ORDER GRANTING IN PART AND DENYING IN PART COUNTY DEFENDANTS‟ MOTION TO DISMISS
This matter comes before the Court on Defendants County of San Joaquin ("the County"), Ralph Guerrero ("Guerrero"), Renee Smith ("Smith") and Holly Mettler-Molen‟s ("Mettler-Molen") (collectively "County Defendants‟") Motion to Dismiss (Doc. 24) the first through fifth claims for relief in Plaintiffs Stephen Moortgat ("Stephen") and Alma Moortgat‟s ("Alma") ("collectively Plaintiffs‟) First Amended Complaint ("FAC") (Doc. 22). County Defendants move for the FAC to be dismissed both for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and on grounds of qualified immunity. Plaintiffs oppose the motion.*fn1
FACTUAL AND PROCEDURAL BACKGROUND
Defendants Guerrero and Smith are county social workers, and Defendant Mettler-Molen is alleged to be a social worker in training. Plaintiffs are parents of minors JM and AM. Plaintiffs‟ FAC alleges six claims for relief against Defendants for civil rights violations, under 42 U.S.C. § 1983. This motion seeks dismissal of the five claims against County Defendants. The other defendants in this case, County employee Robin Heringer ("Heringer"), the City of Stockton ("City"), and police officers Ronald Ealunardo ("Ealunardo") and Michael Dixon ("Dixon"), are not parties to the present Motion. The City, Ealunardo and Dixon have answered the FAC.
JM was 15 years old at the time this suit was filed. According to the allegations of the FAC, Plaintiffs allege that on May 19, 2008, a friend of JM notified a school counselor that JM‟s father, Stephen, had sexually abused JM. JM‟s school contacted the County Child Protective Services ("CPS"), and Guerrero and Mettler-Molen interviewed JM at her school. JM reported that sexual abuse had occurred on unspecified dates approximately one year prior, while the family was on vacation.
Later Guerrero, accompanied by police officers Ealunardo and Dixon, went to Plaintiffs‟ home. After interviewing both Stephen and Alma, Plaintiffs allege the officers escorted Stephen from the home and ordered that he not have contact with JM or Alma. JM was taken to a safe house for one night, and was then returned to her mother Alma‟s care. Alma, JM and AM stayed at the home of Janet Moortgat, Stephen‟s mother, while Stephen stayed at a hotel, and went to the home only to use his home office. Plaintiffs allege that Guerrero required Alma to sign a "Family Safety Plan" which limited contact between Stephen and JM and AM. For a period of approximately one month, Stephen was ordered to remain separated from his family. JM later recanted her story, and no charges were ever filed against Stephen.
On June 23, 2008, Plaintiffs allege Stephen was permitted to move back into the family home with Alma, JM and AM after JM completed mandatory therapy sessions. Guerrero allegedly required Plaintiffs to enter into a "Voluntary Family Maintenance" plan ("VFM"), and warned that if they refused to sign onto or participate in the plan the County would go to court to remove the children from the home. Plaintiffs were released from the VFM and CPS supervision in January 2009, and now seek general, special, compensatory and punitive damages for Defendants‟ alleged civil rights violations.
A party may move to dismiss an action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheur v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Schere, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep‟t, 901 F.2d 696, 699 (9th Cir. 1990).
Upon granting a motion to dismiss, a court has discretion to allow leave to amend the complaint. See Fed. R. Civ. Pro. 15(a). "Absent prejudice, or a strong showing of any [other relevant] factor, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (emphasis in original). "Dismissal with prejudice and without leave to amend is not appropriate unless... it is clear that the complaint could not be saved by amendment." Id.
Plaintiffs‟ five claims against County Defendants are brought under 42 U.S.C. § 1983. To prevail in a §1983 civil action against state actors for the deprivation of "rights, privileges, or immunities secured by the Constitution and laws, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. Accordingly, the conduct complained of must have deprived the plaintiff of some right, privilege or immunity protected by the Constitution or laws of the United States." Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (internal citations omitted).
1. Violation of Fourth Amendment Rights, First Claim for Relief
Plaintiffs bring a claim under 42 U.S.C. § 1983 for violation of their Fourth Amendment rights. Plaintiffs allege that Defendants Guerrero and Mettler-Molen violated the Fourth Amendment by entering Plaintiffs‟ home without a warrant. However, County Defendants contend that Guerrero and MettlerMolen entered Plaintiffs‟ residence in reliance on law enforcement‟s prior entry, and that the FAC fails to allege that Plaintiffs refused law enforcement or CPS entry. Plaintiffs did not oppose dismissal of this claim, therefore it is dismissed against County Defendants, with prejudice.
2. Violation of Fourteenth Amendment Rights, Second Claim for Relief
Plaintiffs‟ second claim for relief under 42 U.S.C. § 1983 alleges that Guerrero and Ealunardo violated Plaintiffs‟ Fourteenth Amendment rights by removing JM from Plaintiffs‟ custody for one night, without first obtaining a warrant. The FAC alleges that these two Defendants visited the home, and JM was down the street in a police car during the visit. She was taken to a safe house for the night, and then brought by Guerrero to her grandmother‟s home in the morning. As an initial matter, County Defendants deny any liability for this decision, as they allege that the decision to remove was made solely by the police, and that removal was conducted solely by the police. However, the FAC alleges that the decision to remove JM was a joint decision by Ealunardo and Guerrero.
In deciding a motion to dismiss, the Court must take the allegations of the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Scheur, 416 U.S. at 236, Cruz, 405 U.S. at 322. Plaintiffs have plead facts showing that both police and CPS went to Plaintiffs‟ home, and both were in the home interviewing Plaintiffs at the same time, prior to the decision to remove JM. The FAC alleges that Guerrero and Ealunardo decided, prior to ending their interrogation of Alma, that the foster children residing in the home would be removed, that JM would be removed, and that Stephen would leave the home. Ealunardo then informed Alma of the joint decision. County Defendants question how Plaintiffs could know that the decision was a joint one, and argue that Plaintiffs do not give details of the decision-making conversation. County Defendants further argue that the FAC contains allegations that were not present in the original Complaint, and the new allegations should be disregarded. However, viewing the allegations in the light most favorable to Plaintiffs, the Court can reasonably infer that a joint decision was made. Furthermore, County Defendants contention that Plaintiffs are invoking a "team theory of liability" ...