ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(Doc. No. 130)
This is a civil rights action filed by Plaintiff Stanley Bradford Clarke ("Clarke"), now proceeding pro se, against Defendants County of Madera (the "County"); County of Madera Department of Social Services ("DSS"); Sandra Upton ("Upton") and Amparo Williams ("Williams"), both alleged to be agents of the County and employed as social workers with DSS. The operative complaint is the Seventh Amended Complaint ("7AC"). See Court's Docket, Doc. No. 122. In essence, the 7AC alleges a deprivation of constitutional rights under 42 U.S.C. § 1983. Clarke claims Defendants negligently and/or intentionally falsified or misrepresented evidence in juvenile dependency proceedings involving the placement of Clarke's son with the mother, that Defendants were negligent or abused their discretion in conducting the investigation and the juvenile dependency proceedings, and that Defendants' actions were motivated by racial bias or discrimination based on Clarke's American Indian ancestry and/or by gender bias based on preference for placement of a child with the mother rather than the father. Defendants now move for summary judgment in their favor. See Court's Docket, Doc. No. 130. Clarke opposes*fn1 the motion. See Court's Docket, Doc. No. 148. The court has considered the moving papers and, for the reasons that follow, Defendants' motion will be granted.
The original complaint in this action was filed in the Madera County Superior Court on September 20, 2006, and set forth a single cause of action for intentional tort against Upton and the County. The Superior Court sustained a demurrer to the complaint, and Clarke filed a First Amended Complaint on December 22, 2006. The Superior Court sustained a second demurrer, and Clarke filed Second Amended Complaint. The Superior Court again sustained the Defendants' demurrer, and Clarke filed a Third Amended Complaint on May 25, 2007. The Third Amended Complaint set forth causes of action under 42 U.S.C. §§ 1981 and 1983, and added DSS and Williams as Defendants.
Defendants removed the action to this court and filed a motion to dismiss on June 21, 2007. The court*fn2 granted the motion, with leave to amend. Clarke filed a Fourth Amended Complaint on November 19, 2007. Defendants again filed a motion to dismiss and a motion to strike. The court granted the motion to dismiss in part and denied it in part, and granted leave to amend on specific issues. Clarke, then represented by counsel, filed a Fifth Amended Complaint. Defendants filed another motion to dismiss, and another motion to strike. Clarke filed counter motions to amend the pleadings and to appoint Clarke as guardian ad litem for his minor son. The court granted the motion to dismiss in part, deferred ruling in part, and denied it in part. The court denied Clarke's application to be appointed as guardian ad litem. Clarke, this time representing himself, filed a Sixth Amended Complaint on July 27, 2009. Defendants filed another motion to dismiss. The court granted the motion in part and denied it in part. On April 16, 2010, Clarke filed his Seventh Amended Complaint. Defendants filed an answer on May 5, 2010.
Clarke alleges seven causes of action. The First and Second Causes of Action are for violations of 42 U.S.C. § 1983, and allege Defendants deprived Clarke of his constitutional rights and were motivated by racial and/or gender bias. The Third Cause of Action is for intentional infliction of emotional distress by Upton, DSS, and the County. The Fourth Cause of Action is for negligent infliction of emotional distress by Upton, DSS, and the County. The Fifth Cause of Action is for a violation of 42 U.S.C. §1985, and alleges Defendants conspired to deprive Clarke of his constitutional rights and were motivated by racial and/or gender bias. The Sixth Cause of Action is for a violation of 42 U.S.C. §1986, and alleges DSS and the County failed to prevent the deprivation of Clarke's rights. The Seventh Cause of Action is a Monell claim against DSS and the County, alleging that they established policies, procedures, customs or practices that led to violations of Clarke's constitutional rights.
