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A.P. v. County of Sacramento

United States District Court, E.D. California

April 25, 2017

A.P. a minor; ROBIN MAMMEN and LARRY MAMMEN individually and as Guardians ad litem for A.P., Plaintiffs,



         Now 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.


         This 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”).

         It is 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.

         The 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.

         II. OPINION

         A. Legal Standard

         A court 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, 248 (1986).

         Summary 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.

         When 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).

         B. Judicial Notice

         Plaintiffs 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.

         C. Evidentiary Objections

         In 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.

         D. Discussion

         1. Defendants Larkin and Callejas

         All of 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).

         Defendants 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.

         Defendants 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.

         3. Official Capacity

         When a 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 duplicative.

         4. Third Claim--Section 1983 Fourteenth Amendment

         a. Substantive Due Process

         The 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.

         Courts 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).

         Here, 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. ...

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