United States District Court, D. Arizona
ORDER
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE
At
issue is the Motion to Dismiss (Doc. 12, Mot.), which
Defendants Arizona Department of Child Safety
(“DCS”), DCS Director Greg McKay
(“McKay”), David Graham (“Graham”),
Amanda Santiago (“Santiago”), and Marylou Kash
(“Kash”) filed on April 30, 2018, and to which
Plaintiff Dr. George Reiss filed a Response (Doc. 18, Resp.)
and Defendants filed a Reply (Doc. 25, Reply). The Court
elects to resolve the Motion without oral argument.
See LRCiv 7.2(f). For the reasons that follow, the
Court grants Defendants' Motion.
I.
BACKGROUND
In the
Complaint, Plaintiff alleges the following relevant facts,
which the Court takes as true for the purpose of resolving
the Motion to Dismiss. See Smith v. Jackson, 84 F.3d
1213, 1217 (9th Cir. 1996). Plaintiff married his now former
wife (“Mother”) in 2009 and together they had two
children-a son born in 2010 and a daughter born in 2011.
(Doc. 10, First Amended Complaint (“FAC”) ¶
35.) Plaintiff and Mother separated in April 2015. (FAC
¶ 36.) On April 14, 2015, in the midst of negotiations
for child custody, Mother brought the two children to Phoenix
Children's Hospital to be evaluated for sexual abuse that
she claimed Plaintiff had committed. (FAC ¶¶
41-42.) After conducting a physical examination of the
children, a physician found no signs of abuse. (FAC ¶
44.) Nevertheless, DCS initiated an investigation based on
Mother's allegations of sexual abuse. (FAC ¶ 42.)
Defendants Santiago and Kash, who were employed as
caseworkers and investigators for DCS at the time, were
assigned to the case. (FAC ¶ 42.) DCS contacted the
Paradise Valley Police who assigned Detective Steven Schrimpf
to the matter. (FAC ¶ 43.)
After
the medical evaluation at the Phoenix Children's
Hospital, Kash and Detective Schrimpf interviewed the
children. (FAC ¶ 45.) The son stated that Plaintiff had
“touched his privates” on one occasion in the
bathroom while the family was on vacation. (FAC ¶¶
45-47.) The daughter stated that Plaintiff had touched her
“privates, ” but she was then too tired to
complete the interview because at that point it was late at
night. (FAC ¶ 47.) After the interviews, DCS decided to
prohibit Plaintiff from having contact with his children and
created a “safety plan, ” which was an agreement
of no-contact to be signed by Plaintiff. (FAC ¶ 48.)
Defendant Kash then travelled to Plaintiff's home and
presented the safety plan, to which Plaintiff reluctantly
agreed after being told that the only alternative was for his
children to be placed in state custody. (FAC ¶¶ 51-
52.)
A
couple days later, on April 16, 2015, Plaintiff filed for
divorce in Arizona family court. (FAC ¶ 56.) On April
21, 2015, “in line with, if not wholly based on,
DCS's safety plan, the family court found that DCS had
determined that [Plaintiff] . . . should have no contact with
his children and ordered the same.” (FAC ¶ 57.)
On June
18, 2015, Santiago sent Plaintiff a letter indicating that
she was going to recommend substantiating-meaning she had
found reason to believe-Mother's April 14, 2015 report
and allegations of child abuse. (FAC ¶ 62.) On September
1, 2015, Plaintiff received a letter stating that DCS had
completed the investigation and had reason to believe that
Plaintiff had abused his children. (FAC ¶ 64.) On
September 9, 2015, Plaintiff requested an appeal of DCS's
proposed substantiation of the sexual abuse report and
submitted information to support his position that DCS should
not substantiate the allegation. (FAC ¶¶ 66-67.)
Plaintiff
alleges that, under Arizona law, if an accused party appeals
a proposed substantiation by DCS, the Protective Services
Review Team (“PSRT”) reviews the information and
determines if there is enough evidence to support the
decision made by DCS. (FAC ¶ 31.) Defendant Graham was
program manager of PSRT at the time. (FAC ¶ 9.) On
September 28, 2015, Plaintiff submitted to PSRT a summary of
exonerating information. (FAC ¶ 69.) On March 21, 2016,
PSRT sent Plaintiff a letter informing him that Mother's
April 14, 2014 report and allegations of child abuse had been
substantiated. (FAC ¶ 76.) On April 4, 2016, Plaintiff
sent a letter to DCS, PSRT, and McKay, again summarizing
exonerating information and requesting that DCS review the
case pursuant to its duty under Arizona law to determine
whether there was probable cause for substantiation. (FAC
¶ 78.)
