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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

8 HENRY A., by his next friend M.J., et al., )

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Plaintiffs,

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v.

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11 MICHAEL WILLDEN, Director of the Nevada )

Department of Health and Human Services, )

12 et al.

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Defendants.

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14 ___________________________________ )

2:10-cv-00528-RCJ-PAL ORDER

15

Currently before the Court is a Motion to Dismiss, or, in the alternative, Motion for a

16 More Definite Statement filed by Defendants Clark County, Virginia Valentine, and Tom

17 Morton (collectively referred to herein as the “Clark County Defendants”) on May 7, 2010.

18 Also before the Court is a Motion to Dismiss, or, in the alternative, Motion for More Definite

19 Statement filed by Defendants Michael Willden and Diane Comeaux (collectively referred to

20 herein as the “State Defendants”) on May 10, 2010. Plaintiffs filed a Consolidated Opposition

21 (#36) on May 27, 2010. The State Defendants filed a Reply (#39) on June 7, 2010, and the

22 Clark County Defendants filed a Reply (#41) on June 9, 2010.

23

The Court heard oral argument on the motions on October 19, 2010.

24

BACKGROUND

25

The following is a recitation of facts taken from the Complaint (#1) filed on April 13,

26 2010.

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Plaintiffs are thirteen children who are in or have been in the legal custody of the State

28 of Nevada and/or Clark County and placed in foster care. Plaintiffs seek redress for harms

1 suffered while in the foster care system, and have filed individual claims for damages,

2 declaratory and injunctive relief. Plaintiffs have also filed class action claims for declaratory

3 and injunctive relief.

4

According to the complaint, Plaintiffs were removed from the care of their parents and

5 placed in Defendants’ custody for the explicit purpose of keeping them safe from harm and

6 ensuring their well-being. Despite this purpose, Plaintiffs state that Defendants’ child welfare

7 system routinely fails in its legal obligations, duties and responsibilities to the Plaintiffs.

8 Although Defendants are long aware of these failures, Plaintiffs assert that in many instances

9 Defendants’ proposed solutions to the problems are ineffective. Moreover, Plaintiffs state that

10 Defendants’ policies and customs (i) fail to comply with federal and state laws, (ii) depart

11 substantially from professional judgment, standards and practices, and (iii) reflect a deliberate

12 indifference to the health and safety of the children Defendants are obligated to protect. As

13 a result of Defendants’ failures, Plaintiffs state that they have suffered numerous injuries

14 including: severe physical abuse, lack of necessary medical treatment, and multiple placement

15 disruptions.

16

According to Plaintiffs, Nevada law grants explicit responsibility and authority to the

17 State Defendants to develop and promulgate child welfare policies. However, Plaintiffs assert

18 that the State Defendants have abdicated this responsibility in large respect. As a result,

19 Plaintiffs state that the Clark County Defendants have created many of their own child welfare

20 policies. According to Plaintiffs, this mixture of state and county policies makes it virtually

21 impossible to determine what policies actually apply and confounds the ability of even the

22 most well-intentioned staff to determine what their responsibilities are to the children on their

23 caseload.

24

The complaint asserts that Nevada’s foster care system is financed through a mixture

25 of federal, state, and county funds. According to Plaintiffs, the State provides funding to Clark

26 County for operation of its foster care program, while Clark County is responsible for providing

27 funding for child protective services within the county. Plaintiffs assert that the State also

28 receives millions of dollars of federal funds for its child welfare system and allocates a portion

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1 of those funds to Clark County. Federal funds are the single greatest support of Nevada’s

2 child welfare system, ranging each year from 53% to 55% of all state spending on child

3 welfare.

4

According to the complaint, to become eligible for federal funding, Nevada agreed to

5 administer its foster care program in accordance with federal statutes, regulations, and

6 policies promulgated by the U.S. Department of Health and Human Services. The U.S.

7 Department of Heath and Human Services conducts periodic reviews to assess whether

8 Nevada is in compliance with those federal mandates. Federal reviews were conducted in

9 both 2004 and 2009. Plaintiffs state that the 2004 review of Nevada’s foster care program

10 found that Nevada was not in substantial compliance with any of the seven child welfare

11 outcomes designed to ensure children’s safety, permanency and well being. Plaintiffs state

12 that the State’s performance continued to fall below national standards in the 2009 Federal

13 Review. In 2009, Nevada was only in substantial compliance with one of the seven child

14 welfare outcomes designed to ensure children’s safety, permanency and well being.

15

Plaintiffs state that since 2003, more than ten studies and reports have documented

16 the Defendants’ failure to protect the health, safety and well being of child abuse victims and

17 children in foster care. According to Plaintiffs, Defendants commissioned many of these

18 reports. In addition, Defendants have conducted multiple case reviews that further document

19 these failures. Based on these reports and reviews, Plaintiffs assert that Defendants have

20 had full knowledge of the system’s deficiencies and have failed to remedy the problems.

21 Specifically, Plaintiffs state that Defendants failed (i) to adequately train and supervise

22 caseworkers, (ii) to meet the needs of children under their care, (iii) to ensure that

23 caseworkers conduct legally required visits with foster children, and (iv) to take reasonable

24 and legally mandated steps to protect children from harm. Because of these failures, Plaintiffs

25 allege that Defendants are victimizing foster children rather than discharging their duty to

26 provide for their safety and well-being. Plaintiffs state that they have been physically,

27 emotionally and psychologically harmed by the deficiencies in Defendants’ policies, customs

28 and omissions.

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Plaintiffs filed a complaint in this action seeking compensatory and punitive damages

2 for the past harms that Plaintiffs suffered while in the custody of Defendants. The action also

3 seeks declaratory and injunctive relief to stop continuing violations of Plaintiffs’ legal rights

4 and to prevent Defendants, through their policies, customs and omissions, from continuing to

5 harm the children they have a responsibility to protect. In addition, the lawsuit seeks

6 declaratory and injunctive relief on behalf of certain specified classes of children in the Clark

7 County foster care system based on Defendants’ alleged failure to fulfill mandatory

8 obligations.

9

There are five named Defendants in this action: (1) Michael Willden (“Willden”),

10 Director of the Nevada Department of Health and Human Services; (2) Diane Comeaux

11 (“Comeaux”), Administrator of the Nevada Division of Child and Family Services; (3) Virginia

12 Valentine (“Valentine”), Clark County Manager; (4) Tom Morton (“Morton”), Director of Clark

13 County Department of Family Services; and (5) Clark County. Plaintiffs have filed the following

14 individual claims against the Defendants: (1) Section 1983 - Duty to Protect; (2) Section 1983

15 - State Created Danger; (3) Section 1983 - Federal Adoption Assistance Act and Child

16 Welfare Act, Federal Child Abuse Prevention and Treatment and Adoption Reform; (4)

17 Substantive Due Process under the Nevada Constitution; (5) Negligence; (6) Violation of the

18 Supremacy Clause - NRS 424.090; and (7) Violation of the Supremacy Clause - NRS

19 432.0177. Plaintiffs have also filed several class claims against Defendants. These include:

20 (1) Section 1983 - Federal Adoption Assistance Act and Child Welfare Act, Federal Child

21 Abuse Prevention and Treatment and Adoption Reform; (2) Section 1983 - Child Abuse

22 Prevention and Treatment Act, Guardian Ad Litem; (3) Section 1983 - Child Abuse Prevention

23 and Treatment Act, Early Intervention Services; (4) Section 1983 - Duty to Protect; and (5)

24 Substantive Due Process under the Nevada Constitution.

25

Defendants move to dismiss the claims asserted against them pursuant to Federal Rule

26 of Civil Procedure 12(b)(6) on the grounds that they are entitled to immunity and the causes

27 of action fail to state claims for relief upon which relief may be granted.

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DISCUSSION

2 I. Immunity

3

The Clark County Defendants move the Court to dismiss the claims asserted against

4 them on the basis that they are immune from suit in both their official and individual capacities.

5 (Mot. to Dismiss (#20) at pp. 7-13). The Clark County Defendants state that all “of the acts

6 allegedly taken by Ms. Valentine and Mr. Morton are discretionary acts for which Ms.

7 Valentine and Mr. Morton as individuals are absolutely immune from suit.” Id. at 9. In

8 addition, the Clark County Defendants state that they are entitled to qualified immunity for the

9 causes of action asserted against them because they “both were acting in the course and

10 scope of their job responsibilities,” and Plaintiffs’ claims do not state that “clearly established

11 rights have been violated.” Id. at 11. Finally, the Clark County Defendants state that they are

12 entitled to immunity as to the state law causes of action because the alleged unlawful acts

13 asserted are discretionary in nature. Id. at 12.

14

The State Defendants also argue that they are entitled to immunity as to the claims

15 asserted against them in Plaintiffs’ complaint. (Mot. to Dismiss (#21) at 4). According to the

16 State Defendants, they are entitled to immunity because Plaintiffs have failed to sufficiently

17 plead the substantive due process claims against them. Id. The State Defendants also move

18 to dismiss the claims asserted against them for failure to state a claim upon which relief can

19 be granted.

20

In response, Plaintiffs argue that the Defendants are not entitled to immunity on any

21 of the causes of action asserted against them. (Consolidated Opp’n (#36) at 22). According

22 to Plaintiffs, it is well established that local government officials, such as Defendants, can be

23 sued in their official capacities under section 1983. Id. at 22. In addition, Plaintiffs state that

24 the Defendants have cited no authority for the proposition that they are entitled to individual

25 absolute immunity for their official actions. Id. at 23. Plaintiffs state that Defendants are not

26 entitled to qualified immunity because they were not engaged in discretionary conduct but in

27 mandatory, ministerial statutory duties. Id. at 25. Moreover, Plaintiffs state that even with

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1 respect to duties that involve some measure of discretion, Defendants are not entitled to

2 qualified immunity because their conduct violated Plaintiffs’ clearly established rights. Id.

3

A. Official Capacity Immunity

4

Official capacity immunity derives from the doctrine of state sovereign immunity. See

5 Indep. Living Ctr. v. Maxwell-Jolly, 572 F.3d 644, 660 (9th Cir. 2009). The doctrine of state

6 sovereign immunity generally prohibits damage suits against states in both state and federal

7 court without their consent. Id. The doctrine comes from the Eleventh Amendment, but its

8 essence “derives . . . from the structure of the original Constitution itself.” Id. (quoting Alden

9 v. Maine, 527 U.S. 706, 728, 119 S.Ct. 2240 (1999)). The Supreme Court has held that state

10 sovereign immunity bars citizens of any state from bringing a lawsuit for damages against a

11 state or state agency. Id. (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct.

12 2304 (1989)). However, there are several well-established exceptions to this general rule.

13 Id.

14

One of the exceptions provides that “[a]lthough the Eleventh Amendment expressly

15 prohibits suits against states in both law and equity, a plaintiff may nonetheless maintain a

16 federal action to compel a state official’s prospective compliance with the plaintiff’s federal

17 rights.” Id. (quoting Ex parte Young, 209 U.S. 123, 156, 28 S.Ct. 441 (1908)). This exception

18 applies only to prospective relief; it does not permit retroactive injunctive relief. Id.

19

In this case, Defendants are not immune from suit in their official capacity for claims

20 seeking prospective injunctive relief. In the Complaint, Plaintiffs assert that in addition to

21 damages, they are seeking injunctive relief to stop continuing violations of Plaintiffs’ legal

22 rights and to prevent Defendants from continuing to harm Plaintiffs through unconstitutional

23 policies and customs. In their opposition, Plaintiffs assert that they are not seeking monetary

24 damages from the Defendants in their official capacity. Thus, because Plaintiffs concede that

25 they are only seeking prospective injunctive relief against Defendants in their official capacity,

26 Defendants are not entitled to immunity on that basis.

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B. Individual Capacity Immunity

2

Defendants also move the Court to dismiss the claims asserted against them in their

3 individual capacity on the grounds that they are entitled to qualified immunity.

4

Title 42 U.S.C. § 1983 provides that “[e]very person who, under color of [law], subjects,

5 or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights,

6 privileges, or immunities secured by the Constitution and laws, shall be liable to the party

7 injured in an action at law . . . or other proper proceeding for redress.” A plaintiff may pursue

8 a 42 U.S.C. § 1983 claim against a state or government official in his or her individual

9 capacity, seeking to impose personal liability on that official. Suever v. Connell, 579 F.3d

10 1047, 1060 (9th Cir. 2009). To succeed on the merits of such a claim, a plaintiff must show

11 that “the official, acting under color of state law, caused the deprivation of a federal right.” Id.

12 (quoting Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358 (1991)).

13

On its face, section 1983 does not include any defense of immunity. Miller v. Gammie,

14 335 F.3d 889, 895 (9th Cir. 2003). However, the Supreme Court has recognized two kinds

15 of immunity under a section 1983 claim: “absolute immunity” and “qualified immunity.” See

16 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982)).

17

The Clark County Defendants argue that they are entitled to “absolute immunity” on the

18 claims asserted against them.

19

The United State Supreme Court extends absolute immunity under section 1983 only

20 to a “very limited class of officials, including the President of the United States, legislators

21 carrying out their legislative functions, and judges carrying out their judicial functions, ‘whose

22 special functions or constitutional status requires complete protection from suit.’” Hafer, 502

23 U.S. at 29, 112 S.Ct. 358. “State executive officials are not entitled to absolute immunity for

24 their official actions.” Id.

25

The Supreme Court has expressly failed to extend the doctrine of absolute immunity

26 to all government officials. Miller, 335 F.3d at 897 (citing Antione v. Byers & Anderson, Inc.,

27 508 U.S. 429, 433 n.4, 113 S.Ct. 2167 (1993)). In analyzing the doctrine of absolute

28 immunity, the Supreme Court stated that: “The presumption is that qualified rather than

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1 absolute immunity is sufficient to protect government officials in the exercise of their duties.

2 We have been quite sparing in our recognition of absolute immunity, and have refused to

3 extend it any further than its justification would warrant.” Id. (quoting Burns v. Reed, 500 U.S.

4 478, 486-87, 111 S.Ct. 1934 (1991)). According to the Ninth Circuit, the burden is on the

5 official claiming absolute immunity “to identify the common-law counterpart to the function that

6 the official asserts is shielded by absolute immunity.” Miller, 335 F.3d at 897.

7

In this matter, absolute immunity does not apply to the Clark County Defendants.

8 Defendant Valentine is the Clark County Manager and Defendant Morton is the Director of the

9 Clark County Department of Family Services. These positions are not within the limited class

10 of officials whose special functions or constitutional status require complete protection from

11 suit. Moreover, the Clark County Defendants assert that absolute immunity applies because

12 immunity “is necessary for them to perform the duties for which they were appointed.” (Mot.

13 to Dismiss (#20) at 10). However, this argument, by itself, fails to overcome the presumption

14 that qualified, rather than absolute, immunity is sufficient to protect the Clark County

15 Defendants in the exercise of their duties. As such, based on the allegations in the Complaint

16 and the arguments before the Court, absolute immunity does not apply and the claims for

17 relief are not dismissed under that doctrine.

18

Both the Clark County Defendants and the State Defendants argue that they are

19 immune from suit based on the doctrine of qualified immunity.

20

Under “qualified immunity,” government officials are not subject to liability for the

21 performance of their discretionary actions unless their conduct violates a clearly established

22 statutory or constitutional right which a reasonable person would have known. Harlow, 457

23 U.S. at 818, 102 S.Ct. 2727.

24

Determining whether officials are owed qualified immunity involves two inquiries: (1)

25 whether, taken in the light most favorable to the party asserting the injury, the facts alleged

26 show the officer’s conduct violated a constitutional right; and (2) if so, whether the right was

27 clearly established in light of the specific context of the case. al-Kidd v. Ashcroft, 580 F.3d

28 949, 964 (2009)(citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151 (2001)). “For a

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1 constitutional right to be clearly established, its contours must be sufficiently clear that a

2 reasonable official would understand that what he is doing violates that right.” Id. (quoting

3 Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508 (2002)). It is within the court’s sound

4 discretion to address these two prongs in any sequence the court sees fit. Id. (citing Pearson

5 v. Callahan, ___ U.S. ___, 129 S.Ct. 808 (2009)).

6

In this matter, the Clark County Defendants state that they are entitled to qualified

7 immunity because they were acting at all relevant times in the course and scope of their job

8 responsibilities and Plaintiffs have not sufficiently stated that the Clark County Defendants

9 violated Plaintiffs’ “clearly established” constitutional rights. The State Defendants argue that

10 they are entitled to qualified immunity because they “could not reasonably know that their

11 conduct in providing oversight to the child welfare system and distributing federal funding to

12 the county agencies would make them liable for any harm that occurred to a child who was

13 in the custody of the County agency.” (Mot. to Dismiss (#21) at 10). In response, Plaintiffs

14 argue that Defendants are not entitled to qualified immunity because the federal constitutional

15 rights Plaintiffs were deprived of are clearly established rights under the law.

16

In this matter, Plaintiffs have asserted the following constitutional claims against

17 Defendants: Duty to Protect, State Created Danger, Federal Adoption Assistance Act and

18 Child Welfare Act, Federal Child Abuse Prevention and Treatment and Adoption Reform,

19 Child Abuse Prevention and Treatment Act, Guardian ad litem, Child Abuse Prevention and

20 Treatment Act, and Early Intervention Services. The Court will address each of these claims

21 individually to determine whether Defendants are entitled to qualified immunity on any of the

22 causes of action.

23

1. Duty to Protect

24

Plaintiffs’ first cause of action alleges that Defendants violated their constitutional right

25 to be “free from harm while involuntarily in government custody and their right to medical care,

26 treatment and services.” (Compl. (#1) at 65). Plaintiffs allege that Defendants violated this

27 right by failing (i) to adequately provide medical, dental, and mental health services, (ii) to

28 inform caregivers of essential information, (iii) to conduct legally required visits with foster

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1 children, (iv) to adequately respond to reports of abuse, (v) to ensure adequacy of relative

2 caregiver placements, and (vi) to adequately inspect out of state facilities. Id. Plaintiffs have

3 also asserted a class claim under section 1983 to be “free from harm” in their eleventh cause

4 of action. (Compl. (#1) at 77). In the class claim, Plaintiffs state that “Defendants’ conduct

5 includes the failure to provide early intervention services as required under federal and state

6 law.” Id.

7

In Clark K. v. Guinn, this court held that “children, who have been involuntarily placed

8 in the custody of [the state] may state a claim for violation of their substantive due process

9 rights based upon their right to freedom from harm under the Fourteenth Amendment of the

10 United States Constitution.” 2007 WL 1435428 *15 (D. Nev. 2007)(internal quotations

11 omitted). In addition, the court noted that “Courts have also held that foster children have a

12 right to required ‘professional judgment’ while in custody.” Id. (citing Wendy H. v.

13 Philadelphia, 849 F.Supp. 367, 372 (E.D. Pa. 1994)). This right to freedom from harm, is not,

14 however, “without boundaries.” Id. Specifically, “under the Fourteenth Amendment, Nevada

15 is required to provide to individuals within state custody their ‘basic human needs,’ such as

16 ‘food, clothing, shelter, medical care, and reasonable safety.’” Id. (quoting DeShaney, 489

17 U.S. at 200).

18

In this matter, the Court finds that Defendants are entitled to qualified immunity on this

19 claim. Although there is a clearly established right under the duty to protect for the state to

20 provide individuals in state custody with their basic human needs, it is not clearly established

21 that Plaintiffs have a constitutional right to (1) “standardized periodic health screenings and

22 treatments,” (2) “medical services for maximum reduction of physical or mental disability,” and

23 (3) “monitory of, administration, and use of psychotropic drugs” as alleged in the Complaint.

24 (See Compl. (#1) at 66). In addition, it is not “clearly established” that the (1) failure to inform

25 caregivers of essential information, (2) failure to conduct legally required visits with foster

26 children, (3) failure to adequately respond to reports of abuse, (4) failure to ensure adequacy

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1 of relative caregiver placements; and (5) failure to adequately inspect out of state facilities

2 constitutes a violation of a constitutional right. Because Plaintiffs have not asserted violations

3 of clearly established constitutional rights, Defendants are entitled to immunity on this claim.

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2. State Created Danger

5

Plaintiffs’ second cause of action asserts that Defendants violated Plaintiffs’

6 constitutional rights because Defendants acted “with deliberate indifference to [a] known or

7 obvious danger in removing Plaintiffs from their homes and placing them in the care of foster

8 parents, including the care of relative caregivers and out of state facilities and homes, who

9 were unfit to care for them and posed an imminent risk of harm to Plaintiffs’ safety.” Id. at 67.

10

In order to state a constitutional claim under the state created danger doctrine, the

11 plaintiff must assert “more than a mere failure to act; it requires the state official to take an

12 affirmative action.” Kennedy v. Ridgefield City, 440 F.3d 1091, 1094 (9th Cir. 2006).

13 “Second, the plaintiff must prove that the official’s act did more than simply expose the plaintiff

14 to a danger that already existed.” Id. (citation omitted). Finally, the plaintiff must prove that

15 the official acted with deliberate indifference to a known or obvious danger. See L.W. v.

16 Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)(“The plaintiff must show that the state official

17 participated in creating a dangerous condition, and acted with deliberate indifference to the

18 known or obvious danger in subjecting the plaintiff to it.”). The Supreme Court has stated that

19 negligence, whether gross or simple, is insufficient to prove a constitutional violation. See

20 Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662 (1986)(“The Due Process Clause is

21 simply not implicated by a negligent act of an official causing unintended loss of or injury to

22 life, liberty, or property.”).

23

In Clark K., this court held that the plaintiffs failed to state a claim for relief under the

24 state created danger doctrine on a similar claim against the foster care system because

25 plaintiffs failed to plead each element of the state created danger doctrine. According to the

26 court, while plaintiffs properly alleged that the defendants acted with deliberate indifference

27 by placing plaintiffs in situations defendants knew or should have known posed an imminent

28 risk, plaintiffs failed to allege that the official’s act did more than simply expose the plaintiff to

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1 a danger that already existed. 2007 WL 1435428 *16. “Plaintiffs have not alleged that

2 Defendants did anything more than place foster children into an already broken system.” Id.

3 “Plaintiffs’ Complaint does not state that Defendants created or increased the danger to

4 children, just that they failed to correct it.” Id.

5

In this matter, based on the holding in Clark K., Plaintiffs’ second cause of action fails

6 to state a sufficient claim for relief under the state created danger doctrine. In this regard,

7 Plaintiffs have failed to allege that Defendants “did anything more than place foster children

8 into an already broken system.” Id. Moreover, the Complaint does not state that Defendants

9 created or increased the danger to children. Based on these pleading failures, this claim for

10 relief is dismissed.

11

In addition, Defendants are entitled to qualified immunity on this claim. In this regard,

12 Plaintiffs have not provided any factual assertions that the Defendants increased the danger

13 to Plaintiffs. Because Defendants did not increase the danger to Plaintiffs, they could not

14 have violated Plaintiffs’ “clearly established” constitutional rights under the state-created

15 danger doctrine.

16

3. Adoption Assistance and Child Welfare Act

17

Plaintiffs’ third and eighth causes of action state that Defendants are liable for violating

18 Plaintiffs’ statutory rights under the Federal Adoption Assistance and Child Welfare Act of

19 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. § 671 et seq.

20 (Compl. (#1) at 63 and 69). The statutory rights the Defendants are alleged to have violated

21 include: (1) the right of each Plaintiff to have his or her health and educational records

22 reviewed, updated, and supplied to foster care providers with whom the child is placed before

23 or at the time of placement, pursuant to 42 U.S.C. §§ 671(a)(16), 675(1), and 675(5)(D); (2)

24 the right of each Plaintiff to have Defendants place him or her with relative foster parents only

25 if those foster parents satisfy Defendants’ foster parent licensing standards, pursuant to 42

26 U.S.C. § 671(a)(10); and (3) the right of each Plaintiff who Defendants place in an out of state

27 placement to visits from caseworkers at least every six months, pursuant to 42 U.S.C. §

28 675(A)(ii). Plaintiffs bring this cause of action pursuant to section 1983.

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Section 1983 safeguards certain rights conferred by federal statutes. Blessing v.

2 Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353 (1997). However, to seek redress under

3 section 1983, Plaintiffs “must assert the violation of a federal right, not merely a violation of

4 federal law.” Id. Courts traditionally look at three factors to determine whether a particular

5 statutory provision gives rise to a federal right. Id. First, Congress must have “intended that

6 the provision in question benefit the plaintiff.” Id. Second, “the plaintiff must demonstrate that

7 the right assertedly protected by the statute is not so ‘vague and amorphous’ that its

8 enforcement would strain judicial competence.” Id. Third, “the statute must unambiguously

9 impose a binding obligation on the States. In other words, the provision giving rise to the

10 asserted right must be couched in mandatory, rather than precatory, terms.” Id.

11

With this framework in mind, the Court must determine whether Plaintiffs have stated

12 a claim that Defendants violated a “clearly established” constitutional right when they engaged

13 in alleged wrongful conduct under the Adoption Assistance and Child Welfare Act.

14

The Ninth Circuit has not established whether an individual may bring a § 1983 cause

15 of action under the statutory provisions identified by Plaintiffs. In 1992, the Supreme Court

16 held that one specific provision under the Adoption Assistance Act did not afford a private

17 right of action. Congress subsequently amended the statute to provide a private right of

18 action under that particular provision, but chose not to amend the remaining statutory

19 provisions.1 Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360 (1992). Many courts find that this

20 is “strong evidence” that the provisions of 42 U.S.C. § 671 do not confer private enforceable

21 rights under section 1983 because Congress specifically examined the numerous state plan

22 elements required under § 671, and determined that only one such element (§ 671(a)(18)),

23 conferred such a right. See Charlie H. v. Whitman, 83 F.Supp.2d 476, 489 (D.N.J. 2000)).

24

Plaintiffs assert that under the Federal Adoption Assistance and Child Welfare Act

25 (“AACA”) of 1980, as amended by the Adoption and Safe Families Act of 1997, Plaintiffs have

26 the constitutional right to (1) have his or her health and educational records reviewed,

27

28

1 The statutory provision amended by Congress was 42 U.S.C. § 671(a)(18), which is not at issue in this litigation.

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1 updated, and supplied to foster care providers with whom the child is placed, (2) have

2 Defendants place him or her with relative foster parents only if those foster parents satisfy

3 Defendants’ foster parent licensing standards, and (3) have a visit from a caseworker at least

4 ever six months if she or he is placed in an out of state facility. Each of these alleged

5 statutory, constitutional violations will be reviewed in turn.

6

a. 42 U.S.C. §§ 671(a)(16), 675(1) and 675(5)(D)

7

42 U.S.C. §§ 671(a)(16), 675(1) and 675(5)(D) relate to the creation and dissemination

8 of a case plan for foster children. Section 671(a)(16) requires states “to provide for the

9 development of a case plan (as defined in section 675(1) [42 U.S.C. § 675(1)]) for each child

10 receiving foster care maintenance payments under the State plan and provides for a case

11 review system which meets the requirements described in section 675(5)(B) [42 U.S.C. §

12 675(B)] with respect to each such child . . . .” 42 U.S.C. § 675(1) defines the requirements for

13 a “case plan” and section 675(5) defines the requirements for a “case review system.”

14

In Charlie H., the New Jersey district court held that these provisions did not create an

15 enforceable private right of action under § 1983. 83 F.Supp.2d at 489. That court dismissed

16 the plaintiffs’ claims brought pursuant to § 671(a)(16) and §§ 675(1) and 675(5)(D) on the

17 ground that they failed to state a constitutional claim for relief. Id. According to the court, the

18 mandates of these provisions were “not so unambiguous so as to confer upon Plaintiffs a right

19 enforceable under § 1983.” Id. Moreover, the Court found it persuasive that Congress did

20 not create a private right of action under section 671(a)(16) when it reviewed the statute. Id.

21

In 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003), the Eleventh

22 Circuit also found that the foregoing statutory provisions did not provide a § 1983 cause of

23 action. In that case, the court held that section 675(5)(D) did not contain rights-creating

24 language. According to that court, the language of the provision had an “aggregate, not

25 individual, focus.” Id.

26

In this matter, the Court finds that Defendants are entitled to qualified immunity on the

27 claims asserted under § 671(a)(16) and §§ 675(1) and 675(5)(D). The Court agrees with the

28 courts in Charlie H. and 31 Foster Children that these provisions do not contain rights-creating

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1 language. In this regard, section 675(5)(D) and section 675(1) are found in the definitional

2 section of the AACA. Because these statutes are definitional in nature, “they alone cannot

3 and do not supply a basis for conferring rights enforeceable under section 1983.” 31 Foster

4 Children, 329 F.3d at 1271. That leaves section 671(a)(16) as the sole basis for Plaintiffs’

5 constitutional claim that they are entitled to case plans. That statute requires that a state

6 develop a case plan for each child receiving foster care maintenance payments. Specifically,

7 the provision provides that in order “for a State to be eligible for payments under this part,” it

8 must provide for the development of a case plan.

9

Here, the Court finds that Plaintiffs have not shown that this is a “clearly established”

10 constitutional right for purposes of qualified immunity. As noted, a right is clearly established

11 if the “contours of the right [are] sufficiently clear that a reasonable official would understand

12 that what he is doing violates that right.” James, 606 F.3d at 652. In this case, neither the

13 Supreme Court nor the Ninth Circuit have stated that there is a private constitutional “right”

14 under this provision. Although the Supreme Court does not need to have addressed a right

15 for it be “established,” it is clear from the case law that whether this provision of the AACA

16 provides a constitutional right is still being debated, with many courts holding that it does not

17 create such a right.2 See Charlie H., 83 F.Supp. 2d at 489. This Court agrees with the courts

18 the have held that there is no section 1983 private right of action under Section 671(a)(16).

19 Thus, this claim is dismissed and Defendants are entitled to immunity.

20

b. 42 U.S.C. § 671(a)(10)

21

Plaintiffs also argue that they have a constitutional right of action under 42 U.S.C. §

22 671(a)(10) and that Defendants are not entitled to qualified immunity under that provision.

23 Plaintiffs allege that they have the right to have Defendants place them with relative foster

24 parents only if those foster parents satisfy Defendants’ foster parent licensing standards.

25

26

2 For instance, in Charlie H., the court held that there was not a section 1983 private right of action under section 671(a)(16). According to that court, “regardless of the detailed nature of the

27

definitions of ‘case plan’ and ‘case review system,’ the statutory provisions relied upon by Plaintiffs in support of their alleged right ‘to timely written case plans that contain mandate elements and to the

28

implementation and review of these plans’ are not so unambiguous so as to confer upon Plaintiffs a right enforceable under section 1983.” Id.

15

1

42 U.S.C. § 671(a)(10) provides, in relevant part:

2

In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which . . . provides for the establishment or

3

designation of a State authority or authorities which shall be responsible for establishing and maintaining standards for foster family homes and child care

4

institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes,

5

including standards related to admission policies, safety, sanitation, and protection of civil rights, provides that the standards so established shall be

6

applied by the State to any foster family home or child care institution receiving funds under this part or part B of this subchapter, and provides that a waiver of

7

any such standard may be made only on a case-by-case basis for non-safety standards (as determined by the State) in relative foster family homes for

8

specific children in care.

9

Despite Plaintiffs’ arguments to the contrary, Plaintiffs’ alleged constitutional right to

10 be placed with a relative foster parent only if the relative foster parent satisfies state licensing

11 standards is too vague and amorphous under Blessing to be enforced pursuant to section

12 1983. See Clark K., 2007 WL 1435428 *9; Charlie H., 83 F.Supp.2d at 491. In this regard,

13 this Court has already rejected the argument that this provision creates a private right of

14 action under section 1983. Clark K., 2007 WL 1435428 *9 (citing Yvonne L. v. N.M. Dep’t of

15 Human Serv., 959 F.2d 883, 889-90 (10th Cir. 1992)). In Yvonne L., the Tenth Circuit held

16 that the language of section 671(a)(10) did not support a private right of action under section

17 1983. According to the Tenth Circuit, that provision “only references ‘standards of national

18 organizations concerned with standards for such institutions or [foster] homes.’” Id. The court

19 held that this language was vague and amorphous and could not be judicially enforced under

20 section 1983. Id.; see also Baby Neal v. Casey, 821 F.Supp. 320, 326-27 (E.D.Pa. 1993).

21 Courts have also held that “§ 671(a)(10) fails to unambiguously confer upon [p]laintiffs a

22 private right of enforcement under this provision” because “[t]he language of this section does

23 not confer upon [p]laintiffs a ‘right’ to foster homes or institutions which are in accord with

24 recommended standards of national organizations but clearly states that the state plan must

25 provide for the designation of a state authority or authorities which shall be established and

26 maintain such standards.” Baby Neal, 821 F.Supp. at 327; Charlie H., 83 F.Supp.2d at 491.

27 Moreover, courts have held that the “reasonably in accord” language is too vague and

28 ambiguous to maintain a private right of action. See Doe v. Johnson, 1993 WL 50845 * 3(N.D.

16

1 Ill. 1993)(dismissing plaintiff’s action “to the extent that it seeks private relief for an alleged

2 violation of § 671(a) of the Adoption Assistance and Child Welfare Act” because “the Act

3 places its enforcement mechanism in the hands other than those of private plaintiffs under §

4 1983").

5

Moreover, it is persuasive that Congress recently chose to amend 42 U.S.C. § 674 to

6 include a private right of action under § 1983 for a state or other entity’s failure to comply with

7 42 U.S.C. § 671(a)(18), but did not extend a section 1983 cause of action to the other

8 statutory provisions enumerated in 42 U.S.C. § 671(a). This act by Congress is strong

9 evidence that Congress did not intend section 671(a)(10) to confer rights enforceable

10 pursuant to section 1983.

11

Based on the foregoing, the Court dismisses this cause of action for failure to state a

12 claim for relief. In addition, the Court finds that Defendants are entitled to qualified immunity

13 on this claim because there is no “clearly established” constitutional right under 42 U.S.C. §

14 671(a)(10).

15

c. 42 U.S.C. § 675(5)(A)(ii)

16

Plaintiffs have also asserted that they have a constitutional right to be visited by a

17 caseworker at least every six months when Plaintiffs are placed in an out of state placement.

18 Plaintiffs state that 42 U.S.C. § 675(5)(A)(ii) provides them with a private right of action when

19 that provision is cross-referenced with § 622(b)(8)(A)(ii).

20

42 U.S.C. § 675(5)(A)(ii) is a definitional provision which provides that the term “case

21 review system” means that “each child has a case plan designed to achieve placement in a

22 safe setting” and if the “child has been placed in foster care outside the State in which the

23 home of the parents of the child is located, requires that periodically, but not less frequently

24 than every 6 months, a caseworker . . . visit such child.” Section 622(b)(8)(A)(ii), which is not

25 referenced in the complaint, states that in order to be eligible for payment under this statute,

26 “a State must have a plan for child welfare services,” and such plan must include a “case

27 review system.” 42 U.S.C. § 622(b)(8)(A)(ii).

28 ///

17

1

In this matter, the Court finds that section 675(5)(A)(ii) does not provide a private

2 constitutional cause of action. First, because 42 U.S.C. § 675(5)(A)(ii) is a definitional

3 section, it does not, standing alone, confer a right upon Plaintiffs enforceable pursuant to §

4 1983. See B.H. v. Johnson, 715 F.Supp. 1387, 1401 (N.D.Ill. 1989)(noting that “it would be

5 strange for Congress to create enforeceable rights solely in the definitional section of a

6 statute”). However, even cross referencing this provision with § 622(b)(8)(A)(ii), there is no

7 rights-creating language as required to bring a claim under section 1983. In this regard, as

8 noted previously, Congress reviewed this statutory provision and did not include a private right

9 of action for this provision. In addition, the language found in § 622 limits the remedy for

10 failure to comply with its provision to loss of federal funds. In this regard, the statute states

11 that a State must have a case plan “[i]n order to be eligible for payment” under the statute.

12

Thus, this statutory provision does not create a constitutional right of action under

13 section 1983, and, therefore, is dismissed.

14

3. Child Abuse Prevention and Treatment Act; Guardian ad litem

15

Plaintiffs’ Ninth Claim for Relief is alleged on behalf of the “Guardian ad Litem Class

16 Representatives” and asserts a § 1983 claim for violation of 42 U.S.C. § 5106a(b)(2)(A)(xiii).

17 (Compl. (#1) at 75). According to Plaintiffs, they are entitled, under federal law, to

18 representation from a guardian ad litem in all proceedings before the juvenile court. Plaintiffs

19 assert that Defendants’ acts and omissions violated this right.

20

Defendants argue that they are entitled to qualified immunity under this provision

21 because there is no enforceable constitutional right under the guardian ad litem provision of

22 the Child Abuse Prevention and Treatment Act (“CAPTA”). (Mot. to Dismiss (#21) at 20). In

23 addition, Defendants argue that this cause of action should be dismissed because the proper

24 parties in the state court system have not been named. Defendants further argue that the

25 Court should abstain from hearing this claim because it is an issue closely connected to the

26 discretion of state juvenile courts and any determination on this issue would require this Court

27 to interfere in the juvenile courts’ administration and workings.

28 ///

18

1

a. Guardian ad litem private right of action

2

CAPTA requires states to implement procedures for investigation of child abuse and

3 protection of children in order to receive federal funds. Jordan v. City of Philadelphia, 66

4 F.Supp. 2d 638, 648 (E.D. Pa. 1999). 42 U.S.C. § 5106a provides for grants to states for child

5 abuse and neglect prevention and treatment programs. Section 5106a(b)(2)(A)(xiii) provides

6 that to be eligible to receive a grant under the statute, a state shall submit a plan and that plan

7 “shall contain an outline of the activities that the State intends to carry out using amounts

8 received under the grant to achieve the purposes of this subchapter,” including “provisions

9 and procedures requiring that in every case involving an abused or neglected child which

10 results in a judicial proceeding, a guardian ad litem . . . shall be appointed to represent the

11 child in the proceedings . . . .”

12

In Charlie H., the New Jersey district court held that “under the Blessing test, the weight

13 of case law dictates that 42 U.S.C. § 5106a(b)(2) ‘does not create a private right of action’

14 under section 1983.” 83 F.Supp.2d at 496 (quoting Jordan v. City of Philadelphia, 66

15 F.Supp.2d 638, 648-49 (E.D.Pa. 1999)(holding that CAPTA clearly does not create a private

16 right of action under 42 U.S.C. § 1983); see also Doe v. District of Columbia, 93 F.3d 861, 868

17 (D.C. Cir. 1996)(holding that “Section 5106a(b)(2) of CAPTA fails to unambiguously confer

18 an enforceable right upon its beneficiaries, therefore [plaintiff’s] claim under § 1983 was

19 appropriately rejected by the district court”); Tony L. v. Childers, 71 F.3d 1182, 1189 (6th Cir.

20 1995)(holding that “neither CAPTA nor the relevant regulations mandate a particular means

21 of investigation or state what type of actions must be taken to protect abused or neglected

22 children”); A.S. v. Tellus, 22 F.Supp. 2d 1217, 1224 (D. Kan. 1998)(agreeing with “the majority

23 of courts” and holding that the requirements of 42 U.S.C. § 5106a(b)(2) “are too vague to

24 create an enforceable right”); but see Clark K., 2007 WL 1435428 * 13 (finding that plaintiffs

25 section 5106a(b)(2) was sufficient to survive a motion to dismiss).

26

In Clark K., the Court found that Plaintiffs’ claim for violation of 42 U.S.C. §

27 5106a(b)(2)(A)(xiii) was sufficient to state a claim for relief under the Blessing analysis.

28 According to the court, under the first Blessing prong, “the language clearly indicates that

19

1 Plaintiffs (foster children) are the intended beneficiaries of the CAPTA provisions at issue.”

2 2007 WL 1435428 *13. “Moreover, the statutory language requires that ‘in every case’ the

3 state must provide a guardian ad litem.” Id. The court found that this language “sets forth

4 clear conditions the state must satisfy to qualify for a federal grant and does so through the

5 use of mandatory and not precatory language.” Id. Further, the court held that the “CAPTA

6 provision at issue is not so vague and amorphous as to be beyond the enforcement power of

7 the Court.” Id. “This Court certainly is competent to determine whether Defendants have

8 made any efforts to comply with this provision.” Id.

9

In this matter, Defendants argue that the foregoing statutory provision does not create

10 a section 1983 private right of action because the language of section 5106a(b)(2) merely

11 requires that a State submit a plan which contains an assurance that the State has in effect

12 and is enforcing a state law that includes a provision that a guardian ad litem be appointed

13 in every case involving an abused or neglected child. (State Defendants’ Motion to Dismiss

14 (#21) at 21). Defendants argue that they have satisfied and complied with the foregoing

15 federal statutory mandate because Nevada has a procedure for the appointment of a guardian

16 ad litem in every case. Id. NRS 432B.500 provides that after “a petition is filed that a child

17 is in need of protection pursuant to NRS 432B.490, the court shall appoint a guardian ad litem

18 for the child.” As such, Defendants argue that Nevada has satisfied the requirements of

19 section 5106a(b)(2)(A)(xiii) because it enacted a law requiring the appointment of a guardian

20 ad litem. Unfortunately, according to the State Defendants, despite this law, “there appears

21 to be an insufficient number of volunteers to serve in that capacity in Clark County.” Id. at 22.

22 Accordingly, and further, the State Juvenile judges do not order such appointment in every

23 case, as is within their judicial discretion.

24

In this matter, the Court finds that Defendants are entitled to qualified immunity on

25 Defendants’ guardian ad litem claim because Plaintiffs have not asserted a violation of a

26 “clearly established” statutory, constitutional right. In this regard, although the court found in

27 Clark K. that Plaintiffs stated a section 1983 claim for relief under section 5106a(b)(2)(A)(xiii),

28 other courts reviewing that statute have held that there is no constitutional claim under section

20

1 5106a(b)(2). Moreover, the analysis under Blessing is not definite. Although this court

2 previously found that a complaint sufficiently stated a section 1983 claim under that provision,

3 the court limited its holding, stating that the claim was merely sufficient “for the purposes of

4 surviving Defendants’ Motion to Dismiss.” Clark K., 2007 WL 1435428 *13. The court did not,

5 as a matter of law, hold that the failure to appoint a guardian ad litem in every case constituted

6 a violation of a federal right.

7

b. Younger Abstention

8

In addition, abstention under the Younger doctrine is necessary on this claim. As noted

9 by Defendants, section 5106a(b)(2)(A)(xiii) does not specifically grant each foster child a right

10 to a guardian ad litem. Rather, it requires that the State, in order to receive federal funds,

11 implement provisions and procedures for the appointment of a guardian ad litem in every

12 case. Nevada has enacted a law providing for the appointment of a guardian ad litem.

13 Nevada’s law provides that “the court” shall appoint a guardian ad litem in cases where a child

14 is in need of protection. NRS 432B.500(1). As such, Nevada law mandates that the state

15 court system be responsible for the appointment of a guardian ad litem.

16

Because the Nevada statute directs the state court to appoint the guardian ad litem,

17 the Clark County Defendants request that the Court abstain from determining the merits of this

18 claim. (Mot. to Dismiss (#20) at 17). In this regard, the Clark County Defendants state that

19 because the state juvenile court is directed to appoint the guardian ad litem under Nevada

20 law, this Court’s involvement in that issue would interfere with the discretion of the state

21 juvenile court, as well as the state court’s administration and workings. In addition, the Clark

22 County Defendants argue that a federal injunction in this case would interfere with the Nevada

23 juvenile court’s management of its own cases. (Mot. to Dismiss (#20) at 19). According to

24 Defendants, the juvenile court retains continuing jurisdiction over every child in Clark County

25 foster care, including the Plaintiffs in this action, pursuant to NRS 432B.580. Under that

26 statute, “if a child is placed pursuant to NRS 432B.550 other than with a parent, the placement

27 must be reviewed by the court at least semiannually, and within 90 days after a request by a

28 party to any of the prior proceedings.” NRS 432B.580(1). As a result, the Clark County

21

1 Defendants state that the Plaintiffs, and all members of the putative classes, are subject to

2 ongoing state court proceedings in juvenile court. (Mot. to Dismiss (#20) at 20). Because

3 Plaintiffs are subject to ongoing state court proceedings, Defendants argue that this Court

4 should abstain from interfering with those proceedings.3 Defendants state injunctive relief on

5 this claim would “improperly give this court an oversight role and direct control over decisions

6 currently vested in the juvenile court.” Id. at 22.

7

In response, Plaintiffs assert that there is no reason for this Court to abstain because

8 Plaintiffs are seeking to enforce “a federal statute” under which Defendants “ensure guardian

9 ad litem representation.” (Opp’n (#36) at 51). Because they are seeking federal relief,

10 Plaintiffs assert that abstention is unwarranted. Plaintiffs concede that they are “involved in

11 ongoing dependency proceedings in the state juvenile court;” however, Plaintiffs state that

12 injunctive relief on this claim would not interfere with the state proceedings because this Court

13 would not be required to review any decisions made by the state court, nor would this Court

14 be required to overrule the state court and appoint or replace a guardian ad litem. Id. at 56.

15 Rather, Plaintiffs state they are merely seeking relief from county and state officials for

16 violations of a federal duty. Id. According to Plaintiffs, “[r]equiring Defendants to recruit and

17 train more guardians ad litem in any way Defendants see fit to do would not interfere with or

18 enjoin the dependency court proceedings.” Id.

19

Generally, the Supreme Court’s decision in Younger and its progeny direct federal

20 courts to abstain from granting injunctive or declaratory relief that would interfere with pending

21 state judicial proceedings. Younger v. Harris, 401 U.S. 37, 40-41, 91 S.Ct. 746 (1971);

22 Samuel v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764 (1971)(holding that “where an injunction

23 would be impermissible under these principles, declaratory relief should ordinarily be denied

24 as well”). The Younger doctrine “reflects a strong policy against federal intervention in state

25 judicial processes in the absence of great and immediate injury to the federal plaintiff.” Moore

26

27

3 According to Defendants, not only are Plaintiffs involved in ongoing state court proceedings,

28

but Defendants assert that these proceedings are matters of important state interest and any claim regarding the appointment of a guardian ad litem may, and should be raised in the juvenile court.

22

1 v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371 (1979). When federal courts disrupt a state court’s

2 opportunity to “intelligently mediate federal constitutional concerns and state interests” and

3 interject themselves into such disputes, “they prevent the informed evolution of state policy

4 by state tribunals.” Moore, 442 U.S. at 429-30, 99 S.Ct. 2371.

5

While the doctrine was first articulated in the context of pending state criminal

6 proceedings, the Supreme Court has applied it to civil proceedings in which important state

7 interests are involved. Id.; see Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200 (1975).

8 “The seriousness of federal judicial interference with state civil functions has long been

9 recognized by the Court. [It has] consistently required that when federal courts are confronted

10 with requests for such relief, they should abide by standards of restraint that go well beyond

11 those of private equity jurisprudence.” Huffman, 420 U.S. at 603, 95 S.Ct. 1200.

12

In the absence of “extraordinary circumstances,” abstention in favor of state judicial

13 proceedings is required if the state proceedings (1) are ongoing, (2) implicate important state

14 interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims. See

15 Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct.

16 2515, 73 L.Ed.2d 116 (1982). According to the Ninth Circuit, where these standards are met,

17 a district court “may not exercise jurisdiction” and there “is no discretion in the district courts

18 to do otherwise.” San Jose Silicon Valley Chamber of Commerce Political Action Comm. v.

19 City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008). “Where Younger abstention is

20 appropriate, a district court cannot refuse to abstain, retain jurisdiction over the action, and

21 render a decision on the merits after the state proceedings have ended. To the contrary,

22 Younger abstention requires dismissal of the federal action.” Beltran v. State of Cal., 871 F.2d

23 777, 782 (9th Cir. 1988)(emphasis in original).

24

i. Interference with Ongoing State Proceedings

25

As noted in the foregoing, Plaintiffs concede that they are involved in ongoing

26 dependency proceedings in the state juvenile court. However, Plaintiffs state that injunctive

27 relief on this claim would not interfere with the state proceedings because this Court would

28 not be required to review any decisions made by the state court, nor would this Court be

23

1 required to overrule the state court and appoint or replace a guardian ad litem.

2

“Courts have concluded that continuing state dependency proceedings, which involve

3 the plaintiffs in a federal action that challenges the constitutionality of the services and

4 process received, are ‘ongoing state proceedings’ for purposes of Younger abstention.” E.T.

5 v. George, 681 F.Supp.2d 1151, 1169 (E.D.Cal. 2010)(quoting 31 Foster Children, 329 F.3d

6 1275).; see also H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000)(holding that

7 the ongoing proceeding element was satisfied because the plaintiffs’ complaint sought “an

8 order requiring procedural due process to be observed in the future course of litigation” of the

9 plaintiffs’ pending state custody proceedings); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291

10 (10th Cir. 1999); Laurie Q. v. Contra Costa County, 304 F.Supp.2d 1185, 1203 (N.D.Cal.

11 2004)(holding that challenge to county’s foster care system implicated ongoing dependency

12 court proceedings).

13

However, Younger abstention is only implicated “when the relief sought in federal court

14 would in some manner directly ‘interfere’ with ongoing state judicial proceedings.” Green v.

15 City of Tuscon, 255 F.3d 1086, 1097 (9th Cir. 2001)(en banc). “In order to decide whether the

16 federal proceeding would interfere with the state proceeding, [courts] look to the relief

17 requested and the effect it would have on the same proceedings.” 31 Foster Children, 329

18 F.3d at 1276 (holding that an action for declaratory and injunctive relief arising out of

19 challenges to Florida’s foster care system would interfere extensively with the ongoing

20 dependency cases of each plaintiff). In 31 Foster Children, plaintiffs filed constitutional claims

21 relating to Florida’s foster care system and requested that the court declare the defendants’

22 practices unconstitutional and unlawful and grant injunctive relief that would prevent future

23 violations and ensure compliance. Id. The Eleventh Circuit held that the broad implication

24 of the relief sought was to take the responsibility away from state courts and put it under

25 control of the federal court. Id. Such action “constitute[d] federal court oversight of state court

26 operations, even if not framed as direct review of state court judgements that is problematic,

27 ///

28 ///

24

1 calling for Younger abstention.” Id. In J.B. ex rel Hart, the Tenth Circuit held that declaratory

2 and injunctive relief directed at state institutions involving dependant children warranted

3 abstention because the requested relief would require a supervisory role over the entire state

4 program. 186 F.3d at 1280.

5

In this case, the relief requested by Plaintiffs on this claim would necessarily interfere

6 with ongoing juvenile court proceedings. The juvenile court retains continuing jurisdiction over

7 every child in foster care, including the Plaintiffs in this action, pursuant to NRS 432B.580.

8 Under that statute, “if a child is placed pursuant to NRS 432B.550 other than with a parent,

9 the placement must be reviewed by the court at least semiannually, and within 90 days after

10 a request by a party to any of the prior proceedings.” NRS 432B.580(1). As a result,

11 Plaintiffs, and all members of the putative classes, are subject to ongoing state court

12 proceedings in juvenile court. In addition, NRS 432B.500 provides that the juvenile court

13 “shall appoint a guardian ad litem for the child.” As such, this Court’s intervention on the

14 appointment of a guardian ad litem would directly interfere with the juvenile court’s mandate

15 to appoint a guardian ad litem. The injunctive relief sought by Plaintiffs would require this

16 Court to monitor the state court system and would take the responsibility away from that court

17 and put it under control of the federal court. As discussed by the Eleventh Circuit, such

18 oversight calls for abstention under the principles of Younger.

19

Thus, the Court finds that the relief requested by Plaintiffs severely interferes with the

20 operation of state court proceedings. Any injunctive or declaratory relief necessarily

21 implicates the validity of pending dependency court proceedings, as well as Nevada law

22 mandating certain actions be taken by the state court. Further, the requested relief would

23 likely be impossible to enforce without violation of established principles of federalism and

24 comity. As such, the first element of Younger abstention is present in this case.

25

ii. Important State Interests

26

It does not appear from the parties’ briefs that they dispute that this litigation implicates

27 important state interests. Indeed, the law is clear that “[f]amily relations are a traditional area

28 of state concern.” Moore, 442 U.S. at 435, 99 S.Ct. 2371. Further, “[p]roceedings necessary

25

1 for the vindication of important state policies or for the functioning of the state judicial system

2 . . . evidence the state’s substantial interest in the litigation.” Middlesex County Ethics Comm.,

3 457 U.S. at 432, 102 S.Ct. 2515. Accordingly, the Court finds that the second element of

4 Younger abstention is present in this case.

5

iii. Adequate Opportunity to Present Federal Claims

6

Plaintiffs contend that the juvenile court proceedings do not afford them an adequate

7 opportunity to raise the guardian ad litem class claim. (Consolidated Opp’n (#36) at 56).

8 According to Plaintiffs, without an appointed guardian ad litem, Plaintiffs have no opportunity

9 to raise their right to representation in their juvenile court cases or to exercise their right to

10 appeal.

11

In determining whether a state court provides an adequate opportunity to present

12 federal claims, courts hold that “[m]inimal respect for state processes . . . precludes any

13 presumption that the state court will not safeguard federal constitutional rights.” Middlesex

14 County Ethics Comm., 457 U.S. at 431, 102 S.Ct. 2515. Rather, a federal court “should

15 assume that state procedures will afford an adequate remedy, in the absence of unambiguous

16 authority to the contrary.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 S.Ct. 1519 (1987). As

17 such, a plaintiff opposing abstention bears the burden of establishing that the pending state

18 proceedings do not provide an adequate remedy for their federal claims. 31 Foster Children,

19 329 F.3d at 1279.

20

In this matter, Defendants have provided Nevada case law which provides that the

21 Nevada Supreme Court has the authority, on appeal, to determine constitutional issues

22 involved in a juvenile proceeding. See Scott E. v. State, 113 Nev. 234, 238, 931 P.2d 1370

23 (Nev. 1997). As such, any constitutional questions, arising under the federal or state

24 constitution, in juvenile proceedings may be addressed and appealed to the Nevada Supreme

25 Court. Plaintiffs do not dispute this authority. Rather, Plaintiffs state that if they are not

26 appointed a guardian ad litem at the outset, they will have no one to raise a constitutional

27 issue on their behalf. However, Plaintiffs’ argument is belied by this very case. The same

28 representatives that brought the federal constitutional claims in this action, could challenge

26

1 the constitutionality of the juvenile court proceedings without implicating sensitive issues of

2 federalism and comity. Thus, Plaintiffs have failed to overcome the presumption that their

3 pending state court proceedings provide an adequate opportunity for judicial review of their

4 federal claims.

5

Therefore, based on the foregoing analysis, the Court finds that it must abstain from

6 adjudicating this claim pursuant to Younger v. Harris. If this Court were to adjudicate this

7 claim, it would interfere with ongoing state juvenile proceedings that implicate important state

8 interests. In addition, Plaintiffs have failed to overcome the presumption that their pending

9 state court proceedings provide an adequate opportunity for judicial review of their federal

10 claims.

11

4. Child Abuse Prevention and Treatment Act; Early Intervention Services

12

13

Plaintiffs’ Tenth Cause of Action asserts a class claim under § 1983 for violation of 42

14 U.S.C. § 5106a(b)(2)(A)(xxi) and 20 U.S.C. § 1437(a)(6)(A). According to Plaintiffs,

15 Defendants’ “acts and omissions” deprived the class members “of particular statutory rights.”

16 Defendants argue that this claim should be dismissed because there is no section 1983

17 enforceable right to early intervention services. In addition, Defendants argue that they are

18 entitled to qualified immunity on this claim.

19

As noted in the foregoing, 42 U.S.C. § 5106a provides for grants to states for child

20 abuse and neglect prevention and treatment programs. Section 5106a(b)(2)(A)(xxi) provides

21 that to be eligible to receive a grant under the statute, a state shall submit a plan and that plan

22 “shall contain an outline of the activities that the State intends to carry out using amounts

23 received under the grant to achieve the purposes of this subchapter,” including “provisions

24 and procedures for referral of a child under the age of 3 who is involved in a substantial case

25 of child abuse or neglect to early intervention services funded under part C of the Individuals

26 with Disabilities Education Act.”

27 ///

28 ///

27

1

As noted in the previous analysis under CAPTA, most courts have held that under the

2 Blessing test there is no private right of action for claims brought under 42 U.S.C. §

3 5106a(b)(2). The Court agrees with that analysis and finds that there is no private right of

4 action. Also, the Court finds that even if there were a private right of action, Defendants are

5 entitled to qualified immunity on Defendants’ early intervention services claim under CAPTA

6 because Plaintiffs have not asserted a violation of a “clearly established” statutory

7 constitutional right.

8

The other statutory basis for Plaintiffs’ early intervention services claim is also

9 dismissed on the grounds that Plaintiffs’ failed to state a claim for relief. The Individuals with

10 Disabilities Education Act (“IDEA”) provides that “[t]he Secretary shall . . . make grants to

11 States . . . to assist each State to maintain and implement a statewide, comprehensive,

12 multidisciplinary, interagency system to provide for early intervention services for infants and

13 toddlers with disabilities and their families.” 20 U.S.C. § 1433. Section 1437 of that act

14 provides for the application and assurances a state must provide to receive a grant under the

15 statute. Under Section 1437(a)(6)(A), a state seeking a grant under the Act, must submit an

16 application to the Secretary, and the application must contain “a description of the State

17 policies and procedures that require the referral for early intervention services under this

18 subchapter of a child under the age of 3" who is either involved in a substantial case of child

19 abuse or neglect, or is identified as affected by illegal substance abuse, or withdrawal

20 symptoms resulting from prenatal drug exposure.

21

In Blanchard v. Morton School Dist., the Ninth Circuit held that there was no private

22 section 1983 claim for the violation of rights under the IDEA. 509 F.3d 934, 938 (9th Cir.

23 2007). In that case, plaintiff was seeking damages to compensate her for lost income and the

24 emotional distress she experienced during her ultimately successful efforts to obtain benefits

25 for her son under the IDEA, 20 U.S.C. §§ 1400-1482. In that case, the court noted that

26 section 1983 does not, in itself, create any right under federal law. Id. Rather, “[i]t provides

27 remedies for violations of federal rights only where a ‘federal statute creates an individually

28 enforceable right in the class of beneficiaries to which [plaintiff] belongs.’” Id. (quoting City of

28

1 Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120, 125 S.Ct. 1453 (2005)). The court noted

2 that in Smith v. Robinson, 468 U.S. 992, 1013, 104 S.Ct. 3457 (1984), the Supreme Court held

3 that “the Education of the Handicapped Act (‘EHA’), the predecessor to the IDEA, was the

4 exclusive means of remedying violations of the rights it guaranteed.” Id. at 937. In response,

5 according to the Ninth Circuit, “Congress amended the statute to include what now is 20

6 U.S.C. § 1415(l).” Id. That amendment stated that: “Nothing in this chapter shall be construed

7 to restrict or limit the rights, procedures, and remedies available under the Constitution, the

8 Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other

9 Federal laws protecting the rights of children with disabilities . . . .” 20 U.S.C. § 1415(l). The

10 Ninth Circuit stated that there “is an existing circuit split on whether, with the amendment,

11 Congress intended the IDEA rights to be enforceable under § 1983.” Id. “The First, Third,

12 Fourth, and Tenth Circuits have held that Congress did not so intend.” Id. “The Second and

13 Seventh Circuits have held that Congress did so intend.” Id. The Ninth Circuit stated that it

14 was persuaded by the Third Circuit which found that there was no enforceable right under

15 section 1983 for a violation of the IDEA. The Ninth Circuit noted with approval the Third

16 Circuit’s holding that the IDEA is a comprehensive scheme, and that the IDEA provides judicial

17 remedies for violations of its provisions. Id. As such, the Ninth Circuit held that “Congress

18 did not intend § 1983 to be available to remedy violations of the IDEA.” Id. (quoting A.W. v.

19 Jersey City Pub. Sch., 486 F.3d 791, 797-803 (3d Cir. 2007)).

20

In Carney ex rel. Carney v. Nevada ex rel. Dept. of Educ., the Nevada district court held

21 that there was no enforceable section 1983 claim available under the IDEA. 2007 WL 777697

22 *2 (D.Nev. 2007). In that case, the court noted that “[w]hen the remedial devices provided in

23 a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional

24 intent to preclude the remedy of suits under § 1983.” Id. (quoting Middlesex County v. Nat’l

25 Sea Clammers Ass’n, 453 U.S. 1, 20, 101 S.Ct. 2615 (1981)). The court stated that the IDEA

26 had a comprehensive enforcement scheme and dismissed Plaintiffs’ § 1983 claims for

27 violations of rights granted by the IDEA.

28 ///

29

1

In this matter, based on the Ninth Circuit’s holding in Blanchard, Plaintiffs’ IDEA section

2 1983 claims are dismissed. The Ninth Circuit has sided with other courts and circuits in

3 holding that the IDEA has a comprehensive enforcement scheme, directed at resolution, that

4 is incompatible with enforcement through § 1983.

5

5. Negligence Claim

6

Finally, Defendants assert that they are entitled to immunity for the state law

7 negligence claim asserted against them. According to the Clark County Defendants, Plaintiffs’

8 negligence claim should be dismissed because Defendants were exercising personal

9 decision-making and judgment in their administration of the Department of Family Services

10 (“DFS”). Because they were exercising personal deliberation, decision-making and judgment,

11 the Clark County Defendants state that their acts were discretionary and entitled to immunity

12 under Nevada law. The State Defendants also argue that this claim should be dismissed.

13 According to the State Defendants, Plaintiffs have failed to state a claim for relief because

14 Plaintiffs did not allege “with any specificity that State Defendants owe any duty of care or

15 describe how they breached that duty.” (State Defendants’ Motion to Dismiss (#21) at 26).

16 In addition, the State Defendants also argue that they are entitled to immunity on the

17 negligence claim because “their alleged actions involve individual judgment and are based

18 on policy considerations.” Id. at 27.

19

In response, Plaintiffs argue that Defendants are not entitled to immunity on the

20 negligence claim because Plaintiffs have asserted that Defendants failed “to initiate duties

21 which they have no discretion to ignore.” (Consolidated Opp’n (#36) at 30). In other words,

22 Plaintiffs argue that they have asserted ministerial acts against Defendants and the

23 discretionary immunity statute does not apply.

24

In this case, the Court declines to rule on Plaintiffs’ negligence and remaining state law

25 claims pursuant to 28 U.S.C. § 1367(c). Not only do these claims raise strict issues of state

26 law, but the Court has dismissed all claims over which it has original jurisdiction on the

27 grounds that Defendants are entitled to qualified immunity.

28 ///

30

1

CONCLUSION

2

For the foregoing reasons, IT IS ORDERED that the Clark County Defendants’ Motion

3 to Dismiss (#20) and the State Defendants’ Motion to Dismiss (#21) are GRANTED.

4 Defendants are entitled to qualified immunity on the federal law claims asserted against them.

5 The Court declines to exercise jurisdiction over the remaining state law claims.

6

DATED: This 26th day of October, 2010.

7

8

_________________________________

9

United States District Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

31

 </s> Case 2:10-cv-00528-RCJ-PAL Document 1 Filed 04/13/10 Page 1 of 80

1 BRUNO WOLFENZON (Nevada Bar No. 6177) GREGORY M. SCHULMAN (Nevada Bar No. 5766)
2 WOLFENZON SCHULMAN & ROLLE 6725 Via Austi Pkwy, Suite 260
3 Las Vegas, NV 89119 Telephone: (702) 836-3138
4 Facsimile: (702) 836-3139

5 LORI A. SCHECHTER (will comply with LR IA 10-2 within 10 days) MARY F. HANSBURY (will comply with LR IA 10-2 within 10 days)
6 JEFFREY K. ROSENBERG (will comply with LR IA 10-2 within 10 days) MORRISON & FOERSTER LLP
7 425 Market Street, Suite 3200 San Francisco, California 94105-2482
8 Telephone: 415.268.7000 Facsimile: 415.268.7522
9
WILLIAM GRIMM (will comply with LR IA 10-2 within 10 days) 10 LEECIA WELCH (will comply with LR IA 10-2 within 10 days)
BRYN MARTYNA (will comply with LR IA 10-2 within 10 days) 11 CAMILLE ROBERTS (will comply with LR IA 10-2 within 10 days)
NATIONAL CENTER FOR YOUTH LAW 12 405 – 14th Street, 15th Floor
Oakland, CA 94612 13 Telephone: (510) 835-8098
Facsimile: (510) 835-8099 14
Co-attorneys for Plaintiffs 15 HENRY A. et al.

16

UNITED STATES DISTRICT COURT

17

DISTRICT OF NEVADA

18 HENRY A., by his next friend M.J.; CHARLES AND CHARLOTTE B., by their next friend R.D.; LEO and
19 VICTOR C., by their next friend C.T.; DELIA, MAIZY, AND JONATHAN D. by their next friend
20 S.W.; LINDA E. by her next friend E.F.; CHRISTINE F., OLIVIA G., SHELDON H. by their next friend
21 E.F., and MASON I., by his next friend M.J., individually and on behalf of others so situated,
22 Plaintiffs,

23

vs.

Case No. 2:10-CV-00528
COMPLAINT (Class Action Alleged) (Jury Trial Demanded)

24 MICHAEL WILLDEN, Director of the Nevada Department of Health and Human Services; DIANE
25 COMEAUX, Administrator of Nevada Division of Child and Family Services; VIRGINIA VALENTINE,
26 Clark County Manager; CLARK COUNTY; TOM MORTON, Director of Clark County Department of
27 Family Services; and DOES I-XX,

28

Defendants.

COMPLAINT

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Case 2:10-cv-00528-RCJ-PAL Document 1 Filed 04/13/10 Page 2 of 80

1

TABLE OF CONTENTS

2

Page

3 INTRODUCTION........................................................................................................................... 1

4 JURISDICTION AND VENUE ...................................................................................................... 6

5 THE PLAINTIFFS .......................................................................................................................... 6

6 THE DEFENDANTS .................................................................................................................... 13

7 ORGANIZATIONAL STRUCTURE AND RESPONSIBILITIES OF

DEFENDANTS................................................................................................................. 16

8

I. ALLEGATIONS REGARDING DEFENDANTS’ POLICIES,

9

CUSTOMS AND OMISSIONS ........................................................................................ 18

10

A. Defendants Fail to Inform Foster Parents and Other

Caregivers of Essential Information Necessary for

11

Stable and Successful Placements ......................................................................... 18

12

1. Federal and State Laws Require Caseworkers to

Provide Foster Parents Specific Information

13

About a Child’s Health and Behavioral

Background Before Placing the Child....................................................... 18

14

2. Defendants’ Policies, Customs and Omissions

15

Violate Federal and State Law Regarding the

Provision of Information to Foster Parents ............................................... 20

16

3. Plaintiffs Have Been Injured as a Result of

17

Defendants’ Failure to Provide Required

Information ................................................................................................ 21

18

4. It Is Likely that Plaintiffs and Others Will

19

Continue to Suffer Harm as a Result of

Defendants’ Policies, Customs and Omissions ......................................... 25 20

B. Defendants Fail to Provide Foster Children with

21

Necessary Medical and Mental Health Treatment to

Which They Are Entitled ...................................................................................... 26 22

23

1. Federal and State Laws Require Defendants to Provide Timely Medical and Mental Health

24

Services to Meet the Needs of Children in Their Custody...................................................................................................... 26

25

2. Defendants’ Policies, Customs and Omissions

26

Cause Defendants Regularly and Routinely to Fail to Provide Required Screenings and

27

Treatment to Which Foster Children in Their Custody Are Entitled ................................................................................. 29

28

COMPLAINT

i

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Case 2:10-cv-00528-RCJ-PAL Document 1 Filed 04/13/10 Page 3 of 80

1

3. Plaintiffs Have Been Injured as a Result of

Defendants’ Failure to Provide Necessary

2

Medical and Mental Health Services to Which

They Are Entitled ...................................................................................... 31

3

4. It Is Likely that Plaintiffs and Others Will

4

Continue to Suffer Harm as a Result of

Defendants’ Policies, Customs and Omissions ......................................... 38

5

C. Defendants Fail to Ensure the Safety and Well Being of

6

the Foster Children in Their Care and Custody..................................................... 39

7

1. Defendants Fail to Protect Foster Children by

Failing to Ensure the Adequacy of Relative

8

Caregivers.................................................................................................. 39

9

a. Federal Law Requires That Relative

Placements Be Subject to the Same

10

Licensing Standards as Other Caregivers...................................... 39

11

b. Nevada’s Blanket Exemption of Relative

Caregivers from Foster Home Licensing

12

Standards Violates Federal Law.................................................... 39

13

c. Plaintiffs Have Been Injured as a Result

of Defendants’ Failure to Investigate and

14

Monitor Relative Placements ........................................................ 41

15

d. It Is Likely That Plaintiffs and Others

Will Continue to Suffer Harm as a Result

16

of Defendants’ Violation of Federal Law...................................... 42

17

2. Defendants Fail to Protect Foster Children by

Failing to Investigate Reports of Abuse and

18

Neglect....................................................................................................... 43

19

a. The Law Requires Defendants to

Promptly and Thoroughly Investigate

20

Suspected Abuse and Neglect of Foster

Children ......................................................................................... 43 21

b. Defendants’ Policies, Customs, and

22

Omissions Do Not Comply with Laws

23

Mandating Investigations of Suspected Abuse............................................................................................. 44

24

c. Plaintiffs Have Been Injured by

25

Defendants’ Inadequate Investigation of Suspected Abuse............................................................................ 45

26

d. It Is Likely That Plaintiffs and Others

27

Will Continue to Suffer Harm as a Result of Defendants’ Policies, Customs and

28

Omissions ...................................................................................... 46

COMPLAINT

ii

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Case 2:10-cv-00528-RCJ-PAL Document 1 Filed 04/13/10 Page 4 of 80

1

3. Defendants Fail to Protect Foster Children When

Transferring Them to Out of State Facilities............................................. 47

2

a. The Law Requires Defendants to

3

Physically Inspect and Monitor

Treatment and Services Provided to

4

Foster Children by Out of State Facilities ..................................... 47

5

b. Defendants’ Policies, Customs and

Omissions Do Not Comply with Federal

6

and State Laws Governing Transfer of

Foster Children Outside of Nevada ............................................... 48

7

c. Plaintiff Mason Has Been Injured by

8

Defendants’ Failure to Physically Inspect

and Monitor Out of State Facilities in

9

Which Foster Children Are Placed................................................ 49

10 11 12
II. 13 14 15 16

d. It Is Likely That Plaintiff Mason and Others Will Continue to Suffer Harm as a Result of Defendants’ Policies, Customs and Omissions ............................................................................... 51
CLASS ACTION ALLEGATIONS.................................................................................. 51
A. Defendants Routinely Fail to Develop a Case Plan for Each Foster Child as Required Under Nevada and Federal Law ........................................................................................................... 51
B. Defendants Fail to Provide All Foster Children with Guardians ad litem................................................................................................. 55

17

C. Defendants Fail to Ensure That Foster Children Receive

Early Intervention Services to Which They Are Entitled...................................... 57

18

CAUSES OF ACTION ................................................................................................................. 60 19

PRAYER FOR RELIEF ................................................................................................................ 74 20

JURY DEMAND................................ ................................ ................................ ........................... 75 21

22

23

24

25

26

27

28

COMPLAINT

iii

sf-2772895

Case 2:10-cv-00528-RCJ-PAL Document 1 Filed 04/13/10 Page 5 of 80

1

2

ADHD 3
CAP

4

5

CAPTA

Clark County DFS

6

7

Comeaux

8

CPS

9

EPSDT

10

ICPC

11

IDEA

12

IEP

13

Morton

14

NDA

15

Nevada DHHS

16

State DCFS

17

UNITY

18

Valentine

19

Willden

20

21

22

23

24

25

26

27

28

COMPLAINT sf-2772895

GLOSSARY OF TERMS
Attention Deficit/Hyperactivity Disorder Children’s Attorneys Project of Legal Aid Center of Southern Nevada Child Abuse Prevention and Treatment Act Clark County Department of Family Services Diane Comeaux - Administrator of Nevada Division of Children and Family Services Child Protective Services Early Periodic Screening, Diagnostic and Treatment Interstate Compact on the Placement of Children Individuals with Disabilities Education Act Individualized Education Plan Tom Morton - Director of Clark County Department of Family Services National Deaf Academy Nevada Department of Health and Human Services Nevada Division of Children and Family Services Unified Nevada Information Technology for Youth Virginia Valentine - Clark County Manager Michael Willden - Director of the Nevada Department of Health and Human Services
iv

Case 2:10-cv-00528-RCJ-PAL Document 1 Filed 04/13/10 Page 6 of 80

1

INTRODUCTION

2

1. This action, consisting of individual claims for damages, declaratory, and injunctive

3 relief, and class claims for declaratory and injunctive relief, is brought by thirteen children who

4 are or have been in the legal custody of the State of Nevada and/or Clark County and placed in

5 foster care. Plaintiffs seek redress for the harms suffered while in Defendants’ care and custody.

