Opinion
No. CIV. S-06-0047 WBS KJM.
April 25, 2006
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
Plaintiffs Sonya Wolf and Nicholas H. allege several causes of action against defendants, including violation of plaintiffs' constitutional rights, actionable under 42 U.S.C. § 1983 and California Civil Code § 52.1, and intentional infliction of emotional distress. (Compl.) Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants County of San Joaquin, Melissa Torres, Michelle McDaniel, and Valerie Agbulos now move for dismissal of these federal and state claims against them.
The complaint's caption also lists "False Arrest/Imprisonment" as a basis for plaintiffs' suit; however, plaintiffs do not include this claim in the body of the complaint.
Both sides, including this party's own attorneys, refer to her alternatively as both "McDaniel" and "McDaniels" throughout their papers. It is not for the court to discern the true spelling of her name, so the court will do the same.
Counsel for the moving defendants does not purport to represent the San Joaquin County Sheriff's Department or Jennifer Indula. Nevertheless, at oral argument, plaintiff asked to dismiss defendant Indula and accordingly, this order memorializes that request below.
I. Factual and Procedural Background
On February 17, 2005, a school employee observed Wolf's 15-year-old daughter Brittany W. exchanging marijuana with another individual. (Compl. ¶¶ 24, 39.) Brittany was taken to the principal's office, where a search of her backpack revealed a suspected weapon made of stolen school property. (Id. ¶ 39.) The school immediately suspended her and contacted her mother. (Id.)
While waiting for Wolf to arrive, Brittany disclosed to a teacher that Wolf's ex-boyfriend had inappropriately touched her. (Id. ¶ 43.) The school did not share this information with Wolf but did notify the Human Services Agency of San Joaquin County ("the Agency") of Brittany's allegations on February 18, 2005. (Id. ¶ 46.) The Agency initially classified Brittany's case as a "ten day response," "meaning that the facts reported did not present an immediate emergency situation." (Id. ¶ 47);Rogers v. County of San Joaquin Human Servs. Agency, 363 F. Supp. 2d 1227, 1230 (E.D. Cal. 2004) (quotation omitted). However, by the time the Agency assigned the case to defendant Torres on February 22, 2005, the status had changed to "immediate response." (Compl. ¶ 47.)
Torres, a case worker for the agency, tried to meet with Wolf on the 22nd. (Id. ¶ 54.) After making initial contact with Wolf by phone, however, Torres was unresponsive to Wolf's efforts to meet and ascertain why the Agency needed to speak with her. (Id. ¶¶ 55-56.) Eventually, Wolf contacted Indula, Torres' supervisor, and scheduled an appointment for March 1, 2005 at 12:30 p.m. (Id. ¶ 56.)
During the course of Torres' interview on the scheduled date, mother and daughter told differing stories about conditions in the home and Brittany's involvement with older men. Brittany again alleged that Wolf's ex-boyfriend had molested her, although the complaint does not describe when this abuse supposedly occurred. Wolf explained that she had secured a restraining order against the ex-boyfriend in October, 2003, and that she had repeatedly called the sheriff to enforce the order when the ex-boyfriend showed up at her house. (Id. ¶ 84.) She claimed that the ex-boyfriend had last been at the house in July or August, 2004. (Id. ¶ 92.) Brittany told Torres that his last appearance was on February 24, 2005. (Id. ¶ 82.)
According to the sheriff's records, Wolf's most recent call regarding a violation of the restraining order was made on September 14, 2004. (Compl. ¶ 93.)
Meanwhile, Wolf suggested to Torres that Brittany may have made up the story about the ex-boyfriend in retaliation for his having reported to Wolf at the end of 2004 that something was going on between Brittany and an adult neighbor named Ralph. (Id. ¶ 63.) Wolf was suspicious of Ralph for some time, but did not know the extent of his relationship with Brittany until February 19, 2005, when Brittany confessed to her mother that she had been exchanging oral sex with Ralph for marijuana. (Id. ¶ 38.) By that time, however, Ralph had moved away. (Id. ¶¶ 33, 38.)
Wolf further alleges that Brittany was reluctant to turn in Ralph and that Wolf did not immediately report the abuse because she wanted to give Brittany a chance to report it herself. (Id. ¶ 34.) But when given the opportunity to tell Torres about Ralph, Brittany adamantly denied any involvement with the man. (Id. ¶ 90.)
