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Mann v. County of San Diego

United States District Court, Ninth Circuit

August 8, 2013

MARK MANN et al., Plaintiffs,
v.
COUNTY OF SAN DIEGO et al., Defendants.

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 77); (2) DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 80)

GONZALO P. CURIEL, District Judge.

In this civil rights case, Mark and Melissa Mann and their four minor children allege that defendant County of San Diego ("County") and several of its employees from defendant County of San Diego Health and Human Services Agency ("HHSA") violated the family's civil rights during a child abuse investigation that led to the removal of the minor children from the family's home. (ECF No. 1.) Before the Court are the parties' cross-motions for summary judgment.

Defendants move for summary judgment, or partial summary judgment, on issues of immunity. (ECF No. 77.) Plaintiffs have filed a response in opposition to Defendants' motion, (ECF No. 97), and Defendants have filed a reply in support of their motion, (ECF No. 101).

Plaintiffs move for partial summary judgment on four discrete factual and legal issues that form the basis of their eight causes of action.[1] (ECF No. 80.) Defendants have filed a response in opposition to Plaintiffs' motion, (ECF No. 96), and Plaintiffs have filed a reply in support of their motion, (ECF No. 100).[2]

The Court deems the parties' motions suitable for disposition without oral argument. See CivLR 7.1.d.1. Having considered the parties' submissions and the applicable law, and for the reasons that follow, the Court will GRANT IN PART and DENY IN PART Defendants' motion and DENY Plaintiffs' motion.

BACKGROUND[3]

Plaintiffs are two parents, Mark and Melissa Mann, who have four children: N.G.P.M., born in 2004, and three triplets born in 2006-N.E.H.M., M.C.G.M., and M.N.A.M. Mr. and Ms. Mann have a history of having difficulty controlling the behavior of their children and of disciplining their children by striking them with wooden spoons.[4]

The facts giving rise to this case began on April 5, 2010. At that time, Mr. Mann was responsible for caring for the children in the evening when Ms. Mann was at work. After making smoothies for the children, N.E.H.M. (one of the triplets) began misbehaving. Mr. Mann told the children to go upstairs to bathe while he cleaned up a smoothie that one of the children had spilled. A short time later, Mr. Mann discovered N.E.H.M. was splashing soapy water around the bathroom. Mr. Mann therefore struck N.E.H.M. once with a wooden spoon. Mr. Mann was apparently aiming for N.E.H.M.'s buttocks but missed and struck her lower back instead. Because N.E.H.M. was naked (in preparation for taking a bath), the spoon left a red welt with the outline of a spoon on N.E.H.M.'s lower back. N.G.P.M. reported that another of the triplets, M.N.A.M., was also splashing soapy water. Mr. Mann thus had M.N.A.M. step out of the bathtub, and Mr. Mann struck him once on the buttocks with the wooden spoon. This also left a mark.

The next day, April 6, 2010, N.E.H.M.'s preschool director called Mr. Mann after observing the mark left on her lower back. Mr. Mann went to the preschool and explained the circumstances of the prior night. The preschool director told Mr. Mann she was nonetheless required to report the incident as an instance of possible child abuse. The preschool director called HHSA's child abuse hotline in Mr. Mann's presence and reported the incident, including Mr. Mann's explanation and the fact that Mr. Mann was cooperative and willing to talk about the incident.

On the same day, April 6, 2010, a HHSA protective social worker, defendant Andrea E. Cisneros (now Hernandez) ("Cisneros") went to the Mann home to investigate, but no one was home.

On April 7, 2010, Cisneros went to interview N.G.P.M. (the then six-year old) at her school pursuant to California Penal Code § 11174.3.[5] N.G.P.M. stated she was comfortable speaking with Cisneros alone, and the interview lasted approximately fifteen minutes. N.G.P.M stated she felt safe at home and denied any domestic violence or sexual abuse. N.G.P.M. also stated that her parents sometimes "look upset and yell" and that her parents disciplined her by giving her a "time out or a whoopin', " which N.G.P.M. explained as three to four spanks on her bottom with her clothes on. N.G.P.M. denied that the triplets ever receive "whoopin's" but that, instead, they are given time outs.

After the school interview, Cisneros went back to the Mann home. Ms. Mann was home, and she let Cisneros in to physically inspect and interview the children. Cisneros photographed the mark on N.E.H.M.'s lower back. Ms. Mann stated Mr. Mann was stressed and that he had a "horrible" night with the children on April 5, 2010. Ms. Mann stated she was open to receiving services. Cisneros then left the home, stating she would next interview Mr. Mann before discussing her investigation results "in committee."

