Swartwood v. Cnty. of San Diego

• Decision Date: 30 September 2014
• Docket Number: Case No: 12–CV–1665 WBGS.
• Citation: 84 F.Supp.3d 1093
• Court: U.S. District Court — Southern District of California
• Parties: Steven SWARTWOOD; Joanna Swartwood; R.S., a minor; and D.S., a minor by and through their Guardian Ad Litem, Judy Swartwood, Plaintiffs, v. COUNTY OF SAN DIEGO; San Diego Health and Human Services Agency; Polinsky Childrens Center ; Maya Bryson; Wendy Curiel; Delly Rollins; and Susan Solis, Defendants.

84 F.Supp.3d 1093

Steven SWARTWOOD; Joanna Swartwood; R.S., a minor; and D.S., a minor by and through their Guardian Ad Litem, Judy Swartwood, Plaintiffs

v.COUNTY OF SAN DIEGO; San Diego Health and Human Services Agency; Polinsky Childrens Center ; Maya Bryson; Wendy Curiel; Delly Rollins; and Susan Solis, Defendants.

Case No: 12–CV–1665 WBGS.

United States District Court, S.D. California.

Signed Sept. 30, 2014.

Donnie R. Cox, Law Offices of Donnie R. Cox, Oceanside, CA, Spencer S. Busby, Spencer S. Busby and Associates, San Diego, CA, Paul W. Leehey, Law Office of Paul W. Leehey, Fallbrook, CA, for Plaintiffs.

David L. Brodie, Office of the County Counsel, San Diego, CA, for Defendants.

ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT [DOC. 42]; (2) GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE INDIVIDUAL DEFENDANTS [DOC. 45]; AND (3) GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE COUNTY DEFENDANTS [DOC. 46]

THOMAS J. WHELAN, District Judge.

Plaintiffs are Steven and Joanna Swartwood, their son D.S., and daughter R.S. Defendants are the County of San Diego, the San Diego Health and Human Service Agency, the Polinsky Children's Center (collectively, the “County”), and four individuals employed by the Agency: Maya Bryson, Wendy Curiel, Kelly Rollins, and Susan Solis (collectively, the “Individual Defendants”).

Plaintiffs filed this lawsuit after D.S. and R.S. were removed from their home without a warrant and subjected to medical exams, which included a urine test and examination of their genitalia, without notice to Steven or Joanna. Defendants admit that the medical exams were performed pursuant to the County's policy that does not provide notice to the parents and excludes them from the medical exams. Plaintiffs contend Defendants' conduct in removing the children, continuing to detain the children, and conducting the medical exams violated their Fourth Amendment and Fourteenth Amendment rights and are suing under 42 U.S.C. § 1983. Plaintiffs also allege a number of state-law causes of action.

Pending before the Court are the parties' cross motions for partial summary judgment. The parties have also filed a number of evidentiary motions, which are addressed in a separate order. (See Evidentiary Order [Doc. 73].) The Court decides the cross-motions on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the reasons discussed below, the Court GRANTS IN PART and DENIES IN PART Defendants' motion [Doc. 42], GRANTS IN PART and DENIES IN PART Plaintiffs' motion against the Individual Defendants [Doc. 45], and GRANTS Plaintiffs' motion against the County [Doc. 46].

I. Background¹

A. R.S. sustains facial injuries while at day care.

In approximately April 2011, Joanna enrolled D.S. and R.S. at Shelly's Home Daycare. At the time, D.S. was 3, and R.S. was 1.

On Monday, May 16, 2011, Joanna dropped the children off at daycare. At about 2:40 p.m., Joanna received a telephone call from the daycare owner, Shelley McCoshum, who said that redness developed on R.S.'s face around 11:00 a.m. from either a fall on the trampoline or an allergic reaction

. (Joanna Dec. [Doc. 45–6], ¶ 6.² )

Steven picked up the children from daycare. When they arrived home, Joanna saw redness and puffiness on R.S.'s face and called Kaiser's nurse line. (Joanna Dec., ¶ 7.) After discussing R.S.'s condition, the nurse advised Joanna to take R.S. to the first available appointment, which was the following day at 4:30 p.m. (Id. )

The next day, R.S. and D.S. did not go to daycare, but instead stayed with their maternal grandparents. (Joanna Dec., ¶ 8.) At the 4:30 p.m. appointment, Dr. Andrea Siano examined R.S. and told Joanna that R.S.'s facial injuries appeared to be “inflicted and non-accidental” in nature, and advised her to take R.S. and D.S. to Kaiser Zion Hospital's emergency room for further testing. (Id., ¶ 9.³ ) Upon hearing that R.S.'s injuries appeared non-accidental, Joanna became tearful and upset. (Defs.' NOL [Doc. 42–13], Ex. A (sealed) [Doc. 44] at p. 1.) Based on Joanna's reaction, Dr. Siano did not suspect that R.S.'s injuries were caused by anyone in the family. (Id. )