Brittany's story changed dramatically when she realized that Torres and Agbulos, a sheriff's deputy called by Torres for assistance, intended to remove her from her mother's home. (Id. ¶ 104, 110.) She recanted her allegations against the ex-boyfriend and admitted that she had a relationship with the neighbor Ralph. (Id. ¶ 104, 110.) But despite the fact that Brittany and Wolf's stories were more or less the same at this point, Torres and Agbulos continued to insist that Wolf "admit" that her ex-boyfriend had recently been by the house. (Id. ¶ 109.) Wolf, "having been now brow beat for several hours, and fearing there was no other means by which to keep her children from being removed . . . shouted, 'O.k., fine, he was here.'" (Id. ¶ 114.)
"Agbulos and Torres then both shook their heads and said we have to take the kids, we can't leave them here, 'It's just not safe.'" (Id. ¶ 115.) Wolf suggested alternatives to removing the children from her custody and offered to take them to her father's house in Palo Alto. (Id. ¶ 117.) But Agbulos and Torres had already decided to forcibly take custody of Brittany and Nicholas. (Id. ¶ 118.) Accordingly, the children were loaded into separate cars and transported to a local shelter facility. (Id. ¶ 120-21.) The ultimate reason for removing the children appears to have been "the disclosure of sexual molest [sic] and the mother's failure to protect her daughter. . . ." (Id. ¶ 129.) "[A]llegations of general neglect were found to be inconclusive. . . ." (Id.)
Defendant McDaniels assumed responsibility for the subsequent juvenile detention proceedings. (Id. ¶ 131.) On March 3, 2005 she filed a Detention Report and Juvenile Dependency Petition, which was prepared based on Torres' now unavailable case notes. (Id. ¶ 130.) Wolf alleges that these documents included "completely false statements of fact, all of which were either made with knowledge of their falsity, or reckless disregard and deliberate indifference as to the truth or falsity thereof. . . ." (Id. ¶ 129.) For example, although, according to the complaint, Brittany at most claimed that the ex-boyfriend had touched her inappropriately, McDaniels' report stated that the two had sex. (Id.) Wolf further alleges that McDaniels failed to perform any investigation of her own and relied entirely on the information supplied by Torres, which omitted several exculpatory facts. (Id. ¶ 133.)
The County returned Nicholas to Wolf's care on or about May 16, 2005, pursuant to a stipulated dismissal of his dependency case. (Id. ¶ 9.) Brittany was also returned following the denial of the Agency's dependency petition, although the complaint does not state when she was released. (Id.) Plaintiffs Wolf and Nicholas subsequently filed this suit, which alleges three causes of action based on 42 U.S.C. § 1983: (1) violation of plaintiffs' Fourteenth Amendment rights to familial association, (2) violation of plaintiff Nicholas' Fourth Amendment right to be free of in-home warrantless seizure, and (3) further violation of plaintiffs' Fourteenth Amendment rights to familial association through continued, unjustified detention of the children. (Id. ¶¶ 139-46.) Plaintiffs also raise state law claims based on California Civil Code § 52.1 and Intentional Infliction of Emotional Distress. (Id. ¶¶ 147-52.) They seek an assortment of damages, including compensation for resulting medical expenses and damage to reputation. (Id. ¶¶ 136-37.) They also seek exemplary/punitive damages pursuant to California Civil Code § 3294. By this motion and based on several sources of immunity for government officials, defendants County of San Joaquin, Torres, McDaniel, and Agbulos move to dismiss all claims.
II. Discussion
A. Legal Standard
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Cruz v. Beto, 405 U.S. 319 (1972). The court may not dismiss for failure to state a claim unless "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Van Buskirk v. CNN, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Dismissal is appropriate, however, where the pleader fails to allege facts that support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988); see also Conley v. Gibson, 355 U.S. 41, 47 (1957) (complaint must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests").
B. Section 1983 Claims
Defendants contend that they are entitled to qualified and, in some instances, absolute immunity for the removal of the children and their subsequent detention. The Ninth Circuit has held that social workers enjoy absolute immunity for "discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents." Miller v. Gammie, 335 F.3d 889, 898 (9th Cir. 2003) (citing Meyers v. Contra Costa County Dep't of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir. 1987)). However, the scope of this immunity is "extremely narrow." Id. Thus, while social workers may claim absolute immunity for decisions to institute dependency proceedings and for submissions made to a court, they are not similarly protected when they take actions to detain juveniles prior to any dependency proceedings. Doe v. Lebbos, 348 F.3d 820, 825-26 (9th Cir. 2003); Miller, 335 F.3d at 898; Cf. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (holding that prosecutorial immunity, on which social worker immunity is based, does not extend to investigatory or administrative functions separate from a prosecutor's role as judicial a advocate).
