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McManus v. County of San Diego

United States District Court, S.D. California

July 10, 2015

CARLOS McMANUS SR., Plaintiff,
v.
COUNTY OF SAN DIEGO; CITY OF SAN DIEGO; POLICE OFFICER ERNESTO LUNA; POLICE OFFICER MARI KONG; SGT. THOMAS SULLIVAN; POLICE OFFICER ANTONIO JOHNSON; DETECTIVE DAN BUROW; LT. A. SMITH; SGT. WILLS; JENNIFER MORK; WANJIRU GOLLY; and CHARLES COX SR., Defendants.

ORDER GRANTING MOTION TO DISMISS; GRANTING LEAVE TO AMEND

JEFFREY T. MILLER, District Judge.

Defendants Wanjiru Golly, Jennifer Mork and County of San Diego ("County") move to dismiss the First Amended Complaint ("FAC") for failure to state a claim. Plaintiff opposes the motion. Pursuant to Local Rule 7.1(d)(1), the court finds the motion appropriate for resolution without oral argument. For the reasons set forth below, the court grants the motion to dismiss and grants Plaintiff 15 days leave to amend from the date of entry of this order.

BACKGROUND

The FAC, filed on May 19, 2015, alleges five claims for relief: violation of 42 U.S.C. §1983, a Monell claim, child abduction, intentional infliction of emotional distress, and negligence. The parties' submissions indicate that the events giving rise to Plaintiff's claims concern investigations into possible child abuse. Plaintiff's claims arise from the following generally described allegations.

Plaintiff alleges that his 14 year-old minor son, C. M., was removed from his care on two separate occasions. On or about January 23, 2013, Defendant Charles Cox, a private party, allegedly removed C. M. from Plaintiff's home against Plaintiff's wishes. (FAC ¶29). Believing that Defendant Cox abducted C. M., Plaintiff reported the incident to Defendant City of San Diego Police Department. After the police officers obtained physical custody of C.M., they transported him to the Polinsky Children's Center ("Polinisky"). (FAC ¶31). At Polinsky, C. M. was interviewed by social workers and medical professionals conducted a medical examination of C. M. and found no signs of physical injury or abuse. (FAC ¶35-36).

On April 9, 2013, Defendant San Diego Police Officer Antonio Johnson allegedly requested that Defendant Jennifer Mork, a social worker employed by County, assist in removing C. M. from Plaintiff's custody and transporting him to Polinsky. (FAC ¶42). Plaintiff alleges that Mork, and other Defendants,

interviewed, questioned, interrogated, and/or examined C.M. This interview and examination was performed without Plaintiff's knowledge or consent, without notice to the Plaintiff, without a warrant or court order authorizing the examination, and in the absence of exigent circumstances. In addition, the Plaintiff was completely excluded from C.M.'s interview and examination, and was not permitted to be in close proximity or another nearby area.

Id. Also, on April 9, 2013, Defendant Golly, a social worker employed by County, interviewed C.M. without Plaintiff's approval, obtaining a warrant, or exigent circumstances. (FAC ¶49). On April 11, 2013, Golly also allegedly made an unannounced visit to C. M.'s school and interviewed him "without notice to Plaintiff, without a warrant or court order authorizing the examination, and in the absence of exigent circumstances." (FAC ¶51).

DISCUSSION

Legal Standards

General Pleading Requirements

Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (the complaint's allegations must "plausibly suggest[]" that the pleader is entitled to relief); Ashcroft v. Iqbal, 556 U.S. 662 (2009) (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the mere possibility of misconduct). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678. Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).

Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences ...


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