Lyons et al v. State of Washington Child Protective Services et al, No. 1:2017cv03108 - Document 89 (E.D. Wash. 2018)

Court Description: ORDER DENYING PLAINTIFFS MOTION TO STRIKE; ORDER GRANTING DEFENDANTS EAST VALLEY SCHOOL DISTRICT NO. 90, COLEEN CROWSTON, LISA BARTHELD, CAROLYN SAUVE, AND MELODY-ANN LUKES MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion to Strike ECF No. 64 is DEN IED. School Defendants Motion for Summary Judgment ECF No. 54 is GRANTED. Plaintiffs Motion for Summary Judgment ECF No. 68 is DENIED as moot. School Defendants Motion to Strike ECF No. 74 is DENIED as moot. School Defendants Motion in Limine ECF No. 81 is DENIED as moot. The deadlines, hearings and trial date are VACATED. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Lyons et al v. State of Washington Child Protective Services et al Doc. 89 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 ANDREA JOY LYONS, Pro Se; MARK GEERHART, Pro Se, NO. 1:17-CV-3108-TOR 8 Plaintiffs, 9 v. 10 11 12 13 14 15 16 17 18 EAST VALLEY SCHOOL DISTRICT NO. 90; COLEEN CROWSTON, In Her Official and Individual Capacity as Principal of East Valley Elementary School; LISA BARTHELD (Counselor) In Their Individual and Official Capacity; CAROLYN SAUVE (Admin. Assist.) In Their Individual and Official Capacity; and MELODY-ANN LUKE (RN) In Their Individual and Official Capacity, ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE; ORDER GRANTING DEFENDANTS EAST VALLEY SCHOOL DISTRICT NO. 90, COLEEN CROWSTON, LISA BARTHELD, CAROLYN SAUVE, AND MELODY-ANN LUKE’S MOTION FOR SUMMARY JUDGMENT Defendants. BEFORE THE COURT is Defendants East Valley School District No. 90, 19 Collen Crowston, Lisa Bartheld, Carolyn Sauve, and Melody-Ann Luke’s Motion 20 for Summary Judgment (ECF No. 54) and Plaintiffs’ Motion to Strike from ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 Evidence Production of Fraudulent Documents (ECF No. 64). The Court has 2 reviewed the record and files herein, and is fully informed. For the reasons 3 discussed below, Plaintiffs’ Motion to Strike (ECF No. 64) is DENIED. 4 Defendants’ Motion for Summary Judgment (ECF No. 54) is GRANTED. 5 BACKGROUND 6 This action arises out of the Washington State Department of Social and 7 Health Services’ (“DSHS”) referral and investigation of potential child abuse or 8 neglect. ECF No. 22 at 2. Plaintiffs Andrea Joy Lyons and Mark Geerhart, 9 proceeding pro se, filed an Amended Complaint on July 3, 2017 against 10 Defendants DSHS and its employees, and Defendants East Valley School District 11 and its employees. ECF No. 12. Plaintiffs allege constitutional violations under 12 42 U.S.C. § 1983 and state law claims. Id. 13 On January 30, 2018, Defendants DSHS and Francesca Guzman filed a 14 Motion for Summary Judgment, seeking a complete dismissal of Plaintiffs’ claims 15 with prejudice. ECF No. 28. On March 2, 2018, Plaintiffs filed an Opposition to 16 Defendants Motion for Summary Judgment/Motion for Summary Judgment, 17 seeking summary judgment on their Monell claims 1. ECF No. 36. On April 2, 18 2018, the Court granted Defendants’ Motion for Summary Judgment and denied 19 Plaintiffs’ Motion for Summary Judgment. ECF No. 39. The Court dismissed 20 1 Monell v. Dep’t of Social Services, 436 U.S. 658 (1978). ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 2 1 with prejudice Plaintiffs’ action against Defendants DSHS and Francesca Guzman. 2 Id. 3 On July 23, 2018, Defendants East Valley School District No. 90, Collen 4 Crowston, Lisa Bartheld, Carolyn Sauve, and Melody-Ann Luke 2 filed a Motion 5 for Summary Judgment as to all of Plaintiffs’ claims. ECF No. 54. On August 16, 6 2018, Plaintiffs filed a Motion to Strike from Evidence Production of Fraudulent 7 Documents (ECF No. 64) and a Motion to Expedite the Motion to Strike (ECF No. 8 65). The School District Defendants filed an objection to Plaintiffs’ Motion to 9 Expedite. ECF Nos. 66; 67 at ¶ 2. On August 24, 2018, this Court denied 10 Plaintiffs’ Motion to Expedite, finding that the disputed documents were best 11 considered in conjunction with the School Defendants’ Motion for Summary 12 Judgment. EFC No. 72. Plaintiffs filed an Opposition to Defendants Motion for 13 Summary Judgment/Motion for Summary Judgment on August 22, 2018 (ECF No. 14 68). On August 31, 2018, the School District Defendants filed a Motion to Strike 15 Plaintiffs’ Motion for Summary Judgment (ECF No. 74), arguing that the motion is 16 untimely. On September 10, 2018, the School Defendants filed a Motion in 17 Limine (ECF No. 81). 18 19 2 20 Defendants” or “School Defendants.” These Defendants shall be referred to collectively as “School District ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 3 1 2 FACTS The following are the undisputed facts unless otherwise noted. For purposes 3 of summary judgment, “[i]f a party fails to properly support an assertion of fact or 4 fails to properly address another party’s assertion of fact as required by Rule 56(c), 5 the court may … consider the fact undisputed.” Fed. R. Civ. P. 56(e)(2). 6 Plaintiffs’ statement of facts disputes the authenticity of various documents, but 7 they fail to properly support these allegations. ECF No. 69. Therefore, the 8 following facts are undisputed or deemed so due to Plaintiffs’ failure to support 9 their contrary assertions. 