Joanna followed Dr. Siano's advice. (Joanna Dec., ¶ 10.) After leaving the doctor's office, Joanna drove home, picked up D.S. and Steven, and then the entire family drove to Kaiser Zion Hospital's emergency room. (Id., ¶ 10.) Dr. Paul B. Dohrenwend was the attending physician. He spent approximately an hour and 45 minutes with the Swartwoods, during which time he examined R.S. and concurred that her facial injuries appeared non-accidental. (Id., ¶ 11; Owens Dec. [Doc. 42–6], ¶ 8.) Dr. Dohrenwend and the Swartwoods also discussed whether R.S. should undergo further testing. (Joanna Dec., ¶ 11.) There was extensive discussion regarding the risks of radiation and the possibility R.S. could develop tumors in the future. (Id., ¶ 17; Steven Dec. [Doc. 45–7], ¶ 11.) Dr. Dohrenwend consulted with three Kaiser pediatricians who opined that additional testing that evening was not necessary because R.S. “was not presenting with neurological problems or vomiting.” (Defs.' NOL, Ex. A (sealed) at p. 1; Owens Dec., ¶ 8; Joanna Dec., ¶ 11.) And after Dr. Dohrenwend indicated that he would not have his own children subjected to the additional testing, Steven and Joanna decided to decline having the testing done that evening. (Joanna Dec., ¶ 17; Steven Dec., ¶ 11.) However, the Swartwoods planned to consult with R.S.'s regular pediatrician, Dr. Rachel Ireland, the next day. (Steven Dec., ¶ 11; Pls. Sealed Exhibits [Doc. 48], Ex. 7 at p. 3.)

B. R.S.'s injuries are reported to Child Protective Services.

Meanwhile, Dr. Siano contacted the Agency's child abuse hotline and made a mandated report of R.S.'s injuries. Dr. Siano talked to the Agency's hotline screener, Patience Owens, and reported that Joanna had brought in her one-year-old daughter due to concerns about a rash on her face. (Owens Dec., ¶ 3; Defs.' NOL, Ex. A (sealed) at p. 1.) Dr. Siano told Owens that Joanna was contacted the day before by the daycare and told R.S. developed a rash, but Dr. Siano believed R.S.'s facial injuries were “inflicted and non-accidental.” (Id. ) Dr. Siano reported that Joanna also stated that the Swartwood's son, D.S., who also attends the daycare, “has been crying and hesitant to attend the daycare for the past two weeks.” (Owens Dec., ¶ 3.) Dr. Siano stated that she referred Joanna to Kaiser's emergency room for further testing, informed Owens that Joanna appeared tearful and upset upon hearing that the injuries appeared non-accidental, and stated that she “did not have any suspicions that the abuse came from the family ... based on what Joanna reported.” (Id.; Defs.' NOL, Ex. A (sealed) at p. 1.)

Later, Owens contacted the emergency room to confirm Joanna had taken the children. (Owens Dec., ¶ 4.) Emergency room nurse Michelle Fowler confirmed the Swartwoods were there, and that Dr. Dohrenwend had examined R.S. (Id., ¶ 6.) Dr. Dohrenwend then got on the phone and told Owens that “the parents elected not have R.S. undergo the CT scan

, skeletal exam, or X-rays because of the amount of radiation involved, and because R.S. did not present with neurological problems or vomiting. He said they had consulted with three different pediatricians at Kaiser and feel the extra testing is not needed.” (Id., ¶ 8; see also Defs.' NOL, Ex. B (sealed) [Doc. 44] at p. 1.) Dr. Dohrenwend also told Owens that the parents “expressed that they would not send the minors back to the daycare given the suspicion that the marks are being considered to be inflicted injuries.” (Defs.' NOL, Ex. B (sealed) at p. 1.)

Owens then talked to Nurse Fowler again, who stated that the “marks [on R.S.'s face] could be from coughing or other activity such as vomiting.” (Owens Dec., ¶ 9.) Joanna was then put on the phone and asked Owens “if she should send the children back to the daycare tomorrow. She also asked if she should contact the daycare provider to inform them about the children not attending tomorrow. [Owens] told her a social worker from the Agency would be contacting them shortly to answer their questions.” (Id., ¶ 10; Defs.' NOL, Ex. B (sealed) at p. 1.)

C. Defendant Wendy Curiel decides to send Defendant Maya Bryson to the Swartwoods' home.

On May 17, 2011, Defendant Wendy Curiel was working as a Protective Services Supervisor in the Child Abuse Hotline/Emergency Response Stand-by Program. (Curiel Dec. [Doc. 42–3], ¶ 2.) Throughout the afternoon and evening, Curiel had been talking to Owens about what she “learned from speaking with Dr. Siano and others regarding” R.S.'s injuries. (Id., ¶ 4.) Based on those conversations, Curiel understood Joanna reported receiving a call from R.S.'s daycare about being injured as a result from “possibly ... falling on the trampoline or from allergies,” but Dr. Siano stated that the injuries “appeared to be intentionally inflicted.” (Id., ¶¶ 4, 5.) Curiel was informed that R.S. was not taken to the doctor until the following day, and that Dr. Siano referred Joanna to the emergency room for additional testing. (Id., ¶¶ 5, 6.) Because R.S.'s injuries were non-accidental, Curiel was concerned for her safety and “wanted to find out the results from the additional testing at the hospital before deciding what action (if any) the Agency should take.” (Id., ¶ 6.)

Later, Owens informed Curiel that the Swartwoods went “to the Kaiser ER, but the parents decided not to have any additional testing done.” (Curiel Dec., ¶ 7.) Additionally, Owens stated that even though the parents said the injuries first appeared while R.S. was at daycare and were told the injuries “appeared to be intentionally inflicted, Ms. Swartwood asked Ms. Owens whether she should bring the children back to daycare the following day.” (Id. ) Curiel, therefore, decided to send a social worker to meet the Swartwoods...