d 962, 967 (9th Cir. 1999); Mendoza v. Block, 27 F.3d 1357, 1360 (9th Cir. 1994).
The question of immunity generally is not one for the jury. Qualified immunity "`is an immunity from suit rather than a mere defense to liability'. . . . [Therefore,] [i]mmunity ordinarily should be decided by the court long before trial." Hunter v. Bryant, 502 U.S. 224, 228 (1991) (citation omitted). The initial inquiry that the court must make to determine whether an official is entitled to qualified immunity is whether, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). The next inquiry is whether the constitutional right was clearly established. Id. This inquiry must be taken in the light of the specific context of the case. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. The salient question is whether the law at the time of the disputed conduct gave defendants "fair warning that their alleged treatment of plaintiffs was unconstitutional." See Hope v. Pelzer, 536 U.S. 730, 741 (2002). There must exist a clearly established rule so that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 205-06.
Even if defendant Fabela's alleged threat gave rise to a constitutional violation, Fabela did not have fair warning that the alleged treatment of plaintiffs was unconstitutional. The law is not established in California or the Ninth Circuit that such conduct could give rise to a constitutional violation of the First or Fourteenth Amendment.
B. Monell Claim
Plaintiffs assert that defendant County is liable under § 1983 because the County allegedly maintained a policy, custom, or practice that caused defendant Fabela to violate plaintiffs' rights through her alleged threat to Fisher. Under Monell and its progeny, a plaintiff may hold a municipality liable under section 1983 if his injury was inflicted pursuant to city policy, regulation, custom, or usage. Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994) (citing Monell, 436 U.S. at 690-91, 694). The existence of a county policy may be established in one of three ways:
First, the plaintiff may prove that a [county] employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity. Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official governmental policy. Whether a particular official has final policy-making authority is a question of state law. Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it.Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quotingGillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (citations and internal quotations omitted)). Assuming that a plaintiff can establish one of these three circumstances, he must then demonstrate that the municipal policy "caused" the constitutional deprivation. Id. A municipal policy "causes" injury where it is the "moving force" behind the violation.Chew, 27 F.3d at 1444 (citing Monell, 436 U.S. at 690-91, 694).
In this case, there is no evidence of a systemic failure to train social workers, no evidence of negligent hiring of social workers by Placer County, no evidence of routinely requesting USPS that regulate the content of speech, and no evidence of a policy of coercing families into unconstitutional USPs of any type. There is also no evidence that defendant Fabela, the social worker who made the alleged threat to Fisher, was an official with final, policy-making authority. Finally, there is no evidence that an official with final policy-making authority ratified defendant Fabela's conduct.
Plaintiffs argue that defendants' motion for summary judgment should be denied because plaintiffs' Monell claim survived defendants' motion to dismiss. This argument has no merit. Plaintiffs also argue that they have a Monell claim against the County because defendants were "deliberately indifferent." Such conclusory statements, which do not remotely address the requirements for substantiating a Monell claim, provide no basis for this court to find a triable issue of fact as to the County's liability. Plaintiffs point to no evidence to support their Monell claim. (See Pls.' Opp'n to Mot. for Summ. J. ("Opp'n"), filed Sept. 29, 2006, at 18-22). Further, plaintiffs attempt to resurrect claims for which the court has previously found the County immune. (See Opp'n at 18-22; Mem. Order, filed July 22, 2005, Docket # 22). Therefore, because there is no evidence to support plaintiffs' claim that defendant Placer County is liable for a violation of their constitutional rights, defendants' motion for summary judgment is GRANTED. See Mabe v. San Bernardino County, 237 F.3d 1101, 1110-11 (9th Cir. 2001) (affirming the district court's grant of summary judgment where plaintiff "adduced no evidence that the County had a policy that both amounted to deliberate indifference to [plaintiff's] constitutional rights and was the moving force behind a violation of those rights").
