AE v. Cnty. of Tulare

• Decision Date: 27 January 2012
• Docket Number: No. 10–16116.,10–16116.
• Citation: 666 F.3d 631,12 Cal. Daily Op. Serv. 1103,2012 Daily Journal D.A.R. 1158
• Parties: AE, a minor, by and through his Guardian ad Litem, Maribel HERNANDEZ, Plaintiff–Appellant, v. COUNTY OF TULARE, Defendant–Appellee,Celeste Abarca, Defendant–Appellee,Patricia Negrette, Defendant–Appellee,Prudence Morris, Defendant–Appellee,Soto, Doctor; Marie Focha; Miriam Sallam, Defendants–Appellees,andTiffany Breen, Defendant,Family Builders Foster Care, Inc.; CWA Felix; Adrian Marquez, Defendants,Yadira Portillo, Defendant,Leticia Quezada; Helen Rue, Defendants,Tulare County Child Welfare Services; Tulare County Health and Human Services Agency; Tulare Youth Service Bureau, Inc.; Courtney Wampler; Heidi Williams, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 1103

2012 Daily Journal D.A.R. 1158

666 F.3d 631

AE, a minor, by and through his Guardian ad Litem, Maribel HERNANDEZ, Plaintiff–Appellant,

v.COUNTY OF TULARE, Defendant–Appellee,Celeste Abarca, Defendant–Appellee,Patricia Negrette, Defendant–Appellee,Prudence Morris, Defendant–Appellee,Soto, Doctor; Marie Focha; Miriam Sallam, Defendants–Appellees,andTiffany Breen, Defendant,Family Builders Foster Care, Inc.; CWA Felix; Adrian Marquez, Defendants,Yadira Portillo, Defendant,Leticia Quezada; Helen Rue, Defendants,Tulare County Child Welfare Services; Tulare County Health and Human Services Agency; Tulare Youth Service Bureau, Inc.; Courtney Wampler; Heidi Williams, Defendants.

No. 10–16116.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2011.Filed Jan. 27, 2012.

Charles R. Chapman, Esq., Rodriguez & Associates, Bakersfield, CA, for the plaintiff-appellant.

Kathleen Bales–Lange, County Counsel, and Judy Chapman, Deputy County Counsel (argued), Visalia, CA, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, District Judge, Presiding. D.C. No. 1:09–cv–02204–LJO–DLB.Before: SIDNEY R. THOMAS and JOHNNIE B. RAWLINSON, Circuit Judges, and CORMAC J. CARNEY, District Judge.^*

OPINION

RAWLINSON, Circuit Judge:

Plaintiff–Appellant AE, a minor, was sexually assaulted by his seventeen-year-old foster brother (Foster Brother) while living in a foster family home in Tulare County, California. AE contends that the County of Tulare (County) and its employee social workers (collectively, Defendants), failed to intervene prior to his sexual assault, despite their knowledge of the escalating threats and violence against him. AE brought a federal civil rights claim pursuant to 42 U.S.C. § 1983 and state negligence claims against Defendants. AE appeals the district court's dismissal with prejudice of all claims against the County. We conclude that the district court abused its discretion in dismissing AE's § 1983 and derivative liability claims without leave to amend. Accordingly, we reverse the district court's decision and vacate the judgment.

I. BACKGROUNDA. Factual Allegations of the First Amended Complaint

The First Amended Complaint tells a tragic story of escalating threats and violence against AE, a nine-year-old boy, at the hands of his Foster Brother. In September, 2008, AE was removed from his mother's custody,¹ transferred to a foster family agency, and ultimately placed with foster care parents. According to the First Amended Complaint, Defendants knew or should have known that the Foster Brother, who was on probation, a dependent of the court, and on the caseload of a County social worker,² “was dangerous and posed a threat to [AE] and/or minors such as [AE].”

On November 5, 2008, a “reporting party” informed Yadira Portillo (Portillo) and Courtney Wampler (Wampler), both County social workers, that the Foster Brother hit AE in the chest and left “a 3 1/2 by 5 inch bruise on his left shoulder.” That same date, AE informed “CWA Felix” (Felix), also a County social worker, that two weeks earlier his Foster Brother had “socked him in the face and threatened him” after AE had witnessed the Foster Brother stealing money from their foster parent. Portillo and Wampler photographed AE's bruise. Around the same time, the foster parent informed Portillo and Wampler that the Foster Brother was on probation and was a dependent of the court. Further, the foster parent reported that on November 4, 2008, the Foster Brother had cursed at her for wiggling the bathroom door knob, believing she was AE.

On November 20, 2008, AE's mother expressed concerns to Felix regarding AE's foster home placement. AE's mother requested that Felix have AE moved to a different foster home.

