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Livingston v. Esslinger

United States District Court, D. Arizona

July 5, 2017

Kessele Livingston, Plaintiff,
Lauri Esslinger, Anrise Reeves, Lisa Lucchesi, Rebecca Ohton, Teresa Patterson, Robin E Ance, Brenda Lemley-Spence, and Maria Villagrana, Defendants.


          Douglas L. Rayes United States District Judge.

         In this civil rights action, Plaintiff Kessele Livingston alleges that Defendants, who are Arizona Child Protective Services (CPS) caseworkers, violated 42 U.S.C. §§ 1981 and 1983 by infringing upon his substantive due process rights and discriminating against him because of his race. (Doc. 21.) Defendants have moved to dismiss Plaintiff's third amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 26.) For reasons stated below, the motion is granted in part.[1]


         Plaintiff, a Liberian national, came to the United States in 2007 as an eleven-year- old refugee fleeing civil war. (Doc. 21 ¶¶ 6-8.) He was born May 5, 1996, but upon admission to the United States his aunt incorrectly recorded his birth date as January 2, 1994. (¶¶ 9-11.) As a result, the resident card issued by the United States listed Plaintiff's birth date as January 1, 1994 and he thereafter was deemed two years older than his actual age.[3] (¶ 36.)

         CPS obtained custody of Plaintiff in 2011, and in December of that year Plaintiff informed his caseworkers, Defendants Rebecca Ohton, Teresa Patterson, and Lauri Esslinger (“2012 caseworkers”), that he was two years younger than his recorded age. (¶¶ 36, 53.) Plaintiff's GED instructor and a psychiatrist also noted a discrepancy between Plaintiff's recorded age and how he appeared and behaved. (¶¶ 30, 37.) Nevertheless, Plaintiff was “aged out” of CPS more than two years early, had to leave his group home, and was denied restorative services. (¶¶ 39-40, 49.)

         Though he was a juvenile, Plaintiff later was convicted of an adult criminal offense based on the erroneously recorded birth date, which compromised his immigration status. (¶¶ 69, 71-72.) Plaintiff was placed into removal proceedings and detained by Immigration and Customs Enforcement (ICE) at its facility in Florence, Arizona. (¶ 74.) While in ICE custody, a forensic dental analysis confirmed that Plaintiff was a minor. (¶ 76.) Plaintiff's federal records were then corrected to reflect a May 5, 1996 birth date. (¶ 77.)

         Plaintiff was released from ICE custody and returned to CPS care. (¶ 84.) There, his new caseworkers-Defendants Robin Ance, Brenda Lemley-Spence, Maria Villagrana, Anrise Reeves, and Lisa Lucchesi (“2013 caseworkers”)-told him that he need not comply with his probation requirements. (¶ 89.) No attempt was made to correct Plaintiff's criminal record or contact his probation office, and he was subsequently arrested and imprisoned twice for violating his probation. (¶¶ 86, 95, 97.)

         Plaintiff's criminal charges eventually were set aside and he was deemed lawfully present in the country. (¶¶ 103-104.) After Plaintiff turned eighteen, he brought this action against his 2012 and 2013 caseworkers, who now move to dismiss.


         A successful Rule 12(b)(6) motion must show that the complaint lacks a cognizable legal theory or fails to allege facts sufficient to support such a theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a cognizable legal theory will survive a motion to dismiss only where it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. (citing Twombly, 550 U.S. at 556). Although the court must take “the well-pled factual allegations in the complaint as true, [it is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.'” Id. (quoting Twombly, 550 U.S. at 555).


         Plaintiff alleges that his 2012 and 2013 caseworkers violated his substantive due process rights and discriminated against him because of his race by failing to confirm his age and correct the error despite being aware of the problem and its potentially serious ramifications. Defendants argue that the complaint does not contain sufficient factual allegations to state plausible claims to relief under 42 U.S.C. §§ 1983 and 1981. Defendants further argue that, even if Plaintiff has adequately alleged civil rights violations, they are entitled to qualified immunity. As explained more fully below, the Court disagrees in part and concludes that Plaintiff has sufficiently stated a claim under § 1983 against the 2012 caseworkers. The Court agrees with Defendants, however, that Plaintiff has not stated a plausible claim under § 1983 against the 2013 caseworkers, nor a plausible claim under § 1981 against any Defendant.

         I. Section 1983

         To sustain an action under § 1983, a plaintiff must allege that a person acting under color of state law deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). Plaintiff alleges that Defendants, acting at all relevant times under color of state law, deprived him of his substantive due process rights under the Fourteenth Amendment in three ways: (1) the 2012 caseworkers failed to provide him with age-appropriate care, (2) all Defendants failed to correct his age on official records, and (3) the 2013 caseworkers told ...

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