Plaintiffs also cite to Wood v. Ostrander, 879 F.2d 583, 588 (9th Cir. 1989), in support of their claim for municipal liability. Wood is inapplicable. There was no claim for, nor discussion of municipal liability in that case.
II. State Tort Claims
Plaintiffs allege state tort claims based upon defendants' malicious failure to disclose known exculpatory evidence in the form of her Discharge Summary from Heritage Oaks hospital. See Cal. Govt. Code § 820.21 (excluding a social worker's malicious failure to disclose known exculpatory evidence from statutory immunity). Defendants assert that even if the Discharge Summary was exculpatory, defendants did not maliciously fail to disclose known exculpatory evidence. For purposes of § 820.21, "`malice' means conduct that is intended . . . to cause injury to the plaintiff or . . . conduct that is carried on . . . with a willful and conscious disregard of the rights or safety of others." Cal. Govt. Code § 820.21.
Plaintiffs do not address the liability of defendants Alvarez or Rose in their opposition. The court interprets this silence as a non-opposition to defendants' motion with respect to these defendants. Further, Alvarez transferred the case to defendant Fabela on July 29, 2004, one day after the allegedly exculpatory report was issued, and had no further responsibility for the case. Rose's sole involvement in the case pertained to the removal of the Fisher children in January 2004. Therefore, defendants' motion for summary judgment regarding plaintiffs' state claim against defendants Alvarez and Rose is GRANTED.
A. Defendant Fabela
Defendants present evidence that Fabela did not believe the Discharge Summary was exculpatory and would require unification. (Fabela Decl. ¶ 3). The fact that Dr. Hirschaut found that Fisher was not delusional at the time of her discharge did not suggest to Fabela that the reported behaviors toward her children were acceptable. (Fabela Decl. ¶ 3). Further, Fisher had a copy of the Discharge Summary within two to three weeks of her discharge from Heritage Oaks hospital. (SUF ¶ 15). Fabela did not attempt to hide the document from Fisher or her counsel. (Fabela Decl. ¶ 8). Finally, Fisher testified at her deposition that she liked Fabela because she believed that she has integrity. (Fisher Dep. 150:2-4). She testified that she didn't think that Fabela intentionally tried to hurt her or her children. (Fisher Dep. 150:8-9). Finally, Fisher also testifies that "the only time that [she] felt that Toni Fabela acted with malice" was when "she reminded [her] that the mold issue is to be dropped entirely," which Fisher perceived as a threat. (Fisher Dep. 140:2-8) (emphasis added).
Plaintiffs argue that Fabela took actions that had the effect of hurting both Fisher and the children. (Fisher Decl. ¶ 2). Plaintiffs also assert that Fabela knew or should have known that Fisher was not delusional. (Fisher Decl. ¶ 3). However, plaintiffs provide no evidence that Fabela withheld the allegedly exculpatory Discharge Summary with the intent to injure plaintiff or with willful or conscious disregard for the rights or safety of others, i.e., with malice. Nor do plaintiffs present evidence to rebut defendants evidence of good faith, particularly Fisher's own testimony that she did not think that Fabela intended to hurt her or her children. Therefore, defendants' motion for summary judgment regarding plaintiffs' state claim against defendant Fabela is GRANTED.
B. Defendant Geisler
Defendants present evidence that Geisler does not recall whether he read the Discharge Summary prior to preparing the JDR. (Geisler Decl. ¶ 8). However, after having read the Discharge Summary, Geisler does not believe that it ruled out a mental disorder that would justify taking custody of the Fisher children away from Fisher. (Geisler Decl. ¶ 8). Rather, in Geisler's judgment, Fisher's mental status appeared to be significantly compromised at the time of the interviews. (Geisler Decl. ¶ 12). Geisler asserts that "at no time did [he] do anything other than discharge [his] duties as a social worker in a manner that I believed to be in the best interests of the Fisher family, which, based upon the information that [he] had, appeared to be an unstable and harmful environment for the Fisher children." (Geisler Decl. ¶ 20).