When Cisneros left the home, she consulted with her supervisor, defendant Lisa J. Quadros ("Quadros"). Quadros told Cisneros that Cisneros needed to return to the Mann home to have Ms. Mann sign a voluntary safety plan. Cisneros thus returned to the home and told Ms. Mann she needed to complete an additional form. Ms. Mann took issue with signing the form because it stated that Mr. Mann could not be left alone with the children and because Ms. Mann believed Cisneros should talk to Mr. Mann about the incident before she signed anything. Cisneros told Ms. Mann that if she did not want to engage in voluntary services, which included signing a safety plan, the children could be removed from the home. Ms. Mann then signed the safety plan.

After Cisneros left, Ms. Mann called Quadros to complain that Cisneros said she would talk to Mr. Mann and then discuss her findings with a committee before taking action but, instead, came back to get the safety plan signed. In her deposition, Quadros testified that Cisneros did not use best practices when she returned to the home, and that, if she had used such practices, the dynamic between Ms. Mann and Cisneros would have been different. Quadros said, for example, that Cisneros should have told Ms. Mann that Cisneros was stepping outside to talk with her supervisor and would return.

After interviewing Ms. Mann and the children on April 7, 2010, Cisneros went to Mr. Mann's work where she interviewed him. Mr. Mann recounted the events of the evening of April 5, 2010. Mr. Mann said he was open to receiving services. Cisneros then had Mr. Mann sign a safety plan, in which Mr. Mann agreed not to use physical discipline on the children. Mr. Mann also explained that Ms. Mann had called him and was very upset that her safety plan required that Mr. Mann not be left alone with the children. Thus, Mr. Mann and Cisneros agreed that his safety plan would require him to have a third party present only when help was needed to adequately care for the children. Similar to her conversation with Ms. Mann, Cisneros told Mr. Mann that his children could be removed from the home if he was not cooperative with voluntary services, which included signing a safety plan.

On April 8, 2010, Cisneros called Ms. Mann to inform Ms. Mann that Cisneros would need to return to the home to also photograph the mark on M.N.A.M.'s buttocks (the mark left by Mr. Mann when he had M.N.A.M. get out of the bath tub). Ms. Mann stated she did not want Cisneros to return to the home because of Cisneros' the previous day. Ms. Mann called Quadros to request a new social worker, which Quadros refused. Ms. Mann then asked to speak with Quadros' supervisor, defendant Gilbert Ferro ("Ferro"). After Ms. Mann talked to Ferro, Ferro agreed to have a more experienced social worker accompany Cisneros to the home.

Later that day, on April 8, 2010, Cisneros and a more experienced social worker, defendant Angela Redmond ("Redmond"), visited the home. While there, the social workers noticed an additional bruise on M.N.A.M.'s forehead, which Ms. Mann explained was the result of him bumping his head on the counter top. The social workers stated they would also need to photograph M.N.A.M.'s forehead, which upset Ms. Mann. Ms. Mann allowed the social workers to take the picture then told them to get out of the house. The social workers took the pictures and left.

That evening, on April 8, 2010, Ms. Mann called Quadros and left a message stating she "just lost it" when Redmond said they would need to photograph M.N.A.M.'s forehead. Ms. Mann stated, "it just feels manipulative like you're making this out to be something that it's really not." She continued, "I said go ahead take the picture and I'd like you to leave and probably wasn't as courteous as I could have been. But this is really difficult." Ms. Mann asked that Quadros return her call to discuss her concerns.

Quadros did not return Ms. Mann's call on April 8, 2010, so Ms. Mann called Quadros again on April 9, 2010. During that conversation, Ms. Mann asked what she could do to show the children were not in danger and volunteered to take the children to their pediatrician. Quadros asked that the children be taken to the Chadwick Center at Rady Children's Hospital ("Children's Hospital") for an examination.

That day, April 9, 2010, Mr. Mann took N.E.H.M. and M.N.A.M. to Children's Hospital where they met Cisneros. At Children's Hospital, a physician conducted a "Suspected Child Physical Abuse and Neglect Examination" on the two children in Cisneros' presence. The physician, non-defendant Dr. Joyce Adams, observed the mark on N.E.H.M.'s lower back and concluded it was consistent with Mr. Mann's story. Dr. Adams further stated, "It is clear that parents need additional help in managing the behavior of the children and learning effective non-physical ways of discipline." Dr. Adams did not make a mandatory report of suspected child abuse, noting the incident was "already reported to CPS." Regarding M.N.A.M., Dr. Adams observed a small red abrasion on M.N.A.M.'s buttocks. As for the bruise on M.N.A.M.'s forehead, Dr. Adams concluded the injury was "most likely accidental."