On November 25, 2008, Dr. Soto called Prudence Morris, the “Team Leader” for AE's foster care, to report that AE had told him during a recent evaluation that the Foster Brother regularly entered the bathroom while AE was showering, using the toilet, or brushing his teeth, to tell AE to “hurry up, and curse [him].” AE also informed Portillo and Wampler directly that his Foster Brother “would unlock the bathroom door using his nail and threaten [ ] to ‘kick [AE's] ass.” AE told Portillo and Wampler that his foster parent knew of the Foster Brother's behavior, but had responded only by ordering AE to use a different bathroom.

On November 26, 2008, Portillo spoke with AE's therapist, Adrian Marquez, regarding what she had learned of AE's placement. Marquez responded that “there was a need to place more responsibility on the foster mother in supervising the actions of the children in the home ... [and] that he did not believe [AE] had been making allegations to seek attention, but was instead minimizing the behavior of [his Foster Brother].”

On December 10, 2008, AE's foster parents reported to Portillo that AE had told them, approximately five days earlier, on December 5 or 6, that the Foster Brother “went into [AE's] bedroom and attempted to get into his bed and pull his pants down.”

On December 12, 2008, Portillo received two telephone calls regarding AE. A man describing himself as AE's uncle called to ask “what the agency was doing with his nephew.” A County deputy sheriff also called to report that a man purporting to be AE's uncle had informed the police that “the agency was covering up an incident that occurred with his nephew and he wanted the Sheriff to pick up [AE] from foster care.”

That same day, Portillo contacted AE's mother, who told Portillo that she had requested that Felix remove AE from his current placement. Subsequently, Portillo and another social worker, joined by a County police officer, interviewed AE. AE told the police officer “that he had been sodomized and forced to do oral copulation by [his Foster Brother].”

“On or about December 12 and/or 15, 2008,” Portillo informed AE's mother that AE “had been assaulted, battered, sexually abused, sodomized and orally copulated by another dependent at the foster home ...”

On approximately December 15, 2008, Portillo, a deputy district attorney, a County police detective, and a forensic interview specialist interviewed AE. AE described the sexual assault in detail. Following this interview, Portillo met immediately with her supervisor to reassess AE's foster placement, and AE was moved to a different foster home.

AE alleged that at all relevant times, Portillo, Wampler, and Felix were County employees acting within the course and scope of their employment. AE further alleged that all Defendants performed their acts and omissions “under the ordinances, regulations, customs, and practices of Defendant COUNTY OF TULARE ...”

B. Procedural Background

The First Amended Complaint alleged two causes of action relevant to this appeal, a claim under 42 U.S.C. § 1983 for deliberate indifference, and claims for negligence pursuant to California statutes.³

Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure (FRCP) 12(b)(6). The district court granted AE leave to amend the claims against Portillo, Wampler, and Felix. The district court dismissed with prejudice all claims against the County and entered judgment in its favor pursuant to FRCP 54(b). AE filed a timely appeal.

II. STANDARD OF REVIEW

We review de novo the district court's dismissal of a complaint for failure to state a claim. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir.2010). In conducting this review, we accept the factual allegations of the complaint as true and construe them in the light most favorable to the plaintiff. See New Mexico State Invest. Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir.2011).

We review for abuse of discretion the district court's denial of leave to amend. See Telesaurus, 623 F.3d at 1003. A district court abuses its discretion by denying leave to amend unless amendment would be futile or the plaintiff has failed to cure the complaint's deficiencies despite repeated opportunities. See id. A district court also abuses its discretion when it commits an error of law. See Metrophones Telecomms., Inc. v. Global Crossing Telecomms., Inc., 423 F.3d 1056, 1063 (9th Cir.2005) (“An error of law is one form of an abuse of discretion.”) (citation omitted).

III. DISCUSSIONA. Section 1983 Claim

AE alleged claims against the County and individual County officials pursuant to 42 U.S.C. § 1983 for violations of the Due Process Clause of the Fourteenth Amendment, which “protects a foster child's liberty interest in social worker supervision and protection from harm inflicted by a foster parent.” Tamas v. Dep't of Soc. & Health Servs., 630 F.3d 833, 842 (9th Cir.2010) (citations omitted).⁴ AE argues that the district court erred in dismissing his § 1983 claim against the County. We agree with the district court that the First Amended Complaint failed to state a § 1983 claim against the County, but hold that the district court abused its discretion when it denied leave to amend.

Section 1983 suits against local governments alleging constitutional rights violations by government officials cannot rely solely on respondeat superior liability. See Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir.2007); see also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Instead, plaintiffs must establish that “the local government had a deliberate policy, custom, or practice that was the moving force behind the constitutional violation [they] suffered.” Whitaker, 486 F.3d at 581 (citation and internal quotation marks omitted).

In the past, our cases have not required parties to provide much detail at the pleading stage regarding such a policy or custom. “In this circuit, a claim of municipal liability under § 1983 is sufficient to withstand a motion to dismiss even if the claim is based on nothing more than a bare...