6

2. Plaintiffs were removed from the care of their parents, and their custody was

7 transferred to Defendants, for the explicit purpose of keeping them safe from further harm and

8 ensuring their well being. But Defendants’ child welfare system routinely fails in its legal

9 obligations, duties and responsibilities to foster children. Although Defendants are and have long

10 been aware of these failures, in many instances their proposed solutions have been ineffective,

11 and in many cases they have taken no action at all. Defendants’ policies, customs and omissions,

12 as set forth in detail below, fail to comply with federal and state laws, depart substantially from

13 professional judgment, standards, and/or practice, and reflect a deliberate indifference to the

14 health and safety of the children Defendants are obligated to protect. As a result, Plaintiffs have

15 sustained numerous injuries detailed below, including:

16

abuse by a foster family that was so severe that the two very young Plaintiff

17

children Defendants placed in that home had to be treated at a hospital;

18

ignoring requests for authorization of urgently needed medical treatment until

19

emergency surgery was required;

20

destruction of a deaf Plaintiff’s cochlear implant, which severely impaired his

21

language development; and

22

multiple placement disruptions, including a one-year-old child who was sent to

23

twelve different foster care settings in a single year and two children who have

24

been sent to more than forty different homes during their time in Defendants’

25

custody.

26

3. Defendants operate a child welfare system that fails to comply with state and federal

27 laws or professional standards. Although Nevada law grants explicit responsibility and authority

28 to the state officials sued herein to develop and promulgate child welfare policy, these State

COMPLAINT

1

Case 2:10-cv-00528-RCJ-PAL Document 1 Filed 04/13/10 Page 7 of 80

1 Defendants have abdicated that responsibility in large respects. As a result, Clark County

2 Defendants have created many of their own policies. This mixture of state and county policies

3 makes it virtually impossible to determine what policies apply and confounds the ability of even

4 the most well-intentioned staff to determine what their responsibilities are to the children on their

5 caseload. Defendant Tom Morton, the director of the Clark County agency responsible for

6 administering child welfare services, characterized the absence of clearly constructed policies and

7 procedures, coupled with inadequate training of caseworkers, as “a recipe for disaster.”

8

4. Nevada’s foster care system is currently financed through a mix of federal, state, and

9 county funds. The State provides funding to Clark County for operation of its foster care

10 program, while Clark County is responsible for providing funding for child protective services

11 within the county. The State also receives millions of dollars of federal funds for its child welfare

12 system and allocates a portion of these funds to Clark County. Federal funds are the single

13 greatest source of support for Nevada’s child welfare system, ranging each year from 53% to 55%

14 of all state spending on child welfare.

15

5. To become eligible for federal funding, Nevada agreed to administer its foster care

16 program in accordance with federal statutes, regulations, and policies promulgated by the U.S.

17 Department of Health and Human Services. The U.S. Department of Health and Human Services

18 conducts periodic reviews to assess whether Nevada is in compliance with those federal

19 mandates. Federal Reviews were conducted in 2004 and 2009. Both of these reviews assessed

20 the State’s performance with regard to seven “child and family outcome categories” and seven 21 “systemic factors” relating to key federal requirements. The 2004 review of Nevada’s foster care 22 program found that Nevada was not in substantial compliance with any of the seven child welfare 23 outcomes designed to ensure children’s “safety, permanency and well being.” U.S. DEP’T OF 24 HEALTH AND HUM. SERVS., Final Report, Nevada Child And Family Services Review (“2004

25 Federal Review”), dated June 1, 2004. The outcomes included whether the State is protecting

26 children from abuse and neglect; providing permanency and stability in children’s living

27 situations; and ensuring that children receive services to meet their physical and mental health

28 needs.

COMPLAINT

2

Case 2:10-cv-00528-RCJ-PAL Document 1 Filed 04/13/10 Page 8 of 80

1

6. The State’s performance continued to fall far below national standards in the 2009

2 Federal Review. U.S. DEP’T OF HEALTH AND HUMAN SERVS., Final Report Nevada Child and

3 Family Services Review, dated January 2010 (“2009 Federal Review”). Nevada was only in

4 substantial compliance with one of the seven child welfare outcomes designed to ensure

5 children’s “safety, permanency and well being.” In addition, Nevada was not in substantial

6 compliance with four of the seven “systemic factors.” The State failed to meet federal standards

7 in broad categories, including safety-related outcomes, staff and care provider training, the case

8 status review system, and the outcome for children’s physical and mental health.

9

7. In 2008, the University of Nevada Las Vegas (UNLV) analyzed Clark County’s

10 foster care policies pursuant to a legislatively commissioned audit of child welfare services. The

11 analysis determined the extent to which Clark County policies incorporated state child welfare

12 laws and regulations and the mandates of federal laws and regulations. The auditors concluded

13 that Clark County policies included barely a third (37%) of federal and state laws and regulations.

14

8. The 2008 legislative audit also assessed the extent to which Clark County policies

15 incorporated the recommendations of several prior reports of the County’s deficiencies. The

16 auditors found that Clark County had adopted a mere 13% of the recommendations in those reports.

17

9. Since 2003, more than ten studies and reports have documented Defendants’ failure

18 to protect the health, safety, and well being of child abuse victims and children in foster care.

19 Defendants commissioned many of these reports. In addition, Defendants have conducted

20 multiple case reviews that further document these failures. Though Defendants have had full

21 knowledge of these studies, reports, audits, and case reviews, they have nonetheless failed to

22 remedy the long-standing and substantial deficiencies identified in them. These studies put

23 Defendants on notice that, among other problems:

24

(a) Defendants fail to adequately train and supervise caseworkers. The 2008

25 legislative audit documented that few entry-level caseworkers have the rudimentary knowledge,

26 skills, or training needed to perform their job of ensuring the health, safety, and well being of

27 foster children in Defendants’ custody. Few Clark County caseworkers or their direct supervisors

28 have a degree in social work or a license to practice social work in Nevada. Many caseworkers

COMPLAINT

3

Case 2:10-cv-00528-RCJ-PAL Document 1 Filed 04/13/10 Page 9 of 80

1 are assigned caseloads before completing even the most basic training. High caseloads and

2 inadequate training of Clark County child protective services providers and foster care workers

3 contribute to the crisis within the system. Many workers’ caseloads far exceed those established

4 by national standards. Poorly trained and unsupervised caseworkers with high caseloads fail to

5 abide by law, regulations, and professional standards, and are incapable of or fail to exercise

6 professional judgment, resulting in serious injury to children in foster care. Indeed, a recent

7 assessment of Nevada’s performance in managing its foster care system revealed that

8 caseworkers failed to prepare a federally and state-mandated case plan for approximately 47% of

9 the foster children in its care within the state-mandated 45-day time window following removal

10 from the home. Further, the 2009 Federal Review found that Nevada failed to meet national

11 standards for staff and provider training, noting that although Nevada requires licensed social

12 workers to complete continuing education requirements, not all caseworkers are licensed social

13 workers. The State has no ongoing training or education requirements for caseworkers who are

14 not licensed social workers.

15

(b) Defendants fail to meet the needs of children under their care. Despite legally

16 mandated obligations to these children, Defendants fail to identify and meet foster children’s

17 needs, causing them substantial harm. Defendants routinely fail to ensure that children in foster

18 care are provided with the mental health, medical, and early intervention services that they need

19 and to which they are legally entitled. For example, in many instances, Defendants address the

20 mental health needs of foster children solely by the prescribing of psychotropic drugs. Moreover,

21 Defendants fail to monitor the children’s health and well being after these drugs have been

22 administered. Even after discovering abuse or neglect in the foster home, Defendants often fail to

23 obtain needed services for the foster children who were victimized. This problem has been

24 exacerbated by Defendants’ failure to fulfill their legal obligation to provide prospective foster

25 parents with critical information about the foster child’s background and history of abuse,

26 medical history and needs, family history, behaviors, and educational records.

27

(c) Defendants fail to ensure that caseworkers conduct legally required visits with

28 foster children. Caseworkers regularly fail to visit children in their placements and are therefore

COMPLAINT

4

Case 2:10-cv-00528-RCJ-PAL Document 1 Filed 04/13/10 Page 10 of 80

1 unaware of the quality of care the child is receiving, the harm befalling the child, the risk to

2 which the child is exposed, and the lack of needed medical, mental health, education, and other

3 services.

4

(d) Defendants fail to take reasonable and legally mandated steps to protect

5 children from harm. Investigations of child abuse reports involving children in foster care

6 routinely fail to comply with state law and professional standards. As a direct result, children

7 who could and should have been protected suffer unnecessarily. County Defendants often turn a

8 deaf ear to reports of abuse and neglect in foster care settings, allowing children to remain in

9 dangerous homes that either should not have been licensed in the first place or should have had

10 their licenses revoked. Even though state and federal law mandate appointment of a

11 representative to look out for the interests of the child in all cases, the requirement to appoint a

12 guardian ad litem is routinely left unfulfilled. Children in foster care thus frequently have no

13 voice in court proceedings where decisions are made that affect their basic safety, their temporary

14 and permanent placements, and their general well being.

15

10. As alleged herein, Defendants are further victimizing foster children rather than

16 discharging their duty to provide for their safety, care, and well being. Because of their

17 pervasive, long-standing, and well-documented deficiencies in providing suitable out-of-home

18 placements, mental health services and monitoring, and other basic needs, Defendants have

19 harmed and continue to harm Plaintiff children physically, emotionally, and psychologically.

20 Defendants’ policies, customs and omissions described in this Complaint threaten the ability of

21 foster children to grow, develop, and live safe and healthy childhoods. Plaintiffs have been

22 harmed by Defendants’ policies, customs, omissions and failures to fulfill their legal obligations

23 to foster children, and without court action, they will continue to suffer injury as a result of

24 Defendants’ unconstitutional deprivations and statutory violations. Many other children entrusted

25 to the care and protection of Defendants will also suffer unless Defendants’ violations are

26 redressed.

27

11. This action seeks compensatory and punitive damages for the past harms that

28 Plaintiffs have suffered while in the custody of Defendants. This action also seeks declaratory

COMPLAINT

5

Case 2:10-cv-00528-RCJ-PAL Document 1 Filed 04/13/10 Page 11 of 80

1 and injunctive relief to stop continuing violations of Plaintiffs’ legal rights and to prevent

2 Defendants, through their policies, customs and omissions, from continuing to harm the very

3 children whom Defendants have a responsibility to protect.

4

12. In addition, this action also seeks declaratory and injunctive relief on behalf of

5 certain specified classes of children in the Clark County foster care system for whom Defendants

6 have failed to fulfill mandatory obligations to (1) develop case plans with the requisite

7 information within the requisite time period under Nevada and federal law; (2) provide guardians

8 ad litem as required under Nevada and federal law; and (3) provide early intervention services as

9 required under Nevada and federal law.

10

JURISDICTION AND VENUE

11

13. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and

12 1343(a)(3) & (4). Plaintiffs’ action for declaratory relief is authorized by 28 U.S.C.

13 §§ 1343(a)(4), 2201, 2202 and by Fed. R. Civ. P. 57. Plaintiffs further invoke the supplemental

14 jurisdiction of this Court pursuant to 28 U.S.C. § 1367 to hear and decide claims arising under

15 state law.

16

14. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because a substantial

17 part of the events or omissions giving rise to the claims in this case arise in this District.

18

THE PLAINTIFFS

19

15.

At

all

times

relevant

herein,

Plaintiffs

and

their

next

1
friends

were

and

continue

to

20 be residents of Clark County, Nevada, with the exceptions of Plaintiff Mason I., who has resided

21 in Clark County, Nevada, at all times relevant herein, except from May 2008 to December 2009,

22

23

1 Plaintiffs and their next friends are proceeding under fictitious names and satisfy the

24

requirements of Rule 10(a) of the Federal Rules of Civil Procedure. Plaintiffs are minors in government custody who are challenging governmental action. Revealing their true identities

25 would cause them to disclose highly intimate information, including details of abuse and neglect. Disclosure of the next friends, many of whom are currently caring for the children, would result

26 in identification of the Plaintiffs. In addition, the use of next friends should be permitted in this case, as plaintiffs and their next friends satisfy the requirements of Rule 17(c) of the Federal

27 Rules of Civil Procedure and the criteria set forth in Whitmore v. Ark., 495 U.S. 149, 163-64 (1989).The next friends are all either family members or current or former foster parents. These

28 individuals have the intention to act in the children’s best interest.

COMPLAINT

6

Case 2:10-cv-00528-RCJ-PAL Document 1 Filed 04/13/10 Page 12 of 80

1 when the State sent him to a treatment center in Florida, Sheldon H., who resided in Clark

2 County, Nevada at all times relevant herein, prior to February 23, 2010, when he was placed with

3 a relative out of state, and next friend R.D., who resides in Kingman, Arizona.

4

16. Plaintiff Henry A. is an eleven-year-old boy who has been in the legal custody of,

5 and placed in foster care with, Clark County Department of Family Services (“Clark County

6 DFS”) and/or Nevada Division of Children and Family Services (“State DCFS”) since he was

7 four years old. Henry appears in this action by his former foster parent, M.J., who is acting as his

8 next friend. Henry entered foster care at the age of four after being physically abused by his

9 mother, including being locked in the trunk of her car. Despite knowledge of extreme physical

10 abuse, Clark County DFS placed Henry back with his mother, only to later return him to foster

11 care. Henry suffers from severe mental health problems, but any treatment he received was

12 repeatedly discontinued and disrupted because Defendants moved him to more than forty

13 different placements, and assigned him six or seven different caseworkers (including one who had

14 not completed basic training), in the seven years that he has been in their care. He has had to

15 change mental health providers more than ten times, and Defendants have often failed to provide

16 any information regarding his mental health assessments and treatment history to his new

17 providers. Defendants have also caused Henry to be administered multiple psychotropic

18 medications without adequate care and monitoring and without periodic reassessments of his

19 psychological condition. In July 2009, for example, Henry suffered drug poisoning as a result of

20 the multiple medications he was administered, spent several weeks in the intensive care unit

21 (ICU) of a hospital, and suffered near organ failure. Henry has suffered and continues to suffer

22 injury as a result of Defendants’ policies, customs and omissions.

23

17. Plaintiffs Charles B., age nine, and Charlotte B., age one, are siblings. They have

24 been in the legal custody of, and placed in foster care with, Clark County DFS since March 2009.

25 Charles and Charlotte appear in this action by their grandfather, R.D., who is acting as their next

26 friend. Upon removing Charles and Charlotte from their home, Defendants refused to place them

27 with their grandmother, despite an obligation to place foster children with relatives when safe and

28 appropriate placements are available, despite a court order requiring that these children be placed

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1 with their grandmother, and despite their grandmother being ready, willing, and able to provide

2 them a safe and appropriate placement. Instead, Defendants placed Charles and Charlotte in a

3 foster home in which the foster mother and her teenaged son abused them, including by locking

4 Charlotte in a closet without food and water for long periods of time in a soiled diaper and

5 beating Charles when he tried to help Charlotte. The Las Vegas police ultimately removed the

6 children from that foster home and brought them to a hospital for treatment. At the hospital,

7 Charlotte was found to be suffering from dehydration, bruises on her forehead, cuts on both legs,

8 and diaper rash so severe that her buttocks were ulcerated and bleeding. The foster mother has

9 been charged with child abuse, and her son has pleaded guilty to assault. In the twelve months

10 since they entered Defendants’ custody, Charles and Charlotte have been in at least seventeen

11 placements, including multiple single-night placements at Child Haven, a shelter for abused and

12 neglected children. Charles and Charlotte have suffered and continue to suffer injury as a result

13 of Defendants’ policies, customs and omissions.

14

18. Plaintiff Linda E. is a seventeen-year-old girl who has been in the legal custody of,

15 and placed in foster care with, Clark County DFS and/or State DCFS for over fifteen years.

16 Linda appears in this action by her former foster parent, E.F., who is acting as her next friend.

17 Defendants have placed Linda in more than forty different foster care settings, including many

18 inappropriate and dangerous placements in which she suffered abuse and neglect. For example, 19 Defendants placed Linda in the home of an aunt where she had previously suffered abuse. Linda 20 reported this abuse to her caseworker, but her circumstances did not improve. She was also left at 21 a psychiatric facility for six months because Defendants failed to identify an appropriate 22 placement for her. Linda’s placement history with Defendants is so riddled with failures that it 23 was not until the 2008–2009 school year—her junior year in high school and her fourteenth year 24 in Defendants’ custody—that she was able to complete an entire grade in the same school. 25 Defendants have failed to provide Linda with the medical and mental health care she needs and 26 have instead caused her to be administered multiple psychotropic drugs without adequate care and 27 monitoring and without periodic reassessments of her psychological condition. Linda has 28 suffered and continues to suffer injury as a result of Defendants’ policies, customs and omissions.

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1

19. Plaintiffs Leo and Victor C. are seventeen-year-old twins who have been in the

2 legal custody of, and placed in foster care with, Clark County DFS since November 2006. Leo

3 and Victor appear in this action by their grandmother, C.T., who is Leo’s current foster care

4 provider and Victor’s former foster care provider, and is acting as their next friend. Defendants at

5 first repeatedly refused to place the brothers in the care of their grandmother, who was ready,

6 willing, and able to provide a safe and appropriate placement for them. Instead, Defendants

7 shuttled the brothers between their father’s house and the home of their mother and her boyfriend,

8 where they were repeatedly abused. The boys were eventually abandoned at Child Haven. While

9 in the custody of Defendants, Leo and Victor have not received the urgently needed psychiatric

10 care to which they are entitled. Defendants took no steps to arrange psychiatric treatment in

11 response to repeated suicidal threats made by Victor. Additionally, after Victor’s needs and

12 symptoms escalated to the point where he had to be hospitalized twice, Defendants failed to

13 arrange for Victor to receive follow-up treatment by a psychiatrist. Leo and Victor have suffered

14 and continue to suffer injury as a result of Defendants’ policies, customs and omissions.

15

20. Plaintiffs Delia, Maizy, and Jonathan D. are siblings. Two-year-old Delia has

16 been in the legal custody of, and placed in foster care with, Clark County DFS since March 2008.

17 Maizy, age five, and Jonathan, age four, were in the legal custody of, and placed in foster care

18 with, Clark County DFS from late 2005 until August 2009. Delia, Maizy, and Jonathan appear in 19 this action by S.W., who has adopted Maizy and Jonathan and is acting as the next friend of all 20 three children. Delia, Maizy, and Jonathan have multiple medical problems and developmental 21 delays. Defendants placed the children in Child Haven as infants, where they did not receive 22 even basic care to meet their medical and nutritional needs. Instead of feeding the children age23 appropriate food, the staff at Child Haven kept the children on an inadequate formula diet and 24 failed to adjust the feeding techniques after observing the children regurgitate their food on 25 numerous occasions. Both Maizy and Jonathan were left in their cribs for the majority of their 26 days at Child Haven with limited interaction with adults and other children and few opportunities 27 for exercise or physical development. As a result of this neglect, both children were diagnosed 28 with failure to thrive, a diagnosis made when children are consistently underweight due to

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1 environmental and social factors. At the time of the children’s placement with her, S.W. was

2 given little information about their history, background, or special needs. Defendants also failed

3 to provide S.W. with the training, support, or assistance DFS knew she needed in order to meet

4 the medical, developmental, and emotional needs of the children.

5

21. Defendants have actively impeded S.W. from obtaining urgently needed medical

6 treatment for Jonathan and Delia, including neglecting to return calls and failing to provide

7 authorization for at least three necessary procedures. Left untreated, these conditions became so

8 severe that doctors determined they could proceed with the procedures on an emergency basis

9 without Defendants’ authorization. As a result of Defendants’ failure to provide medical

10 treatment when it was urgently needed, Jonathan and Delia have ongoing complications.

11 Jonathan’s colon is now misshapen and needs to be surgically corrected as a result of Defendants’

12 delay in authorizing treatment to remove a calcified stool from his impacted colon. Delia has also

13 had to undergo emergency surgery to remove a tumor located behind her eye. This surgery was

14 delayed because of Defendants’ failure to provide her with necessary and timely medical care,

15 and Delia is now undergoing chemotherapy as a follow-up to the surgery. Delia, Maizy, and

16 Jonathan have suffered and continue to suffer injury as a result of Defendants’ policies, customs

17 and omissions.

18

22. Plaintiff Olivia G., age nine, has been in the legal custody of, and placed in foster

19 care with, Clark County DFS since January 2006. Olivia appears in this action by E.F., who is

20 her current foster parent and is acting as her next friend. During 2005, Defendants received

21 multiple reports that Olivia and her siblings were being abused, but they did not remove Olivia

22 and her siblings from their parents’ care until almost a year after the initial report. Olivia was

23 placed with a series of relatives, but Defendants made no effort to determine whether those

24 relatives were able to provide appropriate care for her or to monitor the care she received in the

25 relative homes. Olivia suffered abuse in those homes, including multiple incidents where she was

26 beaten with a belt. She has been diagnosed as suffering from severely impaired

27 neuropsychological functioning and a range of cognitive and behavioral impairments.

28 Defendants caused Olivia to be administered powerful multiple psychotropic medications without

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1 adequate care and monitoring and without periodic reassessments of her psychological

2 condition—Olivia sometimes went for up to eighteen months without a neuropsychological exam

3 or reassessment while in Defendants’ care. In April 2009, Defendants placed Olivia with E.F. but

4 failed to provide E.F. with all the information and authorizations required to obtain Olivia’s

5 prescriptions. As a result, Olivia was forced to go through an abrupt, medically contraindicated

6 withdrawal from powerful psychotropic medications. Olivia has suffered and continues to suffer

7 injury as a result of Defendants’ policies, customs and omissions.

8

23. Plaintiff Christine F. is a three-year-old girl who has been in the legal custody of,

9 and placed in foster care with, Clark County DFS since May 2008. Christine appears in this

10 action by her current foster parent, E.F., who is acting as her next friend. Christine is a medically

11 fragile child who is severely developmentally delayed and who suffers from permanent

12 disabilities and a seizure disorder. Christine was hospitalized at University Medical Center after

13 falling out of a second-story window at the home of her mother, grandmother, and two uncles.

14 Despite suspicious marks around her ankles, suggesting that someone had held her out the

15 window by her ankles before dropping her, or had swung her by her legs into a wall, DFS did not

16 investigate the incident and did not take custody of Christine until her parents refused to authorize

17 medically necessary treatments to remedy Christine’s injuries. Approximately six weeks after

18 Christine was medically ready for discharge from the hospital, Defendants finally placed her in 19 the custody of E.F. Defendants failed to provide E.F. with Christine’s seizure medications and 20 offered almost no support or training on how to care for Christine’s extensive special needs. 21 Defendants have failed to provide Christine with regular medical care or therapeutic services, 22 such as physical, occupational, and speech therapy. County DFS also allowed Christine’s 23 grandmother, who County DFS knew to have a history of child abuse allegations made against 24 her and who was watching over Christine when she fell from the window, to have unsupervised 25 visits with Christine in her own home, greatly increasing the danger to Christine’s health and 26 safety. Christine has suffered and continues to suffer injury as a result of Defendants’ policies, 27 customs and omissions. 28

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1

24. Plaintiff Sheldon H. is a five-year-old boy who has been in the legal custody of,

2 and placed in foster care with, Clark County DFS since August 2008. Sheldon appears in this

3 action by E.F., who is acting as his next friend, and with whom he lived with for nearly 1.5 years.

4 Sheldon has extreme developmental disabilities, including behavioral problems. County DFS

5 assumed custody of Sheldon after he was injured in a car crash, the culmination of his mother and

6 stepfather fleeing from the police in a high-speed chase. After Sheldon was placed in E.F.’s care,

7 Defendants failed to make any home visits for six weeks, despite calls to the caseworker from

8 E.F. County DFS also failed to respond to repeated requests from Sheldon’s foster mother for

9 training and support to meet Sheldon’s needs and failed to provide a timely needs assessment for

10 Sheldon. Sheldon has thus missed many months of school, special education, and related services

11 during a critical window in his development. DFS has also endangered Sheldon by compelling

12 him to have unsupervised visits with his mother and stepfather, whom Sheldon has alleged

13 sexually abused him. This allegation was reported to Sheldon’s caseworker in March 2009 but

14 was not investigated for nearly a year. Sheldon has suffered and continues to suffer injury as a

15 result of Defendants’ policies, customs and omissions. In February 2010, Sheldon was placed

16 with his grandmother, out of state.

17

25. Plaintiff Mason I. is a twelve-year-old boy who has been in the legal custody of,

18 and placed in foster care with, Clark County DFS since July 2003. Mason appears in this action 19 by his former foster parent, M.J., who is acting as his next friend. Mason lived with M.J. for 20 nearly 1.5 years, beginning in September of 2008. Deaf since birth, Mason entered foster care at 21 the age of six after enduring sexual, physical, and emotional abuse by his parents and 22 grandparents. He suffers from posttraumatic stress disorder and reactive attachment disorder, 23 among other serious mental health diagnoses. During the six years he has been in Defendants’ 24 custody, Mason has been in more than twenty-five placements, including a treatment center in 25 Florida, the National Deaf Academy (“NDA”), to which Defendants transferred Mason for 26 approximately nineteen months. Mason’s only means of communication with others is via 27 American Sign Language. Despite knowing of his impairments, Defendants have failed to place 28 Mason in homes able to meet his special needs. Defendants have not provided Mason with a

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1 qualified American Sign Language Interpreter on a consistent basis, thereby depriving him of the

2 ability to effectively communicate with others and participate in and benefit from evaluations and

3 medical treatment. Defendants have routinely failed to fully disclose Mason’s relevant medical,

4 mental health, family, social or educational backgrounds to Mason’s foster parents, or health and

5 mental health professionals, or to provide him with the medical, mental health, and educational

6 services he needs and to which he is entitled. For example, Defendants failed to provide Mason

7 with proper and medically necessary treatment, including speech therapy, following his receipt of

8 a cochlear implant. Against Mason’s wishes, the NDA staff with whom Defendants placed him

9 rendered Mason’s implant permanently inoperative. Defendants also routinely administered, had

10 administered by caregivers they selected and supervised, or acquiesced in others’ administrating,

11 multiple psychotropic drugs to Mason with little to no information about the individual drugs or

12 their possible interaction. Further, Defendants placed Mason at NDA without ensuring that it was

13 safe and capable of meeting Mason’s needs. Defendants then ignored Mason’s complaints of

14 sexual abuse at NDA, took no steps to investigate or verify his safety or well being, and never

15 once visited the facility or had a face-to-face interview with Mason while he was there. Mason

16 has suffered and continues to suffer injury as a result of Defendants’ policies, customs and

17 omissions.

18

26. Each Plaintiff appears by a next friend, and each next friend is sufficiently familiar

19 with the facts and circumstances surrounding the child’s situation to represent the child’s best

20 interests in this litigation fairly and adequately.

21

THE DEFENDANTS

22

27. Defendant Michael Willden (“Willden”) has been the Director of the Nevada

23 Department of Health and Human Services (“Nevada DHHS”) since July 2001 and is sued in his

24 official and individual capacities. As Director of Nevada DHHS, Defendant Willden is

25 responsible for carrying out the administration of the Nevada Division of Children and Family

26 Services (“State DCFS”), which has responsibility for ensuring the provision of child welfare

27 services throughout the state. N.R.S. §§ 232.300, 232.320. Defendant Willden is also

28 responsible for appointing divisional directors, including the Administrator of State DCFS.

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1 N.R.S. § 232.320. Nevada DHHS, through its Division of Health Care Financing and Policy, is

2 also the single state agency responsible for administering Nevada’s Medicaid program. N.R.S.

3 §§ 422.270, 422.271. Defendant Willden is responsible for administering federal funds and

4 ensuring county compliance with all federal mandates of the Medicaid program. N.R.S. 232.070.

5

28. Defendant Diane Comeaux (“Comeaux”) has been the Administrator of State DCFS

6 since June 2008 and is sued in her official and individual capacities. She is responsible for the

7 administration and oversight of all functions of State DCFS. State DCFS has broad

8 responsibilities to Plaintiffs and other foster children. Among its responsibilities, the Division

9 must administer all federal funds provided to the State by the United States Department of Health

10 and Human Services, as well as plan, coordinate, and monitor the delivery of child welfare

11 services throughout the State. N.R.S. 432B.180. State DCFS is required to promulgate

12 regulations “establishing reasonable and uniform standards for child welfare services.” N.R.S.

13 432 B.190. Notably, federal law precludes State DCFS from “delegat[ing] to other than its own

14 officials its authority for exercising administrative discretion in the administration or supervision

15 of the plan including the issuance of policies, rules, and regulations on program matters.”

16 45 C.F.R. §205.100(b)(2). Thus, State DCFS must evaluate all child welfare services provided

17 throughout the State and take corrective action against any agency providing child welfare

18 services which is not complying with any applicable laws, regulations or policies. N.R.S.

19 432B.180 (8). Defendant Comeaux, as Administrator of State DCFS, is also responsible for

20 administering the Medicaid program with respect to children in the child welfare system.

21 N.R.S. 432B.180(1).

22

29. Defendants Willden and Comeaux are referred to collectively as the “State

23 Defendants.”

24

30. Defendant Clark County is a public entity established and maintained by the laws

25 and Constitution of the State of Nevada. Clark County owns, operates, manages, directs, and

26 controls Clark County DFS and employs and/or is responsible for the other County Defendants in

27 this action including, but not limited to, caseworkers, supervisors, foster home licensors, and

28

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1 administrators. Clark County has created the Clark County DFS Political Department to provide

2 and administer child welfare services in the County.

3

31. Defendant Virginia Valentine (“Valentine”) has been the Clark County Manager

4 since August 2006 and is sued in her official and individual capacities. She is responsible for

5 managing the County’s budget and providing administrative oversight for all County

6 departments, including Clark County DFS.

7

32. Defendant Tom Morton (“Morton”) has been the Director of Clark County DFS

8 since in or about July 2006 and is sued in his official and individual capacities. He is the

9 Executive Officer of Clark County DFS and is responsible for administering child welfare

10 services in Clark County and for ensuring the safety and well being of children in or at risk of

11 entering the child welfare system, pursuant to Nev. Rev. Stat. Ann. § 432B.

12

33. Defendants Clark County, Valentine, and Morton are collectively referred to herein

13 as the “County Defendants.”

14

34. Doe Defendants I through X are, and at all times relevant hereto were, caseworkers

15 for Clark County and Clark County DFS responsible for overseeing the safety, placement, health

16 care, education, and/or well being of Plaintiffs while in the custody of Clark County DFS, and are

17 sued in their official and individual capacities.

18

35. Doe Defendants XI through XX are, and at all times relevant hereto were,

19 supervisors for Clark County and DFS directly responsible for the supervision of Doe Defendants

20 I through X, and are sued in their official and individual capacities.

21

36. The true names and capacities of Defendants named herein as Does I through XX

22 are presently unknown to Plaintiffs who therefore sue Defendants by fictitious names. When the

23 true names and positions of these Does are discovered, Plaintiffs will seek leave to amend this

24 complaint and substitute the true names of Defendants. Plaintiffs or their next friends are

25 informed, believe, and therefore allege that Defendants so designated herein are responsible in

26 some manner and legally accountable for the events, occurrences, and harms suffered by

27 Plaintiffs as set forth in this action.

28

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1

37. At all material times, each Defendant acted under the color of the laws of the State

2 of Nevada.

3

38. The acts and omissions of the Clark County Defendants, caseworkers, supervisors,

4 and other employees described herein were pursuant to the actual policies and customs of Clark

5 County.

6

ORGANIZATIONAL STRUCTURE AND RESPONSIBILITIES OF DEFENDANTS

7

39. State Defendants Willden and Comeaux are responsible for the statewide

8 implementation and administration of federal child welfare programs including Titles IV-B and

9 IV-E of the Social Security Act. See N.R.S. § 232.300; § 232.320; § 432B.180.

10

40. State Defendants receive millions of dollars in federal funds to meet the needs of

11 children in the child welfare system and are therefore required to comply with federal mandates,

12 including those set forth in the Adoption Assistance and Child Welfare Act of 1980, as amended

13 by the Adoption and Safe Families Act of 1997: Titles IV-B and IV-E of the Social Security Act.

14 42 U.S.C. §§ 622 et seq.; 671 et seq. (“Adoption and Safe Families Act”), and the Child Abuse

15 Prevention and Treatment Act (“CAPTA”), 42 U.S.C. § 5101 et seq; 20 U.S.C. § 1430 et seq;

16 Individuals With Disabilities Education Act (“IDEA”).

17

41. Between 1996 and 2006 federal financial contribution to Nevada’s child welfare

18 system increased from $31 million per year to over $54 million per year. Federal funds comprise

19 over 50% of all State spending on child welfare.

20

42. State Defendants also are responsible for the management and day to-day operation

21 of Nevada’s Children’s Mental Health Services program, which includes services provided to

22 children in Clark County’s foster care system. Children’s Mental Health Services is the Nevada

23 program created to address the needs of children with significant emotional and behavioral

24 challenges and their families.

25

43. Until October 2004, Nevada operated a bifurcated child welfare system in which the

26 State’s two counties with populations of over 100,000—Clark and Washoe Counties—were

27 responsible for providing child protective services, while the State bore responsibility for

28 providing foster care services. Under this system, abused and/or neglected children removed

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1 from their parents or guardians were first placed in the legal and protective custody of Clark

2 County DFS pending the juvenile court’s findings and disposition of the case. Children not

3 returned from protective custody were placed in the legal custody and foster care of State DCFS.

4 Consequently, many current foster care children, including plaintiffs Henry and Linda, have been

5 in the legal custody of both the Clark County DFS and the State DCFS.

6

44. As of October 2004, as a result of AB 1 (2001), responsibility for foster care was

7 transferred from State DCFS to Clark and Washoe Counties. The State retained responsibility for

8 supervision and oversight of Clark and Washoe Counties’ child protective services and foster care

9 programs to ensure, among other things, compliance with federal and state laws, regulations, and

10 standards. The transfer of foster care staff and services from the State to Clark County was

11 completed in October 2004.

12

45. Clark County is responsible for providing funding in an amount set by the County

13 for the provision of child protective services. N.R.S. 432B.325. State DCFS provides the

14 funding to Clark County for the operation of its foster care program. The legislative

15 appropriation for foster care services and all federal funds for child welfare services go to State

16 DCFS. State and County Defendants negotiate a contract—the Intrastate Interlocal Contract with

17 the State of Nevada for Operation of Child Welfare, Eligibility and Foster Care Licensing

18 Programs—detailing the County’s responsibilities and specifying how the funds will be allocated.

19

46. Children committed to the legal custody of State or County Defendants may be

20 placed in one of several different types of out-of-home placements. These placements include,

21 among others, foster family homes, treatment foster homes, and group homes.

22

47. State DCFS is required to establish and ensure the Counties’ compliance with

23 minimum standards for licensure of foster family homes, group homes, and other child care

24 facilities in which foster children are placed. N.R.S. 424.020. In carrying out this obligation,

25 State DCFS is required to promulgate regulations establishing uniform standards for the licensing

26 of foster family homes, group homes, and child care institutions. Id.; N.R.S. 432B.190(1).

27

48. Clark County DFS is responsible for licensing foster and group homes in which it

28 places foster children in its custody and for ensuring that those homes meet state standards.

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1 N.R.S. 424.016(1), 424.020, and 424.030. This responsibility includes monitoring foster and

2 group homes to ensure that they continue to meet licensing standards, removing foster children

3 from homes where necessary, and providing support to those homes. N.R.S. 424.040, 424.060,

4 424.077. Licenses must be renewed every two years. N.R.S. 424.030. Licensing is required in

5 order to protect children from abuse or neglect and ensure that the foster parent can properly care

6 for children. N.A.C. § 424.100.

7 I. 8 9 10 11 12

ALLEGATIONS REGARDING DEFENDANTS’ POLICIES, CUSTOMS AND OMISSIONS
A. Defendants Fail to Inform Foster Parents and Other Caregivers of Essential Information Necessary for Stable and Successful Placements
1. Federal and State Laws Require Caseworkers to Provide Foster Parents Specific Information About a Child’s Health and Behavioral Background Before Placing the Child
49. When Defendants remove a child from his home and take him into protective

13 custody, they assume an obligation to place him into a safe and appropriate living situation with

14 foster parents or other caregivers to take care of him. See, e.g., 42 U.S.C. § 671(a)(22).

15

50. To fulfill that obligation, federal law mandates, among other things, that “before a

16 child in foster care under the responsibility of the State is placed with prospective foster parents,

17 the prospective foster parents will be prepared adequately with the appropriate knowledge and

18 skills to provide for the needs of the child, and that such preparation will be continued, as

19 necessary, after the placement of the child.” 42 U.S.C. § 671(a)(24).

20

51. The Federal Foster Care and Adoption Assistance Act also requires that within 60

21 days of removal from the home, caseworkers must develop a case plan for each foster child that

22 includes the child’s health and education records, known medical problems and prescribed

23 medications, and other relevant related information. 42 U.S.C. §§ 671(a)(16), 675(1), 45 C.F.R.

24 §1356.21(g)(2). This Act also expressly requires that the caseworker provide an updated copy of

25 the child’s record to the foster parent or provider at the same time the caseworker places the child

26 with that parent or provider. 42 U.S.C. § 675(5)(D).

27

52. Nevada law also requires County DFS and/or State DCFS to provide prospective

28 foster parents with specific information about the child, including information about the child’s

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1 family, medical, and behavioral history, before placing that child with the foster parents. N.R.S.

2 424.038. The purpose of sharing such information is to identify and provide for the most

3 appropriately matched foster home. N.R.S. § 424.038(1), N.A.C. § 424.465. State regulations

4 further require that information about the child’s situation and needs be continually shared by the

5 child welfare agency and the foster care providers in a timely manner, thereby ensuring that the

6 child’s needs are continuously addressed with appropriate services, including respite for foster

7 care providers. N.A.C. §§ 424.805, 424.810.

8

53. State DCFS acknowledges these obligations. Its Substitute Care Manual expressly

9 requires that its social workers inform a child’s foster care providers about that child’s known

10 history, including the child’s current and previous behavior and any “acting out” behavior. As

11 required by law, the Manual requires the social workers to provide this information to the foster

12 parents before placing the child. The Manual cautions: “[C]are providers need as much

13 information as possible . . . to decide if they are capable of caring for the child.”

14

54. Both federal and state laws require caseworkers to provide this information before

15 or during placement to ensure that the prospective foster parent, relative, or other caregiver has

16 sufficient information to make an informed judgment about his ability to provide the child with

17 safe and appropriate care and to ensure that the placement selected for the child will remain

18 stable, thereby avoiding another move for a child already traumatized by his removal from home.

19 Further, placing a child with severe psychological and/or behavioral problems in a home that is

20 not equipped to handle him puts both the child and the foster family members at risk of harm.

21

55. Defendants acknowledged that once they place a child into a foster home, keeping

22 his placement as stable as possible is crucial to that child’s well being. Clark County Placement

23 in Substitute Care Policies and Procedures § 3000. Conversely, removing a child from his foster

24 home and sending him to yet another placement is a serious disruption in the child’s life that can

25 have devastating effects. Removal causes the child to lose any sense of stability he developed in

26 the home and can prevent him from receiving vital medication, counseling, educational or

27 therapeutic services. Moving a child repeatedly can prevent the child from developing

28 attachments, cause severe emotional trauma, and exacerbate existing mental health and behavioral

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1 problems. It is therefore critical that Defendants’ caseworkers fulfill the agency’s obligation to

2 provide the requisite information to the foster parents to ensure the success of each foster child’s

3 placement.

4

56. In addition, failure to disclose information about the child’s health care needs and

5 history can also result in delays in getting appropriate assessments and treatment. Foster parents

6 unaware of the child’s past providers, diagnoses, and treatments cannot provide crucial history

7 information to the child’s healthcare providers. It is therefore critical for the provision of

8 necessary medical and mental heath treatment that Defendants fulfill their information-gathering

9 and sharing obligations.

10

2. Defendants’ Policies, Customs and Omissions Violate Federal and

11

State Law Regarding the Provision of Information to Foster Parents

12

57. Defendants’ policies, customs and omissions result in their routine failure to provide

13 the required information about foster children to foster parents.

14

58. The most recent data from the statewide Unified Nevada Information Technology

15 for Youth (“UNITY”) information system indicates that only approximately 53% of children had

16 case plans within 45 days of removal from the home. This data confirms that a specifically

17 identified deficiency noted in the 2004 Federal Review continues to be a serious problem. Thus,

18 Defendants are well aware of their routine failure to collect necessary information in the first

19 place.

20

59. Even when State Defendants have collected highly relevant medical and mental

21 health information about foster children, they routinely fail to share that information with County

22 actors to whom the State Defendants have delegated such critical responsibilities in the foster care

23 arena, making it impossible for caseworkers to pass the information on to foster parents. For

24 example, because most children entering foster care are enrolled in Medicaid, information about

25 their medical history is readily available in the State Defendants’ Medicaid database. This is also 26 the case with information maintained by State Defendants’ Children’s Mental Health Services 27 program, which is responsible for providing mental health services to Plaintiffs and other children 28 in Clark County who are in need of mental health screenings, assessments, and treatment. On

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1 information and belief, State Defendants do not provide critical information within their

2 possession and control to County Defendants to ensure that foster parents receive accurate and

3 complete health histories of the foster children.

4

60. The failure of Defendants’ caseworkers to fulfill the obligation to share required

5 information about the children in their custody and care with foster parents is foreseeable.

6 Defendants employ many caseworkers who are not adequately educated or trained regarding how

7 to collect the necessary and required information about foster children or what information they

8 must share with prospective foster parents. A large majority of County Defendants’ caseworkers

9 do not have degrees in social work, even at the bachelor’s level, and approximately one-third of

10 the caseworkers have been at their jobs for less than one year. Compounding these caseworkers’

11 lack of education and experience, upon information and belief, Defendants allow new

12 caseworkers to proceed in the field for months before providing them with even the initial, basic

13 training. Nor are caseworkers who fail to provide the requisite information to foster parents in

14 violation of federal and state law held accountable through supervision.

15

3. Plaintiffs Have Been Injured as a Result of Defendants’ Failure to

16

Provide Required Information

17

61. Defendants’ policies, customs and omissions regarding withholding critical and

18 required information about children caused injury to children in Defendants’ custody, including

19 Plaintiffs, by causing frequent and avoidable movements from one failed placement to another,

20 and by causing the disruption, delay and/or withholding of services needed by Plaintiffs. For

21 example:

22

(a) Defendants had significant and extensive information about Henry’s history,

23 including that Henry had (1) suffered severe physical abuse from his mother before entering

24 foster care; (2) received numerous diagnoses of serious and often conflicting mental health

25 disorders from a variety of mental health providers; (3) been administered psychotropic

26 medications, including multiple medications at the same time; and (4) was prone to extremely

27 erratic behavior. Defendants failed to provide this information to prospective foster parents. In

28 May 2009, when M.J. met with Defendants’ caseworkers to decide whether to take Henry into her

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1 home upon his discharge from a treatment facility, M.J. was told only that Henry “might” have

2 ADHD, and that he no longer needed a higher level of care. Defendants did not provide any

3 information or written record of Henry’s medications, other diagnoses, or significant mental

4 health and behavioral issues, and they failed to discuss Henry’s discharge plan with M.J. or to put

5 her in contact with any psychiatrist who had treated Henry to discuss continuation of his care or

6 how to administer his many medications. In fact, M.J. learned for the first time that Henry was

7 on multiple psychotropic medications when she picked him up from treatment and was given a

8 plastic bag containing Adderall, Abilify, Trileptal, and other prescription drugs. When he arrived

9 in M.J.’s home, Henry was aggressive and threatening toward M.J. and her other children. It was

10 only after M.J. brought Henry to meet with a psychiatrist that M.J. learned from Henry’s

11 caseworker of Henry’s extensive history of psychiatric problems and erratic behaviors. Henry’s

12 aggressive behavior continued, and he was eventually admitted to two psychiatric facilities.

13 Since being admitted, Henry has not been returned to M.J.’s care. Henry’s multiple placements

14 have disrupted his medical and mental health care and deprived Henry of the consistent

15 assessment and treatment needed to address his multiple physical and mental health needs.

16 Defendants’ failure to provide M.J. with the information described here prevented M.J. from

17 assessing her ability to handle a child with his high level of special needs, placed his safety and

18 the safety of M.J. and her other children at risk, and ultimately caused the placement to fail. In

19 addition, Defendants have shuttled Henry among more than ten different mental health providers.

20 Upon information and belief, Clark County DFS did not provide many of these mental health

21 providers with information about Henry’s health history, previous providers, assessments, and

22 treatment. Defendants’ failures also impaired the continuity and effectiveness of Henry’s mental

23 health care. Henry has suffered injuries to his health, safety and well being as a result of

24 Defendants’ policies, customs and omissions.

25

(b) In 2007, when Olivia was seven years old and in Defendants’ custody, a neuro-

26 psychological evaluation found that she had “severely impaired neuropsychological functioning”

27 and a range of cognitive and behavioral impairments. Olivia was placed on multiple psychotropic

28 medications, including an antipsychotic and medications for bipolar disorder and ADHD. In

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1 March 2009, Defendants moved Olivia to a treatment foster home. Upon information and belief,

2 Defendants did not provide the foster parents with an accurate and complete description of

3 Olivia’s mental and behavior health and other special needs prior to placing her in their home.

4 Within two weeks of her arrival, Olivia was admitted to Monte Vista, and the treatment foster

5 parents refused to accept her back into their home. While Olivia was a patient at Monte Vista,

6 she was administered at least three different medications, including an antipsychotic. Upon

7 Olivia’s discharge from Monte Vista, Defendants placed her with E.F. Defendants failed to

8 provide E.F. with information about Olivia’s medications and failed to grant her the authorization

9 necessary to obtain them through Medicaid. As a result, E.F. was unable to fill Olivia’s

10 prescriptions for the drugs she was then taking. Defendants’ failure to secure Olivia’s

11 medications forced Olivia to go through an abrupt and painful withdrawal from powerful

12 psychotropic drugs. Upon information and belief, the abrupt withdrawal of a child from such

13 medications is medically contraindicated and posed a grave risk to her health and safety.

14 Defendants’ failure to provide full and accurate information regarding Olivia’s history and mental

15 health and behavioral needs caused her March 2009 placement to fail. Olivia suffered injury to

16 her health, safety and well being as a result of Defendants’ policies, customs and omissions.

17

(c) Before entering Defendants’ custody, Leo and Victor suffered physical,

18 emotional, and sexual abuse at the hands of their parents and other adults with whom they lived at 19 various times. In April of 2007, while the brothers were living at Child Haven, Victor became 20 severely depressed and threatened to hang himself. He exhibited harmful and destructive 21 behaviors toward himself and other children in the group home. In May and June 2007, Victor 22 was hospitalized at two different psychiatric institutions. In June 2007, Defendants placed Leo 23 and Victor with a foster parent who had a developmentally delayed teenaged granddaughter living 24 in the home. Upon information and belief, Defendants failed to provide the foster parent with 25 sufficient information about Leo’s and Victor’s history of physical and sexual abuse, multiple 26 placements, and psychiatric problems for her to make an informed decision about accepting 27 placement of the children, and determine the level of care and supervision they would need upon 28 joining her home. Just weeks after accepting Leo and Victor into her home, and with no

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1 knowledge of the boys’ history of abuse, the foster mother left the children unsupervised, and

2 Victor and the teenaged granddaughter had sexual intercourse. The placement was terminated

3 immediately. Victor was given three years probation, and experienced multiple additional

4 placements before he was eventually sent to a youth prison in Elko. Leo was eventually placed

5 with his grandmother, where he remains today. Defendants’ policies, customs and omissions

6 resulted in the failed placement and injured Victor’s and Leo’s health, safety and well being.

7

(d) In March 2009, Defendants removed Charles and Charlotte from their parents’

8 home and placed them in a foster home. In the twelve months since, Charles and Charlotte have

9 been in at least twelve different placements, including multiple stays at Child Haven for only a

10 day at a time. Upon information and belief, when Defendants placed Charles and Charlotte with

11 foster parents, Defendants failed to provide the foster parents with sufficient information about

12 the children’s background and needs to enable them to make informed decisions about their

13 ability to care for the children, and as a result, multiple placements failed. Charles and Charlotte

14 suffered injury to their health, safety and well being as a result of Defendants’ policies, customs

15 and omissions.

16

(e) In the fifteen years that Linda has been in Defendants’ custody, she has been in

17 more than forty placements, including foster homes, shelters, group homes, and psychiatric

18 hospitals. She has suffered abuse and neglect throughout her time in foster care and has been

19 placed on psychotropic drugs, including multiple drugs at the same time. Upon information and

20 belief, Defendants failed to provide multiple foster parents with whom they placed Linda with

21 required information about her background, special needs, medication history, prior placement

22 history, and other information necessary for the foster parents to make informed decisions about

23 their ability to provide adequate care for Linda. Defendants’ failures caused multiple foster

24 families to terminate her placements. As a result of Defendants’ policies, customs and omissions,

25 Linda suffered injury to her health, safety and well being.

26

(f) Upon information and belief, Defendants failed to disclose to prospective foster

27 parents Mason’s history of maltreatment, his behaviors, the results of his mental health

28 evaluations and treatment, and other information critical to making an informed decision about

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1 their capacity and willingness to provide safe and adequate care for Mason, and how their

2 acceptance of Mason might affect the other children in their foster home. Some of the foster

3 homes in which Defendants placed Mason were incapable of meeting his needs. For example,

4 Defendants placed him with newly licensed, completely inexperienced foster parents who were

5 not properly equipped to care for Mason. As a result of Defendants’ policies, customs and

6 omissions, Mason was injured.

7

62. As the direct and proximate result of Defendants’ policies, customs and omissions

8 regarding the failure to collect, and/or the withholding of, critical and required information, as

9 alleged herein, Plaintiffs have endured repeated failed placements, lack of access to continuous

10 and/or effective mental health care, abuse, and neglect, and have been forced to take numerous

11 psychotropic drugs. As a result of these experiences, Plaintiffs have suffered bodily harm,

12 substantial physical and emotional pain and suffering, humiliation, extreme and severe mental

13 anguish, acute anxiety, emotional and physical distress, and fear and depression, all to their

14 damage and detriment.

15

4. It Is Likely that Plaintiffs and Others Will Continue to Suffer Harm as

16

a Result of Defendants’ Policies, Customs and Omissions

17

63. Defendants’ policies, customs and omissions regarding the collection and sharing of

18 critical information about foster children make it likely that Plaintiffs and others will continue to

19 suffer harm in Defendants’ custody.

20

64. A recent federal audit of a sample of Defendants’ data from 2007 and 2008

21 indicates that during these years, almost a quarter of the children who were in foster care for less

22 than a year moved to three or more placements. Similarly, almost half of children who remained

23 in foster care between one and two years moved to three or more placements. A 2008 UNLV

24 Performance Audit showed that almost one-third of children in foster care had been in multiple

25 school placements since coming into care.

26

65. This data comes as no surprise to Defendants. Defendants have been on notice for

27 years that children in their custody are frequently shuttled from one temporary placement to

28 another. The 2004 federal performance review of Nevada’s child welfare system found that

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1 only 31% of foster children in Clark County had stable placements. Many of the children who

2 experienced multiple placements were under five years of age.

3

66. Defendants’ policies, customs and omissions regarding their withholding of

4 information from foster parents reflect a deliberate indifference to the health and safety of those

5 children, constitute a substantial departure from professional standards, and evidence a lack of

6 professional judgment.

7

67. Unless Defendants change their policies and customs to ensure that foster parents

8 receive the required information about foster children before accepting them into their care,

9 Plaintiffs and other foster children face likely future injury from the failure of those placements,

10 and from the disruption, delay, and/or withholding of services that results when Defendants fail to

11 share critical information.

12

B. Defendants Fail to Provide Foster Children with Necessary Medical and

13

Mental Health Treatment to Which They Are Entitled

14

1. Federal and State Laws Require Defendants to Provide Timely Medical and Mental Health Services to Meet the Needs of Children in

15

Their Custody

68. The Fourteenth Amendment to the U.S. Constitution provides foster children in 16

government custody with substantive due process rights to services necessary to prevent foster 17

children from deteriorating or being harmed physically, developmentally, psychologically, or 18

otherwise while in government custody, including adequate mental, dental, psychiatric, and 19

psychological services and the right to receive care, treatment, and services determined and 20

provided through the exercise of accepted, reasonable professional judgment. 21

69. Federal laws require Defendants to provide foster children with medical and dental 22

23 care and mental health treatment when needed. Federal law grants foster children the right to

24 services to protect their safety and health. 42 U.S.C. § 671(a)(22). Similarly, state law requires

25 that Defendants provide services to foster children to address their needs while in foster care.

26 N.A.C. 432B.400, N.A.C. 432B.405. Those services include, but are not limited to, medical,

27 hospital, psychiatric, surgical or dental services, or any combination thereof. N.R.S. 432B.044 &

28 N.R.S. 432.010 (8). It is State DCFS policy to “ensure that physical, developmental and mental

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1 health needs of custodial children are identified and diagnosed through the use of standardized,

2 periodic screenings.” State Child Welfare Policies and Procedures, Nevada Division of Child and

3 Family Services Policy Manual § 0207.2.1. It is also State DCFS policy to “identify and respond

4 to the needs of children under the age of three with developmental delay(s).” Id. § 0502.2.1.

5

70. Defendants provide medical services to foster children in their custody primarily, if

6 not exclusively, through the Medicaid program. As broad as the overall Medicaid umbrella is

7 generally, the initiatives aimed at children are even more expansive. When Congress amended

8 the Medicaid statute in 1989, it made the provision of Early Periodic Screening, Diagnosis, and

9 Treatment services (“EPSDT”) to Medicaid eligible children mandatory for participating states.

10 42 U.S.C. §§ 1396d(r), 1396d(a)(4)(B). When medically necessary, states are bound to make

11 available to Medicaid eligible children all of the twenty-eight types of care and services included

12 as part of the definition of “medical assistance” in the Medicaid Act, including “necessary health

13 care, diagnostic services, treatment and other measures . . . to correct or ameliorate defects and

14 physical and mental illnesses and conditions discovered by the screening services[.]” 42 U.S.C.

15 §§ 1396d(r)(5).

16

71. The breadth of Medicaid’s EPDST requirements is underscored by the statute’s

17 definition of “medical services.” Section 1396d(a)(13) defines as covered medical services any

18 “diagnostic, screening, preventative, and rehabilitative services, including any medical or

19 remedial services . . . for the maximum reduction of physical or mental disability and restoration

20 of an individual to the best possible functional level.” 42 U.S.C. § 1396d(a)(13) (emphasis

21 added). The Medicaid Act further requires that medical assistance “shall be furnished with

22 reasonable promptness to all eligible individuals.” 42 U.S.C. §1396a(a)(8) (emphasis added).

23

72. Federal laws also require that State DCFS provide methods to (a) inform foster

24 children or their caretakers about EPSDT programs, (b) provide foster children on request with

25 “screening (periodic comprehensive child health assessments); that is, regularly scheduled

26 examinations and evaluations of the general physical and mental health, growth, development,

27 and nutritional status,” and (c) provide foster children diagnostic and treatment services. 42

28 C.F.R. § 441.56(a)-(c).

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1

73. State DCFS policy requires that children in the custody of a child welfare agency

2 “will receive Healthy Kids (EPSDT) Screenings followed by referrals for diagnosis and

3 treatment.” State Child Welfare Policies and Procedures, Nevada Division of Child and Family

4 Services Policy Manual § 0207.5.1. Screenings must include, but are not limited to,

5 comprehensive health and development/behavior history; developmental/behavioral assessment;

6 and comprehensive unclothed physical exam. Id. State DCFS policy also determines the

7 frequency of such screenings: children under 1 year are to receive 5 screenings; children from 1-2

8 years are to receive a total of 4; and the frequency lessens as children age. Id. § 0207.5.2.1. State

9 DCFS policy requires County DFS to develop internal policies to comply with these

10 requirements, to document referrals in a state database within five days of the referral, and to

11 ensure that supervisors verify that screening exams take place on all children who enter foster

12 care “within the removal episode of 24 hours or more,” and that any “exams, diagnosis,

13 treatments, and /or referrals” are documented by the caseworker. Id. § 0207.6.5.

14

74. It is County DFS policy to “assure[] the safety of each child in its care and custody

15 by providing a pre-placement health screening for initial placement or any placement movement”

16 and “ensure[e] that foster children participate in Nevada’s EPSDT program.” County DFS

17 Medical Case Management Unit Policies and Procedures § 9130, discussion draft, dated

18 December 19, 2008. On information and belief, these policies and procedures are now in place.

19 County DFS also has undertaken the responsibility to “[e]nsure completion of Early Periodic

20 Screening, Diagnostic and Treatment (EPSDT) examination and any required medical follow-up

21 care within fourteen (14) days for all children who enter substitute care.” Id. § 9120.

22

75. In addition to the required screenings and treatments, caseworkers are required to

23 visit foster children at their placements on a monthly basis. N.A.C. 432B.405. Such visits

24 provide opportunities for the caseworker to observe whether a child has unmet medical and

25 mental health needs or is in need of additional screening and treatment.

26

27

28

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1

2. Defendants’ Policies, Customs and Omissions Cause Defendants

Regularly and Routinely to Fail to Provide Required Screenings and

2

Treatment to Which Foster Children in Their Custody Are Entitled

3 76. Defendants have a long history of failing to provide the periodic screenings required
4 by law. A 2005 County Case Review found that Clark County DFS fails to meet the health and
5 mental health needs of a full 50% of the children in its care. The 2008 UNLV Performance Audit
6 found that only 46.2% of children with identified mental health needs received mental health
7 screenings. The 2009 Federal Review found that caseworkers had made no concerted effort to
8 address children’s mental health needs in 36% of the cases sampled.
9 77. Even when Defendants do assess children to determine what services they need,
10 Defendants routinely fail to provide them with the necessary services. The 2008 UNLV Audit
11 found that 60% of children in foster care had not received Medicaid services to which they were
12 entitled. The study also found that, of the children referred for mental health services, 45.5%—
13 nearly half—did not receive the recommended services. Further, Defendants do not ensure that
14 children with mental health needs receive individualized treatment that addresses their particular
15 needs. Instead, as detailed below, many children with serious mental health needs receive only
16 medication to control their behavior, rather than therapeutic services to treat their underlying
17 mental health issues.
18 78. In September 2008, the Children’s Attorneys Project (CAP) of the Legal Aid Center
19 of Southern Nevada, which represents several hundred foster children in Clark County, sent a
20 letter to Defendants Willden and Morton addressing the inadequate mental health services their
21 clients were receiving, including that: medication is often the only mental health treatment foster
22
children receive; children are sent from one psychiatric facility to another, typically with new 23
diagnosis and treatment regimes at each facility, with no consultation between providers at the 24
different facilities; and children who could be treated in outpatient facilities are instead confined 25
in hospital settings. The letter was signed by Barbara Buckley, the Executive Director of the 26
Legal Aid Center of Southern Nevada, who also is the Speaker of the Nevada Assembly. The 27

28

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1 letter described these inadequacies as “both systemic and of such magnitude as to actually put our

2 clients at risk.”

3

79. Defendants’ policies and customs with respect to psychotropic drugs are a key

4 aspect of their failure to provide required screenings and treatment. Psychotropic medications,

5 including antidepressants, antipsychotics, mood stabilizers, and tranquilizers, are powerful drugs

6 that affect the central nervous system. Some of these medications can cause users to become

7 addicted. Many of these drugs carry potentially serious side effects, such as diabetes, obesity, and

8 liver failure, and have the potential to adversely affect children’s brain chemistry later in life.

9 The FDA has not approved such drugs for the widespread uses for which they are being

10 prescribed to the foster children in Defendants’ custody. Administering a combination of two or

11 more psychotropic drugs can cause adverse reactions that endanger the patient’s health. Little to

12 no data exists to support the prescribing of multiple psychotropic medications in the pediatric

13 population.

14

80. Rather than provide mental health services with necessary psychiatric treatment,

15 such as individual therapy, group counseling, or other types of care that meet their mental health

16 needs, Defendants have elected to respond to many foster children’s issues by allowing

17 widespread administration of powerful psychotropic medications, often in combination.

18 Defendants’ policies, customs, and omissions permit the routine administration of these drugs to 19 subdue a child’s misbehavior and make the child easier to control, without regard to the side 20 effects and potential dangers of these medications and whether the drugs are medically necessary. 21 Defendants fail to ensure that psychiatrists who prescribe psychotropic drugs comply with 22 professional standards for doing so, including ensuring that such psychiatrists have a 23 specialization in child and adolescent psychiatry and have received training in the use of these 24 medications in the child’s age group. Further, Defendants fail to ensure psychiatrists are provided 25 with child-specific information, including the child’s health history, physical exam, psychosocial 26 assessment, and mental health, co-morbid conditions, family history, and school records, required 27 to conduct a thorough examination in accordance with professional standards, before prescribing 28

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1 psychotropic medications. Defendants have failed to control and monitor the administration of

2 these drugs to foster children, jeopardizing their health and safety.

3

81. Once a child begins taking a psychotropic medication, it is critical that the child

4 receive proper monitoring to ensure that the drug is having its intended effect and is not causing

5 harm. Such monitoring requires sufficient time to assess clinical response and side effects.

6 Professional standards therefore require that the doctor monitor, among other things, the child’s

7 height, weight, blood pressure, blood test results, and other laboratory findings and make any

8 adjustments to the dosage or type of medication that may become necessary. Psychosocial

9 interventions, including psychotherapy, are frequently required along with the medication.

10 Defendants fail to ensure that the necessary monitoring takes place or that other psychosocial

11 interventions are provided to foster children, including Plaintiffs.

12

82. As a direct and foreseeable result of Defendants’ policies, customs and omissions,

13 foster children who are administered psychotropic medication do not receive proper monitoring,

14 including psychotherapy, to ensure that the drug is having its intended effect and is not causing

15 harm. This problem is exacerbated when foster children change placements, because in those

16 instances, the children are often forced to change health care providers, including psychiatrists.

17 As a result of Defendants’ policies, customs and omissions, Defendants often fail to transmit a

18 child’s assessments, diagnoses, medication history, and treatment records to the new treating

19 physician. Defendants do not require a child’s current and former mental health providers to

20 consult on the treatment plan. As a direct and foreseeable result, children routinely receive new

21 and often conflicting diagnoses from their new doctors and may begin taking different or

22 additional medications, increasing the risk of harm to the child.

23

3. Plaintiffs Have Been Injured as a Result of Defendants’ Failure to

24

Provide Necessary Medical and Mental Health Services to Which They Are Entitled

25

83. Plaintiffs have been injured by Defendants’ policies, customs and omissions that

26 result in foster children not receiving the necessary medical and mental health services to which

27 they are entitled. For example:

28

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1

(a) Although Delia was noticeably underweight when she entered Defendants’

2 custody, Defendants failed to assess her developmental and medical needs. In July 2009, Delia’s

3 current foster parent, S.W., brought Delia to the hospital to seek care for a severely swollen

4 eyelid. The examining physician determined that Delia needed an MRI to determine whether she

5 had a potentially life-threatening tumor, but S.W. lacked authority to authorize the diagnostic

6 procedure. S.W. immediately attempted to contact Delia’s caseworker and supervisor. Despite

7 multiple calls about this emergency situation, however, neither the caseworker nor the supervisor

8 returned S.W.’s calls. Ultimately, S.W. was able to obtain consent from Delia’s biological

9 mother. The MRI revealed that Delia had a tumor that needed to be removed immediately. Delia

10 had surgery and is now undergoing chemotherapy. Defendants’ conduct delayed Delia’s access

11 to the MRI screening that diagnosed her malignant tumor and delayed her surgery and

12 chemotherapy. During Delia’s time in Defendants’ custody, Defendants’ caseworkers rarely

13 visited her at her placement and did not monitor Delia’s health to verify that she was receiving all

14 necessary medical screenings, assessments, and treatment services. Defendants’ conduct in

15 failing to provide prompt, periodic, and necessary screening, assessments, and treatment services

16 to address her physical and mental health needs has injured Delia.

17

(b) While Jonathan was placed at Child Haven as an infant, the staff failed so

18 completely to provide for his medical and nutritional needs that he was diagnosed with failure to 19 thrive and was developmentally delayed. Although he often regurgitated his food after eating, 20 staff took no steps to ensure he received adequate nutrition. At five months, Jonathan was unable 21 to turn his head. Defendants also deprived Jonathan of urgently needed medical care. After 22 coming to live with S.W., Jonathan became seriously ill with an impacted colon. When his 23 doctor recommended a colonoscopy, S.W. and Jonathan’s doctor repeatedly sought authorization 24 from Defendants, but Defendants refused to consent and failed to approve medical procedures 25 that would assist in diagnosing his medical condition and developing a treatment plan to alleviate 26 his symptoms. Jonathan suffered constant physical pain from his condition for several months, 27 until it became so severe that he required emergency surgery to remove the calcified stool. 28 Further, DFS never authorized the surgery. Rather, because the doctor determined that it had

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1 become a life-threatening situation, the doctor apparently determined that Nevada law authorized

2 him to conduct the surgery without obtaining DFS consent or a court order. This emergency

3 surgery was a direct result of Defendants’ deliberate indifference to Jonathan’s medical needs.

4 During Jonathan’s time in Defendants’ custody, Defendants’ caseworkers rarely visited Jonathan

5 and did not monitor his health to verify that he was receiving all necessary medical screenings,

6 assessments, and treatment services. Defendants’ conduct in failing to provide prompt, periodic,

7 and necessary screening, assessments, and treatment services to address his physical and mental

8 health needs has injured Jonathan.

9

(c) While Maizy was placed at Child Haven as an infant, she also suffered from

10 lack of attention and care. She too was diagnosed with failure to thrive and became

11 developmentally delayed. At fifteen months, Maizy weighed only thirteen pounds and was

12 unable to crawl. During Maizy’s time in Defendants’ custody, Defendants’ caseworkers rarely

13 visited her and did not monitor her health to verify that she was receiving all necessary medical

14 screenings, assessments, and treatment services. Defendants’ conduct in failing to provide

15 prompt, periodic, and all necessary screening, assessments, and treatment services to address her

16 physical and mental health needs have injured Maizy.

17

(d) Defendants have caused Henry to change medical and mental health providers

18 more than ten times during his time in their custody. Upon information and belief, Defendants 19 failed to transfer Henry’s records to each doctor in the chain. Accordingly, Henry’s treating 20 doctors were often unaware of his health history, previous providers, assessments, diagnoses, 21 medications, and treatment. This has led to inconsistent diagnoses and the administration of 22 multiple and inconsistent medications. Henry has experienced long periods during which no 23 assessment of his mental and behavioral health needs was completed or updated and during which 24 he did not receive necessary periodic assessments and reassessments of the various medications 25 that he had been prescribed. For many years while in Defendants’ custody, Henry has been 26 administered various psychotropic medications, including multiple medications at the same time. 27 Defendants failed to monitor Henry’s reactions to the medications. In June 2009, Henry fell 28 gravely ill after being poisoned by the combination of psychotropic medications he was then

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1 taking. Henry was hospitalized in an ICU for two weeks and nearly suffered organ failure. Upon

2 his discharge from the ICU to Monte Vista, and while still in Defendants’ custody, Henry was

3 again administered the same or similar psychotropic medications that had led to his emergency

4 hospitalization. Henry again fell gravely ill and again spent two weeks in treatment in the ICU.

5 During Henry’s time in Defendants’ custody, Defendants’ caseworkers rarely visited him and did

6 not monitor his health to verify that he was receiving all necessary medical screenings,

7 assessments, and treatment services. Defendants’ conduct in failing to provide prompt, periodic,

8 and necessary screening, assessments, and treatment services to address his physical and mental

9 health needs has injured Henry.

10

(e) Upon information and belief, when Linda was seven years old and in

11 Defendants’ custody, she was confined at a psychiatric facility for a six-month period that was

12 longer than medically necessary because Defendants did not have another placement for her.

13 Linda was placed on psychotropic drugs at various points from the time she was seven until she

14 was thirteen. Linda was often compelled to take a variety of such drugs, at times taking as many

15 as five or six different medications at once. These medications often made Linda lethargic and

16 unable to focus. Upon information and belief, Linda was at times prescribed these medications

17 simply because a caregiver requested a “fix” for her behavior, without proper consent and without

18 an appropriate, comprehensive assessment by a qualified health professional. During Linda’s time

19 in Defendants’ custody, Defendants’ caseworkers rarely visited her and did not monitor her health

20 to verify that she was receiving all necessary medical screenings, assessments, and treatment

21 services. Although Defendants caused Linda to take powerful psychiatric medications,

22 Defendants failed to provide her with psychiatric care to consistently monitor her medication.

23 Defendants also failed to provide Linda with a mental health assessment and medically necessary

24 medical and dental care. Defendants’ conduct in failing to provide prompt, periodic, and

25 necessary screening, assessments, and treatment services to address her physical and mental

26 health needs has injured Linda.

27

(f) Defendants did not provide Victor with a mental health assessment or services

28 to address his severe depression, suicidal threats, and other needs for many months. The staff at

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1 one of Victor’s group homes did not allow him to attend medical and psychiatric appointments.

2 In the spring of 2007, due to continued suicide threats, Victor was hospitalized twice in quick

3 succession at two different mental heath facilities, without consultation between the facilities.

4 Defendants also failed to provide Victor with follow-up psychiatric services and did not ensure

5 that he received prescribed medications upon release from the second facility. Further, although

6 they knew both Leo and Victor had suffered abuse, Defendants failed to provide care to address

7 those traumas. Defendants’ conduct in failing to provide prompt, periodic, and necessary

8 screening, assessments, and treatment services to address their physical and mental health needs

9 caused injury to Victor and Leo.

10

(g) Defendants failed to provide necessary medical care to Charles and Charlotte.

11 In 2009, while in foster care and in Defendants’ custody, Charles was placed on Adderall and

12 Ritalin. Upon information and belief, Charles’s psychiatrist prescribed these drugs for ADHD,

13 instead of treating Charles with behavioral approaches, based on nothing more than the request of

14 a foster mother who had only known Charles for a matter of weeks. Upon information and belief,

15 these medications were not medically necessary and subjected Charles to risk of serious harm.

16 Charlotte, who was less than a year old at the time, was administered asthma medications even

17 though she does not have asthma and such medications were not medically necessary. Upon

18 information and belief, both children were medicated at the request of foster parents, rather than

19 as a result of assessments and examinations by qualified health professionals. During Charles and

20 Charlotte’s time in Defendants’ custody, Defendants’ caseworkers rarely visited them and did not

21 monitor their health to verify that they were receiving all necessary medical screenings,

22 assessments, and treatment services. Defendants’ conduct in failing to provide prompt, periodic,

23 and necessary screening, assessments, and treatment services to address their physical and mental

24 health needs has injured Charles and Charlotte.

