Henry A. v. Willden

Decision Date04 May 2012
Docket NumberNo. 10–17680.,10–17680.
Citation678 F.3d 991,2012 Daily Journal D.A.R. 5842,12 Cal. Daily Op. Serv. 4892
PartiesHENRY A.; Charles B.; Charlotte B.; Leo C.; Victor C.; Delia D.; Maizy D.; Jonathan D.; Linda E.; Christine F.; Olivia G.; Sheldon H.; Mason I., individually and on behalf of others so situated, Plaintiffs–Appellants, v. Michael WILLDEN, Director, Nevada Department of Health and Human Services; Diane Comeaux, Administrator, Nevada Division of Child and Family Services; Virginia Valentine, Clark County Manager; Clark County; Tom Morton, Director of Clark County Department of Family Services, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


Brian R. Matsui, Morrison & Foerster LLP, Washington, DC (argued); Lori A. Schechter, Dorothy L. Fernandez, Jeffrey K. Rosenberg, Morrison & Foerster LLP, San Francisco, CA, William Grimm, Leecia Welch, Bryn Martyna, National Center for Youth Law, Oakland, CA; Bruno Wolfenzon, Gregory M. Schulman, Wolfenzon Schulman & Rolle, Las Vegas, NV, for plaintiffs-appellants Henry A., Charles B., Charlotte B., Leo C., Victor C., Delia D., Maizy D., Jonathan D., Linda E., Christine F., Olivia G., Sheldon H., and Mason I.

Margaret G. Foley, Buckley King LPA, Las Vegas, NV, for defendants-appellees Virginia Valentine, Tom Morton, and Clark County.

Linda C. Anderson, Chief Deputy Attorney General, Las Vegas, NV, for defendants-appellees Michael Willden and Diane Comeaux.

Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, Chief District Judge, Presiding. D.C. No. 2:10–cv–00528–RCJ–PAL.



B. FLETCHER, Circuit Judge:

Plaintiff-appellants (Plaintiffs), a group of foster children in Clark County, Nevada, appeal the dismissal of their complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).1 For the reasons that follow, we reverse the dismissal of Counts One, Two, Three, Eight, and Eleven; affirm the dismissal of counts Nine and Ten; and remand for further proceedings.


Plaintiffs brought this action under 42 U.S.C. § 1983 against State and County officials, alleging violations of their substantive due process rights under the Fourteenth Amendment and violations of their federal statutory rights under the Adoption Assistance and Child Welfare Act (CWA), 42 U.S.C. § 670 et seq.; the Child Abuse Prevention and Treatment Act (CAPTA), 42 U.S.C. § 5101 et seq.; and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1431 et seq.2 Plaintiffs' action consists of individual claims for damages and injunctive relief and class claims for injunctive relief.

The defendants (Defendants) named in the action are Clark County; Virginia Valentine, the Clark County Manager; Tom Morton, the Director of Clark County's Department of Family Services; Diane Comeaux, the Administrator of Nevada's Division of Child and Family Services; and Michael Willden, the Director of Nevada's Department of Health and Human Services. The complaint also lists as John Doe defendants ten caseworkers and ten supervisors for Clark County's Department of Family Services. According to the complaint, the State of Nevada was responsible for providing foster care services until October 2004, when that responsibility was transferred to Clark County. The State retains responsibility for supervision and oversight of Clark County's foster care system, including the County's compliance with state and federal law.3

The complaint alleges that Clark County's foster care system is plagued by systemic failures that result in violations of the rights guaranteed to foster children by federal statutes and the Due Process clause of the Fourteenth Amendment. The specific allegations include the failure to provide caseworkers with even basic training; the failure to provide foster children and their foster parents with case plans and medical records; the failure to provide foster children with necessary medical care; the failure to provide foster children with guardians ad litem; the failure to investigate reports of abuse and neglect in foster homes; the failure of Clark County to incorporate state and federal requirements into its child welfare policies; and the failure of the State to ensure that Clark County is operating its foster care system in compliance with federal law.

The complaint's allegations also describe how these systemic failures have injured the named plaintiffs. For the sake of brevity, we summarize only a few examples.