10 On September 11, 2014, DSHS received a report of suspected child abuse 11 from the Yakima Regional Hospital concerning one of Ms. Lyons’ children, C.T. 12 ECF No. 63 at ¶ 4. Earlier that day, Ms. Lyons brought C.T. to the hospital after 13 her husband, Kevin Teeman, told her that C.T. was in the car seat not belted in and 14 fell forward onto the floor. ECF No. 47 at 3. Ms. Lyons was at work when this 15 occurred. Id. The hospital reported that C.T. had a femur fracture. Id. Concerned 16 that the “story doesn’t seem to quite match the injury,” the hospital referred C.T.’s 17 injury to DSHS. Id. at 3-4. The referral was assigned to the Yakima County 18 Sheriff’s Office for investigation and to DSHS social worker Staci Foster. Id. at 4. 19 Ms. Foster obtained C.T.’s medical records and attempted a home visit with the 20 address given by the hospital, but it did not exist. Id. ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 4 1 On the morning of September 12, 2014, Ms. Foster located and interviewed 2 Ms. Lyons and Mr. Geerhart’s children, J.G. and N.G., at East Valley Elementary 3 School as part of the CPS investigation. ECF No. 63 at ¶ 4. Both J.G. and N.G. 4 consented to being interviewed. Id. at ¶ 7. Colleen Crowston, the principal of East 5 Valley Elementary School, was present during J.G.’s and N.G.’s interviews at the 6 children’s request. Id. at ¶ 8. Ms. Crowston did not ask questions or otherwise 7 participate in the interviews. Id. Each interview lasted between 20 and 30 8 minutes. Id. at ¶ 9. When the interviews were finished, J.G. and N.G. returned to 9 class. Id. at ¶ 10. 10 After completing the interviews, Ms. Foster made an unannounced visit to 11 Ms. Lyons’ residence with Yakima County Deputy Sheriff Leo Hull. Id. at ¶ 11. 12 Ms. Lyons resides with her husband, Mr. Teeman, and her four children—J.G., 13 N.G., C.T., and A.T. Id. at ¶ 12. Mr. Teeman is the father of A.T. and C.T., and 14 Mr. Geerhart is the father of J.G. and N.G. Id. After arriving at the family home, 15 Mr. Teeman led Deputy Hull and Ms. Foster to his shop where the two younger 16 children, A.T. and C.T., were located. Id. at ¶ 13. Ms. Foster observed A.T. 17 wandering the property alone out of sight of Mr. Teeman and C.T. was alone in the 18 shop buckled to her car seat. ECF No. 47 at 5. Deputy Hull then took all four 19 children, including J.G. and N.G., into protective custody due to the imminent risk 20 of harm to the children. ECF No. 63 at ¶ 13. Shortly thereafter, Deputy Hull ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 5 1 transferred custody of all four children to CPS pursuant to the Child Custody 2 Transfer form. Id. at ¶ 15. Ms. Foster then transported A.T. and C.T., the only two 3 children home at the time, to the Yakima DCFS Office. Id. at ¶¶ 16-17. 4 Later that afternoon, CPS returned to East Valley Elementary School to 5 collect J.G. and N.G. from school and take them to the Yakima DCFS Office.3 Id. 6 at ¶¶ 18-29. Defendant East Valley School District has a Board Policy and 7 Procedure which allows for the removal and release of students during school 8 hours by law enforcement or CPS with a written administrative or court order of 9 custody and proper identification. Id. at ¶ 3. After being released from school, 10 J.G. and N.G. were transported directly to the Yakima DCFS Office. Id. at ¶ 19. 11 J.G. and N.G. were placed in the custody of their father, Mr. Geerhart, that 12 evening. Id. 13 14 On October 28, 2014, CPS social worker Francesca Guzman visited East Valley Elementary School for a follow-up meeting with J.G. and N.G. Id. at ¶ 20. 15 16 3 17 present when N.G. and J.G. were released and which CPS worker picked up the 18 children from school. ECF Nos. 63 at ¶19; 69 at 6-8. However, there is no dispute 19 that a school administrator was present when the children were released and it was 20 a CPS employee that took custody of the children. The parties dispute which East Valley Elementary School employee was ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 6 1 The purpose of the meeting was to check on the children’s welfare prior to closing 2 their case file. Id. J.G. agreed to meet with Ms. Guzman. Id. After Ms. 3 Guzman’s meeting with J.G., CPS closed the case file. 4 Although she does not remember the event, Lisa Bartheld, the school 5 counselor at East Valley Elementary School, states that she may have been present 6 when Ms. Guzman arrived at school on October 28, 2014. Id. at ¶ 21. At that 7 time, the general practice was that Ms. Bartheld would sit in on student interviews 8 at the student’s request if she was present and available. Id. at ¶ 22. If she did sit 9 in on a student interview, Ms. Bartheld would not ask the student questions, take 10 11 notes, or otherwise participate during the interview. Id. During the 2014-2015 school year, the school nurse at East Valley 12 Elementary School, Melody Ann Luke, treated N.G. for asthma attacks on 13 13 separate occasions. ECF 63 at ¶¶ 24-27. On February 10, 2015, N.G. came to 14 Nurse Luke’s office wheezing, apparently brought on by exercise. Id. at ¶ 28. Ms. 15 Luke administered two puffs from N.G.’s prescribed inhaler, which was kept in the 16 Nurse’s office. Id. at ¶ 29. Although exercise was a trigger for N.G.’s asthma 17 attacks, the order on the inhaler indicated no pretreatment with the inhaler prior to 18 exercise. Id. at ¶ 30. Ms. Luke sent a fax to N.G.’s doctor to clarify whether N.G. 19 should be pretreated. Id. at ¶ 31. She did not receive a response from N.G.’s 20 doctor and never pretreated N.G. with the inhaler prior to exercise without parental ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 7 1 consent. 