United States District Court, E.D. California
MATTHEW MELLO, individually and as Successor-in-Interest to AIRABELLA MELLO, deceased, Plaintiff,
COUNTY OF SACRAMENTO; COUNTY OF SACRAMENTO, DEPARTMENT OF HEALTH AND HUMAN SERVICES; COUNTY OF SACRAMENTO, CHILD PROTECTIVE SERVICES; and DOES 1 through 100 inclusive, Defendants.
KIMBERLY J. MUELLER, Magistrate Judge.
Airabella Mello, plaintiff Matthew Mello's daughter, was visiting her mother and grandmother when she drowned in an unguarded swimming pool. Mr. Mello alleges defendants County of Sacramento, the Department of Health and Human Services, and Child Protective Services are liable for her death because despite notice, they did not investigate her mother and grandmother's alleged abuse and improper supervision, and dangerous conditions at their home. His complaint alleges several claims under both federal and state law. Defendants move to dismiss for failure to state a claim upon which relief can be granted. The parties presented their arguments at a hearing on February 27, 2015. John C. Miller appeared for Mr. Mello, and Taylor W. Rhoan appeared for defendants. After considering the parties' briefs and arguments at the hearing, the court GRANTS the motion with leave to amend.
The complaint includes the following allegations: Airabella was visiting her mother and grandmother's home in Sacramento on May 1, 2014. Compl. ¶ 18, ECF No. 1. The complaint indicates she fell in the pool and drowned during that visit. See id. ¶¶ 18-19. Defendants' officers had visited the home several times in the past to investigate claims of abuse, of dangerous conditions including the swimming pool, and of a lack of supervision and care for Airabella. Id.
The complaint makes no further specific factual allegations. It does include many paragraphs alleging defendants' failures in general terms. An example illustrates its general style:
Plaintiff is informed and believes, and thereon alleges that defendants have been engaging in far-reaching and improper procedures, policies and practices as it relates to the investigation of allegations of abuse of children, allegations of the failure to properly supervise and care for children and allegations to properly address the existence of dangerous conditions at locations at which minors reside, within their jurisdiction. Plaintiff is further informed and believes that such improper and/or lack of procedures, policies, customs, and practices has led to injuries and/or death[s] of numerous children in an unwritten policy, practice, procedure and custom of defendants. These procedures, policies, customs, and practices have been ratified by each of the defendants.
Id. ¶ 19. Mello seeks relief on three legal bases: California Civil Code section 52.1(b), otherwise known as the Bane Act; 42 U.S.C. § 1983 for deprivation of Fourteenth Amendment rights; and common law negligence.
Defendants advance five defenses: (1) the complaint inadequately pleads any underlying constitutional violation; (2) the complaint does not allege facts to show an official policy or custom as required by Monell v. New York Department of Social Services, 436 U.S. 658, 694 (1978); (3) the complaint omits any allegations of threats, intimidation, or coercion as required by the Bane Act; (4) the complaint describes no facts to show defendants breached a duty; and (5) the Department of Health and Human Services and Child Protective Services are duplicatively named.
In his opposition, Mello passes over the fifth argument, that municipal departments are not "persons" subject to liability under section 1983. See United States v. Kama, 394 F.3d 1236, 1239-40 (9th Cir. 2005); see also Smith-Berch, Inc. v. Baltimore Cnty., Md., 68 F.Supp.2d 602, 626 (D. Md. 1999) (collecting cases to this effect). At hearing, counsel confirmed these defendants may be dismissed. Defendants' motion is granted with prejudice as to the Department of Health and Human Services and Child Protective Services.
After reviewing the legal standard applicable to this motion, the court addresses each claim in turn.
II. LEGAL STANDARD
A party may move to dismiss for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The motion may be granted only if the complaint lacks a "cognizable legal theory" or if its factual allegations do not support a cognizable legal theory. Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court assumes these factual allegations are true and draws reasonable inferences from them. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A complaint need contain only a "short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), not "detailed factual allegations, " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned accusations; "sufficient factual matter" must make the claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or formulaic recitations of a cause's elements do not alone suffice. Id. Evaluation under Rule 12(b)(6) is a context-specific task drawing on "judicial experience and common sense." Id. at 679. And aside from the complaint, district courts have discretion to examine documents incorporated by reference, Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012); affirmative defenses ...