25

(h) Defendants failed to provide Olivia with a timely mental health assessment or

26 needed services despite her history of physical abuse. Although she had been placed in foster

27 care in January 2006, it was not until October 2007 that Olivia received a mental health

28 assessment, and that occurred only because her elementary school referred her to a licensed

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1 psychologist for evaluation. The evaluation recommended that she receive psychotherapy, be

2 evaluated for medication by a psychiatrist, and be tested for Fetal Alcohol Syndrome. Following

3 that evaluation, she was prescribed three different psychotropic drugs simultaneously but did not

4 receive ongoing psychiatric care and has not been tested for Fetal Alcohol Syndrome. The drugs

5 made Olivia extremely lethargic and made it difficult for her to do school work. In March 2009,

6 she was placed in Monte Vista. Defendants discharged her to a foster parent with no transition

7 plan and no ability to obtain her medications, forcing her to suffer abrupt withdrawal from the

8 medications. During Olivia’s time in Defendants’ custody, Defendants’ caseworkers rarely

9 visited her and did not monitor her health to verify that she was receiving all necessary medical

10 screenings, assessments, and treatment services. Defendants’ conduct in failing to provide

11 prompt, periodic, and necessary screening, assessments, and treatment services to address her

12 physical and mental health needs has injured Olivia.

13

(i) Christine is a medically fragile child who fell out of a second-story window

14 while in her mother’s custody. Following the injury, Christine had a titanium plate permanently

15 installed in her head to protect her brain. As a result, she has severe developmental delays and

16 medical needs, including a seizure disorder, and requires a high level of medical care. In

17 July 2008, Defendants allowed Christine to remain in a hospital for four to six weeks longer than

18 medically necessary rather than placing her in an appropriate foster home. Defendants then 19 placed Christine in E.F.’s custody but failed to provide E.F. with her seizure medication or any 20 training on how to care for a child with such a high level of medical needs. Defendants also 21 failed to arrange for medical and therapeutic professionals to treat Christine or to provide her with 22 therapeutic or early intervention services. During Christine’s time in Defendants’ custody, 23 Defendants’ caseworkers rarely visited her and did not monitor her health to verify that she was 24 receiving all necessary medical screenings, assessments, and treatment services. When Christine 25 required emergency surgery to replace a screw in her titanium plate, Defendants took 26 approximately two weeks to approve the procedure. Defendants’ conduct in failing to provide 27 prompt, periodic, and necessary screening, assessments, and treatment services to address her 28 physical and mental health needs has injured Christine.

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1

(j) Sheldon also has significant developmental delays. Upon taking custody of

2 Sheldon, Defendants placed him at Child Haven. The staff at that facility failed to recognize or

3 address his readily apparent disabilities and failed to obtain an evaluation or any services for him.

4 Defendants later placed Sheldon with E.F. but failed to respond to her requests for training on

5 how to care for his developmental disabilities. As a result, Sheldon lost his opportunity to receive

6 vital services during a critical window in his development. During Sheldon’s time in Defendants’

7 custody, Defendants’ caseworkers rarely visited him and did not monitor his health to verify that

8 he was receiving all necessary medical screenings, assessments, and treatment services.

9 Defendants’ conduct in failing to provide prompt, periodic, and necessary screening, assessments,

10 and treatment services to address his physical and mental health needs has injured Sheldon.

11

(k) Defendants failed to provide Mason with the mental health, medical, and

12 education services he needed. Mason has severe-to-profound hearing loss in both ears. To

13 communicate with those who do not know sign language, he needs an interpreter proficient in

14 American Sign Language. For substantial periods of time, Defendants failed to provide or ensure

15 that Mason was provided with a qualified interpreter. Only one of the more than eight different

16 mental health professionals who treated Mason from 2005 to 2007 was capable of communicating

17 with Mason in American Sign Language. As early as the fall of 2004, after at least three

18 psychiatric hospitalizations, his treating psychiatrist and other professionals recommended that he 19 be placed in a residential treatment center able to handle his hearing impairment. Defendants 20 refused to place Mason in a placement recommended by his treating professionals and instead 21 subjected him to a series of foster home placements and hospitalizations, none of which was 22 capable of meeting his long-term mental health needs. Defendants also failed to obtain diagnostic 23 tests recommended by physicians to whom they took him for an assessment. For example, a 24 geneticist who examined him in May 2007 recommended “a comparative genomic hybridization 25 array study be performed.” The recommended tests were never completed. Defendants also 26 failed to provide Mason with necessary medical and other treatment, including speech therapy, 27 following his receipt of a cochlear implant, both before and after his placement at NDA. NDA 28 unilaterally made the decision to remove the external device necessary to the proper functioning

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1 of the cochlear implant, rendering it largely inoperative and depriving Mason of the use and

2 benefit of the cochlear implant. Mason was discharged from NDA and returned to Las Vegas.

3 Upon information and belief, Defendants failed to arrange for any therapy prior to bringing him

4 back to Las Vegas from NDA. Defendants’ conduct in failing to provide prompt, periodic, and

5 necessary screening, assessments, and treatment services to address his physical and mental

6 health needs has injured Mason.

7

84. As the direct and proximate result of Defendants’ policies, customs and omissions

8 regarding the failure to provide care, treatment, and services necessary to prevent foster children

9 from deteriorating or being harmed physically, developmentally, psychologically, or otherwise

10 while in government custody, including adequate mental, dental, psychiatric, and psychological

11 services to which they are entitled, as alleged herein, Plaintiffs have suffered bodily harm,

12 substantial physical and emotional pain and suffering, humiliation, extreme and severe mental

13 anguish, acute anxiety, emotional and physical distress, and fear and depression, all to their

14 damage and detriment.

15

4. It Is Likely that Plaintiffs and Others Will Continue to Suffer Harm as

16

a Result of Defendants’ Policies, Customs and Omissions

17

85. Rather than address these grave problems, Defendants adhere to policies and

18 customs that ensure the problems will continue. Defendants are well aware that many children

19 entering foster care have serious mental health problems, yet Defendants fail to train their

20 caseworkers to recognize and address these problems. Defendants also fail to provide

21 caseworkers with basic information regarding available children’s mental health services or how

22 to access and advocate for those services. As a direct and foreseeable result, caseworkers

23 routinely fail to secure mental health services for children who need them.

24

86. Similarly, Defendants are well aware that many children entering foster care have

25 serious developmental delays or disabilities resulting from abuse or neglect. Defendants fail,

26 however, to train caseworkers on developmental milestones or to educate them on how to identify

27 a child’s developmental delay or disability.

28

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1

87. Defendants’ policies, customs and omissions regarding their failure to provide

2 necessary medical and mental health services reflect a deliberate indifference to the health and

3 safety of children in their custody, constitute a substantial departure from professional standards,

4 and evidence a lack of professional judgment.

5

88. Unless Defendants change their policies and customs to ensure foster children are

6 provided necessary medical and mental health services to which they are entitled, Plaintiffs and

7 other foster children face likely future injury in Defendants’ custody.

8

C. Defendants Fail to Ensure the Safety and Well Being of the Foster Children in

9

Their Care and Custody

10

1. Defendants Fail to Protect Foster Children by Failing to Ensure the Adequacy of Relative Caregivers

11

a. Federal Law Requires That Relative Placements Be Subject to

12

the Same Licensing Standards as Other Caregivers

13

89. The United States Congress has mandated that state authorities shall be responsible

14 for establishing and maintaining standards for foster family homes that are reasonably in

15 accordance with recommended national standards, including those that relate to admission

16 policies, safety, sanitation, and protection of civil rights. 42 U.S.C. 671(a)(10). In 2008,

17 Congress enacted the Fostering Connections to Success and Increasing Adoptions Act. This Act

18 amended Section 471(a)(10) of the Social Security Act by mandating that relatives cannot be

19 exempted from licensing requirements except on a case-by-case basis, and only in relation to non-

20 safety standards, such as the minimum square footage for a foster home, for specific children in

21 foster care. 42 U.S.C. 671(a)(10). The purpose of this requirement is to ensure relative

22 placements conform to the same level of safety as placements with non-relative caregivers.

23

b. Nevada’s Blanket Exemption of Relative Caregivers from

24

Foster Home Licensing Standards Violates Federal Law

25

90. On May 16, 2009, Nevada enacted AB76, codified at N.R.S. 424.090, which

26 became effective on October 1, 2009. N.R.S. 424.090 provides a blanket exemption for relative

27 caregivers from all safety and non-safety standards contained within N.R.S. 424.

28

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1

91. N.R.S. 424.090 completely exempts relative care givers from complying with the

2 foster home standards of N.R.S. 424 and exempts child welfare officials from having to ensure

3 compliance with required licensing standards.

4

92. Nevada has mandated that any person who violates any of the provisions of N.R.S.

5 424 is guilty of a misdemeanor. N.R.S. 424.090 is therefore mandatory and binding on

6 caseworkers, and any caseworker who fails to comply with the blanket exemption provided for

7 relative caregivers could possibly be prosecuted under N.R.S. 424.100.

8

93. State participation in Titles IV-B and IV-E of the Social Security Act (the “Act”) is

9 voluntary. Despite the voluntary nature of state participation, acceptance of federal funding under

10 the Act is contingent on adherence to the requirements set forth in the Act. By accepting federal

11 funds under the Act, Nevada has implicitly consented to the Act’s requirements, including the

12 requirements under 42 U.S.C. 671(a)(10) that relative caregivers must be subjected to the same

13 standards as non-relative caregivers.

14

94. Defendants’ policies, customs and omissions fail to fulfill their obligation to protect

15 children placed in relative foster homes. The only “investigation” caseworkers are required to

16 conduct of a relative foster home is a criminal background check on the adults in the home and

17 verification that the home has fire and pool safety equipment. N.A.C. 432B.430. Defendants do

18 not require caseworkers to make any other inquiries to determine whether the relatives are able to

19 provide appropriate care for the children, including, for example, whether the relatives have any

20 training or experience in taking care of children; whether they are equipped to meet any special

21 needs the children may have; whether they have adequate room in their homes to accommodate

22 the children; or whether they satisfy any other criteria for foster parent licensing. In some

23 instances, Defendants place children in relatives’ homes without even completing a criminal

24 background check and, in some cases, without even verifying the identities of the adults living in

25 the home.

26

95. County Defendants require all placements other than relative placements to go

27 through the DFS Placement Unit. With relative placements, however, Defendants’ policy is to

28 allow individual caseworkers to determine on their own whether the home is safe and appropriate

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1 for the child. Defendants therefore fail to provide any supervision over the approval of relative

2 placements to ensure that they meet requisite standards.

3

96. Compounding this problem, Defendants fail to train caseworkers regarding how to

4 determine whether a relative placement is acceptable. Caseworkers responsible for the placement

5 of children in the homes of relatives are not familiar with, nor do they apply, foster home

6 licensing standards to relative placement decisions.

7

97. When Defendants place a child in any foster home, Nevada law and professional

8 standards require a caseworker to visit him at least monthly to ensure that he is receiving

9 adequate care. N.A.C. 432B.405. Professional standards require that children with special needs,

10 including health or behavioral problems, receive more frequent visits.

11

98. Defendants’ failure to investigate relative placements results in their placing many

12 foster children with relatives who are unable or unwilling to provide adequate care. As a direct

13 and foreseeable result, many foster children suffer abuse and neglect in these placements.

14 Because Defendants routinely fail to monitor the care children receive in relative placements,

15 many foster children, including Plaintiffs, are left to suffer this abuse for long periods of time.

16

99. Defendants’ policies, customs and omissions concerning the investigation, approval,

17 and monitoring of relatives with whom they place foster children reflect a deliberate indifference

18 to the health and safety of those children, constitute a substantial departure from professional

19 standards, and evidence a lack of professional judgment.

20

c. Plaintiffs Have Been Injured as a Result of Defendants’ Failure

21

to Investigate and Monitor Relative Placements

22

100. Defendants’ policy and practice of failing to conduct adequate investigations into

23 the safety and appropriateness of relative foster placements or to monitor those placements has

24 injured Plaintiffs. For example:

25

(a) When Linda was four years old, Defendants placed her in the home of an aunt.

26 Upon information and belief, Defendants’ caseworkers failed to conduct an adequate

27 investigation of the aunt at any time before or after placing Linda in her home and failed to visit

28 Linda to ensure that she was receiving proper care. In fact, the aunt was ill-equipped to care for

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1 Linda and abused and neglected her throughout the two years that Linda lived in the home. But

2 for Defendants’ failure to investigate and monitor the placement, Linda would not have been

3 subjected to this abuse.

4

(b) Defendants placed Olivia with a series of relatives, including with her

5 grandparents and cousins, over a three-year period from 2006 through 2009. Upon information

6 and belief, Defendants’ caseworkers failed to conduct adequate investigations into the suitability

7 of these relatives to care for Olivia at any time before or after placing her in their homes and

8 failed to visit Olivia regularly to ensure that she was receiving proper care. During that time,

9 Olivia’s relatives repeatedly abused her, including by beating her with a belt and forcing her to

10 stand for long periods of time holding her arms up with books on her hands. But for Defendants’

11 failure to investigate and monitor the placements, Olivia would not have been subjected to this

12 abuse.

13

101. As the direct and proximate result of Defendants’ failure to conduct adequate

14 investigations into the safety and appropriateness of relative foster placements or to monitor those

15 placements, as alleged herein, Plaintiffs have been subjected to abuse and neglect resulting in

16 bodily harm, substantial physical and emotional pain and suffering, humiliation, extreme and

17 severe mental anguish, acute anxiety, emotional and physical distress, and fear and depression, all

18 to their damage and detriment.

19

d. It Is Likely That Plaintiffs and Others Will Continue to Suffer

20

Harm as a Result of Defendants’ Violation of Federal Law

21

102. Defendants’ failure to require that relative caregivers be subjected to the same

22 foster home standards as non-relative caregivers has caused and is continuing to cause widespread

23 harm throughout the foster care system and make it likely that Plaintiffs and others will continue

24 to suffer harm in Defendants’ custody.

25

103. Unless Defendants fulfill their obligation to implement and enforce applicable

26 federal law, Plaintiffs and others face the risk of future injury, including future abuse, from being

27 placed in inappropriate, unsafe and unmonitored relative caregiver placements.

28

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1

2. Defendants Fail to Protect Foster Children by Failing to Investigate

Reports of Abuse and Neglect

2

a. The Law Requires Defendants to Promptly and Thoroughly

3

Investigate Suspected Abuse and Neglect of Foster Children

4

104. When Defendants remove a child from her home and cause her to live in a foster

5 care placement, Defendants are obligated to ensure that the child is safe in the placement they

6 have chosen for her. Nevada law mandates that Defendants must immediately investigate any

7 report of possible abuse or neglect involving a child under the age of six, who is at a high risk for

8 serious harm, or who has visible signs of physical abuse. N.R.S. 432B.260. Defendants must

9 evaluate all other reports within three days. Id. If during the evaluation the Defendants conclude

10 that an investigation is warranted, they must initiate the investigation within three days from the

11 end of the evaluation. Id.

12

105. When Defendants receive a report of abuse, they must conduct an evaluation.

13 N.A.C. 432B.150. Defendants must determine how the child is being affected by the situation

14 and whether the child is currently safe, at risk of abuse or neglect, or threatened with harm.

15 N.A.C. 432B.160. In making these determinations, Defendants must consider a number of

16 factors, including age, any exceptional needs of the child, the child’s need for medical care,

17 whether the child has sustained a serious injury for which there is no reasonable or credible

18 explanation, and whether safety risks are created because of a caretaker’s lack of knowledge,

19 skill, or motivation relating to parenting. N.A.C. 432B.160.

20

106. State law also mandates that Defendants follow a specific protocol in investigating

21 suspected abuse. If the allegations suggest imminent harm, then the caseworker assigned to

22 investigate must see the child immediately and must assess the safety of all children in the home.

23 N.A.C. 432B.150. In other cases, the caseworker must attempt a face-to-face meeting with the

24 child and his family on the next business day and on each successive business day until a

25 supervisor deems the matter resolved. N.A.C. 432B.155. Further, the caseworker investigating

26 the report of abuse must consider a multi-factored list of considerations, including the risk posed

27 to children by others living in the home. N.A.C. 432B.160. The manner in which the

28 investigation was initiated and any information obtained must be documented in writing. N.A.C.

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1 432B.155. Upon completing an investigation, Defendants must file a report with the Central

2 Registry detailing the facts of the alleged abuse or neglect and the ultimate disposition of the

3 investigation. N.R.S. 432B.310. Defendants have thirty days to complete a Child Protective

4 Services (CPS) investigation, make recommended investigative findings, and submit a complete

5 file to the CPS Supervisor from the receipt of the report at the hotline. Investigations Policies

6 and Procedures (dated 9/5/2008), Discussion Draft. In addition, Clark County DFS policy

7 requires caseworkers to contact the child who is the subject of the report of abuse, as well as the

8 child’s siblings.

9

b. Defendants’ Policies, Customs, and Omissions Do Not Comply

10

with Laws Mandating Investigations of Suspected Abuse

11

107. Despite these mandated procedures, Defendants regularly and routinely fail to

12 conduct required investigations and evaluations of suspected or reported instances of abuse and

13 neglect of children they have placed in foster care. When Defendants do investigate or evaluate

14 such reports, caseworkers routinely fail to investigate the factors required by N.A.C. 432B.160,

15 including the requirement that they assess the risk posed to a child by others living in the home.

16

108. Defendants also fail to train their investigators in techniques for gathering and

17 evaluating facts on which to determine whether a child has been a victim of abuse or neglect.

18

109. Similarly, Defendant supervisors fail to supervise caseworkers to ensure that they

19 are conducting investigations in accordance with law, regulations, and policy.

20

110. The 2009 Federal Review concluded that following reports of neglect or abuse, the

21 State of Nevada fails to meet national standards for appropriately conducting ongoing risk

22 assessments to assess safety-related concerns, including whether a child is likely to be in

23 immediate or imminent danger of serious physical harm.

24

111. Defendants’ failure to adequately investigate suspected abuse and neglect of the

25 foster children in their custody reflects a deliberate indifference to the health and safety of those 26 children, constitutes a substantial departure from professional standards, and evidences a lack of 27 professional judgment. 28

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1

112. As a direct and foreseeable result of Defendants’ failure to comply with the

2 requisite procedures for evaluations and investigations, Defendants routinely fail in their duty to

3 protect the children in their custody and care, and children suffer abuse and neglect at the hands

4 of their caregivers.

5

c. Plaintiffs Have Been Injured by Defendants’ Inadequate

Investigation of Suspected Abuse 6

7

113. Defendants’ policy and practice of failing to conduct adequate investigations and

8 evaluations of suspected or reported instances of abuse and neglect of children they have placed

9 in foster care has injured Plaintiffs. For example:

10

(a) When Linda was five years old and living with her aunt, she ran away to a

11 friend’s house to escape the abuse she suffered at home. Upon information and belief, the parents

12 of the friend to whom she ran contacted Defendants and reported their suspicion that Linda’s aunt

13 was abusing and neglecting her. On information and belief, these reports were not investigated

14 pursuant to the requisite procedures, and Defendants returned Linda to her abusive aunt.

15

(b) Linda continued to suffer abuse in other homes into which Defendants placed

16 her. During her stay in one such home, Linda told her caseworker that her foster mother and

17 another child in the home had physically abused her. During another stay in her aunt’s home,

18 Linda reported to her caseworker that her aunt was abusing her. Defendants did not investigate

19 pursuant to the mandatory procedures either of Linda’s reports of abuse.

20

(c) After Defendants took protective custody of Leo and Victor, caseworkers

21 returned the boys to live with their mother while Defendants retained legal custody of the boys.

22 During their stay with their mother, both children suffered physical abuse from their mother and

23 her boyfriend. Leo and Victor’s grandmother called the CPS hotline multiple times to report the

24 abuse. On information and belief, these reports were not investigated by Defendants pursuant to

25 the requisite procedures.

26

(d) Defendants later placed Leo and Victor into a series of other foster care

27 settings, including a home with a foster parent who had a history of CPS complaints of neglect.

28

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1 On information and belief, CPS failed to adequately investigate the foster parent and placed the

2 boys with her despite her mistreatment of children in her care.

3

(e) In the summer of 2007, Defendants placed Victor in a group home. Victor

4 reported to his caseworker that the staff at the group home had withheld medical and psychiatric

5 treatments from him as a form of punishment. Withholding treatment constitutes neglect that

6 triggers Defendants’ obligation to investigate. On information and belief, Victor’s complaints

7 were not investigated pursuant to the requisite procedures.

8

(f) As detailed above, the relatives with whom Defendants placed Olivia abused

9 her repeatedly over the course of several years. On information and belief, this abuse was not

10 investigated pursuant to the requisite procedures.

11

(g) Despite knowledge that Mason had been abused while living in his

12 grandparents’ home, after obtaining legal custody of Mason, Defendants required him to visit

13 with his grandparents, where he was again physically and possibly sexually abused. Defendants’

14 failure to investigate and monitor Mason’s visitations with his grandparents caused Mason to

15 suffer abuse.

16

114. As the direct and proximate result of Defendants’ failure to conduct adequate

17 investigations of reports of abuse and neglect, as alleged herein, Plaintiffs have been subjected to

18 abuse and neglect resulting in bodily harm, substantial physical and emotional pain and suffering,

19 humiliation, extreme and severe mental anguish, acute anxiety, emotional and physical distress,

20 and fear and depression, all to their damage and detriment.

21

d. It Is Likely That Plaintiffs and Others Will Continue to Suffer

22

Harm as a Result of Defendants’ Policies, Customs and Omissions

23

115. So long as Plaintiffs remain in the foster care system, Defendants’ policies,

24 customs and omissions regarding failure to investigate reports of abuse adequately, or at all, make

25 it likely that Plaintiffs will suffer harm in the future. As demonstrated above, foster children in

26 Clark County, including Plaintiffs, routinely experience multiple placements while they are in

27 Defendants’ custody. As a result, Plaintiffs and others are likely to be again placed in homes

28 where they will suffer abuse.

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1

116. Unless Defendants change their policies and customs to institute a proper protocol

2 for investigating abuse and to train their caseworkers on how to do so, these policies, customs and

3 omissions will continue to injure children, including Plaintiffs.

4

3. Defendants Fail to Protect Foster Children When Transferring Them

to Out of State Facilities 5

a. The Law Requires Defendants to Physically Inspect and

6

Monitor Treatment and Services Provided to Foster Children

by Out of State Facilities 7

8

117. When transferring foster children to facilities outside of Nevada, Defendants are

9 required to physically inspect such facilities before or at the time of the transfer and placement to

10 determine whether the facility provides the services or treatment necessary for the child, is

11 accredited or licensed and in good standing with the entity that accredits or licenses the facility,

12 and is subject to health inspections. Defendants are also required to review the results of any

13 health inspections conducted within the immediately preceding three years. N.R.S. 432.0177(1).

14

118. The Interstate Compact on the Placement of Children (“ICPC”) is an agreement

15 that establishes uniform legal and administrative procedures governing the interstate placement of

16 foster children. It has been enacted by all 50 states and is codified in Nevada as N.R.S. 127.330.

17

119. The ICPC also governs Defendants’ transfer of foster children outside of Nevada,

18 and requires, among other things, that before any such transfer Defendants receive a written

19 notice from the receiving state that the proposed placement does not appear to be contrary to the

20 interests of the child, and also provides that Defendants retain jurisdiction over the foster child

21 sufficient to determine all matters in relation to the custody, supervision, care, treatment, and

22 disposition of the child. N.R.S. 127.330, Art. III, V.

23

120. State law requires Defendants to monitor the continued appropriateness of the

24 placement by, at least one time each year, physically inspecting each out of state facility and

25 reviewing the services being provided to the child at the facility and any treatment plan

26 established for the child, and interviewing each foster child placed at an out of state facility at

27 least one time each year. N.R.S. 432.0177(2). These laws are meant to ensure that the placement

28 of a foster child in a facility in another state is safe and capable of meeting the child’s needs.

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1

121. In addition, federal law mandates that with respect to children “placed in foster

2 care outside the State in which the home of the parents of the child is located,” Defendants are

3 required to “periodically, but not less frequently than every 6 months” have “a caseworker on the

4 staff of the State agency of the State in which the home of the parents of the child is located, of

5 the State in which the child has been placed, or of a private agency under contract with either

6 such State, visit such child in such home or institution and submit a report on such visit to the

7 State agency of the State in which the home of the parents of the child is located.” 42 U.S.C. §

8 675(5)(A)(ii) (as amended by 109 P.L. 239). Thus, for all out of state placements of foster

9 children, federal law requires Defendants to ensure that each child in an out of state placement

10 receives a visit at least every six months and to record a report about each such visit. Id.

11 N.R.S. 432.0177(2), which requires visits to out of state placements only once per year, directly

12 contradicts the congressional mandate in 42 U.S.C. § 675(5)(A)(ii), which requires visits every

13 six months.

14

b. Defendants’ Policies, Customs and Omissions Do Not Comply

15

with Federal and State Laws Governing Transfer of Foster Children Outside of Nevada

16

122. Despite these statutory requirements, on information and belief, Defendants

17 regularly and routinely fail to physically inspect out of state facilities at least annually and before

18 placing foster children at such facilities. Further, on information and belief, Defendants also

19 regularly and routinely fail to ensure that foster children in out of state placements receive visits

20 at least every six months, to submit reports regarding such visits, and to annually review the

21 services provided to, and any treatment plans established for, foster children in out of state

22 placements.

23

123. State participation in Titles IV-B and IV-E of the Social Security Act (the “Act”) is

24 voluntary. Despite the voluntary nature of state participation, acceptance of federal funding under

25 the Act is contingent on adherence to the requirements set forth in the Act. By accepting federal

26 funds under the Act, Nevada has implicitly consented to the Act’s requirements, including the

27 requirements under 42 U.S.C. 675(5)(a)(ii) that children placed out of state be visited at least

28 every six months by a caseworker.

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1

124. As a direct and foreseeable result of Defendants’ failure to comply with statutory

2 requirements governing out of state placements, Defendants routinely fail in their duty to protect

3 the children in their custody and care by placing them in dangerous and poorly supervised out of

4 state placements that result in the abuse and neglect of foster children in Defendants’ custody.

5

125. Defendants’ policies, customs and omissions concerning out of state visitations

6 and the inspection of out of state facilities reflect a deliberate indifference to the health and safety

7 of children placed out of state, constitute a departure from professional standards, and evidence a

8 lack of professional judgment.

9

c. Plaintiff Mason Has Been Injured by Defendants’ Failure to

10

Physically Inspect and Monitor Out of State Facilities in Which Foster Children Are Placed

11

126. Defendants’ policy and custom of failing to physically inspect and monitor out of

12 state facilities and other placements in which foster children are placed has injured Plaintiff

13 Mason. For example:

14

(a) In approximately May 2008, Defendants transferred Mason from Nevada to the

15 National Deaf Academy (“NDA”), an out of state facility located in central Florida. Mason’s

16 placement at NDA in Florida is a placement controlled by the provisions of ICPC, N.R.S.

17 127.330, N.R.S. 432.0177, and 42 U.S.C. § 675(5)(a)(ii).

18

(b) On information and belief, before transferring Mason to NDA, Defendants did

19 not review any health inspections, nor did they take certain mandatory steps to determine whether

20 NDA would provide Mason with necessary services and treatment, as required by N.R.S.

21 432.0177. In the seventeen months between January 1, 2008 and May 27, 2009, local police

22 responded to 369 calls at NDA, and while Mason was a resident at NDA, Florida Health Care

23 Agency Administration investigated numerous reports of patient abuse/neglect, lack of

24 supervision, and improper use of restraint. The Agency confirmed many of those complaints.

25

(c) Mason remained at NDA from approximately May 2008 until the end of

26 December 2009. During Mason’s approximately nineteen-month placement at NDA, Defendants

27 never visited him, nor participated in any of Mason’s monthly treatment sessions or the

28 development and review of his Individual Education Plan.

COMPLAINT

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1

(d) Before being transferred to NDA, Mason requested and underwent surgery for a

2 cochlear implant. A cochlear implant is a surgically implanted electronic device that provides a

3 sense of sound to individuals who, like Mason, are profoundly deaf. Mason’s medical providers

4 informed Defendants that after he received the cochlear implant, Mason would need follow-up

5 care, and that Mason and his care providers would need to take special precautions to keep the

6 implant properly functioning. Defendants, however, failed to provide Mason with the necessary

7 follow-up or to ensure the proper care of his cochlear implant. In approximately May 2008,

8 shortly after his transfer to NDA, NDA staff removed the external device for Mason’s cochlear

9 implant, rendering it largely inoperative and depriving Mason, against his wishes, of the use and

10 benefit of the cochlear implant. As a result of NDA’s destruction of Mason’s cochlear implant,

11 Mason has suffered severe impairment to his language development.

12

(e) In June 2008, approximately one month after his transfer to NDA, Mason

13 complained of sexual abuse by a resident. Upon information and belief, NDA staff notified

14 Defendants of this report shortly thereafter and provided them with the police report number and

15 the e-mail address and phone number of the investigating officer. Additional persons, including

16 Mason’s former therapist in Las Vegas and his foster mother in Las Vegas, also notified

17 Defendants of this report. Defendants nonetheless failed to investigate Mason’s complaint.

18 Defendants left Mason at NDA for approximately eighteen months, and took no steps to verify

19 his safety or well being or to visit him during this time.

20

127. As the direct and proximate cause of Defendants’ failure to physically inspect and

21 monitor out of state facilities in which foster children are placed and ensure that they receive

22 visits at least every six months as alleged herein, Plaintiff Mason has been subjected to abuse and

23 neglect resulting in bodily harm, substantial physical and emotional pain and suffering,

24 humiliation, extreme and severe mental anguish, acute anxiety, emotional and physical distress,

25 and fear and depression, all to his damage and detriment.

26

27

28

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1

d. It Is Likely That Plaintiff Mason and Others Will Continue to

Suffer Harm as a Result of Defendants’ Policies, Customs and

2

Omissions

3

128. Defendants’ failure to physically inspect out of state facilities before and during

4 the placement of foster children to such facilities, to ensure that foster children in out of state

5 facilities receive visits at least every six months, and to at least annually review the services

6 provided to foster children placed at out of state facilities, has caused, and is continuing to cause,

7 widespread harm throughout the foster care system and makes it likely that Plaintiff Mason and

8 others will continue to suffer harm in Defendants’ custody.

9

129. Unless Defendants cease their failure to implement and enforce applicable law

10 regarding out of state placement of foster children, it is likely that Plaintiff Mason and others face

11 future injury from the failure of Defendants to physically inspect and monitor treatment of foster

12 children in out of state facilities.

13 II. 14

CLASS ACTION ALLEGATIONS 130. Plaintiffs bring certain claims for injunctive and declaratory relief in this action on

15 behalf of themselves and three distinct classes of foster children in the legal custody of Clark

16 County DFS pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2).

17

A. Defendants Routinely Fail to Develop a Case Plan for Each Foster Child as

Required Under Nevada and Federal Law

18

19

131. The first class is as follows:

20

All children removed from their homes and placed in foster care in

the legal custody of Clark County for whom a case plan in

21

compliance with federal and state requirements has not been

prepared (the “Case Plan Class”). 22

23

132. The Case Plan Class Representatives are Henry A., Charles and Charlotte B.,

24 Leo and Victor C., Delia, Maizy, and Jonathan D., Linda E., Christine F., Olivia G., Sheldon H.,

25 and Mason I. On information and belief, the Case Plan Class Representatives are members of the

26 class they seek to represent.

27

133. The Case Plan Class consists of numerous individuals, making joinder of all

28 members impracticable. Furthermore, the Case Plan Class is fluid in that new members are

COMPLAINT

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1 regularly created. There are more than 3,600 children in foster care in Clark County. Throughout

2 the year, many more children enter care than are reflected in any single-day census. During 2004,

3 for example, a total of 4,548 were removed from their homes and placed in foster care. Nearly

4 half of the children in Clark County foster care are not provided with written case plans within 45

5 days of removal from the home.

6

134. There are material issues of law and fact common to the members of the Case Plan

7 Class. The material questions of law and fact common to the Case Plan Class include:

8

(a) Whether Defendants developed a written case plan containing the requisite

9 information for each class member within the statutorily required time limit;

10

(b) Whether the failure to develop a written case plan for each class member is a

11 denial of class members’ rights under Nevada and federal law;

12

(c) Whether class members are entitled to declaratory and injunctive relief for the

13 rights they have been denied.

14

135. The claims of the Case Plan Class Representatives are typical of the claims of the

15 Case Plan Class. The Case Plan Class Representatives will fairly and adequately represent and

16 protect the interests of the Case Plan Class. Case Plan Class Representatives know of no conflict

17 of interest among the Case Plan Class members. Each Case Plan Class Representative appears by

18 a next friend, and each next friend is sufficiently familiar with the facts and circumstances

19 surrounding the child’s situation to fairly and adequately represent the child’s interests in this

20 litigation.

21

136. As noted above, when Defendants remove a child from his home and take him into

22 protective custody, the Federal Foster Care and Adoption Assistance Act requires that

23 caseworkers develop a case plan for each foster child that includes the child’s health and

24 education records, known medical problems and prescribed medications, and other relevant

25 related information. 42 U.S.C. §§ 671(a)(16), 675(1). Federal regulations mandate that the case

26 plan be developed within a reasonable period, to be established by the State, but in no event later

27 than 60 days from the child’s removal from the home. 45 C.F.R. §1356.21 (g)(2).

28

COMPLAINT

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1

137. Nevada law requires the inclusion of medical and educational information

2 collected about each child in a written case plan within 45 days after the removal of that child

3 from his home. N.A.C. 432B.400.

4

138. The development of a case plan is crucial in identifying each child’s needs and

5 ensuring that those needs are met. Federal and state laws require caseworkers to prepare case

6 plans in order to ensure that each child receives safe and proper care by identifying barriers to the

7 provision of a safe environment for the child, clarifying responsibilities of the involved persons to

8 address any identified barriers, and defining overall goals for the case, including step-by-step

9 proposed actions of all persons to reach the goal. Without a case plan, for example, there is an

10 increased risk that a child’s special behavioral, emotional, or medical needs will not be met.

11

139. Collection and preparation of case plans is also critical to ensure required

12 information about foster children is recorded and passed on to every foster care provider.

13 Without this information, prospective foster parents cannot make a considered judgment about

14 their ability to provide adequate care for the child nor are they made aware of and able to ensure

15 that the child receives all necessary care, treatment, and services. Children placed with foster

16 care providers who have not received this information are more vulnerable to disruptions in their

17 placements.

18

140. Defendants’ policies, customs and omissions result in Defendants’ routine failure

19 to collect the required information about foster children and to incorporate the information into a

20 written case plan.

21

141. The most recent statewide data from the UNITY system indicates that only

22 approximately 53% of children had case plans within 45 days of removal from the home. This

23 data confirms that what was an obvious deficiency noted four years earlier during the 2004

24 Federal Review continues to be a serious problem. Statewide Assessment at 88.

25

142. The failure of Defendants’ caseworkers to fulfill the obligation to collect required

26 information and develop a timely written case plan for the children in their custody and care is

27 foreseeable. Defendants employ many caseworkers who are not adequately educated or trained

28 on how to collect the necessary and required information regarding foster children and who fail to

COMPLAINT

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1 meet minimal education levels such as a degree in social work. Approximately one-third of the

2 caseworkers have been at their jobs for less than one year. Compounding these caseworkers’ lack

3 of education and experience, upon information and belief, Defendants allow new caseworkers to

4 proceed in the field for months before providing them with even the initial basic training. In

5 addition, caseworkers who fail to develop written case plans are not held accountable for such

6 failings through requisite supervision.

7

143. Defendants’ policies, customs and omissions regarding the failure to collect

8 critical and required information and develop it in a written case plan for each foster child causes

9 injury to Case Plan Class members in Defendants’ custody, including by causing frequent and

10 avoidable movements from one failed placement to another, and by causing a disruption, delay,

11 and/or a withholding of services needed by Case Plan Class members.

12

144. As the direct and proximate result of Defendants’ policies, customs and omissions

13 regarding the failure to develop a written case plan as alleged herein, Case Plan Class members

14 have endured repeated failed placements, delay, and/or withholding of needed services, lack of

15 access to continuous and/or effective mental health care, abuse, and neglect, and have been forced

16 to take and abruptly withdraw from numerous psychotropic drugs. On information and belief,

17 written case plans were not prepared for Case Plan Class Members and the Case Plan Class

18 Representatives as required by federal and Nevada law.

19

145. Defendants’ policies, customs and omissions regarding the collection and

20 compilation of critical information about foster children make it likely that Case Plan Class

21 members and others will continue to suffer harm, including failed placements, in Defendants’

22 custody.

23

146. Defendants’ policies, customs and omissions regarding the failure to develop a

24 written case plan reflect a deliberate indifference to the health and safety of those children,

25 constitute a substantial departure from professional standards, and evidence a lack of professional

26 judgment.

27

147. Unless Defendants change their policies and customs to ensure that a written case

28 plan is developed for each foster child, Case Plan Class members face likely future injury.

COMPLAINT

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1

B. Defendants Fail to Provide All Foster Children with Guardians ad litem

2

148. The second class is as follows:

3

All children removed from their homes and placed in foster care in

the legal custody of Clark County who have not been assigned a

4

guardian ad litem as required by federal and state law (the

“Guardian ad Litem Class”).

5

6

149. The Guardian ad Litem Class Representatives are Linda B., Delia, Maizy, and

7 Jonathan D., Charles and Charlotte B., Olivia G., Christine F., and Sheldon H. On information

8 and belief, the Guardian ad Litem Class Representatives are members of the class they seek to

9 represent.

10

150. The Guardian ad Litem Class consists of numerous individuals, making joinder of

11 all members impracticable. Furthermore, the Guardian ad Litem Class is fluid in that new

12 members are regularly created. There are more than 3,600 children in foster care in Clark

13 County. Throughout the year, many more children enter care than are reflected in any single-day

14 census. During 2004, for example, a total of 4,548 were removed from their homes and placed in

15 foster care. Approximately two-thirds of children who are removed from their homes and are the

16 subject of abuse and neglect proceedings in Clark County are not represented by a guardian ad

17 litem. Only 3.5% of children who are in foster care receive a guardian ad litem within the first

18 year.

19

151. The material questions of law and fact common to the Guardian ad Litem Class

20 include:

21

(a) Whether Defendants failed to timely appoint a guardian ad litem for class

22 members;

23

(b) Whether the timely failure to appoint a guardian ad litem for class members is a

24 denial of class members’ rights under Nevada and federal law; and

25

(c) Whether class members are entitled to declaratory and injunctive relief for the

26 rights they have been denied.

27

152. The claims of the Guardian ad Litem Class Representatives are typical of the

28 claims of the Guardian ad Litem Class. The Guardian ad Litem Class Representatives will fairly

COMPLAINT

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1 and adequately protect the interests of the class they represent. Guardian ad Litem Class

2 Representatives know of no conflict of interest among the class members. Each Guardian ad

3 Litem Class Representative appears by a next friend, and each next friend is sufficiently familiar

4 with the facts and circumstances surrounding the child’s situation to fairly and adequately

5 represent the child’s interests in this litigation.

6

153. Federal law requires that in every case involving an abused or neglected child that

7 results in a judicial proceeding, the State must appoint a guardian ad litem to represent the child

8 in such proceedings at the time of the first protective custody hearing. 42 U.S.C.

9 § 5106a(b)(2)(A)(xiii). The purpose of this requirement is to ensure that there is an adult to

10 advocate on behalf of the child whose only allegiance is to the child. His role is to obtain a first-

11 hand understanding of the child’s needs and to make recommendations to the court concerning

12 the child’s best interests. The guardian ad litem must be either an attorney or a court-appointed

13 special advocate, and he must receive training appropriate to the role. Id.

14

154. Defendants regularly and routinely deny representation by guardians ad litem to

15 children in foster care. Although the law requires Defendants to appoint a guardian ad litem for

16 every child who is the subject of abuse and neglect proceedings, approximately two-thirds of such

17 children in Clark County are not represented by a guardian ad litem in those proceedings. Of the

18 one-third who receive some representation, the vast majority are without a guardian ad litem until

19 they have been in foster care for a year or more and after many major decisions regarding their

20 placements and other important issues have already been made.

21

155. In each case in which Defendants fail to provide a guardian ad litem, they deprive

22 the court and other decision makers of the information needed to make important decisions

23 affecting the child’s health and safety. As a result, children are often placed in unsafe and/or

24 inappropriate settings; left to suffer abuse and neglect in such placements; denied health care,

25 mental health treatment, and early intervention and other special educational services; and/or

26 administered inappropriate and dangerous medications. Many of these injuries would not occur if

27 each foster child received representation to protect his interests, and many injuries that do occur

28 would have a greater chance of being remedied.

COMPLAINT

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1

156. On information and belief, each of the Guardian ad Litem Class Representatives

2 was denied representation by a guardian ad litem, in violation of federal and Nevada law.

3

157. Defendants have known about the lack of representation for foster children in

4 Clark County for years and have failed to address it. Unless Defendants change their policies and

5 customs and appoint a guardian ad litem for each child at the time his case begins, many more

6 children will continue to lose protected rights and will suffer injuries that could have been

7 prevented if they had been appointed guardians ad litem to represent their interests.

8

C. Defendants Fail to Ensure That Foster Children Receive Early Intervention

9

Services to Which They Are Entitled

10

158. The third class is as follows:

11

All children under age three removed from their homes and placed

in foster care in the legal custody of Clark County who were

12

involved in substantiated cases of child abuse or neglect or who had

a positive drug screen at birth and have not been referred to early

13

intervention services as required by federal law (the “Early

Intervention Class”).

14

15

159. The Early Intervention Class Representative is Christine F. On information and

16 belief, the Early Intervention Class Representative is a member of the Early Intervention class she

17 seeks to represent.

18

160. The Early Intervention Class consists of numerous individuals, making joinder of

19 all members impracticable. During the 2009 fiscal year, 1,197 children under the age of 3 were

20 the subject of substantiated reports of abuse or neglect. Federal law and state and county policy

21 require that each of these children be referred to early intervention services. On information and

22 belief, referrals were not made for a substantial number of these children. Furthermore, the Early 23 Intervention Class is fluid in that new members are regularly created. There are over 3,600 24 children in foster care in Clark County. Throughout the year, many more children enter care than 25 is reflected in any single day census. During 2004, for example, a total of 4,548 were removed 26 from their homes and placed in foster care. Many of these children qualify for mandatory referral 27 to early intervention services. 28

COMPLAINT

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1

161. The material questions of law and fact common to the Early Intervention Class

2 include:

3

(a) Whether Defendants fail to refer class members who are involved in

4 substantiated cases of child abuse or neglect or who have positive drug screenings at birth to early

5 intervention services;

6

(b) Whether the failure to refer class members to early intervention services is a

7 denial of class members’ rights under Nevada and federal law and the U.S. Constitution; and

8

(c) Whether class members are entitled to declaratory and injunctive relief for the

9 rights they have been denied.

10

162. The claims of the Early Intervention Class Representative are typical of the claims

11 of the Early Intervention Class. The Early Intervention Class Representative will fairly and

12 adequately protect the interests of the class she represents. The Early Intervention Class

13 Representative knows of no conflict of interest among the class members. The Early Intervention

14 Class Representative appears by a next friend, and the next friend is sufficiently familiar with the

15 facts and circumstances surrounding the child’s situation to fairly and adequately represent the

16 child’s interests in this litigation.

17

163. Federal law mandates that Nevada have in effect and enforce a state law, or have

18 in effect and operate a statewide program regarding child abuse and neglect, that includes

19 referring children under the age of three who are involved in substantiated cases of child abuse or

20 neglect or who have a positive drug screen at birth to early intervention services funded under

21 federal law. 42 U.S.C. § 5106a(b)(2)(A)(xxi) (CAPTA); 20 U.S.C. § 1437(a)(6)(A) (Part C of

22 Individuals With Disabilities Education Act).

23

164. State DCFS policy requires that all such children be referred to “early intervention

24 services” within two working days of being identified as qualifying for referral. State Child

25 Welfare Policies and Procedures, Nevada Division of Child and Family Services Policy Manual

26 §§ 0502.2.2, 0502.5.2; see also id. § 0207.5.2 (requiring that children in substantiated cases of

27 abuse/neglect be referred to an “Early Intervention Program” for a developmental assessment and

28 that the results of the referral be documented within five working days of receipt of the

COMPLAINT

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1 information), § 0207.6 (requiring, inter alia, that supervisors verify by case note that referrals

2 take place and the results of the referrals).

3

165. On information and belief, Defendants regularly and routinely fail to refer

4 abused/neglected children to early intervention services as required by law. In each case in which

5 Defendants fail to refer a child to early intervention services, that child misses a critical window

6 of opportunity to effectively address and correct any learning and developmental difficulties she

7 is facing. As a result, children often suffer from delayed or stunted development relative to

8 children who are referred to early intervention services. Nevada’s Bureau of Early Intervention

9 Services website states that the human brain develops extremely quickly during the first three

10 years of life. Intervention during this window is particularly important in lessening the impact of

11 educational and developmental disabilities later in life and in helping abused and neglected

12 children grow into independent and productive adults. When Defendants fail to refer Early

13 Intervention Class Members to early intervention services, the result is a lasting negative impact

14 on the child’s future quality of life and ability to function in an independent manner. “In order for

15 children to succeed in school, they need supportive environments that enhance social and

16 cognitive development before they enter kindergarten.” H.R. Rep. No. 108-77, at 123-124 (2003)

17 (referring to proposed Individuals with Disabilities Education Act (“IDEA”) reauthorization and

18 amendments as the Improving Education Results for Children with Disabilities Act of 2003).

19 “The early years of a child’s development lay the groundwork for future years and are critical

20 years for children with disabilities and their families.” Id. “Research shows that early

21 identification and intervention can have a significant positive impact on children with disabilities

22 and, in many cases, may help prevent the need for more costly services once a child reaches

23 school age.” Id.

24

166. Injuries of the type described herein and sustained by the Early Intervention Class

25 would not occur if foster children were referred to early intervention services as required by law.

26

167. On information and belief, the Early Intervention Class Representative was denied

27 referral to early intervention services, in violation of federal and Nevada law and policy.

28

COMPLAINT

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1

168. On information and belief, Defendants have been on notice for years of their

2 failure to refer children to early intervention services. Unless Defendants change their policies

3 and customs and refer children to early intervention services as appropriate, many more children

4 will suffer injuries from the denial of these crucial services.

5

169. The three proposed classes are represented by experienced counsel who will

6 adequately represent the interests of the classes. Plaintiffs are represented by Morrison &

7 Foerster LLP and Wolfenzon Schulman & Rolles, law firms that have extensive experience

8 litigating complex legal disputes, including class actions. Plaintiffs are also represented by the

9 National Center for Youth Law, a privately funded, nonprofit organization with extensive

10 national experience in complex class action litigation involving child welfare systems. Plaintiffs’

11 counsel have the resources, expertise, and experience to prosecute this action.

12

170. Members of the three classes have all suffered, and will continue to suffer, harm as

13 a result of Defendants’ unlawful and wrongful conduct. Defendants have acted and failed to act

14 on grounds generally applicable to the Class Representatives and the classes and require court

15 imposition of uniform relief to ensure compatible standards of conduct toward the classes,

16 thereby making appropriate equitable relief to the classes as a whole within the meaning of

17 Federal Rules of Civil Procedure 23(b)(1) and (b)(2).

18

CAUSES OF ACTION

19

FIRST CAUSE OF ACTION

20

(Fourteenth Amendment to the United States Constitution, Substantive Due Process: Duty to Protect)

21

(42 U.S.C. § 1983) (Against All Defendants)

22

171. Plaintiffs reallege and incorporate herein by reference each and every allegation

23 contained in paragraphs 1 through 170 of this Complaint.

24

172. Defendants’ conduct as alleged herein deprived Plaintiffs of their clearly

25 established and well-settled rights under the Fourteenth Amendment to the United States

26 Constitution, including their right to be free from harm while involuntarily in government custody

27 and their right to medical care, treatment, and services. Defendants’ conduct includes the

28 following acts and omissions:

COMPLAINT

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1

(a) failure to adequately provide medical, dental, and mental health services,

2 including but not limited to standardized periodic health screenings and treatments, medical

3 services for maximum reduction of physical or mental disability, and monitoring of,

4 administration, and use of psychotropic drugs by foster children;

5

(b) failure to inform caregivers of essential information;

6

(c) failure to conduct legally required visits with foster children;

7

(d) failure to adequately respond to reports of abuse;

8

(e) failure to ensure adequacy of relative caregiver placements; and

9

(f) failure to adequately inspect out of state facilities and monitor treatment and

10 services provided to foster children placed in out of state facilities.

11

173. Each Defendant acted under color of state law as to the matters set forth herein.

12

174. Defendants’ acts and omissions alleged herein reflect a lack of professional

13 judgment and deliberate indifference in depriving Plaintiffs of their Constitutional rights.

14

175. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

15 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

16 deprived Plaintiffs of particular Constitutional rights.

17

176. Further, Defendants have failed in their duties to properly hire, train, instruct,

18 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

19 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

20 failures directly resulted in the deprivation of Plaintiffs’ Constitutional rights.

21

177. Defendants’ acts and omissions complained of herein have caused the violation of

22 Plaintiffs’ Constitutional rights and caused Plaintiffs to suffer damages, including significant

23 physical and emotional harm, in an amount to be determined at trial. These damages are

24 compensable pursuant to 42 U.S.C. § 1983.

25

178. Plaintiffs are entitled to injunctive relief against Defendants’ conduct as described

26 herein because they are suffering and will continue to suffer substantial and immediate irreparable

27 injury from such conduct unless and until Defendants are restrained.

28

COMPLAINT

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1

179. As described herein, Defendants’ acts or omissions were in willful, malicious,

2 wanton, reckless or callous disregard of Plaintiffs’ rights, thereby entitling Plaintiffs to punitive

3 and exemplary damages.

4

SECOND CAUSE OF ACTION

(Fourteenth Amendment to the United States Constitution,

5

Substantive Due Process: State Created Danger)

(42 U.S.C. § 1983)

6

(Against All Defendants)

7

180. Plaintiffs reallege and incorporate herein by reference each and every allegation

8 contained in paragraphs 1 through 179 of this Complaint.

9

181. Defendants’ acts and omissions as alleged herein deprived Plaintiffs of their

10 clearly established and well-settled rights to personal liberty under the Fourteenth Amendment to

11 the United States Constitution. Defendants’ conduct includes acting with deliberate indifference

12 to known or obvious danger in removing Plaintiffs from their homes and placing them in the care

13 of foster parents, including in the care of relative caregivers and out of state facilities and homes,

14 who were unfit to care for them and posed an imminent risk of harm to Plaintiffs’ safety.

15

182. Each Defendant acted under color of state law as to the matters set forth herein.

16

183. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

17 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

18 deprived Plaintiffs of particular Constitutional rights.

19

184. Further, Defendants have failed in their duties to properly hire, train, instruct,

20 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

21 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

22 failures directly resulted in the deprivation of Plaintiffs’ Constitutional rights.

23

185. Defendants’ acts and omissions complained of herein have caused the violation of

24 Plaintiffs’ Constitutional rights and caused Plaintiffs to suffer damages, including significant

25 physical and emotional harm, in an amount to be determined at trial. These damages are

26 compensable pursuant to 42 U.S.C. § 1983.

27

28

COMPLAINT

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1

186. Plaintiffs are entitled to injunctive relief against Defendants’ conduct as described

2 herein because they are suffering and will continue to suffer substantial and immediate irreparable

3 injury from such conduct unless and until Defendants are restrained.

4

187. As described herein, Defendants’ acts or omissions were in willful, malicious,

5 wanton, reckless or callous disregard of Plaintiffs’ rights, thereby entitling Plaintiffs to punitive

6 and exemplary damages.

7

THIRD CAUSE OF ACTION

8

(Federal Adoption Assistance Act and Child Welfare Act; Federal Child Abuse Prevention and Treatment and Adoption Reform)

9

(42 U.S.C. § 1983) (Against All Defendants)

10

188. Plaintiffs reallege and incorporate herein by reference each and every allegation

11 contained in paragraphs 1 through 187 of this Complaint.

12

189. Defendants’ conduct as alleged herein violated Plaintiffs’ statutory rights under the

13 federal Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and

14 Safe Families Act of 1997, 42 U.S.C. § 671 et seq., and the regulations promulgated under the

15 Act, 45 C.F.R. Parts 1355-1357, including but not limited to:

16

(a) the right of each Plaintiff to have his or her health and educational records

17 reviewed, updated, and supplied to foster care providers with whom the child is placed before or

18 at the time of placement, pursuant to 42 U.S.C. §§ 671(a)(16), 675(1), and 675(5)(D);

19

(b) the right of each Plaintiff to have Defendants place him or her with relative

20 foster parents only if those foster parents satisfy Defendants’ foster parent licensing standards,

21 pursuant to 42 U.S.C. § 671(a)(10); and

22

(c) the right of each Plaintiff who Defendants place in an out of state placement to

23 visits from caseworkers at least every six months, pursuant to 42 U.S.C. § 675(5)(A)(ii).

24

190. Each Defendant acted under color of state law as to the matters set forth herein.

25

191. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

26 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

27 deprived Plaintiffs of particular statutory rights.

28

COMPLAINT

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1

192. Further, Defendants have failed in their duties to properly hire, train, instruct,

2 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

3 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

4 failures directly resulted in the deprivation of Plaintiffs’ statutory rights.

5

193. Defendants’ acts and omissions complained of herein have caused the violation of

6 Plaintiffs’ statutory rights and caused Plaintiffs to suffer damages, including significant physical

7 and emotional harm, in an amount to be determined at trial. These damages are compensable

8 pursuant to 42 U.S.C. § 1983.

9

194. Plaintiffs are entitled to injunctive relief against Defendants’ conduct as described

10 herein because they are suffering and will continue to suffer substantial and immediate irreparable

11 injury from such conduct unless and until Defendants are restrained.

12

195. As described herein, Defendants’ acts or omissions were in willful, malicious,

13 wanton, reckless or callous disregard of Plaintiffs’ rights, thereby entitling Plaintiffs to punitive

14 and exemplary damages.

15

FOURTH CAUSE OF ACTION

16

(Substantive Due Process under the Nevada Constitution) (Against All Defendants)

17

196. Plaintiffs reallege and incorporate herein by reference each and every allegation

18 contained in paragraphs 1 through 195 of this Complaint.

19

197. Defendants’ conduct as alleged herein deprived Plaintiffs of their substantive due

20 process rights conferred upon them by Article I, § 8(5) of the Nevada Constitution, including their

21 right to be free from harm while involuntarily in government custody and their right to medical

22 treatment, services and care which are provided through the exercise of accepted, reasonable

23 professional judgment. Defendants’ conduct includes the following acts and omissions:

24

(a) failure to adequately provide medical, dental, and mental health services,

25 including but not limited to standardized periodic health screenings and treatments, medical

26 services for maximum reduction of physical or mental disability, and monitoring of use of

27 psychotropic drugs by foster children;

28

(b) failure to inform caregivers of essential information;

COMPLAINT

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1

(c) failure to conduct legally required visits with foster children;

2

(d) failure to adequately respond to reports of abuse;

3

(e) failure to ensure adequacy of relative caregiver placements; and

4

(f) failure to adequately inspect out of state facilities and monitor treatment and

5 services provided to foster children placed in out of state facilities.

6

198. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

7 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

8 deprived Plaintiffs of particular Constitutional rights.

9

199. Further, Defendants have failed in their duties to properly hire, train, instruct,

10 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

11 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

12 failures directly resulted in the deprivation of Plaintiffs’ Constitutional rights.

13

200. Defendants’ acts and omissions reflect a lack of professional judgment and

14 deliberate indifference to Plaintiffs’ Constitutional rights and caused the violation of Plaintiffs’

15 Constitutional rights and caused Plaintiffs to suffer damages, including significant physical and

16 emotional harm, in an amount to be determined at trial.

17

201. Plaintiffs are entitled to injunctive relief against Defendants’ conduct as described

18 herein because they are suffering and will continue to suffer substantial and immediate irreparable

19 injury from such conduct unless and until Defendants are restrained.

20

202. As described herein, Defendants’ malicious and/or oppressive acts and omissions

21 caused injury to Plaintiffs, thereby entitling Plaintiffs to punitive and exemplary damages

22 pursuant to NRS 42.005.

23

FIFTH CAUSE OF ACTION

24

(Negligence) (Against All Defendants)

25

203. Plaintiffs reallege and incorporate herein by reference each and every allegation

26 contained in paragraphs 1 through 202 of this Complaint.

27

204. At all times Defendants owed Plaintiffs the duty to act with due care in the

28 execution and enforcement of their duties to Plaintiffs.

COMPLAINT

65

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1

205. Defendants were negligent in performing their duties and failed, neglected, and/or

2 refused to properly and fully discharge their responsibilities, including but not limited to engaging

3 in the following acts or omissions:

4

(a) Failing to ensure that foster children receive necessary care and services for

5 their mental and emotional health, and receive visits from a caseworker no less often than once

6 per month, as required by N.A.C. §§ 432B.400, 432B.405 and 424.565;

7

(b) Failing to initiate a child welfare investigation promptly upon receipt of a report

8 of possible abuse or neglect of a child, as required by N.R.S. § 432B.260 and N.A.C.

9 §§ 432B.150 and 432B.155;

10

(c) Failing to ensure that Plaintiffs were free from physical and emotional abuse

11 while in a foster home, as required by N.A.C. § 424.530;

12

(d) Failing to provide information regarding each Plaintiff’s medical history and

13 behavior with prospective foster parents before placing each Plaintiff with those parents, as

14 required by N.R.S. § 424.038;

15

(e) Failing to physically inspect, monitor treatment and care at, and interview

16 children transferred to out of state facilities, as required by N.R.S. § 432.0177 and § 127.330; and

17

(f) Failing to inform caregivers of essential information as required by N.R.S. §

18 424.038, N.A.C. §§ 424.465, 424.810 and 424.805.

19

206. Additionally, Defendants breached their duties of due care by:

20

(a) Failing to adequately hire, investigate, train, supervise, and monitor their

21 employees to ensure that those employees act at all times in the public interest and in

22 conformance with the law;

23

(b) Failing to make, enforce, and at all times act in conformance with policies and

24 procedures that are lawful and that protect individual rights, including Plaintiffs’ rights; and

25

(c) Failing to refrain from making, enforcing, and/or tolerating the wrongful

26 policies and customs set forth herein.

27

28

COMPLAINT

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1

207. Defendants’ negligence proximately caused Plaintiffs to suffer damages, including

2 significant physical and emotional harm, in an amount to be determined at trial. The harm

3 Defendants caused through their negligence was reasonably foreseeable.

4

208. As described herein, Defendants’ malicious and/or oppressive acts and omissions

5 caused injury to Plaintiffs, thereby entitling Plaintiffs to punitive and exemplary damages

6 pursuant to NRS 42.005.

7

SIXTH CAUSE OF ACTION

8

(Violation of Supremacy Clause (N.R.S. 424.090)) (Against State Defendants Willden and Comeaux)

9

209. Plaintiffs reallege and incorporate herein by reference each and every allegation

10 contained in paragraphs 1 through 208 of this Complaint.

11

210. The United States Constitution gives Congress the power to enact the “supreme

12 Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the

13 Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, § 3,

14 cl. 2.

15

211. Through the Fostering Connections to Success and Increasing Adoptions Act, as

16 amended, Congress has mandated that relatives be exempted from licensing requirements for

17 foster care placements only on a case-by-case basis for specific children in foster care and only in

18 relation to non-safety standards. 42 U.S.C. § 671(a)(10).

19

212. In direct contravention of Congress’s mandate, the State of Nevada has enacted,

20 and the State Defendants enforce, N.R.S. 424.090. N.R.S. 424.090 creates a blanket exemption

21 from standards for foster family homes for all relative caregivers and is not restricted to

22 exemptions on only a case-by-case basis as Congress requires. N.R.S. 424.090 also exempts

23 relative caregivers from safety standards, notwithstanding the Congressional mandate that relative

24 caregivers receive exemptions only from non-safety standards.

25

213. An actual justiciable controversy exists between Plaintiffs on the one hand and the

26 State Defendants on the other. Plaintiffs contend that, pursuant to 42 U.S.C. § 671(a)(10) and the

27 Supremacy Clause, the State Defendants may not enforce N.R.S. 424.090, and may not thereby

28 authorize County Defendants to place Plaintiffs and other foster children with relative caregivers

COMPLAINT

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1 without ensuring that the relative caregivers either meet the same standards as other foster family

2 homes or are entitled to an exemption from a non-safety standard on a case-by-case basis. State

3 Defendants contend to the contrary.

4

214. The threat that this unconstitutional and preempted law will be enforced against

5 the Plaintiffs and others is an irreparable harm that makes injunctive relief appropriate. In

6 addition to the imminent enforcement of N.R.S. 424.090, its unconstitutionality itself reinforces

7 the irreparable harm Plaintiffs and other foster children face.

8

215. Plaintiffs are entitled to injunctive relief against enforcement of the challenged

9 Statute because they are suffering and will continue to suffer substantial and immediate

10 irreparable injury from enforcement of the challenged provision of N.R.S. 424.090. Plaintiffs

11 also seek a declaration that N.R.S. 424.090 is unconstitutional.

12

SEVENTH CAUSE OF ACTION

13

(Violation of Supremacy Clause (N.R.S. 432.0177) (Against State Defendants Willden and Comeaux)

14

216. Plaintiffs reallege and incorporate herein by reference each and every allegation

15 contained in paragraphs 1 through 215 of this Complaint.

16

217. The United States Constitution gives Congress the power to enact the “supreme

17 Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the

18 Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, § 3,

19 cl. 2.

20

218. Through the Safe and Timely Interstate Placement of Foster Children Act of 2006,

21 Congress has mandated that a caseworker visit each foster child placed outside the state in which

22 the home of the child’s parents is located no less frequently than once every six months. 42

23 U.S.C. § 675(5)(ii) (as amended by 109 P.L. 239).

24

219. In direct contravention of Congress’s mandate, the State of Nevada has enacted,

25 and the State Defendants enforce, N.R.S. 432.0177. N.R.S. 432.0177(2) mandates only annual

26 visits to foster children transferred to out of state facilities.

27

220. An actual justiciable controversy exists between Plaintiffs on the one hand and the

28 State Defendants on the other. Plaintiffs contend that, pursuant to 42 U.S.C. § 675(5)(A)(ii) and

COMPLAINT

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1 the Supremacy Clause, the State Defendants may not enforce 432.0177(2), and may not thereby

2 authorize County Defendants to place Plaintiffs and other foster children in out of state facilities

3 without ensuring that they are visited by caseworkers at least every six months, as mandated by

4 federal law. State Defendants contend to the contrary.

5

221. The threat that this unconstitutional and preempted law will be enforced against

6 the Plaintiffs and others is an irreparable harm that makes injunctive relief appropriate. In

7 addition to the imminent enforcement of N.R.S. 432.0177(2), its unconstitutionality itself

8 reinforces the irreparable harm Plaintiffs and other foster children face.

9

222. Plaintiffs are entitled to injunctive relief against enforcement of the challenged

10 Statute because they are suffering and will continue to suffer substantial and immediate

11 irreparable injury from enforcement of the challenged provision of N.R.S. 432.0177. Plaintiffs

12 also seek a declaration that N.R.S. 432.0177(2) governing the frequency of visitations is

13 unconstitutional.

14

EIGHTH CAUSE OF ACTION

15

(Federal Adoption Assistance Act and Child Welfare Act; Federal Child Abuse Prevention and Treatment and Adoption Reform)

16

(42 U.S.C. § 1983) (On Behalf of the Case Plan Class Representatives and Case Plan Class

17

Against Defendants)

18

223. Case Plan Class Representatives reallege and incorporate herein by reference each

19 and every allegation contained in paragraphs 1 through 222 of this Complaint.

20

224. The conduct of Defendants as alleged herein violated Case Plan Class

21 Representatives’ and class members’ statutory rights under the federal Adoption Assistance and

22 Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997,

23 42 U.S.C. § 671 et seq., and the regulations promulgated under the Act, 45 C.F.R. Parts 1355-

24 1357, including the right of each class member to have a written case plan pursuant to 42 U.S.C.

25 §§ 671(a)(16), 675(1), and 675(5)(D).

26

225. Each Defendant acted under color of state law as to the matters set forth herein.

27

28

COMPLAINT

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1

226. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

2 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

3 deprived Case Plan Class Representatives and the class members of particular statutory rights.

4

227. Further, Defendants have failed in their duties to properly hire, train, instruct,

5 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

6 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

7 failures directly resulted in the deprivation of Case Plan Class Representatives’ and the class

8 members’ statutory rights.

9

228. Case Plan Class Representatives and Case Plan Class members are entitled to

10 injunctive relief against Defendants’ conduct as described herein because they are suffering and

11 will continue to suffer substantial and immediate irreparable injury from such conduct unless and

12 until Defendants are restrained.

13

NINTH CAUSE OF ACTION

14

(Child Abuse Prevention and Treatment Act; Guardian ad litem) (42 U.S.C. § 1983)

15 (On Behalf of the Guardian ad Litem Class Representatives and Class Against Defendants)

16

229. Guardian ad Litem Class Representatives reallege and incorporate herein by

17 reference each and every allegation contained in paragraphs 1 through 228 of this Complaint.

18

230. The conduct of Defendants as alleged herein violated Guardian ad Litem Class

19 Representatives’ and class members’ federal statutory right under 42 U.S.C.

20 § 5106a(b)(2)(A)(xiii) to representation from a guardian ad litem in all proceedings before the

21 juvenile court.

22

231. Each Defendant acted under color of state law as to the matters set forth herein.

23

232. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

24 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

25 deprived Guardian ad Litem Class Representatives and class members of particular statutory

26 rights.

27

233. Further, Defendants have failed in their duties to properly hire, train, instruct,

28 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

COMPLAINT

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1 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

2 failures directly resulted in the deprivation of Guardian ad Litem Class Representatives’ and class

3 members’ statutory rights.

4

234. Guardian ad Litem Representatives and class members are entitled to injunctive

5 relief against Defendants’ conduct as described herein because they are suffering and will

6 continue to suffer substantial and immediate irreparable injury from such conduct unless and until

7 Defendants are restrained.

8

TENTH CAUSE OF ACTION

9

(Child Abuse Prevention and Treatment Act; Early Intervention Services) (42 U.S.C. § 1983)

10 (On Behalf of the Early Intervention Class Representative and Class Against Defendants)

11

235. The Early Intervention Class Plaintiff realleges and incorporates herein by

12 reference each and every allegation contained in paragraphs 1 through 234 of this Complaint.

13

236. The conduct of Defendants as alleged herein violated the Early Intervention Class

14 Representative’s and class members’ federal statutory right under 42 U.S.C.

15 § 5106a(b)(2)(A)(xxi) (CAPTA) and 20 U.S.C. § 1437(a)(6)(A) (IDEA) to early intervention

16 services.

17

237. Each Defendant acted under color of state law as to the matters set forth herein.

18

238. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

19 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

20 deprived the Early Intervention Class Representative and class members of particular statutory

21 rights.

22

239. Further, Defendants have failed in their duties to properly hire, train, instruct,

23 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

24 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

25 failures directly resulted in the deprivation of the Early Intervention Class Representative’s and

26 class members’ statutory rights.

27

240. The Early Intervention Class Representative and class members are entitled to

28 injunctive relief against Defendants’ conduct as described herein because they are suffering and

COMPLAINT

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1 will continue to suffer substantial and immediate irreparable injury from such conduct unless and

2 until Defendants are restrained.

3

ELEVENTH CAUSE OF ACTION

(Fourteenth Amendment to the United States Constitution,

4

Substantive Due Process: Duty to Protect)

(42 U.S.C. § 1983) 5 (On Behalf of the Early Intervention Class Representative and Class Against Defendants)

6

241. The Early Intervention Class Representative realleges and incorporates herein by

7 reference each and every allegation contained in paragraphs 1 through 240 of this Complaint.

8

242. Defendants’ conduct as alleged herein deprived the Early Intervention Class

9 Representative and class members of their clearly established and well-settled rights under the

10 Fourteenth Amendment to the United States Constitution, including their right to be free from

11 harm while involuntarily in government custody and their right to minimal care, including

12 medical care, treatment and services. Defendants’ conduct includes the failure to provide early

13 intervention services as required under federal and state law.

14

243. Each Defendant acted under color of state law as to the matters set forth herein.

15

244. Defendants’ acts and omissions alleged herein reflect a lack of professional

16 judgment and deliberate indifference in depriving the Early Intervention Class Representative and

17 class members of their Constitutional rights.

18

245. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

19 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

20 deprived the Early Intervention Class Representative and class members of particular

21 Constitutional rights.

22

246. Further, Defendants have failed in their duties to properly hire, train, instruct,

23 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

24 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

25 failures directly resulted in the deprivation of the Early Intervention Class Representative’s and

26 class members’ Constitutional rights.

27

247. Defendants’ acts and omissions complained of herein have caused the violation of

28 the Early Intervention Class Representative’s and class members’ Constitutional rights. The

COMPLAINT

72

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1 Early Intervention Class Representatives and class members are entitled to injunctive relief

2 against Defendants’ conduct as described herein because they are suffering and will continue to

3 suffer substantial and immediate irreparable injury from such conduct unless and until Defendants

4 are restrained.

5

TWELFTH CAUSE OF ACTION

(Substantive Due Process under the Nevada Constitution) 6 (On Behalf of the Early Intervention Class Representative and Class Against Defendants

7

248. The Early Intervention Class Representative realleges and incorporates herein by

8 reference each and every allegation contained in paragraphs 1 through 247 of this Complaint.

9

249. Defendants’ conduct as alleged herein deprived the Early Intervention Class

10 Representative and class members of their substantive due process rights conferred upon them by

11 Article I, § 8(5) of the Nevada Constitution, including their right to be free from harm while

12 involuntarily in government custody and their right to minimal care, including medical care,

13 treatment and services; Defendants’ conduct includes the failure to provide early intervention

14 services as required under state law.

15

250. Defendants’ acts and omissions alleged herein reflect a lack of professional

16 judgment and deliberate indifference in depriving the Early Intervention Class Representative and

17 class members of their Constitutional rights.

18

251. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

19 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

20 deprived the Early Intervention Class Representative and class members of particular

21 Constitutional rights.

22

252. Further, Defendants have failed in their duties to properly hire, train, instruct,

23 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

24 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

25 failures directly resulted in the deprivation of the Early Intervention Class Representative’s and

26 class members’ Constitutional rights.

27

253. Defendants’ acts and omissions complained of herein have caused the violation of

28 the Early Intervention Class Representative’s and class members’ Constitutional rights. The

COMPLAINT

73

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1 Early Intervention Class Representative and class members are entitled to injunctive relief against

2 Defendants’ conduct as described herein because they are suffering and will continue to suffer

3 substantial and immediate irreparable injury from such conduct unless and until Defendants are

4 restrained.

5

PRAYER FOR RELIEF

6

WHEREFORE, Plaintiffs pray for judgment against all Defendants, jointly and severally,

7 and for the Court to provide relief as follows:

8

1. Assert jurisdiction over this action;

9

2. Order that Plaintiffs may maintain Causes of Action Eight, Nine, Ten, Eleven, and

10 Twelve as class actions pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil

11 Procedure;

12

3. Compensatory damages for Causes of Action One through Five, in an amount to

13 be proven at trial;

14

4. Punitive damages against the individual defendants under 42 U.S.C. § 1983 and

15 Nevada law in an amount to be proven at trial;

16

5. All other damages, penalties, costs, interest, and attorneys’ fees as allowed by

17 42 U.S.C. §§ 1983 and 1988 and as otherwise allowed by federal or Nevada law;

18

6. Declare unconstitutional and unlawful Defendants’ violations of Plaintiffs’ and

19 Class Members’ rights;

20

7. Preliminarily and permanently enjoin Defendants from subjecting Plaintiffs and

21 Class Members to practices that violate their rights;

22

8. Costs of suit; and

23

7. Such further relief as the Court deems just, necessary, and proper to protect

24 Plaintiffs from further harm by Defendants.

25

26

27

28

COMPLAINT

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1

JURY DEMAND

2

Plaintiffs hereby demand trial by jury on any and all issues triable by a jury.