4 On February 23, 2014, Mr. Geerhart arrived at school and complained 2 about N.G.’s doctor being contacted directly. Id. at ¶ 32. Mr. Geerhart explained 3 that N.G. should not be pretreated with the inhaler for asthma, but instead treated 4 only for asthma attacks that had already occurred. Id. Ms. Luke made a notation 5 of the parent instructions in her records. Id. On the 13 occasions that she treated 6 N.G. with the inhaler during the 2014-2015 school year, Ms. Luke never pretreated 7 N.G. without a parent request to do so. Id. at ¶ 33. 8 DISCUSSION 9 Before reaching the merits of the parties’ summary judgment arguments, the 10 Court first considers Plaintiffs’ Motion to Strike (ECF No. 64). The threshold 11 issue is whether certain disputed documents may properly be considered in 12 deciding the School District Defendants’ pending motion for summary judgment. 13 Plaintiffs argue that the Court should strike two allegedly fraudulent documents 14 from the record or, alternatively, impose appropriate sanctions on the School 15 District Defendants for alleged discovery abuse or pursuant to Federal Rule of 16 Civil Procedure 56(h). ECF No. 64 at 10. The School Defendants filed an 17 18 4 19 Geerhart specifically requested that Ms. Luke treat N.G. prior to running. ECF No. 20 63 at ¶¶ 31, 33. Ms. Luke pretreated N.G. with the inhaler on one occasion when Mr. ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 8 1 objection to Plaintiffs’ Motion to Strike, arguing that Plaintiffs fail to provide any 2 evidence of fraud or discovery violations. ECF No. 73 at 1-2. 3 I. Plaintiffs’ Motion to Strike 4 As discussed, Plaintiffs move the Court to strike two allegedly fraudulent 5 documents from the record—the Child Custody Transfer document provided by 6 the School District Defendants as part of their initial disclosures in August 2017 7 (ECF No. 64, Ex. B) and the Child Custody Transfer document attached to Staci 8 Foster’s declaration in support of Defendants’ Motion for Summary Judgment 9 (ECF No. 64, Ex. A), which was originally produced by DSHS in 2014. Because 10 the documents purport to be the same Child Custody Transfer form but contain 11 visible differences, Plaintiffs allege that the School District Defendants must have 12 engaged in “deception and attempted fraud upon the court, discovery abuse, 13 violation of agreed protocols for preservation, inspection and testing material 14 evidence, and spoliation of evidence.” ECF No. 64 at 2. For the reasons discussed 15 below, the Court denies Plaintiffs’ request to strike the disputed documents. The 16 Court also denies Plaintiffs’ request for sanctions. 17 Under Federal Rule of Civil Procedure 12(f), courts are permitted to strike 18 any “redundant, immaterial, impertinent, or scandalous matter” found to exist in a 19 pleading. Fed. R. Civ. P. 12(f). Here, the disputed documents are not “pleadings,” 20 and the Court is therefore not authorized to strike the documents under Rule 12(f). ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 9 1 The Court does have authority, however, to determine whether the documents may 2 be relied on in ruling on the pending motion for summary judgment. 3 Plaintiffs argue that both versions of the Child Custody Transfer document 4 should be stricken from the record because the documents are fraudulent. ECF No. 5 64 at 2-3. To support this claim, Plaintiffs point out that there are now two 6 different versions of the same Child Custody Transfer document in the record: the 7 version provided by the School District Defendants in discovery, which does not 8 contain Ms. Foster’s signature or a checked box next to RCW 13.32a.050 (ECF 9 No. 64, Ex. B), and the version provided by DSHS in 2014, as attached to Ms. 10 Foster’s declaration in support of Defendants’ Motion for Summary Judgment, 11 which contains Ms. Foster’s signature and a checked box next to RCW 13.32a.050 12 (ECF No. 64, Ex. A). Plaintiffs allege that these differences conclusively establish 13 fraud on the part of the School District Defendants. Id. 14 The Court acknowledges that there are slight differences between the two 15 versions of the Child Custody Transfer document, but ultimately finds these 16 differences insufficient to establish fraud and not material to the disposition of this 17 case. Plaintiffs’ provide allegations of perjury and falsified documentation, but fail 18 to offer evidence to support these claims. Notably, most of Plaintiffs’ allegations 19 focus on two former defendants from previously dismissed lawsuits—Ms. Foster 20 Deputy Hull—not the School District Defendants. As argued before, Plaintiffs ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 10 1 contend that the Child Custody Transfer document in DSHS’s possession is 2 fraudulent because Deputy Hull incorrectly checked “p.m.” instead of “a.m.” and 3 listed all four children at home when two were at school. Id. at 3. Plaintiffs also 4 challenge Deputy Hull’s probable cause determination and accuse Ms. Foster of 5 fraud and perjury because she signed the allegedly fraudulent document. Id. To 6 the extent that Plaintiffs’ allegations focus on former defendants, the Court finds 7 that Deputy Hull and Ms. Foster’s involvement is not at issue here and thus these 8 facts are not relevant. 