This action arises out of juvenile dependency proceedings involving the minor son of Clarke and his former wife. Clarke contends his minor son reported incidences of child abuse by the child's mother, which Clarke reported to DSS employees. Pl.'s Decl. ¶ 3. On or about November 24, 2004, the Kern County Superior Court held a hearing to determine the placement of the minor. DUMF No. 2; PUMF No. 10; Court's Docket, Doc. No. 127 at 5, ¶ 3. The Superior Court ordered supervised visitation for the mother of Clarke's minor son, and ordered that she not sleep in the same bed as the minor. Id. The Kern County Superior Court further ordered that the minor be evaluated by Dr. Jay Fisher, a child psychologist. See id. In January 2005, a pediatrician noted signs of physical abuse and injuries on the minor's body. DUMF No. 3.; Doc. No. 127 at 5, ¶ 4. The pediatrician's notes relate that the minor's mother had inflicted these injuries by hitting the child with a wooden spoon. Id. On January 10, 2005, the minor was placed in the temporary care of Madera County Child Protective Services ("CPS") by court order, and was later placed in foster care. DUMF No. 4; Doc. No. 127 at 5, ¶ 4. DSS filed a dependency petition in the Madera County Superior Court, pursuant to California Welfare and Institutions Code section 300 (the "WIC 300 Petition"). DUMF No. 5. DSS personnel informed Clarke that the minor was required to remain in their custody until the dependency hearing, but both parents had weekly supervised visitation rights. DUMF No. 6; Pl.'s Depo. at 35:18-36:4; 75:15-76:6. The original WIC 300 Petition did not contain allegations or charges against Clarke. PUMF No. 2. All of the hearings on the WIC 300 Petition held prior to April 28, 2005, concerned allegations and charges against the minor's mother.PUMF No. 3.
A Child Sexual Abuse Response Team ("CSART") completed an interview of the minor in early 2005, with the Deputy District Attorney present, as well as a Madera Police Department detective, a District Attorney's Office investigator, and DSS employees Heather Sharp and Allyson Cookson. DUMF No. 7; Court's Docket, Doc. No. 127; Pl.'s Depo. at 59:4-19. The interview was conducted without Clarke or any relative present.Id. The CSART panel was unanimous in concluding that the minor was a credible witness with regard to his allegations of sexual abuse. DUMF No. 9; Pl.'s Depo. at 59:20-60:9. On February 21, 2005, Dr. Fisher issued his report on the psychological examination of Clarke's minor son. DUMF No. 9; Doc. No. 127 at 6, ¶ 6. The report indicated that the minor was very intelligent. Id. Dr. Fisher concludedthat the mother appeared to have hurt her son and placed him in a position where he was physically injured and/or physically abused. Id. Dr. Fisher recommended that the minor be returned to the custody of Clarke and that the mother have supervised visits with the child, obtain psychotherapy for her and the child, and take an anger management course.Id.
On April 11, 2005, the Madera County Superior Court held a dependency hearing, which was contested. DUMF No. 10; Doc. 127 at 6, ¶ 7. During the dependency hearing, the County introduced into evidence the CSART interview findings.*fn4 DUMF No. 11; Pl.'s Depo at 63:3-15; 91:11-23. Heather Sharp testified as to the process of the interview and the unanimous conclusion that the physical and sexual abuse allegations were substantiated. Id. On or about June 10, 2005, the Superior Court, the Honorable Thomas Bender presiding, issued its decision in the dependency case. DUMF No. 12; Doc. No. 127 at 6, ¶ 8. Judge Bender found there was one incident of physical abuse by the mother, and ordered that the minor become a dependent of the court. Id. Judge Bender ordered an alternating visitation schedule consisting of custodial time with both parents. Id.
In June 2005, after the Superior Court adjudicated the minor a dependent of the court, DSS assigned Defendants Upton and Williams to the case. DUMF Nos. 18-19; Upton Decl. ¶¶ 9-10. Upton and Williams were employees of the County, and were acting within the course and scope of their employment at the time of the events giving rise to this action. DUMF No. 13; Doc. No. 127 at 5, ¶ 1. Williams was Upton's supervisor on this case, and her only involvement was in a supervisory manner. DUMF No. 20; Upton Decl. at ¶ 10. Upton worked for DSS in various capacities from 1986 through 1994. DUMF No. 14; Upton Decl. ¶¶ 3-4. She returned to her employment as a social worker with DSS in February 2003 and retired in July 2010. Id. As an employee, Upton received a yearly training course in civil rights where the County's anti-discrimination policy was discussed. DUMF No. 15; Upton Decl. ¶ 6.