3

4

5

Dated: April 13, 2010

By: /s/ Lori A. Schechter

6

Lori A. Schechter

Co-Attorneys for Plaintiffs

7

8

Lori A. Schechter Mary F. Hansbury

9

Jeffrey K. Rosenberg MORRISON & FOERSTER LLP

10

Bruno Wolfenzon

11

Gregory M. Schulman WOLFENZON SCHULMAN & ROLLE

12

William Grimm

13

Leecia Welch Bryn Martyna

14

Camille Roberts NATIONAL CENTER FOR YOUTH LAW

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT

75

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 HENRY A.; C HARLES B.; C HARLOTTE
B.; L EO C.; V ICTOR C.; D ELIA D.; MAIZY D.; J ONATHAN D.; L INDA E.; CHRISTINE F.; O LIVIA G.; S HELDON H.; M ASON I., individually and on behalf of others so situated,
Plaintiffs-Appellants,

v.

MICHAEL W ILLDEN, Director,



Nevada Department of Health and

Human Services; D IANE C OMEAUX,

Administrator, Nevada Division of

Child and Family Services;

VIRGINIA V ALENTINE, Clark County

Manager; C LARK C OUNTY; T OM

MORTON, Director of Clark County

Department of Family Services,

 Defendants-Appellees.

No. 10-17680
D.C. No. 2:10-cv-00528-
RCJ-PAL
OPINION

Appeal from the United States District Court for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted February 13, 2012—San Francisco, California
Filed May 4, 2012
Before: Procter Hug, Jr., Betty B. Fletcher, and Richard A. Paez, Circuit Judges.
Opinion by Judge B. Fletcher
4745

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HENRY A. v. W ILLDEN

4749

COUNSEL
Brian R. Matsui, Morrison & Foerster LLP, Washington, DC (argued); Lori A. Schechter, Dorothy L. Fernandez, Jeffrey K. Rosenberg, Morrison & Foerster LLP, San Francisco, California; William Grimm, Leecia Welch, Bryn Martyna, National Center for Youth Law, Oakland, California; Bruno Wolfen-

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4750

HENRY A. v. W ILLDEN

zon, Gregory M. Schulman, Wolfenzon Schulman & Rolle, Las Vegas, Nevada, for plaintiffs-appellants Henry A., Charles B., Charlotte B., Leo C., Victor C., Delia D., Maizy D., Jonathan D., Linda E., Christine F., Olivia G., Sheldon H., and Mason I.

Margaret G. Foley, Buckley King LPA, Las Vegas, Nevada, for defendants-appellees Virginia Valentine, Tom Morton, and Clark County.

Linda C. Anderson, Chief Deputy Attorney General, Las Vegas, Nevada, for defendants-appellees Michael Willden and Diane Comeaux.

OPINION
B. FLETCHER, Circuit Judge:
Plaintiff-appellants (“Plaintiffs”), a group of foster children in Clark County, Nevada, appeal the dismissal of their complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). 1 For the reasons that follow, we reverse the dismissal of Counts One, Two, Three, Eight, and Eleven; affirm the dismissal of counts Nine and Ten; and remand for further proceedings.
1At oral argument, counsel for Defendants suggested that some of the named plaintiffs are no longer in government custody but provided no further information. Without knowing which plaintiffs are no longer in custody and what claims for injunctive relief relate to them, there is simply no way for us to determine whether some claims for injunctive relief are now moot. On remand, any mootness arguments should be brought to the attention of the district court. We note, however, that Plaintiffs’ damages claims are not moot in any event. See Bernhardt v. Cnty. of Los Angeles , 279 F.3d 862, 872 (9th Cir. 2002) (noting that a live claim for even nominal damages will prevent dismissal for mootness).

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HENRY A. v. W ILLDEN I. BACKGROUND

4751

Plaintiffs brought this action under 42 U.S.C. §

1983

against State and County officials, alleging violations of their

substantive due process rights under the Fourteenth Amend-

ment and violations of their federal statutory rights under the

Adoption Assistance and Child Welfare Act (CWA), 42

U.S.C. § 670 et seq. ; the Child Abuse Prevention and Treat-

ment Act (CAPTA), 42 U.S.C. § 5101 et seq. ; and the Indi-

viduals with Disabilities Education Act (IDEA), 20 U.S.C.

§ 1431 et seq .2 Plaintiffs’ action consists of individual claims

for damages and injunctive relief and class claims for injunc-

tive relief.

The defendants ( “Defendants”) named in the action are Clark County; Virginia Valentine, the Clark County Manager; Tom Morton, the Director of Clark County’s Department of Family Services; Diane Comeaux, the Administrator of Nevada’s Division of Child and Family Services; and Michael Willden, the Director of Nevada’s Department of Health and Human Services. The complaint also lists as “John Doe ” defendants ten caseworkers and ten supervisors for Clark County’s Department of Family Services. According to the complaint, the State of Nevada was responsible for providing foster care services until October 2004, when that responsibility was transferred to Clark County. The State retains responsibility for supervision and oversight of Clark County’s foster care system, including the County’s compliance with state and federal law. 3

The complaint alleges that Clark County’s foster care sys-

2Plaintiffs also raised claims under the supremacy clause, which they voluntarily dismissed, and several pendent state law claims, which the district court dismissed pursuant to 28 U.S.C. § 1367(c).
3For the purposes of reviewing a Rule 12(b)(6) dismissal, we accept as true all well-pleaded facts in the complaint. ASW v. Oregon, 424 F.3d 970, 974 (9th Cir. 2005).

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tem is plagued by systemic failures that result in violations of the rights guaranteed to foster children by federal statutes and the Due Process clause of the Fourteenth Amendment. The specific allegations include the failure to provide caseworkers with even basic training; the failure to provide foster children and their foster parents with case plans and medical records; the failure to provide foster children with necessary medical care; the failure to provide foster children with guardians ad litem; the failure to investigate reports of abuse and neglect in foster homes; the failure of Clark County to incorporate state and federal requirements into its child welfare policies; and the failure of the State to ensure that Clark County is operating its foster care system in compliance with federal law.

The complaint’s allegations also describe how these systemic failures have injured the named plaintiffs. For the sake of brevity, we summarize only a few examples.

The alleged failure to provide adequate medical care has had serious consequences for several of the named plaintiffs. Henry A. was forced to change treatment providers more than ten times, but his medical records were not transferred properly. As a result, Henry was given a dangerous combination of psychotropic medications and was hospitalized in an intensive care unit for two weeks, on the brink of organ failure. Upon release from the hospital, Henry was administered the same medications again and returned to the ICU.

When Jonathan D. became seriously ill with an impacted colon, the County failed to approve a colonoscopy or other treatment measures, despite repeated requests from Jonathan’s doctor and his foster parent. Without the County’s consent, Jonathan’s doctor was forced to wait until Jonathan’s condition became life-threatening, justifying emergency surgery without the County’s permission. By that point, Jonathan had been in severe pain for months.

Other plaintiffs were injured by the failure to provide foster children and their foster parents with the records and docu-

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mentation required by federal law. For example, when Olivia G. was placed with a foster parent after being discharged from a psychiatric facility, her foster parent did not receive the authorization to fill her prescriptions, forcing Olivia to go through a painful withdrawal.

Finally, some plaintiffs were left in foster homes without any intervention despite their reports of abuse and neglect. According to the complaint, Defendants failed to investigate Linda E.’s reports of physical abuse in her foster home; placed Leo C. and Victor C. in a foster home that had a known history of neglect; and placed Mason I. in an out-ofstate facility despite numerous reports of patient abuse there and Mason’s own complaints of sexual abuse.

II. JURISDICTION & STANDARD OF REVIEW

These factual allegations, among others, form the basis for the parts of the complaint that are at issue in this appeal: Counts One, Two, and Eleven, based on the Fourteenth Amendment to the United States Constitution; Counts Three and Eight, based on the CWA; Count Nine, based on CAPTA; and Count Ten, based on CAPTA and the IDEA. 4 The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a). The district court dismissed these claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and entered final judgment in favor of Defendants on October 27, 2010. Plaintiffs filed a timely notice of appeal, and we have jurisdiction under 28 U.S.C. § 1291.

We discuss each claim in detail below. We review de novo the district court’s decision to grant Defendants’ motion to dismiss under Rule 12(b)(6). ASW, 424 F.3d at 974. “We accept as true all well pleaded facts in the complaint and construe them in the light most favorable to the nonmoving

4The dismissal of the remaining counts has not been challenged on appeal. See supra note 2.

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party.” Id. We also review whether the district court abused its discretion by dismissing the complaint without granting leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

III. DISCUSSION

A. Substantive Due Process Claims

Generally, “the Fourteenth Amendment’s Due Process Clause . . . does not confer any affirmative right to governmental aid” and “typically does not impose a duty on the state to protect individuals from third parties. ” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011) (citations and alterations omitted). There are, however, two exceptions to this rule. First, there is the “special relationship ” exception — when a custodial relationship exists between the plaintiff and the State such that the State assumes some responsibility for the plaintiff ’s safety and well-being. Id. at 971 (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs. , 489 U.S. 189, 198-202 (1989)). Second, there is the “state-created danger exception ” — when “the state affirmatively places the plaintiff in danger by acting with ‘deliberate indifference’ to a ‘known and obvious danger[.]’ ” Id. at 971-72 (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). “If either exception applies, a state’s omission or failure to protect may give rise to a § 1983 claim.” Id. at 972.

Plaintiffs here have raised claims under both exceptions, arguing (1) that Defendants have a custodial relationship with foster children and have failed to provide adequate safety and medical care, and (2) that Defendants have affirmatively placed some of the children in danger by putting them in foster care placements that were known to be abusive.

1. Special Relationship Exception (Counts One and Eleven)

Counts One and Eleven of the complaint allege that Defendants have violated Plaintiffs’ “right to be free from harm

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while involuntarily in government custody and their right to medical care, treatment, and services.” Count One seeks damages and injunctive relief for the individual plaintiffs and Count Eleven seeks injunctive relief on behalf of a class of foster children who have failed to receive early intervention services that they are entitled to under federal law.

Both counts proceed to provide more detailed factual allegations. Count One provides a list of the conduct that allegedly has violated Plaintiffs’ rights to adequate safety and medical care:

(a) failure to adequately provide medical, dental, and mental health services, including but not limited to standardized periodic health screenings and treatments, medical services for maximum reduction of physical or mental disability, and monitoring of, administration, and use of psychotropic drugs by foster children;

(b) failure to inform caregivers of essential information;

(c) failure to conduct legally required visits with foster children;

(d) failure to adequately respond to reports of abuse;

(e) failure to ensure adequacy of relative caregiver placements; and

(f) failure to adequately inspect out of state facilities and monitor treatment and services provided to foster children placed in out of state facilities.

Count One also incorporates the detailed examples of how Defendants failed to provide adequate medical care and safety to the individual plaintiffs, such as the failure to approve Jon-

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athan’s necessary medical treatment despite knowledge that he was seriously ill; the failure to provide Olivia’s foster parents with the information and authorization to fill her prescriptions; and the failure to respond to reports of abuse and neglect at Linda and Mason’s foster care placements. Count Eleven alleges that Defendants’ routine failure to refer eligible children to early intervention services amounts to a denial of adequate medical care.

The district court dismissed Counts One and Eleven after concluding that Defendants were entitled to qualified immunity because Plaintiffs failed to allege a violation of a clearly established constitutional right. The district court explained that while the State must “provide individuals in state custody with their basic human needs,” the specific examples of medical care and services listed by Plaintiffs were not clearly established constitutional rights.

[1] This conclusion is plainly wrong with respect to Plaintiffs’ damages claim against Clark County and Plaintiffs’ claims for injunctive relief. “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct. ” Ashcroft v. al-Kidd , 131 S. Ct. 2074, 2080 (2011) (emphasis added). Qualified immunity is not available as a defense in § 1983 cases “against a municipality ” or “against individuals where injunctive relief is sought instead of or in addition to damages.” Pearson v. Callahan, 555 U.S. 223, 242 (2009). Defendants do not dispute the law on this point. We therefore reverse the district court’s dismissal of Count Eleven, which seeks only injunctive relief, and reverse the dismissal of Count One with respect to the claims for injunctive relief and the damages claim against Clark County. Qualified immunity simply does not apply to these claims. 5

5For the first time on appeal, the County defendants argue that dismissal against Clark County is proper because Plaintiffs have failed to suffi-

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Qualified immunity is, however, a possible defense to the claims for damages against the individual defendants in Count One. Even if a complaint sufficiently alleges that a government official violated a federal constitutional or statutory right, that official is entitled to qualified immunity from money damages if the right was not “clearly established ” at the time of the challenged conduct. See al-Kidd, 131 S. Ct. at 2080. “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right. ” Id. at 2083 (internal quotation marks and alterations omitted). “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal citations omitted).

[2] In this case, the district court’s qualified immunity analysis was too narrow. The district court looked at Plaintiffs’ detailed factual allegations and essentially determined that Defendants were entitled to qualified immunity because the “very action[s] in question” had not “previously been held

ciently plead that the violations of their constitutional rights were pursuant to a policy, practice, or custom as required by Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Although ordinarily we may consider affirming dismissal on any ground supported by the record, Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011), that discretion “extends to issues raised in a manner providing the district court an opportunity to rule on it.” Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 974 (9th Cir. 2010). In any event, we note that the complaint does make specific factual allegations regarding the County’s policies and customs, including a custom of failing to provide even basic training to caseworkers before assigning them caseloads; County policies that do not incorporate State and federal requirements; and a custom of failing to share necessary medical information between State and County officials. Compare Dougherty, 654 F.3d at 900-01.

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unlawful.” See id. Instead, the district court should have (1) determined the contours of a foster child’s clearly established rights at the time of the challenged conduct under the “special relationship” doctrine of substantive due process, and (2) examined whether a reasonable official would have understood that the specific conduct alleged by Plaintiffs violated those rights. See al-Kidd, 131 S. Ct. at 2083. Using the correct analysis, we conclude that Plaintiffs have alleged violations of their clearly established constitutional rights, and the individual defendants are not entitled to qualified immunity at this stage of the litigation.

[3] It is clearly established that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general wellbeing.” DeShaney, 489 U.S. at 199-200. When the State asserts this type of custody over a person “and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by . . . the Due Process clause. ” Id. at 200.

[4] It is also clearly established that this special relationship doctrine applies to children in foster care. We recently clarified that it has been clearly established since at least 1996 that foster children have “a federal constitutional right to state protection” while they remain in the care of the State. Tamas v. Dep’t of Soc. & Health Servs. , 630 F.3d 833, 846-47 (9th Cir. 2010). Our circuit recognized the State’s duty to protect foster children as early as 1992, when we observed that “[o]nce the state assumes wardship of a child, the state owes the child, as part of that person’s protected liberty interest, reasonable safety and minimally adequate care and treatment appropriate to the age and circumstances of the child. ” Lipscomb v. Simmons , 962 F.2d 1374, 1379 (9th Cir. 1992).

[5] All of the conduct challenged here occurred after 1996, so there is no question that a foster child’s right to the basic

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needs identified in DeShaney — food, clothing, shelter, medical care, and reasonable safety — was clearly established “at the time of the challenged conduct. ” See al-Kidd , 131 S. Ct. at 2080. We can further clarify the contours of this right by looking to our recent decision in Tamas.

First, Tamas itself held that this right encompasses “a foster child’s liberty interest in social worker supervision and protection from harm inflicted by a foster parent. ” 630 F.3d at 842. Tamas also clarified that the proper standard for determining whether a foster child’s due process rights have been violated is “deliberate indifference, ” the same standard applied to substantive due process claims by prisoners. Id. at 844-45. This standard “requires an objective risk of harm and a subjective awareness of that harm. ” Id. at 844 (quoting Conn v. City of Reno , 591 F.3d 1081, 1095 (9th Cir. 2010)). To be more specific, it requires (1) “a showing of an objectively substantial risk of harm ”; and (2) “a showing that the officials were subjectively aware of facts from which an inference could be drawn that a substantial risk of serious harm existed” and (a) “the official actually drew that inference ” or (b) “that a reasonable official would have been compelled to draw that inference.” Id. at 845. “[T]he subjective component may be inferred from the fact that the risk of harm is obvious.” Id. (internal quotation marks and citation omitted).

[6] Second, we can look to the clearly established law from other circuits cited by the Tamas court. Those cases demonstrate, for example, that a foster child’s due process rights are violated when a state official exhibits deliberate indifference to a child’s serious medical needs, Norfleet v. Ark. Dep’t of Human Servs. , 989 F.2d 289, 291 (8th Cir. 1993); to suspected physical abuse in a foster home, Hernandez v. Tex. Dep’t of Protective and Regulatory Servs. , 380 F.3d 872, 881 (5th Cir. 2004); and to suspected sexual abuse in a foster home, J.H. v. Johnson , 346 F.3d 788, 791 (7th Cir. 2003). Because the substantive due process rights of foster children are analogous to those of prisoners, see Tamas , 630 F.3d at

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844-45, we can also look to our prisoner cases to further define what constitutes a “serious medical need.” Those cases, for example, have held that ignoring the instructions of a treating physician, or failing to provide a prisoner with necessary psychotropic medication, can amount to deliberate indifference to serious medical needs. Wakefield v. Thompson, 177 F.3d 1160, 1164-65 (9th Cir. 1999).

[7] Having examined the relevant contours of a foster child’s clearly established due process rights to adequate safety and medical care, we conclude that a reasonable official would have understood that at least some of the specific conduct alleged by Plaintiffs violated those rights. Count One of the complaint alleges generally that Defendants exhibited deliberate indifference and violated the children’s rights to “be free from harm while involuntarily in government custody and their right to medical care ”; alleges more specifically that Defendants failed to provide adequate medical care, monitor the administration of medication, or respond to reports of abuse; and provides detailed factual allegations relating to the individual plaintiffs. A reasonable official would have understood that failing to authorize Jonathan’s medical treatment despite knowledge of his serious illness and repeated requests from his treating physician amounted to deliberate indifference to a serious medical need. A reasonable official would also have understood that failing to respond to Linda’s reports of physical abuse in her foster home or the numerous reports of abuse in Mason’s out-of-state placement would constitute deliberate indifference to the children’s right to safety in their foster care placements.

[8] It may be that Plaintiffs cannot prove these allegations, or that they can only prove some of their less serious allegations, such as the failure to provide standardized periodic health screenings. If that turns out to be the case, the individual defendants can again raise the defense of qualified immunity at a later stage in the proceedings. See Ortiz v. Jordan , 131 S. Ct. 884, 889 (2011). But at this stage, when we accept

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as true all well pleaded facts in the complaint, Plaintiffs have alleged violations of their clearly established constitutional rights, and qualified immunity is not appropriate. We reverse the district court’s dismissal of the damages claims in Count One.

2. State-Created Danger Exception (Count Two)

[9] The State can also be held liable under the Fourteenth Amendment’s Due Process clause for failing to protect an individual from harm by third parties “where the state action ‘affirmatively place[s] the plaintiff in a position of danger,’ that is, where state action creates or exposes an individual to a danger which he or she would not have otherwise faced. ” Kennedy v. City of Ridgefield , 439 F.3d 1055, 1061 (9th Cir. 2006) (quoting DeShaney, 489 U.S. at 197). To determine whether an official affirmatively placed an individual in danger, we ask: (1) whether any affirmative actions of the official placed the individual in danger he otherwise would not have faced; (2) whether the danger was known or obvious; and (3) whether the officer acted with deliberate indifference to that danger. Id. at 1062-64.

In Count Two of their complaint, Plaintiffs allege that Defendants

act[ed] with deliberate indifference to known or obvious danger in removing Plaintiffs from their homes and placing them in the care of foster parents, including in the care of relative caregivers and out of state facilities and homes, who were unfit to care for them and posed an imminent risk of harm to Plaintiffs’ safety.

The complaint also contains more detailed factual allegations, including that Defendants placed Leo and Victor in a foster home that had a known history of neglect; that Defendants required Mason to have unsupervised visits with his grandpar-

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ents despite having knowledge that they had abused him; and that Defendants placed Mason in an out-of-state facility that had a known history of chronic neglect and abuse.

The district court dismissed Count Two for failure to state a claim under the state-created danger doctrine, and ruled in the alternative that Defendants were entitled to qualified immunity because Plaintiffs’ rights under the state-created danger doctrine were not clearly established. Citing repeatedly to the dissent from denial of rehearing en banc in Kennedy v. City of Ridgefield , rather than the opinion itself, the district court reasoned that the complaint did not sufficiently allege that Defendants “did more than simply expose the plaintiff to a danger that already existed ” because Defendants merely “place[d] foster children into an already broken system.”

[10] The district court’s reasoning was erroneous. The test that the district court took from the dissent from denial in Kennedy — that the official must do more than “expose the plaintiff to a danger that already existed ” — is not the law of this circuit. Compare 440 F.3d 1091, 1093 (9th Cir. 2006) (Tallman, J., dissenting from denial of rehearing en banc) with 439 F.3d at 1061 (opinion of the court). Such a test would render the state-created danger doctrine meaningless. As discussed above, this doctrine provides an exception to the general rule that the Fourteenth Amendment does not impose a duty on the State to protect individuals from third parties. Thus, by its very nature, the doctrine only applies in situations where the plaintiff was directly harmed by a third party — a danger that, in every case, could be said to have “already existed.” The “dangers” examined in our previous cases — such as a vengeful, unstable neighbor, see Kennedy, 439 F.3d 1055; a violent, predatory inmate, see L.W. , 92 F.3d 894; or a rapist prowling a high-crime area late at night, see Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989) — already “existed” before the plaintiffs were harmed by them. But the point of the state-created danger doctrine is that the affirmative actions

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of a state official “create[d] or expose[d] an individual to a danger which he or she would not have otherwise faced. ” Kennedy, 439 F.3d at 1061 (opinion of the court) (emphasis added).

[11] That is precisely what Plaintiffs have alleged here. They allege that Defendants knew of the danger of abuse and neglect that Plaintiffs faced in certain foster homes and acted with deliberate indifference by exposing Plaintiffs to that danger anyway. This is sufficient to state a claim under the controlling opinion in Kennedy. The fact that the dangerous foster homes “already existed” is irrelevant.

[12] Moreover, we have already held that the state-created danger doctrine applies to placing a foster child in a home where there is a known danger of abuse. Tamas, 630 F.3d at 843-44. As we explained in Tamas, the State’s approval of a foster care placement despite reports of suspected abuse creates a danger of abuse that the foster child would not otherwise have faced. Id. We therefore reverse the district court’s dismissal of Count Two for failure to state a claim under the state-created danger doctrine. Because Tamas also held that these rights were clearly established, we reject the district court’s conclusion that qualified immunity provides an alternative ground for dismissal. See id. at 837-38, 846 (holding that the due process rights of foster children are clearly established and applying the state-created danger doctrine to foster care licenses issued in 1997 and 1999).

3. Liability of the State Officials

The State defendants also argue that, with respect to them,
the complaint fails to state a claim for substantive due process
violations because it does not adequately allege that the State
officials had a custodial relationship with the foster children or that they are liable as supervisors. 6 Although the district

6The County defendants did not raise this argument in their motion to dismiss and have not raised it before this court.

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court did not address this argument, the State raised it below, and we may affirm the district court’s dismissal on any ground supported by the record. Dougherty, 654 F.3d at 900.

[13] First, the State defendants argue that they cannot be held liable under the “special relationship” exception in Count One because the plaintiff foster children are technically in the custody of Clark County. This argument is not persuasive. The complaint alleges that defendant Willden has “responsibility for ensuring the provision of child welfare services throughout the state ” and that defendant Comeaux leads the agency which “must evaluate all child welfare services provided throughout the State and take corrective action against any agency providing child welfare services which is not complying with any applicable laws, regulations, or policies. ” Furthermore, the complaint also alleges that at least two plaintiffs, Henry and Linda, were in the custody of the State before the foster care system was transferred to Clark County. This is sufficient to plead a custodial relationship between the foster children and the State defendants.

Second, the State defendants argue that plaintiffs have failed to state a claim against them for supervisory liability. We recently reaffirmed that a plaintiff may state a claim under § 1983 against a supervisor for deliberate indifference. Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011). “A defendant may be held liable as a supervisor under § 1983 if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.” Id. at 1207 (internal quotation marks and citation omitted). “A supervisor can be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others. ” Id. at 1208 (quoting Watkins v. City of Oakland , 145 F.3d 1087, 1093 (9th Cir. 1998)). In order to adequately plead such a

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claim, “allegations in a complaint . . . may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. ” Id. at 1216. These factual allegations “must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. ” Id.

After thoroughly examining the plaintiffs’ complaint, we agree that there are few specific allegations against the State defendants. Most of the allegations in the complaint simply reference “Defendants,” without specifying whether the conduct at issue was committed by the named State officials, County officials, or the “John Doe” supervisors or caseworkers. For many of the detailed factual allegations, such as the failure to respond to a particular report of abuse or authorize a particular medical procedure, it is implausible to suggest that Willden or Comeaux personally committed the alleged violation.

The allegations that do expressly reference the State defendants are too general to state a claim for supervisory liability. In Starr v. Baca, the plaintiff alleged that Sheriff Baca himself had been given clear notice by the Department of Justice of the specific unconstitutional conditions in the jails; that the Sheriff received numerous reports documenting inmate violence caused by the unconstitutional conduct of his deputies; and that the Sheriff ultimately acquiesced in these constitutional violations. See 652 F.3d at 1208-10.

In contrast, the allegations here claim that the agencies directed by Willden and Comeaux have oversight responsibility for Clark County’s foster care system and are required to ensure that Clark County is complying with state and federal law. The complaint also alleges that all of the defendants had knowledge of independent reports documenting the systemic failures of foster care in Nevada. But it does not allege that

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Willden or Comeaux had any personal knowledge of the specific constitutional violations that led to Plaintiffs’ injuries, or that they had any direct responsibility to train or supervise the caseworkers employed by Clark County.

The allegations that come closest to pleading personal involvement by Willden and Comeaux concern the failure to provide medical records to the children and their foster parents in order to facilitate their medical care. Paragraphs 27 and 28 allege that Willden is responsible for “ensuring county compliance with all federal mandates of the Medicaid program” and that Comeaux is “responsible for administering the Medicaid program with respect to children in the child welfare system.” Paragraph 42 alleges that “State Defendants . . . are responsible for the management and day-to-day operation of Nevada’s Children’s Mental Health Services program. ” Finally, Paragraph 59 alleges that the State defendants fail to share the medical records from the State’s Medicaid database and the Mental Health Services program with the County defendants, which in turn prevents County employees from sharing that information with foster parents.

When read together, these allegations suggest that there may be a causal connection between the State defendants’ failure to share these medical records and the injuries suffered by plaintiffs such as Henry, who received a dangerous combination of prescription drugs because his medical records were not given to his treatment providers.

But even if the complaint in its current form fails to state a claim against the State officials for substantive due process violations, the district court abused its discretion by failing to give the plaintiffs an opportunity to amend their complaint. “[W]e have repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts. ” Lopez, 203 F.3d at 1130 (internal quotation marks omitted). Here, Plaintiffs

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offered to amend their complaint if necessary in their response to the motion to dismiss, but the district court did not grant leave to amend and did not provide any reasons for its decision.

[14] As we have already concluded, the complaint adequately pleads violations of Plaintiffs’ clearly established substantive due process rights, and it plausibly suggests an entitlement to relief from at least some of the defendants. Where the complaint falls short in some places is tying its factual allegations to particular defendants. But this type of deficiency can likely be cured by amending the complaint, and there is certainly no evidence to suggest that allowing amendment would be futile.

[15] Therefore, on remand, Plaintiffs should be given an opportunity to amend their substantive due process claims. We note that in any future proceedings in the district court, each defendant’s liability must be analyzed individually using the proper standard, whether that individual is a line-level caseworker, a supervisory official, or a municipality. See Tamas, 630 F.3d at 847.

B. Federal Statutory Claims

[16] Section 1983 can also be used to enforce federal statutes. Blessing v. Freestone , 520 U.S. 329, 340 (1997). For a statutory provision to be privately enforceable, however, it must create an individual right. See id. (“In order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law.”).

Blessing established a three-prong test for determining whether a federal statute creates an individual right. “The Blessing test requires: 1) that Congress intended the statutory provision to benefit the plaintiff; 2) that the asserted right is not so ‘vague and amorphous’ that its enforcement would

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strain judicial competence; and 3) that the provision couch the asserted right in mandatory rather than precatory terms. ” Watson v. Weeks , 436 F.3d 1152, 1158 (9th Cir. 2006) (citing Blessing, 520 U.S. at 340-41). In Gonzaga University v. Doe , the Supreme Court clarified that the first prong of the Blessing test is meant to determine whether Congress “unambiguously conferred” a federal right. 536 U.S. 273, 283 (2002). This requires “rights-creating language, ” meaning that the text of the statute “must be phrased in terms of the persons benefited.” Id. at 284, 284 n.3 (quotation marks and citations omitted).

If a statutory provision satisfies the Blessing test, it is presumptively enforceable through § 1983. Watson, 436 F.3d at 1158 (citing Blessing, 520 U.S. at 341). This presumption is rebutted “if Congress expressly or impliedly foreclosed enforcement under section 1983. ” Id. “[A]n implied foreclosure occurs if Congress created ‘a comprehensive enforcement scheme that is incompatible with individual enforcement.’ ” Id. at 1158-59 (quoting Blessing, 520 U.S. at 341).

Here, the plaintiffs seek to enforce four sets of federal statutory provisions through § 1983: the case plan provisions of the CWA, the records provisions of the CWA, the guardian ad litem provision of CAPTA, and the early intervention services provisions of CAPTA and the IDEA. All of these are spending statutes; the State of Nevada has agreed to administer its foster care system in accordance with these federal laws in return for financial assistance from the federal government. The district court dismissed these claims on the basis that none of the provisions are privately enforceable. 7

7The district court’s order occasionally refers to these claims as “statutory, constitutional violations” and explains that Defendants are entitled to qualified immunity because it is not “clearly established” that the statutory provisions at issue are privately enforceable. These statements are incorrect. First, enforcement through § 1983 does not transform a statutory

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1. CWA: Case Plan Provisions (Count Eight)

Count Eight of the complaint seeks injunctive relief for a class of children who have not received a case plan as required by the CWA. The case plan provisions of the CWA are codified at 42 U.S.C. §§ 671(a)(16) and 675(1). Section 671(a)(16) states that:

In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which . . . provides for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan . . . .

Section 675(1) provides a detailed definition of what a case plan must include, such as the child’s health and educational records, a description of the child’s permanency plan, and a plan for ensuring the child’s educational stability.

The district court concluded that these provisions do not contain sufficient “rights-creating language ” to satisfy the first prong of the Blessing test. We disagree and join the majority of federal courts in holding that the case plan provisions are enforceable through § 1983. See, e.g. , L.J. v. Massinga, 838 F.2d 118, 123 (4th Cir. 1988); Lynch v. Dukakis , 719 F.2d 504, 512 (1st Cir. 1983); Sam M. v. Chafee , 800 F. Supp. 2d 363, 386-88 (D.R.I. 2011); Connor B. v. Patrick , 771 F. Supp. 2d 142, 170-72 (D. Mass. 2011); Kenny A. v.

right into a constitutional right. Section 1983 provides for enforcement of rights guaranteed by federal statutes alone. See Blessing, 520 U.S. at 340. Second, whether a federal statute is privately enforceable and whether an official is entitled to qualified immunity for a violation of that statute are two separate inquiries. There need not be “clearly established law ” showing that a statute is privately enforceable. See, e.g. , ASW, 424 F.3d 970 (considering as a matter of first impression whether §§ 671(a)(12) and 673(a)(3) of the CWA are privately enforceable).

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Perdue, 218 F.R.D. 277, 292-93 (N.D. Ga. 2003); Brian A. v. Sundquist, 149 F. Supp. 2d 941, 946-49 (M.D. Tenn. 2000); Jeanine B. v. Thompson , 877 F. Supp. 1268, 1283-84 (E.D. Wis. 1995); B.H. v. Johnson , 715 F. Supp. 1387, 1402 (N.D. Ill. 1989). But see Carson P. v. Heineman , 240 F.R.D. 456, 544 (D. Neb. 2007); Olivia Y. v. Barbour , 351 F. Supp. 2d 543, 562 (S.D. Miss. 2004); Charlie H. v. Whitman , 83 F. Supp. 2d 476, 489-90 (D.N.J. 2000).

[17] Section 671(a)(16) unambiguously requires the State to provide for the development of a case plan “for each child.” As the Massachusetts district court wrote recently in Connor B., rights-creating language “is readily discernible ” in § 671(a)(16) because it “expresses a clear mandate by using the term ‘shall’ ” and “discusses how the state must distribute benefits to each child.” 771 F. Supp. 2d at 171. “Plainly, these directives are both couched in mandatory terms and are unmistakably focused on the benefitted class, i.e., foster children.” Id.

Our court’s precedent also supports this conclusion. We have concluded in two different cases that other provisions of the CWA contain rights-creating language. 8 In ASW, we held that §§ 671(a)(1) and 673(a)(3) create a right to individualized adoption assistance payment determinations and that § 671(a)(12) creates a right to a hearing when adoption assistance payments are reduced. 424 F.3d at 975-79. In California State Foster Parent Association v. Wagner , we held that §§ 672(a) and 675(4)(A) create a right to foster care maintenance payments that cover certain enumerated costs. 624 F.3d 974, 978-82 (9th Cir. 2010). Both of these decisions recognized the importance of language phrasing the benefit in terms of “each child,” see id. at 979-81, or “each family,” see ASW, 424 F.3d at 976 (citing Rabin v. Wilson-Coker , 362 F.3d 190, 201 (2d Cir. 2004)). As in those cases, the reference

8These decisions are not dispositive because we must examine each provision separately rather than the statute as a whole. ASW, 424 F.3d at 977.

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here to a case plan “for each child ” focuses squarely on the protected individual, rather than an aggregate interest or a regulated entity. See Wagner , 624 F.3d at 980 (citing Gonzaga, 536 U.S. at 288-89).

Defendants’ argument to the contrary is not persuasive.

Defendants maintain that “Congress only required the State to

have a plan to ‘develop’ a case plan for each child. ” But as

we recognized in ASW, Congress has directed that statutory

provisions within the Social Security Act should not

“be

deemed unenforceable because of its inclusion in a section . . .

requiring a State plan or specifying the required contents of

a State plan.” 42 U.S.C. § 1320a-2; ASW, 424 F.3d at 977 n.119.

We conclude that the first Blessing factor weighs in favor of

an enforceable right.

[18] The second and third Blessing factors also show that the case plan provisions are presumptively enforceable. The requirement that each child have a case plan is not “so vague and amorphous that its enforcement would strain judicial competence.” Watson, 436 F.3d at 1158 (internal quotation marks omitted). The definition provided in § 675(1) describes exactly what a case plan must include; as in ASW, “there is no ambiguity as to what [the state is] required to do[.] ” 424 F.3d at 976. In Wagner, we held that another detailed definition in § 675, which provided an itemized list of what expenses “foster care maintenance payments” must cover, satisfied the second Blessing prong. 624 F.3d at 981. We con-

9This statute is known as the “Suter fix.” In Suter v. Artist M. , 503 U.S. 347 (1992), the Supreme Court held that § 671(a)(15) of the CWA, which requires a State to make “reasonable efforts” to reunify families, is not privately enforceable. The Court relied in part on the placement of that provision in a part of the statute detailing the requirements of a State plan. The “Suter fix ” overturned that reasoning with respect to all provisions in Chapter 7 of Title 42 (the Social Security Act) without overturning the specific holding that § 671(a)(15) is not privately enforceable. The CWA is also known as Title IV-E of the Social Security Act. Wagner, 624 F.3d at 978.

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clude that § 675(1) does so as well. Finally, we have already determined that the repeated use of the word “shall” in the CWA shows that the statute is written in mandatory rather than precatory terms. Id. at 982.

We now turn to whether the presumption that the case plan provisions are enforceable is rebutted by Congressional action that has “expressly or impliedly foreclosed enforcement under section 1983[.] ” Watson, 436 F.3d at 1158. In Wagner, we recognized that the CWA provides no administrative forum through which aggrieved foster children or parents can seek redress, which weighs in favor of enforcement through § 1983. 624 F.3d at 982. Here, however, Defendants argue that because Congress created an express cause of action to enforce § 671(a)(18), it could not have intended the other subsections of § 671(a) to be privately enforceable. See Charlie H., 83 F. Supp. 2d at 489. The district court also relied on this reasoning. This argument, however, has been implicitly rejected by our holding in ASW that § 671(a)(12) creates an enforceable right. Furthermore, because the express cause of action created for § 671(a)(18) is actually broader than § 1983, it does not suggest an intent to limit § 1983 enforcement. See Joseph A. v. Ingram , 275 F.3d 1253, 1264 (10th Cir. 2002); cf. ASW, 424 F.3d at 978 ( “[T]he dispositive issue is whether the private remedy provided by statute is more restrictive than those available through a § 1983 action, such that the § 1983 action would function as an end run around the enforcement mechanism Congress provided. ”).

[19] We conclude that the case plan provisions of the CWA, codified at §§ 671(a)(16) and 675(1), are enforceable through § 1983. We therefore reverse the district court’s dismissal of Count Eight.

2. CWA: Records Provisions (Count Three)

Count Three is a claim for injunctive relief and damages on behalf of the individual plaintiffs. It seeks to enforce the

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requirement that a State provide updated health and education records to foster parents as part of a “case review system. ” These provisions are codified at 42 U.S.C. §§ 671(a)(16), 675(1), and 675(5)(D).

As it does with respect to a case plan, § 671(a)(16) requires a State to provide for a “case review system ” for each child. Section 675(5)(D) defines “case review system” to include “a procedure for assuring that . . . a child’s health and education record . . . is reviewed and updated, and a copy of the record is supplied to the foster parent or foster care provider with whom the child is placed, at the time of each placement of the child in foster care. ” Section 675(1)(C) outlines the detailed information that must be included in a child’s health and education record.

The district court analyzed the records provisions of the CWA along with the case plan provisions and concluded that the records provisions were also not enforceable. The district court adopted the reasoning of the Eleventh Circuit in 31 Foster Children v. Bush , which held that the language describing a case review system as “a procedure for assuring ” that a foster child has accurate health and education records gives the provision “an aggregate or system wide focus instead of one that indicates concern with whether the needs of any particular child are met. ” 329 F.3d 1255, 1272 (11th Cir. 2003).

[20] We disagree with this analysis and instead join the federal courts that have found the records provisions of the CWA to be privately enforceable along with the case plan provisions. See, e.g. , Lynch, 719 F.2d at 512; Kenny A. , 218 F.R.D. at 291-92; Brian A., 149 F. Supp. 2d at 946-49. We are persuaded by the statute’s repeated focus on the individuals benefitted by §§ 671(a)(16) and 675(5)(D): A case review system must be provided with respect to each child; the child’s health and education record must be provided to the foster parent; and this must happen at the time the child is placed in foster care. As in Wagner, the “focus on individual

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foster children,” and the language “designating foster parents” to receive a benefit on their foster child’s behalf, “together unambiguously reflect Congress’s intent” that the records provisions benefit individual foster children and parents. 624 F.3d at 981. Furthermore, like the case plan provisions, the records provisions are couched in mandatory terms and contain detailed, concrete requirements that are capable of judicial enforcement. 10 To conclude otherwise would be inconsistent with our decisions in ASW and Wagner, as well as our analysis of the case plan provisions above.

[21] Defendants argue that the district court’s decision is

supported by a footnote in ASW, which distinguished 31 Fos-

ter Children by noting that unlike § 673(3), the provision at

issue in ASW, the statutory text of § 675(5) alone does not

mention “a right . . . to have medical and education back-

grounds provided to caregivers[.] ” 424 F.3d at 977 n.12. We

agree with Plaintiffs, however, that this footnote has little sig-

nificance because ASW did not consider § 675(5) in the con-

text of related provisions such as §

671(a)(16) and

§ 622(b)(8)(A)(ii). We conclude that, like the case plan provi-

sions, the records provisions can be enforced through § 1983,

and we reverse the district court’s dismissal of Count Three.

3. CAPTA: Guardian ad litem provisions (Count Nine)

Count Nine of the complaint seeks injunctive relief on behalf of a class of foster children who have not been appointed guardians ad litem. It seeks to enforce the guardian ad litem provision of CAPTA, codified at 42 U.S.C. § 5106a(b)(2)(B)(xiii), which provides that:

10Additional evidence of Congress’s intent to create an enforceable right can be found at 42 U.S.C. § 622(b)(8)(A)(ii), which requires each State to assure that it is “operating” a case review system “for each child receiving foster care under the supervision of the State. ” See, e.g. , Kenny A. , 218 F.R.D. at 292-93; Brian A., 149 F. Supp. 2d at 947; cf. 31 Foster Children, 329 F.3d at 1271 n.8. But see Charlie H. , 83 F. Supp. 2d at 485-89.

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A State plan . . . shall contain a description of the activities that the State will carry out using amounts received under the grant . . . including . . . an assurance in the form of a certification by the Governor of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program . . . that includes provisions and procedures requiring that in every case involving a victim of child abuse or neglect which results in a judicial proceeding, a guardian ad litem . . . shall be appointed to represent the child in such proceedings . . . .[ 11]

As the district court observed, Nevada does have a law directing state courts to appoint a guardian ad litem for every eligible child. See Nev. Rev. Stat. § 432B.500(1) ( “After a petition is filed that a child is in need of protection . . . the court shall appoint a guardian ad litem for the child. ”). But courts do not always order these appointments, because Clark County does not have enough guardian ad litem volunteers. See Nev. Rev. Stat. § 432B.500(2) ( “No compensation may be allowed a person serving as a guardian ad litem pursuant to this section.”). Plaintiffs thus seek an injunction compelling the State and County defendants to “make it possible for state courts to appoint a guardian ad litem in every case. ” The district court held that the guardian ad litem provision of CAPTA was not privately enforceable and that, in the alternative, abstention was warranted under the doctrine set forth in Younger v. Harris , 401 U.S. 37 (1971).

[22] As best we can tell, no court has specifically addressed whether the guardian ad litem provision of CAPTA is enforceable through § 1983, and no federal appellate court has considered whether any provision of the current version of CAPTA is privately enforceable. As a matter of first

11At the time the complaint was filed, this provision was codified at 42 U.S.C. § 5106a(b)(2)(A)(xiii).

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impression, we conclude that the guardian ad litem provision does not create an individual right enforceable through § 1983.

The Sixth Circuit and the D.C. Circuit have held that an earlier version of CAPTA is not privately enforceable. Doe v. District of Columbia , 93 F.3d 861, 866-67 (D.C. Cir. 1996); Tony L. v. Childers , 71 F.3d 1182, 1188-89 (6th Cir. 1995). That version required that in order to qualify for a grant, a State “shall provide that upon receipt of a report of known or suspected instances of child abuse or neglect, ” the State would initiate an investigation and take immediate steps to protect the abused or neglected child. 42 U.S.C. § 5106a(b)(2) (1988) (emphasis added). Despite this mandatory language, both circuits held that CAPTA was not privately enforceable because it did not “mandate a particular means of investigation or state what type of actions must be taken ” to protect a child. Tony L., 71 F.3d at 1189; see also Doe, 93 F.3d at 867. The Sixth Circuit also observed that “Congress wanted to leave states a certain amount of discretion in this area. ” Id.

In 1996, the language of CAPTA was changed substantially. The current version requires each State receiving a grant to submit a plan that “specifies the areas of the child protective services system” that the State will address with its grant money. 42 U.S.C. § 5106a(b)(1)(A). That plan must “contain a description of the activities that the State will carry out,” including, as detailed above, a certification that the State is enforcing a law or operating a program that includes provisions and procedures requiring the appointment of guardians ad litem. 42 U.S.C. § 5106a(b)(2)(B)(xiii).

Every federal district court to consider the question has
found that the more recent versions of CAPTA do not satisfy the Blessing test. 12 See, e.g. , Charlie H. , 83 F. Supp. 2d at

12The current version (as amended in 2010) is substantially similar to the other versions that have been in place since the significant changes made in 1996.

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496-97; A.S. v. Tellus , 22 F. Supp. 2d 1217, 1224 (D. Kan. 1998); Jeanine B. , 967 F. Supp. at 1118. These courts have generally agreed that CAPTA’s requirements have too broad a focus to create individual, enforceable rights. At least one district court has emphasized that the current version presents a weaker case for private enforcement than the prior version. Jeanine B., 967 F. Supp. at 1118.

[23] We agree with this reasoning and affirm the district court’s decision below. Unlike the case plan and records provisions of the CWA, the guardian ad litem provision of CAPTA does not contain the unambiguous rights-creating language necessary to satisfy the first prong of the Blessing test. As discussed above, when Congress wrote the CWA, it incorporated detailed requirements for what a child’s case plan or health and education record must include and how those records must be incorporated into a case review system. In contrast, CAPTA gives little specific guidance, requiring only that a State either enact a law or create a program that includes procedures designed to accomplish broad goals, such as representation for every child by a guardian ad litem. 13

[24] This approach leads us to conclude that Congress intended to focus on “the aggregate or systemwide policies and practices of a regulated entity[,] ” rather than “individual rights to benefits.” Watson, 436 F.3d at 1159 (citing Gonzaga, 536 U.S. at 287-88). Our conclusion is bolstered by CAPTA’s legislative history, which explains that Congress intended “to ensure that States are responsible for planning and implementing the essential elements of an effective and efficient child protective service system without placing undue administrative burdens on States. ” S. Rep. No. 104-117, at 13 (1995). We thus affirm the district court’s dismissal of Count Nine on the basis that the guardian ad litem provision is not enforce-

13Also in contrast to the CWA, the “Suter fix” does not apply to CAPTA, which is codified in Chapter 67 of Title 42 rather than Chapter 7. See supra note 9.

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able through § 1983. We need not consider the district court’s alternative holding that Younger abstention was appropriate.

4. CAPTA and IDEA: Early Intervention Services (Count Ten)

Count Ten seeks injunctive relief on behalf of a class of foster children who were not referred to early intervention services for which they were eligible. It seeks to enforce provisions of both CAPTA and IDEA that require States to refer certain children to early intervention services. The CAPTA provision, 42 U.S.C. § 5106a(b)(2)(B)(xxi), provides:

A State plan . . . shall contain a description of the activities that the State will carry out using amounts received under the grant . . . , including . . . an assurance in the form of a certification by the Governor of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program . . . that includes . . . provisions and procedures for referral of a child under the age of 3 who is involved in a substantiated case of child abuse or neglect to early intervention services funded under Part C of the [IDEA].[ 14]

The IDEA provision requires a State to have “policies and procedures that require the referral for early intervention services . . . of a child under the age of 3 . . . who is involved in a substantiated case of child abuse or neglect[.] ” 20 U.S.C. § 1437(a)(6)(A). The district court held that the CAPTA provision is not privately enforceable and that IDEA’s comprehensive enforcement scheme precludes enforcement of that provision through § 1983. We affirm the decision of the district court.

14At the time Plaintiffs filed their complaint, this was codified at 42 U.S.C. § 5106a(b)(2)(A)(xxi).

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[25] Our analysis of the CAPTA guardian ad litem provision applies with equal force to the early intervention provision. Because Congress did not “unambiguously confer ” an individual federal right, the early intervention provision fails the first prong of the Blessing test. See Gonzaga, 536 U.S. at 283.

[26] With respect to the IDEA claim, we have previously held that the IDEA has a comprehensive enforcement scheme that forecloses enforcement through § 1983. Blanchard v. Morton Sch. Dist. , 509 F.3d 934, 938 (9th Cir. 2007). Plaintiffs do not dispute this point, but they argue — for the first time on appeal — that they are seeking to enforce the IDEA claim not through § 1983, as their complaint alleges, but through the express cause of action contained in Part C of the IDEA (codified at 20 U.S.C. § 1439(a)(1)). Plaintiffs concede that IDEA’s express cause of action requires parties to exhaust their administrative remedies. They urge us, however, to reverse the district court’s dismissal; reinstate their IDEA cause of action; and allow Defendants to argue exhaustion as an affirmative defense on remand. See Payne v. Peninsula Sch. Dist., 653 F.3d 863, 867 (9th Cir. 2011) (en banc) (holding that IDEA’s exhaustion requirement is not jurisdictional and must be raised as an affirmative defense).

[27] This course of action would be inappropriate. The district court correctly applied the law to Plaintiffs’ § 1983 claim and had no opportunity to decide whether Plaintiffs could proceed under IDEA’s express cause of action. We thus affirm the district court’s dismissal of Count Ten. If, on remand, Plaintiffs wish to pursue a claim under IDEA’s express cause of action, they can seek leave to amend their complaint.

C. Assignment on Remand

Plaintiffs request that we reassign this case to a different district judge on remand. Our supervisory powers under 28 U.S.C. § 2106 permit reassignment when “unusual circum-

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stances” are present. United Nat’l Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1118 (9th Cir. 2001). We consider three factors to determine whether unusual circumstances exist: (1) whether the original judge would have substantial difficulty in putting out of his mind previously expressed views or findings determined to be erroneous; (2) whether reassignment is necessary to preserve the appearance of justice; and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Id. at 1118-19 (citing United States v. Sears, Roebuck & Co., 785 F.2d 777, 779-80 (9th Cir. 1986)).

Plaintiffs argue that reassignment is warranted under the first two factors because Judge Jones has prejudged the merits of the case and expressed hostility toward Plaintiffs’ counsel. In support of this argument, Plaintiffs point to Judge Jones’s comments during proceedings in this case as well as during an earlier, closely related case, Clark K. v. Guinn , No. 2:06-CV1068-RCJ-RJJ, 2007 WL 1435428 (D. Nev. May 14, 2007). 15

[28] After thoroughly reviewing the record, as well as the transcripts from Clark K. submitted by Plaintiffs in their request for judicial notice, we conclude that reassignment is not necessary. We agree that Judge Jones occasionally expressed frustration with Plaintiffs’ counsel and made a few troubling comments, especially concerning his willingness to approve a potential settlement or consent decree in Clark K. But those comments were not made during the present case, and our review of the entire record shows that Judge Jones gave genuine consideration to the arguments of both parties and provided a reasoned decision. There is no indication that

15In Clark K., a different group of foster children who were also represented by the National Center for Youth Law brought a class action seeking injunctive relief against many of the same defendants named here. Judge Jones denied the motion for class certification. While an appeal of that denial was pending in our court, the parties stipulated to dismissal of the case with prejudice as to those particular plaintiffs.

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Judge Jones is unwilling to follow our instructions on remand. In short, reassignment is an extreme remedy, and it is not warranted here.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the dismissal of Counts One, Two, Three, Eight, and Eleven; AFFIRM the dismissal of Counts Nine and Ten; and REMAND for further proceedings. On remand, the district court should allow Plaintiffs leave to amend their substantive due process claims, and Plaintiffs can seek further leave to amend if they wish to add a claim under the IDEA’s express cause of action. Plaintiffs shall recover their costs on appeal.

REVERSED in part, AFFIRMED in part, and REMANDED.

 </s> Case 2:10-cv-00528-RCJ-PAL Document 104 Filed 07/20/12 Page 1 of 77

1 BRUNO WOLFENZON (Nevada Bar No. 6177) DANIEL J. REED (Nevada Bar No. 11249)
2 WOLFENZON ROLLE 6725 Via Austi Pkwy, Suite 260
3 Las Vegas, NV 89119 Telephone: (702) 836-3138
4 Facsimile: (702) 836-3139

5 DOROTHY L. FERNANDEZ (pro hac vice) JEFFREY K. ROSENBERG (pro hac vice)
6 MORRISON & FOERSTER LLP 425 Market Street, Suite 3200
7 San Francisco, California 94105-2482 Telephone: 415.268.7000
8 Facsimile: 415.268.7522

9 WILLIAM GRIMM (pro hac vice) LEECIA WELCH (pro hac vice)
10 NATIONAL CENTER FOR YOUTH LAW 405 – 14th Street, 15th Floor
11 Oakland, CA 94612 Telephone: (510) 835-8098
12 Facsimile: (510) 835-8099

13 Co-attorneys for Plaintiffs

HENRY A. et al.

14

UNITED STATES DISTRICT COURT

15

DISTRICT OF NEVADA

16 HENRY A., by his next friend M.J.; CHARLES AND CHARLOTTE B., by their next friend R.D.; LEO C.; Case No. 2:10-CV-00528-RCJ-PAL

17 VICTOR C.; DELIA, MAIZY, AND JONATHAN D.

by their next friend S.W.; LINDA E.; CHRISTINE F.,

AMENDED COMPLAINT

18 and OLIVIA G. by their next friend E.F., and MASON

(Class Action Alleged)

I., by his next friend M.J., individually and on behalf

(Jury Trial Demanded)

19 of others so situated,

20

Plaintiffs,

vs.

21

MICHAEL WILLDEN, Director of the Nevada

22 Department of Health and Human Services; DIANE

COMEAUX, former Administrator of Nevada

23 Division of Child and Family Services; AMBER

HOWELL, Administrator of Nevada Division of

24 Child and Family Services; VIRGINIA VALENTINE,

former Clark County Manager; DON BURNETTE,

25 Clark County Manager; CLARK COUNTY; TOM

MORTON, former Director of Clark County

26 Department of Family Services; LISA RUIZ-LEE,

Director of Clark County Department of Family

27 Services; and DOES I-XX,

28

Defendants.

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1

TABLE OF CONTENTS

2

Page

3 INTRODUCTION .......................................................................................................................... 1

4 JURISDICTION AND VENUE...................................................................................................... 7

5 THE PLAINTIFFS.......................................................................................................................... 8

6 THE DEFENDANTS.................................................................................................................... 14

7 ORGANIZATIONAL STRUCTURE AND RESPONSIBILITIES OF DEFENDANTS ................................................................................................................ 17
8

I. ALLEGATI ONS REGARDING DEFENDANTS’ POLICIES,

9

CUSTOMS AND OMISSIONS........................................................................................ 23

10

A. Defendants Fail to Inform Foster Parents and Other

Caregivers of Essential Information Necessary for

11

Stable and Successful Placements......................................................................... 23

12

1. Federal and State Laws Require Caseworkers to

Provide Foster Parents Specific Information

13

About a Child’s Health and Behavioral

Background Before Placing the Child....................................................... 23

14

2. Defendants’ Policies, Customs and Omissions

15

Violate Federal and State Law Regarding the

Provision of Information to Foster Parents ............................................... 26

16

3. Plaintiffs Have Been Injured as a Result of

17

Defendants’ Failure to Provide Required

Information ................................................................................................28

18

4. It Is Likely that Plaintiffs and Others Will

19

Continue to Suffer Harm as a Result of

Defendants’ Policies, Customs and Omissions ......................................... 32

20

B. Defendants Fail to Provide Foster Children with

21

Necessary Medical and Mental Health Treatment to

Which They Are Entitled ...................................................................................... 33

22

1. Federal and State Laws Require Defendants to

23

Provide Timely Medical and Mental Health

Services to Meet the Needs of Children in Their

24

Custody ..................................................................................................... 33

25

2. Defendants’ Policies, Customs and Omissions

Cause Defendants Regularly and Routinely to

26

Fail to Provide Required Screenings and

Treatment to Which Foster Children in Their

27

Custody Are Entitled................................................................................. 36

28

3. Plaintiffs Have Been Injured as a Result of

Defendants’ Failure to Provide Necessary

AMENDED COMPLAINT

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1

Medical and Mental Health Services to Which

They Are Entitled ...................................................................................... 40

2

4. It Is Likely that Plaintiffs and Others Will

3

Continue to Suffer Harm as a Result of

Defendants’ Policies, Customs and Omissions ......................................... 47

4

C. Defendants Fail to Ensure the Safety and Well-being of

5

the Foster Children in Their Care and Custody .................................................... 47

6

1. Defendants Fail to Protect Foster Children by

Failing to Investigate Reports of Abuse and

7

Neglect ...................................................................................................... 47

8

a. The Law Requires Defendants to

Promptly and Thoroughly Investigate

9

Suspected Abuse and Neglect of Foster

Children .........................................................................................47

10

b. Defendants’ Policies, Customs, and

11

Omissions Do Not Comply with Laws

Mandating Investigations of Suspected

12

Abuse ............................................................................................ 49

13

c. Plaintiffs Have Been Injured by

Defendants’ Inadequate Investigation of

14

Suspected Abuse ........................................................................... 52

15

d. It Is Likely That Plaintiffs and Others

Will Continue to Suffer Harm as a Result

16

of Defendants’ Policies, Customs and

Omissions ......................................................................................53

17

2. Defendants Fail to Protect Foster Children When

18

Transferring Them to Out of State Facilities ............................................ 54

19

a. The Law Requires Defendants to

Physically Inspect and Monitor

20

Treatment and Services Provided to

Foster Children by Out of State Facilities..................................... 54

21

b. Defendants’ Policies, Customs and

22

Omissions Do Not Comply with Federal

and State Laws Governing Transfer of

23

Foster Children Outside of Nevada............................................... 55

24

c. Plaintiff Mason Has Been Injured by

Defendants’ Failure to Physically Inspect

25

and Monitor Out of State Facilities in

Which Foster Children Are Placed ............................................... 57

26

d. It Is Likely That Plaintiff Mason and

27

Others Will Continue to Suffer Harm as a

Result of Defendants’ Policies, Customs

28

and Omissions ............................................................................... 59

AMENDED COMPLAINT

ii

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1 II. CLASS ACTION ALLEGATIONS ................................................................................. 59 2 CAUSES OF ACTION ................................................................................................................. 64 3 PRAYER FOR RELIEF................................................................................................................ 71 4 JURY DEMAND........................................................................................................................... 72 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

AMENDED COMPLAINT

iii

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1

GLOSSARY OF TERMS

2

3

ADHD

Burnette

4

Attention Deficit/Hyperactivity Disorder
Don Burnette - Current Clark County Manager

5

CAP

Children’s Attorneys Project of Legal Aid Center of Southern Nevada

6

CAPTA

Child Abuse Prevention and Treatment Act

7

Clark County DFS

Clark County Department of Family Services

8

Comeaux

9

Diane Comeaux - Administrator of Nevada Division of Children and Family Services from June 2008 until December 2011.

10

CPS

EPSDT

11

Child Protective Services
Early and Periodic Screening, Diagnostic and Treatment

12

Howell

13 ICPC
14

Amber Howell - Current Administrator of Nevada Division of Children and Family Services
Interstate Compact on the Placement of Children

15

Morton

16

NDA

17

Nevada DHHS

18 Ruiz-Lee
19

Tom Morton - Director of Clark County Department of Family Services from July 2006 - August 2011
National Deaf Academy
Nevada Department of Health and Human Services
Lisa Ruiz-Lee- Current Director of Clark County Department of Family Services

20

State DCFS

Nevada Division of Children and Family Services

21

UNITY

22

Valentine

23 Willden
24

Unified Nevada Information Technology for Youth
Virginia Valentine - Clark County Manager from August 2006- January 2011.
Michael Willden - Director of the Nevada Department of Health and Human Services

25

26

27

28

AMENDED COMPLAINT

iv

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1

INTRODUCTION

2

1. This action, consisting of individual claims for damages, declaratory, and injunctive

3 relief, and class claims for declaratory and injunctive relief, is brought by twelve children who are

4 or have been in the legal custody of the State of Nevada and/or Clark County and placed in foster

5 care. Plaintiffs seek redress for the harms suffered while in Defendants’ care and custody.

6

2. Plaintiffs were removed from the care of their parents, and their custody was

7 transferred to Defendants, for the explicit purpose of keeping them safe from further harm and

8 ensuring their well-being. But Defendants’ child welfare system routinely fails in its legal

9 obligations, duties and responsibilities to foster children. Although Defendants are and have long

10 been aware of these failures, in many instances their proposed solutions have been ineffective,

11 and in many cases they have taken no action at all. Defendants’ policies, customs and omissions,

12 as set forth in detail below, fail to comply with federal and state laws, depart substantially from

13 professional judgment, standards, and/or practice, and reflect a deliberate indifference to the

14 health and safety of the children Defendants are obligated to protect. As a result, Plaintiffs have

15 sustained numerous injuries detailed below, including:

16

 abuse by a foster family that was so severe that the two very young Plaintiff

17

children Defendants placed in that home had to be treated at a hospital;

18

 ignoring requests for authorization of urgently needed medical treatment until

19

emergency surgery was required;

20

 destruction of a deaf Plaintiff’s cochlear implant, which severely impaired his

21

language development; and

22

 multiple placement disruptions, including a one-year-old child who was sent to

23

twelve different foster care settings in a single year and two children who have

24

been sent to more than forty different homes during their time in Defendants’

25

custody.

26

3. Defendants operate a child welfare system that fails to comply with state and federal

27 laws or professional standards. Although Nevada law grants explicit responsibility and authority

28 to the state officials sued herein to develop and promulgate child welfare policy, these State

AMENDED COMPLAINT

1

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1 Defendants have abdicated that responsibility in large respects. As a result, Clark County

2 Defendants have created many of their own policies. This mixture of state and county policies

3 makes it virtually impossible to determine what policies apply and confounds the ability of even

4 the most well-intentioned staff to determine what their responsibilities are to the children on their

5 caseload. Defendant Tom Morton, the former director of the Clark County agency responsible

6 for administering child welfare services, characterized the absence of clearly constructed policies

7 and procedures, coupled with inadequate training of caseworkers, as “a recipe for disaster.”

8

4. Nevada’s foster care system is currently financed through a mix of federal, state, and

9 county funds. The State provides funding to Clark County for operation of its foster care

10 program, while Clark County is responsible for providing funding for child protective services

11 within the county. The State also receives millions of dollars of federal funds for its child welfare

12 system and allocates a portion of these funds to Clark County. Federal funds are the single

13 greatest source of support for Nevada’s child welfare system, ranging each year from 53% to 55%

14 of all state spending on child welfare.

15

5. To become eligible for federal funding, Nevada agreed to administer its foster care

16 program in accordance with federal statutes, regulations, and policies promulgated by the U.S.

17 Department of Health and Human Services. The U.S. Department of Health and Human Services

18 conducts periodic reviews to assess whether Nevada is in compliance with those federal

19 mandates. These reviews assess the State’s performance with regard to seven “child and family

20 outcome categories” and seven “systemic factors” relating to key federal requirements. The 2004

21 review of Nevada’s foster care program revealed that Nevada was not in substantial compliance

22 with any of the seven child welfare outcomes designed to ensure children’s “safety, permanency

23 and well-being.” U.S. DEP’T OF HEALTH AND HUM. SERVS., Final Report, Nevada Child And

24 Family Services Review (“2004 Federal Review”), dated June 1, 2004. The outcomes included

25 whether the State is protecting children from abuse and neglect; providing permanency and

26 stability in children’s living situations; and ensuring that children receive services to meet their

27 physical and mental health needs.

28

AMENDED COMPLAINT

2

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1

6. In July 2006, representatives of the Administration for Children and Families of the

2 United States Department of Health and Human Services (“Federal DHHS”) conducted a site visit

3 to reassess Clark County’s child welfare program. Federal officials concluded that the situation

4 for children and families served by Clark County’s child welfare system “has worsened” since

5 officials’ earlier on-site visit in February 2004. Some of the specific deficiencies reported by

6 federal officials included:

7



Unnecessary removal of children from their homes due to Clark County’s failure

8

to provide an adequate array of services to prevent placement in foster care in the

9

first instance;

10



Frequent changes in placement of children in foster care;

11



Inadequate assessments of the safety of suspected victims of child abuse and

12

neglect;

13



Inadequate training of staff and insufficient recruitment of foster parents;

14



Unanswered or lengthy delays in answering calls to the Child Abuse Hotline;

15



The use of an invalid, ineffective risk assessment tool; and

16



The failure to use data to provide effective oversight and supervision.

17

7. On August 11, 2006, Sharon M. Fujii, the then Regional Administrator for the

18 Administration for Children and Families of Federal DHHS, informed Defendants Willden and

19 Morton that “the manner in which the continuum of child welfare services is managed in Clark

20 County should be a grave concern to the State.” August 11, 2006 Letter from Sharon M. Fujii to

21 Defendant Willden, copying Defendant Morton. She further notified the Defendants that the

22 current Program Improvement Plan between the state and federal officials “is no longer adequate

23 to address the serious deficiencies in the State’s child welfare program, most specifically Clark

24 County which accounts for the majority of the State’s child welfare population.” Id.

25

8. On August 30, 2006, following Ms. Fujii’s letter, Defendant Willden wrote a letter to

26 Defendant Morton warning him that:

27

we continue to receive information indicating serious deficiencies with the [child welfare] system …; the existing level of effort to

28

correct system deficiencies is not adequate; [and] that despite lists of corrective action plans … still we have major failures.

AMENDED COMPLAINT

3

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1 August 30, 2006 Letter from Fernando Serrano, the then Administrator of Child and Family

2 services, and Defendant Willden to Defendant Morton.

3

9. Despite both the State and County Defendants’ awareness of the serious deficiencies

4 in the State’s child welfare services, in general and specifically in Clark County, the State and

5 County Defendants failed to implement the corrective actions necessary to address these defects.

6

10. In October 2008, the University of Nevada Las Vegas (UNLV) analyzed Clark

7 County’s foster care policies pursuant to a legislatively commissioned audit of child welfare

8 services. The analysis determined the extent to which Clark County policies incorporated state

9 and federal child welfare laws and regulations. The auditors concluded that Clark County

10 policies included barely a third (37%) of federal and state laws and regulations. The audit also

11 assessed the extent to which Clark County policies incorporated the recommendations provided in

12 various independent reports of Nevada’s child welfare system and the best practices identified by

13 the researchers. When the recommendations and best practices were included in the inquiry, the

14 percent of Clark County’s compliance plummeted to a mere 13%.

15

11. In 2009, the U.S. Department of Health and Human Services again conducted a

16 comprehensive review of Nevada’s Child and Family Services to determine Nevada’s compliance

17 with federal mandates. The State’s performance continued to fall far below national standards.

18 U.S. DEP’T OF HEALTH AND HUMAN SERVS., Final Report Nevada Child and Family Services

19 Review, dated January 2010 (“2009 Federal Review”). Nevada was only in substantial

20 compliance with one of the seven child welfare outcomes designed to ensure children’s “safety,

21 permanency and well-being.” In addition, Nevada was not in substantial compliance with four of

22 the seven “systemic factors.” The State failed to meet federal standards in broad categories,

23 including safety-related outcomes, staff and care provider training, the case status review system,

24 and the outcome for children’s physical and mental health.

25

12. Most recently, a February 2012 letter from Federal DHHS’s Administration for

26 Children and Families to Defendant Howell confirms that Nevada still struggles to meet national

27 foster care standards. Letter from Paul J. Kirisitz to Defendant Howell date-stamped February 14,

28 2012. The letter notes Nevada’s failure to meet the standards in a number of outcomes on its

AMENDED COMPLAINT

4

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1 Program Improvement Plan and states, “[i]n addition, the State has not met the National Standard

2 for the Safety Outcome of Absence of Maltreatment of Children in Foster Care.” Id. The letter

3 threatens a penalty of more than $1.6 million if State Defendants do not comply with the agreed

4 upon goals. Id.

5

13. In addition to the federal reviews and audit referenced above, at least fifteen

6 studies, reports, and audits commissioned or prepared by Defendants or other Nevada entities

7 have documented Defendants’ failure to protect the health, safety, and well-being of child abuse

8 victims and children in foster care. Though Defendants have had full knowledge of these studies,

9 reports, audits, and case reviews, they have nonetheless failed to remedy the long-standing and

10 substantial deficiencies identified in them. These studies put Defendants on notice that, among

11 other problems:

12

(a) Defendants fail to adequately train and supervise caseworkers. The 2008

13 legislative audit documented that few entry-level caseworkers have the rudimentary knowledge,

14 skills, or training needed to perform their job of ensuring the health, safety, and well-being of

15 foster children in Defendants’ custody. Few Clark County caseworkers or their direct supervisors

16 have a degree in social work or a license to practice social work in Nevada. Many caseworkers

17 are assigned caseloads before completing even the most basic training. High caseloads and

18 inadequate training of Clark County child protective services providers and foster care workers

19 contribute to the crisis within the system. Many workers’ caseloads far exceed those established

20 by national standards. Poorly trained and unsupervised caseworkers with high caseloads fail to

21 abide by law, regulations, and professional standards, and are incapable of or fail to exercise

22 professional judgment, resulting in serious injury to children in foster care. Indeed, a recent

23 assessment of Nevada’s performance in managing its foster care system revealed that

24 caseworkers failed to prepare a federally and state-mandated case plan for approximately 53% of

25 the foster children in its care within the state-mandated 45-day time window following removal

26 from the home. Further, the 2009 Federal Review found that Nevada failed to meet national

27 standards for staff and provider training, noting that although Nevada requires licensed social

28 workers to complete continuing education requirements, not all caseworkers are licensed social

AMENDED COMPLAINT

5

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1 workers. The State has no ongoing training or education requirements for caseworkers who are

2 not licensed social workers.

3

(b) Defendants fail to meet the needs of children under their care. Despite legally

4 mandated obligations to these children, Defendants fail to identify and meet foster children’s

5 needs, causing them substantial harm. Defendants routinely fail to ensure that children in foster

6 care are provided with the mental health and medical services that they need and to which they

7 are legally entitled. For example, in many instances, Defendants address the mental health needs

8 of foster children solely by prescribing psychotropic drugs. Moreover, Defendants fail to monitor

9 the children’s health and well-being after these drugs have been administered. Even after

10 discovering abuse or neglect in a foster home, Defendants often fail to obtain needed services for

11 the foster children who were victimized. This problem has been exacerbated by Defendants’

12 failure to fulfill their legal obligation to provide prospective foster parents with critical

13 information about the foster child’s background and history of abuse, medical history and needs,

14 family history, behaviors, and educational records.

15

(c) Defendants fail to ensure that caseworkers conduct legally required visits with

16 foster children. Caseworkers regularly fail to visit children in their placements and are therefore

17 unaware of the quality of care the child is receiving, the harm befalling the child, the risk to

18 which the child is exposed, and the lack of needed medical, mental health, education, and other

19 services.

20

(d) Defendants fail to take reasonable and legally mandated steps to protect

21 children from harm. Investigations of child abuse reports involving children in foster care

22 routinely fail to comply with state law and professional standards. As a direct result, children

23 who could and should have been protected suffer unnecessarily. County Defendants often turn a

24 deaf ear to reports of abuse and neglect in foster care settings, allowing children to remain in

25 dangerous homes that either should not have been licensed in the first place or should have had

26 their licenses revoked.

27

14. As alleged herein, Defendants are further victimizing foster children rather than

28 discharging their duty to provide for their safety, care, and well-being. Because of their

AMENDED COMPLAINT

6

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1 pervasive, long-standing, and well-documented deficiencies in providing suitable out-of-home

2 placements, mental health services and monitoring, and other basic needs, Defendants have

3 harmed and continue to harm Plaintiff children physically, emotionally, and psychologically.

4 Defendants’ policies, customs and omissions described in this Complaint threaten the ability of

5 foster children to grow, develop, and live safe and healthy childhoods. Plaintiffs have been

6 harmed by Defendants’ policies, customs, omissions and failures to fulfill their legal obligations

7 to foster children, and without court action, they will continue to suffer injury as a result of

8 Defendants’ unconstitutional deprivations and statutory violations. Many other children entrusted

9 to the care and protection of Defendants will also suffer unless Defendants’ violations are

10 redressed.

11

15. This action seeks compensatory and punitive damages for the past harms that

12 Plaintiffs have suffered while in the custody of Defendants. This action also seeks declaratory

13 and injunctive relief to stop continuing violations of Plaintiffs’ legal rights and to prevent

14 Defendants, through their policies, customs and omissions, from continuing to harm the very

15 children whom Defendants have a responsibility to protect.

16

16. In addition, this action also seeks declaratory and injunctive relief on behalf of a

17 class of children in the Clark County foster care system for whom Defendants have failed to

18 fulfill mandatory obligations to develop case plans with the requisite information within the

19 requisite time period under Nevada and federal law.

20

JURISDICTION AND VENUE

21

17. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and

22 1343(a)(3) & (4). Plaintiffs’ action for declaratory relief is authorized by 28 U.S.C.

23 §§ 1343(a)(4), 2201, 2202 and by Fed. R. Civ. P. 57. Plaintiffs further invoke the supplemental

24 jurisdiction of this Court pursuant to 28 U.S.C. § 1367 to hear and decide claims arising under

25 state law.

26

18. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because a substantial

27 part of the events or omissions giving rise to the claims in this case arise in this District.

