Opinion
No. CV-16-01599-PHX-GMS
05-15-2018
David Bernstein, et al., Plaintiffs, v. State of Arizona, et al., Defendants.
ORDER
Pending before the Court is Plaintiffs David Bernstein and Cindy Stickler's motion for partial summary judgment. (Doc. 89). It is denied.
BACKGROUND
Plaintiffs David Bernstein and Cindy Stickler are the parents of two daughters, "NB" and "DB". Since 2013, NB has been in custody of the Arizona Department of Child Safety ("DCS"). In February 2015, NB told her therapist that her father sexually abused her when she was younger, and the therapist reported the claim to DCS. At the time of NB's claims, DB lived at home with their father.
Defendant Thermes was NB's case worker at DCS, Defendant Rexin was Ms. Theremes' supervisor, and Defendant Slover was the DCS assistant program manager. When DCS received the report concerning Mr. Bernstein's alleged abuse, these three DCS employees agreed to remove DB from Mr. Bernstein's home and take her into immediate temporary custody. At the preliminary protective hearing, plaintiff Ms. Stickler requested an immediate Temporary Custody Hearing because the family was about to leave on their annual cruise, and the parents wanted DB to travel with them. Given the circumstances, the judge heard the case based on the attorneys' avowals, and the judge dismissed DCS's petition and allowed DB to return to her family.
In January 2016, Mr. Bernstein and Ms. Stickler filed a lawsuit in state court against DCS and the state of Arizona. The complaint's eight counts include (1) Intentional Infliction of Emotional Distress, (2) Wrongful Prosecution of a Civil Action, (3) Negligent Hiring, Retention or Supervision, (4) Intentional Interference with Parental Custody of a Child, (5) Negligence, (6) Interference with Parental Custody, (7) Malicious Prosecution, and (8) Retaliation. Because plaintiffs brought counts six, seven, and eight under 42 U.S.C. § 1983, the defendants removed the case to federal court. In the present motion, plaintiffs request the Court to grant partial summary judgment finding liability as a matter of law on counts two, three, four, five, six, and seven.
DISCUSSION
I. Legal Standard
The Court grants summary judgment when the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In making this determination, the Court views the evidence "in a light most favorable to the non-moving party." Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). Substantive law determines which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A fact issue is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248).
II. Analysis
In short, the plaintiffs argue that res judicata and collateral estoppel preclude the state from relitigating whether DCS had probable cause to remove DB from her parents' home because at a preliminary protective hearing the state court dismissed the dependency petition as to DB. Plaintiff further asserts that the dismissal of the dependency petition is a finding that the state did not have probable cause to remove the child and thus results in summary judgment on liability for the plaintiffs for counts two through seven.
A. Res Judicata and Collateral Estoppel
Res judicata and collateral estoppel bar parties from litigating claims or issues that have already reached final judgment before a competent court. Allen v. McCurry, 449 U.S. 90, 94 (1980). These legal principles apply to § 1983 claims in federal court. Id. One of the primary considerations is whether the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue in the earlier case. Id. at 95 (citing Montana v. U.S., 440 U.S. 147, 153 (1979)).
"Res judicata, also known as claim preclusion, bars litigation in a subsequent action of any claims that were raised or could have been raised in the prior action." Western Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997). Res judicata applies whenever there is "(1) an identity of claims, (2) a final judgment on the merits, and (3) identity of privity between parties." Id. Collateral estoppel, also known as issue preclusion, "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443 (1970). Under Arizona law, collateral estoppel requires that "(1) the issue must have been actually litigated in a previous proceeding, (2) the parties must have had a full and fair opportunity and motive to litigate the issue, (3) a valid and final decision on the merits must have been entered, (4) resolution of the issue must be essential to the decision, and (5) there must be common identity of the parties." Garcia v. General Motors Corp., 195 Ariz. 510, 514 (App. 1999).
The Arizona family court's decision to return DB to the custody of her parents and dismiss the dependency petition as to the parents is, apparently, an established fact But, the determination to return a child to her parent under state dependency law is not the same claim or same proceeding, nor does it have the same parties as the tort claims or § 1983 claims made here. None of the individual defendants were parties in the state court decision. (Doc. 90, Exh. 1). Due to the short period of time between NB's allegations of abuse and the family's cruise, the judge's state court decision was based on the attorneys' avowals and was not based on presentation of evidence. (Doc. 90, Exh. 1 at 6-8). Although DCS was a party in the decision, it based its argument on whether the child should be in state custody, and not whether its employees were liable. The Defendants did not have a full and fair opportunity and motive to litigate the issue, and thus the state court's judgment does not have preclusive effect in this civil rights lawsuit. The Court therefore denies summary judgment concerning res judicata and collateral estoppel.
B. Probable Cause
In the alternative, Plaintiffs request the Court to grant summary judgment and find that DCS did not have probable cause to remove DB from her parents' home. In response, the Defendants assert that Arizona law allows child safety workers to take a child into temporary custody if reasonable grounds exist to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect. A.R.S. § 8-821(A). Child safety workers must consider the child's health and safety as a paramount concern in making this decision. A.R.S. § 8-821(C).
DCS based the decision to remove DB on several factors. DCS first considered whether to remove DB from the home when NB told a service provider that their father molested NB when she was younger. (Doc. 96 ¶ 1). About eleven years prior to NB's allegation, DB acted very unusually and sexually at day school, and she repeatedly complained that her "coochie" hurt. (Doc. 96 ¶¶ 28-32). A sheriff's report noted that DB's "behavior and statements . . . lead the school program director to suspect that [DB] was the victim of sexual abuse" and that her father was the primary suspect. (Doc. 96, Exh. 67 at 1). Over time, the family was the subject of multiple reports, including eleven recorded allegations of sexual abuse. (Doc. 96, Exh. 68 at 13). DB stated in an extensive November 2013 report that "she does not want to live in the home as the parents are picking on her." (Doc. 96, Exh. 68 at 12). The same entry noted that "DB does not appear to have her basic needs met at home" as her "hair is matted and appears as though she has not showered in several days" and "is often observed with an odor." (Doc. 96, Exh. 68 at 12). Plaintiffs point to the facts that the allegations of sexual abuse against the father were unsubstantiated, NB lacks credibility, and DB's behavior in primary school occurred years prior to the removal from the home. However, viewing the facts in a light most favorable to the nonmoving party, Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), there are issues of fact that prevent granting Plaintiffs' motion.
The Plaintiffs assert that lack of probable cause is necessary for their claims of wrongful prosecution of a civil action (Count 2), intentional interference with parental custody of a child (Count 4), interference with parental custody (Count 6), and malicious prosecution (Count 7). (Doc. 89). Additionally, the Plaintiffs base their negligence claims (Counts 3 and 5) on DCS' lack of probable cause before removing DB from her parent's home. (Doc. 40). Therefore, the Court denies summary judgment concerning these counts. /// /// ///
CONCLUSION
IT IS HEREBY ORDERED that Plaintiffs David Bernstein and Cindy Stickler's motion for partial summary judgment, (Doc. 89), is DENIED.
Dated this 15th day of May, 2018.
/s/_________
Honorable G. Murray Snow
United States District Judge