Capp v. Cnty. of San Diego
| Decision Date | 04 October 2019 |
| Docket Number | No. 18-55119,18-55119 |
| Citation | 940 F.3d 1046 |
| Parties | Jonathan C. CAPP; N.C., a minor, by and thru their Guardian ad litem; J.C., a minor, by and thru their Guardian ad litem, Plaintiffs-Appellants, v. COUNTY OF SAN DIEGO; Kathy Jackson; Bob Prokesch; Johanna Firth; San Diego Health and Human Services Agency, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
The opinion filed August 30, 2019, and reported at 936 F.3d 899, is hereby withdrawn. A superseding opinion will be filed concurrently with this order.
Plaintiffs Jonathan Capp and his children, N.C. and J.C., assert § 1983 and Monell claims against Defendants County of San Diego (the County); the County’s Health and Human Services Agency (the Agency); and Kathy Jackson, Bob Prokesch, and Johanna Firth, social workers employed by the Agency. The action stems from a child welfare investigation undertaken by Defendants that allegedly violated Plaintiffs’ First, Fourth, and Fourteenth Amendment rights.
The district court dismissed all of Plaintiffs’ claims as insufficiently pleaded or barred by qualified immunity. We agree that Plaintiffs’ first amended complaint (FAC) fails to plausibly allege Fourth Amendment, Fourteenth Amendment, and Monell claims. We also conclude, however, that Plaintiffs plead a viable First Amendment retaliation claim, and that Defendants are not entitled to qualified immunity on this claim.
The facts as presented are derived from Plaintiffs’ FAC. For purposes of our analysis, we accept the allegations as true. See Karam v. City of Burbank , 352 F.3d 1188, 1192 (9th Cir. 2003).
Capp is the father of two minor children, N.C. (age 11 at the time Plaintiffs filed their FAC) and J.C. (age 9), whose legal custody he shares with their mother, Debora. Capp and Debora were in the midst of divorce proceedings at the time of Defendants’ investigation.
On August 13, 2015, the Agency received a referral alleging that N.C. and J.C. "may be at-risk of General Neglect, Severe Neglect, and Emotional Abuse by Jonathan Capp." Firth, a social worker, informed Capp that "she wished to speak with him regarding his children and referenced a substance abuse problem"; the two arranged a meeting for August 26. During that meeting, Capp learned that Firth had interviewed N.C. and J.C. at their elementary school "without [Capp’s] consent." Although Capp repeatedly asked for clarification regarding the allegations against him, Firth was evasive and "unilaterally terminated the interview."
That same day, Capp sent a letter to the Agency, calling the interview "Kafkaesque" and deeming the "offensive allegations (whatever they may be) [ ] bogus and extremely offensive ." The letter chastised Firth for "fle[eing]" the meeting, and for "interview[ing Capp’s] children without [his] consent." Capp concluded, "In any event, be in no doubt that if you continue on your unlawful and unconstitutional course I will take this matter even further."
Subsequently, the family court "denied the application and rebuked [the Agency]." Capp spoke with Jackson, Firth’s supervisor, who assured him that she "would make sure that all appropriate procedures would be followed" and that "the case would be closed." Prokesch later interviewed Capp and "could not in any way articulate any serious (or even significant or any) allegations against [him]," though Prokesch did mention an allegation that Capp "may have driven the children in a car whilst under the influence." Eventually, Jackson, Firth, and Prokesch signed a letter to the court indicating that the evidence against Capp was "inconclusive." The Agency then closed the referral.
The closing of the referral notwithstanding, Capp later received a letter from the Agency informing him that "the allegations of abuse or severe neglect" were, in fact, "substantiated," and that Capp had consequently been placed on the Child Abuse Central Index (CACI).1 After Capp complained to Jackson and others, another employee of the Agency allegedly "confirmed again that he was on the CACI register but that she would recommend that he be taken off." Capp was later informed that "due to a clerical or administrative error or issue," he "had not been placed on the CACI at all," despite his having been informed otherwise. He eventually received a letter from the Agency confirming that his "name has not been listed on the [CACI]."
Plaintiffs filed their initial complaint in November 2016. The district court granted Defendants’ first motion to dismiss with leave to amend, and Plaintiffs subsequently filed the FAC.
Plaintiffs’ § 1983 claim asserts in part that Defendants retaliated against Capp in violation of the First Amendment. They allege that after Capp exercised his First Amendment rights by questioning the abuse allegations against him and the legal basis for Firth’s interviews, and then by lodging various criticisms against the County, Firth "coerced" Debora to file the ex parte application and, together with Jackson and Prokesch, placed him on the CACI. They also allege that these actions, and the investigation generally, violated Capp’s Fourteenth Amendment right to familial association, and that the interviews with the children violated their Fourth Amendment right to be free from unreasonable seizure. Plaintiffs also assert a cause of action pursuant to Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), based on the County’s alleged "policy of detaining and interviewing children without exigent circumstances ... , court order or consent of their parent," in violation of the Fourth Amendment.
Defendants again moved to dismiss, and the district court granted the motion as to all causes of action except the First Amendment retaliation claim. As to this remaining claim, the district court concluded that, "[w]hile there is no precedent directly on point that allows First Amendment retaliation claims to go forward against social workers," Firth and Prokesch could not claim qualified immunity because "[r]easonable social workers in Defendants’ positions know or should know that baselessly taking action that could lead to a child being wrongfully removed from its parents would [run] afoul of the First Amendment."
Defendants then filed a motion for reconsideration, contending that the district court’s qualified immunity analysis had been flawed. The court agreed, concluding that "there was [ ] no clearly established law at the time denoting defendants’ specific actions in this case as unlawful," and therefore that "qualified immunity [ ] attache[d]" to both Firth and Prokesch. All claims having been dismissed, the district court entered final judgment, and this timely appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
"We review de novo a district court’s dismissal of a complaint under [Federal Rule of Civil Procedure] 12(b)(6) for failure to state a claim." Applied Underwriters, Inc. v. Lichtenegger , 913 F.3d 884, 890 (9th Cir. 2019) (quoting Starr v. Baca , 652 F.3d 1202, 1205 (9th Cir. 2011) ). "When ruling on a motion to dismiss, we accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Knievel v. ESPN , 393 F.3d 1068, 1072 (9th Cir. 2005). The allegations "must ‘plausibly give rise to an entitlement to relief.’ " Dougherty v. City of Covina , 654 F.3d 892, 897 (9th Cir. 2011) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). We have emphasized that pro se pleadings, such as the FAC in this case, are to be liberally construed on a motion to dismiss. See, e.g. , Thompson v. Davis , 295 F.3d 890, 895 (9th Cir. 2002).
We review a grant of qualified immunity de novo. Entler v. Gregoire , 872 F.3d 1031, 1038 (9th Cir. 2017).
After considering Defendants’ motion for reconsideration, the district court concluded that qualified immunity attaches to this claim.
"The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). It "gives government officials breathing room to make reasonable but mistaken judgments about open legal questions," and, "[w]hen properly applied, [ ] protects ‘all but the plainly incompetent or those who knowingly violate the law.’ " Ashcroft v. al-Kidd , 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ).
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