28

AMENDED COMPLAINT

7

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1

THE PLAINTIFFS

2

19. During the time that Plaintiffs have been, or were, in Defendants’ custody, Plaintiffs

3 resided in Clark County, Nevada, with the exception of Plaintiff Mason I., who resided in Clark

4 County, Nevada, at all times relevant herein, except from May 2008 to December 2009, when the

5 State sent him to a treatment center in Florida. During the time that Plaintiffs have been in 6 Defendants’ custody, Plaintiffs’ next friends1 resided in Clark County, Nevada, with the

7 exception of next friend R.D., who resides in Kingman, Arizona, and next friend M.J., who is

8 temporarily residing out of state.

9

20. Plaintiff Henry A. is a fourteen-year-old boy who has been in the legal custody of,

10 and placed in foster care with, Clark County Department of Family Services (“Clark County

11 DFS”) and/or Nevada Division of Children and Family Services (“State DCFS”) since he was

12 four years old. Henry appears in this action by his former foster parent, M.J., who is acting as his

13 next friend. Henry entered foster care at the age of four after being physically abused by his

14 mother, including being locked in the trunk of her car. Despite knowledge of extreme physical

15 abuse, Clark County DFS placed Henry back with his mother, only to later return him to foster

16 care. Henry suffers from severe mental health problems, but any treatment he received was

17 repeatedly discontinued and disrupted because Defendants moved him to more than forty

18 different placements, and assigned him six or seven different caseworkers (including one who had

19 not completed basic training), in the first seven years that he was in their care. He has had to

20 change mental health providers more than ten times, and Defendants have often failed to provide

21 any information regarding his mental health assessments and treatment history to his new

22 providers. Defendants have also caused Henry to be administered multiple psychotropic

23

24

1 Plaintiffs and their next friends are proceeding under fictitious names and satisfy the

requirements of Rule 10(a) of the Federal Rules of Civil Procedure. Plaintiffs are, or were,

25 minors in government custody who are challenging governmental action. Revealing their true identities would cause them to disclose highly intimate information, including details of abuse

26 and neglect. Disclosure of the next friends, many of whom are currently caring for the children, would result in identification of the Plaintiffs. In addition, the use of next friends should be

27 permitted in this case, as Plaintiffs and their next friends satisfy the requirements of Rule 17(c) of the Federal Rules of Civil Procedure and the criteria set forth in Whitmore v. Ark., 495 U.S. 149,

28 163-64 (1989). The next friends are all either family members or current or former foster parents. These individuals have the intention to act in the children’s best interest.

AMENDED COMPLAINT

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1 medications without adequate care and monitoring and without periodic reassessments of his

2 psychological condition. In July 2009, for example, Henry suffered drug poisoning as a result of

3 the multiple medications he was administered, spent several weeks in the intensive care unit

4 (ICU) of a hospital, and suffered near organ failure. Henry has suffered and continues to suffer

5 injury as a result of Defendants’ policies, customs and omissions.

6

21. Plaintiffs Charles B., age eleven, and Charlotte B., age three, are siblings. They

7 were in the legal custody of, and placed in foster care with, Clark County DFS from March 2009

8 until the fall 2010 when Charles and Charlotte were returned to their mother’s care. Charles and

9 Charlotte appear in this action by their grandfather, R.D., who is acting as their next friend. Upon

10 removing Charles and Charlotte from their home, Defendants refused to place them with their

11 grandmother, despite an obligation to place foster children with relatives when safe and

12 appropriate placements are available, despite a court order requiring that these children be placed

13 with their grandmother, and despite their grandmother being ready, willing, and able to provide

14 them a safe and appropriate placement. Instead, Defendants placed Charles and Charlotte in a

15 foster home in which the foster mother and her teenaged son abused them, including by locking

16 Charlotte in a closet without food and water for long periods of time in a soiled diaper and

17 beating Charles when he tried to help Charlotte. The Las Vegas police ultimately removed the

18 children from that foster home and brought them to a hospital for treatment. At the hospital,

19 Charlotte was found to be suffering from dehydration, bruises on her forehead, cuts on both legs,

20 and diaper rash so severe that her buttocks were ulcerated and bleeding. The foster mother has

21 been charged with child abuse, and her son has pleaded guilty to assault. During the time in

22 which they remained in Defendants’ custody, Charles and Charlotte were put in at least seventeen

23 placements, including multiple single-night placements at Child Haven, a shelter for abused and

24 neglected children. Charles and Charlotte have suffered and continue to suffer injury as a result

25 of Defendants’ policies, customs and omissions.

26

22. Plaintiff Linda E. is a nineteen-year-old woman who was in the legal custody of,

27 and placed in foster care with, Clark County DFS and/or State DCFS for over fifteen years. As

28 Linda is no longer a minor, Linda now appears in this action for herself. Defendants placed Linda

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1 in more than forty different foster care settings, including many inappropriate and dangerous

2 placements in which she suffered abuse and neglect. For example, Defendants placed Linda in

3 the home of an aunt where she had previously suffered abuse. Linda reported this abuse to her

4 caseworker, but her circumstances did not improve. She was also left at a psychiatric facility for

5 six months because Defendants failed to identify an appropriate placement for her. Linda’s

6 placement history with Defendants is so riddled with failures that it was not until the 2008–2009

7 school year—her junior year in high school and her fourteenth year in Defendants’ custody—that

8 she was able to complete an entire grade in the same school. Defendants failed to provide Linda

9 with the medical and mental health care she needed and instead caused her to be administered

10 multiple psychotropic drugs without adequate care and monitoring and without periodic

11 reassessments of her psychological condition. Linda has suffered and continues to suffer injury

12 as a result of Defendants’ policies, customs and omissions.

13

23. Plaintiffs Leo and Victor C. are nineteen-year-old twins who were in the legal

14 custody of, and placed in foster care with, Clark County DFS beginning in November 2006. Leo

15 exited the system when he reached the age of majority in December 2010. Victor elected to

16 remain in the child welfare system and now receives foster care benefits under the A.B. 350

17 program that the State legislature enacted in 2011. As Leo and Victor are no longer minors, they

18 now appear in this action for themselves. Defendants at first repeatedly refused to place the

19 brothers in the care of their grandmother, who was ready, willing, and able to provide a safe and

20 appropriate placement for them. Instead, Defendants shuttled the brothers between their father’s

21 house and the home of their mother and her boyfriend, where they were repeatedly abused. The

22 boys were eventually abandoned at Child Haven. While in the custody of Defendants, Leo and

23 Victor did not receive the urgently needed psychiatric care to which they were entitled.

24 Defendants took no steps to arrange psychiatric treatment in response to repeated suicidal threats

25 made by Victor. Additionally, after Victor’s needs and symptoms escalated to the point where he

26 had to be hospitalized twice, Defendants failed to arrange for Victor to receive follow-up

27 treatment by a psychiatrist. Leo and Victor have suffered and continue to suffer injury as a result

28 of Defendants’ policies, customs and omissions.

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1

24. Plaintiffs Delia, Maizy, and Jonathan D. are siblings. Four-year-old Delia was in

2 the legal custody of, and placed in foster care with, Clark County DFS from March 2008 until

3 October 2010. Maizy, age seven, and Jonathan, age six, were in the legal custody of, and placed

4 in foster care with, Clark County DFS from late 2005 until August 2009. Delia, Maizy, and

5 Jonathan appear in this action by S.W., who has adopted all three children and is acting as their

6 next friend. Delia, Maizy, and Jonathan have multiple medical problems and developmental

7 delays. Defendants placed the children in Child Haven as infants, where they did not receive

8 even basic care to meet their medical and nutritional needs. Instead of feeding the children age-

9 appropriate food, the staff at Child Haven kept the children on an inadequate formula diet and

10 failed to adjust the feeding techniques after observing the children regurgitate their food on

11 numerous occasions. Both Maizy and Jonathan were left in their cribs for the majority of their

12 days at Child Haven with limited interaction with adults and other children and few opportunities

13 for exercise or physical development. As a result of this neglect, both children were diagnosed

14 with failure to thrive, a diagnosis made when children are consistently underweight due to

15 environmental and social factors. At the time of the children’s placement with her, S.W. was

16 given little information about their history, background, or special needs. Defendants also failed

17 to provide S.W. with the training, support, or assistance DFS knew she needed in order to meet

18 the medical, developmental, and emotional needs of the children.

19

25. Defendants have actively impeded S.W. from obtaining urgently needed medical

20 treatment for Jonathan and Delia, including neglecting to return calls and failing to provide

21 authorization for at least three necessary procedures. Left untreated, these conditions became so

22 severe that doctors determined they could proceed with the procedures on an emergency basis

23 without Defendants’ authorization. As a result of Defendants’ failure to provide medical

24 treatment when it was urgently needed, Jonathan and Delia have ongoing complications.

25 Jonathan’s colon is now misshapen and needs to be surgically corrected as a result of Defendants’

26 delay in authorizing treatment to remove a calcified stool from his impacted colon. Delia has also

27 had to undergo emergency surgery to remove a tumor located behind her eye. This surgery was

28 delayed because of Defendants’ failure to provide her with necessary and timely medical care,

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1 and Delia had to undergo chemotherapy as a follow-up to the surgery. Delia, Maizy, and

2 Jonathan have suffered and continue to suffer injury as a result of Defendants’ policies, customs

3 and omissions.

4

26. Plaintiff Olivia G., age eleven, was in the legal custody of, and placed in foster care

5 with, Clark County DFS from January 2006 until 2011. Olivia appears in this action by E.F., who

6 has adopted Olivia and is acting as her next friend. During 2005, Defendants received multiple

7 reports that Olivia and her siblings were being abused, but they did not remove Olivia and her

8 siblings from their parents’ care until almost a year after the initial report. Olivia was placed with

9 a series of relatives, but Defendants made no effort to determine whether those relatives were able

10 to provide appropriate care for her or to monitor the care she received in the relative homes.

11 Olivia suffered abuse in those homes, including multiple incidents where she was beaten with a

12 belt. She has been diagnosed as suffering from severely impaired neuropsychological functioning

13 and a range of cognitive and behavioral impairments. Defendants caused Olivia to be

14 administered powerful multiple psychotropic medications without adequate care and monitoring

15 and without periodic reassessments of her psychological condition—Olivia sometimes went for

16 up to eighteen months without a neuropsychological exam or reassessment while in Defendants’

17 care. In April 2009, Defendants placed Olivia with E.F. but failed to provide E.F. with all the

18 information and authorizations required to obtain Olivia’s prescriptions. As a result, Olivia was

19 forced to go through an abrupt, medically contraindicated withdrawal from powerful psychotropic

20 medications. Olivia has suffered and continues to suffer injury as a result of Defendants’ policies,

21 customs and omissions.

22

27. Plaintiff Christine F. is a five-year-old girl who was in the legal custody of, and

23 placed in foster care with, Clark County DFS from May 2008 until June 2010. Christine appears

24 in this action by E.F., who adopted Christine in June 2010 and is acting as her next friend.

25 Christine is a medically fragile child who is severely developmentally delayed and who suffers

26 from permanent disabilities and a seizure disorder. Christine was hospitalized at University

27 Medical Center after falling out of a second-story window at the home of her mother,

28 grandmother, and two uncles. Despite suspicious marks around her ankles, suggesting that

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1 someone had held her out the window by her ankles before dropping her, or had swung her by her

2 legs into a wall, DFS did not investigate the incident and did not take custody of Christine until

3 her parents refused to authorize medically necessary treatments to remedy Christine’s injuries.

4 Approximately six weeks after Christine was medically ready for discharge from the hospital,

5 Defendants finally placed her in the custody of E.F. Defendants failed to provide E.F. with

6 Christine’s seizure medications and offered almost no support or training on how to care for

7 Christine’s extensive special needs. Defendants failed to provide Christine with regular medical

8 care or therapeutic services, such as physical, occupational, and speech therapy. Clark County

9 DFS also allowed Christine’s grandmother, who Clark County DFS knew to have a history of

10 child abuse allegations made against her and who was watching over Christine when she fell from

11 the window, to have unsupervised visits with Christine in her own home, greatly increasing the

12 danger to Christine’s health and safety. Christine has suffered and continues to suffer injury as a

13 result of Defendants’ policies, customs and omissions.

14

28. Plaintiff Mason I. is a fourteen-year-old boy who has been in the legal custody of,

15 and placed in foster care with, Clark County DFS since July 2003. Mason appears in this action

16 by his former foster parent, M.J., who is acting as his next friend. Mason lived with M.J. for

17 nearly 1.5 years, beginning in September of 2008. Deaf since birth, Mason entered foster care at

18 the age of six after enduring sexual, physical, and emotional abuse by his parents and

19 grandparents. He suffers from posttraumatic stress disorder and reactive attachment disorder,

20 among other serious mental health diagnoses. During the first six years he was in Defendants’

21 custody, Mason had been in more than twenty-five placements, including a treatment center in

22 Florida, the National Deaf Academy (“NDA”), to which Defendants transferred Mason for

23 approximately nineteen months. Mason’s only means of communication with others is via

24 American Sign Language. Despite knowing of his impairments, Defendants have failed to place

25 Mason in homes able to meet his special needs. Defendants have not provided Mason with a

26 qualified American Sign Language Interpreter on a consistent basis, thereby depriving him of the

27 ability to effectively communicate with others and participate in and benefit from evaluations and

28 medical treatment. Defendants have routinely failed to fully disclose Mason’s relevant medical,

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1 mental health, family, social or educational backgrounds to Mason’s foster parents, or health and

2 mental health professionals, or to provide him with the medical, mental health, and educational

3 services he needs and to which he is entitled. For example, Defendants failed to provide Mason

4 with proper and medically necessary treatment, including speech therapy, following his receipt of

5 a cochlear implant. Against Mason’s wishes, the NDA staff with whom Defendants placed him

6 rendered Mason’s implant permanently inoperative. Defendants also routinely administered, had

7 administered by caregivers they selected and supervised, or acquiesced in others’ administrating,

8 multiple psychotropic drugs to Mason with little to no information about the individual drugs or

9 their possible interaction. Further, Defendants placed Mason at NDA without ensuring that it was

10 safe and capable of meeting Mason’s needs. Defendants then ignored Mason’s complaints of

11 sexual abuse at NDA, took no steps to investigate or verify his safety or well-being, and never

12 once visited the facility or had a face-to-face interview with Mason while he was there. Mason

13 has suffered and continues to suffer injury as a result of Defendants’ policies, customs and

14 omissions.

15

29. Each Plaintiff appears for themselves or by a next friend, and each next friend is

16 sufficiently familiar with the facts and circumstances surrounding the child’s situation to

17 represent the child’s best interests in this litigation fairly and adequately.

18

THE DEFENDANTS

19

30. Defendant Michael Willden (“Willden”) has been the Director of the Nevada

20 Department of Health and Human Services (“Nevada DHHS”) since July 2001 and is sued in his

21 official and individual capacities. As Director of Nevada DHHS, Defendant Willden is

22 responsible for carrying out the administration of the Nevada Division of Children and Family

23 Services (“State DCFS”), which has responsibility for ensuring the provision of child welfare

24 services throughout the state. NEV. REV. STAT. §§ 232.300, 232.320. Defendant Willden is also

25 responsible for appointing divisional directors, including the Administrator of State DCFS. NEV.

26 REV. STAT. § 232.320. Nevada DHHS, through its Division of Health Care Financing and Policy,

27 is also the single state agency responsible for administering Nevada’s Medicaid program. NEV.

28 REV. STAT. §§ 422.270, 422.271. Defendant Willden is responsible for administering federal

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1 funds and ensuring county compliance with all federal mandates of the Medicaid program. NEV.

2 REV. STAT. § 232.070.

3

31. Defendant Diane Comeaux (“Comeaux”) was the Administrator of State DCFS

4 from June 2008 until December 2011 and is sued in her individual capacity. She was responsible

5 for the administration and oversight of all functions of State DCFS. State DCFS has broad

6 responsibilities to Plaintiffs and other foster children. Among its responsibilities, the Division

7 must administer all federal funds provided to the State by the United States Department of Health

8 and Human Services, as well as plan, coordinate, and monitor the delivery of child welfare

9 services throughout the State. NEV. REV. STAT. § 432B.180. State DCFS is required to

10 promulgate regulations “establishing reasonable and uniform standards for child welfare

11 services.” NEV. REV. STAT. § 432 B.190. Notably, federal law precludes State DCFS from

12 “delegat[ing] to other than its own officials its authority for exercising administrative discretion in

13 the administration or supervision of the plan including the issuance of policies, rules, and

14 regulations on program matters.” 45 C.F.R. §205.100(b)(2). Thus, State DCFS must evaluate all

15 child welfare services provided throughout the State and take corrective action against any agency

16 providing child welfare services which is not complying with any applicable laws, regulations or

17 policies. NEV. REV. STAT. § 432B.180(8). Defendant Comeaux, as Administrator of State DCFS,

18 was also responsible for administering any money granted to the State by the Federal Government

19 with respect to children in the child welfare system. NEV. REV. STAT. § 432B.180(1).

20

32. Defendant Amber Howell (“Howell”) is the current Administrator of State DCFS

21 and has held that position since March 2012. Howell is sued in her official capacity. As the

22 current Administrator of State DCFS, Defendant Howell has taken over the responsibilities of

23 Defendant Comeaux, some of which are listed in paragraph 31.

24

33. Defendants Willden, Comeaux, and Howell are referred to collectively as the “State

25 Defendants.”

26

34. Defendant Clark County is a public entity established and maintained by the laws

27 and Constitution of the State of Nevada. Clark County operates, manages, directs, and controls

28 Clark County DFS and employs and/or is responsible for the other County Defendants in this

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1 action including, but not limited to, caseworkers, supervisors, foster home licensors, and

2 administrators. Clark County has created the Clark County DFS to provide and administer child

3 welfare services in the County.

4

35. Defendant Virginia Valentine (“Valentine”) was the Clark County Manager from

5 August 2006 until January 2011 and is sued in her individual capacity. She was responsible for

6 managing the County’s budget and providing administrative oversight for all County

7 departments, including Clark County DFS.

8

36. Defendant Don Burnette (“Burnette”) is the current Clark County Manager and has

9 held that position since January 2011. Burnette is sued in his official capacity.

10

37. Defendant Tom Morton (“Morton”) was the Director of Clark County DFS from

11 July 2006 until August 2011 and is sued in his individual capacity. He was the Executive Officer

12 of Clark County DFS and was responsible for administering child welfare services in Clark

13 County and for ensuring the safety and well-being of children in or at risk of entering the child

14 welfare system, pursuant to Nevada Revised Statute section 432B.

15

38. Defendant Lisa Ruiz-Lee (“Ruiz-Lee”) is the current Director of Clark County DFS.

16 Ruiz-Lee was first named Interim Director in August 2011 and was named Director in May 2012.

17 Ruiz-Lee is being sued in her official capacity.

18

39. Defendants Clark County, Valentine, Morton, Burnette, and Ruiz-Lee are

19 collectively referred to herein as the “County Defendants.”

20

40. Doe Defendants I through X are, and at all times relevant hereto were, caseworkers

21 for Clark County and Clark County DFS responsible for overseeing the safety, placement, health

22 care, education, and/or well-being of Plaintiffs while in the custody of Clark County DFS, and are

23 sued in their official and individual capacities.

24

41. Doe Defendants XI through XX are, and at all times relevant hereto were,

25 supervisors for Clark County and DFS directly responsible for the supervision of Doe Defendants

26 I through X, and are sued in their official and individual capacities.

27

42. The true names and capacities of Defendants named herein as Does I through XX

28 are presently unknown to Plaintiffs who therefore sue Defendants by fictitious names. When the

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1 true names and positions of these Does are discovered, Plaintiffs will seek leave to amend this

2 complaint and substitute the true names of Defendants. Plaintiffs or their next friends are

3 informed, believe, and therefore allege that Defendants so designated herein are responsible in

4 some manner and legally accountable for the events, occurrences, and harms suffered by

5 Plaintiffs as set forth in this action.

6

43. At all material times, each Defendant acted under the color of the laws of the State

7 of Nevada.

8

44. The acts and omissions of the Clark County Defendants, caseworkers, supervisors,

9 and other employees described herein were pursuant to the actual policies and customs of Clark

10 County.

11

ORGANIZATIONAL STRUCTURE AND RESPONSIBILITIES OF DEFENDANTS

12

Responsibilities and Knowledge of State Defendants

13

45. Until October 2004, Nevada operated a bifurcated child welfare system in which the

14 State’s two counties with populations of over 100,000—Clark and Washoe counties—were

15 responsible for providing child protective services, while the State bore responsibility for

16 providing foster care services. Under this system, abused and/or neglected children removed

17 from their parents or guardians were first placed in the legal and protective custody of Clark

18 County DFS pending the juvenile court’s findings and disposition of the case. Children not

19 returned from protective custody were placed in the legal custody and foster care of State DCFS.

20 Consequently, many foster care children, including plaintiffs Henry and Linda, have been in the

21 legal custody of both the Clark County DFS and the State DCFS.

22

46. As of October 2004, as a result of AB 1 (2001), responsibility for foster care was

23 transferred from State DCFS to Clark and Washoe counties. The State retained responsibility for

24 supervision and oversight of Clark and Washoe counties’ child protective services and foster care

25 programs to ensure, among other things, compliance with federal and state laws, regulations, and

26 standards. The transfer of foster care staff and services from the State to Clark County was

27 completed in October 2004.

28

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1

47. When the State transferred child welfare services from the State to Clark and

2 Washoe counties, “that did not relieve the State of its oversight and management responsibility

3 for child protection and child welfare services.” August 11, 2006 Letter from Sharon M. Fujii to

4 Defendant Willden. Instead, “[t]he integration of child welfare services affirmed the State’s

5 accountability, supervision and management of the child welfare program Statewide.” Id.

6

48. Furthermore, the duties of Nevada DHHS and State DCFS exceed merely

7 documenting and reviewing documentation of Clark County’s failures to provide safe and proper

8 care. In their own words,

9

The Division of Child and Family Services (DCFS) is responsible for Children’s Mental Health (in Clark and Washoe, the two largest

10

populated counties), Youth Corrections, Child Welfare Services and Child Care Licensing. As such, the implementation and

11

administration of Child and Family Services Plan is the responsibility of DCFS. This includes: Title IV-E, Title IV-B,

12

Subpart I (Child Welfare Services) and Subpart 2 (Promoting Safe and Stable Families), Child Abuse and Treatment Act (CAPTA),

13

and the Chafee Foster Care Independence Program (CFCIP).

14 Annual Progress & Services Report (APSR) state fiscal year (SFY) 2011, at 6 (emphasis added).

15

49. Accordingly, State Defendants Willden, Howell and Comeaux are, or were,

16 responsible for the statewide implementation and administration of federal child welfare

17 programs including Titles IV-B and IV-E of the Social Security Act. See NEV. REV. STAT.

18 § 232.300; § 232.320; § 432B.180. In testimony before the state legislature in 2009, Defendant

19 Comeaux acknowledged “DCFS has state oversight for county-administered child protective and

20 child welfare services.” State of Nev. Div. of Child & Family Servs.: Testimony Before the

21 Assemb. Comm. on Health & Human Servs., 75th Sess. (Nev. Feb. 6, 2009) (PowerPoint

22 Presentation accompanying statement of Diane Comeaux),

23 http://www.leg.state.nv.us/Session/75th2009/Exhibits/Assembly/HH/AHH230C.pdf at 7.

24

50. State Defendants receive millions of dollars in federal funds to meet the needs of

25 children in the child welfare system and are therefore required to comply with federal mandates,

26 including those set forth in the Adoption Assistance and Child Welfare Act of 1980, as amended

27 by the Adoption and Safe Families Act of 1997: Titles IV-B and IV-E of the Social Security Act.

28 42 U.S.C. §§ 622 et seq.; 671 et seq. (“Adoption and Safe Families Act”).

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1

51. Between 1996 and 2006 federal financial contribution to Nevada’s child welfare

2 system increased from $31 million per year to over $54 million per year. Federal funds comprise

3 over 50% of all State spending on child welfare.

4

52. Nevada DHHS, through its Division of Health Care Financing and Policy, is also

5 the single state agency responsible for administering Nevada’s Medicaid program. NEV. REV.

6 STAT. §§ 422.270, 422.271. Defendant Willden is responsible for administering federal funds

7 and ensuring county compliance with all federal mandates of the Medicaid program. NEV. REV.

8 STAT. § 232.070.

9

53. State Defendants also are responsible for the management and day to-day operation

10 of Children’s Mental Health Services in Clark and Washoe counties. Children’s Mental Health

11 Services is the Nevada program created to address the needs of children (and their families) with

12 significant emotional and behavioral challenges.

13

54. Children committed to the legal custody of State or County Defendants may be

14 placed in one of several different types of out-of-home placements. These placements include,

15 among others, foster family homes, treatment foster homes, and group homes.

16

55. State DCFS is required to establish and ensure that Clark and Washoe counties

17 comply with minimum standards for licensure of foster family homes, group homes, and other

18 child care facilities in which foster children are placed. NEV. REV. STAT. § 424.020. In carrying

19 out this obligation, State DCFS is required to promulgate regulations establishing uniform

20 standards for the licensing of foster family homes, group homes, and child care institutions. Id.;

21 NEV. REV. STAT. § 432B.190(1).

22

56. For many years, the State Defendants have had knowledge that their failure to train,

23 supervise and adequately monitor DCFS, Clark County, and Clark County caseworkers was

24 seriously harming the foster children in Clark County. These are the same failures that caused

25 Plaintiffs’ injuries. As discussed in Sections I.A.2, I.B.2, and I.C.1-2 herein, Defendants’ failures

26 have been documented extensively in reports and correspondence provided to the State

27 Defendants.

28

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1

57. Evaluations and analyses generated from State Defendants’ own data system, the

2 Unified Nevada Information Technology for Youth (UNITY) System, have also documented the

3 Defendants’ failures. State Defendants are required by federal law to operate such a database,

4 which is called a Statewide Automated Child Welfare Information System (SACWIS). The State

5 Defendants received numerous reports based on the UNITY database that placed them on notice

6 of the problems that caused Plaintiffs’ injuries.

7

58. State Defendants have responsibility to train the Clark County caseworkers who

8 provide foster care services. For example, they must “operate a staff development and training

9 program that supports the goals and objectives in the CFSP [Child and Family Services Plan],

10 addresses services provided under titles IV-B and IV-E, and provides initial training for all staff

11 who deliver these services.” Annual Progress & Services Report (APSR) SFY 2011, at 57. State

12 Defendants are also responsible for providing “ongoing training for staff that addresses the skills

13 and knowledge base needed to carry out their duties.” Id. at 58.

14

59. State Defendants’ responsibility to provide training to Clark County child welfare

15 workers is also clearly documented in the Intrastate Interlocal Contract first entered into by the

16 State and County in 2005. This contract expressly states that State Defendants are responsible for

17 providing training and technical assistance to Clark County. However, the inadequacy of the

18 training provided has been repeatedly documented for many years. See, e.g., February 7, 2006

19 Letter from Sharon M. Fujii to Fernando Serrano (identifying Clark County’s “need for an on-

20 going supervisory training program”); Report to U.S. Representative Shelley Berkley on the State

21 of Clark County DFS (2007) (hereinafter “Berkley Report”) at 9-10 (noting that the state training

22 program for caseworkers was “grossly inadequate” and that “the state has been unsuccessful in

23 developing and delivering training that adequately prepares caseworkers for the job”); Missouri

24 Alliance for Children and Families, Report to Clark County, Nevada DFS, Out of Home Care

25 Resources and Practices (August 2007) at 4 (noting that comprehensive training is not offered to

26 new staff); Final Report: Nevada Child and Family Services Review, U.S. Department of Health

27 and Human Services Administration for Children and Families (2010) at 15 (finding that Nevada

28 was not in substantial conformity with the “Staff and Provider Training” systemic factor and that

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1 the State’s new worker training was “not adequate to provide caseworkers with the skills” to do

2 their jobs). State Defendants’ failure to train caseworkers adequately has led to many of the

3 injuries suffered by Plaintiffs, as discussed in more detail below in Sections I.A.3, I.B.3, and

4 I.C.1-2.

5

60. In 2007, the Nevada legislature enacted A.B. 263. A.B. 263 confirmed not only that

6 the State was required to establish standards for child welfare services, but that it was also

7 required to enforce those standards. NEV. REV. STAT. § 432.0155. If an agency which provides

8 child welfare services was “not complying with any state or federal law relating to the provision

9 of child welfare services, regulations adopted pursuant to those laws or statewide plans or policies

10 relating to the provision of child welfare services,” the State had a duty to require corrective

11 action from that agency. NEV. REV. STAT. § 432B.180(6).

12

61. State Defendants have the duty and responsibility to take action, including

13 providing supervision, oversight and guidance; instituting policies and procedures; training

14 workers; and withholding funds for the failure of the County to comply with its own duties. The

15 failure to take this action has caused the violations of Plaintiffs’ constitutional and statutory

16 rights. State Defendants have failed to fulfill those duties thereby allowing those violations to

17 continue unabated for years, increasing the number of foster children harmed and causing and/or

18 exacerbating the harm suffered by Plaintiffs and class members.

19

Responsibilities and Knowledge of County Defendants

20

62. As noted above, Clark County has been responsible for running the day-to-day

21 operations of both child protective services and the foster care system in Clark County since

22 2004.

23

63. Clark County is responsible for providing funding in an amount set by the County

24 for the provision of child protective services. NEV. REV. STAT. § 432B.325. State DCFS

25 provides the funding to Clark County for the operation of its foster care program. The legislative

26 appropriation for foster care services and all federal funds for child welfare services go to State

27 DCFS. State and County Defendants negotiate a contract—the Intrastate Interlocal Contract with

28

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1 the State of Nevada for Operation of Child Welfare, Eligibility and Foster Care Licensing

2 Programs—detailing the County’s responsibilities and specifying how the funds will be allocated.

3

64. Clark County DFS is also responsible for licensing foster and group homes in which

4 it places foster children in its custody and for ensuring that those homes meet state standards.

5 NEV. REV. STAT. §§ 424.016(1), 424.020, and 424.030. This responsibility includes monitoring

6 foster and group homes to ensure that they continue to meet licensing standards, removing foster

7 children from homes where necessary, and providing support to those homes. NEV. REV. STAT.

8 §§ 424.040, 424.060, 424.077. Licenses must be renewed every two years. NEV. REV. STAT.

9 § 424.030. Licensing is required to protect children from abuse or neglect and ensure that the

10 foster parent can properly care for children. NEV. ADMIN. CODE § 424.100.

11

65. Clark County is also required to “provide to the provider of family foster care such

12 information relating to the child as necessary to ensure the health and safety of the child and other

13 residents of the family foster home.” NEV. REV. STAT. § 424.038.

14

66. In addition, Clark County is responsible for “visit[ing] every licensed family foster

15 home and group foster home as often as necessary to ensure that proper care is given to its

16 children.” NEV. REV. STAT. § 424.040. If Clark County at any time finds that a child in a foster

17 home is “subject to undesirable influences or lacks proper or wise care and management,” Clark

18 County is required to remove the child if that child is in its custody, or if the child is not in Clark

19 County custody, notify the applicable agency. NEV. REV. STAT. § 424.60.

20

67. Upon receipt of a report of child abuse, Clark County is obligated to promptly

21 investigate the claim. NEV. REV. STAT. § 432B.260. As part of that investigation, Clark County

22 is required to determine the composition of the family, household, or facility including the name,

23 sex, and age of any children in the report and their siblings, the person(s) responsible for their

24 care, and any other adults living in the household. NEV. REV. STAT. § 432B.300. Clark County is

25 also required to determine whether there is reasonable cause to believe any child is being abused

26 or neglected. If there is a reasonable cause to believe a child is being abused or neglected, it is

27 the County’s duty to determine the immediate and long-term risks to the child if the child was to

28 remain in the same environment and evaluate what treatment and services appear necessary to

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1 prevent the abuse or neglect. Id. If the County determines that the child is in need of further

2 protection it may refer the case for criminal prosecution and/or take the child into protective

3 custody. NEV. REV. STAT. § 432B.380-390.

4

68. On its website, Clark County Department of Family Services acknowledges that its

5 “role is to help keep children safe.” Clark County Department of Family Services (DFS),

6 http://www.clarkcountynv.gov/Depts/family_services/Pages/default.aspx (last visited July 18,

7 2012). However, numerous studies and reports have found that Clark County is, and has been for

8 years, failing in that role.

9

69. County Defendants are well aware of these failures. County Defendants have failed

10 to adequately train, monitor, and supervise their employees and as result the foster children in

11 Clark County have continued to suffer grave injuries. As discussed in Sections I.A.2, I.B.2, and

12 I.C.1-2 herein, these failures have been documented extensively in reports and correspondence

13 provided to the County Defendants.

14

70. County Defendants’ actions, and failures to act, have caused many of the injuries

15 suffered by Plaintiffs, as discussed in more detail below in Sections I.A.3, I.B.3, and I.C.1-2. As

16 discussed above and in Sections I.A.2, I.B.2, and I.C.1-2 herein, County Defendants have known

17 about these problems for years.

18

71. County Defendants also have been on notice of the above problems as a result of

19 multiple lawsuits brought against them by other foster youth who have been injured while in

20 Clark County’s custody.

21 I. 22 23

ALLEGATIONS REGARDING DEFENDANTS’ POLICIES, CUSTOMS AND OMISSIONS
A. Defendants Fail to Inform Foster Parents and Other Caregivers of Essential Information Necessary for Stable and Successful Placements

24

1. Federal and State Laws Require Caseworkers to Provide Foster

Parents Specific Information About a Child’s Health and Behavioral

25

Background Before Placing the Child

26

72. When Defendants remove a child from his home and take him into protective

27 custody, they assume an obligation to place him into a safe and appropriate living situation with

28 foster parents or other caregivers to take care of him. See, e.g., 42 U.S.C. § 671(a)(22).

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1

73. To fulfill that obligation, federal law mandates, among other things, that “before a

2 child in foster care under the responsibility of the State is placed with prospective foster parents,

3 the prospective foster parents will be prepared adequately with the appropriate knowledge and

4 skills to provide for the needs of the child, and that such preparation will be continued, as

5 necessary, after the placement of the child.” 42 U.S.C. § 671(a)(24).

6

74. The Federal Foster Care and Adoption Assistance Act also requires that within 60

7 days of removal from the home, caseworkers must develop a case plan for each foster child that

8 includes the child’s health and education records, known medical problems and prescribed

9 medications, and other relevant related information. 42 U.S.C. §§ 671(a)(16), 675(1), 45 C.F.R.

10 §1356.21(g)(2). This Act also expressly requires that the caseworker provide an updated copy of

11 the child’s record to the foster parent or provider at the same time the caseworker places the child

12 with that parent or provider. 42 U.S.C. § 675(5)(D).

13

75. Nevada law also requires County DFS and/or State DCFS to provide prospective

14 foster parents with specific information about the child, including information about the child’s

15 family, medical, and behavioral history, before placing that child with the foster parents. NEV.

16 REV. STAT. § 424.038. The purpose of sharing such information is to identify and provide for the

17 most appropriately matched foster home. NEV. REV. STAT. § 424.038(1), NEV. ADMIN. CODE

18 § 424.465. State regulations further require that information about the child’s situation and needs

19 be continually shared by the child welfare agency and the foster care providers in a timely

20 manner, thereby ensuring that the child’s needs are continuously addressed with appropriate

21 services, including respite for foster care providers. NEV. ADMIN. CODE §§ 424.805, 424.810.

22

76. State DCFS acknowledges these obligations. Its Substitute Care Manual expressly

23 requires that its social workers inform a child’s foster care providers about that child’s known

24 history, including the child’s current and previous behavior and any “acting out” behavior.

25 Substitute Care Manual, Chap. 201. As required by law, the Manual requires the social workers

26 to provide this information to the foster parents before placing the child. The Manual cautions:

27 “[C]are providers need as much information as possible . . . to decide if they are capable of caring

28 for the child.” Id.

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1

77. Both federal and state laws require caseworkers to provide this information before

2 or during placement to ensure that the prospective foster parent, relative, or other caregiver has

3 sufficient information to make an informed judgment about his ability to provide the child with

4 safe and appropriate care and to ensure that the placement selected for the child will remain

5 stable, thereby avoiding another move for a child already traumatized by his removal from home.

6 Further, placing a child with severe psychological and/or behavioral problems in a home that is

7 not equipped to handle him puts both the child and the foster family members at risk of harm.

8

78. Defendants acknowledged that once they place a child into a foster home, keeping

9 his placement as stable as possible is crucial to that child’s well-being. Clark County Placement

10 in Substitute Care Policies and Procedures § 3000. Conversely, removing a child from his foster

11 home and sending him to yet another placement is a serious disruption in the child’s life that can

12 have devastating effects. Removal causes the child to lose any sense of stability he developed in

13 the home and can prevent him from receiving vital medication, counseling, educational or

14 therapeutic services. Moving a child repeatedly can prevent the child from developing

15 attachments, cause severe emotional trauma, and exacerbate existing mental health and behavioral

16 problems. It is therefore critical that Defendants’ caseworkers fulfill the agency’s obligation to

17 provide the requisite information to the foster parents to ensure the success of each foster child’s

18 placement.

19

79. In addition, failure to disclose information about the child’s health care needs and

20 history can also result in delays in getting appropriate assessments and treatment. Foster parents

21 unaware of the child’s past providers, diagnoses, and treatments cannot provide crucial history

22 information to the child’s healthcare providers. It is therefore critical for the provision of

23 necessary medical and mental health treatment that Defendants fulfill their information-gathering

24 and sharing obligations.

25

26

27

28

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1

2. Defendants’ Policies, Customs and Omissions Violate Federal and

State Law Regarding the Provision of Information to Foster Parents

2

3

80. Defendants’ policies, customs and omissions, including, but not limited to the State

4 and County Defendants’ failure to properly train and supervise caseworkers, result in their routine

5 failure to provide the required information about foster children to foster parents.

6

81. The most recent Federal Review based on data from UNITY indicated that only

7 approximately 53% of children had case plans within 45 days of removal from the home. This

8 data confirms that a specifically identified deficiency noted in the 2004 Federal Review continues

9 to be a serious problem. State and County Defendants were aware of the 2004 review and

10 subsequent reviews. See August 11, 2006 Letter from Sharon M. Fujii to Defendant Willden;

11 Berkley Report at 3-4. Thus, Defendants are well aware of their routine failure to collect

12 necessary information in the first place.

13

82. Even when State Defendants have collected highly relevant medical and mental

14 health information about foster children, they routinely fail to share that information with County

15 actors to whom the State Defendants have delegated such critical responsibilities in the foster care

16 arena, making it impossible for caseworkers to pass the information on to foster parents. On

17 information and belief, because most children entering foster care are enrolled in Medicaid,

18 information about their medical history should be readily available in databases maintained by

19 Nevada DHHS. This is also the case with information maintained by State Defendants’

20 Children’s Mental Health Services program, which is responsible for providing mental health

21 services to Plaintiffs and other children in Clark County who are in need of mental health

22 screenings, assessments, and treatment. On information and belief, State Defendants do not

23 provide critical information within their possession and control to County Defendants to ensure

24 that foster parents receive accurate and complete health histories of the foster children.

25

83. The failure of Defendants’ caseworkers to fulfill the obligation to share required

26 information about the children in their custody and care with foster parents is foreseeable.

27 Defendants employ many caseworkers who are not adequately educated or trained regarding how

28 to collect the necessary and required information about foster children or what information they

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1 must share with prospective foster parents. In fact, Defendant Comeaux herself had no

2 background education in this area. A large majority of County Defendants’ caseworkers do not

3 have degrees in social work, even at the bachelor’s level, and approximately one-third of the

4 caseworkers have been at their jobs for less than one year. Compounding these caseworkers’ lack

5 of education and experience, upon information and belief, Defendants allow new caseworkers to

6 proceed in the field for months before providing them with even the initial, basic training. Nor

7 are caseworkers who fail to provide the requisite information to foster parents in violation of

8 federal and state law held accountable through supervision.

9

84. State Defendants have long had knowledge of this failure to share required

10 information and failure to train caseworkers to do the same. Multiple reports and surveys

11 conducted by State Defendants’ own task forces as far back as 2005 have noted that 40% or more

12 of foster parents surveyed reported that they had not received sufficient background information

13 about foster children placed in their homes. See, e.g., State of Nevada DHHS, State Child

14 Welfare Multidisciplinary Team, Monthly Report, December 2006 at 18; State of Nevada DHHS,

15 State Child Welfare Multidisciplinary Team, Quarterly Report, January-March 2007 at 23-24;

16 State DCFS—which State Defendants now or once did oversee—authored these reports and

17 worked to review their findings with County Defendants’ staff. See also UNLV School of Social

18 Work, “A Survey of Foster Parents’ Satisfaction Toward Nevada’s System of Child Welfare,”

19 February 15, 2006, at 11 (finding that over 40% of foster parents surveyed as part of a study

20 commissioned by State Defendants felt their caseworker had not informed them of their foster

21 child’s behavioral or emotional needs prior to placement). In one such report, State Defendants

22 noted that foster parents reported a failure to receive sufficient background information in 67% of

23 cases reviewed; that same month, 72% of foster parents reported having to request a child’s

24 removal due to placement challenges related to lack of medical or behavioral information. State

25 of Nevada DHHS, State Child Welfare Multidisciplinary Team, Quarterly Report, January-March

26 2007 at 24.

27

85. County Defendants have also had knowledge of the failure to share required

28 information and failure to train caseworkers to do the same. In addition to their involvement with

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1 and/or knowledge of the reports noted above, Defendant Morton himself has linked this

2 shortcoming to State Defendants’ failure to properly train County caseworkers. According to

3 Defendant Morton, “Staff have never been comprehensively trained in what information to seek

4 and how to seek it. Consequently, the majority of case contact notes reflect little or no

5 information about the functioning of children and caretakers or their progress toward case goals.

6 Safety and risk factors are often missed or misinterpreted. Many caretaker and child needs are

7 never identified.” Berkley Report at 10. An independent report contracted by Clark County also

8 indicates that “the system does not exist that facilitates … sharing of information” with foster

9 parents regarding the needs of foster children prior to placement. Missouri Alliance for Children

10 and Families, Report to Clark County, Nevada DFS, Out of Home Care Resources and Practices

11 (August, 2007) at 8. Defendant Clark County, which Defendant Valentine oversaw, contracted

12 for the creation of this report, and its authors interviewed staff from Clark County DFS, which

13 Defendant Morton oversaw. See id. at 2, 3.

14

3. Plaintiffs Have Been Injured as a Result of Defendants’ Failure to

Provide Required Information

15

16

86. Defendants’ policies, customs and omissions regarding withholding critical and

17 required information about children caused injury to children in Defendants’ custody, including

18 Plaintiffs, by causing frequent and avoidable movements from one failed placement to another,

19 and by causing the disruption, delay and/or withholding of services needed by Plaintiffs. For

20 example:

21

(a) Defendants had significant and extensive information about Henry’s history,

22 including that Henry had (1) suffered severe physical abuse from his mother before entering

23 foster care; (2) received numerous diagnoses of serious and often conflicting mental health

24 disorders from a variety of mental health providers; (3) been administered psychotropic

25 medications, including multiple medications at the same time; and (4) was prone to extremely

26 erratic behavior. Defendants failed to provide this information to prospective foster parents. In

27 May 2009, when M.J. met with Defendants’ caseworkers to decide whether to take Henry into her

28 home upon his discharge from a treatment facility, M.J. was told only that Henry “might” have

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1 ADHD, and that he no longer needed a higher level of care. Defendants did not provide any

2 information or written record of Henry’s medications, other diagnoses, or significant mental

3 health and behavioral issues, and they failed to discuss Henry’s discharge plan with M.J. or to put

4 her in contact with any psychiatrist who had treated Henry to discuss continuation of his care or

5 how to administer his many medications. In fact, M.J. learned for the first time that Henry was

6 on multiple psychotropic medications when she picked him up from treatment and was given a

7 plastic bag containing Adderall, Abilify, Trileptal, and other prescription drugs. When he arrived

8 in M.J.’s home, Henry was aggressive and threatening toward M.J. and her other children. It was

9 only after M.J. brought Henry to meet with a psychiatrist that M.J. learned from Henry’s

10 caseworker of Henry’s extensive history of psychiatric problems and erratic behaviors. Henry’s

11 aggressive behavior continued, and he was eventually admitted to two psychiatric facilities.

12 Since being admitted, Henry has not been returned to M.J.’s care. Henry’s multiple placements

13 have disrupted his medical and mental health care and deprived Henry of the consistent

14 assessment and treatment needed to address his multiple physical and mental health needs.

15 Defendants’ failure to provide M.J. with the information described here prevented M.J. from

16 assessing her ability to handle a child with his high level of special needs, placed his safety and

17 the safety of M.J. and her other children at risk, and ultimately caused the placement to fail. In

18 addition, Defendants have shuttled Henry among more than ten different mental health providers.

19 Upon information and belief, Clark County DFS did not provide many of these mental health

20 providers with information about Henry’s health history, previous providers, assessments, and

21 treatment. Defendants’ failures also impaired the continuity and effectiveness of Henry’s mental

22 health care. Henry has suffered injuries to his health, safety and well-being as a result of

23 Defendants’ policies, customs and omissions.

24

(b) In 2007, when Olivia was seven years old and in Defendants’ custody, a neuro-

25 psychological evaluation found that she had “severely impaired neuropsychological functioning”

26 and a range of cognitive and behavioral impairments. Olivia was placed on multiple psychotropic

27 medications, including an antipsychotic and medications for bipolar disorder and ADHD. In

28 March 2009, Defendants moved Olivia to a treatment foster home. Upon information and belief,

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1 Defendants did not provide the foster parents with an accurate and complete description of

2 Olivia’s mental and behavior health and other special needs prior to placing her in their home.

3 Within two weeks of her arrival, Olivia was admitted to Monte Vista, and the treatment foster

4 parents refused to accept her back into their home. While Olivia was a patient at Monte Vista,

5 she was administered at least three different medications, including an antipsychotic. Upon

6 Olivia’s discharge from Monte Vista, Defendants placed her with E.F. Defendants failed to

7 provide E.F. with information about Olivia’s medications and failed to grant her the authorization

8 necessary to obtain them through Medicaid. As a result, E.F. was unable to fill Olivia’s

9 prescriptions for the drugs she was then taking. Defendants’ failure to secure Olivia’s

10 medications forced Olivia to go through an abrupt and painful withdrawal from powerful

11 psychotropic drugs. Upon information and belief, the abrupt withdrawal of a child from such

12 medications is medically contraindicated and posed a grave risk to her health and safety.

13 Defendants’ failure to provide full and accurate information regarding Olivia’s history and mental

14 health and behavioral needs caused her March 2009 placement to fail. Olivia suffered injury to

15 her health, safety and well-being as a result of Defendants’ policies, customs and omissions.

16

(c) Before entering Defendants’ custody, Leo and Victor suffered physical,

17 emotional, and sexual abuse at the hands of their parents and other adults with whom they lived at

18 various times. In April of 2007, while the brothers were living at Child Haven, Victor became

19 severely depressed and threatened to hang himself. He exhibited harmful and destructive

20 behaviors toward himself and other children in the group home. In May and June 2007, Victor

21 was hospitalized at two different psychiatric institutions. In June 2007, Defendants placed Leo

22 and Victor with a foster parent who had a developmentally delayed teenaged granddaughter living

23 in the home. Upon information and belief, Defendants failed to provide the foster parent with

24 sufficient information about Leo’s and Victor’s history of physical and sexual abuse, multiple

25 placements, and psychiatric problems for her to make an informed decision about accepting

26 placement of the children, and determine the level of care and supervision they would need upon

27 joining her home. Just weeks after accepting Leo and Victor into her home, and with no

28 knowledge of the boys’ history of abuse, the foster mother left the children unsupervised, and

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1 Victor and the teenaged granddaughter had sexual intercourse. The placement was terminated

2 immediately. Victor was given three years probation, and experienced multiple additional

3 placements before he was eventually sent to a youth prison in Elko. Leo was eventually placed

4 with his grandmother. Defendants’ policies, customs and omissions resulted in the failed

5 placement and injured Victor’s and Leo’s health, safety and well-being.

6

(d) In March 2009, Defendants removed Charles and Charlotte from their parents’

7 home and placed them in a foster home. In the next twelve months, Charles and Charlotte lived

8 in at least twelve different placements, including multiple stays at Child Haven for only a day at a

9 time. Upon information and belief, when Defendants placed Charles and Charlotte with foster

10 parents, Defendants failed to provide the foster parents with sufficient information about the

11 children’s background and needs to enable them to make informed decisions about their ability to

12 care for the children, and as a result, multiple placements failed. Charles and Charlotte suffered

13 injury to their health, safety and well-being as a result of Defendants’ policies, customs and

14 omissions.

15

(e) In the fifteen years that Linda was in Defendants’ custody, she was in more

16 than forty placements, including foster homes, shelters, group homes, and psychiatric hospitals.

17 She has suffered abuse and neglect throughout her time in foster care and has been placed on

18 psychotropic drugs, including multiple drugs at the same time. Upon information and belief,

19 Defendants failed to provide multiple foster parents with whom they placed Linda with required

20 information about her background, special needs, medication history, prior placement history, and

21 other information necessary for the foster parents to make informed decisions about their ability

22 to provide adequate care for Linda. Defendants’ failures caused multiple foster families to

23 terminate her placements. As a result of Defendants’ policies, customs and omissions, Linda

24 suffered injury to her health, safety and well-being.

25

(f) Upon information and belief, Defendants failed to disclose to prospective foster

26 parents Mason’s history of maltreatment, his behaviors, the results of his mental health

27 evaluations and treatment, and other information critical to making an informed decision about

28 their capacity and willingness to provide safe and adequate care for Mason, and how their

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1 acceptance of Mason might affect the other children in their foster home. Some of the foster

2 homes in which Defendants placed Mason were incapable of meeting his needs. For example,

3 Defendants placed him with newly licensed, completely inexperienced foster parents who were

4 not properly equipped to care for Mason. As a result of Defendants’ policies, customs and

5 omissions, Mason was injured.

6

87. As the direct and proximate result of Defendants’ policies, customs and omissions

7 regarding the failure to collect, and/or the withholding of, critical and required information, as

8 alleged herein, Plaintiffs have endured repeated failed placements, lack of access to continuous

9 and/or effective mental health care, abuse, and neglect, and have been forced to take numerous

10 psychotropic drugs. As a result of these experiences, Plaintiffs have suffered bodily harm,

11 substantial physical and emotional pain and suffering, humiliation, extreme and severe mental

12 anguish, acute anxiety, emotional and physical distress, and fear and depression, all to their

13 damage and detriment.

14

4. It Is Likely that Plaintiffs and Others Will Continue to Suffer Harm as

a Result of Defendants’ Policies, Customs and Omissions

15

16

88. Defendants’ policies, customs and omissions regarding the collection and sharing of

17 critical information about foster children make it likely that the Plaintiffs still in Defendants’

18 custody, and others, will continue to suffer harm in Defendants’ custody.

19

89. A federal audit of a sample of Defendants’ data from 2007 and 2008 indicates that

20 during these years, almost a quarter of the children who were in foster care for less than a year

21 moved to three or more placements. Similarly, almost half of children who remained in foster

22 care between one and two years moved to three or more placements. A 2008 UNLV Performance

23 Audit showed that almost one-third of children in foster care had been in multiple school

24 placements since coming into care. Nevada Institute for Children’s Research and Policy,

25 Performance Audit of Nevada’s Child Welfare System, Final Report for the Legislative Counsel

26 Bureau Audit Division (2008) (hereinafter “UNLV Performance Audit”) at 46. Staff at State

27 DCFS, which Defendant Comeaux supervised in mid-2008, were interviewed as part of the audit.

28

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1

90. This data comes as no surprise to Defendants. Defendants have been on notice for

2 years that children in their custody are frequently shuttled from one temporary placement to

3 another. The 2004 federal performance review of Nevada’s child welfare system found that

4 only 31% of foster children in Clark County had stable placements. Many of the children who

5 experienced multiple placements were under five years of age.

6

91. Defendants’ policies, customs and omissions regarding their withholding of

7 information from foster parents reflect a deliberate indifference to the health and safety of those

8 children, constitute a substantial departure from professional standards, and evidence a lack of

9 professional judgment.

10

92. Unless Defendants change their policies and customs to ensure that foster parents

11 receive the required information about foster children before accepting them into their care, the

12 Plaintiffs still in custody, and other foster children, likely face future injury from the failure of

13 those placements, and from the disruption, delay, and/or withholding of services that results when

14 Defendants fail to share critical information.

15

B. Defendants Fail to Provide Foster Children with Necessary Medical and

Mental Health Treatment to Which They Are Entitled

16

1. Federal and State Laws Require Defendants to Provide Timely

17

Medical and Mental Health Services to Meet the Needs of Children in

Their Custody

18

19

93. The Fourteenth Amendment to the U.S. Constitution provides foster children in

20 government custody with substantive due process rights to services necessary to prevent foster

21 children from deteriorating or being harmed physically, developmentally, psychologically, or

22 otherwise while in government custody, including adequate mental, dental, psychiatric, and

23 psychological services and the right to receive care, treatment, and services determined and

24 provided through the exercise of accepted, reasonable professional judgment.

25

94. Federal laws require Defendants to provide foster children with medical and dental

26 care and mental health treatment when needed. Federal law grants foster children the right to

27 services to protect their safety and health. 42 U.S.C. § 671(a)(22). Similarly, state law requires

28 that Defendants provide services to foster children to address their needs while in foster care.

AMENDED COMPLAINT

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1 NEV. ADMIN. CODE 432B.400, NEV. ADMIN. CODE § 432B.405. Those services include, but are

2 not limited to, medical, hospital, psychiatric, surgical or dental services, or any combination

3 thereof. NEV. REV. STAT. 432B.044, NEV. REV. STAT. § 432.010(8). It is State DCFS policy to

4 “ensure that physical, developmental and mental health needs of custodial children are identified

5 and diagnosed through the use of standardized, periodic screenings.” State Child Welfare

6 Policies and Procedures, Nevada Division of Child and Family Services Policy Manual

7 § 0207.2.1. It is also State DCFS policy to “identify and respond to the needs of children under

8 the age of three with developmental delay(s).” Id. § 0502.2.1.

9

95. Defendants provide medical services to foster children in their custody primarily, if

10 not exclusively, through the Medicaid program. As broad as the overall Medicaid umbrella is

11 generally, the initiatives aimed at children are even more expansive. When Congress amended

12 the Medicaid statute in 1989, it made the provision of Early and Periodic Screening, Diagnostic,

13 and Treatment services (“EPSDT”) to Medicaid eligible children mandatory for participating

14 states. 42 U.S.C. §§ 1396d(r), 1396d(a)(4)(B). When medically necessary, states are required to

15 make available to Medicaid eligible children all of the twenty-eight types of care and services

16 included as part of the definition of “medical assistance” in the Medicaid Act, including

17 “necessary health care, diagnostic services, treatment and other measures . . . to correct or

18 ameliorate defects and physical and mental illnesses and conditions discovered by the screening

19 services[.]” 42 U.S.C. §§ 1396d(r)(5).

20

96. The breadth of Medicaid’s EPDST requirements is underscored by the statute’s

21 definition of “medical services.” Section 1396d(a)(13) defines as covered medical services any

22 “diagnostic, screening, preventative, and rehabilitative services, including any medical or

23 remedial services . . . for the maximum reduction of physical or mental disability and restoration

24 of an individual to the best possible functional level.” 42 U.S.C. § 1396d(a)(13) (emphasis

25 added). The Medicaid Act further requires that medical assistance “shall be furnished with

26 reasonable promptness to all eligible individuals.” 42 U.S.C. §1396a(a)(8) (emphasis added).

27

97. Federal laws also require that State DCFS provide methods to (a) inform foster

28 children or their caretakers about EPSDT programs, (b) provide foster children on request with

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1 “screening (periodic comprehensive child health assessments); that is, regularly scheduled

2 examinations and evaluations of the general physical and mental health, growth, development,

3 and nutritional status,” and (c) provide foster children diagnostic and treatment services.

4 42 C.F.R. § 441.56(a)-(c).

5

98. State DCFS policy, most recently revised in November 2011 and sent from

6 Defendant Howell to Defendant Ruiz-Lee, requires that children in the custody of a child welfare

7 agency “will receive a Nevada Medicaid Healthy Kids screening exam (EPSDT).” Nevada

8 Division of Child and Family Services, Statewide Policy Manual: Health Services, § 0207.5.

9 Screenings must include, but are not limited to, comprehensive health and development/behavior

10 history; developmental/behavioral assessment; and comprehensive unclothed physical exam. Id.

11 State DCFS policy also determines the frequency of such screenings: children under 1 year are to

12 receive 6 screenings; children from 1-2 years are to receive a total of 4; and the frequency lessens

13 as children age. Id. § 0207.5.5. State DCFS policy requires Clark County DFS to develop

14 internal policies to comply with these requirements, to document referrals in a state database

15 within five days of the referral, and to ensure that supervisors verify that screening exams take

16 place on all children who enter foster care within the designated time frame and per the

17 designated periodic screening schedule and “that any other health exams, assessments/evaluations

18 diagnosis, prescription medications, treatments, and /or referrals” are documented by the

19 caseworker. Id. § 0207.6. Overall, the policies aim “[t]o facilitate that children in custodial care

20 receive all necessary health care services.” Id. § 0207.2.2.

21

99. It is County DFS policy to “assure[] the safety of each child in its care and custody

22 by providing a pre-placement health screening for initial placement or any placement movement”

23 and “ensure[e] that foster children participate in Nevada’s EPSDT program.” County DFS

24 Medical Case Management Unit Policies and Procedures § 9130, discussion draft, dated

25 December 19, 2008. On information and belief, these policies and procedures are now in place.

26 County DFS also has undertaken the responsibility to “[e]nsure completion of Early Periodic

27 Screening, Diagnostic and Treatment (EPSDT) examination and any required medical follow-up

28 care within fourteen (14) days for all children who enter substitute care.” Id. § 9120.

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1

100. In addition to the required screenings and treatments, caseworkers are required to

2 visit foster children at their placements on a monthly basis. NEV. ADMIN. CODE § 432B.405.

3 Such visits provide opportunities for the caseworker to observe whether a child has unmet

4 medical and mental health needs or is in need of additional screening and treatment.

5

2. Defendants’ Policies, Customs and Omissions Cause Defendants

Regularly and Routinely to Fail to Provide Required Screenings and

6

Treatment to Which Foster Children in Their Custody Are Entitled

7

101. State and County Defendants have long had knowledge of their failure to provide

8 services and the periodic screenings required by law. The 2008 UNLV Performance Audit found

9 that in 60% of the cases reviewed, foster children had not received the mandatory EPSDT

10 screening/wellness check when they entered foster care. UNLV Performance Audit at 45. This

11 audit also found that only 46.2% of children with identified mental health needs received mental

12 health screenings. Id. at 45. Staff at State DCFS, which Defendant Comeaux supervised in mid-

13 2008, were interviewed as part of the audit. As the recommendations were given to both Clark

14 County and the State Department of Child and Family Services, County and State Defendants

15 were well aware of their failure to meet the mental health needs of the children. See id. at 11.

16 The 2009 Federal Review found that caseworkers had made no concerted effort to address

17 children’s mental health needs in 33% of the cases sampled. Final Report: Nevada Child and

18 Family Services Review, U.S. Department of Health and Human Services Administration for

19 Children and Families (2009) at 58. The County Defendants were also clearly aware of the

20 findings of the Federal Review, as it is referenced on their website. See Clark County website,

21 available at http://www.clarkcountynv.gov/Depts/family_services/Pages/CFSRReport.aspx.

22 (citing performance audit).

23

102. State and County Defendants’ own evaluations and commissioned reports

24 document that even when Defendants do assess children to determine what services they need,

25 Defendants routinely fail to provide them with the necessary services. A 2007 County Case

26 Review found that Clark County DFS met the health and mental health needs of only 50% of the

27 children whose cases were reviewed in 2006 and only 57% of the cases reviewed in 2007. 2007

28 DCFS County Case Review, at 8. The January 2010 CFSR documented that only 54% of Clark

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1 County foster children receive adequate services to meet their physical and mental health needs.

2 2010 CFSR at 55. The UNLV Performance Audit found that, of the children referred for mental

3 health services, 45.5%—nearly half—did not receive the recommended services. UNLV

4 Performance Audit at 45. Furthermore, Defendants do not ensure that children with mental health

5 needs receive individualized treatment that addresses their particular needs. See, e.g., Berkley

6 Report at 10 (Defendant Morton himself has admitted that “regardless of what [needs are]

7 identified, the same limited array of services is offered rather than individualizing services around

8 the unique needs of the child and family”). Instead, as detailed below, many children with serious

9 mental health needs receive only medication to control their behavior, rather than therapeutic

10 services to treat their underlying mental health issues.

11

103. State and County Defendants have also known about the particular problem of

12 medicating foster children rather than providing them with therapeutic services. In

13 September 2008, the Children’s Attorneys Project (CAP) of the Legal Aid Center of Southern

14 Nevada, which represents several hundred foster children in Clark County, sent a letter to

15 Defendants Willden and Morton addressing the inadequate mental health services their clients

16 were receiving, including that: medication is often the only mental health treatment foster

17 children receive; children are sent from one psychiatric facility to another, typically with new

18 diagnosis and treatment regimes at each facility, with no consultation between providers at the

19 different facilities; and children who could be treated in outpatient facilities are instead confined

20 in hospital settings. The letter was signed by Barbara Buckley, the Executive Director of the

21 Legal Aid Center of Southern Nevada, who also was the Speaker of the Nevada Assembly at that

22 time. The letter described these inadequacies as “both systemic and of such magnitude as to

23 actually put our clients at risk.” See also Berkley Report at 12 (Defendant Morton asserts that

24 “[o]ften, when a child is stabilized in an in-patient facility and ready for release, there is no lower

25 level of care provider willing or able to accept the child”).

26

104. Defendant Comeaux acknowledged in testimony before the Nevada legislature

27 during its 2009 session that the state’s UNITY system was not accurately tracking foster children

28 who were being administered psychotropic medications and that caseworkers were not aware of

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1 the medications a child was receiving and not monitoring and overseeing those medications.

2 Assembly Bill 364: Makes Various Changes Concerning the Protection of Children: Hearing on

3 A.B. 364 Before the Assemb. Comm. on Health & Human Servs., 75th Sess. (Nev. Apr. 8, 2009)

4 (statement of Diane Comeaux),

5 http://leg.state.nv.us/Session/75th2009/Minutes/Assembly/HH/Final/870.pdf at 83.

6

105. In 2011 and 2012, the Nevada Legislative Auditor also noted serious problems in

7 the provision of medication to Clark County foster children. A 2011 Legislative Auditor Report

8 concluded that medication management processes and procedures in six facilities were

9 inadequate. Nevada Legislative Auditor, Review of Governmental and Private Facilities for

10 Children (October 2011), at 7. As both State and County facilities were examined, both State and

11 County Defendants were well aware of this audit. See id. at 4 (thanking the management and

12 staff of the audited facilities for their assistance during the reviews); see also

13 http://www.lasvegassun.com/news/2011/oct/17/state-inspectors-find-foster-children-living-unhea

14 (discussing the results of this audit and the notification of Clark County of substandard conditions

15 of at least one foster home). For example, the report noted that at one location, eight of ten

16 medication files were missing important documentation, including doctors’ orders for medication

17 and medication logs. Id. at 18. The reviewers also found an empty syringe on the floor and

18 medications stored in areas accessible to youth. Id. at 14. A 2012 Legislative Auditor Report

19 found that eight of ten files reviewed in a foster home were missing important documentation

20 about the medications being administered in the home. Nevada Legislative Auditor, Review of

21 Governmental and Private Facilities for Children (April 2012), at 38. The auditors also found

22 evidence that a youth was given the incorrect dosage of a prescription for more than two months

23 and physician orders to change medications and begin new medications were not followed. Id.

24 As both State and County facilities were examined, both State and County Defendants were well

25 aware of this audit. See id. at 3 (thanking the management and staff of the audited facilities for

26 their assistance during the reviews).

27

106. Defendants’ policies and customs with respect to psychotropic drugs are a key

28 aspect of their failure to provide required screenings and treatment. Psychotropic medications,

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1 including antidepressants, antipsychotics, mood stabilizers, and tranquilizers, are powerful drugs

2 that affect the central nervous system. Some of these medications can cause users to become

3 addicted. Many of these drugs carry potentially serious side effects, such as diabetes, obesity, and

4 liver failure, and have the potential to adversely affect children’s brain chemistry later in life.

5 The FDA has not approved such drugs for the widespread uses for which they are being

6 prescribed to the foster children in Defendants’ custody. Administering a combination of two or

7 more psychotropic drugs can cause adverse reactions that endanger the patient’s health. Little to

8 no data exists to support the prescribing of multiple psychotropic medications in the pediatric

9 population.

10

107. Rather than provide mental health services with necessary psychiatric treatment,

11 such as individual therapy, group counseling, or other types of care that meet their mental health

12 needs, Defendants have elected to respond to many foster children’s issues by allowing

13 widespread administration of powerful psychotropic medications, often in combination.

14 Defendants’ policies, customs, and omissions permit the routine administration of these drugs to

15 subdue a child’s misbehavior and make the child easier to control, without regard to the side

16 effects and potential dangers of these medications and whether the drugs are medically necessary.

17 Defendants fail to ensure that psychiatrists who prescribe psychotropic drugs comply with

18 professional standards for doing so, including ensuring that such psychiatrists have a

19 specialization in child and adolescent psychiatry and have received training in the use of these

20 medications in the child’s age group. Further, Defendants fail to ensure psychiatrists are provided

21 with child-specific information, including the child’s health history, physical exam, psychosocial

22 assessment, and mental health, co-morbid conditions, family history, and school records, required

23 to conduct a thorough examination in accordance with professional standards, before prescribing

24 psychotropic medications. Defendants have failed to control and monitor the administration of

25 these drugs to foster children, jeopardizing their health and safety.

26

108. Once a child begins taking a psychotropic medication, it is critical that the child

27 receive proper monitoring to ensure that the drug is having its intended effect and is not causing

28 harm. Such monitoring requires sufficient time to assess clinical response and side effects.

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1 Professional standards therefore require that the doctor monitor, among other things, the child’s

2 height, weight, blood pressure, blood test results, and other laboratory findings and make any

3 adjustments to the dosage or type of medication that may become necessary. Psychosocial

4 interventions, including psychotherapy, are frequently required along with the medication.

5 Defendants fail to ensure that the necessary monitoring takes place or that other psychosocial

6 interventions are provided to foster children, including Plaintiffs.

7

109. As a direct and foreseeable result of Defendants’ policies, customs and omissions,

8 including but not limited to the State and County Defendants’ failure to properly train and

9 supervise caseworkers, foster children who are administered psychotropic medication do not

10 receive proper monitoring, including psychotherapy, to ensure that the drug is having its intended

11 effect and is not causing harm. This problem is exacerbated when foster children change

12 placements, because in those instances, the children are often forced to change health care

13 providers, including psychiatrists. As a result of Defendants’ policies, customs and omissions,

14 Defendants often fail to transmit a child’s assessments, diagnoses, medication history, and

15 treatment records to the new treating physician. Defendants do not require a child’s current and

16 former mental health providers to consult on the treatment plan. As a direct and foreseeable

17 result, children routinely receive new and often conflicting diagnoses from their new doctors and

18 may begin taking different or additional medications, increasing the risk of harm to the child.

19

3. Plaintiffs Have Been Injured as a Result of Defendants’ Failure to

Provide Necessary Medical and Mental Health Services to Which They

20

Are Entitled

21

110. Plaintiffs have been injured by Defendants’ policies, customs and omissions that

22 result in foster children not receiving the necessary medical and mental health services to which

23 they are entitled. For example:

24

(a) Although Delia was noticeably underweight when she entered Defendants’

25 custody, Defendants failed to assess her developmental and medical needs. In July 2009, Delia’s

26 then current foster parent, S.W., brought Delia to the hospital to seek care for a severely swollen

27 eyelid. The examining physician determined that Delia needed an MRI to determine whether she

28 had a potentially life-threatening tumor, but S.W. lacked authority to authorize the diagnostic

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1 procedure. S.W. immediately attempted to contact Delia’s caseworker and supervisor. Despite

2 multiple calls about this emergency situation, however, neither the caseworker nor the supervisor

3 returned S.W.’s calls. Ultimately, Delia received the necessary procedures either because the

4 doctor deemed the situation to be emergency or, in the case of the MRI, because S.W. was able to

5 obtain consent from Delia’s biological mother. The MRI revealed that Delia had a tumor that

6 needed to be removed immediately. Delia had surgery and then had to undergo chemotherapy.

7 Defendants’ conduct delayed Delia’s access to the MRI screening that diagnosed her malignant

8 tumor and delayed her surgery and chemotherapy. During Delia’s time in Defendants’ custody,

9 Defendants’ caseworkers rarely visited her at her placement and did not monitor Delia’s health to

10 verify that she was receiving all necessary medical screenings, assessments, and treatment

11 services. Defendants’ conduct in failing to provide prompt, periodic, and necessary screening,

12 assessments, and treatment services to address her physical and mental health needs has injured

13 Delia.

14

(b) While Jonathan was placed at Child Haven as an infant, the staff failed so

15 completely to provide for his medical and nutritional needs that he was diagnosed with failure to

16 thrive and was developmentally delayed. Although he often regurgitated his food after eating,

17 staff took no steps to ensure he received adequate nutrition. At five months, Jonathan was unable

18 to turn his head. Defendants also deprived Jonathan of urgently needed medical care. After

19 coming to live with S.W., Jonathan became seriously ill with an impacted colon. When his

20 doctor recommended a colonoscopy, S.W. and Jonathan’s doctor repeatedly sought authorization

21 from Defendants, but Defendants refused to consent and failed to approve medical procedures

22 that would assist in diagnosing his medical condition and developing a treatment plan to alleviate

23 his symptoms. Jonathan suffered constant physical pain from his condition for several months,

24 until it became so severe that he required emergency surgery to remove the calcified stool.

25 Further, DFS never authorized the surgery. Rather, because the doctor determined that it had

26 become a life-threatening situation, the doctor apparently determined that Nevada law authorized

27 him to conduct the surgery without obtaining DFS consent or a court order. This emergency

28 surgery was a direct result of Defendants’ deliberate indifference to Jonathan’s medical needs.

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1 During Jonathan’s time in Defendants’ custody, Defendants’ caseworkers rarely visited Jonathan

2 and did not monitor his health to verify that he was receiving all necessary medical screenings,

3 assessments, and treatment services. Defendants’ conduct in failing to provide prompt, periodic,

4 and necessary screening, assessments, and treatment services to address his physical and mental

5 health needs has injured Jonathan.

6

(c) While Maizy was placed at Child Haven as an infant, she also suffered from

7 lack of attention and care. She too was diagnosed with failure to thrive and became

8 developmentally delayed. At fifteen months, Maizy weighed only thirteen pounds and was

9 unable to crawl. During Maizy’s time in Defendants’ custody, Defendants’ caseworkers rarely

10 visited her and did not monitor her health to verify that she was receiving all necessary medical

11 screenings, assessments, and treatment services. Defendants’ conduct in failing to provide

12 prompt, periodic, and all necessary screening, assessments, and treatment services to address her

13 physical and mental health needs have injured Maizy.

14

(d) Defendants have caused Henry to change medical and mental health providers

15 more than ten times during his time in their custody. Upon information and belief, Defendants

16 failed to transfer Henry’s records to each doctor in the chain. Accordingly, Henry’s treating

17 doctors were often unaware of his health history, previous providers, assessments, diagnoses,

18 medications, and treatment. This has led to inconsistent diagnoses and the administration of

19 multiple and inconsistent medications. Henry has experienced long periods during which no

20 assessment of his mental and behavioral health needs was completed or updated and during which

21 he did not receive necessary periodic assessments and reassessments of the various medications

22 that he had been prescribed. For many years while in Defendants’ custody, Henry has been

23 administered various psychotropic medications, including multiple medications at the same time.