9 Moreover, the differences between the two documents—i.e., the presence of 10 Ms. Foster’s signature and the checked box next to RCW 13.32a.050—are not 11 material to this case. The document’s importance is only that Deputy Hull made a 12 finding of probable cause and took custody of all four children who were residing 13 with Mr. Lyons, he then transferred legal custody of the children to CPS, and the 14 School District Defendants were presented with a copy of the Child Custody 15 Transfer document to facilitate the release of N.G. and J.G. from school. Only 16 Deputy Hull had authority to take and transfer custody of the children, and his 17 signature appears on both documents. The presence of Ms. Foster’s signature is 18 immaterial. Likewise, regardless of whether the box next to RCW 13.32a.050 is 19 checked or unchecked, the Dependency Petition filed in Yakima County Superior 20 Court clarifies that “[d]ue to the eminent risk of harm to the children, and the ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 11 1 inconsistent story, Yakima Sheriff Deputy Hull took protective custody off all four 2 children ….” ECF No. 29 at 10 (Ex. A). For these reasons, the Court finds that the 3 Child Custody Transfer document provided by the School District Defendants in 4 discovery (ECF No. 64, Ex. B) and the version attached to Ms. Foster’s declaration 5 (ECF No. 64, Ex. A) are admissible and may properly be considered in connection 6 with the School Defendants’ pending Motion for Summary Judgment. 7 As an alternative to striking the disputed documents, Plaintiffs seek 8 sanctions against the School District Defendants for alleged discovery abuse. ECF 9 No. 64 at 7-8. Rule 37(c)(a) allows the court to impose sanctions when a party 10 fails to disclose required information under Rule 26(a) or (e). Fed. R. Civ. P. 11 37(c)(a). Here, Plaintiffs appear to argue that the School District Defendants 12 consciously withheld the Child Custody Transfer document in their possession in 13 an attempt “to obstruct Plaintiff’s discovery and ability to prove the elements of 14 this case.” ECF No. 64 at 7. The School District Defendants respond that 15 Plaintiffs received copies of both disputed documents in a timely fashion through 16 discovery. ECF No. 73 at 3. 17 The Court finds that Plaintiffs’ request for discovery-related sanctions is 18 inappropriate. Stated simply, Plaintiffs have failed to demonstrate that the School 19 District Defendants intentionally withheld or concealed any discovery. Plaintiffs 20 do not dispute that the School District Defendants produced the Child Custody ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 12 1 Transfer document in their possession as part of their initial disclosures, as 2 required under Federal Rule 26(a). Plaintiffs also concede that they received 3 DSHS’s copy of the Child Custody Transfer document, as attached to Ms. Foster’s 4 declaration, in 2014. Because Plaintiffs do not offer any evidence of discovery 5 abuse or spoliation on the part of the School District Defendants, the Court denies 6 Plaintiffs’ request for discovery-related sanctions. 7 Finally, insofar as Plaintiffs seek sanctions under Rule 56(h), the Court finds 8 that sanctions are not appropriate as Plaintiffs fail to establish that the School 9 District Defendants or their attorney submitted Ms. Foster’s declaration in bad 10 faith. ECF No. 64 at 4. Under Rule 56(h), if the Court is satisfied that an affidavit 11 or declaration used to support a motion for summary judgment was submitted in 12 bad faith, the Court has discretion to impose appropriate sanctions on the offending 13 party or attorney. Fed. R. Civ. P. 56(h). Although the term “bad faith” is not 14 defined in the Federal Rules, as used in Rule 56 the phrase indicates actions taken 15 without any colorable legal or factual basis. Sierra Club v. U.S. Army Corps of 16 Engineers, 776 F.2d 383, 390 (2d Cir. 1985). Plaintiffs argue that the Child 17 Custody Transfer document attached to Ms. Foster’s declaration is fraudulent and 18 was therefore submitted in bad faith. ECF No. 64 at 4. The Court finds conclusory 19 allegations of fraud insufficient to evidence bad faith conduct, and denies 20 Plaintiffs’ request for sanctions under Rule 56(h). ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 13 1 In short, the Court denies Plaintiffs’ request to strike the disputed documents 2 or impose sanctions on the School District Defendants. Having deciding this 3 threshold issue, the Court now turns to the merits of the parties’ summary 4 judgment arguments. 5 II. School District Defendants’ Motion for Summary Judgment 6 Summary judgment is appropriate when “there is no genuine dispute as to 7 any material fact and the movant is entitled to judgment as a matter of law.” Fed. 8 R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views the 9 facts, as well as all rational inferences therefrom, in the light most favorable to the 10 non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The Court can only 11 consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 12 (9th Cir. 2002). 13 The party moving for summary judgment bears the initial burden of showing 14 the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 15 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to identify 16 specific facts showing there is a genuine issue of material fact. Anderson v. 17 Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). There must be evidence on which a 18 jury could reasonably find for the plaintiff and a “mere existence of a scintilla of 19 evidence in support of the plaintiff’s position will be insufficient.” Id. at 252. For 20 purposes of summary judgment, a fact is “material” if it might affect the outcome ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 14 1 of the suit under the governing law. Id. at 248. A material fact is “genuine” where 2 the evidence is such that a reasonable jury could find in favor of the non-moving 3 party. Id. 4 5 A. Section § 1983 Claims Plaintiffs primarily argue that the School District Defendants’ participation 6 in CPS’s child abuse investigation violated their rights under the Constitution. 