In the case involving Clarke's minor son, Upton was assigned to provide family maintenance services to the parents, and to ensure compliance with the court-ordered service plan. DUMF Nos. 22, 25, 27; Upton Decl. ¶¶ 12, 17. When Upton received the case file, she read and reviewed various reports and notes made from previous social workers assigned to the case, as well as the Superior Court's minute orders. DUMF No. 21; Upton Decl. ¶ 11. From reviewing the file, Upton understood that the Superior Court did not find any sexual abuse of the minor by his mother, but did find one incident of physical abuse of the minor by his mother. DUMF No. 23; Upton Decl. ¶¶ 13, 15. Upton also understood that the Superior Court found Clarke had abused the minor's mother,*fn5 and some of that abuse may have occurred in front of the minor. Id. The Superior Court also stated it was bothered by the behavior engaged in by Clarke, including coaching and rehearsal with the minor regarding sexual abuse by the mother. DUMF No. 24; Upton Decl. ¶ 14. Upton understood the Superior Court's discussion to mean that Clarke was prohibited from further coaching and rehearsal of the minor, and the Superior Court ordered that each parent not make derogatory statements about the other parent or discuss the case with the minor. Id. Upton contends that by the time she was assigned to the case, the court had determined that both parents were emotionally abusive to the minor, and had dismissed the sexual and physical abuse allegations. Upton Decl. ¶ 16.
Upton's first home visit with Clarke and the minor occurred on or about July 13, 2005, at Clarke's home in Madera. DUMF No. 28; Upton Decl. ¶ 18. On or about August 22, 2005, the minor was examined by Dr. Susan Napolitano, a court-appointed custody evaluator, who filed a suspected child abuse report with DSS. PUMF No. 7, Ex. A. On the morning of September 12, 2005, Clarke contacted Upton and informed her that because of his work schedule, the minor would be at the home of a babysitter, and that she had permission to conduct her monthly home visit at the babysitter's house. DUMF No. 31; Pl.'s Decl. ¶ 7; Upton Decl. ¶ 20. That same day, Clarke contacted the Madera Police Department, alleging that the mother abused the minor. DUMF No. 30; Upton Decl. ¶ 24. Clarke contends he informed Officers Pettersen and Wiles that there was a CPS case in Madera County Superior Court, and that custody was exchanged on a 50/50 basis between Clarke and the minor's mother. Pl.'s Decl. ¶ 8. On September 13, 2005, Clarke left a voicemail for Upton stating that he was going to take the day off and the minor would not be going to the babysitter. DUMF No. 32; Upton Decl. ¶21. Clarke did not tell Upton about the alleged abuse*fn6 during their September 12 conversation, or in his September 13 voicemail. DUMF No. 33; Upton Decl. ¶ 25. Upton did not respond to the voicemail. Pl.'s Decl. ¶ 9.
On September 14, 2005, the attorney representing the minor's mother contacted Upton inquiring about the location of the minor. DUMF No. 34; Upton Decl. ¶ 22. On September 15, 2005, unaware of the abuse allegations and Clarke's contact with the Madera Police Department, Upton was told that DSS wanted to file a missing persons report. DUMF No. 35; Upton Decl. ¶23. Later that day, the Madera Police Department informed DSS that they were in contact with Clarke and that he and the minor would come to the police department in the afternoon. DUMF No. 37; Upton Decl. ¶ 23; Pl.'s Decl. 10. Upton met Clarke and the minor at the Madera Police Department on September 15, 2005. DUMF No. 38; Upton Decl. ¶ 10. A police officer informed Upton that Clarke filed an abuse report on September 12, 2005. DUMF No. 39; Upton Decl. ¶ 24. Upton was also informed that another officer had advised Clarke not to release the minor to his mother, as law enforcement did not know he was a dependent of the juvenile court. DUMF No. 39; Upton Decl. ¶ 26.
On September 15, 2005, Upton took the minor to Dr. Aftab Naz to examine the alleged physical abuse. DUMF No. 40; Upton Decl. ¶27. Based on her conversations with Dr. Naz, Upton understood that he found no injuries or discoloration*fn7 to the minor's genitals. DUMF No. 41; Upton Decl. ¶28, Ex. C. As a result of Dr. Naz's findings of no physical injury, Upton released the minor to his mother, per her supervisor's instructions. DUMF No. 43; Upton Decl. ¶ 30. DSS informed Upton that the minor's attorney filed a petition pursuant to California Welfare and Institution Code section 388 to modify the juvenile dependency ruling, seeking to remove the minor from Clarke's care and placing him in his mother's care. DUMF No. 46; Upton Decl. ¶ 32. Upton notified Clarke of the section 388 petition hearing scheduled for September 16, 2005.
