United States District Court, D. Arizona
Ellen Keates, an individual; and A.K., a minor, through her parent and guardian Ellen Keates, Plaintiffs,
Michael Koile, individually as an employee with the State of Arizona Child Protective Services; Karen Howard, individually as an employee with the State of Arizona Child Protective Services; Gillian Vanesse, individually as an employee with the State of Arizona Child Protective Services; Rita Gomez, individually as an employee with the State of Arizona Child Protective Services; Sarah Jenkins, individually as an employee with the State of Arizona Child Protective Services; Kimberly Pender, individually as an employee with the State of Arizona Child Protective Services; Joanna Lensche, individually as an employee with the State of Arizona Child Protective Services; Steve Roundtree, individually as an employee with the State of Arizona Child Protective Services; Clarence H. Carter, individually as Director, Arizona Department of Economic Security; State of Arizona; John and Jane Does 1-5; and Black Entities 1-5, Defendants.
V. Wake United States District Judge
the Court are Defendants’ Motion to Dismiss Second
Amended Complaint (Doc. 66, sealed) and Amended Motion to
Dismiss Second Amended Complaint (Doc. 68, redacted public
RULE 12(b)(6) LEGAL STANDARD
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), all allegations of material fact are assumed to be
true and construed in the light most favorable to the
nonmoving party. Cousins v. Lockyer, 568 F.3d 1063,
1067 (9th Cir. 2009). Dismissal under Rule 12(b)(6) can be
based on “the lack of a cognizable legal theory”
or “the absence of sufficient facts alleged under a
cognizable legal theory.” Balistreri v. Pacifica
Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
To avoid dismissal, a complaint need contain only
“enough facts to state a claim for relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The principle that a
court accepts as true all of the allegations in a complaint
does not apply to legal conclusions or conclusory factual
allegations. Ashcroft v. Iqbal, 566 U.S. 662, 678
(2009). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
material beyond the pleadings may not be considered in
deciding a Rule 12(b)(6) motion. However, a court may
consider evidence on which the complaint necessarily relies
if (1) the complaint refers to the document, (2) the document
is central to the plaintiff’s claim, and (3) no party
questions the authenticity of the copy of the document
submitted to the court. Marder v. Lopez, 450 F.3d
445, 448 (9th Cir. 2006).
FACTUAL ALLEGATIONS ASSUMED TO BE TRUE
following facts are assumed to be true for the purpose of
deciding the motions to dismiss the Second Amended Complaint.
The Court makes no determination of whether they are in fact
times relevant, Defendants Michael Koile, Karen Howard,
Gillian Vanesse, Rita Gomez, Sarah Jenkins, Kimberly Pender,
Joanna Lensche, and Steve Rountree were employees of the
State of Arizona through the Child Protective Services
(“CPS”) division of the Arizona Department of
Economic Security. Defendant Clarence E. Carter was the
Director of the Arizona Department of Economic Security.
Ellen Keates is the mother of A.K. On May 20, 2013, A.K. was
thirteen years old, had been experiencing depression for four
to six months, and occasionally had suicidal ideation. About
one month before school ended, A.K. was suspended for two
weeks for violation of school rules, and she was depressed
and stressed. On May 20, 2013, Keates took A.K. to Christ
Cares Clinic where she began to cry in the waiting room. When
asked, A.K. told a Clinic employee that she was sad, she did
not currently have suicidal ideation, but she had experienced
suicidal ideation in the past. A.K. told a doctor at the
Clinic she previously had thoughts of choking herself.
Clinic employee told Keates she needed to take A.K. to the
emergency room. Keates took A.K. to Phoenix Children’s
Hospital (“PCH”), where she was told that someone
from the Clinic had called ahead. A.K. was seen immediately,
which was about 9:00 p.m. A triage nurse noted that A.K.
reported having suicidal ideation, but she had denied having
a plan to carry it out. A.K. was subsequently evaluated by a
doctor, who ordered evaluation by a social worker and a
midnight, two PCH employees discussed treatment options with
Keates and said she could take A.K. home if she provided a
safety plan. Keates offered several options, including having
A.K. stay at home with her twelve-year-old brother, stay at a
neighbor’s home, or stay at the public library while
Keates was working. When those options were not accepted,
Keates offered to stay home with A.K., but explained she is
self-employed and staying home would be detrimental to her
the PCH employees said that A.K. was required to go to a
“mental hospital” for inpatient treatment. Keates
informed them that she did not have insurance to pay for
inpatient treatment. The PCH employees tried to get
Keates’ contact information, but she refused. At that
point, Keates “furiously expressed her concern”
that A.K. was being held hostage until PCH could get billing
information from her. (Doc. 58 at 9, ¶ 51.) Someone from
PCH reported to CPS that “A.K. was suffering from
severe depression and had attempted suicide by
strangulation on May 20, 2013.” (Id., ¶
52.) It also was reported that inpatient care was necessary
and Keates was not able to enact a safety plan for A.K.