24 Defendants failed to monitor Henry’s reactions to the medications. In June 2009, Henry fell

25 gravely ill after being poisoned by the combination of psychotropic medications he was then

26 taking. Henry was hospitalized in an ICU for two weeks and nearly suffered organ failure. Upon

27 his discharge from the ICU to Monte Vista, and while still in Defendants’ custody, Henry was

28 again administered the same or similar psychotropic medications that had led to his emergency

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1 hospitalization. Henry again fell gravely ill and again spent two weeks in treatment in the ICU.

2 During Henry’s time in Defendants’ custody, Defendants’ caseworkers rarely visited him and did

3 not monitor his health to verify that he was receiving all necessary medical screenings,

4 assessments, and treatment services. Defendants’ conduct in failing to provide prompt, periodic,

5 and necessary screening, assessments, and treatment services to address his physical and mental

6 health needs has injured Henry.

7

(e) Upon information and belief, when Linda was seven years old and in

8 Defendants’ custody, she was confined at a psychiatric facility for a six-month period that was

9 longer than medically necessary because Defendants did not have another placement for her.

10 Linda was placed on psychotropic drugs at various points from the time she was seven until she

11 was thirteen. Linda was often compelled to take a variety of such drugs, at times taking as many

12 as five or six different medications at once. These medications often made Linda lethargic and

13 unable to focus. Upon information and belief, Linda was at times prescribed these medications

14 simply because a caregiver requested a “fix” for her behavior, without proper consent and without

15 an appropriate, comprehensive assessment by a qualified health professional. During Linda’s

16 time in Defendants’ custody, Defendants’ caseworkers rarely visited her and did not monitor her

17 health to verify that she was receiving all necessary medical screenings, assessments, and

18 treatment services. Although Defendants caused Linda to take powerful psychiatric medications,

19 Defendants failed to provide her with psychiatric care to consistently monitor her medication.

20 Defendants also failed to provide Linda with a mental health assessment and medically necessary

21 medical and dental care. Defendants’ conduct in failing to provide prompt, periodic, and

22 necessary screening, assessments, and treatment services to address her physical and mental

23 health needs has injured Linda.

24

(f) Defendants did not provide Victor with a mental health assessment or services

25 to address his severe depression, suicidal threats, and other needs for many months. The staff at

26 one of Victor’s group homes did not allow him to attend medical and psychiatric appointments.

27 In the spring of 2007, due to continued suicide threats, Victor was hospitalized twice in quick

28 succession at two different mental health facilities, without consultation between the facilities.

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1 Defendants also failed to provide Victor with follow-up psychiatric services and did not ensure

2 that he received prescribed medications upon release from the second facility. Further, although

3 they knew both Leo and Victor had suffered abuse, Defendants failed to provide care to address

4 those traumas. Defendants’ conduct in failing to provide prompt, periodic, and necessary

5 screening, assessments, and treatment services to address their physical and mental health needs

6 caused injury to Victor and Leo.

7

(g) Defendants failed to provide necessary medical care to Charles and Charlotte.

8 In 2009, while in foster care and in Defendants’ custody, Charles was placed on Adderall and

9 Ritalin. Upon information and belief, Charles’s psychiatrist prescribed these drugs for ADHD,

10 instead of treating Charles with behavioral approaches, based on nothing more than the request of

11 a foster mother who had only known Charles for a matter of weeks. Upon information and belief,

12 these medications were not medically necessary and subjected Charles to risk of serious harm.

13 Charlotte, who was less than a year old at the time, was administered asthma medications even

14 though she does not have asthma and such medications were not medically necessary. Upon

15 information and belief, both children were medicated at the request of foster parents, rather than

16 as a result of assessments and examinations by qualified health professionals. During Charles and

17 Charlotte’s time in Defendants’ custody, Defendants’ caseworkers rarely visited them and did not

18 monitor their health to verify that they were receiving all necessary medical screenings,

19 assessments, and treatment services. Defendants’ conduct in failing to provide prompt, periodic,

20 and necessary screening, assessments, and treatment services to address their physical and mental

21 health needs has injured Charles and Charlotte.

22

(h) Defendants failed to provide Olivia with a timely mental health assessment or

23 needed services despite her history of physical abuse. Although she had been placed in foster

24 care in January 2006, it was not until October 2007 that Olivia received a mental health

25 assessment, and that occurred only because her elementary school referred her to a licensed

26 psychologist for evaluation. The evaluation recommended that she receive psychotherapy, be

27 evaluated for medication by a psychiatrist, and be tested for Fetal Alcohol Syndrome. Following

28 that evaluation, she was prescribed three different psychotropic drugs simultaneously but did not

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1 receive ongoing psychiatric care and has not been tested for Fetal Alcohol Syndrome. The drugs

2 made Olivia extremely lethargic and made it difficult for her to do school work. In March 2009,

3 she was placed in Monte Vista. Defendants discharged her to a foster parent with no transition

4 plan and no ability to obtain her medications, forcing her to suffer abrupt withdrawal from the

5 medications. During Olivia’s time in Defendants’ custody, Defendants’ caseworkers rarely

6 visited her and did not monitor her health to verify that she was receiving all necessary medical

7 screenings, assessments, and treatment services. Defendants’ conduct in failing to provide

8 prompt, periodic, and necessary screening, assessments, and treatment services to address her

9 physical and mental health needs has injured Olivia.

10

(i) Christine is a medically fragile child who fell out of a second-story window

11 while in her mother’s custody. Following the injury, Christine had a titanium plate permanently

12 installed in her head to protect her brain. As a result, she has severe developmental delays and

13 medical needs, including a seizure disorder, and requires a high level of medical care. In

14 July 2008, Defendants allowed Christine to remain in a hospital for four to six weeks longer than

15 medically necessary rather than placing her in an appropriate foster home. Defendants then

16 placed Christine in E.F.’s custody but failed to provide E.F. with her seizure medication or any

17 training on how to care for a child with such a high level of medical needs. Defendants also

18 failed to arrange for medical and therapeutic professionals to treat Christine or to provide her with

19 therapeutic or early intervention services. During Christine’s time in Defendants’ custody,

20 Defendants’ caseworkers rarely visited her and did not monitor her health to verify that she was

21 receiving all necessary medical screenings, assessments, and treatment services. When Christine

22 required emergency surgery to replace a screw in her titanium plate, Defendants took

23 approximately two weeks to approve the procedure. Defendants’ conduct in failing to provide

24 prompt, periodic, and necessary screening, assessments, and treatment services to address her

25 physical and mental health needs has injured Christine.

26

(j) Defendants failed to provide Mason with the mental health, medical, and

27 education services he needed. Mason has severe-to-profound hearing loss in both ears. To

28 communicate with those who do not know sign language, he needs an interpreter proficient in

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1 American Sign Language. For substantial periods of time, Defendants failed to provide or ensure

2 that Mason was provided with a qualified interpreter. Only one of the more than eight different

3 mental health professionals who treated Mason from 2005 to 2007 was capable of communicating

4 with Mason in American Sign Language. As early as the fall of 2004, after at least three

5 psychiatric hospitalizations, his treating psychiatrist and other professionals recommended that he

6 be placed in a residential treatment center able to handle his hearing impairment. Defendants

7 refused to place Mason in a placement recommended by his treating professionals and instead

8 subjected him to a series of foster home placements and hospitalizations, none of which was

9 capable of meeting his long-term mental health needs. Defendants also failed to obtain diagnostic

10 tests recommended by physicians to whom they took him for an assessment. For example, a

11 geneticist who examined him in May 2007 recommended “a comparative genomic hybridization

12 array study be performed.” The recommended tests were never completed. Defendants also

13 failed to provide Mason with necessary medical and other treatment, including speech therapy,

14 following his receipt of a cochlear implant, both before and after his placement at the National

15 Deaf Academy (NDA). NDA unilaterally made the decision to remove the external device

16 necessary to the proper functioning of the cochlear implant, rendering it largely inoperative and

17 depriving Mason of the use and benefit of the cochlear implant. Mason was discharged from

18 NDA and returned to Las Vegas. Upon information and belief, Defendants failed to arrange for

19 any therapy prior to bringing him back to Las Vegas from NDA. Defendants’ conduct in failing

20 to provide prompt, periodic, and necessary screening, assessments, and treatment services to

21 address his physical and mental health needs has injured Mason.

22

111. As the direct and proximate result of Defendants’ policies, customs and omissions,

23 including but not limited to the State and County Defendants’ failure to properly train and

24 supervise caseworkers, regarding the failure to provide care, treatment, and services necessary to

25 prevent foster children from deteriorating or being harmed physically, developmentally,

26 psychologically, or otherwise while in government custody, including adequate mental, dental,

27 psychiatric, and psychological services to which they are entitled, as alleged herein, Plaintiffs

28 have suffered bodily harm, substantial physical and emotional pain and suffering, humiliation,

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1 extreme and severe mental anguish, acute anxiety, emotional and physical distress, and fear and

2 depression, all to their damage and detriment.

3

4. It Is Likely that Plaintiffs and Others Will Continue to Suffer Harm as

a Result of Defendants’ Policies, Customs and Omissions

4 112. Rather than address these grave problems, Defendants adhere to policies and

5 customs that ensure the problems will continue. Defendants are well aware that many children

6 entering foster care have serious mental health problems, yet Defendants fail to train their

7 caseworkers to recognize and address these problems. Defendants also fail to provide

8 caseworkers with basic information regarding available children’s mental health services or how

9 to access and advocate for those services. As a direct and foreseeable result, caseworkers

10 routinely fail to secure mental health services for children who need them.

11 113. Similarly, Defendants are well aware that many children entering foster care have

12 serious developmental delays or disabilities resulting from abuse or neglect. Defendants fail,

13 however, to train caseworkers on developmental milestones or to educate them on how to identify

14 a child’s developmental delay or disability.

15 114. Defendants’ policies, customs and omissions regarding their failure to provide

16 necessary medical and mental health services reflect a deliberate indifference to the health and

17 safety of children in their custody, constitute a substantial departure from professional standards,

18 and evidence a lack of professional judgment.

19 115. Unless Defendants change their policies and customs to ensure foster children are

20 provided necessary medical and mental health services to which they are entitled, Plaintiffs and

21 other foster children face likely future injury in Defendants’ custody.

22

C. Defendants Fail to Ensure the Safety and Well-being of the Foster Children in

23

Their Care and Custody

24

1. Defendants Fail to Protect Foster Children by Failing to Investigate

Reports of Abuse and Neglect

25

a. The Law Requires Defendants to Promptly and Thoroughly

26

Investigate Suspected Abuse and Neglect of Foster Children

27

116. When Defendants remove a child from her home and cause her to live in a foster

28 care placement, Defendants are obligated to ensure that the child is safe in the placement they

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1 have chosen for her. Nevada law mandates that Defendants must immediately investigate any

2 report of possible abuse or neglect involving a child under the age of six, who is at a high risk for

3 serious harm, or who has visible signs of physical abuse. NEV. REV. STAT. § 432B.260.

4 Defendants must evaluate all other reports within three days. Id. If during the evaluation the

5 Defendants conclude that an investigation is warranted, they must initiate the investigation within

6 three days from the end of the evaluation. Id.

7

117. When Defendants receive a report of abuse, they must conduct an evaluation.

8 NEV. ADMIN. CODE § 432B.150. Defendants must determine how the child is being affected by

9 the situation and whether the child is currently safe, at risk of abuse or neglect, or threatened with

10 harm. NEV. ADMIN. CODE § 432B.160. In making these determinations, Defendants must

11 consider a number of factors, including age, any exceptional needs of the child, the child’s need

12 for medical care, whether the child has sustained a serious injury for which there is no reasonable

13 or credible explanation, and whether safety risks are created because of a caretaker’s lack of

14 knowledge, skill, or motivation relating to parenting. NEV. ADMIN. CODE § 432B.160.

15

118. State law also mandates that Defendants follow a specific protocol in investigating

16 suspected abuse. If the allegations suggest imminent harm, then the caseworker assigned to

17 investigate must see the child immediately and must assess the safety of all children in the home.

18 NEV. ADMIN. CODE § 432B.150. In other cases, the caseworker must attempt a face-to-face

19 meeting with the child and his family on the next business day and on each successive business

20 day until a supervisor deems the matter resolved. NEV. ADMIN. CODE § 432B.155. Further, the

21 caseworker investigating the report of abuse must consider a multi-factored list of considerations,

22 including the risk posed to children by others living in the home. NEV. ADMIN. CODE §432B.160.

23 The manner in which the investigation was initiated and any information obtained must be

24 documented in writing. NEV. ADMIN. CODE § 432B.155. Upon completing an investigation,

25 Defendants must file a report with the Central Registry detailing the facts of the alleged abuse or

26 neglect and the ultimate disposition of the investigation. NEV. REV. STAT. § 432B.310.

27 Defendants have thirty days to complete a Child Protective Services (CPS) investigation, make

28 recommended investigative findings, and submit a complete file to the CPS Supervisor from the

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1 receipt of the report at the hotline. Investigations Policies and Procedures (9/5/2008), Discussion 2 Draft. In addition, Clark County DFS policy requires caseworkers to contact the child who is the 3 subject of the report of abuse, as well as the child’s siblings.

4

b. Defendants’ Policies, Customs, and Omissions Do Not Comply

with Laws Mandating Investigations of Suspected Abuse

5

6

119. Defendants’ policies, customs and omissions, including, but not limited to the

7 State and County Defendants’ failure to properly train and supervise employees, result in their

8 failure to regularly and routinely conduct required investigations and evaluations of suspected or

9 reported instances of abuse and neglect of children they have placed in foster care. When 10 Defendants do investigate or evaluate such reports, caseworkers routinely fail to investigate the 11 factors required by NEV. ADMIN. CODE § 432B.160, including the requirement that they assess the

12 risk posed to a child by others living in the home.

13

120. Defendants also fail to train their investigators in techniques for gathering and

14 evaluating facts on which to determine whether a child has been a victim of abuse or neglect.

15

121. Similarly, Defendant supervisors fail to supervise caseworkers to ensure that they

16 are conducting investigations in accordance with law, regulations, and policy.

17

122. Defendants’ failure to adequately investigate suspected abuse and neglect of the

18 foster children in their custody reflects a deliberate indifference to the health and safety of those

19 children, constitutes a substantial departure from professional standards, and evidences a lack of

20 professional judgment.

21

123. As a direct and foreseeable result of Defendants’ failure to comply with the

22 requisite procedures for evaluations and investigations, Defendants routinely fail in their duty to

23 protect the children in their custody and care, and children suffer abuse and neglect at the hands

24 of their caregivers.

25

124. State and County Defendants have long had knowledge of their failure to conduct

26 required investigations and evaluations of suspected or reported abuse and neglect. In

27 independent reports commissioned by Clark County in 2006, child welfare consultant Ed Cotton

28 concluded that Clark County DFS failed to complete required safety assessments in 43% of the

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1 cases reviewed and failed to gather sufficient information to make a reasonable judgment about

2 the child’s safety in more than half the cases. Edward E. Cotton, Report of Data Analysis,

3 Findings and Recommendations (2006) at 5; Edward E. Cotton, Administrative Review of Child

4 Abuse and Neglect Investigations Clark County DFS (November 20, 2006) at 10. Defendant

5 Clark County, which Defendant Valentine oversaw, contracted for the creation of this report, and

6 its authors interviewed staff from Clark County DFS, which Defendant Morton oversaw. State

7 Defendants were made aware of Mr. Cotton’s findings and State DCFS, which Defendant

8 Comeaux oversaw, specifically investigated 53 cases where the safety of the child under

9 protection may have been jeopardized. State of Nevada Department of Health and Human

10 Services, Division of Child and Family Services Family Programs Office, Case Review of the 53

11 Cases in Clark County Identified by Ed Cotton’s Report (April 27, 2007) at 2. As Defendant

12 Willden is responsible for carrying out the administration of DCFS, Defendant Willden would

13 have been aware of the Cotton studies and the subsequent DCFS 53 case investigation.

14

125. Subsequently, Defendant Morton cited the findings of the Cotton reports in his

15 Report to U.S. Representative Shelley Berkley. He noted that reviewers found safety assessments

16 in only 57% of the cases and family risk assessment protocols in only about one-third of the

17 cases. Berkley Report at 6. He further expressed distress at the lack of training to prepare

18 caseworkers for the fundamental task of assessing child safety. In the report, he lamented,

19 “Training needs are evident in regards to safety assessments and family risk assessments.

20 Reviewers found that almost all workers were unclear of the milestones that require a safety

21 assessment . . . .” Id.

22

126. State Defendants have been well aware of the tragic consequences of failing to

23 investigate a case appropriately. In 1995, the State created Child Death Review Teams to

24 investigate the circumstances surrounding children who died as a likely result of maltreatment.

25 State policy dictates that any information about the death or near death of a child with child

26 welfare involvement “must be made available to DCFS Administration not later than 48 hours

27 after a fatality and not later than 5 business days after a near fatality.” Child Fatality Disclosures,

28 Statewide Policy 0401, http://www.dcfs.state.nv.us/DCFS_ChildFatalities_Disclosures.htm.

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1 Nevada DCFS then posts the available information on its website. Federal oversight further

2 ensures that State Defendants are aware of the circumstances surrounding child deaths. Between

3 October 2005 and August 2006, for example, Federal DHHS’s Administration for Children and

4 Families made at least six requests to State Defendants for investigation into the deaths of

5 children in Clark County. The findings reveal several instances of children dying after Clark

6 County CPS failed to investigate or substantiate a prior report of abuse or neglect or dying after

7 CPS substantiated the reports but failed to take further action. In one case, a child died despite

8 the fact that CPS had substantiated three reports of neglect and there had been an open case on the

9 child for two years. See August 29, 2006 Letter from Fernando Serrano to Sharon Fujii. The

10 Child Fatality Disclosures posted since 2011 indicate that in more than one-third of the deaths or

11 near deaths of children in Clark County related to child abuse or neglect, prior reports of abuse

12 and/or neglect had been made against the child’s caregivers. In one such case, a child died after

13 seven CPS referrals involving his family went either uninvestigated or unsubstantiated. January

14 23, 2011 Child Welfare Agency Public Disclosure.

15

127. Defendant Willden testified in support of a bill enacted during the 2007 legislative

16 session that gave DCFS responsibility for overseeing the child fatality review process. Child

17 fatality reviews are conducted when a child dies as the result of abuse or neglect. A significant

18 number of such children or their families are known to child protective services prior to the abuse

19 or neglect leading to their deaths. Defendant Willden acknowledged that child fatality reviews

20 revealed deficiencies in the investigation of child abuse investigations including the failure to

21 interview siblings of children who were reported victims of suspected abuse. Assembly Bill 263:

22 Makes Various Changes to Provisions Governing the Abuse and Neglect of Children.: Hearing

23 on A.B. 263 Before the S. Comm. on Human Resources & Ed., 74th Sess. (Nev. May 7, 2007)

24 (statement of Michael J. Willden),

25 http://leg.state.nv.us/Session/74th2007/Minutes/Senate/HR/Final/1135.pdf at 11.

26

128. The 2009 Federal Review concluded that following reports of neglect or abuse,

27 the State of Nevada fails to meet national standards for appropriately conducting ongoing risk

28 assessments to assess safety-related concerns, including whether a child is likely to be in

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1 immediate or imminent danger of serious physical harm. U.S. DEP’T OF HEALTH AND HUMAN

2 SERVS., Final Report Nevada Child and Family Services Review, dated January 2010, at 14-16.

3 Defendants Clark County, Valentine, and Morton were also well aware of their failure to properly

4 investigate incidents of alleged abuse, as t the report is disclosed on the Clark County website.

5 Clark County Family Services,

6 http://www.clarkcountynv.gov/Depts/family_services/Pages/CFSRReport.aspx (last visited July

7 19, 2012).

8

c. Plaintiffs Have Been Injured by Defendants’ Inadequate

Investigation of Suspected Abuse

9

10

129. Defendants’ policy and practice of failing to conduct adequate investigations and

11 evaluations of suspected or reported instances of abuse and neglect of children they have placed

12 in foster care has injured Plaintiffs. For example:

13

(a) When Linda was five years old and living with her aunt, she ran away to a

14 friend’s house to escape the abuse she suffered at home. Upon information and belief, the parents

15 of the friend to whom she ran contacted Defendants and reported their suspicion that Linda’s aunt

16 was abusing and neglecting her. On information and belief, these reports were not investigated

17 pursuant to the requisite procedures, and Defendants returned Linda to her abusive aunt.

18

(b) Linda continued to suffer abuse in other homes into which Defendants placed

19 her. During her stay in one such home, Linda told her caseworker that her foster mother and

20 another child in the home had physically abused her. During another stay in her aunt’s home,

21 Linda reported to her caseworker that her aunt was abusing her. Defendants did not investigate

22 pursuant to the mandatory procedures either of Linda’s reports of abuse.

23

(c) After Defendants took protective custody of Leo and Victor, caseworkers

24 returned the boys to live with their mother while Defendants retained legal custody of the boys.

25 During their stay with their mother, both children suffered physical abuse from their mother and

26 her boyfriend. Leo and Victor’s grandmother called the CPS hotline multiple times to report the

27 abuse. On information and belief, these reports were not investigated by Defendants pursuant to

28 the requisite procedures.

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1

(d) Defendants later placed Leo and Victor into a series of other foster care

2 settings, including a home with a foster parent who had a history of CPS complaints of neglect.

3 On information and belief, CPS failed to adequately investigate the foster parent and placed the

4 boys with her despite her mistreatment of children in her care.

5

(e) In the summer of 2007, Defendants placed Victor in a group home. Victor

6 reported to his caseworker that the staff at the group home had withheld medical and psychiatric

7 treatments from him as a form of punishment. Withholding treatment constitutes neglect that

8 triggers Defendants’ obligation to investigate. On information and belief, Victor’s complaints

9 were not investigated pursuant to the requisite procedures.

10

(f) As detailed above, the relatives with whom Defendants placed Olivia abused

11 her repeatedly over the course of several years. On information and belief, this abuse was not

12 investigated pursuant to the requisite procedures.

13

(g) Despite knowledge that Mason had been abused while living in his

14 grandparents’ home, after obtaining legal custody of Mason, Defendants required him to visit

15 with his grandparents, where he was again physically and possibly sexually abused. Defendants’

16 failure to investigate and monitor Mason’s visitations with his grandparents caused Mason to

17 suffer abuse.

18

130. As the direct and proximate result of Defendants’ failure to conduct adequate

19 investigations of reports of abuse and neglect, as alleged herein, Plaintiffs have been subjected to

20 abuse and neglect resulting in bodily harm, substantial physical and emotional pain and suffering,

21 humiliation, extreme and severe mental anguish, acute anxiety, emotional and physical distress,

22 and fear and depression, all to their damage and detriment.

23

d. It Is Likely That Plaintiffs and Others Will Continue to Suffer

Harm as a Result of Defendants’ Policies, Customs and

24

Omissions

25

131. Defendants’ policies, customs and omissions regarding failure to investigate

26 reports of abuse adequately, or at all, make it likely that Plaintiffs will suffer harm in the future.

27 As demonstrated above, foster children in Clark County, including Plaintiffs, routinely experience

28 multiple placements while they are in Defendants’ custody. As a result, Plaintiffs still in

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1 Defendants’ custody, and others, are likely to be again placed in homes where they will suffer

2 abuse.

3

132. Unless Defendants change their policies and customs to institute a proper protocol

4 for investigating abuse and to train their caseworkers on how to do so, these policies, customs and

5 omissions will continue to injure children, including Plaintiffs.

6

2. Defendants Fail to Protect Foster Children When Transferring Them

to Out of State Facilities

7

a. The Law Requires Defendants to Physically Inspect and

8

Monitor Treatment and Services Provided to Foster Children

by Out of State Facilities

9

10

133. When transferring foster children to facilities outside of Nevada, Defendants are

11 required to physically inspect such facilities before or at the time of the transfer and placement to

12 determine whether the facility provides the services or treatment necessary for the child, is

13 accredited or licensed and in good standing with the entity that accredits or licenses the facility,

14 and is subject to health inspections. Defendants are also required to review the results of any

15 health inspections conducted within the immediately preceding three years. NEV. REV. STAT. §

16 432.0177(1).

17

134. The Interstate Compact on the Placement of Children (“ICPC”) is an agreement

18 that establishes uniform legal and administrative procedures governing the interstate placement of

19 foster children. It has been enacted by all 50 states and is codified in Nevada as NEV. REV. STAT.

20 § 127.330.

21

135. The ICPC also governs Defendants’ transfer of foster children outside of Nevada,

22 and requires, among other things, that before any such transfer Defendants receive a written

23 notice from the receiving state that the proposed placement does not appear to be contrary to the

24 interests of the child, and also provides that Defendants retain jurisdiction over the foster child

25 sufficient to determine all matters in relation to the custody, supervision, care, treatment, and

26 disposition of the child. NEV. REV. STAT. § 127.330, Art. III, V.

27

136. State law requires Defendants to monitor the continued appropriateness of the

28 placement by, at least one time each year, physically inspecting each out of state facility and

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1 reviewing the services being provided to the child at the facility and any treatment plan

2 established for the child, and interviewing each foster child placed at an out of state facility at

3 least one time each year. NEV. REV. STAT. § 432.0177(2). These laws are meant to ensure that

4 the placement of a foster child in a facility in another state is safe and capable of meeting the

5 child’s needs.

6

137. In addition, federal law mandates that with respect to children “placed in foster

7 care outside the State in which the home of the parents of the child is located,” Defendants are

8 required to “periodically, but not less frequently than every 6 months” have “a caseworker on the

9 staff of the State agency of the State in which the home of the parents of the child is located, of

10 the State in which the child has been placed, or of a private agency under contract with either

11 such State, visit such child in such home or institution and submit a report on such visit to the

12 State agency of the State in which the home of the parents of the child is located.” 42 U.S.C.

13 § 675(5)(A)(ii) (as amended by 109 P.L. 239). Thus, for all out of state placements of foster

14 children, federal law requires Defendants to ensure that each child in an out of state placement

15 receives a visit at least every six months and to record a report about each such visit. Id. NEV.

16 REV. STAT. § 432.0177(2), which requires visits to out of state placements only once per year,

17 directly contradicts the congressional mandate in 42 U.S.C. § 675(5)(A)(ii), which requires visits

18 every six months.

19

b. Defendants’ Policies, Customs and Omissions Do Not Comply

with Federal and State Laws Governing Transfer of Foster

20

Children Outside of Nevada

21

138. Defendants’ policies, customs and omissions, including, but not limited to the

22 State and County Defendants’ failure to properly train and supervise employees, result in their

23 routine failure to regularly and routinely fail to physically inspect out of state facilities at least

24 annually and before placing foster children at such facilities. Further, on information and belief,

25 Defendants also regularly and routinely fail to ensure that foster children in out of state

26 placements receive visits at least every six months, to submit reports regarding such visits, and to

27 annually review the services provided to, and any treatment plans established for, foster children

28 in out of state placements.

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1

139. State participation in Titles IV-B and IV-E of the Social Security Act (the “Act”) is

2 voluntary. Despite the voluntary nature of state participation, acceptance of federal funding under

3 the Act is contingent on adherence to the requirements set forth in the Act. By accepting federal

4 funds under the Act, Nevada has implicitly consented to the Act’s requirements, including the

5 requirements under 42 U.S.C. 675(5)(a)(ii) that children placed out of state be visited at least

6 every six months by a caseworker.

7

140. As a direct and foreseeable result of Defendants’ failure to comply with statutory

8 requirements governing out of state placements, Defendants routinely fail in their duty to protect

9 the children in their custody and care by placing them in dangerous and poorly supervised out of

10 state placements that result in the abuse and neglect of foster children in Defendants’ custody.

11

141. Defendants’ policies, customs and omissions concerning out of state visitations

12 and the inspection of out of state facilities reflect a deliberate indifference to the health and safety

13 of children placed out of state, constitute a departure from professional standards, and evidence a

14 lack of professional judgment.

15

142. State and County Defendants knew or were deliberately indifferent to their failure

16 to protect foster children placed in out of state facilities. Ed Cotton’s 2006 Administrative Case

17 Review noted that DFS was not well-trained on the information that was needed to transfer

18 children out-of-state. Edward E. Cotton, Report of Data Analysis, Findings and

19 Recommendations (2006) at 29. DFS sometimes took weeks to even identify information that

20 was missing. Id. The fact that the County Defendants were not even aware of the procedures or

21 requirements needed to place children out-of-state demonstrates that County Defendants were

22 unable to effectively evaluate out-of-state placements. Defendant Clark County, which

23 Defendant Valentine oversaw, contracted for the creation of this report, and its authors

24 interviewed staff from Clark County DFS, which Defendant Morton oversaw. Defendant Willden

25 would also have been aware of the report, as DCFS did a follow-up study on Cotton’s findings.

26 See State of Nevada Department of Health and Human Services, Division of Child and Family

27 Services Family Programs Office, Case Review of the 53 Cases in Clark County Identified by Ed

28 Cotton’s Report (April 27, 2007) at 2. As noted in section I.C.1.b, both County and State

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1 Defendants were well aware of Mr. Cotton’s findings. As recently as 2011, the Nevada 2 Legislative Audit acknowledged the receipt of complaints from out of state facilities. Nevada 3 Legislative Auditor, Review of Governmental and Private Facilities for Children (October 2011),

4 at 5. As the legislative audit evaluated both State and County facilities, State and County 5 Defendants were aware of the results of the audit. See id. at 4 (thanking the management and 6 staff of the audited facilities for their assistance during the reviews).

7

c. Plaintiff Mason Has Been Injured by Defendants’ Failure to

Physically Inspect and Monitor Out of State Facilities in Which

8

Foster Children Are Placed

9

143. Defendants’ policy and custom of failing to physically inspect and monitor out of

10 state facilities and other placements in which foster children are placed has injured Plaintiff

11 Mason. For example:

12

(a) In approximately May 2008, Defendants transferred Mason from Nevada to the

13 National Deaf Academy (“NDA”), an out of state facility located in central Florida. Mason’s

14 placement at NDA in Florida is a placement controlled by the provisions of ICPC, NEV. REV.

15 STAT. § 127.330, NEV. REV. STAT. § 432.0177, and 42 U.S.C. § 675(5)(a)(ii).

16

(b) On information and belief, before transferring Mason to NDA, Defendants did

17 not review any health inspections, nor did they take certain mandatory steps to determine whether 18 NDA would provide Mason with necessary services and treatment, as required by Nevada 19 Revised Statute section 432.0177. In the seventeen months between January 1, 2008 and May 27,

20 2009, local police responded to 369 calls at NDA, and while Mason was a resident at NDA, 21 Florida Health Care Agency Administration investigated numerous reports of patient abuse or 22 neglect, lack of supervision, and improper use of restraint. The Agency confirmed many of those

23 complaints.

24

(c) Mason remained at NDA from approximately May 2008 until the end of

25 December 2009. During Mason’s approximately nineteen-month placement at NDA, Defendants

26 never visited him, nor participated in any of Mason’s monthly treatment sessions or the

27 development and review of his Individualized Education Program.

28

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1

(d) Before being transferred to NDA, Mason requested and underwent surgery for a

2 cochlear implant. A cochlear implant is a surgically implanted electronic device that provides a

3 sense of sound to individuals who, like Mason, are profoundly deaf. Mason’s medical providers

4 informed Defendants that after he received the cochlear implant, Mason would need follow-up

5 care, and that Mason and his care providers would need to take special precautions to keep the

6 implant properly functioning. Defendants, however, failed to provide Mason with the necessary

7 follow-up or to ensure the proper care of his cochlear implant. In approximately May 2008,

8 shortly after his transfer to NDA, NDA staff removed the external device for Mason’s cochlear

9 implant, rendering it largely inoperative and depriving Mason, against his wishes, of the use and

10 benefit of the cochlear implant. As a result of NDA’s destruction of Mason’s cochlear implant,

11 Mason has suffered severe impairment to his language development.

12

(e) In June 2008, approximately one month after his transfer to NDA, Mason

13 complained of sexual abuse by a resident. Upon information and belief, NDA staff notified

14 Defendants of this report shortly thereafter and provided them with the police report number and

15 the e-mail address and phone number of the investigating officer. Additional persons, including

16 Mason’s former therapist in Las Vegas and his foster mother in Las Vegas, also notified

17 Defendants of this report. Defendants nonetheless failed to investigate Mason’s complaint.

18 Defendants left Mason at NDA for approximately eighteen months, and took no steps to verify

19 his safety or well-being or to visit him during this time.

20

144. As the direct and proximate cause of Defendants’ failure to physically inspect and

21 monitor out of state facilities in which foster children are placed and ensure that they receive

22 visits at least every six months as alleged herein, Plaintiff Mason has been subjected to abuse and

23 neglect resulting in bodily harm, substantial physical and emotional pain and suffering,

24 humiliation, extreme and severe mental anguish, acute anxiety, emotional and physical distress,

25 and fear and depression, all to his damage and detriment.

26

27

28

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d. It Is Likely That Plaintiff Mason and Others Will Continue to

1

Suffer Harm as a Result of Defendants’ Policies, Customs and

Omissions

2 145. Defendants’ failure to physically inspect out of state facilities before and during

3 the placement of foster children to such facilities, to ensure that foster children in out of state

4 facilities receive visits at least every six months, and to at least annually review the services

5 provided to foster children placed at out of state facilities, has caused, and is continuing to cause,

6 widespread harm throughout the foster care system and makes it likely that Plaintiff Mason and

7 others will continue to suffer harm in Defendants’ custody.

8 146. Unless Defendants cease their failure to implement and enforce applicable law

9 regarding out of state placement of foster children, including by training and supervising

10 caseworkers to do so, it is likely that Plaintiff Mason and others face future injury from the failure

11 of Defendants to physically inspect and monitor treatment of foster children in out of state

12 facilities.

13 II.
14

CLASS ACTION ALLEGATIONS 147. Plaintiffs bring certain claims for injunctive and declaratory relief in this action on

15 behalf of themselves and a distinct class of foster children in the legal custody of Clark County

16 DFS pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2).

17 148. Defendants routinely fail to develop a case plan for each foster child as required

18 under Nevada and Federal law. The class for these children is defined as follows:

19

All children removed from their homes and placed in foster care in

20

the legal custody of Clark County for whom a case plan in compliance with federal and state requirements has not been

21

prepared (the “Case Plan Class”).

22 149. The Case Plan Class Representatives are Henry A. and Mason I. On information
23 and belief, the Case Plan Class Representatives are members of the class they seek to represent.
24 150. The Case Plan Class consists of numerous individuals, making joinder of all
25 members impracticable. Furthermore, the Case Plan Class is fluid in that new members are
26 regularly created. There are more than 3,600 children in foster care in Clark County. Throughout
27 the year, many more children enter care than are reflected in any single-day census. During 2004,
28

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1 for example, a total of 4,548 were removed from their homes and placed in foster care. Nearly

2 half of the children in Clark County foster care are not provided with written case plans within 45

3 days of removal from the home.

4

151. There are material issues of law and fact common to the members of the Case Plan

5 Class. The material questions of law and fact common to the Case Plan Class include:

6

(a) Whether Defendants developed a written case plan containing the requisite

7 information for each class member within the statutorily required time limit;

8

(b) Whether the failure to develop a written case plan for each class member is a

9 denial of class members’ rights under Nevada and federal law;

10

(c) Whether class members are entitled to declaratory and injunctive relief for the

11 rights they have been denied.

12

152. The claims of the Case Plan Class Representatives are typical of the claims of the

13 Case Plan Class. The Case Plan Class Representatives will fairly and adequately represent and

14 protect the interests of the Case Plan Class. Case Plan Class Representatives know of no conflict

15 of interest among the Case Plan Class members. Each Case Plan Class Representative appears by

16 a next friend, and each next friend is sufficiently familiar with the facts and circumstances

17 surrounding the child’s situation to fairly and adequately represent the child’s interests in this

18 litigation.

19

153. As noted above, when Defendants remove a child from his home and take him into

20 protective custody, the Federal Foster Care and Adoption Assistance Act requires that

21 caseworkers develop a case plan for each foster child that includes the child’s health and

22 education records, known medical problems and prescribed medications, and other relevant

23 related information. 42 U.S.C. §§ 671(a)(16), 675(1). Federal regulations mandate that the case

24 plan be developed within a reasonable period, to be established by the State, but in no event later

25 than 60 days from the child’s removal from the home. 45 C.F.R. §1356.21 (g)(2).

26

154. Nevada law requires the inclusion of medical and educational information

27 collected about each child in a written case plan within 45 days after the removal of that child

28 from his home. NEV. ADMIN. CODE § 432B.400.

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1

155. The development of a case plan is crucial in identifying each child’s needs and

2 ensuring that those needs are met. Federal and state laws require caseworkers to prepare case

3 plans in order to ensure that each child receives safe and proper care by identifying barriers to the

4 provision of a safe environment for the child, clarifying responsibilities of the involved persons to

5 address any identified barriers, and defining overall goals for the case, including step-by-step

6 proposed actions of all persons to reach the goal. Without a case plan, for example, there is an

7 increased risk that a child’s special behavioral, emotional, or medical needs will not be met.

8

156. Collection and preparation of case plans is also critical to ensure required

9 information about foster children is recorded and passed on to every foster care provider.

10 Without this information, prospective foster parents cannot make a considered judgment about

11 their ability to provide adequate care for the child nor are they made aware of and able to ensure

12 that the child receives all necessary care, treatment, and services. Children placed with foster

13 care providers who have not received this information are more vulnerable to disruptions in their

14 placements.

15

157. Defendants’ policies, customs and omissions result in Defendants’ routine failure

16 to collect the required information about foster children and to incorporate the information into a

17 written case plan.

18

158. The most recent Federal Review based on statewide data from the UNITY system

19 indicates that only approximately 53% of children had case plans within 45 days of removal from

20 the home. This data confirms that what was an obvious deficiency noted four years earlier during

21 the 2004 Federal Review continues to be a serious problem. Statewide Assessment at 88.

22

159. State and County Defendants have long had knowledge of this failure to complete

23 case plans in a timely manner. The 2006 Cotton Report notes that only 54.6% of the cases

24 reviewed had a current case plan and 10% had no case plan at all. Edward E. Cotton, Report of

25 Data Analysis, Findings and Recommendations (2006) at 21. As noted in section I.C.1.b, both

26 County and State Defendants were well aware of Mr. Cotton’s findings.

27

28

AMENDED COMPLAINT

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1

160. Defendant Morton cited the findings of the Cotton Report in his own report to U.S.

2 Representative Berkley. He noted that although over half of the cases had a current case plan,

3 nearly 60% had never had a documented family team meeting. Berkley Report at 7.

4

161. State DCFS’s most recent Annual Progress and Service Report, authored by Diane

5 Comeaux, also referenced the fact that “only 53% of children had case plans.” Annual Progress

6 & Services Report (APSR) SFY 2011, at 51. As Defendant Comeaux authored the report, State

7 Defendants were aware of its findings. As the County Defendants collaborated on the report, the

8 County Defendants were also aware of its findings. Id. at 12.

9

162. The failure of Defendants’ caseworkers to fulfill the obligation to collect required

10 information and develop a timely written case plan for the children in their custody and care is

11 foreseeable. Defendants employ many caseworkers who are not adequately educated or trained

12 on how to collect the necessary and required information regarding foster children and who fail to

13 meet minimal education levels such as a degree in social work. Approximately one-third of the

14 caseworkers have been at their jobs for less than one year. Compounding these caseworkers’ lack

15 of education and experience, upon information and belief, Defendants allow new caseworkers to

16 proceed in the field for months before providing them with even the initial basic training. In

17 addition, caseworkers who fail to develop written case plans are not held accountable for such

18 failings through requisite supervision.

19

163. Defendants’ policies, customs and omissions regarding the failure to collect

20 critical and required information and develop it in a written case plan for each foster child causes

21 injury to Case Plan Class members in Defendants’ custody, including by causing frequent and

22 avoidable movements from one failed placement to another, and by causing a disruption, delay,

23 and/or a withholding of services needed by Case Plan Class members.

24

164. As the direct and proximate result of Defendants’ policies, customs and omissions

25 regarding the failure to develop a written case plan as alleged herein, Case Plan Class members

26 have endured repeated failed placements, delay, and/or withholding of needed services, lack of

27 access to continuous and/or effective mental health care, abuse, and neglect, and have been forced

28 to take and abruptly withdraw from numerous psychotropic drugs. On information and belief,

AMENDED COMPLAINT

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1 written case plans were not prepared for Case Plan Class Members and the Case Plan Class

2 Representatives as required by federal and Nevada law.

3

165. Defendants’ policies, customs and omissions regarding the collection and

4 compilation of critical information about foster children make it likely that Case Plan Class

5 members and others will continue to suffer harm, including failed placements, in Defendants’

6 custody.

7

166. Defendants’ policies, customs and omissions regarding the failure to develop a

8 written case plan reflect a deliberate indifference to the health and safety of those children,

9 constitute a substantial departure from professional standards, and evidence a lack of professional

10 judgment.

11

167. Unless Defendants change their policies and customs to ensure that a written case

12 plan is developed for each foster child, Case Plan Class members face likely future injury.

13

168. The proposed class is represented by experienced counsel who will adequately

14 represent the interests of the class members. Plaintiffs are represented by

15 Morrison & Foerster LLP and Wolfenzon Rolle, law firms that have extensive experience

16 litigating complex legal disputes, including class actions. Plaintiffs are also represented by the

17 National Center for Youth Law, a privately funded, nonprofit organization with extensive

18 national experience in complex class action litigation involving child welfare systems. Plaintiffs’

19 counsel have the resources, expertise, and experience to prosecute this action.

20

169. Members of the class have all suffered, and will continue to suffer, harm as a result

21 of Defendants’ unlawful and wrongful conduct. Defendants have acted and failed to act on

22 grounds generally applicable to the Class Representatives and the classes and require court

23 imposition of uniform relief to ensure compatible standards of conduct toward the classes,

24 thereby making appropriate equitable relief to the classes as a whole within the meaning of

25 Federal Rules of Civil Procedure 23(b)(1) and (b)(2).

26

27

28

AMENDED COMPLAINT

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1

CAUSES OF ACTION

2

FIRST CAUSE OF ACTION

(Fourteenth Amendment to the United States Constitution,

3

Substantive Due Process: Duty to Protect)

(42 U.S.C. § 1983)

4

(Against All Defendants)

5

170. Plaintiffs reallege and incorporate herein by reference each and every allegation

6 contained in paragraphs 1 through 169 of this Complaint.

7

171. Defendants’ conduct as alleged herein deprived Plaintiffs of their clearly

8 established and well-settled rights under the Fourteenth Amendment to the United States

9 Constitution, including their right to be free from harm while involuntarily in government custody

10 and their right to medical care, treatment, and services. Defendants’ conduct includes the

11 following acts and omissions:

12

(a) failure to adequately provide medical, dental, and mental health services,

13 including but not limited to standardized periodic health screenings and treatments, medical

14 services for maximum reduction of physical or mental disability, and monitoring of,

15 administration, and use of psychotropic drugs by foster children;

16

(b) failure to inform caregivers of essential information;

17

(c) failure to conduct legally required visits with foster children;

18

(d) failure to adequately respond to reports of abuse;

19

(e) failure to ensure adequacy of relative caregiver placements; and

20

(f) failure to adequately inspect out of state facilities and monitor treatment and

21 services provided to foster children placed in out of state facilities.

22

172. Each Defendant acted under color of state law as to the matters set forth herein.

23

173. Defendants’ acts and omissions alleged herein reflect a lack of professional

24 judgment and deliberate indifference in depriving Plaintiffs of their Constitutional rights.

25

174. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

26 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

27 deprived Plaintiffs of particular Constitutional rights.

28

AMENDED COMPLAINT

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1

175. Further, Defendants have failed in their duties to properly hire, train, instruct,

2 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

3 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

4 failures directly resulted in the deprivation of Plaintiffs’ Constitutional rights.

5

176. Defendants’ acts and omissions complained of herein have caused the violation of

6 Plaintiffs’ Constitutional rights and caused Plaintiffs to suffer damages, including significant

7 physical and emotional harm, in an amount to be determined at trial. These damages are

8 compensable pursuant to 42 U.S.C. § 1983.

9

177. Plaintiffs are entitled to injunctive relief against Defendants’ conduct as described

10 herein because they are suffering and will continue to suffer substantial and immediate irreparable

11 injury from such conduct unless and until Defendants are restrained.

12

178. As described herein, Defendants’ acts or omissions were in willful, malicious,

13 wanton, reckless or callous disregard of Plaintiffs’ rights, thereby entitling Plaintiffs to punitive

14 and exemplary damages.

15

SECOND CAUSE OF ACTION

(Fourteenth Amendment to the United States Constitution,

16

Substantive Due Process: State Created Danger)

(42 U.S.C. § 1983)

17

(Against All Defendants)

18

179. Plaintiffs reallege and incorporate herein by reference each and every allegation

19 contained in paragraphs 1 through 178 of this Complaint.

20

180. Defendants’ acts and omissions as alleged herein deprived Plaintiffs of their

21 clearly established and well-settled rights to personal liberty under the Fourteenth Amendment to

22 the United States Constitution. Defendants’ conduct includes acting with deliberate indifference

23 to known or obvious danger in removing Plaintiffs from their homes and placing them in the care

24 of foster parents, including in the care of relative caregivers and out of state facilities and homes,

25 who were unfit to care for them and posed an imminent risk of harm to Plaintiffs’ safety.

26

181. Each Defendant acted under color of state law as to the matters set forth herein.

27

28

AMENDED COMPLAINT

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1

182. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

2 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

3 deprived Plaintiffs of particular Constitutional rights.

4

183. Further, Defendants have failed in their duties to properly hire, train, instruct,

5 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

6 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

7 failures directly resulted in the deprivation of Plaintiffs’ Constitutional rights.

8

184. Defendants’ acts and omissions complained of herein have caused the violation of

9 Plaintiffs’ Constitutional rights and caused Plaintiffs to suffer damages, including significant

10 physical and emotional harm, in an amount to be determined at trial. These damages are

11 compensable pursuant to 42 U.S.C. § 1983.

12

185. Plaintiffs are entitled to injunctive relief against Defendants’ conduct as described

13 herein because they are suffering and will continue to suffer substantial and immediate irreparable

14 injury from such conduct unless and until Defendants are restrained.

15

186. As described herein, Defendants’ acts or omissions were in willful, malicious,

16 wanton, reckless or callous disregard of Plaintiffs’ rights, thereby entitling Plaintiffs to punitive

17 and exemplary damages.

18

THIRD CAUSE OF ACTION

(Federal Adoption Assistance Act and Child Welfare Act)

19

(42 U.S.C. § 1983)

(Against All Defendants)

20

21

187. Plaintiffs reallege and incorporate herein by reference each and every allegation

22 contained in paragraphs 1 through 186 of this Complaint.

23

188. Defendants’ conduct as alleged herein violated Plaintiffs’ statutory rights under the

24 federal Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and

25 Safe Families Act of 1997, 42 U.S.C. § 671 et seq., and the regulations promulgated under the

26 Act, 45 C.F.R. Parts 1355-1357, including but not limited to: the right of each Plaintiff to have

27 his or her health and educational records reviewed, updated, and supplied to foster care providers

28 with whom the child is placed before or at the time of placement, pursuant to 42 U.S.C.

AMENDED COMPLAINT

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1 §§ 671(a)(16), 675(1), and 675(5)(D).

2

189. Each Defendant acted under color of state law as to the matters set forth herein.

3

190. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

4 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

5 deprived Plaintiffs of particular statutory rights.

6

191. Further, Defendants have failed in their duties to properly hire, train, instruct,

7 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

8 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

9 failures directly resulted in the deprivation of Plaintiffs’ statutory rights.

10

192. Defendants’ acts and omissions complained of herein have caused the violation of

11 Plaintiffs’ statutory rights and caused Plaintiffs to suffer damages, including significant physical

12 and emotional harm, in an amount to be determined at trial. These damages are compensable

13 pursuant to 42 U.S.C. § 1983.

14

193. Plaintiffs are entitled to injunctive relief against Defendants’ conduct as described

15 herein because they are suffering and will continue to suffer substantial and immediate irreparable

16 injury from such conduct unless and until Defendants are restrained.

17

194. As described herein, Defendants’ acts or omissions were in willful, malicious,

18 wanton, reckless or callous disregard of Plaintiffs’ rights, thereby entitling Plaintiffs to punitive

19 and exemplary damages.

20

FOURTH CAUSE OF ACTION

(Substantive Due Process under the Nevada Constitution)

21

(Against All Defendants)

22

195. Plaintiffs reallege and incorporate herein by reference each and every allegation

23 contained in paragraphs 1 through 194 of this Complaint.

24

196. Defendants’ conduct as alleged herein deprived Plaintiffs of their substantive due

25 process rights conferred upon them by Article I, § 8(5) of the Nevada Constitution, including their

26 right to be free from harm while involuntarily in government custody and their right to medical

27 treatment, services and care which are provided through the exercise of accepted, reasonable

28 professional judgment. Defendants’ conduct includes the following acts and omissions:

AMENDED COMPLAINT

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1

(a) failure to adequately provide medical, dental, and mental health services,

2 including but not limited to standardized periodic health screenings and treatments, medical

3 services for maximum reduction of physical or mental disability, and monitoring of use of

4 psychotropic drugs by foster children;

5

(b) failure to inform caregivers of essential information;

6

(c) failure to conduct legally required visits with foster children;

7

(d) failure to adequately respond to reports of abuse;

8

(e) failure to ensure adequacy of relative caregiver placements; and

9

(f) failure to adequately inspect out of state facilities and monitor treatment and

10 services provided to foster children placed in out of state facilities.

11

197. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

12 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

13 deprived Plaintiffs of particular Constitutional rights.

14

198. Further, Defendants have failed in their duties to properly hire, train, instruct,

15 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

16 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

17 failures directly resulted in the deprivation of Plaintiffs’ Constitutional rights.

18

199. Defendants’ acts and omissions reflect a lack of professional judgment and

19 deliberate indifference to Plaintiffs’ Constitutional rights and caused the violation of Plaintiffs’

20 Constitutional rights and caused Plaintiffs to suffer damages, including significant physical and

21 emotional harm, in an amount to be determined at trial.

22

200. Plaintiffs are entitled to injunctive relief against Defendants’ conduct as described

23 herein because they are suffering and will continue to suffer substantial and immediate irreparable

24 injury from such conduct unless and until Defendants are restrained.

25

201. As described herein, Defendants’ malicious and/or oppressive acts and omissions

26 caused injury to Plaintiffs, thereby entitling Plaintiffs to punitive and exemplary damages

27 pursuant to NRS 42.005.

28

AMENDED COMPLAINT

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1

FIFTH CAUSE OF ACTION

(Negligence)

2

(Against All Defendants)

3

202. Plaintiffs reallege and incorporate herein by reference each and every allegation

4 contained in paragraphs 1 through 201 of this Complaint.

5

203. At all times Defendants owed Plaintiffs the duty to act with due care in the

6 execution and enforcement of their duties to Plaintiffs.

7

204. Defendants were negligent in performing their duties and failed, neglected, and/or

8 refused to properly and fully discharge their responsibilities, including but not limited to engaging

9 in the following acts or omissions:

10

(a) Failing to ensure that foster children receive necessary care and services for

11 their mental and emotional health, and receive visits from a caseworker no less often than once

12 per month, as required by NEV. ADMIN. CODE §§ 432B.400, 432B.405 and 424.565;

13

(b) Failing to initiate a child welfare investigation promptly upon receipt of a report

14 of possible abuse or neglect of a child, as required by NEV. REV. STAT. § 432B.260 and NEV.

15 ADMIN. CODE §§ 432B.150 and 432B.155;

16

(c) Failing to ensure that Plaintiffs were free from physical and emotional abuse

17 while in a foster home, as required by NEV. ADMIN. CODE § 424.530;

18

(d) Failing to provide information regarding each Plaintiff’s medical history and

19 behavior with prospective foster parents before placing each Plaintiff with those parents, as

20 required by Nevada Revised Statute section 424.038;

21

(e) Failing to physically inspect, monitor treatment and care at, and interview

22 children transferred to out of state facilities, as required by NEV. REV. STAT. § 432.0177 and

23 § 127.330; and

24

(f) Failing to inform caregivers of essential information as required by NEV. REV.

25 STAT. § 424.038, NEV. ADMIN. CODE §§ 424.465, 424.810 and 424.805.

26

205. Additionally, Defendants breached their duties of due care by:

27

28

AMENDED COMPLAINT

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1

(a) Failing to adequately hire, investigate, train, supervise, and monitor their

2 employees to ensure that those employees act at all times in the public interest and in

3 conformance with the law;

4

(b) Failing to make, enforce, and at all times act in conformance with policies and

5 procedures that are lawful and that protect individual rights, including Plaintiffs’ rights; and

6

(c) Failing to refrain from making, enforcing, and/or tolerating the wrongful

7 policies and customs set forth herein.

8

206. Defendants’ negligence proximately caused Plaintiffs to suffer damages, including

9 significant physical and emotional harm, in an amount to be determined at trial. The harm

10 Defendants caused through their negligence was reasonably foreseeable.

11

207. As described herein, Defendants’ malicious and/or oppressive acts and omissions

12 caused injury to Plaintiffs, thereby entitling Plaintiffs to punitive and exemplary damages

13 pursuant to NRS 42.005.

14

SIXTH CAUSE OF ACTION2

(Federal Adoption Assistance Act and Child Welfare Act)

15

(42 U.S.C. § 1983)

(On Behalf of the Case Plan Class Representatives and Case Plan Class

16

Against Defendant Willden, Howell, Burnette, Ruiz-Lee, Clark County)

17

18

208. Case Plan Class Representatives reallege and incorporate herein by reference each

19 and every allegation contained in paragraphs 1 through 207 of this Complaint.

20

209. The conduct of Defendants as alleged herein violated Case Plan Class

21 Representatives’ and class members’ statutory rights under the federal Adoption Assistance and

22 Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997,

23 42 U.S.C. § 671 et seq., and the regulations promulgated under the Act, 45 C.F.R. Parts 1355-

24 1357, including the right of each class member to have a written case plan pursuant to 42 U.S.C.

25 §§ 671(a)(16), 675(1), and 675(5)(D).

26

210. Each Defendant acted under color of state law as to the matters set forth herein.

27

28

2 This action was the Eighth Cause of Action in the original complaint.

AMENDED COMPLAINT

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1

211. Defendants’ acts and omissions complained of herein constitute a policy, pattern,

2 practice, custom, final policymaking act, and/or ratification of a subordinate’s action that

3 deprived Case Plan Class Representatives and the class members of particular statutory rights.

4

212. Further, Defendants have failed in their duties to properly hire, train, instruct,

5 monitor, supervise, evaluate and investigate Defendants’ caseworkers and supervisors.

6 Defendants were deliberately indifferent to the obvious consequences of these failures, and these

7 failures directly resulted in the deprivation of Case Plan Class Representatives’ and the class

8 members’ statutory rights.

9

213. Case Plan Class Representatives and Case Plan Class members are entitled to

10 injunctive relief against Defendants’ conduct as described herein because they are suffering and

11 will continue to suffer substantial and immediate irreparable injury from such conduct unless and

12 until Defendants are restrained.

13

PRAYER FOR RELIEF

14

WHEREFORE, Plaintiffs pray for judgment against all Defendants, jointly and severally,

15 and for the Court to provide relief as follows:

16

1. Assert jurisdiction over this action;

17

2. Order that Plaintiffs may maintain Causes of Action Six as a class actions pursuant

18 to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure;

19

3. Compensatory damages for Causes of Action One through Five, in an amount to

20 be proven at trial;

21

4. Punitive damages against the individual defendants under 42 U.S.C. § 1983 and

22 Nevada law in an amount to be proven at trial;

23

5. All other damages, penalties, costs, interest, and attorneys’ fees as allowed by

24 42 U.S.C. §§ 1983 and 1988 and as otherwise allowed by federal or Nevada law;

25

6. Declare unconstitutional and unlawful Defendants’ violations of Plaintiffs’ and

26 Class Members’ rights;

27

7. Preliminarily and permanently enjoin Defendants from subjecting Plaintiffs and

28 Class Members to practices that violate their rights;

AMENDED COMPLAINT

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1

8. Costs of suit; and

2

7. Such further relief as the Court deems just, necessary, and proper to protect

3 Plaintiffs from further harm by Defendants.

4

JURY DEMAND

5

Plaintiffs hereby demand trial by jury on any and all issues triable by a jury.

6

7

8

Dated: July 20, 2012

By: /s/ Dorothy L. Fernandez

Dorothy L. Fernandez

9

Co-Attorneys for Plaintiffs

10

11 12
Bruno 13 14 15 16

Jeffrey K. Rosenberg MORRISON & FOERSTER LLP
Wolfenzon Daniel J. Reed WOLFENZON SCHULMAN & ROLLE
William Grimm Leecia Welch NATIONAL CENTER FOR YOUTH LAW

17

18

19

20

21

22

23

24

25

26

27

28

AMENDED COMPLAINT

72

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 </s> 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8 HENRY A. et al.,
9 Plaintiffs,
10 vs.
11 MICHAEL WILLDEN et al.,
12 Defendants.
13

)

)

)

)

2:10-cv-00528-RCJ-PAL

)

)

)

ORDER

)

)

)

14

This case arises out of the alleged failure of Nevada and Clark County officials to

15 adequately protect foster children. Pending before the Court are the State Defendants’ Motion to

16 Dismiss (ECF No. 107) and the County Defendants’ Motion to Dismiss (ECF No. 108). For the

17 reasons given herein, the Court grants the motions in part and denies them in part.

18 I. FACTS AND PROCEDURAL HISTORY

19

Plaintiffs are twelve anonymous children who claim to have been harmed due to the

20 failure of state and county child welfare authorities to adhere to certain mandatory laws and

21 regulations and to ensure their safety as a general matter. Their injuries include abuse and

22 neglect by foster parents and institutional guardians, as well as a lack of medical care due to

23 authorities’ refusal to authorize or monitor it.

24

Plaintiff Henry A. is a fourteen-year-old boy who has been placed into foster care by the

25 Clark County Department of Family Services (“CCDFS”) and the Nevada Division of Children

1 and Family Services (“NDCFS”) since age four. (Am. Compl. ¶ 20, July 20, 2012, ECF No. 104).

2 He suffers from severe mental health problems but his treatment has been sporadic because of his

3 placement with over forty foster families and six or seven caseworkers during his first seven

4 years under CCDFS. (See id.). He has changed mental health providers over ten times. (Id.). He

5 has been prescribed multiple psychotropic drugs and once overdosed because of a combination of

6 these drugs, spending several weeks in the intensive care unit. (Id.).

7

Plaintiffs Charles B. and Charlotte B. are siblings, ages eleven and three, respectively.

8 (Id. ¶ 21). They were placed into seventeen different placements for foster care by CCDFS from

9 March 2009 to the Fall of 2010, when they were returned to their mother’s care. (Id.). CCDFS

10 placed Charles and Charlotte with foster parents in March 2009 despite a court order requiring

11 placement with their grandmother. (Id.). Their foster mother and her teenage son abused them,

12 including locking Charlotte in a closet with no food, water, or sanitation for long periods of time

13 and beating Charles when he tried to help his sister. (Id.). The police eventually removed them

14 and took them to the hospital for treatment. (Id.). Charlotte was suffering from dehydration, cuts,

15 bruises, and severe (bleeding) diaper rash. (Id.). The foster mother has been charged with child

16 abuse, and her son has pled guilty to assault. (Id.).

17

Plaintiff Linda E. is a nineteen-year-old woman who was placed into more than forty

18 different placements for foster care by CCDFS and NDCFS for over fifteen years. (Id. ¶ 22). She

19 suffered abuse and neglect in many of these placements, including being placed into the home of

20 an aunt where she had previously suffered unspecified abuse. (Id.). Linda reported the abuse to

21 her caseworker. (Id.). She did not receive proper medical and psychiatric care. (Id.).

22

Plaintiffs Leo and Victor C. are nineteen-year-old twins who were placed into foster care

23 by CCDFS in November 2006. (Id. ¶ 23). Leo left the system when he became an adult in

24 December 2010. (Id.). Victor, however, chose to remain in the system after age eighteen and

25 now receives benefits under Assembly Bill 350. (Id.). Defendants refused to place Leo and Page 2 of 29

1 Victor in the care of their grandmother, who was ready, willing, and able to provide a safe and

2 appropriate environment for them, instead moving them between their father and their mother

3 and her boyfriend, where they suffered unspecified abuse. (Id.). Eventually, either their mother

4 or father abandoned them at Child Haven. (See id.). Defendants failed to provide psychiatric care

5 despite Victor’s suicidal threats. (Id.). Plaintiffs do not allege any untreated psychiatric

6 conditions of Leo.

7

Plaintiffs Delia, Maizy, and Jonathan D. are siblings. (Id. ¶ 24). Delia is four years old

8 and was placed into foster care by CCDFS from March 2008 to October 2010. (Id.). Maizy and

9 Jonathan are ages seven and six, respectively, and were placed into foster care by CCDFS from

10 late 2005 to August 2009. (Id.). As infants, Defendants placed them with Child Haven, where

11 they did not receive basic nutrition and medical care. (Id.). They were kept on a “formula diet”

12 despite outgrowing it. (Id.). Maizy and Jonathan were left in their cribs with limited interaction

13 with other children and adults, resulting in a diagnosis (presumably by a doctor, though not

14 explicitly so alleged) with “failure to thrive,” based upon being underweight due to

15 environmental factors. (See id.). S.W. has adopted all three children. (Id.). Defendants have

16 failed to provide authorization for at least three medical procedures for the children despite

17 S.W.’s efforts. (Id. ¶ 25). The related conditions became so severe that doctors proceeded with

18 the procedures on an emergency basis. (Id.). As a result, Jonathan has a misshapen colon that

19 must be surgically corrected due to Defendants’ failure to authorize removal of calcified stool

20 from his colon, and Delia had to undergo emergency surgery to remove a tumor behind her eye.

21 (Id.).

22

Plaintiff Olivia G. is an eleven-year-old girl who was placed into foster care by CCDFS

23 from January 2006 to 2011. (Id. ¶ 26). Defendants failed to remove her from the custody of her

24 parents despite reports that she was being abused. (Id.). She was initially placed with various

25 relatives without any effort to determine if they were able to provide appropriate care. (Id.). She Page 3 of 29

1 was abused in some of those homes, including being beaten with a belt. (Id.). She has severely

2 impaired neuropsychological functioning and several cognitive and behavioral impairments as a

3 result. (Id.). She was also prescribed multiple psychotropic drugs without adequate care and

4 monitoring, including being placed with E.F. without providing E.F. the information and

5 authorizations required to obtain Olivia’s prescriptions. (Id.).

6

Plaintiff Christine F. is a five-year-old girl who was placed into foster care by CCDFS

7 from May 2008 to June 2010, when E.F. adopted her. (Id. ¶ 27). Christine is severely

8 developmentally delayed and suffers form permanent disabilities and a seizure disorder due to

9 having fallen from a second-story window at the home of her mother, grandmother, and two

10 uncles. (See id.). Despite marks around her ankles indicating she had been dangled from the

11 window or been swung into a wall, CCDFS did not investigate and take custody of Christine

12 until her parents refused to authorize medical treatment necessary to treat her injuries. (Id.).

13 Defendants later failed to provide E.F. with Christine’s seizure medications and offered no

14 medical support or training on how to care for her special needs. (Id.). Defendants have also

15 permitted her grandmother to visit her despite knowing of past allegations of abuse against her 16 and that she was watching over Christine when she fell from the window. (Id.).1

17

Plaintiff Mason I. is a fourteen-year-old boy who has been placed into foster care by

18 CCDFS since July 2003. (Id. ¶ 28). Mason has been deaf since birth and entered foster care at

19 age six after suffering physical, sexual, and emotional abuse by his parents and grandparents.

20 (Id.). He suffers from post-traumatic stress disorder, reactive attachment disorder, and other

21 serious mental health problems. (Id.). During his first six years in foster care, he was placed into

22 twenty-five different homes, including a treatment center in Florida, the National Deaf Academy

23 (“NDA”). (Id.). The NDA staff rendered Mason’s cochlear implant permanently inoperative

24
1Plaintiff does not allege actual abuse by this person against Christine herself or any other 25 person, but notes only that CCDFS was aware of prior allegations of abuse.
Page 4 of 29

1 against his wishes. (Id.). Defendants ignored Mason’s complaints of sexual abuse by NDA staff.

2 (Id.). Defendants have failed to place Mason into homes where his special needs will be met,

3 i.e., with a qualified American Sign Language interpreter and have failed to provide speech

4 therapy. (Id.). Defendants have failed to disclose Mason’s medical, mental, social, and

5 educational backgrounds to his foster parents and have failed to properly supervise the

6 administration of Mason’s psychotropic drugs. (Id.).

7

Plaintiffs sued two groups of Defendants. The State Defendants are Michael Willden,

8 Director of the Nevada Department of Health and Human Services (“NDHHS”), sued in his

9 official and individual capacities; Diane Comeaux, the Administrator of NDCFS from June 2008

10 to December 2011, sued in her individual capacity; and Amber Howell, the current Administrator

11 of NDCFS, sued in her official capacity. The County Defendants are Clark County; Virginia

12 Valentine, the Clark County Manager from August 2006 to January 2011, sued in her individual

13 capacity; Don Burnette, the current Clark County Manager, sued in his official capacity; Tom

14 Morton, the Director of CCDFS from July 2006 to August 2011, sued in his individual capacity;

15 and Lisa Ruiz-Lee, the current Director of CCDFS, sued in her official capacity. Plaintiffs filed

16 the seventy-five-page Complaint in this Court on April 13, 2010, listing the following twelve

17 nominal claims: (1)–(2), (11) substantive due process violations pursuant to 42 U.S.C. § 1983;

18 (3), (8) violations of the Adoption Assistance and Child Welfare Act (“AACWA”) pursuant to

19 § 1983; (4), (12) substantive due process violations under the Nevada Constitution; (5)

20 negligence; (6) declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202 that Nevada

21 Revised Statute (“NRS”) section 424.090 violates the Supremacy Clause; (7) declaratory and

22 injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202 that NRS section 432.0177 violates the

23 Supremacy Clause; and (9)–(10) violations of the Child Abuse Prevention and Treatment Act

24 (“CAPTA”) pursuant to § 1983. The case was assigned to the Hon. Howard D. McKibben but

25 was reassigned to this Court after Judge McKibben recused himself. Page 5 of 29

1

Defendants moved to dismiss. Plaintiffs voluntarily dismissed the sixth and seventh

2 nominal claims (the Supremacy Clause claims). In a thirty-one-page order, the Court granted the

3 motions to dismiss. (See Order, Oct. 26, 2010, ECF No. 85). The Court ruled: (1) Defendants in

4 their official capacities were not entitled to Eleventh Amendment protection from claims for

5 prospective injunctive relief; (2) Defendants were not entitled to absolute immunity; (3)

6 Defendants were entitled to qualified immunity from the “duty to protect” substantive due

7 process claim; (4) Defendants were entitled to qualified immunity from the “state created

8 danger” substantive due process claim, and the claim was also dismissed for failure to state a

9 claim; (5) sections 671(a)(10), (16) and 675(1), (5)(A)(ii), (5)(D) of the AACWA created no

10 private right of action, and Defendants were entitled to qualified immunity against these claims

11 in any case; (6) Defendants were entitled to qualified immunity from the “guardian ad litem”

12 CAPTA claim, and the Court would abstain from ruling on that claim under Younger v. Harris,

13 401 U.S. 37 (1971) due to pending state proceedings; (7) there was no private right of action for

14 a “plan submission” claim under CAPTA; and (8) the Court would decline to rule on the

15 negligence claim under 28 U.S.C. § 1367(c).

16

Plaintiffs appealed. In a thirty-four-page opinion, the Court of Appeals affirmed in part,

17 reversed in part, and remanded. The Court affirmed the dismissal of all claims except the first,

18 second, third, eighth, and eleventh, which claims it remanded for further proceedings, and ruled

19 that Plaintiffs should be permitted to amend the substantive due process claims after remand and

20 should be able to seek leave to amend the tenth claim. The Court of Appeals ruled that qualified

21 immunity applied only to Defendants in their individual capacities and only as to monetary

22 damages. It reversed the qualified immunity rulings as to injunctive relief and as to monetary

23 damages against Clark County as to the first and eleventh causes of action and remanded for

24 further analysis of qualified immunity as to the claims for monetary damages against Defendants

25 in their individual capacities. As to the second cause of action, the Court of Appeals ruled that Page 6 of 29

1 the “state created danger” doctrine applied not only when the state literally created the danger,

2 but also when the state knowingly exposed a person to an existing danger from a third person.

3 The Court of Appeals therefore reversed dismissal of the second claim and this Court’s grant of

4 qualified immunity. The Court of Appeals ruled that Plaintiffs had not sufficiently pled

5 supervisory responsibility claims against State Defendants but should be given leave to amend

6 the substantive due process claims to do so. The Court of Appeals ruled that the “case plan”

7 provisions of AACWA under 42 U.S.C. §§ 671(a)(16) and 675(1) and the “records provision”

8 provisions of AACWA under §§ 671(a)(16), 675(1), and 675(5)(d) were privately enforceable.

9 The Court of Appeals affirmed that the “guardian ad litem” and “early intervention” provisions

10 of CAPTA, as well as the Individuals with Disabilities Education Act provision Plaintiffs

11 invoked, were not privately enforceable.

12

Plaintiffs filed the Amended Complaint (“AC”), listing seven nominal claims: (1)–(2)

13 substantive due process violations pursuant to § 1983; (3), (7) AACWA violations pursuant to

14 § 1983; (4) substantive due process violations under the Nevada Constitution; and (5) negligence.

15 State Defendants and County Defendants have separately moved to dismiss the AC.

16 II. LEGAL STANDARDS

17

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

18 claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of

19 what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

20 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

21 that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule

22 12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720

23 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for

24 failure to state a claim, dismissal is appropriate only when the complaint does not give the

25 defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Page 7 of 29

1 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is

2 sufficient to state a claim, the court will take all material allegations as true and construe them in

3 the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th

4 Cir. 1986). The court, however, is not required to accept as true allegations that are merely

5 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

6 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

7 with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation

8 is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly,

9 550 U.S. at 555).

10

“Generally, a district court may not consider any material beyond the pleadings in ruling

11 on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

12 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

13 & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

14 whose contents are alleged in a complaint and whose authenticity no party questions, but which

15 are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)

16 motion to dismiss” without converting the motion to dismiss into a motion for summary

17 judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule

18 of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay

19 Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court

20 considers materials outside of the pleadings, the motion to dismiss is converted into a motion for

21 summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.

22 2001).

23 ///

24 ///

25 ///

Page 8 of 29

1 III. ANALYSIS

2

A. State Defendants’ Motion to Dismiss

3

1. Substantive Due Process

4

The Court first notes that the substantive due process claim under the Nevada

5 Constitution is redundant with the parallel claim under the U.S. Constitution. Nevada’s Due

6 Process Clause is textually identical to the federal clause in relevant respects, compare Nev.

7 Const. art. 1, § 8(5), with U.S. Const. amend XIV, § 1, and the Nevada Supreme Court reads the

8 state clause as coextensive with the federal clause, see, e.g., Wyman v. State, 217 P.3d 572, 578

9 (Nev. 2009). The Due Process Clause of the Fifth Amendment does not apply to the states,

10 Barron v. City of Baltimore, 32 U.S. 243, 250–51 (1833) (Marshall, C.J.), and the Due Process

11 Clause of the Fourteenth Amendment, which does apply to the states, see U.S. Const. amend

12 XIV, § 1 (“nor shall any State deprive any person of life, liberty, or property, without due process

13 of law”), was not adopted until 1868. The Declaration of Rights that comprises Article I of the

14 Nevada Constitution, which was adopted in 1864, was therefore necessary in order to impose

15 certain restrictions upon the State of Nevada that were already imposed against the federal

16 government under the Bill of Rights, and the Nevada Supreme Court has not interpreted the

17 protections of the Declaration of Rights to exceed the scope of their federal counterparts. Michael

18 W. Bowers, The Sagebrush State 43–44 (3rd ed., Univ. Nev. Press 2006); Michael W. Bowers,

19 The Nevada State Constitution 24 (1993). During the Nevada Constitutional Convention in

20 1864, Nevada’s Due Process Clause was not debated, although several other provisions of the

21 Declaration of Rights—including Section 8, of which Nevada’s Due Process Clause is a

22 subsection—were heavily debated. See generally Andrew J. Marsh, Official Report of the

23 Debates and Proceedings of the Constitutional Convention of the State of Nevada (Frank

24 Eastman pr., 1866), available at http://books.google.com. The adoption of this parallel clause,

25 without any recorded debate, indicates that the intent of the framers of Nevada’s Constitution Page 9 of 29

1 was to adopt the federal clause and all of its meanings. That in itself does not necessitate the

2 Nevada Supreme Court’s acceptance of the U.S. Supreme Court’s interpretations of the federal

3 clause when it interprets the state clause, but the Nevada Supreme Court does not yet appear to

4 have interpreted the state clause differently.