When absolute immunity is unavailable, government officials still have the possibility of qualified immunity. See Mabe v. San Bernardino County Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001) (commenting that "qualified immunity is the general rule and absolute immunity the exceptional case"). The applicability of qualified immunity is determined through a two-step inquiry where the court asks: "(1) whether, 'taken in the light most favorable to the party asserting the injury, the facts alleged show the officer's conduct violated a constitutional right'; and, if a violation of a constitutional right [can] indeed be found, (2) 'whether the right was clearly established.'" Sissoko v. Rocha, 412 F.3d 1021, 1038 (9th Cir. 2005) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). In other words, qualified immunity shields government officials from liability for a violation of plaintiffs' rights if "the official[s] objectively could have believed the conduct was lawful." Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997) (involving the qualified immunity of a social worker and a police officer); see also Devereaux v. Perez, 218 F.3d 1045, 1059 (9th Cir. 2000) (Kleinfeld, J., dissenting) ("The question, in a qualified immunity legal analysis, boils down to 'Should they have known better?'").
Plaintiffs describe three bases for their § 1983 claims that defendants argue are barred by the immunity doctrines. First, plaintiffs allege that defendants County, Torres, Agbulos and Indula violated their Fourteenth Amendment rights to "familial association with one another" when the minor children, Brittany and Nicholas, were removed from their home "without consent, probable cause, a protective custody warrant, or exigent circumstances. . . ." (Compl. ¶ 139.) Second, Nicholas individually claims a violation of his Fourth Amendment right to be free of unreasonable seizure, a violation he attributes to the actions of the Agency, Torres, and Indula. (Id. ¶ 141.) Finally, plaintiffs claim that the continued detention of the children, from March 1st until mid-May, 2005, further violated their Fourteenth Amendment rights to familial association. (Id. ¶ 143.) Defendants argue that they are entitled to qualified immunity for all three claims and that they are additionally entitled to absolute immunity with respect to claim three.
1. Deprivations at the Time of Removal
Plaintiffs' first and second claims both target defendants' actions on March 1, 2005, when, after over five hours of investigation, Torres and Agbulos forcibly removed Brittany and Nicholas from Wolf's home. Such steps can violate the rights of parents under the Fourteenth Amendment by interfering with their substantive due process right to family association. Wallis v. Spencer, 202 F.3d 1126, 1137 n. 8 (9th Cir. 2000). They can likewise violate the Fourth Amendment rights of the children actually seized. Id. "Officials may remove a child from the custody of its parent without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is inimminent danger of serious bodily injury. . . ." Id. at 1138 (emphasis added).
Defendants do not address whether the Fourteenth Amendment right to family association can be claimed by a child (as opposed to a parent) when his or her sibling is removed. Because they have failed to discuss this distinction, the court assumes for the purposes of this motion that both Wolf and Nicholas can assert a violation of their Fourteenth Amendment rights regarding Brittany's removal.
Defendants discuss in detail the factual predicates that established "reasonable cause to take the children into custody. . . ." (Defs.' Mem. of P. A. 8.) Noticeably absent from their arguments, however, is any serious contention that either Brittany or Nicholas was in imminent danger, such that there was no time to secure a court order before taking them into custody. See Mabe, 237 F.3d at 1108 (finding no justification for the removal of a child believed to have been sexually abused in the past when a warrant could be obtained within a few hours); Rogers, 363 F. Supp. 2d at 1235 ("[A]n official must consider not only the severity of the threat to the child but also whether the harm is so imminent that no delay can be countenanced.").
Plaintiffs allege, and defendants do not dispute, that Torres and Agbulos acted without a court order authorizing removal.
Indeed, it does not appear, given the facts alleged, that exigent circumstances existed here. The agency initially classified Brittany's allegations of abuse as a "ten day response" and waited four days to assign a caseworker to her file. Then, after a caseworker was assigned and the case was re-labeled as an "immediate response", a week went by before Torres conducted her in-home investigation. See Rogers, 363 F. Supp. 2d at 1236 (holding that abuse was not imminent, "particularly in light of the delay that had already occurred after the referral"). Finally, the perpetrators of the alleged sexual abuse were not immediately present in the home or surrounding area. Wolf had a restraining order against the ex-boyfriend and the neighbor had moved away several weeks prior to the social worker's visit.