The alleged failure to provide adequate medical care has had serious consequences for several of the named plaintiffs. Henry A. was forced to change treatment providers more than ten times, but his medical records were not transferred properly. As a result, Henry was given a dangerous combination of psychotropic medications and was hospitalized in an intensive care unit for two weeks, on the brink of organ failure. Upon release from the hospital, Henry was administered the same medications again and returned to the ICU.

When Jonathan D. became seriously ill with an impacted colon, the County failed to approve a colonoscopy or other treatment measures, despite repeated requests from Jonathan's doctor and his foster parent. Without the County's consent, Jonathan's doctor was forced to wait until Jonathan's condition became life-threatening, justifying emergency surgery without the County's permission. By that point, Jonathan had been in severe pain for months.

Other plaintiffs were injured by the failure to provide foster children and their foster parents with the records and documentation required by federal law. For example, when Olivia G. was placed with a foster parent after being discharged from a psychiatric facility, her foster parent did not receive the authorization to fill her prescriptions, forcing Olivia to go through a painful withdrawal.

Finally, some plaintiffs were left in foster homes without any intervention despite their reports of abuse and neglect. According to the complaint, Defendants failed to investigate Linda E.'s reports of physical abuse in her foster home; placed Leo C. and Victor C. in a foster home that had a known history of neglect; and placed Mason I. in an out-of-state facility despite numerous reports of patient abuse there and Mason's own complaints of sexual abuse.


These factual allegations, among others, form the basis for the parts of the complaint that are at issue in this appeal: Counts One, Two, and Eleven, based on the Fourteenth Amendment to the United States Constitution; Counts Three and Eight, based on the CWA; Count Nine, based on CAPTA; and Count Ten, based on CAPTA and the IDEA.4 The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a). The district court dismissed these claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and entered final judgment in favor of Defendants on October 27, 2010. Plaintiffs filed a timely notice of appeal, and we have jurisdiction under 28 U.S.C. § 1291.

We discuss each claim in detail below. We review de novo the district court's decision to grant Defendants' motion to dismiss under Rule 12(b)(6). ASW, 424 F.3d at 974. We accept as true all well pleaded facts in the complaint and construe them in the light most favorable to the nonmoving party.” Id. We also review whether the district court abused its discretion by dismissing the complaint without granting leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000).

A. Substantive Due Process Claims

Generally, “the Fourteenth Amendment's Due Process Clause ... does not confer any affirmative right to governmental aid” and “typically does not impose a duty on the state to protect individuals from third parties.” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir.2011) (citations and alterations omitted). There are, however, two exceptions to this rule. First, there is the “special relationship” exception—when a custodial relationship exists between the plaintiff and the State such that the State assumes some responsibility for the plaintiff's safety and well-being. Id. at 971 (citing DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 198–202, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). Second, there is the “state-created danger exception”—when the state affirmatively places the plaintiff in danger by acting with ‘deliberate indifference’ to a ‘known and obvious danger[.] Id. at 971–72 (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir.1996)). “If either exception applies, a state's omission or failure to protect may give rise to a § 1983 claim.” Id. at 972.

Plaintiffs here have raised claims under both exceptions, arguing (1) that Defendants have a custodial relationship with foster children and have failed to provide adequate safety and medical care, and (2) that Defendants have affirmatively placed some of the children in danger by putting them in foster care placements that were known to be abusive.

1. Special Relationship Exception (Counts One and Eleven)

Counts One and Eleven of the complaint allege that Defendants have violated Plaintiffs' “right to be free from harm while involuntarily in government custody and their right to medical care, treatment, and services.” Count One seeks damages and injunctive relief for the individual plaintiffs and Count Eleven seeks injunctive relief on behalf of a class of foster children who have failed to receive early intervention services that they are entitled to under federal law.

Both counts proceed to provide more detailed factual allegations. Count One provides a list of the conduct that allegedly has violated Plaintiffs' rights to adequate safety and medical care:

(a) failure to adequately provide medical, dental, and mental health services, including but not limited to standardized periodic health screenings and...

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