5

The Court of Appeals noted that there are two exceptions to the general rule that a state

6 has no duty under the due process clause to protect persons from third persons: (1) the “special

7 relationship” exception, where a state assumes responsibility for the safety and well-being of a

8 person in its custody; and (2) the “state-created danger” exception, where a state affirmatively

9 places a person in danger with deliberate indifference to a known and obvious danger. See Henry

10 A. v. Willden, 678 F.3d 991, 998 (9th Cir. 2012) (citing Patel v. Kent Sch. Dist., 648 F.3d 965,

11 971–72 (9th Cir. 2011) (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189,

12 198–202 (1989) (special relationship doctrine); L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)

13 (state-created danger doctrine))). The Court previously dismissed these claims against all

14 Defendants based upon qualified immunity.

15

The Court of Appeals reversed as to the “special relationship” substantive due process

16 claim because qualified immunity does not apply to Clark County or to any claims for injunctive

17 relief as a matter of law, and at the dismissal stage in the present case, the individual Defendants

18 were not entitled to qualified immunity against claims for money damages. See id. at 999–1001.

19 Plaintiffs had sufficiently made out a “special relationship claim” for which there was no

20 qualified immunity at the dismissal stage. See id. The Court of Appeals also reversed the Court’s

21 dismissal of the “state-created” danger claim and its grant of qualified immunity against that

22 claim, ruling that the claim could lie not only where the state had created the danger itself, but

23 also where it had exposed a person to a pre-existing danger from a third person. See id. at

24 1002–03. The law of the case therefore prevents both dismissal for failure to state a claim and

25 qualified immunity as to either facet of the substantive due process claim, and the Court therefore Page 10 of 29

1 denies the present motion to dismiss in this regard.

2

The Court of Appeals agreed with the Court that Plaintiffs had not in the Complaint

3 sufficiently pled supervisory liability as to State Defendants but ruled that Plaintiffs should be

4 given leave to amend in this regard. See id. at 1003–05. Plaintiffs had sufficiently alleged a

5 custodial relationship with State Defendants under the “special relationship” facet of the

6 substantive due process claim because even those who had not been in the direct custody of

7 NDCFS itself at some point had been in the custody of CCDFS, which NDCFS was responsible

8 for supervising. See id. The Court of Appeals noted that a supervisor could only be liable under

9 § 1983 for his or her own personal involvement in a violation or “for his own culpable action or

10 inaction in the training, supervision, or control of his subordinates; for his acquiescence in the

11 constitutional deprivation; or for conduct that showed a reckless or callous indifference to the

12 rights of others.” Id. at 1004 (quoting Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011)

13 (quoting Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998))). The Court of

14 Appeals noted that Plaintiffs had not sufficiently alleged supervisory responsibility of Willden or

15 Comeaux (those State Defendants sued in their individual capacities):

16

[T]here are few specific allegations against the State defendants. Most of the

allegations in the complaint simply reference “Defendants,” without specifying

17

whether the conduct at issue was committed by the named State officials, County

officials, or the “John Doe” supervisors or caseworkers. For many of the detailed

18

factual allegations, such as the failure to respond to a particular report of abuse or

authorize a particular medical procedure, it is implausible to suggest that Willden or

19

Comeaux personally committed the alleged violation.

20

. . . .

21

The allegations that do expressly reference the State defendants are too

general to state a claim for supervisory liability.

22

. . . .

23

[T]he allegations here claim that the agencies directed by Willden and Comeaux have

24

oversight responsibility for Clark County’s foster care system and are required to

ensure that Clark County is complying with state and federal law. The complaint

25

also alleges that all of the defendants had knowledge of independent reports

Page 11 of 29

1

documenting the systemic failures of foster care in Nevada. But it does not allege

that Willden or Comeaux had any personal knowledge of the specific constitutional

2

violations that led to Plaintiffs’ injuries, or that they had any direct responsibility to

train or supervise the caseworkers employed by Clark County.

3

Id. at 1004.

4

In their present motion, State Defendants argue that Plaintiffs have failed to cure the lack

5

of a sufficient claim of personal involvement by Willden or Comeaux. The Court agrees. Other

6

than to identify them or specify their duties generally, the seventy-two-page AC mentions

7

Willden or Comeaux in eleven paragraphs, never in connection with any failing with respect to a

8

particular Plaintiff. (See Am. Compl. ¶¶ 7–8, 47, 49, 52, 81, 103–04, 127, 142, 161). Plaintiffs

9

allege: (1) Willden received a letter from a federal official in 2006 informing him that the child

10

welfare system in Clark County “should be of grave concern to the State”; (2) Willden then

11

passed these concerns on to Morton; (3) Willden and Comeaux were responsible for the

12

implementation of federal child welfare and Medicaid programs in Nevada; (4) Willden and

13

Comeaux received a letter from a legal aid organization in 2008 listing the organization’s

14

concerns with the mental health services provided to foster children in Clark County; (5)

15

Comeaux testified before the Nevada Legislature in 2009 that the state was not accurately

16

tracking the psychotropic medications of foster children or providing relevant information to

17

their caseworkers; (6) Willden testified before the Nevada Legislature in 2007 that there were

18

failures in child abuse investigations, including the failure to interview siblings of victims of

19

reported abuse; (7) Willden was presumably aware of a 2006 report concerning deficiencies in

20

out-of-state placements; and (8) Comeaux authored a 2011 report noting that only 53% of

21

children had case plans.

22

As in the Complaint, the AC simply lists Willden’s and Comeaux’s various duties and

23

alleges a systematic failure to ensure they were carried out, the kind of supervisory responsibility

24

claim that is not cognizable under § 1983. Items five through eight above are of most concern,

25

Page 12 of 29

1 but these allegations of knowledge of general problems do not indicate acquiescence or

2 indifference to failures in any particular case or even generally. The Court therefore dismisses

3 the substantive due process claims against Willden and Comeaux in their individual capacities.

4

Finally, State Defendants argue that certain claims for injunctive relief are moot because

5 only Plaintiffs Henry A. and Mason I. remain in the custody of any Defendant. The Court agrees.

6 The claims for injunctive relief are therefore dismissed as moot, except as to Henry A. and

7 Mason I. Those Plaintiffs have standing to assert claims for injunctive relief consisting of failure

8 to provide mental health information to foster parents (Henry A.), failure to investigate reports of

9 abuse (Mason I.), and failure to inspect out-of-state facilities (Mason I.).

10

2. Adoption Assistance and Child Welfare Act

11

The Court of Appeals reversed the Court’s previous ruling that there was no private cause

12 of action under the relevant provisions of the AACWA. See Henry A., 673 F.3d at 1006–09.

13 Neither the Court nor the Court of Appeals on appeal addressed the substantive sufficiency of

14 those claims or whether State Defendants were entitled to qualified immunity against those

15 claims in their official capacities. State Defendants now challenge those claims in their

16 individual capacities (Willden and Comeaux), in part and as presented in the AC, and assert

17 qualified immunity against them.

18

Specifically, State Defendants argue that Plaintiffs have failed to state a claim for failing

19 to update records or provide information to foster parents. The Court agrees that Plaintiffs have

20 not sufficiently alleged the personal involvement of Willden or Comeaux in these failures such

21 that Plaintiffs might be entitled to money damages against them under § 1983. See supra Part

22 III.A.1. Again, Howell is only sued in her official capacity. As with the substantive due process

23 claims, the present claim is moot as to injunctive relief, except as to Plaintiffs Henry A. and

24 Mason I.

25 ///

Page 13 of 29

1

3. Monetary Damages Against State Defendants

2

“The Judicial power of the United States shall not be construed to extend to any suit in

3 law or equity, commenced or prosecuted against one of the United States by Citizens of another

4 State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Although the text

5 of the Eleventh Amendment does not explicitly so indicate, it grants a state immunity from suit

6 by its own citizens, as well. Hans v. Louisiana, 134 U.S. 1, 10 (1890). In a related analysis, but

7 strictly independent of sovereign immunity, § 1983 only permits suit against “persons.” Neither

8 a state nor its employees acting in their official capacities are “person[s]” who can be sued under

9 § 1983, Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989), but state employees sued in

10 their individual capacities are “persons” who can be sued under § 1983, Hafer v. Melo, 502 U.S.

11 21, 27 (1991). Furthermore, state employees sued in their individual capacities for injunctive

12 relief or for damages to be paid out of their private resources are not protected by a state’s

13 sovereign immunity. Edelman v. Jordan, 415 U.S. 651, 66465 (1974); Ex parte Young, 209 U.S.

14 123, 15960 (1908).

15

Nevada has explicitly declined to waive its Eleventh Amendment immunity. See Nev.

16 Rev. Stat. § 41.031(3). The Ninth Circuit has twice held that under this statute Nevada state

17 entities retain Eleventh Amendment protection from suit in federal court. See Romano v. Bible,

18 169 F.3d 1182, 1185 (9th Cir.1999) (Nevada Gaming Control Board); Austin v. State Indus. Ins.

19 Sys., 939 F.2d 676, 678 (9th Cir.1991) (State Industrial Insurance System). The Nevada Supreme

20 Court has also noted that state entities in Nevada are immune from suit in federal court under the

21 Eleventh Amendment. A Defendant waives its Eleventh Amendment immunity from suit,

22 however, when it removes a case to federal court. Embury v. King, 361 F.3d 562, 566 (9th Cir.

23 2004). State Defendants did not remove this case, and they are therefore protected by the

24

25 Page 14 of 29

1 Eleventh Amendment.2 Therefore, under the Eleventh Amendment, State Defendants Willden

2 and Comeaux are potentially amenable to money damages in their individual capacities only.

3 This protection applies to all claims, not only the federal claims, because the Eleventh

4 Amendment provides protection from suits by citizens against states in federal court altogether; it

5 is not simply a limitation against federal causes of action. See Pennhurst State Sch. & Hosp. v.

6 Halderman, 465 U.S. 89, 103–21 (1984) (“[A] federal suit against state officials on the basis of

7 state law contravenes the Eleventh Amendment when—as here—the relief sought and ordered

8 has an impact directly on the State itself”). The Court has no jurisdiction to order official

9 capacity relief against the State of Nevada or its officials unless Nevada has waived the

10 jurisdictional limitation in the Eleventh Amendment, which it has expressly refused to do

11 legislatively as a general matter and has not done as a practical matter via removal in the present

12 case. The Court therefore grants State Defendants’ motion to the extent it asks the Court to

13 dismiss official capacity claims for monetary damages.

14

State Defendants also argue that Plaintiffs have not sufficiently pled entitlement to money

15 damages against them in their individual capacities.3 State Defendants argue that Plaintiffs have

16 not pled which specific actions by State Defendants caused the alleged violations. Plaintiffs must

17 plead: “(1) a constitutional violation; (2) caused by specific behavior of an individual defendant;

18 (3) entitling them to money damages from that individual.” Suever v. Connell, 579 F.3d 1047,

19 1061 (9th Cir. 2009). Defendants must be put on notice of “specific, individual actions.” Id.

20 Plaintiffs have not sufficiently pled specific actions against Willden and Comeaux; the analysis is

21 provided, supra, in Part III.A.1.

22 ///

23
2Also, State Defendants in their official capacities are not “persons” who can be sued 24 under § 1983.

25

3Only Willden and Comeaux are sued in their individual capacities.

Page 15 of 29

1

4. Case Plan Claim

2

As with the “providing information” claim under the AACWA, addressed supra, State

3 Defendants argue that Plaintiffs have failed sufficiently to implicate Willden or Comeaux

4 personally in any failures to timely file initial case plans under AACWA. The Court agrees.

5 Plaintiffs have alleged no specific failure to train or any personal involvement, but only poor

6 management.

7

State Defendants also argue that these claims may be moot or that Plaintiffs may lack

8 standing to bring them. State Defendants note that the AC lists Henry A. and Mason I. as the

9 class representatives for the “timely initial case plan” claims. (See Am. Compl. ¶ 149). State

10 Defendants argue these Plaintiffs do not have standing to assert their own claims or the claims of

11 others, because they do not allege having not received a case plan within sixty (60) days of

12 removal from their homes, which is the minimum requirement under 45 C.F.R. § 1356.21(g)(2).

13 An examination of the AC reveals no specific allegation that either of these Plaintiffs did not

14 receive an initial case plan within sixty days. Plaintiffs allege only that “on information and

15 belief,” Henry A. and Mason I. are members of the class. (See Am. Compl. ¶ 149). The class is

16 in turn defined as those placed into foster care “for whom a case plan in compliance with federal

17 and state requirements has not been prepared.” (Id. ¶ 148). Paragraph 149 simply incorporates

18 the conclusory class definition from paragraph 148. The Court therefore grants the motion to

19 dismiss in this regard, with leave to amend.

20

State Defendants also argue that such claims are moot as to any Plaintiff, such as Henry

21 A. and Mason I., who have been removed for over sixty days, because the State cannot now

22 provide such persons with an initial case plan within sixty days of removal. The Court agrees

23 only in part. In cases where a sufficient case plan has been provided, but untimely so, the failure

24 to provide a timely initial case plan cannot be remedied via an injunction. However, the failure

25 can be remedied through injunctive relief in those cases where no case plan has ever been Page 16 of 29

1 provided, because such children suffer a continuing harm. But in any case, Plaintiffs must plead

2 facts indicating a plausible violation, not simply recite the standards and allege Defendants

3 violated them.

4

5. Negligence

5

In Nevada, certain government actors have discretionary immunity from common law

6 claims. See Nev. Rev. Stat. § 41.032. This section of the code immediately follows the section

7 that waives the state’s common law sovereign immunity but retains the state’s Eleventh

8 Amendment protection. See id. § 41.031. The discretionary immunity statute applies to actions

9 brought “against an immune contractor or an officer or employee of the State or any of its

10 agencies or political subdivisions.” See id. § 41.032. On its face, the statute does not necessarily

11 immunize municipal governments or their employees, because in some contexts municipalities

12 are considered independent corporations or “persons” with their own identities, not mere political

13 subdivisions of the state, at least in the eyes of Congress. See Monell v. Dep't of Social Servs. of

14 City of N.Y., 436 U.S. 658, 690 (1978). The Nevada Supreme Court, however, has always

15 assumed that municipalities are political subdivisions of the state for the purposes of the

16 discretionary immunity statute. See, e.g., Travelers Hotel, Ltd. v. City of Reno, 741 P.2d 1353,

17 1354–55 (Nev. 1987). This construction is consistent with Monell, because the discretionary

18 immunity statute only protects state and municipal agencies against state causes of action, such

19 as the present negligence claim.

20

The question remains whether there is discretionary immunity as a matter of law in this

21 case. The statute immunizes municipal agencies and their employees against actions:

22

[b]ased upon the exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of the State or any of its agencies or

23

political subdivisions or of any officer, employee or immune contractor of any of

these, whether or not the discretion involved is abused.

24

Nev. Rev. Stat. § 41.032(2). In interpreting this statute, the Nevada Supreme Court has explicitly

25

Page 17 of 29

1 adopted the two-part test for discretionary immunity under the Federal Tort Claims Act, under 2 which there is discretionary immunity when: (1) the allegedly negligent acts involve elements of 3 judgment or choice; (2) and the judgment or choice made involves social, economic, or political 4 policy considerations. Martinez v. Maruszczak, 168 P.3d 720, 722 (Nev.2007) (citing Berkovitz v. 5 United States, 486 U.S. 531 (1988); United States v. Gaubert, 499 U.S. 315 (1991)). Under this 6 standard, a court does not ask whether the official abused his or her discretion, see Nev. Rev. 7 Stat. § 41.032(2), but only whether the acts concerned a matter in which the official had 8 discretion. In other words, the immunity is not infinitely broad, but once it is determined that the 9 acts at issue were within the breadth of the statute, i.e., that they involved judgment or choice on 10 social, economic, or political policy considerations, the immunity then applies even to abuses of 11 discretion. Still, there is no discretionary immunity for acts taken in “bad faith,” which is a 12 subjective failure that is worse than an objective abuse of discretion. See Falline v. GNLV Corp., 13 823 P.2d 888 (1991); accord Wright v. Wynn, 682 So.2d 1, 2 (Ala. 1996) (equating “bad faith” in 14 this context with “malice or willfulness”). The Falline Court held that “bad faith” encompasses 15 acts that are completely outside the authority of an official: “Bad faith ... involves an 16 implemented attitude that completely transcends the circumference of authority granted the 17 individual or entity. In other words, an abuse of discretion occurs within the circumference of 18 authority, and an act or omission of bad faith occurs outside the circumference of authority.” Id. 19 at 892 n. 3. In Davis v. City of Las Vegas, the Ninth Circuit noted that under Falline, “where an 20 officer arrests a citizen in an abusive manner not as the result of the exercise of poor judgment as 21 to the force required to make an arrest [an objective abuse of discretion], but instead because of 22 hostility toward a suspect or a particular class of suspects (such as members of racial minority 23 groups) or because of a willful or deliberate disregard for the rights of a particular citizen or 24 citizens [a subjective abuse of power], the officer’s actions are the result of bad faith and he is 25 not immune from suit.” 478 F .3d 1048, 1060 (9th Cir. 2007). The difference between a
Page 18 of 29

1 non-actionable abuse of discretion and an actionable bad-faith violation of rights therefore

2 appears to turn on the state actor’s mental state; when he crosses the line from recklessness as to

3 a person’s rights to malicious intent to violate them, he is no longer protected by the

4 discretionary immunity statute, even if he initially satisfies the two-part test under Martinez.

5

In this case, the first prong of discretionary immunity is satisfied, because decisions

6 concerning the placement of wards of the state into homes of relatives, foster homes, or group

7 homes clearly involves personal deliberation and judgment. This prong of the test is usually easy

8 to satisfy—a task must simply involve some element of personal deliberation and choice so as

9 not to be purely ministerial.

10

The second prong of the test is trickier to apply. It focuses on the purposes of

11 discretionary immunity:

12

Because the FTCA’s discretionary-function exception is not a bright-line rule, federal

courts applying the Berkovitz–Gaubert test must assess cases on their facts, keeping

13

in mind Congress’ purpose in enacting the exception: “to prevent judicial

‘second-guessing’ of legislative and administrative decisions grounded in social,

14

economic, and political policy through the medium of an action in tort.” Thus, if the

injury-producing conduct is an integral part of governmental policy-making or

15

planning, if the imposition of liability might jeopardize the quality of the

governmental process, or if the legislative or executive branch’s power or

16

responsibility would be usurped, immunity will likely attach under the second

criterion.

17

....

18

We therefore adopt the Berkovitz–Gaubert approach and clarify that to fall within the

19

scope of discretionary-act immunity, a decision must (1) involve an element of

individual judgment or choice and (2) be based on considerations of social,

20

economic, or political policy. In this, we clarify that decisions at all levels of

government, including frequent or routine decisions, may be protected by

21

discretionary-act immunity, if the decisions require analysis of government policy

concerns. However, discretionary decisions that fail to meet the second criterion of

22

this test remain unprotected by NRS 41.032(2)’s discretionary-act immunity.

23

Under the Berkovitz–Gaubert test, the decision to create and operate a public hospital

and the college of medicine are the type of decisions entitled to

24

discretionary-function immunity, because those decisions satisfy both prongs of the

Berkovitz–Gaubert test; namely, they involve elements of judgment and choice, and

25

they relate to social and economic policy. But, while a physician’s diagnostic and

Page 19 of 29

1

treatment decisions involve judgment and choice, thus satisfying the test’s first

criterion, those decisions generally do not include policy considerations, as required

2

by the test’s second criterion. In this case, as Dr. Martinez did not engage in

policy-making decisions in his treatment of Mr. Maruszczak, he is not entitled to

3

immunity from suit under NRS 41.032(2).

4 Martinez, 168 P.3d at 729 (footnotes omitted). The Martinez Court rejected the previously used

5 discretionary—ministerial test, under which liability could only attach where a government actor

6 was bound to act in a narrowly particular way and strayed from that direction. See id. at 727 n.27

7 (citing Maturi v. Las Vegas Metro. Police Dep’t, 871 P.2d 932, 934 (Nev. 1994)). Martinez

8 clarified that officials could be liable even where they exercised judgment if that judgment was

9 not akin to social, economic, or political policy-making, but the case still did not distinguish

10 between (1) exercising judgment in a way totally divorced from any existing policies and (2)

11 exercising judgment in a way motivated by existing policies.

12

The Nevada Supreme Court has applied Martinez several times, and it answered the

13 question posed above in the latest such case. In Butler ex rel. Butler v. Bayer, the Court ruled

14 that defendants were not entitled to discretionary immunity as against a negligence claim for

15 releasing a quadriplegic inmate outside his girlfriend’s trailer when she was not home and when

16 the trailer had not been prepared to receive him as planned. 168 P.3d 1055, 1059–60, 1067 (Nev.

17 2007). Although the act involved personal judgment, it did not involve policy-making

18 considerations. Later, in City of Boulder City v. Boulder Excavating, Inc., the Court ruled that a

19 city engineer who requested that a contractor replace one of its subcontractors had discretionary

20 immunity against the subcontractor’s claims for defamation and intentional interference with

21 contractual relationship, because the city engineer was executing city policy that was based upon

22 public policy considerations—the city had experienced problems in dealing with the plaintiff

23 company in the past. 191 P.3d 1175, 1177, 1180–81 (Nev. 2008). The Boulder Excavating Court

24 thus took the first step in answering the question posed, supra. Most recently, in Ransdell v.

25 Clark County, the Court answered the question clearly when it ruled that where there is no Page 20 of 29

1 particular policy or statute in place making the act at issue a purely ministerial one, but where the

2 actor’s personal decision is made in furtherance of stated goals and policies, the statute protects

3 the actor. 192 P.3d 756, 763 (Nev. 2009). In Ransdell, a county inspector obtained a warrant to

4 have debris involuntarily removed from Mr. Ransdell’s property when he refused to remove it

5 himself after several complaints, inspections, citations, and extensions of time. See id. at 759.

6 The County removed the debris, and Mr. Ransdell brought § 1983 and state law tort claims

7 against the County. Id. at 759–60. Applying Martinez and examining a factually similar case

8 from Iowa (which, like Nevada, had adopted the Berkovitz–Gaubert test), the Court ruled that the

9 second prong of the test was satisfied “because the goals of the County in abating Ransdell’s

10 property were motivated by environmental, health, and economic policies supported by Clark

11 County Code and statutory authority.” Id. at 763.

12

Ransdell does much to clarify the scope of an every-day actor’s immunity. After

13 Martinez but before Ransdell, it appeared that every-day actors such as county inspectors and

14 police officers would not be immune under the statute unless their actions were ministerial tasks

15 particularly commanded by ordinances or official policies. Acts involving every-day

16 implementation of policy choices, but which did not themselves consist of policy choices, did not

17 appear to be protected. Ransdell makes it clear that individual acts involving the implementation

18 of covered types of policy choices are protected under the discretionary immunity statute. Id. at

19 764 (“[B]ecause the County’s actions were grounded on public policy concerns, as expressed in

20 the County Code and Nevada’s abatement statute, they fit within the second criterion of the

21 Berkovitz–Gaubert test.”).

22

Here, it is clear that as a general matter the management of the placement of wards of the

23 state involve elements of judgment and choice and that Defendants’ choices in the present

24

25 Page 21 of 29

1 matters, no matter how poor they may have been,4 were grounded on public policy concerns as

2 expressed in the Nevada Revised Statutes. And Plaintiffs have not alleged malicious bad faith,

3 but rather objective negligence, however gross. Still, Plaintiffs allege that Defendants were

4 bound by federal law to perform certain ministerial tasks, and that although Defendants may have

5 had some range of discretion in how they performed those tasks, they certainly had no discretion

6 to fail to perform the required tasks altogether. The ministerial tasks commanded by law that

7 Plaintiffs argue Defendants failed to perform, and which therefore prevent discretionary

8 immunity as to any harm resulting from the failure, are those ministerial tasks required by the

9 “case plan” provisions in 42 U.S.C. §§ 671(a)(16) and 675(1) and the “records provision”

10 provisions under §§ 671(a)(16), 675(1), and 675(5)(d). Plaintiffs have brought claims directly

11 under those statutes for injunctive relief. The present negligence action is a state law vehicle to

12 obtain money damages for failures under those statutes.

13

In summary, the present negligence claim is barred by the discretionary immunity statute

14 insofar as Plaintiffs allege Defendants violated the general duty of care—the Nevada Legislature

15 has via the discretionary immunity statute removed a jury’s ability to second-guess a state

16 official’s discretion in performing his duties according to that standard—but it is not necessarily

17 barred insofar as it consists of a negligence per se claim premised upon the violation of

18 nonnegotiable statutory duties. Adherence to specific statutory commands involves no

19 discretion.

20

21 4The Court states no opinion on whether the State’s or County’s choices were “poor” in
22 these cases. All parties can agree that the circumstances presented in this case are terrible, and that the ultimate responsibility for the suffering in these cases was the bad parents and foster
23 parents involved. The Court is aware that welfare agencies, like most public agencies, face difficult dilemmas with no “good” options in many instances and must make the best decision
24 they can with the resources available. The federal and state legislatures recognize this, as well, hence the discretionary immunity doctrines at both the federal and state levels.
25
Page 22 of 29

1

Here, the statutes alleged to have been violated are both federal and state. A federal

2 statute can in theory provide the floor of care under a state law negligence per se theory. See Paul

3 Sherman, Use of Federal Statutes in Negligence Per Se Actions, 13 Whittier L. Rev. 831,

4 883–905 (1992). The Nevada Supreme Court has not opined on the question, but the California

5 Court of Appeals has called the theory that a federal statute can set the floor of care in a state law

6 negligence action “dubious” in dicta. See Asplund v. Selected Invs. in Fin. Equities, Inc., 103 Cal.

7 Rptr. 2d 34, 47 (Cal. Ct. App. 2000). The fact that the State of Nevada has chosen to accept

8 federal funds tied to the conditions at issue in this case could be said to reflect the judgment of

9 the State that those conditions are appropriate standards for the conduct of its agencies. If so,

10 adoption of the federal standards for a negligence per se theory might be appropriate. In Nevada,

11 negligence per se exists where: (1) the plaintiff can show that the defendant has violated a duty

12 imposed by statute; (2) the plaintiff is a member of the class of persons intended to be protected

13 by the statute or regulation; and (3) the harm is of the kind intended to be prevented by the

14 statute. See Ashwood v. Clark Cnty., 930 P.2d 740, 743–44 (Nev. 1997) (citing Sagebrush Ltd. v.

15 Carson City, 660 P.2d 1013, 1015 (Nev. 1983)); Restatement (Second) of Torts § 286.

16

In Nevada, the theory is only available where the Nevada Legislature has adopted the

17 statute. It is possible that a federal statute could provide the floor of care under Nevada’s

18 common law negligence action where the Nevada Legislature has later adopted the federal statute

19 in some way. But if the Governor or another executive official is solely responsible for the

20 acceptance of the federal funds and attendant conditions, those conditions do not set the floor of

21 care for a negligence action under Nevada’s common law because the Nevada Legislature has not

22 itself adopted those conditions. If it is the Governor or some other administrative official, and

23 not the Nevada Legislature, who has accepted the federal funds and attendant conditions, then a

24 violation of those conditions would not be negligence per se, but only evidence of negligence.

25 See Price v. Sinnott, 460 P.2d 837, 839–40 (Nev. 1969) (“[W]e do not agree that a violation of an Page 23 of 29

1 administrative regulation is negligence per se, since it lacks the force and effect of a substantive

2 legislative enactment. . . . We prefer the rule that proof of a deviation from an administrative

3 regulation is only evidence of negligence; not negligence per se.” (citations omitted)). In such a

4 case, Nevada’s discretionary immunity statute would render any amount of evidence of

5 negligence under the general standard moot where it applies.

6

The AACWA requires states to submit its plans under the Act to the Secretary of the

7 Social Security Administration. See Adoption Assistance and Child Welfare Act of 1980

8 § 101(a)(1), Pub. L. 96-272, 94 Stat. 500, 501 (1980). The Act refers only to the “State” and the

9 “State agency,” and does not appear to refer to state legislatures or require any act by a state

10 legislature for a state to qualify for assistance under the Act. See generally id. The Act was later

11 amended by the Adoption and Safe Families Act of 1997 (“ASFA”), Pub. L. 105-89, 111 Stat.

12 2115 (1997), which uses the same terminology, although it refers to “State legislature[s]” in the

13 context of opting out of certain procedures. Section 501 of the ASFA makes a special provision

14 for delay of its effective date “if state legislation [is] required” to implement it, indicating that

15 state legislation is not as a rule contemplated for a state’s participation. The name of neither Act

16 appears in the Nevada Revised Statutes or the Nevada Administrative Code. Plaintiffs do not

17 allege that the Nevada Legislature has itself adopted the standards of care upon which the State’s

18 acceptance of federal funds is conditioned. Therefore, although the violation of those standards

19 would provide a basis for the Secretary of Health and Human Services to cease funding, and

20 Plaintiffs have claims for an injunction to comply with the federal statutes, they have no

21 negligence per se claim for damages under Nevada’s common law.

22

In summary, Defendants have discretionary immunity from claims alleging a violation of

23 the general duty of care, and insofar as Plaintiffs mean to imply a negligence per se theory based

24 upon the AACWA or the ASFA, they have failed to allege a violation of a statutory floor of care

25 set by the Nevada Legislature that is not obviated by Nevada’s discretionary immunity statute. Page 24 of 29

1 The Court therefore dismisses the negligence claim with respect to alleged violations of federal

2 statutes.

3

Plaintiffs also allege the violation of state laws, however. The negligence per se claim is

4 prevented by the discretionary immunity statute insofar as Plaintiffs allege violations of the

5 Nevada Administrative Code, because violations of the Code are only evidence of negligence,

6 not negligence per se. Plaintiffs, however, also allege violations of sections 432B.260, 424.038,

7 432.0177, and 127.330 of the Nevada Revised Statutes, and violations of these statutes can

8 provide a basis for a negligence per se claim against which there is no discretionary immunity if

9 the sections mandate nondiscretionary, ministerial tasks. (See Am. Compl. ¶ 204).

10

Section 432B.260 mandates reports, investigations, and evaluation upon receiving

11 information concerning possible child abuse or neglect. See Nev. Rev. Stat. § 432B.260.

12 Plaintiffs allege that Defendants failed to initiate investigations after receiving reports of the

13 possible abuse or neglect of a child. (See id. ¶ 204(b)). This allegation is conclusory as stated

14 within the negligence claim itself, but that claim incorporates all previous allegations (See id.

15 ¶ 202). The Court finds that Plaintiffs Christine F. and Mason I. have sufficiently made out a

16 negligence per se claim not barred by discretionary immunity under section 432B.260, but the

17 other Plaintiffs have not. Christine F. and Mason I. allege that Defendants had reports of, or

18 access to information indicating, abuse, and that they failed to take any investigative action.

19 Olivia G. alleges that Defendants failed to remove her despite reports of abuse but does not

20 allege Defendants failed to investigate. The Court dismisses the claim as to all Plaintiffs except

21 Christine F. and Mason I., with leave to amend.

22

Section 424.038 mandates counseling of foster parents by the placement agency

23 concerning any available medical and behavioral history of the child before placement. See id.

24 § 424.038. Plaintiffs Olivia G., Christine F., and Mason I. have sufficiently made out a

25 negligence per se claim not barred by discretionary immunity under section 424.038, but the Page 25 of 29

1 other Plaintiffs have not. The Court dismisses the claim as to all Plaintiffs except Olivia G.,

2 Christine F., and Mason I., with leave to amend.

3

Section 432.0177 mandates an inspection of any out-of-state placement facility before

4 placement. See id. § 432.0177. Plaintiff Mason I. is the only Plaintiff alleged to have been placed

5 out of state, at the NDA in Florida. However, he only alleges that Defendants placed him there

6 “without ensuring that it was safe and capable of meeting Mason’s need” and that they “never

7 once visited the facility . . . while he was there.” (Am. Compl. ¶ 28). These allegations are not

8 inconsistent with a pre-placement visit. That is, even if these allegations are true, they do not

9 make out a claim that NDCFS failed to physically inspect the facility before Mason I. arrived. It

10 is possible that NDCFS physically inspected the NDA but still did not “ensur[e] that it was safe

11 and capable of meeting Mason’s need” (in Plaintiff’s opinion). The Court therefore dismisses

12 the claim as to all Plaintiffs, with leave to amend.

13

Section 127.330 is the legislatively adopted text of the Interstate Compact on the

14 Placement of Children (the “Compact”). Article III of the Compact requires the sending agency

15 to provide the receiving state with certain information concerning the child. See Nev. Rev. Stat.

16 § 127.330 art. III. Neither Mason I. nor any other Plaintiff alleges a violation of the Compact.

17 The Court therefore dismisses the claim as to all Plaintiffs, with leave to amend.

18

B. County Defendants’ Motion

19

1. Case Plan Claim

20

County Defendants repeat State Defendants arguments concerning standing and mootness

21 as to the “case plan” claim.

22

2. Anonymity

23

County Defendants argue that although the minor Plaintiffs may presumably proceed

24 anonymously, there is no basis to permit the adult “next friends” of these Plaintiffs bringing suit

25 on their behalf to proceed anonymously themselves. County Defendants note that the Court Page 26 of 29

1 previously failed to address this argument when County Defendants last made it. County

2 Defendants ask the Court to require Plaintiffs to follow the mandatory procedure for obtaining

3 leave to proceed anonymously in federal court. Recently, in Doe v. Kamehameha Schools, 596

4 F.3d 1036 (9th Cir. 2010), the Court of Appeals recited the analytic framework for such a

5 request:

6

To determine whether to allow a party to proceed anonymously when the

opposing party has objected, a district court must balance five factors: “(1) the

7

severity of the threatened harm, (2) the reasonableness of the anonymous party’s

fears, . . . (3) the anonymous party’s vulnerability to such retaliation,” (4) the

8

prejudice to the opposing party, and (5) the public interest.

9 Id. at 1042 (quoting Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.

10 2000) (citations omitted)).

11

The Court finds that there is as good a reason to permit the next friends in this case to

12 proceed anonymously as there is to permit the Plaintiffs themselves to proceed anonymously.

13 Plaintiffs are minors alleging abuse and neglect, in some cases sexual abuse. As Plaintiffs argue

14 in response, and as they note they have alleged in the AC, the identification of their next friends

15 could easily cause the Plaintiffs themselves to be identified. The Court finds that the need for

16 anonymity in this case outweighs the public’s need to know Plaintiffs’ identities (or those of their

17 next friends). The mental anguish that Plaintiffs could suffer if their history of abuse became

18 public could be severe, and such fears are reasonable. It cannot be expected that the public

19 media will not disseminate such information widely if known. Public media outlets will of

20 course race one another to obtain and disseminate such information. These Plaintiffs are

21 extremely vulnerable to this kind of dissemination of private information. They would be utterly

22 unable to stop it under the First Amendment once the information was released. Defendants will

23 suffer no prejudice form Plaintiffs’ procedural anonymity because they themselves will have

24 access to the information during their defense. This is not a case where a criminal defendant

25 asserts his Sixth Amendment right to confront his accuser at a public trial. Finally, the public has Page 27 of 29

1 little interest in the names of these Plaintiffs. The public has access to every other facet of the

2 case. Its concern, if any, is with the state of the child welfare system, not with any of the

3 particular cases at issue.

4

CONCLUSION

5

IT IS HEREBY ORDERED that the Motions to Dismiss (ECF Nos. 107, 108) are

6 GRANTED IN PART and DENIED IN PART, as follows:

7

(1) The substantive due process claims, both federal and state, are dismissed as against

8 Defendants Willden and Comeaux insofar as they seek damages against them in their individual

9 capacities. Under the law of the case, however, no Defendants have qualified immunity at the

10 dismissal stage. The claims for injunctive relief are moot except as to failure to provide health

11 information to foster parents (Henry A.), failure to investigate reports of abuse (Mason I.), and

12 failure to inspect out-of-state facilities (Mason I.).

13

(2) The Eleventh Amendment protects State Defendants in their official capacities from

14 money damages as to any claim.

15

(3) The AACWA “records provision” claim is dismissed as to money damages against

16 Willden and Comeaux in their individual capacities, and the claim for injunctive relief is moot,

17 except as to Plaintiffs Henry A. and Mason I. The AACWA “case plan” claim is dismissed as to

18 all Defendants, with leave to amend.

19

(4) The negligence claim is dismissed under the discretionary immunity statute, except as

20 to Christine F.’s and Mason I.’s claims invoking a negligence per se theory under NRS section

21 432B.260 and Olivia G.’s, Christine F.’s, and Mason I.’s claims invoking a negligence per se

22 theory under NRS section 424.038. Plaintiffs may amend their negligence claim to plead

23 negligence per se theories based upon violations of state statutes, but not based upon violations

24 of federal law or state administrative regulations.

25

IT IS SO ORDERED.

Page 28 of 29

1 Dated tthhiiss2217stthdadyaoyfoDf eFceembrbuearr,y2,021021. 3.

2

_____________________________________

3

ROBERT C. JONES

United States District Judge

4

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25 Page 29 of 29

 </s> Case 2:10-cv-00528-RCJ-PAL Document 266 Filed 11/21/13 Page 1 of 8

H
' N

ALAN J. LEFEBVRE, ESQ.

Nevada Bar No. 000848

2 JONATHAN D. BLUM, ESQ.

Nevada Bar No. 009515

3 KOLESAR & LEATHAM

400 South Rampart Boulevard, Suite 400

4 Las Vegas, Nevada 89145

Telephone: (702) 362-7800

5 Facsimile: (702) 362-9472

E-Mail: alefebvre@klnevada.com

6

iblum(klnevada.com

7 Attorneys for Defendants DEBBIE MALL WITZ and YVETTE
CHEVALIER

9

10

11

12

UNITED STATES DISTRICT COURT

13

DISTRICT OF NEVADA

14

***

15 HENRY A., by his next friend M.J.; CHARLES and CHARLOTTE B., by their next friend R.D.;
16 LEO C.; VICTOR C.; MAIZY and JONATHAN D. by their next friend S.W.;
17 LINDA E.; CHRISTINE F., and OLIVIA G. by their next friend E.F., and MASON I., by his
18 next friend M.J., individually and on behalf of others so situated,
19 Plaintiffs,
20 vs.
21 MICHAEL WILLDEN, Director of the Nevada
22 Department of Health and Human Services; AMBER HOWELL, Administrator of Nevada
23 Division of Child and Family Services; VIRGINIA VALENTINE, former Clark County
24 Manager; DON BURNETTE, Clark County Manager; CLARK COUNTY; TOM
25 MORTON, former Director of Clark County
Department of Family Services; LISA RUIZ-
26 LEE, Director of Clark County Department of Family Services; SYLVIA CLARK, Senior
27 Family Services Specialist; YVETTE CHEVALIER, Caregiver Services Manager;
28

CASE NO. 2:10-CV-00528-RCJ-PAL
DEBBIE MALL WITZ’S FIRST AMENDED THIRD-PARTY
COMPLAINT AGAINST DEBORAH HILL AND JOSEPH HILL

1538346 (8916-1)

Page 1 of 8

Case 2:10-cv-00528-RCJ-PAL Document 266 Filed 11/21/13 Page 2 of 8

1 FORD, Licensing Investigator; DEBBIE MALL WITZ, Family Services Specialist II;
2 PATRICIA MARTIN, Family Services Specialist; THOR MARTINEZ, Family
3 Services Specialist I; PHILOMENA OSEMWENGIE, Senior Family Services
4 Specialist; STACEY SCOTT, Family Services Specialist I; SONYA WEATHERS, Family
5 Services Specialist II; and DOES XI-XX,

6

Defendants.

7 DEBBIE MALL WITZ, Family Services
Specialist II, 8
Third-Party Plaintiffs, 9

10 DEBORAH HILL, an individual and JOSEPH
11 HILL, an individual,

12

Third-Party Defendants.

E-;oc

13

c

14 DEBBIE MALL WITZ’S FIRST AMENDED THIRD-PARTY COMPLAINT AGAINST

DEBORAH HILL AND JOSEPH HILL

15

16
N

’p

17

18

19

COME NOW, Defendant/Third-Party Plaintiff, DEBBIE MALLWITZ ("Mallwizt") appearing by and through her counsel of record, Alan J. Lefebvre, Esq. and Jonathan D. Blum, Esq. of Kolesar & Leatham, for causes of action against Third-Party Defendants, Deborah Hill and Joseph Hill, hereby amends her Third-Party Complaint (Document No. 255), on file herein

20 and alleges as follows:

21

PARTIES

22

1. DEBBIE MALL WITZ (hereinafter the "Mallwitz" or "Third Party Plaintiff’) was

23 I previously employed with the Clark County Department of Family Services ("DFS")

24

2. DEBORAH HILL (hereinafter "D. Hill") is the former foster parent of Plaintiffs

25 I Charles and Charlotte B.

26

3. Upon information and belief, D. Hill is an individual now residing in the state of

27 I New York but was residing in Las Vegas during the relevant time frame.

28 I

4. JOSEPH HILL (hereinafter "J. Hill") is the son of former foster parent of

1538346 (8916-1)

Page 2 of 8

Case 2:10-cv-00528-RCJ-PAL Document 266 Filed 11/21/13 Page 3 of 8

1 Plaintiffs Charles and Charlotte B.

2

5. Upon information and belief, J. Hill is an individual residing in the state of New

3 York but was residing in Las Vegas during the relevant time frame.

4

JURISDICTION AND VENUE

5

6. This Court has subject matter jurisdiction for this action pursuant to 12 U.S.C. §

6 1331, 12 U.S.C. § 1332, 12 U.S.C. § 1343(a)(3 &(4). Third-Party Plaintiff further invokes

7 supplemental jurisdiction of this Court pursuant to 12 U.S.C. § 1367 to hear and decide claims

8 arising under state law.

9

7. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2), because a

10 substantial part of the events or omissions giving rise the claims in this case occurred in this

11 judicial district is the subject of the action is situated in this district.

= N
12

BACKGROUND FACTS

13

8. Plaintiffs allege that Mallwitz, "placed more children in the home than was

.. 14

permitted and ... [a] s a result of this improper placement, Charles and Charlotte were harmed,

15 I including by suffering abuse resulting in Charlotte’s hospitalization for dehydration." See

ri 16 Cl) Second Amended Complaint, Par. 151(k).

17

9. The home referenced above is that of D. Hill.

18

10. D. Hill was criminally prosecuted and pled guilty to two counts of Child Neglect

19 (a Gross Misdemeanor - NRS 200.508) related to Charles and Charlotte B.

20

11. D. Hill’s son, J. Hill, was also criminally prosecuted for abuse of Charles and

21 I Charlotte B.

22

12. Plaintiffs assert the following claims against Mallwitz: 1) Fourteenth Amendment

23 to the United States Constitution, Substantive Due Process: Duty to Protect (42 U.S.C. § 1983);

24 2) Fourteenth Amendment to the United States Constitution, Substantive Due Process: State

25 Created Danger (42 U.S.C. § 1983); and, 3) Negligence.

26

13. Plaintiffs seek damages against Mallwitz, including punitive and exemplary

27 damages.

28

14. On or about March 20, 2008, Deborah Hill executed an, "Agreement Between

1538346 (8916-1)

Page 3 of 8

Case 2:10-cv-00528-RCJ-PAL Document 266 Filed 11/21/13 Page 4 of 8

1 Clark County Department of Family Services and Foster Parent(s)" (hereinafter, the "Foster

2 Agreement")

3

15. The Foster Agreement states, in part, "The Foster Parent(s) Will: ... 25.

4 Indemnify, defend and hold Clark County harmless from any and all claims, demands, actions,

5 attorney’s fees, costs and expenses based upon any acts, errors, omissions, fault or negligence of

6 the foster family, or its employees, while caring for children in their home. 26. Indemnify,

7 defend and hold harmless Clark County for any attorney’s fees or for costs of defense, even if the

8 allegations of the claims are groundless, false or fraudulent."

9

FIRST CLAIM FOR RELIEF

10

(Equitable Indemnity Against D. Hill and J. Hill)

11

16. As a result of the acts and/or omissions of other parties, including, but not limited

12 to, D. Hill, J. Hill, and/or as yet unknown other parties, claims have been made against Mallwitz

13 in excess of seventy-five thousand dollars ($75,000) relating to injuries allegedly sustained by

14 Charles B. and Charlotte B as the result of acts or omissions by J. Hill while in the custody and

E

15 under the supervision of D. Hill.

16

17. Any and all damages alleged by any party to this action are the result, in whole or

N 1lD
17 in part, of the acts and/or omissions of other parties, entities, or individuals, including, but not

18 limited to, D. Hill, J. Hill, and/or as yet unknown other parties, entities, or individuals.

19

18. To the extent that any liability is assigned to Mallwitz by way of any direct claim,

20 counterclaim, third-party claim, or crosselaim, such liability was strictly secondary and passive

21 to the primary and active liability of other parties, entities, or individuals, including, but not

22 limited to, D. Hill, J. Hill, and/or as yet unknown other parties, entities, or individuals.

23

19. To the extent that any liability is assigned to Mallwitz by way of any direct claim,

24 counterclaim, third-party claim, or crossclaim, Mallwitz is entitled to equitable indemnity from

25 such other defending parties, including, but not limited to, D. Hill, J. Hill, and/or as yet unknown

26 other parties, entities, or individuals.

27

20. It has been necessary for Mallwitz to retain an attorney to defend against the

28 1 various claims made against it and, as such, Mallwitz is entitled to the recovery of her reasonable

1538346 (8916-1)

Page 4 of 8

Case 2:10-cv-00528-RCJ-PAL Document 266 Filed 11/21/13 Page 5 of 8

H;
ov
CID
' N

1 attorney’s fees and costs incurred in this action.

2

SECOND CLAIM FOR RELIEF

3

(Contribution Against D. Hill and J. Hill)

4

21. As a result of the acts and/or omissions of other parties, including, but not limited

5 to, D. Hill, J. Hill, and/or as yet unknown other parties, claims have been made against Mallwitz

6 in excess of seventy-five thousand dollars ($75,000) relating to injuries allegedly sustained by

7 Charles B. and Charlotte B as the result of acts or omissions by J. Hill while in the custody and

8 under the supervision of D. Hill.

9

22. Any and all damages alleged by any party to this action are the result, in whole or

10 in part, of the acts and/or omissions of other parties, entities, or individuals, including, but not

11 limited to, D. Hill, J. Hill, and/or as yet unknown other parties, entities, or individuals.

12

23. To the extent that any liability is assigned to Mallwitz by way of any direct claim,

13 counterclaim, third-party claim, or crossclaim, Mallwitz is entitled to contribution from these

14 other defending parties in this action, including, but not limited to, D. Hill, J. Hill and/or as yet

15 unknown other parties, as set forth in NRS 17.225, et seq.

16

24. It has been necessary for Mallwitz to retain an attorney to defend against the

17 various claims made against her and, as such, Mallwitz is entitled to the recovery of its

18 I reasonable attorney’s fees and costs incurred in this action.

19

THIRD CLAIM FOR RELIEF

20

(Express Indemnity Against D. Hill and J. Hill)

21

25. As a result of the acts and/or omissions of other parties, including, but not limited

22 I to, D. Hill, J. Hill, claims have been made against Mallwitz in excess of seventy-five thousand

23 I dollars ($75,000) relating to injuries allegedly sustained by Charles B. and Charlotte B as the

24 I result of acts or omissions by J. Hill while in the custody and under the supervision of D. Hill.

25

26. Any and all damages alleged by any party to this action are the result, in whole or

26 in part, of the acts and/or omissions of D. Hill and J. Hill.

27

27. To the extent that any liability is assigned to Mallwitz by way of any direct claim,

28 counterclaim, third-party claim, or crossclaim, such liability was strictly secondary and passive

1538346 (8916-1)

Page 5 of 8

Case 2:10-cv-00528-RCJ-PAL Document 266 Filed 11/21/13 Page 6 of 8

1 to the primary and active liability of D. Hill and J. Hill.

2

28. To the extent that any liability is assigned to Mallwitz by way of any direct claim,

3 counterclaim, third-party claim, or crossclaim, Mallwitz is entitled to express indemnity from D.

4 Hill and J. Hill pursuant to the Foster Agreement.

5

29. It has been necessary for Mallwitz to retain an attorney to defend against the

6 various claims made against it and, as such, Mallwitz is entitled to the recovery of her reasonable

7 attorney’s fees and costs incurred in this action.

8

PRAYER FOR RELIEF

9

WHEREFORE, Mallwitz demands judgment as follows:

10

1. For contribution pursuant to NRS 17.225;

11

2. For indemnity for all damages that any claimant may recover against Mallwitz by

12 way of judgment, order, settlement, or verdict;

13
oo
14

3. For attorneys’ fees and costs of suit; and 4. For such other relief as the Court deems reasonable and proper, and the evidence

15 shows.
el

16

DATED this --’ day of November, 2013.

17

KOLEAR & LJEA, rHAM

18

19

BY \/

ALAN J. LEFEBVRE, ESQ.

20

Nevada Bar No. 000848

JONATHAN D. BLUM, ESQ.

21

Nevada Bar No. 009515

400 South Rampart Boulevard, Suite 400

22

Las Vegas, Nevada 89145

Telephone: (702) 362-7800

23

Facsimile: (702) 362-9472

E-Mail: alefebvre@klnevada.com

24

jblum@klnevada.com

25

Attorneys for Defendants

DEBBIE MALL WITZ and YVETTE

26

CHEVALIER

27

28

1538346 (8916-1)

Page 6 of 8

Case 2:10-cv-00528-RCJ-PAL Document 266 Filed 11/21/13 Page 7 of 8

I

CERTIFICATE OF SERVICE

I hereby certify that I am an employee of Kolesar & Leatham and that on theL day

3 of November, 2013, I caused to be served a true and correct copy of foregoing DEBBIE

4 MALL WITZ’S FIRST AMENDED THIRD-PARTY COMPLAINT AGAINST

5 DEBORAH HILL AND JOSEPH HILL in the following manner:

6

(ELECTRONIC SERVICE) Pursuant to Rule 5(D) of the Nevada Rules of Civil

7 Procedure, the above-referenced document was electronically filed on the date hereof and served

8 through the Notice of Electronic Filing automatically generated by that Court’s facilities.

9 Catherine Cortez Masto, Esq. ATTORNEY GENERAL
10 Linda C. Anderson, Esq.

11

CHIEF DEPUTY ATTORNEY GENERAL 555 E. Washington Ave., Ste., 3900

12 Las Vegas, NV 89101 Email: landerson(ag.nv.gov

E-

13

Attorneys for State Defendants 14

-

15 Jack Londen, Esq.

16 Kimberly N. Van Voorhis, Esq.

Cr

Mark W. Danis, Esq.

17 Aurora V. Kaiser, Esq.

Dina X. Ortiz, Esq. 18 Sarah N. Davis, Esq.

19

MORRISON & FOERSTER, LLP 425 Market St., Ste. 3200

20 San Francisco, California, 94105-2482 Email: Ilonden(,mofo.com

21

akaiser@mofo.com

dortiz@mofo.com

22

mdanis@mofo.com

23

sarandavis@mofo.com kvanvoorhis@mofo.com

24

mekas@mofo.com

J. Bruce Alverson, Esq. Kane N. Wilson, Esq. ALVERSON TAYLOR MORTENSEN & SANDERS 7401 W. Charleston Blvd. Las Vegas, Nevada 89117 Email: kwilson(alversontavlor.com
balverson@alversontaylor.com
Co-Attorneys for Plaintiffs
William Grimm, Esq. Leecia Welch, Esq. Erin Liotta, Esq. NATIONAL CENTER FOR YOUTH LAW 405 - 14th Street, 15th Floor Oakland, California 94612 Email: bi1lgrimm(youthlaw.org
lwe1ch(youthlaw.org eliotta(youth1aw.org
Co-Attorneys for Plaintiffs

25 Co-Attorneys for Plaintiffs

26 Margaret Foley, Esq. 27 LEWIS BRIsB0Is BISGAARD & SMITH LLP
6385 S. Rainbow Blvd., Suite 600 28 Las Vegas, Nevada 89118

1538346 (8916-1)

Page 7 of 8

Case 2:10-cv-00528-RCJ-PAL Document 266 Filed 11/21/13 Page 8 of 8

1 Email: margaret.foley(iewisbrisbois.com

tara.shiroff@lewisbrisbois.com

2

miche11e.adams@lewisbrisbois.com

3

peggy.kuril1a(lewisbrisbois.com

4 Attorneys for Clark County Defendants

5

6

*MPIOyee of KOLESAR & LEATHAM

7

8

9

10

11

12 Alcq
rJ)
13

14

go 15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 1538346(8916-1)

Page 8 of 8

 </s> 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8 HENRY A. et al.,
9 Plaintiffs,
10 vs.
11 MICHAEL WILLDEN et al.,
12 Defendants.
13

)

)

)

)

2:10-cv-00528-RCJ-PAL

)

)

)

ORDER

)

)

)

14

This case arises out of the alleged failure of Nevada and Clark County officials to

15 adequately protect foster children. Pending before the Court are Defendants Tom Morton’s,

16 Virginia Valentine’s, Lisa Ruiz-Lee’s, and Don Burnette’s (collectively, “County Defendants”)

17 Motion to Dismiss or for a More Definite Statement (ECF No. 185), to which Defendants

18 Michael Willden and Amber Howell have filed a Joinder (ECF No. 194). For the reasons given

19 herein, the Court will order Plaintiffs to make a more definite statement.

20 I. FACTS AND PROCEDURAL HISTORY

21

Plaintiffs are eleven children who claim to have been harmed due to the failure of state

22 and county child welfare authorities to adhere to certain mandatory laws and regulations and to

23 ensure their safety as a general matter. Their injuries include abuse and neglect by foster parents

24 and institutional guardians, as well as a lack of medical care due to authorities’ refusal to

25 authorize or monitor it.

1

Plaintiff Henry A. is a fourteen-year-old boy who was placed into foster care by the Clark

2 County Department of Family Services (“CCDFS”) and the Nevada Division of Children and

3 Family Services (“NDCFS”) from 2005 until February 2013, when he was returned to his

4 mother’s care. (Second Am. Compl. ¶ 20, July 12, 2013, ECF No. 176). He suffers from severe

5 mental health problems but his treatment has been sporadic because of his placement with over

6 forty foster families and six or seven caseworkers during his first seven years under CCDFS. (See

7 id.). He has changed mental health providers over ten times. (Id.). He has been prescribed

8 multiple psychotropic drugs and once overdosed because of a combination of these drugs,

9 spending several weeks in the intensive care unit. (Id.).

10

Plaintiffs Charles B. and Charlotte B. are siblings, ages twelve and four, respectively. (Id.

11 ¶ 21). They were placed into seventeen different placements for foster care by CCDFS from

12 March 2009 to the Fall of 2010, when they were returned to their mother’s care. (Id.). CCDFS

13 placed Charles and Charlotte with foster parents in March 2009 despite a court order requiring

14 placement with their grandmother. (Id.). One foster mother and her teenage son abused them,

15 including locking Charlotte in a closet with no food, water, or sanitation for long periods of time

16 and beating Charles when he tried to help his sister. (Id.). The police eventually removed them

17 and took them to the hospital for treatment. (Id.). Charlotte was suffering from dehydration, cuts,

18 bruises, and severe (bleeding) diaper rash. (Id.). The foster mother has been charged with child

19 abuse, and her son has pled guilty to assault. (Id.).

20

Plaintiff Linda E. is a twenty-year-old woman who was placed into more than forty

21 different placements for foster care by CCDFS and NDCFS for over fifteen years. (Id. ¶ 22). She

22 suffered abuse and neglect in many of these placements, including being placed into the home of

23 an aunt where she had previously suffered unspecified abuse. (Id.). Linda reported the abuse to

24 her caseworker. (Id.). She did not receive proper medical and psychiatric care. (Id.).

25

Plaintiffs Leo and Victor C. are twenty-year-old twins who were placed into foster care by

Page 2 of 13

1 CCDFS in November 2006. (Id. ¶ 23). Leo left the system when he became an adult in

2 December 2010. (Id.). Victor, however, chose to remain in the system after age eighteen and

3 now receives benefits under Assembly Bill 350. (Id.). Defendants refused to place Leo and

4 Victor in the care of their grandmother, who was ready, willing, and able to provide a safe and

5 appropriate environment for them, instead moving them between their father and their mother

6 and her boyfriend, where they suffered unspecified abuse. (Id.). Eventually, either their mother

7 or father abandoned them at Child Haven. (See id.). Defendants failed to provide psychiatric care

8 despite Victor’s suicidal threats. (Id.). Plaintiffs do not allege any untreated psychiatric

9 conditions of Leo.

10

Plaintiffs Maizy and Jonathan D. are siblings. (Id. ¶ 24). Maizy and Jonathan are ages

11 eight and seven, respectively, and were placed into foster care by CCDFS from late 2005 to

12 August 2009. (Id.). As infants, Defendants placed them with Child Haven, where they did not

13 receive basic nutrition and medical care. (Id.). They were kept on a “formula diet” despite

14 outgrowing it. (Id.). Maizy and Jonathan were left in their cribs with limited interaction with

15 other children and adults, resulting in a diagnosis (presumably by a doctor, though not explicitly

16 so alleged) with “failure to thrive,” based upon being underweight due to environmental factors.

17 (See id.). S.W. has adopted both children. (Id.). Defendants have failed to provide authorization

18 for at least three medical procedures for the children despite S.W.’s efforts. (Id. ¶ 25). The

19 related conditions became so severe that doctors proceeded with the procedures on an emergency

20 basis. (Id.). As a result, Jonathan has a misshapen colon that must be surgically corrected due to

21 Defendants’ failure to authorize removal of calcified stool from his colon. (Id.).

22

Plaintiff Olivia G. is a twelve-year-old girl who was placed into foster care by CCDFS

23 from January 2006 to 2011. (Id. ¶ 26). Defendants failed to remove her from the custody of her

24 parents despite reports that she was being abused. (Id.). She was initially placed with various

25 relatives without any effort to determine if they were able to provide appropriate care. (Id.). She Page 3 of 13

1 was abused in some of those homes, including being beaten with a belt. (Id.). She has severely

2 impaired neuropsychological functioning and several cognitive and behavioral impairments as a

3 result. (Id.). She was also prescribed multiple psychotropic drugs without adequate care and

4 monitoring, including being placed with E.F. without providing E.F. the information and

5 authorizations required to obtain Olivia’s prescriptions. (Id.).

6

Plaintiff Christine F. is a six-year-old girl who was placed into foster care by CCDFS

7 from May 2008 to June 2010, when E.F. adopted her. (Id. ¶ 27). Christine is severely

8 developmentally delayed and suffers form permanent disabilities and a seizure disorder due to

9 having fallen from a second-story window at the home of her mother, grandmother, and two

10 uncles. (See id.). Despite marks around her ankles indicating she had been dangled from the

11 window or been swung into a wall, CCDFS did not investigate and take custody of Christine

12 until her parents refused to authorize medical treatment necessary to treat her injuries. (Id.).

13 Defendants later failed to provide E.F. with Christine’s seizure medications and offered no

14 medical support or training on how to care for her special needs. (Id.). Defendants have also

15 permitted her grandmother to visit her despite knowing of past allegations of abuse against her 16 and that she was watching over Christine when she fell from the window. (Id.).1

17

Plaintiff Mason I. is a fifteen-year-old boy who has been placed into foster care by

18 CCDFS since July 2003. (Id. ¶ 28). Mason has been deaf since birth and entered foster care at

19 age six after suffering physical, sexual, and emotional abuse by his parents and grandparents.

20 (Id.). He suffers from post-traumatic stress disorder, reactive attachment disorder, and other

21 serious mental health problems. (Id.). During his first six years in foster care, he was placed into

22 twenty-five different homes, including a treatment center in Florida, the National Deaf Academy

23 (“NDA”). (Id.). The NDA staff rendered Mason’s cochlear implant permanently inoperative

24
1Plaintiff does not allege actual abuse by this person against Christine herself or any other 25 person, but notes only that CCDFS was aware of prior allegations of abuse.
Page 4 of 13

1 against his wishes. (Id.). Defendants ignored Mason’s complaints of sexual abuse by NDA staff.

2 (Id.). Defendants have failed to place Mason into homes where his special needs will be met,

3 i.e., with a qualified American Sign Language interpreter and have failed to provide speech

4 therapy. (Id.). Defendants have failed to disclose Mason’s medical, mental, social, and

5 educational backgrounds to his foster parents and have failed to properly supervise the

6 administration of Mason’s psychotropic drugs. (Id.).

7

The current State Defendants are Michael Willden, Director of the Nevada Department of

8 Health and Human Services (“NDHHS”), sued in his official capacity, (id. ¶ 30); and Amber

9 Howell, the Administrator of NDCFS, sued in her official capacity, (id. ¶ 31). The current

10 County Defendants are Clark County, Nevada, (id. ¶ 33); Virginia Valentine, the Clark County

11 Manager from August 2006 to January 2011, sued in her individual capacity, (id. ¶ 34); Don

12 Burnette, the current Clark County Manager, sued in his official capacity, (id. ¶ 35); Tom

13 Morton, the Director of CCDFS from July 2006 to August 2011, sued in his individual capacity,

14 (id. ¶ 36); and Lisa Ruiz-Lee, the current Director of CCDFS, sued in her official capacity, (id. 15 ¶ 37). The current “Doe Defendants”2 are ten current or former caseworkers, licensing

16 investigators, and other employees of CCDFS: Stacey Scott, Thor Martinez, Debbie Mallwitz,

17 Sonya Weathers, Darrel Ford, Yvette Chevalier, Teresa Cragon, Philomena Osemwengie, Sylvia

18 Clark, and Patricia Martin. (Id. ¶¶ 38–54).

19

Plaintiffs filed the seventy-five-page Complaint in this Court on April 13, 2010, listing

20 the following twelve nominal claims: (1)–(2), (11) substantive due process violations pursuant to

21 42 U.S.C. § 1983; (3), (8) violations of the Adoption Assistance and Child Welfare Act

22 (“AACWA”) pursuant to § 1983; (4), (12) substantive due process violations under the Nevada

23

24

2It is not clear why these Defendants are listed as “Doe Defendants.” Their identities are

clearly alleged. Plaintiffs also allege the existence of additional “Doe Defendants,” (see id. ¶ 56), 25 but that pleading practice has no effect in federal court.

Page 5 of 13

1 Constitution; (5) negligence; (6) declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201,

2 2202 that Nevada Revised Statute (“NRS”) section 424.090 violates the Supremacy Clause; (7)

3 declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202 that NRS section 432.0177

4 violates the Supremacy Clause; and (9)–(10) violations of the Child Abuse Prevention and

5 Treatment Act (“CAPTA”) pursuant to § 1983. The case was assigned to the Hon. Howard D.

6 McKibben but was reassigned to this Court after Judge McKibben recused himself.

7

Defendants moved to dismiss. Plaintiffs voluntarily dismissed the sixth and seventh

8 nominal claims (the Supremacy Clause claims). In a thirty-one-page order, the Court granted the

9 motions to dismiss. (See Order, Oct. 26, 2010, ECF No. 85). The Court ruled: (1) Defendants in

10 their official capacities were not entitled to Eleventh Amendment protection from claims for

11 prospective injunctive relief; (2) Defendants were not entitled to absolute immunity; (3)

12 Defendants were entitled to qualified immunity from the “duty to protect” substantive due

13 process claim; (4) Defendants were entitled to qualified immunity from the “state created

14 danger” substantive due process claim, and that claim was also dismissed for failure to state a

15 claim; (5) sections 671(a)(10), (16) and 675(1), (5)(A)(ii), (5)(D) of the AACWA created no

16 private right of action, and Defendants would be entitled to qualified immunity against these

17 claims in any case; (6) Defendants were entitled to qualified immunity from the “guardian ad

18 litem” CAPTA claim, and the Court would abstain from ruling on that claim under Younger v.

19 Harris, 401 U.S. 37 (1971) due to pending state proceedings; (7) there was no private right of

20 action for a “plan submission” claim under CAPTA; and (8) the Court would decline to rule on

21 the negligence claim under 28 U.S.C. § 1367(c).

22

Plaintiffs appealed. In a thirty-four-page opinion, the Court of Appeals affirmed in part,

23 reversed in part, and remanded. The Court affirmed the dismissal of all claims except the first,

24 second, third, eighth, and eleventh, which claims it remanded for further proceedings, and ruled

25 that Plaintiffs should be permitted to amend the substantive due process claims after remand and Page 6 of 13

1 should be able to seek leave to amend the tenth claim. The Court of Appeals ruled that qualified

2 immunity applied only to Defendants in their individual capacities and only as to monetary

3 damages. It reversed the qualified immunity rulings as to injunctive relief and as to monetary

4 damages against Clark County as to the first and eleventh causes of action and remanded for

5 further analysis of qualified immunity as to the claims for monetary damages against Defendants

6 in their individual capacities. As to the second cause of action, the Court of Appeals ruled that

7 the “state created danger” doctrine applied not only when the state actually created the danger,

8 but also when the state knowingly exposed a person to an existing danger from a third person.

9 The Court of Appeals therefore reversed dismissal of the second claim and this Court’s grant of

10 qualified immunity. The Court of Appeals ruled that Plaintiffs had not sufficiently pled

11 supervisory responsibility claims against State Defendants but should be given leave to amend

12 the substantive due process claims to do so. The Court of Appeals ruled that the “case plan”

13 provisions of AACWA under 42 U.S.C. §§ 671(a)(16) and 675(1) and the “records provision”

14 provisions of AACWA under §§ 671(a)(16), 675(1), and 675(5)(d) were privately enforceable.

15 The Court of Appeals affirmed that the “guardian ad litem” and “early intervention” provisions

16 of CAPTA, as well as the Individuals with Disabilities Education Act provision Plaintiffs

17 invoked, were not privately enforceable.

18

Plaintiffs filed the Amended Complaint (“AC”), listing six nominal claims: (1)–(2)

19 substantive due process violations pursuant to § 1983; (3), (6) AACWA violations pursuant to

20 § 1983; (4) substantive due process violations under the Nevada Constitution; and (5) negligence.

21 State Defendants and County Defendants separately moved to dismiss the AC. The Court

22 granted the motions in part and denied them in part:

23

(1) The substantive due process claims, both federal and state, are dismissed

as against Defendants Willden and Comeaux insofar as they seek damages against

24

them in their individual capacities. Under the law of the case, however, no

Defendants have qualified immunity at the dismissal stage. The claims for injunctive

25

relief are moot except as to failure to provide health information to foster parents

Page 7 of 13

1

(Henry A.), failure to investigate reports of abuse (Mason I.), and failure to inspect

out-of-state facilities (Mason I.).

2

(2) The Eleventh Amendment protects State Defendants in their official

3

capacities from money damages as to any claim.

4

(3) The AACWA “records provision” claim is dismissed as to money

damages against Willden and Comeaux in their individual capacities, and the claim

5

for injunctive relief is moot, except as to Plaintiffs Henry A. and Mason I. The

AACWA “case plan” claim is dismissed as to all Defendants, with leave to amend.

6

(4) The negligence claim is dismissed under the discretionary immunity

7

statute, except as to Christine F.’s and Mason I.’s claims invoking a negligence per

se theory under NRS section 432B.260 and Olivia G.’s, Christine F.’s, and Mason

8

I.’s claims invoking a negligence per se theory under NRS section 424.038. Plaintiffs

may amend their negligence claim to plead negligence per se theories based upon

9

violations of state statutes, but not based upon violations of federal law or state

administrative regulations.

10

(Order 28:7–24, Feb. 27, 2013, ECF No. 141).

11

Plaintiffs moved for leave to file the Second Amended Complaint (“SAC”), which

12

motion the Court granted in part. County Defendants asked the Court to reconsider its previous

13

order in part. The Court granted that motion in part, granting qualified immunity to individual

14

Defendants as to monetary damages under the AACWA, but not as to the substantive due process

15

claims. The Court dismissed the “no-case-plan” claim as against County Defendants, with leave

16

to amend. The Court also clarified that:

17

The negligence claim remains viable against County Defendants insofar as it is

18

predicated upon a negligence per se theory for violations of NRS sections 432B.260

(Christine F. and Mason I.) and 424.038 (Olivia G., Christine F., and Mason I.), and

19

Plaintiffs have leave to amend as to NRS sections 432.0177 and 127.330, and as to

other Plaintiffs’ claims.

20

Plaintiffs have filed the SAC. The 101-page SAC lists five causes of action: (1)

21

Substantive Due Process (Duty to Protect) violations pursuant to 42 U.S.C. § 1983 (against all

22

Defendants except Ford, Chevalier, and Osemwengie); (2) Substantive Due Process (State

23

Created Danger) violations pursuant to § 1983 (against all Defendants except Osemwengie); (3)

24

AACWA violations (health care records) pursuant to § 1983 (against Clark County, Willden,

25

Page 8 of 13

1 Howell, Burnette, and Ruiz-Lee); (4) Negligence (against Clark County, Morton, Valentine,

2 Clark, Chevalier, Ford, Mallwitz, Martin, Martinez, Osemwengie, Scott, and Weathers); and (5)

3 AACWA violations (written case plan) pursuant to § 1983 (against Clark County, Willden,

4 Howell, Burnette, and Ruiz-Lee). County Defendants have moved to dismiss or for a more

5 definite statement, and State Defendants have joined the motion. Doe Defendants have not

6 joined the motion.

7 II. LEGAL STANDARDS

8

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

9 claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of

10 what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

11 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

12 that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule

13 12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720

14 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for

15 failure to state a claim, dismissal is appropriate only when the complaint does not give the

16 defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell

17 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is

18 sufficient to state a claim, the court will take all material allegations as true and construe them in

19 the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th

20 Cir. 1986). The court, however, is not required to accept as true allegations that are merely

21 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

22 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

23 with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own

24 case making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677–79

25 (2009) (citing Twombly, 550 U.S. at 556) (“A claim has facial plausibility when the plaintiff Page 9 of 13

1 pleads factual content that allows the court to draw the reasonable inference that the defendant is

2 liable for the misconduct alleged.”). In other words, under the modern interpretation of Rule

3 8(a), a plaintiff must not only specify a cognizable legal theory (Conley review), but also must

4 plead the facts of his own case so that the court can determine whether the plaintiff has any

5 plausible basis for relief under the legal theory he has specified, assuming the facts are as he

6 alleges (Twombly-Iqbal review).

7

“Generally, a district court may not consider any material beyond the pleadings in ruling

8 on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

9 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

10 & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

11 whose contents are alleged in a complaint and whose authenticity no party questions, but which

12 are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)

13 motion to dismiss” without converting the motion to dismiss into a motion for summary

14 judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule

15 of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay

16 Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court

17 considers materials outside of the pleadings, the motion to dismiss is converted into a motion for

18 summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.

19 2001).

20

A party may move for a more definite statement of a pleading to which a

responsive pleading is allowed but which is so vague or ambiguous that the party

21

cannot reasonably prepare a response. The motion must be made before filing a

responsive pleading and must point out the defects complained of and the details

22

desired. If the court orders a more definite statement and the order is not obeyed

within 14 days after notice of the order or within the time the court sets, the court

23

may strike the pleading or issue any other appropriate order.

