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Akey v. Placer County

United States District Court, E.D. California

March 20, 2015

RACHAEL AKEY, an individual, and N.D., a minor, by Rachael Akey as Guardian ad litem, and RYAN CORNACCHIOLI, an individual, and LINDA CLAYTON, an individual, Plaintiffs,
PLACER COUNTY, CALIFORNIA; SCOTT MYERS, in his official capacity and as an individual; and GLORIA SUTTON, in her official capacity and as an individual, Defendants.


KIMBERLY J. MUELLER, District Judge.

Defendants Placer County, Scott Myers, and Gloria Sutton (collectively, "defendants") move to dismiss plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(6). Defs.' Mot., ECF No. 9. Plaintiffs oppose the motion. Opp'n, ECF No. 11. The court decides the matter without a hearing. As explained below, the court GRANTS in part and DENIES in part defendants' motion. To the extent the court grants the motion, it does so with leave to amend in the event plaintiffs are able to amend while complying with Federal Rule of Civil Procedure 11.


On October 12, 2014, plaintiffs filed a complaint containing thirty-one causes of action for constitutional violations under 42 U.S.C § 1983 and related state law claims against defendants. Compl., ECF No. 1.

• Under federal law, plaintiffs Akey, her minor son N.D. and her husband Cornacchioli allege violations of procedural due process against all defendants. Id. ¶¶ 51-57, 63-74, 86-98, 108-114, 121-130, 164-194. Akey and N.D. allege unlawful interference with the parent-child relationship against all defendants. Id. ¶¶ 58-62, 75-85, 99-107, 115-120, 131-141, 153-163.
• Under state law, plaintiffs Akey and N.D. allege 1) violations of California Civil Code 52.1(A) ("Bane Act"); and 2) interference with parent-child relationship against defendants Sutton and Myers, a common law claim. Id. ¶¶ 195-214, 220-239.
• All plaintiffs plead respondeat superior liability under California Government Code § 815.2(A) and/or 815.6 against defendant Placer County. Id. ¶¶ 215-219, 220-244, 256-261, 272-277.
• Plaintiff Clayton individually pleads a claim titled "direct witness to intentional tort" against defendants Sutton and Myers. Id. ¶¶ 262-271.
• Plaintiffs seek general damages of an estimated $900, 000, including but not limited to a) attorneys' fees and costs incurred in connection with the previous court determination restoring Akey's custody (at least $75, 000); b) loss of earning capacity (approximately $20, 000); c) interest and reimbursable costs of borrowing the sums necessary to pay attorneys' fees (approximately $36, 000); d) fees and costs for therapy for N.D.; e) damage to reputation; and f) severe emotional and mental distress caused by the loss of family relations. Compl. ¶¶ 56, 62, 72, 83, 94, 105. Only plaintiff Cornacchioli requests injunctive relief, in the form of removing his name from the California Department of Justice database as a "substantiated" child abuser, if his name listed. Id. at 38, 40.

On October 23, 2014, plaintiff Akey filed an unopposed motion to be appointed guardian ad litem for plaintiff N.D., which the court granted. ECF Nos. 8, 14. Defendants moved to dismiss plaintiffs' complaint on November 5, 2014. ECF No. 9. Plaintiffs filed an opposition on December 5, 2014 (ECF No. 11), and defendants replied on December 12, 2014 (ECF No. 13).


The claims in this case arise out of defendants' investigation into the welfare of plaintiff N.D., a minor. See Compl. at 1. Plaintiff Akey is N.D.'s biological mother, and Cornacchioli is his stepfather. Id. Together, they resided at the home of Akey's mother, plaintiff Linda Clayton, during the relevant time period. Id. At the time of the relevant events, N.D. was three years old. Id. ¶ 1. Defendant Placer County operates the Placer County Family and Children Services agency (FCS), which implements local, state, and federal laws and regulations concerning children's welfare. Id. ¶ 5. Defendants Sutton and Myers are social workers employed by FCS. Id. ¶ 6-7. Social workers "conduct investigations into children's welfare" and "recommend and/or take action to ensure the safety of children residing in Placer County, California." Id. ¶ 5.

On July 9, 2013, the Placer County Superior Court issued an order regarding N.D.'s custody. Id. ¶ 11. The order provided that Akey retained physical custody of N.D., but his biological father, Cameron Dupree, was to have unsupervised visits every other weekend and every Tuesday. Id.

