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Capp v. County of San Diego

United States Court of Appeals, Ninth Circuit

October 4, 2019

Jonathan C. Capp; N.C., a minor, by and thru their Guardian ad litem; J.C., a minor, by and thru their Guardian ad litem, Plaintiffs-Appellants,
County of San Diego; Kathy Jackson; Bob Prokesch; Johanna Firth; San Diego Health and Human Services Agency, Defendants-Appellees.

          Argued and Submitted July 10, 2019 Pasadena, California

          Appeal from the United States District Court No. 3:16-cv-02870-AJB-MDD for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

          Jonathan Charles Capp (argued), Law Offices of Jonathan C. Capp, San Diego, California, pro se Plaintiff-Appellant.

          Christina Snider (argued), Senior Deputy; Thomas E. Montgomery, County Counsel; Office of County Counsel, San Diego, California; for Defendant-Appellee.

          Before: MILAN D. SMITH, JR. and MICHELLE T. FRIEDLAND, Circuit Judges, and STANLEY A. BASTIAN, [*] District Judge.


         Civil Rights

         The panel withdrew its opinion filed August 30, 2019, and filed a superseding opinion that affirmed in part and reversed in part the district court's dismissal of plaintiffs' claims as insufficiently pled in an action brought by Jonathan Capp and his two minor children arising from a child welfare investigation undertaken by County of San Diego social workers that allegedly violated plaintiffs' First, Fourth, and Fourteenth Amendment rights.

         Plaintiffs asserted, in part, that social workers retaliated against Capp in violation of the First Amendment after he questioned abuse allegations against him and criticized the County. Plaintiffs asserted that defendants placed Capp on the Child Abuse Central Index and coerced his ex-wife to file an ex parte custody application.

         The panel first rejected the retaliation claim premised on the Child Abuse Central Index listing. The panel held that taking the allegations as a whole, the first amended complaint did not plausibly allege that Capp was placed on the Index as intentional retaliation. Focusing on plaintiffs' allegation that defendant social worker coerced Capp's former wife to file the ex parte custody application, the panel found that pursuant to the liberal pleading standard afforded pro se litigants, plaintiffs plausibly alleged that Capp engaged in protected activity, that the alleged retaliation would objectively have had a chilling effect and that retaliation was the but-for motive for the social worker's actions. Plaintiffs therefore pleaded a plausible First Amendment retaliation claim. The panel further concluded that the accused defendant social worker was not entitled to qualified immunity. The panel held that a reasonable official would have known that taking the serious step of threatening to terminate a parent's custody of his children, when the official would not have taken this step absent her retaliatory intent, violates the First Amendment. The panel held that because plaintiffs alleged that retaliatory animus was the but-for cause of defendant's conduct, defendant was not entitled to qualified immunity.

         The panel held that the district court properly dismissed plaintiffs' Fourth Amendment and Fourteenth Amendment claims, and claims brought pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978), which alleged that defendants interviewed the minor children while they were at school without Capp's consent. The panel held that the first amended complaint contained no facts as to whether the interviews were conducted without either parent's permission, the length of the interviews, or the specific circumstances of the interviews. Moreover, the panel held that even if plaintiffs had pleaded a plausible Fourth Amendment claim, defendants would be entitled to qualified immunity because the right of minor children to be free from unconstitutional seizures and interrogations by social workers had not been clearly established.

         Rejecting the Fourteenth Amendment substantive due process claim, the panel held that although Capp might have been subjected to an investigation by the County's Health and Human Services Agency, that alone was not cognizable as a violation of the liberty interest in familial relations. The panel rejected the Monell claim, concluding that plaintiffs failed to plead a plausible constitutional violation stemming from defendants' interviews with the children. Moreover, even if plaintiffs had pleaded a plausible Fourth Amendment claim, the first amended complaint ascribed defendants' alleged misconduct to official policy in a conclusory fashion that was insufficient to state a viable claim.


         The opinion filed August 30, 2019, and reported at ___ F.3d ___, 2019 Westlaw 4123515, is hereby withdrawn. A superseding opinion will be filed concurrently with this order.



         Plaintiffs Jonathan Capp and his children, N.C. and J.C., assert § 1983 and Monell claims against Defendants County of San Diego (the County); the County's Health and Human Services Agency (the Agency); and Kathy Jackson, Bob Prokesch, and Johanna Firth, social workers employed by the Agency. The action stems from a child welfare investigation undertaken by Defendants that allegedly violated Plaintiffs' First, Fourth, and Fourteenth Amendment rights.