DUMF No. 47; Upton Decl. ¶ 33. Upton attended the ex parte hearing on September 16, 2005, but did not testify. DUMF Nos. 48-49; Upton Decl. ¶¶ 34-35. Clarke's attorney requested an evidentiary hearing. DUMF No. 51; Upton Decl., Ex. B at 4:6-12. The Superior Court granted the request for evidentiary hearing, but denied Clarke's attorney's request for a return of the child to Clarke and for a second CSART interview. DUMF Nos. 52, 57-58; Upton Decl., Ex. B at 5:13-15. The Superior Court granted the section 388 petition for modification on a temporary basis pending the evidentiary hearing, and removed the child from Clarke's care. DUMF No. 59, 62; Upton Decl., Ex. B at 5:20-24. The Superior Court stated that Clarke would have supervised visitation upon further psychological evaluation. DUMF No. 60; Upton Decl., Ex. B at 5:25-6:3.
Clarke's attorney further indicated to the Superior Court that the parties had agreed to remove Upton from the case and requested that the judge implement that agreement. DUMF No. 64; Upton Decl., Ex. B at 12:2-10. The Superior Court instructed Clarke that it would not remove Upton from the case, but Clarke could file a motion to do so if he wished. DUMF No. 66; Upton Decl., Ex. B at 12:19-21. It appears Clarke never filed such a motion. DUMF No. 67; Upton Decl. ¶ 36. Clarke contacted the Madera County Grand Jury in July and September 2005 and made a formal complaint against DSS alleging indifference to his allegations of child abuse. Pl.'s Decl. ¶ 13. The Grand Jury investigated Clarke's claims and published a final report in 2006. Id.
In advance of the evidentiary hearing on the minor's petition for modification, Upton prepared a social study report dated November 8, 2005, for the Superior Court. DUMF Nos. 68, 69; Upton Decl. ¶¶ 38-39, Ex. C. The social study report discussed 's violations of the June 10, 2005 dependency ruling, including the fact that Clarke continued to coach the minor, and that he made derogatory statements about the other parent in front of the minor. DUMF No. 70; Upton Decl. ¶ 40, Ex. C. Clarke contends Upton deliberately omitted from her report the third page of Dr. Napolitano's August 22, 2005 report. See Court's Docket, Doc. No. 136; Upton Decl., Ex. C. Clarke alleges this page contained information detailing a new case of abuse that occurred after the minor had returned home from foster care, which Upton failed to investigate properly.*fn8
Upton contends she sent the full report to her supervisor for review, who in turn sent it to the court supervisor. DUMF No. 84; Upton Decl. ¶ 56.
The evidentiary hearing was continued multiple times to April 18, 2006. DUMF Nos. 72-73; Upton Decl.¶¶ 42-43. Upton did not testify. DUMF No. 73; Upton Decl. ¶ 43. The Superior Court also continued the statutory six-month status review pending its ruling on the section 388 petition to modify. DUMF No. 75; Upton Decl. ¶ 45. Upton prepared a six-month status report for the court's review. Id.; Upton Decl., Ex. D. The Superior Court heard the six-month status review on July 18, 2006, and found that the minor was to remain a dependent of the Madera Juvenile Court. DUMF No. 77; Upton Decl. ¶ 47. Upton later became aware that Clarke had filed, or was about to file, a lawsuit against her, and she wrote a letter to the heads of DSS's Child Welfare Department stating that she needed to be removed from the case. DUMF No. 78; Upton Decl. ¶ 43. As a result, in or about September 2006, the case was assigned to another social worker. Id. Clarke eventually regained joint physical and legal custody of the minor on September 18, 2007. See Court's Docket, Doc. No. 148 at 12.
Upton claims she did not learn of Clarke's claim of Native American ancestry until a hearing on February 6, 2006. DUMF No. 79; Upton Decl. ¶ 50. DSS provided Clarke with the Indian Child Welfare Act documents, but all of the tribes contacted by Clarke informed DSS that Clarke was not a member of their tribe. DUMF No. 80; Upton Decl. ¶ 51. Upton's husband of forty-five years is of Native American ancestry and so are her children. DUMF No. 81; Upton Decl. ¶ 52. During her employment with DSS as a social worker in the Family Maintenance Unit, Upton ...