Plaintiffs argue that Geisler "is another county employee whom simply rubber stamped the notion that [Fisher] was delusional without ever having any substantial proof to back it up." This argument, if true, asserts that defendant Geisler acted negligently by failing to properly investigate the matter, not with the requisite malicious intent. However, plaintiffs offer no evidence to substantiate the assertion that Geisler was negligent or malicious in his conduct. Therefore, defendants' motion for summary judgment regarding plaintiffs' state claim against defendant Geisler is GRANTED.
C. Defendant Henderson
Defendant Henderson had no direct involvement in the Fisher case other than supervising defendants Rose and Alvarez during the emergency intervention. Henderson did not supervise Fabela's handling of the case from January 29, 2004 onward. Plaintiffs do not discuss a malicious failure to disclose known exculpatory evidence in reference to Henderson's potential liability. Rather, they assert that "it is clear that Mr. Henderson has a bias against [Fisher] and acted in a malicious manner to [her] detriment" based upon comments made by Henderson to Fabela about Fisher's prior drug use. (Opp'n at 26-17). All of plaintiffs' state law claims, except those relating to a malicious failure to disclose exculpatory evidence, were previously dismissed by this court. (Mem. Order, filed July 22, 2005, Docket # 22). Because plaintiffs offer no argument and no evidence regarding the remaining state law claim as it applies to defendant Henderson, defendants' motion for summary judgment regarding plaintiffs' state claim against defendant Henderson is GRANTED.
III. Injunctive Relief
Plaintiffs also request injunctive relief "undoing [the] unreasonable and illegal conditions, and protecting them from further such conditions." (Compl. ¶ 32). An injunction is an equitable remedy. "[T]he basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (citations omitted). A plaintiff seeking an injunction based on alleged past wrongs must demonstrate that there is a real and immediate threat that they will be wronged again. See City of Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983). "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects."O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974).
Under federal law, absolute and qualified immunity are defenses to liability for damages only and do not bar actions for declaratory or injunctive relief. Pulliam v. Allen, 466 U.S. 522, 539-40 (1984); American Fire, Theft Collision Managers v. Gillespie, 932 F.2d 816, 818 (9th Cir. 1991); Shipp v. Todd, 568 F.2d 133. 134 (9th Cir. 1978). See also Supreme Ct of Va v. Consumer Union, Inc., 446 U.S. 719 (1980). Likewise, under California law, immunity only shields public entities and employees from claims for monetary damages. Cal. Govt Code § 814; Tehachapi-Cummings County Water District v. Armstrong, 49 Cal. App. 3d 992, 999-1000(5th Dist. 1975). Therefore, these claims survived defendants' motion to dismiss on the basis of immunity.
In this case, defendants present undisputed evidence that plaintiffs' state law CPS case was terminated on April 14, 2004, and that the USP was completed in July or August 2004. (SUF ¶¶ 26-27). As such, plaintiffs are no longer subject to the allegedly "unreasonable and illegal conditions" of the USP for which they seek injunctive relief. Further, there is no evidence that plaintiffs will be subjected to these same conditions in the future. Rather, defendants present evidence that Fisher's children are presently in foster care because they were removed from Fisher in February 2005, after officers found methamphetamine paraphernalia in the trailer she was living in with her boyfriend. (SUF ¶ 48). Fisher must complete counseling and related conditions before she can be reunified with her children. (SUF ¶ 48). Plaintiffs have presented no evidence to dispute defendants' evidence and make no arguments regarding injunctive relief in their opposition brief. As such, defendants' motion for summary judgment regarding plaintiffs' claims for injunctive relief is GRANTED.
Defendant object to this fact on the basis that it is irrelevant. However, whether Fisher's children are in her care or in foster care is relevant to the need for the injunctive relief sought by plaintiffs.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is GRANTED. The Clerk is directed to close this file.IT IS SO ORDERED.