JOHN BENAVIDEZ; HEATHER BENAVIDEZ; J.C.B., a minor; A.J.B., a minor by and through their Guardian Ad Litem Diana Benavidez, Plaintiffs-Appellants v. COUNTY OF SAN DIEGO; JENNIFER LISK; BENITA JEMISON, Defendants-Appellees, and SAN DIEGO HEATH AND HUMAN SERVICES AGENCY; POLINKSY CHILDREN‘S CENTER; DOES, 1 through 50 inclusive, Defendants.
No. 19-55274
United States Court of Appeals, Ninth Circuit
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN BENAVIDEZ; HEATHER BENAVIDEZ; J.C.B., a minor; A.J.B., a minor by and through their Guardian Ad Litem Diana Benavidez,
Plaintiffs-Appellants,
v.
COUNTY OF SAN DIEGO; JENNIFER LISK; BENITA JEMISON,
Defendants-Appellees,
and
SAN DIEGO HEATH AND HUMAN SERVICES AGENCY; POLINKSY CHILDREN‘S CENTER; DOES, 1 through 50 inclusive,
Defendants.
No. 19-55274
D.C. No. 3:18-cv-00558-CAB-AGS
OPINION
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted July 7, 2020
Pasadena, California
Filed April 12, 2021
Before: Marsha S. Berzon and Daniel P. Collins, Circuit Judges, and Gary S. Katzmann,* Judge.
Opinion by Judge Katzmann;
Concurrence by Judge Collins
SUMMARY**
Civil Rights
The panel affirmed in part and reversed in part the district court’s dismissal of an action brought pursuant to
The panel first held that the district court correctly ruled that the Rooker-Feldman doctrine did not bar the exercise of subject matter jurisdiction over this case. The panel held that plaintiffs’ claims were not a de facto appeal from the juvenile court orders. Instead, plaintiffs alleged that the misrepresentations and inaction by social workers and other
County employees resulted in violations of their constitutional rights.
The panel held that the amended complaint sufficiently alleged facts in support of a reasonable inference that County social workers committed judicial deception that allowed them to be held liable for the resulting unconsented-to medical examinations. The amended complaint alleged that social workers knowingly and falsely represented to the juvenile court that they had made reasonable efforts to notify the parents about the medical examinations. The parents did not learn of the examinations, however, until after their children were released from custody. The allegations supported a plausible inference that the social workers submitted their report and request for court authorization with at least a reckless disregard for the truth and the alleged misrepresentations were material to the granting of the juvenile court’s orders.
The claims were also sufficient under
The panel held that the social workers were not entitled to qualified immunity for the alleged unconstitutional judicial deception and unconstitutional medical examinations. The panel held that this court’s precedent established the right to be free from judicial deception in child custody proceedings. Thus, a reasonable social worker would understand that providing false information concerning notification to parents when requesting a
juvenile court order for a medical examination on minors in protective custody would violate or at least disregard a substantial risk of a violation of the parents’ rights. The panel therefore reversed the district court’s dismissal of the claims against the social workers on qualified immunity grounds and remanded for proceedings consistent with the panel’s opinion.
The panel held that none of the allegations regarding the County’s alleged unconstitutional policy, practice, custom, or failure to train its employees provided factual support for Monell liability. The panel noted that plaintiffs failed to provide anything more than the 2015 County policy pertaining to parental consent, which was allegedly violated, and the facts of a single incident of an unconstitutional medical examination and judicial deception. These allegations were insufficient to establish a Monell claim. Therefore, the panel affirmed the district court’s dismissal of plaintiffs’ claims against the County.
Concurring in the judgment, Judge Collins stated that this was a relatively straightforward case that did not warrant the extended discussion and broader statements contained in the majority opinion. Judge Collins wrote that the complaint’s allegations were sufficient to state a plausible claim of knowing and intentional judicial deception that escaped qualified immunity. He also agreed that plaintiffs’ Monell claim was properly dismissed with prejudice, because the operative complaint did not allege sufficient facts to support such a claim.
COUNSEL
Donnie R. Cox (argued), Law Office of Donnie R. Cox, Oceanside, California; Paul W. Leehey, Law Office of Paul W. Leehey, Fallbrook, California; for Plaintiffs-Appellants.