At some point around this time, and without first informing Mr. and Ms. Mann, Cisneros began preparing an "Application and Declaration for Protective Custody Warrant" ("Warrant Application") and a "Detention Report" to initiate dependency proceedings for the removal of the Mann children from their home. Over the following weekend, April 10-11, 2013, Cisneros prepared a draft Warrant Application and Detention Report. Cisneros' draft Detention Report was thirteen pages long and included entries from the Delivered Service Log ("DSL") indicating Mr. and Ms. Mann had complied with the requests of Cisneros and other HHSA employees. The draft Detention Report also contained facts regarding Ms. Mann's complaints to Quadros and Ferro, and their responses to Ms. Mann's complaints.

On Monday, April 12, 2013, Cisneros gave Quadros her draft Detention Report and Warrant Application. At Quadros' direction, Cisneros deleted approximately two pages of information. As identified by Plaintiffs, such deleted information included:

• a report by school officials on April 7, 2010, that they had not seen bruises or marks on the children before the one inflicted on N.E.H.M.;
• Cisneros' interaction with Ms. Mann on April 7, 2010, where Cisneros returned to the home after speaking with her supervisor to have Ms. Mann cooperate with Voluntary Services, including signing a safety plan, or risk the children being removed from the home;
• Ms. Mann's complaint to Cisneros on April 7, 2010, that Ms. Mann did not like the way Cisneros conducted herself upon returning to the home to have Ms. Mann sign a safety plan;
• a portion of the voice message Ms. Mann left for Quadros on the evening of April 8, 2010, in which Ms. Mann expressed concerns about Cisneros and Redmond and asked that Quadros call her back;
• Ms. Mann's request of Quadros on April 8, 2010, that the family be assigned a new social worker;
• Ms. Mann's conversation with Ferro, and the reason Redmond was sent with Cisneros to the home on April 8, 2010;
• Ms. Mann's call to Quadros on April 9, 2010, in which Ms. Mann suggested that the children be seen by their pediatrician;
• Mr. and Ms. Mann's agreement to take the children to Children's Hospital.
Cisneros also added language to the Detention Report, stating:
Mr. and Mrs. Mann agreed to receive Voluntary Services through the Agency; however they have not been cooperative in allowing the Agency to conduct an investigation. Mrs. Mann has been confrontational and hostile toward the Agency and has refused to cooperate with this worker [i.e., Cisneros]. The Agency has concerns of the safety of the children in the home and the parents' cooperation with a Voluntary Case.

Cisneros also added language, stating, "Mrs. Mann was not cooperative with me" as to the April 8, 2010 visit with Redmond. Notwithstanding these conclusions, Cisneros testified at her deposition that she could not recall an instance where either Mr. or Ms. Mann did not comply with a request by HHSA personnel. Cisneros agreed the parents ultimately cooperated with HHSA.

As noted by Defendants, the final Detention Report did include the following facts regarding the parents' cooperation:

• on April 7, 2010, Ms. Mann allowed access to the home and explained what occurred on April 5, 2010;
• on April 7, 2010, Ms. Mann cooperated in creating a safety plan;
• on April 7 and 8, 2010, Ms. Mann cooperated in allowing N.E.H.M. and M.N.A.M. to be photographed;
• Mr. Mann allowed the social workers into the home on April 8, 2010;
• on April 7, 2010, Mr. Mann explained the April 5, 2010 incident to Cisneros and admitted to striking the children;
• Mr. Mann said he did not want to strike the children again;
• Mr. Mann cooperated in creating a safety plan;
• Mr. Mann said he felt overwhelmed;
• Mr. and Ms. Mann agreed to receive voluntary services.

Based on the Detention Report and the Warrant Application (which incorporated much of the Detention Report), the Juvenile Court Division of the San Diego Superior Court ("Juvenile Court") issued a Protective Custody Warrant, and, on April 12, 2013, the children were removed from the home and sent to Polinsky Children's Center ("Polinsky").

