United States District Court, E.D. California
JOEL RAMIREZ, individually & as successor-in-interest to Joel A. Ramirez, Jr., and GLORIA VIZCARANDO, individually & as successor-in-interest to Joel A. Ramirez, Jr., Plaintiffs,
COUNTY OF TULARE, MARGARET PINEDA, ERICA SOTO, ANNA ZAVALA, JAIME ZAVALA, FOSTER FAMILY HOME AND SMALL FAMILY HOME INSURANCE FUND OF THE STATE OF CALIFORNIA, DOES 1-10, Defendant
For Joel Ramirez, individually and as successor-in-interest to Joel A. Ramirez, Jr., Gloria Vizcarando, individually and as successor-in-interest to Joel A. Ramirez, Jr., Plaintiffs: John Laurence Rozier, LEAD ATTORNEY, Nelson and Rozier, Visalia, CA.
For County of Tulare, Margaret Pineda, Erica Soto, Defendants: Kathleen A. Taylor, LEAD ATTORNEY, Tulare County Counsels Office, Visalia, CA.
For Anna Zavala, Jaime Zavala, Defendants: Mathew Leon Walker, LEAD ATTORNEY, Stephanie Joy Tanada, Lewis Brisbois Bisgaard & Smith, San Bernardino, CA.
MEMORANDUM AND ORDER RE: MOTION TO DISMISS AND ORDER TO SHOW CAUSE
WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE.
Plaintiffs Joel Ramirez and Gloria Vizcarando brought this action to recover for the untimely death of their son while he was under the care of foster parents Anna and Jaime Zavala. Presently before the court is defendants Anna and Jaime Zavala's motion to dismiss plaintiffs' civil right claim for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
I. Factual and Procedural Background
Plaintiffs are the natural parents of the deceased Joel Ramirez, Jr. (First Am. Compl. (" FAC") ¶ 3.) On August 22, 2013, plaintiffs' son, then two-and-a-half years old, was removed from their home and placed under the jurisdiction of the Tulare County Superior Court, Juvenile Division. (Id. ¶ 4.) The Division placed Joel with foster parents Anna and Jaime Zavala. (Id.) Plaintiffs allege that at the time, the social worker making the placement knew that Joel was seriously ill, complaining of severe stomach problems, vomiting, and needed immediate medical attention. (Id.) According to plaintiffs, the social worker informed the Zavalas of Joel's illness. (Id. at 6.) Although the Zavalas agreed to take him to the doctor that same day, they failed to do so. (Id.) On August 25, Joel was rushed to the emergency room,  and he died the following day of acute ruptured appendix, acute peritonitis, septic shock, and severe dehydration. (Id. ¶ 4.)
Plaintiffs seek recovery for the wrongful death of their son, loss of consortium, and emotional distress. (Id. ¶ 2.) They bring a civil rights claim against defendants under 42 U.S.C. § 1983, alleging defendants violated the Fourteenth Amendment, as well as state law claims for negligence and breach of contract. The Zavalas move to dismiss plaintiffs' civil rights claim on the ground that they are not state actors. (Defs.' Mot. (Docket No. 25).)
On a Rule 12(b)(6) motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.
See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). To survive a motion to dismiss, a plaintiff must plead " only enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This " plausibility standard, " however, " asks for more than a sheer possibility that a defendant has acted unlawfully, " and where a plaintiff pleads facts that are " merely consistent with a defendant's liability, " it " stops short of the line between possibility and plausibility." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557).
" A § 1983 plaintiff must demonstrate . . . that the defendant acted under the color of state law, " meaning " 'the party charged with the deprivation must be a person who may fairly be said to be a [governmental] actor.'" Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). " 'Section 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrong.'" Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)). " When addressing whether a private party acted under color of law, we therefore start with the presumption that private conduct does not constitute governmental action." Sutton, 192 F.3d at 835 (citing Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992) (" Only in rare circumstances can a private party be viewed as a 'state actor' for section 1983 purposes.")).
Several appellate courts outside the Ninth Circuit have held that foster parents are not acting under the color of state law for § 1983 purposes.
See, e.g., Leshko v. Servis, 423 F.3d 337, 338 (3d Cir. 2005) (holding foster parents in Pennsylvania were not state actors for the purposes of § 1983); Hafez v. Madison, 348 Fed.Appx. 465, 467 (11th Cir. 2009) (" [F]oster parents are not state actors for section 1983 purposes."). However, absent a bright-line rule from the Ninth Circuit, the court must engage in a fact-based inquiry to determine whether the Zavalas were state actors when they failed to seek medical care for Joel. See Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983) (" The extent of state involvement remains a factual inquiry.");
Milburn by Milburn, 871 F.2d 474, 476 (4th Cir. 1989) (recognizing that whether foster parents are state actors is a fact-based inquiry).
" The [Supreme] Court has articulated a number of tests or factors to determine whether state action is 'significant.'" Lopez v. Dep't of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (quoting Howerton v. Gabica, 708 F.2d 380, 382-83 (9th Cir. 1983) (collecting cases)) (alteration in original). Those tests include public function, joint action, governmental compulsion or coercion, and governmental nexus.
See Kirtley, 326 F.3d at 1092. " Satisfaction of any one test is sufficient to find state action, so long as no countervailing factor ...