Jeffrey P. Michalowski (argued) and Christina Snider, Senior Deputies; Thomas E. Montgomery, County Counsel; Office of County Counsel, San Diego, California; for Defendants-Appellees.
KATZMANN, Judge:
This appeal turns on the sufficiency of allegations in an amended complaint asserting judicial deception and violation of other constitutional rights in securing a court order resulting in medical examinations of minors without notice to or consent of the parents. The Benavidezes, John and Heather Benavidez (“Parents”) and their children J.C.B. and A.J.B. (“Minors”), assert claims against the County of San Diego, the San Diego County Health and Human Services Agency (“HHSA”), the Polinsky Children’s Center (“PCC”) (collectively, “the County”) and the County’s social workers, Jennifer Lisk and Benita Jemison (“Lisk and Jemison”), based on medical examinations of Minors during their time in protective custody. The Benavidezes seek to hold Lisk and Jemison liable under
court dismissed with prejudice the claim against Lisk and Jemison based on qualified immunity and the claim against the County based on a failure to allege Monell liability. We affirm in part and reverse in part.
FACTUAL AND PROCEDURAL HISTORY
The Second Amended Complaint (“SAC”) alleges as follows: Acting on behalf of the County, HHSA social workers Lisk and Jemison obtained a protective custody warrant and, with police assistance, removed the Minors from their home to PCC. Three days later, on March 21, 2016, a California juvenile court held a detention hearing to review the removal of the Minors and issued an “Order Authorizing Medical Examination and Treatment” for each of the Minors (collectively, “Orders”). The Parents were present at the detention hearing. However, neither Lisk, Jemison, nor any County employee discussed the medical examinations with the Benavidezes before or after the hearing. Furthermore, there was no discussion of medical examinations at the hearing.
Prior to this hearing, the County submitted a Detention Report to the court. The Report notably did not contain any discussion of efforts made to obtain the Parents’ consent to medical examinations of the Minors. The SAC alleges that neither Lisk nor Jemison nor any County employee sought the Parents’ consent or advised them of their right to be present
As a result of the Orders, the Minors were subjected to medical examinations at PCC on March 22, 2016, one day after the hearing and four days after the Minors were removed from their home. The medical examinations included “a full body inspection including the children’s genital and/or anal areas, obtaining urine to test, and drawing blood and/or vaccinations.” The Parents were not informed of these medical examinations until after they happened, did not consent to these medical examinations, and were not present or given the opportunity to be present at these medical examinations. The Parents “did not become aware that the examinations had occurred until after the Minor Plaintiffs were released from PCC.” The Benavidezes then appealed the juvenile court decisions involving removal of the Minors from their home in California state court but did not there challenge the medical examinations or related Orders.
The Benavidezes filed this action in the U.S. District Court for the Southern District of California on March 16, 2018. The Benavidezes amended their complaint on July 5, 2018, after the County filed a motion to dismiss. The district court dismissed their first amended complaint, concluding that it was a prohibited de facto appeal of the state court decision under the Rooker-Feldman doctrine, failed to allege constitutional violations, and failed to allege claims against the County. The district court dismissed the complaint with leave to amend. On November 9, 2018, the Benavidezes filed the SAC. On February 12, 2019, the district court again dismissed their complaint, this time with prejudice. The district court concluded that: (1) the Rooker-Feldman doctrine did not bar exercise of jurisdiction; (2) the Benavidezes alleged constitutional violations in the medical examinations; (3) the Benavidezes failed to allege a claim against Lisk and Jemison because the government
employees were entitled to qualified immunity; (4) the Benavidezes failed to allege a claim against the County because they did not allege “a direct causal link between a municipal policy or custom and the alleged constitutional deprivation”; and (5) further amendments would be futile, so the case was dismissed with prejudice. The Benavidezes timely appealed.