7 Specifically, Plaintiffs assert First, Fourth, and Fourteenth Amendment claims 8 arising from the School Defendants’ participation in the CPS interviews of J.G. 9 and N.G. on school grounds and CPS’s removal of J.G. and N.G. from school. 10 ECF No. 12 at 21-28. Plaintiffs also assert constitutional violations resulting from 11 the School Defendants’ medical treatment of N.G. during the 2013-2014 school 12 year. Id. at 28-30. Finally, Plaintiffs assert a Monell claim premised on Defendant 13 East Valley School District’s policies that permit school employees to observe CPS 14 interviews of students and to release students into the custody of law enforcement 15 or CPS with a written administrative or court order of custody and proper 16 identification. Id. at 28-30. The School District Defendants move for summary 17 judgment as to all of Plaintiffs’ federal claims. ECF No. 54 at 1. 18 Under 42 U.S.C. § 1983, a cause of action may be maintained “against any 19 person acting under color of law who deprives another ‘of any rights, privileges, or 20 immunities secured by the Constitution and laws,’ of the United States.” S. Cal. ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 15 1 Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (quoting 42 U.S.C. 2 § 1983). This statute is designed to protect individuals from an abuse of state 3 power by providing a cause of action against state and local officials who, acting 4 within the scope of their duties, have deprived an individual of a cognizable federal 5 right. See Baker v. McCollan, 443 U.S. 137, 140 (1979). The rights guaranteed by 6 § 1983 are “liberally and beneficially construed.” Dennis v. Higgins, 498 U.S. 7 439, 443 (1991) (quoting Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 8 684 (1978)). “A person deprives another ‘of a constitutional right, within the 9 meaning of section 1983, if he does an affirmative act, participates in another’s 10 affirmative acts, or omits to perform an act which he is legally required to do that 11 causes the deprivation of which the plaintiff complains.’” Leer v. Murphy, 844 12 F.2d 628, 633 (9th Cir. 1988) (brackets and emphasis omitted) (quoting Johnson v. 13 Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). 14 15 1. Individual Defendants are Protected by Qualified Immunity Qualified immunity shields government officials “‘from liability for civil 16 damages insofar as their conduct does not violate clearly established statutory or 17 constitutional rights of which a reasonable person would have known.’” Pearson 18 v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 19 800, 818 (1982)). The defense of qualified immunity serves the dual purpose of 20 holding public officials accountable when they exercise power irresponsibly and ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 16 1 shielding public officials from harassment, distraction, and liability when they 2 perform their duties reasonably. Id. When properly applied, the rule of qualified 3 immunity protects “‘all but the plainly incompetent or those who knowingly 4 violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. 5 Briggs, 475 U.S. 335, 341 (1986)). 6 In deciding whether a government official is protected by qualified 7 immunity, a court must assess (1) whether the facts, viewed in the light most 8 favorable to the plaintiff, show that the defendant’s conduct violated a 9 constitutional right; and (2) whether the right was clearly established at the time of 10 the alleged violation such that a reasonable person in the defendant’s position 11 would have understood that his actions violated that right. Saucier v. Katz, 533 12 U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. 223. A court may, 13 within its discretion, decide which of these two prongs should be addressed first in 14 light of the particular circumstances of the case. Pearson, 555 U.S. at 236. If the 15 answer to either inquiry is “no,” the defendant is entitled to qualified immunity and 16 may not be held personally liable for his or her conduct. Glenn v. Washington 17 Cty., 673 F.3d 864, 870 (9th Cir. 2011). 18 Here, Plaintiffs assert First, Fourth, and Fourteenth Amendment claims 19 against the individual School Defendants. Viewed in the light most favorable to 20 Plaintiffs, this Court finds that the facts alleged fail to show that the individual ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 17 1 School Defendants violated Plaintiffs’ constitutional rights. As such, all of the 2 individual School Defendants are entitled to qualified immunity. 3 a. Coleen Crowston and Lisa Bartheld 4 Plaintiffs assert First and Fourteenth Amendment claims against Ms. 5 Crowston and Ms. Bartheld for their participation in the CPS interviews of J.G. 6 and N.G. at East Valley Elementary School on September 12, 2014 and October 7 28, 2014. Plaintiffs also assert unlawful seizure under the Fourth Amendment. 8 Regarding Plaintiffs’ First and Fourteenth Amendment claims, the Court 9 finds that Ms. Crowston and Ms. Bartheld are entitled to qualified immunity. The 10 Fourteenth Amendment protects the right of parents and children to live together 11 without governmental interference by guaranteeing that children and parents will 12 not be separated by the state without due process of law except in an emergency. 