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Ae v. Yadira Portillo

June 20, 2011

AE,
PLAINTIFF,
v.
YADIRA PORTILLO, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTION TO FILE THIRD-PARTY COMPLAINT (Document 108)

Defendants Yadira Portillo, Courtney Wampler and CWA Felix ("Moving Defendants") filed the instant motion to file a Third-Party Complaint on April 26, 2011. The motion was heard on June 17, 2011, before the Honorable Dennis L. Beck, United States Magistrate Judge. Judith Chapman appeared on behalf of Moving Defendants. There were no other appearances.

BACKGROUND

Plaintiff AE, through his Guardian Ad Litem, Maribel Hernandez, filed the instant civil rights action on December 17, 2009. Plaintiff initially named the County of Tulare, Tulare County Health and Human Services, Tulare County Child Welfare Services, County Employees Celeste Abarca, Patricia Negrette, Yadira Portillo, Prudence Morris, Helen Rue, Courtney Wampler, Cwa Felix, Heidi Williams, Dr. Soto, Adrian Marquez, Tiffany Breen, Leticia Quezada, Marie Focha and Miriam Sallan and Family Builders Foster Care, Inc., as Defendants. The complaint also named Defendant Does 1 to 100, with Doe 51 identified as Plaintiff's former foster father and Doe 52 as Plaintiff's former foster mother. He alleged causes of action for (1) deliberate indifference to his risk of harm; (2) negligence pursuant to California Government Code sections 815.2, 815.4 and 815.6; (3) defamation and slander against Family Builders Foster Care; and (4) invasion of privacy by publication of private facts against Family Builders Foster Care.

According to the complaint, in September 2008, Defendants took legal and physical custody of Plaintiff. Plaintiff was transferred to Family Builders Foster Care ("Family Builders") and/or a foster family or foster parents. Plaintiff alleges that he was physically and sexually assaulted by a 17-year-old boy ("Older Boy") in the same foster home and contends that Defendants knew or should have known that it was unreasonable and recklessly dangerous to place him in the foster family with the Older Boy.

On February 26, 2010, Plaintiff filed a First Amended Complaint which added Tulare Youth Service Bureau as a Defendant. Tulare Youth Service Bureau and Defendant Adrian Marquez were excluded from the first cause of action for deliberate indifference.

On March 12, 2010, Family Builders filed a motion to dismiss. On April 7, 2010, the Court granted the motion to dismiss and permitted leave to amend the claims for deliberate indifference and negligence. The defamation and invasion of privacy claims were dismissed with prejudice.

On March 15, 2010, Defendants County of Tulare, Celeste Abarca, Patricia Negrette, Yadira Portillo, Prudence Morris, Courtney Wampler, Cwa Felix, Dr. Soto, Tiffany Breen, Marie Focha and Miriam Sallan filed a motion to dismiss the deliberate indifference and negligence claims. The Court granted the motion on April 14, 2010, dismissing the County, Ms. Morris, Ms. Negrette, Ms. Focha, Dr. Soto, Ms. Abarca, Ms. Breen and Ms. Sallam with prejudice.*fn1 The Court allowed Plaintiff to amend his deliberate indifference claim against Ms. Portillo, Ms. Wampler and Ms. Felix. Plaintiff filed his Second Amended Complaint on April 30, 2010. Pursuant to the parties' stipulation, Plaintiff filed a Third Amended Complaint on May 14, 2010. Neither the Second nor Third Amended Complaint included Family Builders as a Defendant.

The Third Amended Complaint ("TAC") named Ms. Portillo, Ms. Wampler, Ms. Felix, Ms. Williams, Adrian Marquez and Tulare Youth Service Bureau as Defendants. Plaintiff alleges causes of action for (1) deliberate indifference to his risk of harm (Portillo, Wampler, Felix and Williams); (2) negligence pursuant to California Government Code section 820 and California common law (all Defendants); and (3) defamation and slander (against Does 51 and 52).

On May 17, 2010, Defendants Marquez and Tulare Youth Service Bureau filed a motion to dismiss the negligence claim. The Court denied the motion on June 11, 2010, and Marquez and Tulare Youth Service Bureau filed an answer on June 21, 2010.

Defendants Portillo, Wampler and Felix filed a motion to dismiss on June 3, 2010. The motion to dismiss was denied on July 6, 2010, and they filed an answer on July 20, 2010.

On August 9, 2010, Family Builders requested formal dismissal with prejudice of the deliberate indifference claim and negligence claim based on Plaintiff's failure to name Family Builders in the Second or Third Amended Complaint. The Court granted the request on August 10, 2010, and dismissed Family Builders from the action.

On December 10, 2010, Moving Defendants filed their first motion for leave to file a Third-Party Complaint to name Family Builders, Alejandro Puentes and Sandra Ceballos as Third-Party Defendants. The Court denied the motion without prejudice on February 22, 2011.

On April 18, 2011, pursuant to the parties' stipulation, Plaintiff filed a Fourth Amended Complaint for the sole purpose of substituting ...


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