JURISDICTION
The district court had jurisdiction under
STANDARDS OF REVIEW
We review de novo a district court’s jurisdictional determination under the Rooker-Feldman doctrine, Manufactured Home Communities Inc. v. City of San Jose, 420 F.3d 1022, 1025 (9th Cir. 2005); a district court’s dismissal for failure to state a claim, Palm v. L.A. Dep’t of Water & Power, 889 F.3d 1081, 1085 (9th Cir. 2018); a district court’s decision on qualified immunity, Thompson v. Mahre, 110 F.3d 716, 721 (9th Cir. 1997); and a district court’s decision on municipal liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); see, e.g., Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011). We review for abuse of discretion a district
DISCUSSION
The Benavidezes’ appeal involves two primary issues: first, whether there is federal subject matter jurisdiction
where the County contends that the Rooker-Feldman doctrine bars this claim as a de facto appeal of a state court decision, second, whether the Benavidezes sufficiently pleaded section 1983 liability against Lisk and Jemison in light of qualified immunity and limited liability against municipalities under Monell. As to these issues, we hold that the Rooker-Feldman doctrine permits federal subject matter jurisdiction over this claim, that the Benavidezes adequately pleaded Lisk and Jemison’s section 1983 liability, and that the district court did not abuse its discretion by dismissing with prejudice the Benavidezes’ claims against the County.
I. The Rooker-Feldman Doctrine Does Not Bar Subject Matter Jurisdiction.
As a threshold matter, we conclude that the district court correctly ruled that the Rooker-Feldman doctrine does not bar the exercise of subject matter jurisdiction over this case. The district court held that the claims alleged were based on the asserted legal wrongs committed by Lisk and Jemison and the County’s corresponding policy and custom and were not challenging the Orders issued by the juvenile court. The County argues, as it did below, that the Benavidezes’ claims constitute a prohibited de facto appeal of the juvenile court’s decision, and thus the court does not have jurisdiction under the Rooker-Feldman doctrine. We disagree.
The Rooker-Feldman doctrine derives its name from two Supreme Court cases: Rooker v. Fidelity Trust Company, 263 U.S. 413 (1923), and D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). “Under Rooker-Feldman, a federal district court is without subject matter jurisdiction to hear an appeal from the judgment of a state court.” Bianchi v. Rylaarsdam, 334 F.3d 895, 896 (9th Cir. 2003). The Rooker-Feldman doctrine bars lower federal courts from exercising jurisdiction “to review the final determinations of
a state court in judicial proceedings.” Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1029 (9th Cir. 2001) (citing Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995), overruled on other grounds by Amphastar Pharm. Inc. v. Aventis Pharma SA, 856 F.3d 696, 710 (9th Cir. 2017)) (other citations omitted). “Rooker-Feldman is a statute-based doctrine, based on the structure and negative inferences of the relevant statutes rather than on any direct command of those statutes.” Noel v. Hall, 341 F.3d 1148, 1154–55 (9th Cir. 2003) (citation omitted). Plaintiffs thus cannot come to federal court to seek “what in substance would be appellate review of the state judgment.” Johnson v. De Grandy, 512 U.S. 997, 1005–06 (1994) (citations omitted).
Noel provided the following “general formulation” of the Rooker-Feldman doctrine: “If a . . . plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court . . . , Rooker-Feldman bars subject matter jurisdiction in federal district court. If . . . [a] plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction.” 341 F.3d at 1164.
Our case law makes clear that “this doctrine applies even where the challenge to the state court decision involves federal constitutional issues,” including section 1983 claims. Napolitano, 252 F.3d at 1029 (citing Worldwide Church of God v. McNair, 805 F.2d 888, 891 (9th Cir. 1986)); see Branson, 62 F.3d at 291 (citations omitted). Furthermore, the doctrine applies to both final and interlocutory decisions from a state court. See Napolitano, 252 F.3d at 1030. The doctrine does not depend on the availability of a forum; instead, it exists to protect state courts from collateral attack by a federal judgment. Id. In Kougasian v. TMSL, Inc., 359 F.3d 1136 (9th Cir. 2004), however, we explained that
where a party alleges extrinsic fraud by an adverse party in procuring a state court judgment, the Rooker-Feldman doctrine does not apply, because such a claim does not challenge the state court decision directly, id. at 1140–41.