13 Wallis v. Spencer, 202 F.3d 1126, 1136-37 (9th Cir. 2000). Here, however, neither 14 Ms. Crowston nor Ms. Bartheld were involved in the decision to separate J.G. and 15 N.G. from Ms. Lyons and Mr. Teeman. Ms. Crowston sat in on the initial CPS 16 interviews at the request of J.G. and N.G., but did not initiate the student 17 interviews or participate in questioning the students. ECF No. 63 at ¶ 8. Likewise, 18 assuming Ms. Bartheld sat in on CPS’s follow-up meeting with J.G., she did not 19 have the authority to initiate the interview or participate in questioning. Id. at ¶ 22. 20 Viewing the undisputed material facts in the light most favorable to Plaintiffs, this ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 18 1 Court finds no violation of Plaintiffs’ constitutional rights of familial association 2 under the First and Fourteenth Amendments. 3 As to Plaintiffs’ Fourth Amendment claim of unlawful seizure of J.G. and 4 N.G., the Court finds that Plaintiffs’ do not have standing to bring this claim. The 5 Fourth Amendment protects a child from being subject to an unreasonable search 6 or seizure. Wallis, 202 F.3d at 1137 n.8. Absent parental consent, a court order, or 7 exigent circumstances, seizure of a child violates the child’s Fourth Amendment 8 rights. Id. at 1138. Importantly, because Fourth Amendment rights are personal 9 rights, “the general rule is that only the person whose Fourth Amendment rights 10 were violated can sue to vindicate those rights.” Moreland v. Las Vegas Metro. 11 Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998). A parent has no standing to 12 challenge a violation of his or her child’s Fourth Amendment rights. Mabe v. San 13 Bernadino Cty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001). 14 Here, Plaintiffs do not join their children in this suit. Therefore, Plaintiffs, as 15 parents, do not have standing to assert this Fourth Amendment claim. 16 The Court need not consider any clearly established law, as there were no 17 constitutional violations of Plaintiffs’ First, Fourth, or Fourteenth Amendment 18 rights. Accordingly, the Court finds that Ms. Crowston and Ms. Bartheld are 19 protected by qualified immunity and summary judgment is appropriate on these 20 claims. ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 19 1 b. Carolyn Sauve 2 Plaintiffs assert that Ms. Sauve violated J.G. and N.G.’s civil rights 3 “guaranteed to them under the Constitution, the Federal Family Education Act, and 4 Privacy laws of the State of Washington” when Ms. Sauve released 5 “constitutionally protected information over the phone” regarding N.G. and J.G.’s 6 presence at school on September 12, 2014. ECF No. 12 at 3. 7 The Court finds that Ms. Sauve’s conduct did not violate any “clearly 8 established statutory or constitutional rights of which a reasonable person would 9 have known.” Pearson, 555 U.S. at 231. Plaintiffs appear to allege that Ms. 10 Sauve’s conduct violated the Constitution, but fail to identify any cognizable 11 constitutional interest in this regard. And, to the extent that Plaintiffs’ allege a 12 violation of the Federal Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 13 1232g, FERPA’s nondisclosure provisions do not confer individual rights 14 enforceable by § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002). 15 The Court need not consider any clearly established law, as there were no 16 constitutional violations of Plaintiffs rights. Accordingly, the Court finds that Ms. 17 Sauve is protected by qualified immunity and summary judgment is appropriate on 18 this claim. 19 // 20 // ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 20 1 c. Melody-Ann Luke 2 Regarding Ms. Luke, Plaintiffs assert constitutional violations under the 3 First and Fourteenth Amendments for familial association arising from Ms. Luke’s 4 conduct as the school nurse at East Valley Elementary School. ECF No. 12 at 7-8. 5 Specifically, Plaintiffs contend that Ms. Luke interfered with their constitutional 6 right to make heath care decisions for their children when Ms. Luke sent a fax to 7 N.G.’s doctor seeking clarification as to whether N.G. should be pre-treated for 8 asthma. Id. In Plaintiffs’ words, “Ms. Luke took it upon herself to take charge of 9 N.G.’s medical care” and “any reasonable nurse who felt that a prescription which 10 needed changed would know it is unlawful to take it upon themselves to fax a 11 doctor to have said prescription changed.” Id. at 7. 12 While parents generally “have the right, coupled with the high duty” to make 13 judgments concerning their children, which includes deciding whether to seek and 14 follow medical advice, this Court finds that Ms. Luke’s conduct did not infringe 15 upon Plaintiffs’’ ability to exercise this right. Parham v. J.R., 442 U.S. 584, 602 16 (1979). Though Ms. Luke contacted N.G.’s doctor to inquire about the possibility 17 of pre-treating N.G. with the inhaler, at no point did Ms. Luke alter N.G.’s medical 18 treatment or go against Plaintiffs’ instructions regarding N.G.’s medical care. ECF 19 No. 63 at ¶¶ 31-33. On the 13 occasions that Ms. Luke treated N.G. with the 20 inhaler, Ms. Luke administered treatment in accordance with Plaintiffs’ ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 21 1 instructions and never pretreated N.G. without a parent request to do so.5 ECF No. 2 63 at ¶ 33. Because Plaintiffs’ right to make health care decisions for their 3 children was unaffected by Ms. Luke’s actions, Plaintiffs fail to show that Ms. 4 Luke’s conduct violated their constitutional rights. Further, Plaintiffs lack standing 5 to assert this claim because they did not suffer “an ‘injury in fact.’” Lujan v. 6 Defenders of Wildlife, 504 U.S. 555, 560 (1992). 