         The district court dismissed all of Plaintiffs' claims as insufficiently pleaded or barred by qualified immunity. We agree that Plaintiffs' first amended complaint (FAC) fails to plausibly allege Fourth Amendment, Fourteenth Amendment, and Monell claims. We also conclude, however, that Plaintiffs plead a viable First Amendment retaliation claim, and that Defendants are not entitled to qualified immunity on this claim.


         I. Factual Background

         The facts as presented are derived from Plaintiffs' FAC. For purposes of our analysis, we accept the allegations as true. See Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003).

         Capp is the father of two minor children, N.C. (age 11 at the time Plaintiffs filed their FAC) and J.C. (age 9), whose legal custody he shares with their mother, Debora. Capp and Debora were in the midst of divorce proceedings at the time of Defendants' investigation.

         On August 13, 2015, the Agency received a referral alleging that N.C. and J.C. "may be at-risk of General Neglect, Severe Neglect, and Emotional Abuse by Jonathan Capp." Firth, a social worker, informed Capp that "she wished to speak with him regarding his children and referenced a substance abuse problem"; the two arranged a meeting for August 26. During that meeting, Capp learned that Firth had interviewed N.C. and J.C. at their elementary school "without [Capp's] consent." Although Capp repeatedly asked for clarification regarding the allegations against him, Firth was evasive and "unilaterally terminated the interview."

         That same day, Capp sent a letter to the Agency, calling the interview "Kafkaesque" and deeming the "offensive allegations (whatever they may be) [] bogus and extremely offensive." The letter chastised Firth for "fle[eing]" the meeting, and for "interview[ing Capp's] children without [his] consent." Capp concluded, "In any event, be in no doubt that if you continue on your unlawful and unconstitutional course I will take this matter even further."

         Soon after, Capp learned that Debora's attorney "had instructed her client to withhold custody of the children pursuant to 'instructions from [the Agency], '" which had apparently told Debora to "apply ex-parte to the San Diego family court . . . to take custody from [Capp]." Indeed, a declaration from Debora filed with the application read in part,

Firth gave me a letter . . . advising me not to force our children to visit with their father. It was suggested strongly to me that I seek legal action immediately to keep our children safe. They have been indicating to me that they do not want to see their father, who is often angry with them, yells at them, calls them names (such as "spoiled" and "b-"), and scares them.

         Subsequently, the family court "denied the application and rebuked [the Agency]." Capp spoke with Jackson, Firth's supervisor, who assured him that she "would make sure that all appropriate procedures would be followed" and that "the case would be closed." Prokesch later interviewed Capp and "could not in any way articulate any serious (or even significant or any) allegations against [him]," though Prokesch did mention an allegation that Capp "may have driven the children in a car whilst under the influence." Eventually, Jackson, Firth, and Prokesch signed a letter to the court indicating that the evidence against Capp was "inconclusive." The Agency then closed the referral.

         The closing of the referral notwithstanding, Capp later received a letter from the Agency informing him that "the allegations of abuse or severe neglect" were, in fact, "substantiated," and that Capp had consequently been placed on the Child Abuse Central Index (CACI).[1] After Capp complained to Jackson and others, another employee of the Agency allegedly "confirmed again that he was on the CACI register but that she would recommend that he be taken off." Capp was later informed that "due to a clerical or administrative error or issue," he "had not been placed on the CACI at all," despite his having been informed otherwise. He eventually received a letter from the Agency confirming that his "name has not been listed on the [CACI]."

         II. Procedural History

         Plaintiffs filed their initial complaint in November 2016. The district court granted Defendants' first motion to dismiss with leave to amend, and Plaintiffs subsequently filed the FAC.

         Plaintiffs' § 1983 claim asserts in part that Defendants retaliated against Capp in violation of the First Amendment. They allege that after Capp exercised his First Amendment rights by questioning the abuse allegations against him and the legal basis for Firth's interviews, and then by lodging various criticisms against the County, Firth "coerced" Debora to file the ex parte application and, together with Jackson and Prokesch, placed him on the CACI. They also allege that these actions, and the investigation generally, violated Capp's Fourteenth Amendment right to familial association, and that the interviews with the children violated their Fourth Amendment right to be free from unreasonable seizure. Plaintiffs also assert a cause of action pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978), based on the County's alleged "policy of detaining and interviewing children without exigent circumstances . . ., court order or consent of their parent," in violation of the Fourth Amendment.

         Defendants again moved to dismiss, and the district court granted the motion as to all causes of action except the First Amendment retaliation claim. As to this remaining claim, the district court concluded that, "[w]hile there is no precedent directly on point that allows First Amendment retaliation claims to go forward against social workers," Firth and Prokesch could not claim qualified immunity because "[r]easonable social workers in Defendants' positions know or should know that baselessly ...

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