The Benavidezes’ claims are not a de facto appeal from the juvenile court Orders. Instead, they allege that the misrepresentations by Lisk and Jemison and further inaction by those social workers and other County employees resulted in violations of their constitutional rights. As discussed in more detail below, the Benavidezes’ claims are based on section 1983, which provides a statutory cause of action where state officials acting under color of law violate constitutional rights.
The County fails to acknowledge that the Benavidezes claim injury based on the alleged misrepresentation by Lisk and Jemison that caused the juvenile court to issue the Orders which authorized the medical examinations. In fact, the Benavidezes challenge a legal wrong by Lisk and Jemison preceding the issuance of the Orders, and the County’s custom or failure to train to prevent against unconstitutional medical examinations. As the district court noted, the “alleged legal wrongs by Lisk and Jemison cannot avoid scrutiny because they were successful in deceiving the juvenile court.” Thus, the County is incorrect that the Rooker-Feldman doctrine bars federal subject matter jurisdiction.
This case is divergent from past cases in which the Rooker-Feldman doctrine was held applicable. In Branson
v. Nott, we determined that the Rooker-Feldman doctrine barred a claim where the “complaint explicitly [sought] reversal of the [California] appellate court’s decision.” 62 F.3d at 292. Similarly, in Napolitano, we explained that the Rooker-Feldman doctrine barred jurisdiction where “the state court had considered and rejected [plaintiff]’s constitutional arguments” and “the district court could not have found in favor of [plaintiff] on the constitutional claims without holding that the state court had erred.” 252 F.3d at 1029–30. By contrast, the Benavidezes, for the first time, challenge Lisk and Jemison’s alleged misrepresentation to the state court, and the County’s alleged corresponding liability for those wrongs. Cf. Johnson, 512 U.S. at 1006 (“The United States merely seeks to litigate its § 2 case for the first time, and the Government’s claims, like those of the private plaintiffs, are properly before the federal courts.”).
Even if the Benavidezes had directly challenged the juvenile court decision, which they did not, the extrinsic fraud corollary to the Rooker-Feldman doctrine would apply. See Kougasian, 359 F.3d at 1141 (explaining that extrinsic fraud is “not an error by [a] court,” but instead is “a wrongful act committed by the party or parties who engaged in the fraud”). The Benavidezes allege they did not become aware of the medical examinations until after they took place. This time sequence, they allege, precluded an opportunity to be
Orders after the medical examinations had taken place would have been pointless, because there was no undoing the negative impact on the family of medical examinations that had already taken place. Under the circumstances, the extrinsic fraud corollary to the Rooker-Feldman doctrine applies. See id. at 1140–41.
In sum, the district court correctly determined that the Rooker-Feldman doctrine does not bar federal subject matter jurisdiction over the Benavidezes’ claims.
II. The Benavidezes Sufficiently Pleaded Section 1983 Liability Against Lisk and Jemison, but Not Against the County.
The Benavidezes brought suit pursuant to section 1983, which, in relevant part, creates a cause of action for “the deprivation of any right[], privilege[], or immunit[y] secured by the Constitution” by individuals acting “under color of” law.
violation was allegedly committed by Lisk, Jemison, and other County employees acting under color of law.
The district court dismissed the Benavidezes’ section 1983 claims in the SAC with prejudice. In assessing dismissal of claims pursuant to
The County seems to argue that the Benavidezes’ section 1983 claim regarding Lisk and Jemison’s alleged judicial
deception must meet the heightened standard of
A. Threshold Constitutional Violations
“The first inquiry in any § 1983 suit . . . is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’” Baker v. McCollan, 443 U.S. 137, 140 (1979). The SAC alleged that the County conducted the medical examinations without notice to, consent from, or the opportunity to be present for the Parents, and that Lisk and
Jemison caused these circumstances through judicial deception. The district court relied on our previous decisions to hold that the Benavidezes sufficiently alleged conducting the medical examinations on the Minors at PCC without parental notice or consent violated their constitutional rights. Specifically, Plaintiffs’ claims sufficiently alleged a violation of their constitutional right to family association, which “includes the right of parents to make important medical decisions for their children, and of children to have those decisions made by their parents rather than the state.” The district court did not independently address the Benavidezes’ claims in the context of a constitutional violation through judicial deception, nor did it address whether these claims satisfied the heightened pleading standard under
i. Due Process Violation in Connection with Judicial Deception
The Benavidezes argue that the SAC alleges that Lisk and Jemison procured the juvenile court Orders through judicial deception in violation of their due process rights. The SAC alleges that: (1) Lisk and Jemison requested that the juvenile court issue the Orders, (2) the Orders were
allows them to be held liable for the resulting unconsented-to medical examinations. We agree.
