On January 3, 2012, the magistrate judge filed findings and recommendations (Dkt. No. 35) herein which were served on the parties and which contained notice that any objections to the findings and recommendations were to be filed within fourteen days. On January 17, 2012, defendant County of Yuba, which contends it was erroneously sued as Yuba County Child Protective Services, filed objections to a portion of the proposed findings and recommendations (Dkt. No. 36), which have been considered by the court.
This court reviews de novo those portions of the proposed findings of fact to which an objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed findings of fact to which no objection has been made, the court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983).
The court has reviewed the applicable legal standards and concludes that it is appropriate to adopt the proposed findings and recommendations, except as provided herein. Accordingly, IT IS ORDERED that:
1. The Proposed Findings and Recommendations filed January 3, 2012, are adopted, except as provided herein.
2. Defendant County of Yuba's motion to dismiss (Dkt. No. 31) is granted in part and denied in part, as follows:
a. Plaintiff's first claim for relief, alleging a violation of Plaintiff's due process rights pursuant to 42 U.S.C. § 1983, is dismissed with prejudice to the extent it alleges a violation of plaintiff's Fourth Amendment and Fifth Amendment due process rights.
Insofar as Plaintiff's first claim for relief alleges a violation of Plaintiff's Fourteenth Amendment due process rights, Plaintiff's claim shall proceed. Defendants' argument that Plaintiff "is unable to show that any action or inaction by the COUNTY resulted in a custom, practice or policy," fails.
A local governmental entity "may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell v. New York Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In order to establish liability for governmental entities under Monell, Plaintiff will ultimately be required to prove: (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and (4) that the policy is the moving force behind the constitutional violation. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)).
In a Monell claim, there are three ways to show a policy or custom of a municipality: (1) by showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity; (2) by showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or (3) by showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate. Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 964 (9th Cir. 2008) (internal quotation marks and citations omitted).
In Plaintiff's second amended complaint, Plaintiff alleges, inter alia, that "[k]nowing of Fryson's dishonest proclivities, CPS supervisors empowered Fryson with a badge to prey upon the public and misuse her authority," and that "given the fact that FRYSON was placed on administrative leave by CPS for misconduct, CPS failed to properly supervise her while Fryson continued to act as a representative of CPS." Pl's Second Am. Compl., ECF No. 29, at 5-6.*fn1
Taking Plaintiff's factual allegations as true and construing them in the light most favorable to Plaintiff, it appears clear to the court that Plaintiff is alleging that Defendant Yuba County had a practice or custom of allowing employees placed on administrative leave to retain their badges, and that Defendant Yuba County specifically failed to supervise Fryson while she was acting as a representative of CPS. Thus, Plaintiff's first claim for relief, alleging a violation of Plaintiff's Fourteenth Amendment due process rights pursuant to 42 U.S.C. § 1983, sufficiently alleges that Defendant Yuba County had a policy for purposes of pleading a Monell claim.
b. Plaintiff's second claim for relief, alleging a violation of plaintiff's equal protection rights pursuant to 42 U.S.C. § 1983, is dismissed with prejudice.
c. Plaintiff's third claim for relief, alleging a claim of negligent supervision, hiring, and retention, is dismissed without prejudice. Plaintiff is granted leave to amend his complaint to properly assert such a claim.
d. Plaintiff's fourth claim for relief, alleging a claim of fraud, is dismissed without prejudice to the extent that it is a claim for direct liability against the County of Yuba ("County"), and Plaintiff is granted leave to amend his complaint to properly assert such a direct liability claim against the County. However, Plaintiff's fraud claim shall proceed against the County ...