In light of the case law existing at the time, and viewing the evidence in a light most favorable to plaintiffs, no reasonable officer or social worker could have believed that removal was justified based on the facts alleged. Government actors need more than simple probable cause before they can remove a child without a court order. This rule has been clearly established in this circuit for some time and is additionally codified in California state law. Cal. Welf. Inst. Code § 305 (permitting peace officers to take a minor into temporary custody without a warrant based on reasonable cause and if "the minor is in immediate danger of physical or sexual abuse"); Mabe, 237 F.3d at 1108 n. 2 (noting that "a showing of probable cause does not [likewise show that a child] was in imminent danger of serious physical injury [or] justify a warrantless removal").Cf. Hatch v. Dep't for Children, Youth Their Families, 274 F.3d 12, 21 (1st Cir. 2001) (rejecting the Ninth Circuit approach and holding that a mere "objectively reasonable suspicion of abuse justifies protective measures"). Because defendants' actions, as alleged, were not reasonable in light of clearly established law, they are consequently not entitled to qualified immunity regarding claims one and two at this stage.
The circumstances discussed above largely address whether the warrantless removal of Brittany was reasonable in light of clearly established law. The removal of her six-year-old brother Nicholas, apparently simply because his teenage sister had alleged sexual abuse, was even more questionable. Although California law provides for the removal of a child based on the abuse of his or her sibling, there must be "a substantial risk that the child will [likewise] be abused or neglected. . . ." Cal. Welf. Inst. Code § 300(j). In making this determination, the court should consider the age and gender of each child and the nature of the abuse. Id. Accordingly, absent any allegations that either of Brittany's alleged attackers had homosexual tenancies, Torres and Agbulos had no reason to suspect that Nicholas was likewise in imminent danger. Compare In re Rubisela, 85 Cal. App. 4th 177, 198-99 (2000) (abuse by heterosexual male perpetrator justified removal of an abused girl's sister but not brothers), with In re Jason L., 222 Cal. App. 3d 1206, 1217 (1990) (removal of brother justified when sister alleged abuse because investigation suggested that the accused perpetrator was interested sexually in both males and females). Significantly, neither party suggests that any portion of the over five hour investigation focused on the imminent danger that Nicholas may have faced. Based on the facts alleged, his warrantless removal was even more obviously unjustified.
2. Post-Removal Deprivations
In contrast, defendants Torres and McDaniels are entitled to absolute immunity for at least some of their behavior described in claim three. As noted, absolute immunity attaches when social workers are engaged in activities "connected with the initiation and pursuit of child dependency proceedings."Meyers, 812 F.2d at 1157. Consequently, defendants are immune from liability for the portions of claim three that deal with the detention of the children based on a court order issued on "the presentation of false facts and the exclusion of exculpatory facts and information. . . ." (Compl. ¶ 144.) Defendants' submissions to a court in relation to a dependency proceeding cannot serve as the source for § 1983 liability, even if the presentation was based on an inadequate investigation of the allegations or included false evidence. Lebbos, 348 F.3d at 823 (citing Mabe for the proposition that "where there [are] allegations that social workers did not conduct their investigation properly and submitted false evidence during juvenile court proceedings, . . . social workers [are] entitled to absolute immunity because their actions were part of the initiation and pursuit of dependency proceedings").
Although the moving defendants do not limit their arguments for qualified immunity to a given subset of the movants, a municipality, like the County, cannot assert a defense based on qualified immunity, even though the acting employee is entitled to it. Owens v. City of Independence, 445 U.S. 622, 650-52 (1980) (holding that individual officers' entitlement to qualified immunity does not immunize municipalities from Monell liability); Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1186 n. 7 (9th Cir. 2002) (noting that "a municipality may be liable if an individual officer is exonerated on the basis of the defense of qualified immunity"). Likewise, the County cannot derivatively claim absolute immunity. Municipal liability is not founded on a respondeat superior theory, whereby the County, as an employer, is vicariously responsible for the acts of its employees. Rather, local governments face liability when a constitutional violation results from a policy or custom promulgated by the County itself. Accordingly, the County avoids liability by showing that no constitutional right was violated or that, if such a right was indeed violated, the County's policy was not the cause. See Atkins v. County of Alameda, No. C-03-3566, 2004 WL 941212, at *4 n. 8 (N.D. Cal. Apr. 30, 2004) ("This rule keeps municipal liability under section 1983 largely symmetric. Municipal entities cannot claim- or derive-immunity from individual employees, but they cannot be held liable under 'the doctrine of respondeat superior under [section] 1983 for the constitutional torts of their employees,' either."). Defendants have not made the appropriate arguments to secure dismissal of the County and consequently, the court does not here consider whether claim three can be dismissed as to the County defendant.
