Capp v. County of San Diego, 100419 FED9, 18-55119

Docket Nº:18-55119
Opinion Judge:M. SMITH, CIRCUIT JUDGE:
Party Name: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.
Attorney:Jonathan Charles Capp (argued), Law Offices of Jonathan C. Capp, San Diego, California, pro se Plaintiff-Appellant. Christina Snider (argued), Senior Deputy; Thomas E. Montgomery, County Counsel; Office of County Counsel, San Diego, California; for Defendant-Appellee.
Judge Panel:Before: MILAN D. SMITH, JR. and MICHELLE T. FRIEDLAND, Circuit Judges, and STANLEY A. BASTIAN, District Judge.
Case Date:October 04, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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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.

No. 18-55119

United States Court of Appeals, Ninth Circuit

October 4, 2019

Argued and Submitted July 10, 2019 Pasadena, California

Appeal from the United States District Court No. 3:16-cv-02870-AJB-MDD for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Jonathan Charles Capp (argued), Law Offices of Jonathan C. Capp, San Diego, California, pro se Plaintiff-Appellant.

Christina Snider (argued), Senior Deputy; Thomas E. Montgomery, County Counsel; Office of County Counsel, San Diego, California; for Defendant-Appellee.

Before: MILAN D. SMITH, JR. and MICHELLE T. FRIEDLAND, Circuit Judges, and STANLEY A. BASTIAN, [*] District Judge.

SUMMARY[**]

Civil Rights

The panel withdrew its opinion filed August 30, 2019, and filed a superseding opinion that affirmed in part and reversed in part the district court's dismissal of plaintiffs' claims as insufficiently pled in an action brought by Jonathan Capp and his two minor children arising from a child welfare investigation undertaken by County of San Diego social workers that allegedly violated plaintiffs' First, Fourth, and Fourteenth Amendment rights.

Plaintiffs asserted, in part, that social workers retaliated against Capp in violation of the First Amendment after he questioned abuse allegations against him and criticized the County. Plaintiffs asserted that defendants placed Capp on the Child Abuse Central Index and coerced his ex-wife to file an ex parte custody application.

The panel first rejected the retaliation claim premised on the Child Abuse Central Index listing. The panel held that taking the allegations as a whole, the first amended complaint did not plausibly allege that Capp was placed on the Index as intentional retaliation. Focusing on plaintiffs' allegation that defendant social worker coerced Capp's former wife to file the ex parte custody application, the panel found that pursuant to the liberal pleading standard afforded pro se litigants, plaintiffs plausibly alleged that Capp engaged in protected activity, that the alleged retaliation would objectively have had a chilling effect and that retaliation was the but-for motive for the social worker's actions. Plaintiffs therefore pleaded a plausible First Amendment retaliation claim. The panel further concluded that the accused defendant social worker was not entitled to qualified immunity. The panel held that a reasonable official would have known that taking the serious step of threatening to terminate a parent's custody of his children, when the official would not have taken this step absent her retaliatory intent, violates the First Amendment. The panel held that because plaintiffs alleged that retaliatory animus was the but-for cause of defendant's conduct, defendant was not entitled to qualified immunity.

The panel held that the district court properly dismissed plaintiffs' Fourth Amendment and Fourteenth Amendment claims, and claims brought pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978), which alleged that defendants interviewed the minor children while they were at school without Capp's consent. The panel held that the first amended complaint contained no facts as to whether the interviews were conducted without either parent's permission, the length of the interviews, or the specific circumstances of the interviews. Moreover, the panel held that even if plaintiffs had pleaded a plausible Fourth Amendment claim, defendants would be entitled to qualified immunity because the right of minor children to be free from unconstitutional seizures and interrogations by social workers had not been clearly established.

Rejecting the Fourteenth Amendment substantive due process claim, the panel held that although Capp might have been subjected to an investigation by the County's Health and Human Services Agency, that alone was not cognizable as a violation of the liberty interest in familial relations. The panel rejected the Monell claim, concluding that plaintiffs failed to plead a plausible constitutional violation stemming from defendants' interviews with the children. Moreover, even if plaintiffs had pleaded a plausible Fourth Amendment claim, the first amended complaint ascribed defendants' alleged misconduct to official policy in a conclusory fashion that was insufficient to state a viable claim.

ORDER

The opinion filed August 30, 2019, and reported at ___ F.3d ___, 2019 Westlaw 4123515, is hereby withdrawn. A superseding opinion will be filed concurrently with this order.

OPINION

M. SMITH, CIRCUIT JUDGE:

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.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

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."

Soon after, Capp learned that Debora's attorney "had instructed her client to withhold custody of the children pursuant to 'instructions from [the Agency], '" which had apparently told Debora to "apply ex-parte to the San Diego family court . . . to take custody from [Capp]." Indeed, a declaration from Debora filed with the application read in part, Firth gave me a letter . . . advising me not to force our children to visit with their father. It was suggested strongly to me that I seek legal action immediately to keep our children safe. They have been indicating to me that they do not want to see their father, who is often angry with them, yells at them, calls them names (such as "spoiled" and "b-"), and scares them.

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...

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