Eventually Keates gave PCH her contact information. PCH staff
said A.K. would be reassessed in the morning, and Keates
should go home and call in the morning.
12:45 a.m., May 21, 2013, PCH employees called the CPS
Hotline. They called again at 1:36 a.m. At 7:44 a.m., they
called CPS supervisor Gillian Vanesse. About 8:00 a.m.,
Keates called PCH, no one answered, and she left a voicemail
Keates called PCH again, she was told there would be no
second assessment and CPS had told PCH that Keates was not to
have contact with A.K. and was not to come back to PCH. A PCH
employee informed CPS that a second assessment would not be
done unless A.K. waited for 48 hours for a bed at an
inpatient treatment facility. PCH employees attempted to call
Keates, using an incorrect telephone number. About 10:48
a.m., Michael Koile, a CPS case worker, interviewed A.K.
without Keates’ presence or consent. A.K.’s only
complaint about Keates was that she “yells, screams,
and cusses.” Koile never contacted Keates. About 11:45
a.m., with the consent of CPS supervisor Kim Pender, Koile
issued a Temporary Custody Notice to take A.K. into custody.
CPS employees Joanna Lensche and Steve Rountree collaborated
in the issuance of the Temporary Custody Notice.
told PCH that Keates was prohibited from seeing A.K. during
the remainder of A.K.’s stay at PCH. PCH discharged
A.K. on May 21, 2013. Keates was not billed for A.K.’s
stay at PCH. Plaintiffs believe that PCH was paid for
A.K.’s stay because CPS took immediate temporary
custody of A.K.
discharged from PCH, A.K. was transferred to Aurora
Behavioral Health System in Tempe, Arizona, by ambulance
while strapped down to a gurney. Koile reported to Aurora
that A.K. had tried to commit suicide on May 20, 2013, and
instructed that Keates was not allowed to contact A.K. A.K.
told the intake nurse that she did not have suicidal ideation
at that time, she had experienced suicidal ideation over the
past several months, but she had no plan to commit suicide.
She said she was depressed. A.K. told the Aurora intake nurse
that the doctor at Christ Cares Clinic misunderstood her when
she said she had thoughts of choking herself “a while
ago, ” and she did not feel like that now. A.K. told
the Aurora intake nurse that she did not try to strangle
herself the previous day. The suicide risk assessment at
Aurora resulted in a finding of “low” risk for
22, 2013, Koile interviewed Keates. On May 23, 2013, Koile
informed Aurora that he concluded Keates was unable to care
for A.K. and that a dependency petition would be filed. On
May 24, 2013, a dependency petition was filed by the Arizona
Department of Economic Security on behalf of CPS, stating
that A.K. had attempted suicide on May 20, 2013, and Keates
refused admitting A.K. for treatment because she lacked
insurance. On May 26, 2013, Keates met with Koile and Pender,
during which Koile told Keates that A.K. required intensive
outpatient treatment at Aurora and if Keates could not make
financial arrangements for the treatment, A.K. could not go
home. When Keates called Aurora, she was told that intensive
outpatient treatment was not recommended for A.K.
29, 2013, A.K. was discharged from Aurora into Koile’s
custody and placed into a foster home. The foster mother, an
Aurora social worker, did not take A.K. to Aurora for
intensive outpatient treatment. CPS did not ensure that A.K.
received her prescribed psychotropic medications. On June 11,
2013, a report from CPS was filed with the juvenile court. It
stated that there were no court orders restricting Keates
from having contact with A.K. While A.K. was at the foster
home, no one from CPS visited her.
August 5, 2013, A.K. was placed in a group home, which would
not transport A.K. to her high school where A.K. had been
accepted into an honors program. Keates informed a CPS case
worker about the transportation issue and offered to drive
A.K., but CPS refused. On August 8, 2013, A.K.’s
guardian ad litem obtained an emergency court order requiring
CPS to provide transportation to and from the group home and
A.K.’s high school. CPS arranged for a taxi to
transport A.K., which caused A.K. to be embarrassed and
September 11, 2013, the juvenile court granted a change in
the case plan to in-home dependency with A.K. remaining a
temporary ward of the state. On September 12, 2013, A.K.
returned home, but her relationship with Keates was damaged.
On November 26, 2013, the juvenile court granted a motion to
dismiss A.K.’s dependency by the Arizona Department of