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Barry Fox, Narcisa Fox, Individually and As Parents and Natural Guardians and Guardians Ad Litem of v. County of Sacramento

September 23, 2011



This matter comes before the Court on a Motion to Dismiss Plaintiff‟s First Amended Complaint (Doc. #16) brought by Defendants County of Sacramento, Scott Anderson, Rich Cockerton, Brendan McAtee, Elisa Olmo, Soka Om, Jason Walkup, Joy Pike, and City of Rancho Cordova (collectively "Defendants"). Defendants ask the Court to dismiss certain claims and Defendants in the First Amended Complaint("FAC", Doc. #14) filed by Plaintiffs Barry Fox, Narcisa Fox, individually and as parents and natural guardians and 2 Guardians ad litem of A.F., D.F., S.F., and M.F., minors, 3 collectively ("Plaintiffs"). Plaintiffs oppose the motion (Doc. 4 #17).*fn1


According to the FAC, on January 29, 2010, Narcisa Fox ("Mrs. 8 Fox") delivered her two and a half year old son M.F. into the care, 9 custody, and control of his baby sitter, Defendant Jasmine Delgado ("Delgado") at Delgado‟s home. That afternoon, Mrs. Fox received a telephone call from Delgado telling her that something was wrong with M.F.‟s feet and that Mrs. Fox should pick up M.F. When Mrs. Fox arrived at Delgado‟s mother‟s apartment, she found M.F. lying on a sofa in the living room, with pants on, but without shoes or socks. M.F.‟s feet were pink to red in color and appeared to have large water blisters and detached skin on their tops. Delgado told Mrs. Fox that the redness, blistering, and detached skin on M.F.‟s feet must have been caused by a bacterial infection.

Mrs. Fox and Delgado took M.F. to the Doctors Center Medical Group, Inc. in Fair Oaks. The attending physician directed Mrs. Fox to take M.F. to the Shriners‟ Burn Center Hospital in Sacramento. Mrs. Fox was told by a social worker and the attending physician that M.F.‟s injury was not from bacteria, but from a burn caused by M.F.‟s feet being immersed in scalding hot liquid.

At approximately 3:00 a.m. on January 30, 2010, Defendant Scott Anderson ("Anderson") and Brendan McAtee ("McAtee") placed the Minor Plaintiffs into temporary protective custody based on 2 suspected child abuse. Plaintiffs allege that Anderson and McAtee 3 did not have a warrant when they entered Plaintiffs‟ home. 4

On or before February 3, 2010, Defendants Elisa Olmo ("Olmo") 5 and Soka Om ("Om"), signed a document entitled "Detention Report" 6 and filed it with the Sacramento Superior Court‟s Juvenile 7 Division. Plaintiffs allege the Detention Report contained false 8 and misleading statements including the claims that the child was 9 dropped off by Mrs. Fox with the condition being present and that it buried exculpatory evidence concerning Delgado‟s statement on page 7. The Detention Report also contained allegations that Mr. Fox was defensive in his demeanor. The Detention Report resulted in the preparation and filing of Juvenile Dependency Petitions. Dependency Hearings began on February 3, 2010. On February 18, 2010, the Juvenile Court, after hearing testimony from Delgado, A.F., Mr. Fox, and Mrs. Fox, allowed A.F. and D.F. to return to the family home. S.F. was ordered to remain in a separate home and M.F. would join him upon his release from the hospital. The Juvenile Court imposed supervised visitation between Parent Plaintiffs and S.F. and M.F.

On March 18, 2010, Walkup and Pike signed the Jurisdiction/Disposition Report ("JDR") which reiterated all of the previous allegations in the Detention Report except that Mrs. Fox dropped off the child with Delgado with the condition already being present. The JDR also included a summary of the statement in which M.F. indicated he had been burned by Delgado‟s mother, a summary of a follow-up interview with Delgado, a summary of an interview with Delgado‟s mother, and an interview with the consulting physician at Shriners in which he said that the blisters would have manifested 2 within 15 to 20 minutes of M.F.‟s exposure to the scalding liquid. 3

On March 25, 2010, the Juvenile Court dismissed the Juvenile 4 Dependency Petitions without prejudice and restored the parental 5 rights of the Parent Plaintiffs. 6 On February 14, 2011 Plaintiffs filed a Complaint (Doc. #1). 7

Defendants filed a Motion to Dismiss (Doc. #8), but instead of 8 opposing the Motion to Dismiss, on May 2, 2011, Plaintiffs filed an 9 Amended Complaint (Doc. #14) without asking leave of the Court.*fn2

The FAC alleges eight causes of action: 1) violation of Plaintiffs‟ Fourth Amendment rights for the unlawful entering into Plaintiffs‟ home without a warrant and in the absence of exigent circumstances; 2) the unlawful taking of minor children without a warrant and in the absence of exigent circumstances; 3) depriving Plaintiffs of due process by failing to disclose relevant exculpatory evidence and by misrepresenting facts in the Juvenile Dependency Petitions, and by deliberate indifference to the rights of Plaintiffs to a fair and honest hearing; 4) suppression and misrepresentation of evidence and the continued separation of Plaintiffs and the continued removal of the minor plaintiffs from their home in violation and in deliberate indifference to Plaintiffs‟ due process rights under the Fourteenth Amendment; 5) Monell claim against the 2 county; 6)Monell claim against the city; 7) injunction against 3 county and city; and 8) negligence against Delgado. Defendants 4 move to dismiss certain claims and certain individual defendants in 5 the FAC (Doc. #16). 6 7


A. Legal Standard

1. Motion to Dismiss

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 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. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 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, 1950 (2009), citing Bell Atlantic 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." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rules of Civil Procedure 15(a).

"Dismissal with prejudice and without leave to amend is not 2 appropriate unless it is clear . . . that the complaint could not 3 be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 4 316 F.3d 1048, 1052 (9th Cir. 2003). 5

2. Section 1983

Plaintiff‟s claims against Defendants are brought under 42 7 U.S.C. § 1983. To prevail in a § 1983 civil action against state 8 actors for the deprivation of 9 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).

B. Claims for Relief

1. First and Second Claims for Relief

Defendants argue that the First and Second Claims for Relief should be dismissed against Olmo, Om, Pike, and Walkup, collectively ("CPS Defendants"), for failure to set forth specific facts. In their opposition, Plaintiffs admit that the First Claim for Relief does not purport to state claims against the CPS Defendants who are identified by their true names, except to the extent that it may later be discovered that one or more of the named CPS Defendants was a DOE defendant. Plaintiffs further ...

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