United States District Court, E.D. California
A.P. a minor; ROBIN MAMMEN and LARRY MAMMEN individually and as Guardians ad litem for A.P., Plaintiffs,
COUNTY OF SACRAMENTO, STEPHANIE LYNCH, LUIS VILLA, MICHELLE CALLEJAS, DEBRA WILLIAMS, CRAIG LARKIN, RENAE RODOCKER, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
A. MENDEZ, JUDGE
before this Court is Defendants' motion for summary
judgment, ECF No. 80, which Plaintiffs oppose, ECF No. 94. On
March 7, 2017, the parties appeared for hearing, after which
the Defendants' motion was taken under submission. For
the following reasons, this motion is granted in part and
denied in part.
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
case involves a dispute between the Mammens, a foster family,
and the County of Sacramento (“County”). But, at
its core, this case concerns A.P., a child diagnosed with
autism and mental retardation. A.P.'s occupational
therapist and his pediatrician approved a “sensory
diet, ” which refers to the type and amount of sensory
input a person receives throughout the day. See
Jambeck Decl., ECF No. 95-1 (“Ex. A”), at COS
4638-40. Designed to address A.P.'s “sensory
processing deficits, poor self-regulation, self-injurious and
aggressive behavior, ” this sensory diet includes
“therapeutic listening, ” a music program with
electronically modified music. Id. at COS 4638. It
also includes “activities [that] provide proprioceptive
based input (i.e., input “received through the muscles
and joints [that] is generally calming to the body”).
Id. (for instance, “crawling through fabric
tubing, ” “being ‘smashed' like a
sandwich in beanbags, ” “jumping, ” and
“pushing heavy [laundry] loads”).
one activity in A.P.'s sensory diet in particular that
triggered this lawsuit-the “wrapping” technique.
This technique involved wrapping A.P. like a
“burrito” in stretchy fabric or a lightweight
blanket. See id. Once the County learned Ms. Mammen
wrapped A.P., the County prohibited the Mammens from using
A.P.'s entire sensory diet for two weeks, after which the
County banned only “wrapping.” See R.
Mammen Dep. 93:18-94:21; Undisputed Material Fact
(“UMF”), ECF No. 80-2, No. 100. See also
Ex. 24, ECF No. 86.
Mammens and A.P. (collectively, “Plaintiffs”) sue
the County, Stephanie Lynch, Luis Villa, Michelle Callejas,
Debra Williams, Craig Larkin, and Renae Rodocker
(collectively, “Defendants”). Third Am. Compl.
(“TAC”), ECF No. 49. Plaintiffs bring several
claims: (1) a Monell claim; (2) a § 1983
improper training and supervision claim; (3) § 1983
Fourteenth Amendment claims; (4) Rehabilitation Act §
504 claims; (5) ADA Title II claims; (6) an ADA intimidation
claim; (7) an Unruh Civil Rights Act claim; (8) a negligence
claim; and (9) an intentional infliction of emotional
distress claim. TAC at 1.
may grant summary judgment when a party shows that, as to any
claim or defense, “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). To withstand
summary judgment, the non-movant must show that the parties
dispute a fact that could affect the case's outcome.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
judgment involves burden shifting. Initially, the moving
party must show there is no genuine dispute as to material
fact, though it need not introduce affirmative evidence.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). This shifts the burden to the non-movant to go beyond
the pleadings and show that triable factual issues exist.
See id. at 324.
surveying the record for factual disputes, a court must view
the evidence in the light most favorable to the non-movant
and must not make credibility findings. See
Anderson, 477 U.S. at 255. But a court need not adopt
the non-movant's version of events if it is unreasonable
or if the record plainly contradicts it. See McLaughlin
v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
request judicial notice of Cal. Code Regs. tit. 22, sections
89372 and 89475.2. Req. For Judicial Notice, ECF No. 97. If
the requesting party provides necessary supporting
information, a court may judicially notice facts that
reliable sources can “accurately and readily”
determine. Fed.R.Evid. 201(b)(2), (d). Here, the Court grants
Plaintiffs' judicial notice request because it concerns
undisputed public records.
resolving a summary judgment motion, a court may consider
only admissible evidence. See Fraser v. Goodale, 342
F.3d 1032, 1036 (9th Cir. 2003). Plaintiffs argue Defendants
rely on 22 facts containing inadmissible hearsay and six
lacking foundation. See Pls.' Resp. to
Defendants' Undisputed Material Facts, ECF No. 96.
Defendants do not meaningfully respond to these objections.
See Reply, ECF No. 98. But Plaintiffs'
objections are unavailing because they contest evidence that
is either immaterial or admissible. See generally Burch
v. Regents of Univ. of California, 433 F.Supp.2d 1110
(E.D. Cal. 2006). The Court therefore overrules
Plaintiffs' evidentiary objections.