Upon their arrival, a nurse took the children's vital signs, checked for lice, and otherwise did a cursory examination. The next morning, on April 13, 2013, a physician (the now dismissed defendant Dr. Nancy Graff), performed medical examinations on the four children, which she testified was done pursuant to a Juvenile Court general order and pursuant to a contract with the County.[6] The examinations included an assessment of the children's general appearance, behavior/mental status, skin, head, eyes, ears, nose/mouth/teeth, throat, neck, thyroid, lymph system, chest, lungs, heart/pulse, abdomen, muskuloskeletal system, and neurological health. The examinations also included a visual inspection of the children's external genitalia, including, for the girls, examination of the hymen. Blood and urine samples were also taken from the children. To examine the hymen, Dr. Graff would have the girls "drop their legs into a frog leg situation and generally separate the labia and look at the hymen, and that would be the extent of the exam."

Dr. Graff testified that, when children were brought in on allegations of abuse, she would look closely for any evidence of physical abuse, and would document and photograph any signs. Dr. Graff also testified that parents (even non-offending parents) were not notified of the examination and were not allowed to be present at the examination because parents were not allowed in Polinsky except for visitation and, even then, parents were to remain in the visitation area.

Around the same time as the examinations on April 13, 2010, Mr. and Ms. Mann were at the detention hearing at the Juvenile Court. After the detention hearing, Mr. and Ms. Mann signed consent forms, that included permission for HHSA to administer "medical, developmental, dental, and mental health care... while he or she is any facility operated by [HHSA]..., if the treatment is recommended by a licensed physician...." The consent forms further stated that "[m]edical... care can include: Routine admission and placement examinations, including blood test, immunization, cervical cultures... X-ray examination, local anesthesia, medical or psychiatric diagnosis or treatment."

Sometime after the detention hearing, HHSA submitted a report, pursuant to California's Child Abuse and Neglect Reporting Act ("Reporting Act"), that the agency had made a "substantiated" finding of physical abuse by Mr. Mann. This resulted in Mr. Mann being listed as a "substantiated" child abuser on California's Child Abuse Central Index ("CACI"). Along with two attorneys, Mr. Mann attended a hearing for the removal of his name from CACI but decided not to proceed with the hearing after being told he could only be represented by one attorney at the hearing.

The children were released from Polinsky on April 14, 2013, to the custody of their paternal grandmother who agreed to move into the Mann home. During the pendency of the court investigation, Mr. and Ms. Mann were not to be left alone with the children.

On April 17, 2013, Cisneros and Quadro were relieved from the case, and a court investigation social worker, defendant Kelly Monge ("Monge") was assigned to the case under the supervision of defendant Susan Solis ("Solis"). After Monge and Solis took over the investigation, they continued to have concerns that Mr. and Ms. Mann did not have sufficient control over their children and would again resort to inappropriate physical discipline. Despite this, Monge and Solis later said Mr. and Ms. Mann were "ideal clients." On June 24, 2010, Monge and Solis offered Mr. and Ms. Mann the opportunity to engage in "Voluntary Court Services." Mr. and Ms. Mann declined, however, because they would have been required to admit the allegations contained in HHSA's petition.

On July 14, 2010, after a trial, the Juvenile Court, Judge Cynthia Bashant, found that Mr. Mann's inflicted physical harm for disciplinary reasons and that the discipline was excessive. The Court found, however, that the physical harm itself was not excessive. The Juvenile Court observed that the real issue was whether there was a substantial risk that the child would suffer serious physical harm inflicted non-accidentally in the future and whether Mr. and Ms. Mann would continue to use corporal punishment as they had in the past. Ultimately, the Juvenile Court found there was not a substantial risk of future serious physical harm, concluding that the court did "not find by a preponderance of the evidence that the allegations in the petition have been proved." The Juvenile Court thus dismissed HHSA's petition.

Subsequent to the Juvenile Court's dismissal of HHSA's petition, Mr. Mann demanded that HHSA withdraw its "substantiated" finding of child abuse from CACI. HHSA declined, stating Mr. Mann's proper recourse was to request an administrative hearing where he could present the reasons why the "substantiated" finding should be withdrawn.

On April 7, 2011, Mr. and Ms. Mann, N.G.P.M., M.N.A.M., N.E.H.M., and M.C.G.M. ("Plaintiffs") filed a complaint against the County of San Diego, HHSA, Polinsky, Cisneros, Quadros, Redmond, Ferro, Monge, Solis (all nine collectively, "Defendants"), and five other now dismissed defendants. (ECF No. 1.) Plaintiffs assert eight causes of action for: (1) assault; (2) battery; (3) false imprisonment; (4) violation of federal civil rights under 42 U.S.C. § 1983; (5) Monell claims related to County policies; (6) intentional infliction of emotional distress; ...


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