7 The Court need not consider any clearly established law, as there were no 8 constitutional violations of Plaintiffs rights. Accordingly, the Court finds that Ms. 9 Luke is protected by qualified immunity and summary judgment is appropriate on 10 this claim. 11 2. East Valley School District 12 Plaintiffs allege that Defendant East Valley School District violated their 13 constitutional rights by allowing CPS to conduct “illegal interviews” of N.G. and 14 J.G. on school grounds, “aiding and abetting in the illegal seizure of N.G. and 15 J.G.,” and releasing N.G. and J.G. to CPS without a warrant or exigent 16 circumstances. ECF No. 12 at 3. Plaintiffs also assert a Monell claim, arguing that 17 18 5 19 Mr. Geerhart specifically requested that Ms. Luke pretreat N.G. prior to running. 20 ECF No. 63 at 7, ¶33. As noted, Ms. Luke pretreated N.G. with the inhaler on one occasion, where ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 22 1 Defendant East Valley School District implemented an unconstitutional policy that 2 resulted in a deprivation of their constitutional rights. Id. at 28-33. As the basis of 3 their Monell claim, Plaintiffs cite the District policy permitting school personnel to 4 observe CPS interviews with students and to release students into the custody of 5 law enforcement or CPS. Id. at 28-33. 6 Viewing the evidence in the light most favorable to Plaintiffs, the Court 7 finds that Plaintiffs fail to produce sufficient evidence to create a genuine issue of 8 material fact as to whether Defendant East Valley School District violated their 9 constitutional rights by allowing CPS to conduct the student interviews on school 10 grounds and permitting CPS to remove N.G. and J.G. during the school day. As 11 discussed, in regards to the allegedly unlawful student interviews, the School 12 Defendants are not liable for any constitutional violations of separating the family 13 or due process as they had no authority to and did not initiate the interviews or 14 participate in questioning the children. In a similar vein, the School Defendants 15 had no legal authority to decide or participate in the decision to take custody of 16 Plaintiffs’ children and transfer that custody to CPS. Only Deputy Hull had such 17 authority. Finally, insofar as Plaintiffs allege a Fourth Amendment violation 18 against Defendant East Valley School District, Plaintiffs do not have standing to 19 bring this claim. 20 ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 23 1 Turning to Plaintiffs’ Monell claim, Plaintiffs contend that the District 2 policies permitting school employees to (1) observe CPS interviews of students 3 without parental consent, and (2) release students into the custody of law 4 enforcement or CPS, are unconstitutional and deprived Plaintiffs’ of their 5 constitutional rights. ECF No. 12 at 29-31. Under Monell, it is only when an 6 official government policy causes its employees or agents to violate another’s 7 constitutional rights that the government as an entity is liable under § 1983. 436 8 U.S. at 694. Importantly, the official policy must be the moving force behind the 9 constitutional violation. Id. The causation element is essential to sustain a Monell 10 claim. 11 The Court finds that Plaintiffs fail to produce sufficient evidence to create a 12 genuine issue of material fact as to whether Defendant East Valley School District 13 implemented an unconstitutional policy that resulted in a deprivation of Plaintiffs’ 14 constitutional rights. For reasons already discussed, Plaintiffs have not come 15 forward with admissible evidence to demonstrate a triable issue as to any of their 16 constitutional causes of action. As such, contrary to the Plaintiffs’ contentions, the 17 School Defendants’ conduct did not result in a violation of their constitutional 18 rights. This finding is determinative of Plaintiffs’ Monell claim. Under Monell, 19 § 1983 liability cannot attach without an underlying constitutional violation. 436 20 U.S. at 694. The Court need not consider the constitutionality of the District ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 24 1 policies, as there were no constitutional violations of Plaintiffs’ rights. 2 Accordingly, the Court finds that summary judgment for the School Defendants is 3 warranted on Plaintiffs’ Monell claim. 4 In short, the Court determines that summary judgment on these federal 5 claims is warranted given that the School Defendants are entitled to qualified 6 immunity and Plaintiffs have not come forward with admissible evidence to 7 demonstrate a triable issue at to any one of these federal causes of action. 8 9 B. State Law Claims Plaintiffs also assert several state law claims against the School Defendants, 10 including intentional infliction of emotional distress, assault, battery, false 11 imprisonment, abuse of process, invasion of privacy, declaratory relief, negligence, 12 and violation of “State Civil Rights.” ECF No. 12 at 2. 