On July
21, 2016, Plaintiff filed a complaint for Special Action
(mandamus) relief in Arizona Superior Court alleging
“that, despite being required by A.R.S. § 8-811(E)
to review the allegations that DCS intended to substantiate,
DCS had failed to fulfill that obligation, repeatedly refused
to initiate a review of the abuse allegations, and continued
to refuse to engage in its mandatory internal review
process.” (FAC ¶ 79.) Soon after Plaintiff filed
the Special Action, DCS agreed to review the documents
Plaintiff submitted in exchange for Plaintiff dismissing his
complaint. (FAC ¶ 80.) On September 6, 2016, after its
review of Plaintiff's materials, DCS issued a letter
unsubstantiating Mother's accusations and closing the DCS
case against him. (FAC ¶ 81.)
In
February 2017, the family court held a multi-day hearing
where Defendant Kash testified that she largely substantiated
a finding of sexual abuse against Plaintiff based on the
children's reporting, while conceding that there were
several indications that the allegations were untrue. (FAC
¶¶ 88-89.) On March 2, 2017, the family court
issued a decree finding that there was never any credible
evidence that Plaintiff sexually abused his children and no
basis for a substantiation of DCS's April 14, 2015
report. (FAC ¶¶ 94 -95.)
On
January 23, 2017, Mother contacted DCS and the police to
report Plaintiff for a second incident, alleging that
Plaintiff showed their daughter a pornographic cartoon video
on Mother's iPad. (FAC ¶ 84.) The family court
expressly addressed the accusations and decided they were
untrue. (FAC ¶ 97.) In late February to mid-March 2017,
Mother re-raised the iPad allegations with DCS, after which
DCS caseworkers interviewed Plaintiff's daughter and
informed Plaintiff that they were investigating the
allegations. (FAC ¶¶ 97, 99.) Plaintiff alleges
that DCS has not yet issued any finding unsubstantiating the
iPad video allegation. (FAC ¶ 101.) In March 2017,
Mother also alleged that the daughter had been kicked in the
mouth by Plaintiff, but DCS investigated and found that
unsubstantiated on May 27, 2017. (FAC ¶¶ 103, 107.)
Plaintiff
originally filed a Complaint in Maricopa County Superior
Court in this action on July 31, 2017. (Doc. 1, Notice of
Removal.) Defendants removed to federal district court. (Doc.
1-1 at 9-21.) Plaintiff amended his Complaint on March 30,
2018. The FAC includes three counts alleging violations of 42
U.S.C. § 1983, two counts alleging violations of
Plaintiff's rights under the Arizona Constitution, and
one count alleging violation of Arizona law. Defendants now
move to dismiss the FAC under Federal Rule of Civil Procedure
12(b)(6), arguing that Plaintiff has failed to state a claim
upon which relief may be granted for the following reasons:
DCS and Defendants McKay and Graham are not subject to §
1983, the individually named Defendants are entitled to
immunity, and Plaintiff's claims are time-barred. (Mot.
at 4-12.)
II.
LEGAL STANDARDS
A
complaint must include “only ‘a short and plain
statement of the claim showing that the pleader is entitled
to relief,' in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)); see also Fed. R. Civ. P.
8(a). A dismissal under Rule 12(b)(6) for failure to state a
claim can be based on either (1) the lack of a cognizable
legal theory or (2) insufficient facts to support a
cognizable legal claim. Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
“While a complaint attacked by a Rule 12(b)(6) motion
does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (citations omitted). The complaint must thus
contain “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 Twombly, 550 U.S. at 570).
“[A] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that ‘recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 556
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)).
“To
sustain an action under § 1983, a plaintiff must show
(1) that the conduct complained of was committed by a person
acting under color of state law; and (2) that the conduct
deprived the plaintiff of a constitutional right.”
Balistreri v. Pacifica Police Dept., 901 F.2d 696,
700 (9th Cir. 1988) (citing Rinker v. Napa County,
831 F.2d 829, 831 (9th Cir. 1987)). If a plaintiff does not
allege sufficient facts to state a plausible claim under this
standard, a ยง 1983 claim must be dismissed. When a
...