However, claim three also alleges violation of plaintiffs' rights based on the detention of the children prior to the initial detention hearing. As defendants note, their actions during this period could be covered by qualified immunity. Id. at 823. Unfortunately, their argument for qualified immunity on these aspects of claim three relies entirely on the arguments they make for qualified immunity with respect to claims one and two (that their conduct was reasonable). Because the court has rejected qualified immunity for claims one and two based on a determination that defendants failed to show that, based on the allegations in the complaint, the children were in imminent danger, it follows that it must reject defendants' arguments for qualified immunity on claim three.
C. State Law Claims
Defendants also argue that they are immune from plaintiffs' state law claims based on statutorily provided immunity that is arguably broader than the federal immunity doctrines discussed above. Significantly, pursuant to state law, "[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." Cal. Gov. Code § 821.6; see also Cal. Gov. Code § 820.2 (immunity for discretionary acts). This immunity also covers the investigatory stage of judicial proceedings. Amylou R. v. County of Riverside, 28 Cal. App. 4th 1205, 1209-10 (1994); Jenkins v. County of Orange, 212 Cal. App. 3d 278, 283-84 (1989). Additionally, by operation of § 815.2(b), the county enjoys derivative immunity. Cal. Gov. Code § 815.2(b) ("[A] public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."); see also Robinson v. Solano County, 278 F.3d 1007, 1016 (9th Cir. 2002) ("California . . . has rejected the Monell rule and imposes liability on counties under the doctrine of respondeat superior for acts of county employees; it grants immunity to counties only where the public employee would also be immune.").
However, "California Government Code § 820.21 provides that immunity for social workers does not extend to conduct that includes perjury, fabrication of evidence, failure to disclose exculpatory evidence and obtaining testimony by duress, if committed with malice." Parkes v. County of San Diego, 345 F. Supp. 2d 1071, 1082 (S.D. Cal. 2004). "Malice" as defined in this section as "conduct that is intended . . . to cause injury to the plaintiff or despicable conduct that is carried on . . . with a willful and conscious disregard of the rights or safety of others." Cal. Gov. Code § 820.21(b). This provision was designed to provide an "effective check upon the arbitrary power or absolute immunity of social workers," who, at the time of the bill's passage, enjoyed "a civil immunity which surpasse[d] the civil immunity of anyone else in our nation. . . ." Comm. Rep., A.B. 1355, Reg. Sess. (Cal. 1995) (noting that "even presidents, legislators and prosecutors are accountable to the political process and the consent of the governed").
Plaintiffs repeatedly allege that the social workers involved with Brittany's and Nicholas' cases failed to disclose what plaintiffs have cast as exculpatory evidence. (See, e.g., compl. ¶ 127.) They also suggest that admissions, notably Wolf's concession that the ex-boyfriend had been at the house as recently as February 24, 2005, were obtained through duress. (Id. ¶ 23.) Finally, in claim five, plaintiffs allege that defendants actions were "intended to cause plaintiffs severe emotional distress." (Id. ¶ 151.) Accordingly, given the liberal pleading standards of Federal Rule of Civil Procedure 8(a), which govern state law claims in federal court, plaintiffs' complaint qualifies at this stage for the social worker exception to California's general grant of governmental immunity. Nathan v. Boeing Co., 116 F.3d 422, 423 (9th Cir. 1997) (Federal Rules of Civil Procedure govern state law claims over which courts have supplemental jurisdiction); New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090, 1099 (C.D. Cal. 2004) (same); see also Fed.R.Civ.P. 9(b) ("Malice, intent, knowledge, and other condition of mind of a person may be averred generally.").
IT IS THEREFORE ORDERED that
(1) defendants' motion to dismiss claim three with respect to defendants McDaniels and Torres for conduct related to the instigation of dependency proceedings be, and the same hereby is, GRANTED.
(2) pursuant to plaintiff's stipulation at oral argument, defendants' motion to dismiss the action with respect to defendant Indula be, and the same hereby is, GRANTED.
(3) with respect to all other defendants and/or claims, defendants' motion to dismiss be, and the same hereby is, DENIED.