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Reiss v. Arizona Department of Child Safety

United States District Court, D. Arizona

November 20, 2018

George Reiss, Plaintiff,
Arizona Department of Child Safety, et al., Defendants.



         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.)


         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 ...

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