Akey claims that on September 6, 2013, when she picked up N.D., "Dupree was flushed and slurring his words." Id. ¶ 16. In accordance with the custody order, Akey requested a drug test for Dupree. Id. The results of the drug test are not reported in the complaint. On September 7, 2013, Dupree requested a drug test for Akey, which came back negative. Id. ¶ 17. Akey took N.D. to school on Tuesday, September 10, 2013, where he was picked up by his father, Dupree, with whom he stayed that night. Id. ¶ 19. N.D. returned to his mother's custody when Akey picked him up from school on September 11, 2013. On September 12, 2013, FCS received a report from N.D.'s school that N.D. told a teacher "Cornacchioli had chocked [sic] and threatened to kill him."[1] Id. ¶ 20; Defs.' Mot at 2. Defendant Sutton was assigned to investigate the alleged incident. Id. Cornacchioli had been called away for military reserve activity and was away from home from September 6, 2013 until approximately 4:30 a.m. on September 10, 2013. Id. ¶ 15.

In her investigation, Sutton spoke with N.D.'s teacher, N.D., and Dupree. During Sutton's phone interview with Dupree, he mentioned N.D. had made the choking comment to him on the evening of September 10, 2013, but he did not inform anyone. Id. ¶ 21. After this conversation, Sutton, with defendant Myers' approval, decided to remove N.D. from Akey's custody and give custody to Dupree. Id. ¶ 22. Dupree picked up N.D. from school on September 12, 2013, and retained custody until March 20, 2014. Id. During this time, Akey's two other children remained in her custody, living with Cornacchioli and Clayton. Id. ¶ 23.

At approximately 1:02 p.m. on September 12, 2013, Sutton called Akey and informed her of the allegations. Id. ¶ 23. Akey pointed out there were no marks on N.D. and told Sutton Cornacchioli had not been in town from September 6, 2013 until September 10, 2013. Id. ¶ 24. Akey explained 1) "Cornacchioli had never harmed or threatened N.D;" 2) "Dupree had consistently made false allegations against her and Cornacchioli to gain full custody of N.D.;" 3) after an "extensive family court litigation and evidentiary trial, " Akey had been awarded full custody; and 4) Dupree "had a serious drug problem and had prior drug arrests and convictions." Id. ¶ 24. Sutton told Akey Dupree would be drug tested every day, and asked Akey to consent to the FCS order granting immediate and full custody to Dupree. Id. ¶¶ 25-26. Akey refused, and Sutton responded she would get a warrant to take custody of all of Akey's children. Id. Akey was "stunned, hurt, and confused" but refused to agree. Id. ¶ 23. Akey asked for Sutton's supervisor, and Sutton gave Akey Myers' name and number. Id. ¶ 27. Myers called Akey first, again asked for her consent, and explained when Akey would be interviewed in person and when the investigation would be complete. Id. ¶¶ 27-28. Akey again refused to give consent. Id. Regardless, N.D. remained with Dupree, and Akey's two other children remained with her. Id. ¶ 22.

Sutton interviewed Cornacchioli on September 17, 2013. Id. ¶ 29. He denied ever choking, threatening, or harming N.D. Id. Cornacchioli explained Akey was responsible for disciplining N.D., but that he had been involved with N.D. "longer and more deeply than his biological father." Id. He also explained he was out of town during the alleged choking incident. Id.

On or about September 20, 2013, defendants initiated a new family law proceeding in Placer County Superior Court seeking to make permanent the full custody given to Dupree after the alleged incident. Id. ¶ 22. During the proceeding, Sutton was asked if Dupree had been drug tested every day as she had promised Akey, and she stated under oath that he had. Id. ¶ 34. No drug test results were ever produced. Id. Further, she admitted she had not conducted a home assessment of Dupree, contrary to her representation in her report. Id. Sutton also admitted she had not run a criminal history of Dupree prior to giving him custody. Id.

Sutton and Myers wrote in the final FCS report dated September 25, 2013 that the claims against Cornacchioli were "substantiated." Id. ¶ 30. On or about March 20, 2013, an evidentiary hearing was held and the Placer County Superior Court issued a written order including the following factual findings: 1) "no evidence was presented of [Akey's] general neglect or failure to protect N.D." and 2) "no evidence was presented of stepfather, Ryan Cornacchioli's physical abuse in terms of having strangled/choked N.D." Id. ¶ 35.

On or about March 11, 2014, plaintiffs Akey and Cornacchioli filed a claim against all defendants under California Government Code § 810 et seq. based upon the same incidents and facts alleged in the complaint. Placer County rejected the claims on April 16, 2014 and the Judicial Council of California rejected the claims on or about April 25, 2014. Id. ¶ 36. Plaintiffs timely filed this action within the prescribed six month time period under California Government Codes §§ 905, 911.2 and 945.4.

Plaintiffs allege defendants Sutton and Myers failed to follow the applicable FCS policies and procedures as set forth in the FCS manual. Id. ¶ 37. Specifically, they allege defendants failed to:

1) make a timely, thorough and complete investigation that includes all of the safety and risk factors identified in the family and/or in the course of the investigation;
2) have N.D. examined by a physician;
3) properly ascertain if N.D. could differentiate between a truth and a lie;
4) ask permission of Akey, who was the primary custodial parent at the ...

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