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.
and Submitted July 10, 2019 Pasadena, California
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.
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.
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.
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
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
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.
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.
SMITH, CIRCUIT JUDGE:
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
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.
AND PROCEDURAL BACKGROUND
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).
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
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."
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
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.
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.
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). 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
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.
§ 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.
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 ...