13 The School District Defendants argue that Plaintiffs’ state law claims should 14 be dismissed for failure to submit a tort claim at least sixty days before filing suit, 15 as required under state law. ECF No. 54 at 16. In Washington, a local government 16 entity may be liable for damages arising from its tortious conduct to the same 17 extent as if it were a private person or corporation. RCW 4.96.010(1). However, 18 pursuant to RCW 4.96.020, prospective plaintiffs must file a tort claim with the 19 20 ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 25 1 local government at least 60 days prior to filing a lawsuit. 6 The purpose of this 2 claim filing statute is “to allow government entities time to investigate, evaluate, 3 and settle claims” before they are sued. Medina v. Pub. Util. Dist. No. 1, 147 4 Wash. 2d 303, 310 (2002). The claim filing statute is to be liberally construed 5 such that substantial compliance is satisfactory. Lee v. Metro. Parks Tacoma, 183 6 Wash. App. 961, 968 (2014). In this context, substantial compliance means that 7 the “‘statute has been followed sufficiently so as to carry out the intent for which 8 the statute was adopted.’” Id. at 967–68 (quoting Banner Realty, Inc. v. Dep’t of 9 Revenue, 48 Wash. App. 274, 278 (1987)). However, failure to comply with the 10 statute is grounds for dismissal. Mercer v. State, 48 Wash. App. 496, 498 (1987). 11 By the plain language of RCW 4.96.020, Plaintiffs’ state law claims against 12 Defendant East Valley School District and its employees are subject to RCW 13 4.96.020’s notice requirement. Plaintiffs do not allege otherwise. Nor do 14 Plaintiffs dispute the fact that they failed to provide the required notice. According 15 16 6 17 governmental entity, or against any local governmental entity’s officers, 18 employees, or volunteers, acting in such capacity, shall be presented to the agent 19 within the applicable period of limitations within which an action must be 20 commenced.” RCW 4.96.020(b). According to RCW 4.96.020, “[a]ll claims for damages against a local ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 26 1 to East Valley School District policy, the Superintendent of East Valley School 2 District receives and reviews notices of tort claims. ECF 57 at ¶ 5. The 3 Superintendent has never received a notice of tort claim from Plaintiffs or from 4 anyone else on their behalf. Id. at ¶ 6. In their response brief, Plaintiffs do not 5 assert that they filed the required notice, nor do they provide any evidence to 6 contradict the School Defendants’ evidence that no notice was received. ECF No. 7 68. 8 9 The Court finds that there is no genuine dispute that RCW 4.96.020’s notice requirement applies to all of Plaintiffs’ state law tort claims against all of the 10 School Defendants in this matter, and Plaintiffs were therefore required by RCW 11 4.96.020 to provide a notice of tort claim to Defendant East Valley School District 12 and then to wait sixty days before commencing suit. Plaintiff undisputedly did not 13 provide the required notice. Thus, Plaintiffs have failed to substantially comply 14 with RCW 4.96.020’s requirements and dismissal of Plaintiffs’ state law tort 15 claims is appropriate. 16 Finally, the School District Defendants assert that Plaintiffs are not entitled 17 to declaratory or injunctive relief. ECF No. 54 at 15-16. The School Defendants 18 argue that although Plaintiffs label their claim as one for declaratory relief, what 19 Plaintiffs really seek is a preliminary injunction. Id. at 15. The School Defendants 20 contend that equitable relief is inappropriate because the Plaintiffs cannot prove the ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 27 1 elements required to obtain a preliminary injunction, including a likelihood that 2 they will succeed on the merits and suffer irreparable harm in the absence of 3 injunctive relief. Id. at 15-16; Int’l Francise Ass’n, Inc. v. City of Seattle, 803 F.3d 4 389, 399 (9th Cir. 2015). Plaintiffs do not address this issue in their response. 5 ECF No. 68. The Court dismisses Plaintiffs’ claims for declaratory or injunctive 6 relief as the School Defendants are entitled to summary judgment on all claims and 7 thus no declaratory or injunctive relief is available. 8 Accordingly, the Court finds that summary judgment on these state law 9 claims is warranted. Plaintiffs failed to substantially comply with RCW 4.96.020’s 10 requirements and Plaintiffs have not come forward with admissible evidence to 11 demonstrate a triable issue as to any one of these causes of action. 12 Having found that summary judgment is warranted in favor of the School 13 District Defendants, the Court denies as moot Plaintiffs’ Motion for Summary 14 Judgment (ECF No. 68). The School Defendants’ Motion to Strike (ECF No. 74) 15 and Motion in Limine (ECF No. 81) are also denied as moot. 16 ACCORDINGLY, IT IS HEREBY ORDERED: 17 1. Plaintiffs’ Motion to Strike (ECF No. 64) is DENIED. 18 2. School Defendants’ Motion for Summary Judgment (ECF No. 54) is 19 GRANTED. 20 ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 28 1 2 3. Plaintiffs’ Motion for Summary Judgment (ECF No. 68) is DENIED as moot. 3 4. School Defendants’ Motion to Strike (ECF No. 74) is DENIED as moot. 4 5. School Defendants’ Motion in Limine (ECF No. 81) is DENIED as 5 6 moot. The District Court Executive is directed to enter this Order and Judgment for 7 Defendants accordingly, furnish copies to counsel, and CLOSE the file. 8 The deadlines, hearings and trial date are VACATED. Each party to bear its own 9 costs and expenses. 10 DATED September 12, 2018. 11 12 THOMAS O. RICE Chief United States District Judge 13 14 15 16 17 18 19 20 ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 29

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