We have previously recognized a constitutional right under the Due Process Clause of the Fourteenth Amendment to be free from judicial deception and fabrication of evidence in the context of civil child custody cases. See Costanich v. Dep’t of Soc. and Health Servs., 627 F.3d 1101, 1108 (9th Cir. 2010) (“[D]eliberately fabricating evidence in civil child abuse proceedings violates the Due Process clause of the Fourteenth Amendment when a liberty or property interest is at stake . . . .”); Wallis v. Spencer, 202 F.3d 1126, 1142 (9th Cir. 2000) (stating “parents have a right arising from the liberty interest in family association to be with their children while they are receiving medical attention” and “children have a corresponding right to the love, comfort, and reassurance of their parents while they are undergoing medical procedures”).
“To support a § 1983 claim of judicial deception, a plaintiff must show that the defendant deliberately or recklessly made false statements or omissions that were material to the finding . . . .” KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004). A plaintiff who provides direct evidence of false statements can allege deliberate fabrication of evidence in violation of constitutional due process guarantees. See Costanich, 627 F.3d at 1108. “Reporting that a witness said something he or she did not cannot reasonably be characterized as a recording error or a misstatement,” but is instead fabricated evidence. Reynolds v. County of San Diego, 224 F. Supp. 3d 1034, 1055 (S.D. Cal. 2016) rev’d in part on other grounds sub nom. Reynolds v. Bryson, 716 F. App’x 668 (9th Cir. 2018) (citation omitted). Furthermore, in the search warrant context, we have previously held that an omission of a fact necessary to
establish probable cause presented a triable issue of material facts about whether that omission “amounted to at least reckless disregard for the truth.” Bravo v. City of Santa Maria, 665 F.3d 1076, 1088 (9th Cir. 2011).
Examples of judicial deception in child protective custody cases are illuminating. In Reynolds, a district court held that omission of two words from medical notes was “[a]t worst . . . a reporting error or misstatement” and not sufficient evidence of deliberately or recklessly false statements or material. 224 F. Supp. 3d at 1056 (citation omitted). By contrast, in Costanich, we held that allegations that a social worker falsely claimed to have interviewed several witnesses in connection with a child protective custody case presented a triable issue of material fact that there was deliberate fabrication of evidence. 627 F.3d at 1112–14. In Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009), vacated in part, 563 U.S. 692 (2011), 661 F.3d 1201 (9th Cir. 2011), we held that “proof, in the form of [an] affidavit and deposition testimony, that [defendant] included false statements in his affidavit requesting a protective custody order,” id. at 1035, was sufficient to present a genuine issue of material fact of judicial deception to which qualified immunity
30. Prior to the Detention Hearing, Defendants LISK, JEMISON and DOES 1 through 50 submitted a Detention Report to the court. . . . [In their report], LISK,
JEMISON and DOES 1 through 50, included no such discussion of the Consent forms or of the Minor Plaintiffs being submitted to medical procedures, including
examinations, or of the parents being informed they could be present . . . . 32. Both HEATHER and JOHN attended the Detention Hearing on March 21, 2016. At no time before, during, or after the hearing, or prior to the children’s medical procedures, including examinations, did Defendants LISK, JEMISON and/or DOES 1 to 50 speak with or notify the PARENTS of the physical examinations at PCC, or attempt to gain their consent for those examinations, or inform them that they could be present during any such examination . . .
34. During the March 21, 2016 Detention Hearing (the only court hearing in this matter prior to the children’s examinations), there was no request by the COUNTY that the judge make any order regarding physical examinations to be conducted of the Minor Plaintiffs.
35. Instead, at some time before or after the March 21, 2016 Detention Hearing, Defendants LISK, JEMISON and/or DOES 1 through 50 submitted a request that the Court sign an “Order Authorizing
Medical Examination and Treatment” (hereinafter “ORDER”) of the minor Plaintiffs.