Defendants Larkin and Callejas
Plaintiffs' claims against Defendants Larkin and Callejas
fail as a matter of law. A defendant sued in his individual
capacity faces liability only upon a sufficient showing that
he personally participated in the challenged conduct. See
Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010). At
hearing, Plaintiffs conceded they have no evidence that
Defendants Larkin or Callejas participated in prohibiting
A.P.'s sensory diet or otherwise had an active role in
approving decisions challenged by Plaintiffs in this lawsuit.
See Hr'g Tr., ECF No. 100, at 4:13-14; 5:10-22.
Because Plaintiffs' evidence does not implicate either
Defendant, the Court grants summary judgment on all claims
against them. 2. Abandonment A party cannot revisit
abandoned theories on summary judgment. See Ramirez v.
City of Buena Park, 560 F.3d 1012, 1026 (9th Cir. 2009).
A party abandons an issue when it “has a full and fair
opportunity to ventilate its views” on it and instead
“removes the issue from the case.” Id.
(internal citations and quotations marks omitted).
argue Plaintiffs abandoned “their claims that A.P. was
improperly deprived prescription medication,
institutionalized or threatened with institutionalization,
discriminated against based on his race, denied adoption or
that his adoption was unjustifiably delayed, and deprived
required funding, or that the Mammen Plaintiffs'
Fourteenth Amendment rights were violated.” Reply at 2.
are partially correct. At hearing, Plaintiffs conceded to
abandoning their § 1983 improper training and
supervision claim (Second Claim) and Fourteenth Amendment
familial association claim (part of the Third Claim).
See Hr'g Tr. at 6:17-7:2. The Court grants
summary judgment on these claims. But, because Plaintiffs
never specifically brought race discrimination or deprived
funding causes of action, they did not abandon those. Also,
Plaintiffs' assertions about A.P's. prescription
deprivation, institutionalization, and adoption denial are
not claims, but rather arguments to support claims. See
generally TAC. This distinction is crucial.
Ramirez focuses on the claims, not the arguments,
parties abandon. Id. at 1026. So, Plaintiffs may, as
they did here, omit arguments in their summary judgment
opposition without abandoning a claim. Defendants'
abandonment argument as to these assertions fails.
plaintiff asserts a § 1983 claim against both a
municipal entity and a municipal official in his official
capacity, federal district courts routinely dismiss the
latter as duplicative. Harmon v. Cty. of Sacramento,
No. 12-cv-2758, 2016 WL 319232, at *18 (E.D. Cal. Jan. 27,
2016)(citing cases). Plaintiffs here assert their first and
third § 1983 claims against the County and
official-capacity defendants. See TAC at 18, 20. The
Court dismisses Plaintiffs' official-capacity claims
brought in their first and third causes of action as
Third Claim--Section 1983 Fourteenth Amendment
Substantive Due Process
Fourteenth Amendment substantive due process clause protects
both “a foster child's liberty interest in social
worker supervision” and the child's liberty
“from harm inflicted by a foster parent.” See
Tamas v. Dep't of Soc. & Health Servs., 630 F.3d
833, 842 (9th Cir. 2010). “Once the state assumes
wardship of a child, the state owes the child, as part of
that person's protected liberty interest, reasonable
safety and minimally adequate care . . . .”
Id. (internal citation omitted). So, once Defendants
placed A.P. in foster care, he enjoyed a special relationship
with the state and held a protectable interest against any
harm his foster parents might inflict.
apply a “deliberate indifference” standard to
substantive due process challenges in the foster care
context. Henry A. v. Willden, 678 F.3d 991, 1000
(9th Cir. 2012). To violate due process, state officials must
act with such deliberate indifference to the child's
liberty interest that their actions “shock the
conscience.” See Brittain v. Hansen, 451 F.3d
982, 991 (9th Cir. 2006) (internal citation omitted). The
deliberate indifference must be towards a known or obvious
risk of harm. See Tamas, 630 F.3d at 844. The
plaintiff must show (1) an objectively substantial risk of
harm and (2) the officials knew or should have known of that
risk. See id. at 1001 (citing Tamas, 630
F.3d at 844). A plaintiff meets the second element by showing
either (a) the official actually inferred that risk of harm
or (b) a reasonable official would have done so. See
id. (internal citation omitted). If a risk of harm is
“obvious, ” courts can assume the official knew
about it. See id. (internal citation omitted).
Plaintiffs claim the County and Defendants Lynch, Villa,
Williams, and Rodocker violated A.P.'s substantive due
process rights. See TAC at 20. The Court grants
summary judgment for Defendants as to the Mammens' due
process claim because they lack standing: Neither “de
facto” parental status nor “prospective
adoptive” parental status creates a cognizable liberty
interest. See Miller v. California, 355 F.3d 1172,
1176 (9th Cir. ...