The SAC also includes the text of the Orders, which states that the juvenile court found that there had been an effort by the County to notify the Parents, or the Parents objected to medical examinations, and/or the County made “reasonable efforts to schedule the examination of the child for a time when the parent or guardian is available to attend, but such efforts have been unsuccessful.” Finally, the SAC alleges that the Parents did not learn of the medical examinations until after the Minors were released from protective custody. These statements allege a violation of constitutional prohibition on judicial deception and meet the heightened pleading standard of
1. Judicial Deception Under the Constitution
To successfully allege a violation of the constitutional right to be free from
First, the Benavidezes allege a misrepresentation by referring to the Detention Order and request for authorization for medical examinations submitted by the County through Lisk and Jemison. The SAC alleges that these documents omitted the County’s failure to attempt to notify the Parents, despite the Parents being present and in contact with the County, and the subsequent Orders making findings of notice.
Second, taking the complaint as true and construing its allegations in the light most favorable to the Benavidezes, those allegations support a plausible inference that Lisk and Jemison submitted the
allegations, Plaintiffs asserted a single
II
As an initial matter, Defendants contend that the district court lacked subject matter jurisdiction under the Rooker-Feldman doctrine, which “prohibits a federal district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court judgment.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004); see also Lance v. Dennis, 546 U.S. 459, 463 (2006). The district
without personally notifying the Parents that they were
court correctly rejected this argument as contrary to controlling Ninth Circuit precedent.
We have held that, where a party commits “extrinsic fraud” on a state court by submitting a false declaration and preventing the other side from presenting any response, the Rooker-Feldman doctrine will not preclude a federal court from hearing certain claims based on injuries arising from the state court order that resulted from this extrinsic fraud. See Kougasian, 359 F.3d at 1140; cf. Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859–60 (9th Cir. 2008) (Rooker-Feldman does apply, despite alleged fraud by the opposing party, when the federal plaintiffs’ objections to the fraudulently obtained judgment had been presented and rejected in state court); Kougasian, 359 F.3d at 1140 n.1 (fraud claims that are not based on extrinsic fraud do not fall within this particular exception to Rooker-Feldman). Here, Plaintiffs allege that Lisk and Jemison knowingly submitted false information to the state court in order to obtain an order authorizing examination of the Benavidez children; that they did so without affording Plaintiffs any opportunity to respond or be heard and without informing the state court that this was the case; and that the examinations were completed the next day before the Benavidez parents knew that they had been requested or had taken place. Moreover, the single
to invoke the exception to Rooker-Feldman that we recognized in Kougasian.
III
The district court, however, erred in concluding that Plaintiffs did not plead sufficient facts to support a claim for judicial
A
“To state a claim for relief in an action brought under
Where, as in this case, the individual defendants have asserted qualified immunity, the
into the qualified immunity inquiry: every reasonable official would understand that committing affirmative fraud on a court in order to obtain authorization for intrusive examinations is unconstitutional.2 See, e.g., KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004) (“It is clearly established that judicial deception may not be employed to obtain a search warrant.”); Costanich v. Dep‘t of Soc. & Health Servs., 627 F.3d 1101, 1108 (9th Cir. 2010) (“deliberately fabricating evidence in civil child abuse proceedings violates the Due Process clause of the Fourteenth Amendment when a liberty or property interest is at stake”); see generally Sandoval v. County of San Diego, 985 F.3d 657, 687–88 (9th Cir. 2021) (Collins, J., concurring in judgment in part & dissenting in part) (noting that, where the requisite scienter is high enough, the merits of the scienter issue and the qualified immunity inquiry may overlap). Indeed, at oral argument, Defendants’ counsel conceded that, at the time Lisk and Jemison acted, it was clearly established that making a knowingly false statement to obtain a court order for an intrusive examination was a violation of constitutional rights.
As a result, Plaintiffs’ operative complaint states a
from the state court when they requested the examination order. Reviewing the district court’s assessment of the complaint’s allegations de novo, Patterson v. Van Arsdel, 883 F.3d 826, 829 (9th Cir. 2018), I conclude that Plaintiffs’ allegations were sufficient under this standard.
To survive a motion to dismiss under
The Benavidez children were removed from their parents’ home on March 18, 2016. A detention hearing to review the removal was held three days later, which the parents attended. In connection with that hearing, Lisk and
Jemison submitted a detention report to the court, and that report made no mention of whether they had contacted the parents about potential medical examinations, had requested consent from the parents, or had told the parents that they could be present during any examinations. Throughout that three-day period, the Benavidez parents were available to speak with Lisk and Jemison about such subjects, but Lisk and Jemison never discussed those matters with them before, during, or after the hearing. At the detention hearing, the County did not request any order from the court regarding physical examinations of the Benavidez children.
Nonetheless, at some point before or shortly after the March 21, 2016 detention hearing, Lisk and Jemison submitted a request that the state court sign two pre-printed court forms entitled “Order Authorizing Medical Examination and Treatment,” one for each of the Benavidez children. As reflected on the face of the orders, which Defendants submitted in the district court in support of their motion to dismiss, the state court judge signed the orders on March 21. The form orders contain a recital specifying the finding that the court must make before it may issue such an order. Accordingly, by issuing the orders, the state court necessarily found that one or more of the following three statements were true:
- (1) the County of San Diego Health and Human Services Agency (“Agency”) has made reasonable efforts to locate or contact a parent and/or guardian of the above-named child to notify them of the Agency’s request for a medical examination and treatment of their child who is in the care of the Agency, but such efforts have been unsuccessful; or
- (2) upon request of the Agency, the child’s
- parent or guardian has objected to the medical examination and treatment of the child; and/or
- (3) the Agency has made reasonable efforts to schedule the examination of the child for a time when the parent or guardian is available to attend, but such efforts have been unsuccessful . . . .
These factual allegations are more than sufficient to state a claim for judicial deception under Iqbal and
wrong. Even under
Even under
Accordingly, the complaint’s allegations are sufficient to state a plausible claim of knowing and intentional judicial
deception that escapes qualified immunity. See KRL, 384 F.3d at 1117. The district court erred in concluding otherwise.
IV
I agree that Plaintiffs’ Monell claim was properly dismissed with prejudice, because the operative complaint does not allege sufficient facts to support such a claim.
The complaint alleges that, in response to the decision in Swartwood v. County of San Diego, 84 F. Supp. 3d 1093 (S.D. Cal. 2014), the County in February 2015 adopted a formal policy that required adherence to the sort of parental notice and consent measures that Plaintiffs allege were violated here. The complaint then goes on to say that the County has a policy or practice of causing or allowing violations of the February 2015 policy, but the district court correctly held that these allegations were utterly conclusory and inadequate under Iqbal. Apart from pointing to violations that predated the 2015 policy, the complaint alleges only that (1) Lisk and Jemison were able to violate that 2015 policy in this case and (2) the County’s “Detention Report form” lacked a design that was sufficient to ensure compliance with the 2015 policy. These meager allegations fail to raise a plausible inference that the County has a policy or practice of affirmatively allowing violations of its 2015 policy. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“Liability for improper custom may not be predicated on isolated or sporadic incidents.”).
For similar reasons, Plaintiffs’ failure-to-train allegations are also inadequate. Such a theory of Monell liability usually requires a “pattern of similar constitutional violations by untrained employees,” see Connick v. Thompson, 563 U.S. 51, 62 (2011), and no such pattern has been alleged here. See also Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 407–08 (1997) (a “one-time negligent administration” of a training program does not “tend to show . . . the lack of proper training”). Nor have Plaintiffs alleged facts to show that the “patently obvious” consequence of the County’s training will be constitutional violations such as the one alleged here. Connick, 563 U.S. at 64.
Finally, Plaintiffs’ failure-to-discipline theory of Monell liability fails for substantially the same reasons. See Rodriguez v. County of Los Angeles, 891 F.3d 776, 803 (9th Cir. 2018) (noting that such a theory requires a showing of “‘widespread’” or “repeated constitutional violations” that were ignored (citation omitted)).
* * *
For the foregoing reasons, I concur in the judgment affirming the dismissal of the Monell claim with prejudice and reversing the dismissal of the