24 Fed. R. Civ. P. 12(e).

25 ///

Page 10 of 13

1 III. ANALYSIS

2

Movants ask the Court to dismiss the fifth cause of action of the SAC, which corresponds

3 to the sixth cause of action of the former AC, for failure to state a claim. Movants note that the

4 Court previously ruled that class representatives under the AC, Henry A. and Mason I., would

5 have no standing to seek injunctive relief for not receiving an initial case plan within sixty days

6 of removal under the AACWA if they had eventually received a timely case plan, because such

7 retroactive injunctive relief was impossible, but that they would have standing to assert a claim

8 that sixty days had passed since they were removed from the home and they still had received no

9 case plan, because injunctive relief could provide a remedy for the continuing harm of having no

10 case plan. The Court dismissed because neither Henry A. nor Mason I. alleged in the AC having

11 not received a case plan within sixty days of removal from their homes.

12

Movants note that only Mason I. is listed as a class representative for the AACWA case

13 plan claim in the TAC. (See Third Am. Compl. ¶ 171). Plaintiffs are correct that they have

14 alleged that Mason I. has not received a plan that complied with AACWA’s requirements. (See

15 id. ¶ 189 (“The Case Plan Representative entered care in July 16, 2003. He has not received a

16 case plan that complied with federal law during his years in foster care.”)). But this is, as

17 Movants note in reply, conclusory. There are relevant five requirements for case plans under the

18 AACWA:

19

(1) Be a written document, which is a discrete part of the case record, in a format

determined by the title IV–E agency, which is developed jointly with the parent(s) or

20

guardian of the child in foster care; and

21

(2) Be developed within a reasonable period, to be established by the title IV–E

agency, but in no event later than 60 days from the child’s removal from the home

22

pursuant to paragraph (k) of this section;

23

(3) Include a discussion of how the case plan is designed to achieve a safe placement

for the child in the least restrictive (most family-like) setting available and in close

24

proximity to the home of the parent(s) when the case plan goal is reunification and

a discussion of how the placement is consistent with the best interests and special

25

Page 11 of 13

1

needs of the child. (FFP is not available when a court orders a placement with a

specific foster care provider);

2

(4) Include a description of the services offered and provided to prevent removal of

3

the child from the home and to reunify the family; and

4

(5) Document the steps to finalize a placement when the case plan goal is or becomes

adoption or placement in another permanent home in accordance with sections

5

475(1)(E) and (5)(E) of the Act. When the case plan goal is adoption, at a minimum,

such documentation shall include child-specific recruitment efforts such as the use

6

of State, Tribal, regional, and national adoption exchanges including electronic

exchange systems.

7

45 C.F.R. § 1356.21(g). The allegation that Mason I. has not received a case plan that complies

8

with federal law is sufficient to state a claim, but it is indeed vague and envisions multiple

9

possible scenarios, some of which may not support standing to seek injunctive relief. Perhaps

10

Mason I. never received any case plan. Such an allegation would state a claim under all

11

subsections and would support standing. Perhaps he received an oral case plan that complies

12

with all subsections except subsection (g)(1), because it is not written. Such an allegation would

13

state a claim under subsection (g)(1) and would probably support standing. Perhaps he received

14

a written case plan that complies with all subsections except subsection (g)(2), because it was not

15

received within sixty days of removal from the home. Such an allegation would state a claim

16

under subsection (g)(2) but would not support standing to seek injunctive relief. The Court will

17

therefore order Plaintiffs to file a more definite statement as to this issue so that Defendants may

18

reasonably respond to the fifth cause of action.

19

///

20

///

21

///

22

///

23

///

24

///

25

Page 12 of 13

1

CONCLUSION

2

IT IS HEREBY ORDERED that the Motion to Dismiss or for a More Definite Statement

3 (ECF No. 185) is GRANTED IN PART and DENIED IN PART. The Court will not dismiss, but

4 Plaintiffs shall FILE a more definite statement as to the nature of Mason I.’s case plan

5 deficiencies under 45 C.F.R. § 1356.21(g) within fourteen (14) days of the entry of this Order

6 into the electronic docket. Plaintiffs may make the filing via amendment or separate affidavit. If

7 Plaintiffs choose amendment, they shall not amend in additional ways.

8

IT IS SO ORDERED.

9 DDaatteeddtthhiiss2170tthh ddaayy ooff NJaonvueamryb,e2r0, 1240.13.

10

_____________________________________

ROBERT C. JONES

11

United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

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25 Page 13 of 13

 </s> 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8 HENRY A. et al.,
9 Plaintiffs,
10 vs.
11 MICHAEL WILLDEN et al.,
12 Defendants.
13

)

)

)

)

2:10-cv-00528-RCJ-PAL

)

)

)

ORDER

)

)

)

14

This case arises out of the alleged failure of Nevada and Clark County officials to

15 adequately protect foster children. Pending before the Court are County Defendants’ Motion to

16 Disqualify Counsel (ECF No. 313), Defendant Philomena Osemwengie’s Motion for Summary

17 Judgment (ECF No. 288), and Third-Party Defendant National Deaf Academy, LLC’s (“NDA”)

18 Motion to Dismiss or Stay and to Transfer Venue (ECF No. 280). For the reasons given herein,

19 the Court grants the motion to dismiss for lack of personal jurisdiction and will hear argument on

20 the motions for summary judgment and to disqualify counsel at the hearing currently scheduled

21 for May 15, 2014.

22 I. FACTS AND PROCEDURAL HISTORY

23

Plaintiffs are eleven children who claim to have been harmed due to the failure of state

24 and county child welfare authorities to adhere to certain mandatory laws and regulations and to

25 ensure their safety as a general matter. Their injuries include abuse and neglect by foster parents

1 and institutional guardians, as well as a lack of medical care due to authorities’ refusal to

2 authorize or monitor it.

3

Plaintiff Henry A. is a fourteen-year-old boy who was placed into foster care by the Clark

4 County Department of Family Services (“CCDFS”) and the Nevada Division of Children and

5 Family Services (“NDCFS”) from 2005 until February 2013, when he was returned to his

6 mother’s care. (Second Am. Compl. ¶ 20, July 12, 2013, ECF No. 176). He suffers from severe

7 mental health problems but his treatment has been sporadic because of his placement with over

8 forty foster families and six or seven caseworkers during his first seven years under CCDFS. (See

9 id.). He has changed mental health providers over ten times. (Id.). He has been prescribed

10 multiple psychotropic drugs and once overdosed because of a combination of these drugs,

11 spending several weeks in the intensive care unit. (Id.).

12

Plaintiffs Charles B. and Charlotte B. are siblings, ages twelve and four, respectively. (Id.

13 ¶ 21). They were placed into seventeen different placements for foster care by CCDFS from

14 March 2009 to the Fall of 2010, when they were returned to their mother’s care. (Id.). CCDFS

15 placed Charles and Charlotte with foster parents in March 2009 despite a court order requiring

16 placement with their grandmother. (Id.). One foster mother and her teenage son abused them,

17 including locking Charlotte in a closet with no food, water, or sanitation for long periods of time

18 and beating Charles when he tried to help his sister. (Id.). The police eventually removed them

19 and took them to the hospital for treatment. (Id.). Charlotte was suffering from dehydration, cuts,

20 bruises, and severe (bleeding) diaper rash. (Id.). The foster mother has been charged with child

21 abuse, and her son has pled guilty to assault. (Id.).

22

Plaintiff Linda E. is a twenty-year-old woman who was placed into more than forty

23 different placements for foster care by CCDFS and NDCFS for over fifteen years. (Id. ¶ 22). She

24 suffered abuse and neglect in many of these placements, including being placed into the home of

25 an aunt where she had previously suffered unspecified abuse. (Id.). Linda reported the abuse to Page 2 of 26

1 her caseworker. (Id.). She did not receive proper medical and psychiatric care. (Id.).

2

Plaintiffs Leo and Victor C. are twenty-year-old twins who were placed into foster care by

3 CCDFS in November 2006. (Id. ¶ 23). Leo left the system when he became an adult in

4 December 2010. (Id.). Victor, however, chose to remain in the system after age eighteen and

5 now receives benefits under Assembly Bill 350. (Id.). Defendants refused to place Leo and

6 Victor in the care of their grandmother, who was ready, willing, and able to provide a safe and

7 appropriate environment for them, instead moving them between their father and their mother

8 and her boyfriend, where they suffered unspecified abuse. (Id.). Eventually, either their mother

9 or father abandoned them at Child Haven. (See id.). Defendants failed to provide psychiatric care

10 despite Victor’s suicidal threats. (Id.). Plaintiffs do not allege any untreated psychiatric

11 conditions of Leo.

12

Plaintiffs Maizy and Jonathan D. are siblings. (Id. ¶ 24). Maizy and Jonathan are ages

13 eight and seven, respectively, and were placed into foster care by CCDFS from late 2005 to

14 August 2009. (Id.). As infants, Defendants placed them with Child Haven, where they did not

15 receive basic nutrition and medical care. (Id.). They were kept on a “formula diet” despite

16 outgrowing it. (Id.). Maizy and Jonathan were left in their cribs with limited interaction with

17 other children and adults, resulting in a diagnosis (presumably by a doctor, though not explicitly

18 so alleged) with “failure to thrive,” based upon being underweight due to environmental factors.

19 (See id.). S.W. has adopted both children. (Id.). Defendants have failed to provide authorization

20 for at least three medical procedures for the children despite S.W.’s efforts. (Id. ¶ 25). The

21 related conditions became so severe that doctors proceeded with the procedures on an emergency

22 basis. (Id.). As a result, Jonathan has a misshapen colon that must be surgically corrected due to

23 Defendants’ failure to authorize removal of calcified stool from his colon. (Id.).

24

Plaintiff Olivia G. is a twelve-year-old girl who was placed into foster care by CCDFS

25 from January 2006 to 2011. (Id. ¶ 26). Defendants failed to remove her from the custody of her Page 3 of 26

1 parents despite reports that she was being abused. (Id.). She was initially placed with various

2 relatives without any effort to determine if they were able to provide appropriate care. (Id.). She

3 was abused in some of those homes, including being beaten with a belt. (Id.). She has severely

4 impaired neuropsychological functioning and several cognitive and behavioral impairments as a

5 result. (Id.). She was also prescribed multiple psychotropic drugs without adequate care and

6 monitoring, including being placed with E.F. without providing E.F. the information and

7 authorizations required to obtain Olivia’s prescriptions. (Id.).

8

Plaintiff Christine F. is a six-year-old girl who was placed into foster care by CCDFS

9 from May 2008 to June 2010, when E.F. adopted her. (Id. ¶ 27). Christine is severely

10 developmentally delayed and suffers form permanent disabilities and a seizure disorder due to

11 having fallen from a second-story window at the home of her mother, grandmother, and two

12 uncles. (See id.). Despite marks around her ankles indicating she had been dangled from the

13 window or been swung into a wall, CCDFS did not investigate and take custody of Christine

14 until her parents refused to authorize medical treatment necessary to treat her injuries. (Id.).

15 Defendants later failed to provide E.F. with Christine’s seizure medications and offered no

16 medical support or training on how to care for her special needs. (Id.). Defendants have also

17 permitted her grandmother to visit her despite knowing of past allegations of abuse against her 18 and that she was watching over Christine when she fell from the window. (Id.).1

19

Plaintiff Mason I. is a fifteen-year-old boy who has been placed into foster care by

20 CCDFS since July 2003. (Id. ¶ 28). Mason has been deaf since birth and entered foster care at

21 age six after suffering physical, sexual, and emotional abuse by his parents and grandparents.

22 (Id.). He suffers from post-traumatic stress disorder, reactive attachment disorder, and other

23 serious mental health problems. (Id.). During his first six years in foster care, he was placed into

24
1Plaintiff does not allege actual abuse by this person against Christine herself or any other 25 person, but notes only that CCDFS was aware of prior allegations of abuse.
Page 4 of 26

1 twenty-five different homes, including a treatment center in Florida, the National Deaf Academy

2 (“NDA”). (Id.). The NDA staff rendered Mason’s cochlear implant permanently inoperative

3 against his wishes. (Id.). Defendants ignored Mason’s complaints of sexual abuse by NDA staff.

4 (Id.). Defendants have failed to place Mason into homes where his special needs will be met,

5 i.e., with a qualified American Sign Language interpreter and have failed to provide speech

6 therapy. (Id.). Defendants have failed to disclose Mason’s medical, mental, social, and

7 educational backgrounds to his foster parents and have failed to properly supervise the

8 administration of Mason’s psychotropic drugs. (Id.).

9

The current State Defendants are Michael Willden, Director of the Nevada Department of

10 Health and Human Services (“NDHHS”), sued in his official capacity, (id. ¶ 30); and Amber

11 Howell, the Administrator of NDCFS, sued in her official capacity, (id. ¶ 31). The current

12 County Defendants are Clark County, Nevada, (id. ¶ 33); Virginia Valentine, the Clark County

13 Manager from August 2006 to January 2011, sued in her individual capacity, (id. ¶ 34); Don

14 Burnette, the current Clark County Manager, sued in his official capacity, (id. ¶ 35); Tom

15 Morton, the Director of CCDFS from July 2006 to August 2011, sued in his individual capacity,

16 (id. ¶ 36); and Lisa Ruiz-Lee, the current Director of CCDFS, sued in her official capacity, (id. 17 ¶ 37). The current “Doe Defendants”2 are ten current or former caseworkers, licensing

18 investigators, and other employees of CCDFS: Stacey Scott, Thor Martinez, Debbie Mallwitz,

19 Sonya Weathers, Darrel Ford, Yvette Chevalier, Teresa Cragon, Philomena Osemwengie, Sylvia

20 Clark, and Patricia Martin. (Id. ¶¶ 38–54).

21

Plaintiffs filed the seventy-five-page Complaint in this Court on April 13, 2010, listing

22 the following twelve nominal claims: (1)–(2), (11) substantive due process violations pursuant to

23

24

2It is not clear why these Defendants are listed as “Doe Defendants.” Their identities are

clearly alleged. Plaintiffs also allege the existence of additional “Doe Defendants,” (see id. ¶ 56), 25 but that pleading practice has no effect in federal court.

Page 5 of 26

1 42 U.S.C. § 1983; (3), (8) violations of the Adoption Assistance and Child Welfare Act

2 (“AACWA”) pursuant to § 1983; (4), (12) substantive due process violations under the Nevada

3 Constitution; (5) negligence; (6) declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201,

4 2202 that Nevada Revised Statute (“NRS”) section 424.090 violates the Supremacy Clause; (7)

5 declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202 that NRS section 432.0177

6 violates the Supremacy Clause; and (9)–(10) violations of the Child Abuse Prevention and

7 Treatment Act (“CAPTA”) pursuant to § 1983. The case was assigned to the Hon. Howard D.

8 McKibben but was reassigned to this Court after Judge McKibben recused himself.

9

Defendants moved to dismiss. Plaintiffs voluntarily dismissed the sixth and seventh

10 nominal claims (the Supremacy Clause claims). In a thirty-one-page order, the Court granted the

11 motions to dismiss. (See Order, Oct. 26, 2010, ECF No. 85). The Court ruled: (1) Defendants in

12 their official capacities were not entitled to Eleventh Amendment protection from claims for

13 prospective injunctive relief; (2) Defendants were not entitled to absolute immunity; (3)

14 Defendants were entitled to qualified immunity from the “duty to protect” substantive due

15 process claim; (4) Defendants were entitled to qualified immunity from the “state created

16 danger” substantive due process claim, and that claim was also dismissed for failure to state a

17 claim; (5) sections 671(a)(10), (16) and 675(1), (5)(A)(ii), (5)(D) of the AACWA created no

18 private right of action, and Defendants would be entitled to qualified immunity against these

19 claims in any case; (6) Defendants were entitled to qualified immunity from the “guardian ad

20 litem” CAPTA claim, and the Court would abstain from ruling on that claim under Younger v.

21 Harris, 401 U.S. 37 (1971) due to pending state proceedings; (7) there was no private right of

22 action for a “plan submission” claim under CAPTA; and (8) the Court would decline to rule on

23 the negligence claim under 28 U.S.C. § 1367(c).

24

Plaintiffs appealed. In a thirty-four-page opinion, the Court of Appeals affirmed in part,

25 reversed in part, and remanded. The Court affirmed the dismissal of all claims except the first, Page 6 of 26

1 second, third, eighth, and eleventh, which claims it remanded for further proceedings, and ruled

2 that Plaintiffs should be permitted to amend the substantive due process claims after remand and

3 should be able to seek leave to amend the tenth claim. The Court of Appeals ruled that qualified

4 immunity applied only to Defendants in their individual capacities and only as to monetary

5 damages. It reversed the qualified immunity rulings as to injunctive relief and as to monetary

6 damages against Clark County as to the first and eleventh causes of action and remanded for

7 further analysis of qualified immunity as to the claims for monetary damages against Defendants

8 in their individual capacities. As to the second cause of action, the Court of Appeals ruled that

9 the “state created danger” doctrine applied not only when the state actually created the danger,

10 but also when the state knowingly exposed a person to an existing danger from a third person.

11 The Court of Appeals therefore reversed dismissal of the second claim and this Court’s grant of

12 qualified immunity. The Court of Appeals ruled that Plaintiffs had not sufficiently pled

13 supervisory responsibility claims against State Defendants but should be given leave to amend

14 the substantive due process claims to do so. The Court of Appeals ruled that the “case plan”

15 provisions of AACWA under 42 U.S.C. §§ 671(a)(16) and 675(1) and the “records provision”

16 provisions of AACWA under §§ 671(a)(16), 675(1), and 675(5)(d) were privately enforceable.

17 The Court of Appeals affirmed that the “guardian ad litem” and “early intervention” provisions

18 of CAPTA, as well as the Individuals with Disabilities Education Act provision Plaintiffs

19 invoked, were not privately enforceable.

20

Plaintiffs filed the Amended Complaint (“AC”), listing six nominal claims: (1)–(2)

21 substantive due process violations pursuant to § 1983; (3), (6) AACWA violations pursuant to

22 § 1983; (4) substantive due process violations under the Nevada Constitution; and (5) negligence.

23 State Defendants and County Defendants separately moved to dismiss the AC. The Court

24 granted the motions in part and denied them in part:

25

(1) The substantive due process claims, both federal and state, are dismissed

Page 7 of 26

1

as against Defendants Willden and Comeaux insofar as they seek damages against

them in their individual capacities. Under the law of the case, however, no

2

Defendants have qualified immunity at the dismissal stage. The claims for injunctive

relief are moot except as to failure to provide health information to foster parents

3

(Henry A.), failure to investigate reports of abuse (Mason I.), and failure to inspect

out-of-state facilities (Mason I.).

4

(2) The Eleventh Amendment protects State Defendants in their official

5

capacities from money damages as to any claim.

6

(3) The AACWA “records provision” claim is dismissed as to money

damages against Willden and Comeaux in their individual capacities, and the claim

7

for injunctive relief is moot, except as to Plaintiffs Henry A. and Mason I. The

AACWA “case plan” claim is dismissed as to all Defendants, with leave to amend.

8

(4) The negligence claim is dismissed under the discretionary immunity

9

statute, except as to Christine F.’s and Mason I.’s claims invoking a negligence per

se theory under NRS section 432B.260 and Olivia G.’s, Christine F.’s, and Mason

10

I.’s claims invoking a negligence per se theory under NRS section 424.038. Plaintiffs

may amend their negligence claim to plead negligence per se theories based upon

11

violations of state statutes, but not based upon violations of federal law or state

administrative regulations.

12

(Order 28:7–24, Feb. 27, 2013, ECF No. 141).

13

Plaintiffs moved for leave to file the Second Amended Complaint (“SAC”), which

14

motion the Court granted in part. County Defendants asked the Court to reconsider its previous

15

order in part. The Court granted that motion in part, granting qualified immunity to individual

16

Defendants as to monetary damages under the AACWA, but not as to the substantive due process

17

claims. The Court dismissed the “no-case-plan” claim as against County Defendants, with leave

18

to amend. The Court also clarified that:

19

The negligence claim remains viable against County Defendants insofar as it is

20

predicated upon a negligence per se theory for violations of NRS sections 432B.260

(Christine F. and Mason I.) and 424.038 (Olivia G., Christine F., and Mason I.), and

21

Plaintiffs have leave to amend as to NRS sections 432.0177 and 127.330, and as to

other Plaintiffs’ claims.

22

Plaintiffs filed the SAC. The 101-page SAC lists five causes of action: (1) Substantive

23

Due Process (Duty to Protect) violations pursuant to 42 U.S.C. § 1983 (against all Defendants

24

except Ford, Chevalier, and Osemwengie); (2) Substantive Due Process (State Created Danger)

25

Page 8 of 26

1 violations pursuant to § 1983 (against all Defendants except Osemwengie); (3) AACWA

2 violations (health care records) pursuant to § 1983 (against Clark County, Willden, Howell,

3 Burnette, and Ruiz-Lee); (4) Negligence (against Clark County, Morton, Valentine, Clark,

4 Chevalier, Ford, Mallwitz, Martin, Martinez, Osemwengie, Scott, and Weathers); and (5)

5 AACWA violations (written case plan) pursuant to § 1983 (against Clark County, Willden,

6 Howell, Burnette, and Ruiz-Lee). County Defendants moved to dismiss the fifth cause of action

7 or for a more definite statement, and State Defendants joined the motion. The Court did not

8 dismiss but required Plaintiffs to file a more definite statement via amendment or separate

9 affidavit as to the nature of Mason I.’s case plan deficiencies under 45 C.F.R. § 1356.21(g).

10

In the present round of motions, Osemwengie has moved for defensive summary

11 judgment as against the only claim against her (negligence), NDA has moved to dismiss

12 Defendant Chevalier’s First Amended Third Party Complaint (FA3PC), and County Defendants

13 have moved to disqualify three of Plaintiff’s counsel.

14 II. DISCUSSION

15

A. Motion to Dismiss the First Amended Third-Party Complaint

16

1. Legal Standards

17

a. Personal Jurisdiction

18

A defendant may move to dismiss for lack of personal jurisdiction. See Fed. R. Civ. P.

19 12(b)(2). Personal jurisdiction exists if: (1) provided for by law; and (2) the exercise of

20 jurisdiction comports with due process. See Greenspun v. Del E. Webb Corp., 634 F.2d 1204,

21 1207 (9th Cir. 1980). When no federal statute governs personal jurisdiction, a federal court

22 applies the law of the forum state. See Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir.

23 2008). Where a forum state’s long-arm statute provides for personal jurisdiction to the fullest

24 extent of the Due Process Clause of the Fourteenth Amendment, such as Nevada’s does, see

25 Arbella Mut. Ins. Co. v. Eighth Judicial Dist. Court, 134 P.3d 710, 712 (Nev. 2006) (citing Nev. Page 9 of 26

1 Rev. Stat. § 14.065), a court need only apply federal due process standards, see Boschetto, 539

2 F.3d at 1015.

3

There are two categories of personal jurisdiction: general jurisdiction and specific

4 jurisdiction. General jurisdiction exists over a defendant who has “substantial” or “continuous

5 and systematic” contacts with the forum state such that the assertion of personal jurisdiction over

6 him is constitutionally fair even where the claims are unrelated to those contacts. See Tuazon v.

7 R..J. Reynolds Tobacco Co., 433 F.3d 1163, 1171 (9th Cir. 2006) (citing Helicopteros

8 Nacionales de Colombia, S.A. v. Hall, 466 U .S. 408, 415 (1984)). The Supreme Court recently

9 twice clarified that the reach of general jurisdiction is narrower than had been supposed in the

10 lower courts for many years. See Daimler AG v. Bauman, 134 S. Ct. 746, at 755 (2014) (citing

11 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2836, 2851 (2011)) (noting that

12 general jurisdiction lies not simply where a defendant has continuous and systematic contacts

13 with the forum state, but where those contacts are so pervasive as to render the defendant

14 “essentially at home” in the forum State).

15

Even where there is no general jurisdiction over a defendant, specific jurisdiction exists

16 when there are sufficient minimal contacts with the forum state such that the assertion of

17 personal jurisdiction “does not offend ‘traditional notions of fair play and substantial justice.’”

18 Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316

19 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). The standard has been restated

20 using different verbiage. See Hanson v. Denckla, 357 U .S. 235, 253 (1958) (“[I]t is essential in

21 each case that there be some act by which the defendant purposefully avails itself of the privilege

22 of conducting activities within the forum State, thus invoking the benefits and protections of its

23 laws.” (citing Int’l Shoe Co., 326 U.S. at 319)); World-wide Volkswagen Corp. v. Woodson, 444

24 U.S. 286, 297 (1980) (“[T]he foreseeability that is critical to due process analysis is not the mere

25 likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s Page 10 of 26

1 conduct and connection with the forum State are such that he should reasonably anticipate being

2 haled into court there.” (citing Kulko v. Superior Court of Cal., 436 U.S. 84, 97–98 (1978))).

3 From these cases and others, the Ninth Circuit has developed a three-part test for specific

4 jurisdiction:

5

(1) The non-resident defendant must purposefully direct his activities or consummate

some transaction with the forum or resident thereof; or perform some act by which

6

he purposefully avails himself of the privilege of conducting activities in the forum,

thereby invoking the benefits and protections of its laws;

7

(2) the claim must be one which arises out of or relates to the defendant’s forum-

8

related activities; and

9

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e.

it must be reasonable.

10

Boschetto, 539 F.3d at 1016 (quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,

11

802 (9th Cir. 2004)).

12

The plaintiff bears the burden on the first two prongs. If the plaintiff establishes both

13

prongs one and two, the defendant must come forward with a “compelling case” that

the exercise of jurisdiction would not be reasonable. But if the plaintiff fails at the

14

first step, the jurisdictional inquiry ends and the case must be dismissed.

15 Id. (citations omitted). The “purposeful direction” option of the first prong uses the “Calder-

16 effects” test, under which “the defendant allegedly must have (1) committed an intentional act,

17 (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be

18 suffered in the forum state.” Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1128

19 (9th Cir. 2010) (quoting Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433

20 F.3d 1199, 1206 (9th Cir. 2006) (en banc)). The third prong of the specific jurisdiction test is

21 itself a seven-factor balancing test, under which a court considers:

22

(1) the extent of the defendant’s purposeful interjection into the forum state’s affairs;

(2) the burden on the defendant of defending in the forum; (3) the extent of conflict

23

with the sovereignty of the defendants’ state; (4) the forum state’s interest in

adjudicating the dispute; (5) the most efficient judicial resolution of the controversy;

24

(6) the importance of the forum to the plaintiff's interest in convenient and effective

relief; and (7) the existence of an alternative forum.

25

Page 11 of 26

1 Menken v. Emm, 503 F.3d 1050, 1060 (9th Cir. 2007) (quoting CE Distrib., LLC v. New Sensor

2 Corp., 380 F.3d 107, 1112 (9th Cir. 2004)).

3

b. Failure to State a Claim

4

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

5 claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of

6 what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

7 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

8 that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule

9 12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720

10 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for

11 failure to state a claim, dismissal is appropriate only when the complaint does not give the

12 defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell

13 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is

14 sufficient to state a claim, the court will take all material allegations as true and construe them in

15 the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th

16 Cir. 1986). The court, however, is not required to accept as true allegations that are merely

17 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

18 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

19 with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own

20 case making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677–79

21 (2009) (citing Twombly, 550 U.S. at 556) (“A claim has facial plausibility when the plaintiff

22 pleads factual content that allows the court to draw the reasonable inference that the defendant is

23 liable for the misconduct alleged.”). In other words, under the modern interpretation of Rule

24 8(a), a plaintiff must not only specify or imply a cognizable legal theory (Conley review), but

25 also must plead the facts of his own case so that the court can determine whether the plaintiff has Page 12 of 26

1 any plausible basis for relief under the legal theory he has specified or implied, assuming the

2 facts are as he alleges (Twombly-Iqbal review).

3

“Generally, a district court may not consider any material beyond the pleadings in ruling

4 on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

5 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

6 & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

7 whose contents are alleged in a complaint and whose authenticity no party questions, but which

8 are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)

9 motion to dismiss” without converting the motion to dismiss into a motion for summary

10 judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule

11 of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay

12 Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court

13 considers materials outside of the pleadings, the motion to dismiss is converted into a motion for

14 summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.

15 2001).

16

2. Analysis

17

Chevalier is a former employee of CCDFS. (See First Am. Third-Party Compl. ¶ 1, Nov.

18 21, 2013, ECF No. 267). She is implicated under the second and fourth claims of the SAC for

19 substantive due process (state created danger) and negligence. She has sued NDA, Deborah Hill,

20 and Joseph Hill for equitable indemnity and contribution, and she has sued Deborah and Joseph

21 Hill for express indemnity. NDA has moved to dismiss or to stay, and for a change of venue.

22

Deborah Hill is a former foster parent of Plaintiffs Charles and Charlotte B., and Joseph

23 Hill is Deborah Hill’s son. (Id. ¶¶ 2, 4). Although Deborah and Joseph Hill resided in Nevada

24 during the times relevant to the Complaint, they now reside in New York. (Id. ¶¶ 3, 5). NDA is a

25 Florida limited liability company that accepts patients from every state, including Nevada. (Id. Page 13 of 26

1 ¶ 7). In the SAC, Plaintiffs allege that Chevalier was responsible for oversight of the licensing

2 investigation of Charles and Charlotte B.’s foster parent, who abused them. (Id. ¶ 10). That

3 foster parent was Deborah Hill, and she eventually pled guilty to two counts of child neglect.

4 (Id. ¶ 12). Joseph Hill was also criminally prosecuted for abusing Charles and Charlotte B., but

5 the outcome of that prosecution is not alleged. (See id. ¶ 13). “Additionally, allegations made in

6 these proceedings relate to Mason I’s placement at NDA, and the licensing inspection thereof.”

7 (Id. ¶ 14). NDA notes that Mason I. alleges he was sexually abused by another resident at NDA

8 and that the external component of his cochlear implant was improperly removed by NDA staff.

9

NDA first argues there is no personal jurisdiction over it in Nevada. In some cases, a

10 tortious act occurring outside the disputed forum may still give rise to specific personal

11 jurisdiction in that forum if the foreign act is purposely directed to the forum state. Dole Food

12 Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002) (citing Calder v. Jones, 465 U.S. 783,

13 78–89 (1984)). In Calder, the Supreme Court held that a defamatory article about a California

14 resident published in Florida satisfied the Due Process Clause as to purposeful direction to

15 California on the ground that the tortious conduct was “expressly aimed” at the forum state in

16 which harm occurred (California). Id. That is, the defendants in Calder “knew that the brunt of

17 that injury would be felt by [the plaintiff] in the State in which she lives and works and in which

18 the [publication] has its largest circulation. Under the circumstances, petitioners must

19 ‘reasonably anticipate being haled into court there’ to answer for the truth of the statements made

20 in their article.” Calder, 465 U.S. at 789–90 (quoting World-wide Volkswagen Corp., 444 U.S. at

21 297).

22

Here, NDA accepted Mason I., a patient from Nevada, for treatment. It therefore knew

23 that any harm arising out of that care would manifest itself in (or continue to be felt in) Nevada

24 once he returned. Still, the Court of Appeals has ruled that the Calder effects test applies only to

25 intentional torts, not to negligence claims. See Holland Am. Line Inc. v. Wartsila N. Am., Inc., Page 14 of 26

1 485 F.3d 450, 460 (9th Cir. 2007) (citing Calder, 465 U.S. at 789). Because NDA’s wrongdoing

2 is alleged only to be negligence, the Calder effects test cannot support personal jurisdiction over

3 NDA in Nevada in this case. NDA is not implicated in any intentional wrongdoing. The

4 allegations in the SAC indicate only that Mason I. was sexually abused (by an unidentified

5 person) while at NDA, and that his cochlear implant was removed. It does not plausibly allege

6 that an employee of NDA was the abuser or that NDA’s removal of the implant amounted to a

7 battery. It is consistent with the SAC that a non-employee of NDA, i.e., another resident, was the

8 abuser and that the implant was removed according to routine procedure without any objection

9 by Mason I. The SAC might be found to plausibly allege negligence against NDA (if NDA were

10 a Defendant), but the allegations are not enough for the State of Nevada to exercise personal

11 jurisdiction over NDA. The acts did not occur in Nevada, and they were not directed to Nevada

12 under Calder and Holland because no intentional torts by NDA are plausibly alleged.

13

The Court will therefore dismiss the FA3PC as against NDA. The Court will not transfer

14 in the interests of justice, because venue lies in Nevada as to the SAC and the remainder of the

15 FA3PC itself. Chevalier may bring her indemnity and contribution claims against NDA in the

16 Florida courts, if she can.

17

B. Motion for Summary Judgment

18

1. Legal Standards

19

A court must grant summary judgment when “the movant shows that there is no genuine

20 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

21 Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v.

22 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there

23 is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A

24 principal purpose of summary judgment is “to isolate and dispose of factually unsupported

25 Page 15 of 26

1 claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). In determining summary

2 judgment, a court uses a burden-shifting scheme:

3

When the party moving for summary judgment would bear the burden of proof at

trial, it must come forward with evidence which would entitle it to a directed verdict

4

if the evidence went uncontroverted at trial. In such a case, the moving party has the

initial burden of establishing the absence of a genuine issue of fact on each issue

5

material to its case.

C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations

6

and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden

7

of proving the claim or defense, the moving party can meet its burden in two ways: (1) by

8

presenting evidence to negate an essential element of the nonmoving party’s case; or (2) by

9

demonstrating that the nonmoving party failed to make a showing sufficient to establish an

10

element essential to that party’s case on which that party will bear the burden of proof at trial. See

11

Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its initial burden, summary

12

judgment must be denied and the court need not consider the nonmoving party’s evidence. See

13

Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970).

14

If the moving party meets its initial burden, the burden then shifts to the opposing party to

15

establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

16

475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party

17

need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

18

claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

19

versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

20

626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment

21

by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d

22

1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and

23

allegations of the pleadings and set forth specific facts by producing competent evidence that

24

shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324.

25

Page 16 of 26

1

At the summary judgment stage, a court’s function is not to weigh the evidence and

2 determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477

3 U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are

4 to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely

5 colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50.

6

2. Analysis

7

Osemwengie moves for defensive summary judgment. The Court will reserve its

8 decision until after the May 15, 2014 hearing but will note its inclinations at this time for the

9 benefit of the parties.

10

Osemwengie is charged only with negligence. She was a Senior Family Services

11 Specialist with CCDFS and was responsible for investigating reports concerning possible abuse

12 of Victor and Leo C. in June and July 2005. (See Second Am. Compl. ¶ 50). In July 2005, Victor

13 and Leo’s mother telephoned Osemwengie and reported suspected sexual abuse, sending a

14 pornographic magazine she claimed they had been reading and “some supporting emails.” (Id.

15 ¶ 242). Osemwengie allegedly made no efforts to investigate. (See id.). These are the entirety of

16 the allegations in the SAC as to Osemwengie. Osemwengie argues that there is no evidence of

17 any causal link between her acts or omissions and any abuse suffered by Plaintiffs, and that she is

18 protected by the discretionary immunity statute in any case.

19

Osemwengie notes that the children at issue were in the custody of their father after a

20 divorce, and that their mother discovered a Playboy magazine on one of their backpacks during a

21 weekend visit at the time when the twin boys were approximately 12 1/2 years old. The boys

22 admitted to having taken some pornographic media out of their father’s room without their

23 father’s knowledge in the past, including the Playboy magazine. At the time, the parents were in

24 the midst of tit-for-tat reports of child abuse. First, the father reported that the boys’ stepfather,

25 who lived with their mother, had grabbed Leo C. by the shirt, choked him, and restrained him by Page 17 of 26

1 the upper arm. Osemwengie responded to the father’s house and checked the boys for bruises,

2 finding none. Osemwnegie interviewed the mother on June 30, 2005, who denied the charges

3 and accused the boys of having attacked her and their stepfather. The boys at that time indicated

4 they did not wish to visit their mother anymore. The stepfather denied the charges during a

5 telephone interview on that day and said the boys liked to watch pornographic movies and were

6 out of control. Osemwengie then spoke to the mother about the pornography issue, which is

7 when the mother mailed Osemwengie the Playboy magazine. Osemwengie had visited the boys

8 two days earlier at their father’s residence and did not believe they appeared to be “out of

9 control” or that they acted in any way indicative of any sexual abuse. (It appears that the sexual

10 abuse alleged at that time was limited to the boys’ access to pornographic materials.) The father

11 denied exposing the boys to pornography and believed the mother was simply making allegations

12 in retaliation for the allegations he had made, a pattern that Osemwengie noted is extremely

13 common in contentious divorces, in her experience. Osemwengie disbelieved the father and

14 stepmother and did not find anything to substantiate any sexual abuse.

15

Plaintiffs respond that the next time an investigator went to the home, one-and-a-half

16 years later, she discovered the father’s pornography and elicited a confession of actual sexual

17 abuse by him, which ultimately led to his conviction of three felony counts, for which he was

18 sentenced to 28 years to life in prison. Plaintiffs allege that the magazine the mother had found

19 was not Playboy but was “more sexually graphic,” and that the emails at issue were pornographic

20 in nature and had been sent to the boys by their father. They note that Osemwengie concedes

21 receiving the materials and putting them into a file without looking at them.

22

In Nevada, certain government actors have discretionary immunity from common law

23 claims. See Nev. Rev. Stat. § 41.032. This section of the code immediately follows the section

24 that waives the state’s common law sovereign immunity but retains the state’s Eleventh

25 Amendment protection. See id. § 41.031. The discretionary immunity statute applies to actions Page 18 of 26

1 brought “against an immune contractor or an officer or employee of the State or any of its

2 agencies or political subdivisions.” See id. § 41.032. On its face, the statute does not necessarily

3 immunize municipal governments or their employees, because in some contexts municipalities

4 are considered independent corporations or “persons” with their own identities, not mere political

5 subdivisions of the state, at least in the eyes of Congress. See Monell v. Dep't of Social Servs. of

6 City of N.Y., 436 U.S. 658, 690 (1978). The Nevada Supreme Court, however, has always

7 assumed that municipalities are political subdivisions of the state for the purposes of the

8 discretionary immunity statute. See, e.g., Travelers Hotel, Ltd. v. City of Reno, 741 P.2d 1353,

9 1354–55 (Nev. 1987). This construction is consistent with Monell, because the discretionary

10 immunity statute only protects state and municipal agencies against state causes of action, such

11 as the present negligence claim.

12

The question remains whether there is discretionary immunity as a matter of law in this

13 case. The statute immunizes municipal agencies and their employees against actions:

14

[b]ased upon the exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of the State or any of its agencies or

15

political subdivisions or of any officer, employee or immune contractor of any of

these, whether or not the discretion involved is abused.

16

Nev. Rev. Stat. § 41.032(2). In interpreting this statute, the Nevada Supreme Court has explicitly

17

adopted the two-part test for discretionary immunity under the Federal Tort Claims Act, under

18

which there is discretionary immunity when: (1) the allegedly negligent acts involve elements of

19

judgment or choice; (2) and the judgment or choice made involves social, economic, or political

20

policy considerations. Martinez v. Maruszczak, 168 P.3d 720, 722 (Nev.2007) (citing Berkovitz v.

21

United States, 486 U.S. 531 (1988); United States v. Gaubert, 499 U.S. 315 (1991)). Under this

22

standard, a court does not ask whether the official abused his or her discretion, see Nev. Rev.

23

Stat. § 41.032(2), but only whether the acts concerned a matter in which the official had

24

discretion. In other words, the immunity is not infinitely broad, but once it is determined that the

25

Page 19 of 26

1 acts at issue were within the breadth of the statute, i.e., that they involved judgment or choice on

2 social, economic, or political policy considerations, the immunity then applies even to abuses of

3 discretion. Still, there is no discretionary immunity for acts taken in “bad faith,” which is a

4 subjective failure that is worse than an objective abuse of discretion. See Falline v. GNLV Corp.,

5 823 P.2d 888 (1991); accord Wright v. Wynn, 682 So.2d 1, 2 (Ala. 1996) (equating “bad faith” in

6 this context with “malice or willfulness”). The Falline Court held that “bad faith” encompasses

7 acts that are completely outside the authority of an official: “Bad faith ... involves an

8 implemented attitude that completely transcends the circumference of authority granted the

9 individual or entity. In other words, an abuse of discretion occurs within the circumference of

10 authority, and an act or omission of bad faith occurs outside the circumference of authority.” Id.

11 at 892 n. 3. In Davis v. City of Las Vegas, the Ninth Circuit noted that under Falline, “where an

12 officer arrests a citizen in an abusive manner not as the result of the exercise of poor judgment as

13 to the force required to make an arrest [an objective abuse of discretion], but instead because of

14 hostility toward a suspect or a particular class of suspects (such as members of racial minority

15 groups) or because of a willful or deliberate disregard for the rights of a particular citizen or

16 citizens [a subjective abuse of power], the officer’s actions are the result of bad faith and he is

17 not immune from suit.” 478 F .3d 1048, 1060 (9th Cir. 2007). The difference between a

18 non-actionable abuse of discretion and an actionable bad-faith violation of rights therefore

19 appears to turn on the state actor’s mental state; when he crosses the line from recklessness as to

20 a person’s rights to malicious intent to violate them, he is no longer protected by the

21 discretionary immunity statute, even if he initially satisfies the two-part test under Martinez.

22

In this case, the first prong of discretionary immunity appears to be satisfied, because

23 decisions concerning removal from a home based upon allegations between divorced parents

24 clearly involves personal deliberation and judgment. This prong of the test is usually easy to

25 Page 20 of 26

1 satisfy—a task must simply involve some element of personal deliberation and choice so as not

2 to be purely ministerial.

3

The second prong of the test is trickier to apply. It focuses on the purposes of

4 discretionary immunity:

5

Because the FTCA’s discretionary-function exception is not a bright-line rule, federal

courts applying the Berkovitz–Gaubert test must assess cases on their facts, keeping

6

in mind Congress’ purpose in enacting the exception: “to prevent judicial

‘second-guessing’ of legislative and administrative decisions grounded in social,

7

economic, and political policy through the medium of an action in tort.” Thus, if the

injury-producing conduct is an integral part of governmental policy-making or

8

planning, if the imposition of liability might jeopardize the quality of the

governmental process, or if the legislative or executive branch’s power or

9

responsibility would be usurped, immunity will likely attach under the second

criterion.

10

. . . .

11

We therefore adopt the Berkovitz–Gaubert approach and clarify that to fall within the

12

scope of discretionary- act immunity, a decision must (1) involve an element of

individual judgment or choice and (2) be based on considerations of social,

13

economic, or political policy. In this, we clarify that decisions at all levels of

government, including frequent or routine decisions, may be protected by

14

discretionary-act immunity, if the decisions require analysis of government policy

concerns. However, discretionary decisions that fail to meet the second criterion of

15

this test remain unprotected by NRS 41.032(2)’s discretionary-act immunity.

16

Under the Berkovitz–Gaubert test, the decision to create and operate a public hospital

and the college of medicine are the type of decisions entitled to

17

discretionary-function immunity, because those decisions satisfy both prongs of the

Berkovitz–Gaubert test; namely, they involve elements of judgment and choice, and

18

they relate to social and economic policy. But, while a physician’s diagnostic and

treatment decisions involve judgment and choice, thus satisfying the test’s first

19

criterion, those decisions generally do not include policy considerations, as required

by the test’s second criterion. In this case, as Dr. Martinez did not engage in

20

policy-making decisions in his treatment of Mr. Maruszczak, he is not entitled to

immunity from suit under NRS 41.032(2).

21

Martinez, 168 P.3d at 729 (footnotes omitted). The Martinez Court rejected the previously used

22

discretionary—ministerial test, under which liability could only attach where a government actor

23

was bound to act in a narrowly particular way and strayed from that direction. See id. at 727 n.27

24

(citing Maturi v. Las Vegas Metro. Police Dep’t, 871 P.2d 932, 934 (Nev. 1994)). Martinez

25

Page 21 of 26

1 clarified that officials could be liable even where they exercised judgment if that judgment was

2 not akin to social, economic, or political policy-making, but the case still did not distinguish

3 between (1) exercising judgment in a way totally divorced from any existing policies and (2)

4 exercising judgment in a way motivated by existing policies.

5

The Nevada Supreme Court has applied Martinez several times, and it answered the

6 question posed above in the latest such case. In Butler ex rel. Butler v. Bayer, the Court ruled

7 that defendants were not entitled to discretionary immunity as against a negligence claim for

8 releasing a quadriplegic inmate outside his girlfriend’s trailer when she was not home and when

9 the trailer had not been prepared to receive him as planned. 168 P.3d 1055, 1059–60, 1067 (Nev.

10 2007). Although the act involved personal judgment, it did not involve policy-making

11 considerations. Later, in City of Boulder City v. Boulder Excavating, Inc., the Court ruled that a

12 city engineer who requested that a contractor replace one of its subcontractors had discretionary

13 immunity against the subcontractor’s claims for defamation and intentional interference with

14 contractual relationship, because the city engineer was executing city policy that was based upon

15 public policy considerations—the city had experienced problems in dealing with the plaintiff

16 company in the past. 191 P.3d 1175, 1177, 1180–81 (Nev. 2008). The Boulder Excavating Court

17 thus took the first step in answering the question posed, supra. Most recently, in Ransdell v.

18 Clark County, the Court answered the question clearly when it ruled that where there is no

19 particular policy or statute in place making the act at issue a purely ministerial one, but where the

20 actor’s personal decision is made in furtherance of stated goals and policies, the statute protects

21 the actor. 192 P.3d 756, 763 (Nev. 2009). In Ransdell, a county inspector obtained a warrant to

22 have debris involuntarily removed from Mr. Ransdell’s property when he refused to remove it

23 himself after several complaints, inspections, citations, and extensions of time. See id. at 759.

24 The County removed the debris, and Mr. Ransdell brought § 1983 and state law tort claims

25 against the County. Id. at 759–60. Applying Martinez and examining a factually similar case Page 22 of 26

1 from Iowa (which, like Nevada, had adopted the Berkovitz–Gaubert test), the Court ruled that the

2 second prong of the test was satisfied “because the goals of the County in abating Ransdell’s

3 property were motivated by environmental, health, and economic policies supported by Clark

4 County Code and statutory authority.” Id. at 763.

5

Ransdell does much to clarify the scope of an every-day actor’s immunity. After

6 Martinez but before Ransdell, it appeared that every-day actors such as county inspectors and

7 police officers would not be immune under the statute unless their actions were ministerial tasks

8 particularly commanded by ordinances or official policies. Acts involving every-day

9 implementation of policy choices, but which did not themselves consist of policy choices, did not

10 appear to be protected. Ransdell makes it clear that individual acts involving the implementation

11 of covered types of policy choices are protected under the discretionary immunity statute. Id. at

12 764 (“[B]ecause the County’s actions were grounded on public policy concerns, as expressed in

13 the County Code and Nevada’s abatement statute, they fit within the second criterion of the

14 Berkovitz–Gaubert test.”).

15

Here, as a general matter, a decision not to remove a child from the custody of a parent

16 involves elements of judgment and choice, and Osemwengie’s choice not to remove the children

17 from the custody of their parents was grounded on public policy concerns as expressed in the

18 Nevada Revised Statutes. Plaintiffs have not alleged malice, but rather only negligence, however

19 gross. As terrible as the situation is, and as negligent as Osemwengie might have been (assuming

20 Plaintiffs’ evidence is true), the discretionary immunity statute might still protect Osemwengie

21 from civil liability.

22

On the other hand, Plaintiffs are correct that Osemwengie had a statutory duty to

23 investigate reports of child abuse or neglect. See Nev. Rev. Stat. §§ 432B.260, 432B.300.

24 Plaintiffs note that Osemwengie did not investigate after receiving the emails from the father to

25 the boys and the pornographic magazine. That is, after she received the evidence, she closed the Page 23 of 26

1 case and chose not to further investigate, without even looking at the additional evidence, based

2 upon her previous visit to the father’s home and observation of the boys there. The Court accepts

3 Plaintiffs’ argument that failing to take any further action to investigate after receiving the

4 previously unexamined evidence could constitute a failure to investigate under the statute, which

5 is a mandated task, the failure of which would prevent Osemwengie from asserting the qualified

6 immunity defense. The Court therefore intends to leave it to the jury whether Osemwengie

7 satisfied her statutory duty to investigate in this case. A reasonable jury could decide the issue

8 either way based upon the evidence currently adduced.

9

C. Motion to Disqualify Counsel

10

County Defendants ask the Court to disqualify three of Plaintiffs’ attorneys from the

11 National Center for Youth Law (“NCYL”). Defendants report that in November 2013, an

12 attorney for NCYL not associated with the present case, Kate Walker, approached Faiza

13 Ebrahim, a managerial and supervisory employee of CCDFS, and, without identifying herself or

14 her organization’s involvement in the case, and knowing that Ebrahim was an employee of

15 represented party CCDFS, solicited information relevant to the present case. Plaintiffs argue that

16 this violated Nevada Rules of Professional Conduct 4.2 and/or 4.3:

17

Rule 4.2. In representing a client, a lawyer shall not communicate about the

subject of the representation with a person the lawyer knows to be represented by

18

another lawyer in the matter, unless the lawyer has the consent of the other lawyer or

is authorized to do so by law or a court order.

19

Rule 4.3. Dealing With Unrepresented Person. In dealing on behalf of a

20

client with a person who is not represented by counsel, a lawyer shall not state or

imply that the lawyer is disinterested. When the lawyer knows or reasonably should

21

know that the unrepresented person misunderstands the lawyer’s role in the matter,

the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer

22

shall not give legal advice to an unrepresented person, other than the advice to secure

counsel, if the lawyer knows or reasonably should know that the interests of such a

23

person are or have a reasonable possibility of being in conflict with the interests of

the client.

24

25 Page 24 of 26

1 Nev. R. Prof. Conduct 4.2, 4.3. Plaintiffs support the allegations with the affidavit and

2 deposition transcript of Ms. Ebrahim. Defendants allege that Walker was aware of Ms.

3 Ebrahim’s employment by CCDFS when she approached her and purposely did not identify

4 herself or her organization’s involvement in the case until after soliciting the relevant

5 information. Defendants allege that the information solicited was then used by other NCYL

6 attorneys to question Ebrahim at her deposition two months later. Defendants note that NCYL’s

7 attorney’s are bound by Nevada’s ethics rules under Local Rule IA 10-7(a).

8

Plaintiffs respond that Ebrahim is not an employee of CCDFS and that Ms. Walker has

9 done no work on the present case. Defendants reply that the attorneys working on the case had a

10 duty to supervise Ms. Walker and to correct any violations that might have occurred. Plaintiffs

11 also respond that Ms. Ebrahim is an employee not of CCDFS, but of the Southern Nevada

12 Children’s Assessment Center (“SNCAC”), which is a “Clark County entity that is not a party to

13 this action.” Defendants’ reply is not entirely clear, but they appear to argue that Ms. Ebrahim is

14 an employee of SNCAC, which is an arm of the County.

15

The Court finds that it must hold an evidentiary hearing. If the allegations are true, an

16 appropriate sanction would be the exclusion of any fruits of the violation, plus the

17 disqualification of any NCYL attorney who directed the improper conduct or ratified it by using

18 the improper information at the deposition or by not reporting the violation to the Court. In order

19 to sort out the relevant facts—whether a violation occurred, who knew about it, and when—the

20 Court will have to question Ms. Ebrahim, NCYL’s two current attorneys, plus Ms. Walker at the

21 May 15, 2014 hearing in Las Vegas. These persons (Faiza Ebrahim, Kate Walker, Erin Liotta,

22 and Leecia Welch) must therefore appear at the May 15, 2015 hearing.

23 ///

24 ///

25 ///

Page 25 of 26

1

CONCLUSION

2

IT IS HEREBY ORDERED that the Motion to Dismiss or Stay and to Transfer Venue

3 (ECF No. 280) is GRANTED IN PART, and the First Amended Third-Party Complaint (ECF

4 No. 267) is DISMISSED as against National Deaf Academy, LLC.

5

IT IS FURTHER ORDERED that the Motion for Jurisdictional Discovery (ECF No. 394)

6 is DENIED.

7

IT IS FURTHER ORDERED that Faiza Ebrahim, Kate Walker, Erin Liotta, and Leecia

8 Welch must appear at the May 15, 2015 hearing prepared to testify as to the Motion to Disqualify

9 Counsel (ECF No. 313).

10

IT IS SO ORDERED.

11 Dated this 7th day of May, 2014.

12

_____________________________________

ROBERT C. JONES

13

United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25 Page 26 of 26

 </s> J. BRUCE ALVERSON, ESQ. (Nevada BarNo. 1339)
KARlEN. WILSON, ESQ. (Nevada Bar No. 7957) 2 ALVERSON TAYLOR
MORTENSEN & SANDERS 3 7401 W. Charleston BoulevArd
Las Vegas, NV 891 17 4 702~384-7000 Phone
702-385-7000 Fax
5 JACK LON DEN (Pro Hac Vice)
6 MARK. W. DANIS (Pro Hac Vice) AURORA V. KAISER (Pro Hac Vice)
7 DINAH X. ORTIZ (Pro Hac Vice) SARAH N. DAVIS (Pro Hac Vice)
8 MORRISON & FOERSTER LLP 425 Market Street, Suite 3200
9 San Francisco, California 941 05~2482 415-268-7000 Phone
10 415-268-7522 Fax

11 WILLIAM GRIMM (Pro Hac Vice) LEECIA WELCH (Pro Hac Vice)
12 ERIN LIOITA (Pro Hac Vice) NATIONAL CENTER FOR YOUTH LAW
13 405 -14th Street, 15th Floor Oakland, CA 946 12
14 51 0-835-8098 Phone 510-835-8099 Fax
15 Co-Attorneys for Plaintiffs
16 HENRY A. et al.

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 HENRY A., by his next friend M.J.; CHARLES

and CHARLOTI'E B., by their next friend R.D.; 20 LEO C.; VICTOR C.; MAIZY and JONATHAN D. Case No.: 2: 10-CV-00528-RCJ-PAL

by their next friend S.W.; LINDA E.; CHRISTINE 21 F., and OUVIA G. by their next friend E.F., and STIPULATION AND (PROPOSED]

MASON I., by his next friend M.J.• individuaHy · 22 and on behalf of others so situated,

23

Plaintiffs,

ORDER TO DISMISS ALL CLAIMS OF HENRY A., CHARLES B., CHARLOTTE B., AND MASON I.
WITH PREJUDICE

vs.

24

MICHAEL WILLDEN, Director of the Nevada

25 Department of Health and Human Services; DIANE

COMEAUX, former Administrator of

26

(Caption continued onfollowingpage.}

27

28
STII'. AND [PROPOS!!D) ORDER TO DISMISS ALl. CLAIMS OF H ENRY A., CHARLES B. CIIARLOTTI! B., AND MASON 1
WrrH PRJ::JliDtC'E
CAS!:: No. 2: IO-cv-00528

Nevada Division of Child and Family Services;

AMBER HOWELL, Administrator ofNevada 2 Division of Child and Family Services; VIRGINIA
VALENT£NE, former Clark County Manager;

3 DON BURNEITE, Clark County Manager; CLARK COUNTY; TOM MORTON, former
4 Director of Clark County Department of Family Services; LISA RUIZ-LEE, Director of Clark
5 County Deparhnent of Family Services; SYLVIA CLARK, Senior Family Services Specialist;

6 YVEITE CHEVAUER, Caregiver Services Manager; TERESA CR.AGON, Case Manager;

7 DARREL FORD, Licensing lnvestigator; DEBBIE MALLWlTZ, Family Se1vices Specialist II;
8 PATRICIA MARTIN, Family Services Specialist; THOR MARTINEZ, Family Services Specialist I;

9 PHILOMENA OSEMWENGIE, Senior Family Services Specialist; STACEY SCOTf, Family

10 Services Specialist I; SONYA WEATHERS. Family Services Specialist II; and DOES XI-XX,

11

Defendan1s.

12

13

14

15

16

17

18

l9

20

21

22

23

24 25

26

27

28
STIP. AND [PROI'OSED] ORDER TO DISMISS ALL CI..AIMS Of' HENRY A., CHARLF.S B., CHARLOTfE B., AND MASON I.
Wml PR£'JUDICE
CASE NO.2: I 0-CV-00528

PLAINTIFFS HENRY A., CHARLES B., CHARLOTIE B., and MASON I., and 2 DEFENDANTS HEREBY STIPULATE AND AGREE, by and through thei r respective counsel, 3 to the dismissal, with prejudice, of all claims of HENRY A., CHARLES B., CHARLOTTE B., 4 and MASON I., as against all Defendants in the above-entitled matter~ pursuant to Federal Rt1le 5 of Civil Procedure 41 (a)( l)(A)(ii). butlhat the Court will retain personal and subject matter 6 j urisdiction solely fo r the purpose of enforcing the terms of the Settlement Agreement and

7 Release.

8

Except for the fees and costs to be paid by Clark County to Plaintiffs' counsel as provided

9 in the parties' Settlement Agreement and Release, which was the subject of Joint Petition for

10 Approval ofNegotiated Attorneys' Fees & Costs approved by rhis Court (Dkt. 404], the parties

l1 will bear their own fees and costs.

12

IT IS SO STIPULATED

13 DATED this ~ day of ~;;;;e?· 2015.

14 La~- ..) zt~.z?

15

ALVERSON TAYLOR MORTENSEN & SANDERS MORRISON & FOERSTER LLP

16

NATIONAL CENTER FOR YOUTH LAW By Karie N. Wilson, Esq.

17 Aflorneysfor Plaintiffs

18

19

20
KOLESA LEATHAM 21 By AI efebvre, Esq.
Allorneys.for Defendants Mallwilz 22 and Chevalier

x-44015. 23

-\..0. 24 DATED !his

day of

LE~I~~RISB 25

26

IS BJSGAARD & , ITH LLP By Margaret G. Foley, Esq.

27 ALiorneysfor Clark County and Defendants Ruiz-Lee,
Morton, Burmme, Valentine, Cla1'k. O·agon. Ford,

28 Martin, Mar/inez, Osemwengie, Scof( & Weathers

STIP.I\ND [PROPOSED] ORDER To DISMISS ALL CLA.IMS OF HENRY A., CHARLilS 8., CHARLOTIE B.• AND MASON l.

WITII PRI!JUDIC~

I

CASE No.2:I 0-cv-00528

PI./\.INTIFFS IIENRY A.. CIIARLES B.. CII ARI.Orn : B.. and MASO~ 1.. and ., DEFENDANTS IIER ERY STIPULATE AND AGREE. by and through their n:spcctin~ counsel. 3 to the dismissal. with prejudice. of all claims of HENRY A.. CHAR LES B.. CIIARI.OTfE B.. 4 and MASON 1.. as against all Defendants in the obnvc-cntitkd matter. pursuant to Fctk:ral Rule 5 of Civil Proccdurc 4l(a}( I)(A)(ii). but that the Court will retain personal ami subject matter 6 jurisdiction solely for the purpose of l.!nforcing thc tt:nns of the Settlement Agreement and

7 Release.

8

Except lor Lhl! lb.:s and costs to be paid by Clark County to Plaintins· cmmsd as provided

C) in the panics· Sculcmcnt Agreement and Release. wh ich was the subject of Joint Petition fur

10 Approval of Ncgotiatcd Attorneys· Fees & Costs approved by this Court I Dk t. 404 1. the parties

II will bear their own fees and costs.

12

IT IS SO STIPULATED

13

14

15

ALVERSON T A OR MORTENS EN & SANDERS MORRISON OERSTER LLP

16

CENTER FOR YOUTH LAW By KaF· · N. Wilson, Esq.

17 Allvrneys.for Plaint[{{s

18 19

DA .Dtht:~~~)vly-·2015.

20
ESAR & LEAT HAM 2 1 B Alan Lefebvre, Esq.
At orneys jor Defendants Malfwilz 22 a d Chevalier
23 24 DATEDthis _ 2.._..,.c._./ _ _,2015.

25

26

LEWIS BRIS'B"oiS BISGAARD & SMITH LLP By Margpref G. Foley, Esq.

27 Allm:xtfysfor Clark County and Defendants Ruiz-Lee, Morton, Burnette, Valentine, Clark, Cragon, Ford.

28 Martin, Martinez. Osemwengie, Scalf & Wealhers

STIP. AND !PROPOSED] ORDER TO DISMISS ALL CLAIMS OF H ENRY A., CHARLES B., CHARLOTTE B., AND MASON I.
} WIT! I PREJUDICE

CASE NO. 2: I 0-CV·00528

Henry A., ct al. vs. Michael Willden, et al. Case No. 2:I0-cv-00528-RCJ-PAL
IT IS SO ORDERED.
2 Dated this 21st day of July, 201 5.
3
4
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
20
21 22
23 24 25 26 27
28
STIP. AND [PROI'OSED) ORDER TO DISMISS ALL CLAIMS OF HENRY A., CHARLES B., CHARL.011"E B., AND MASON I.
WrrH PREJUDICE
CASE NO.2: IO-cv-00528

 </s> Case 2:10-cv-00528-RCJ-PAL Document 349076 Filed 1021/1282/145 Page 1 of 4

1 J. BRUCE ALVERSON, ESQ. (Nevada Bar No. 1339) KARlEN. WILSON, ESQ. (Nevada Bar No. 7957)
2 ALVERSONTAYLOR MORTENSEN & SANDERS
3 7401 W. Charleston Boulevard Las Vegas, NV 89117
4 702-384-7000 Phone
702-385-7000 Fax
5 JACK LONDEN (Pro Hac Vice)
6 MARK W. DANIS (Pro Hac Vice) AURORA V. KAISER (Pro Hac Vice)
7 DINAH X. ORTIZ (Pro Hac Vice) SARAH N. DAVIS (Pro Hac Vice)
8 MORRISON & FOERSTER LLP 425 Market Street, Suite 3200
9 San Francisco, California 94105-2482 415-268-7000 Phone
10 415-268-7522 Fax

11 WILLIAM GRIMM (Pro Hac Vice) LEECIA WELCH (Pro Hac Vice)
12 ERIN LIOTTA (Pro Hac Vice) NATIONAL CENTER FOR YOUTH LAW
13 405 -14th Street, 15th Floor Oakland, CA 94612
14 510-835-8098 Phone 510-835-8099 Fax
15 Co-Attorneys for Plaintiffs
16 HENRY A. eta!.

17

UNITED STATES DISTRICT COURT

18

DISTRICTOFNEVADA

19 HENRY A., by his next friend M.J.; CHARLES

and CHARLOTTE B., by their next friend R.D.;

20 LEO C.; VICTOR C.; MAIZY and JONATHAN D. Case No.: 2:10-CV-00528-RCJ-PAL

by their next friend S.W.; LINDA E.; CHRISTINE

21 F., and OLIVIA G. by their next friend E.F., and STIPULATION AND [PROPOSED]

MASON I., by his next friend M.J., individually

ORDER TO DISMISS ALL CLAIMS

22 and on behalf of others so situated,

OF LEO C., VICTOR C., AND LINDA

23

Plaintiffs,

E. WITH PREJUDICE

vs.

24

MICHAEL WILLDEN, Director ofthe Nevada

25 Department of Health and Human Services; DIANE

COMEAUX, former Administrator of

26

(Caption continued on following page.)

27

28
STIP. AND [PROPOSED] ORDER TO DISMISS ALL CLAIMS OF LEOC. VICTOR C., AND LINDA E. WITH PREJUDICE
CASE No. 2: I0-cv-00528

Case 2:10-cv-00528-RCJ-PAL Document 349076 Filed 1021/1282/145 Page 2 of 4

1 Nevada Division of Child and Family Services;

AMBER HOWELL, Administrator ofNevada

2 Division of Child and Family Services; VIRGINIA

VALENTINE, former Clark County Manager;

3 DON BURNETTE, Clark County Manager;

CLARK COUNTY; TOM MORTON, former

4 Director of Clark County Department of Family

Services; LISA RUIZ-LEE, Director of Clark

5 County Department of Family Services; SYLVIA

CLARK, Senior Family Services Specialist;

6 YVETTE CHEVALlER, Caregiver Services

Manager; TERESA CRAGON, Case Manager;

7 DARREL FORD, Licensing Investigator; DEBBIE

MALLWITZ, Family Services Specialist II;

8 PATRICIA MARTIN, Family Services Specialist;

THOR MARTINEZ, Family Services Specialist I;

9 PHILOMENA OSEMWENGIE, Senior Family

Services Specialist; STACEY SCOTT, Family

10 Services Specialist I; SONYA WEATHERS,

Family Services Specialist II; and DOES XI-XX,

11

Defendants.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
STIP. AND [PROPOSED] ORDER TO DISMISS ALL CLAIMS OF LEO C. VICTOR C., AND LINDA E. Willi PREJUDICE CASE NO. 2:10-CV-00528

Case 2:10-cv-00528-RCJ-PAL Document 349076 Filed 1021/1282/145 Page 3 of 4

1

PLAINTIFFS LEO C., VICTOR C., and LINDA E., and DEFENDANTS HEREBY

2 STIPULATE AND AGREE, by and through their respective counsel, to the dismissal, with

3 prejudice, of all clai_rns of LEO C., VICTOR C., and LINDA E., as against all Defendants in the

4 above-entitled matter, pursuant to Federal Rule of Civil Procedure 41 (a)(! )(A)(ii), but that the

5 Court will retain personal and subject matter jurisdiction solely for the purpose of enforcing the

6 terms of the Settlement Agreement and Release.

7

Except for the fees and costs to be paid by Clark County to Plaintiffs' counsel as provided

8 in the parties' Settlement Agreement and Release, which are the subject of Plaintiff's Petition for

9 Approval of Negotiated Attorney's Fees & Costs [Dkt. 388], the parties will bear their own fees

10 aod costs.

!I

IT IS SO STIPULATED

12 DATED this~day of December, 2014.

4 . : 13

d ~-.....) ??.27

ALVERSON TAYLOR MORTENSEN & SANDERS 14 MORRISON & FOERSTER LLP

15

NATIONAL CENTER FOR YOUTH LAW By Karie N. Wilson, Esq.

16 Attorne for Plaintiffs

17

.1( this

day of December, 2014. ·

18

19

20

21

22

23

24

25

LEWISBRISBliHs BISGAARD&SJ\IIIT,LLP
By Margaret G. Foley, Esq.

26 Attorneys for Clark County and Defendants Ruiz-Lee,
Morton, Burnette, Valentine, Clark, Cragon, Ford,

27 Martin, Martinez, Osemwengie, Scott & Weathers

28

ST!P. AND [PROPOSED] ORDER TO DJSMJSS ALL CLAIMS OF LEO C. VICTOR C., AND LINDA E. WrTH PREJUDICE

CASE NO.2: 10-cv-00528

I

Case 2:10-cv-00528-RCJ-PAL Document 349076 Filed 1021/1282/145 Page 4 of 4 Dated this 22nd day of January, 2015.

 </s> Case 2:10-cv-00528-RCJ-PAL Document 403 Filed 01/16/15 Page 1 of 21

1 J. BRUCE ALVERSON, ESQ. (Nevada Bar No. 1339) KARlEN. WILSON, ESQ. (Nevada Bar No. 7957)
2 ALVERSON TAYLOR
MORTENSEN & SANDERS 3 7401 W. Charleston Boulevard
Las Vegas, NV 89117
4 702-384-7000 Phone 702-385-7000 Fax
5 JACK LONDEN (Pro Hac Vice)
6 MARK W. DANIS (Pro Hac Vice) AURORA V. KAISER (Pro Hac Vice)
7 DINAH X. ORTIZ (Pro Hac Vice) SARAH N. DAVIS (Pro Hac Vice)
8 MORRISON & FOERSTER LLP 425 Market Street, Suite 3200
9 San Francisco, California 94105-2482
415-268-7000 Phone
10 415-268-7522 Fax

11 WILLIAM GRIMM Pro Hac Vice) LEECIA WELCH (Pro Hac Vice)
12 ERIN LIOTTA (Pro Hac Vice) NATIONAL CENTER FOR YOUTH LAW
13 405 - 14th Street, 15th Floor Oakland, CA 94612
14 510-835-8098 Phone 510-835-8099 Fax
15 Co-Attorneys for Plaintiffs
16 HENRY A. eta!.

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 HENRY A., by his next friend M.J.; CHARLES and CHARLOTTE B., by their next friend R.D.; LEO C.;
20 VICTOR C.; MAIZY and JONATHAN D. by their next friend S.W.; LINDA E.; CHRISTINE F., and
21 OLIVIA G. by their next friend E.F ., and MASON I., by his next friend M.J., individually and on behalf of
22 others so situated,

Case No.: 2:10-CV-00528-RCJ-PAL
JOINT PETITION AND MEMORANDUM IN SUPPORT OF PETITION FOR APPROVAL OF PLAINTIFFS' NEGOTIATED ATTORNEYS' FEES AND COSTS

23

Plaintiffs,

vs.

24

MICHAEL WILLDEN, Director ofthe Nevada

25 Department of Health and Human Services; DIANE

COMEAUX, former Administrator ofNevada

26 · Division of Child and Family Services; AMBER

HOWELL, Administrator ofNevada Division of

27 Child and Family Services; VIRGINIA VALENTINE,

former Clark County Manager; DON BURNETTE,

28 Clark Coun Mana er; CLARK COUNTY; TOM

PET. & MEM. IN SUPP. OF PET. FOR APPROVAL OF NEGOTIATED ATTORNEYS' FEES & COSTS CASE No. 2:10-CV-00528-RCJ-PAL 4826-8585·0145.1 sf-348084

Case 2:10-cv-00528-RCJ-PAL Document 403 Filed 01/16/15 Page 2 of 21

1 MORTON, former Director of Clark County

Department ofFamily Services; LISA RillZ-LEE,

2 Director of Clark County Department of Family

Services; SYLVIA CLARK, Senior Family Services

3 Specialist; YVETTE CHEVALlER, Caregiver

Services Manager; TERESA CRAGON, Case

4 Manager; DARREL FORD, Licensing Investigator;

DEBBIE MALLWITZ, Family Services Specialist II;

5 PATRICIA MARTIN, Family Services Specialist;

THOR MARTINEZ, Family Services Specialist I;

6 PHILOMENA OSEMWENGIE, Senior Family

Services Specialist; STACEY SCOTT, Family

7 Services Specialist I; SONYA WEATHERS, Family

Services Specialist II; and DOES XI-XX,

8

Defendants.

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4826-8585-0145.1 PET. & MEM. IN SUPP. OF PET. FOR APPROVAL OF NEGOTIATED ATTORNEYS' FEES & COSTS CASE No. 2:10-CV-00528-RCJ-PAL sf-3490804

Case 2:10-cv-00528-RCJ-PAL Document 403 Filed 01/16/15 Page 3 of 21

1

TABLE OF CONTENTS

2

Page

3 I.

INTRODUCTION .............................................................................................................. 1

4 II. 5 III. 6 7 8 9

FACTUAL AND PROCEDURAL BACKGROUND ........................................................ 2 DISCUSSION ..................................................................................................................... 5
A. Plaintiffs Are Entitled to Attorneys' Fees and Costs Under 42 U.S.C. Section 1988 and Under the Parties' Settlement Agreement.................................. 5
B. The Parties' Settlement Agreement Is Fair and Reasonable................................... 5 C. The Fees and Costs Agreed to by the Parties Are Reasonable............................... 7

10 11 12 13 14 15 IV.

1. Plaintiffs have agreed to settle for a significant reduction of their fee claim...................................................................................................... 7
2. The Kerr factors weigh in favor of approving this fee settlement.............. 9
3. The fee settlement is reasonable in light of the substantial costs and out-of-pocket litigation expenses that Plaintiffs' counsel have expended................................................................................................... 14
CONCLUSION ................................................................................................................. 15

16

17

18

19

20

21

22

23

24

25

26

27

28

4826-8585.{)145.1 PET. & MEM. IN SUPP. OF PET. FOR APPROVAL OF NEGOTIATED ATTORNEYS' FEES & COSTS

CASE No. 2:10-CV-00528-RCJ-PAL

sf-3490804

i

Case 2:10-cv-00528-RCJ-PAL Document 403 Filed 01/16/15 Page 4 of 21

1

TABLE OF AUTHORITIES

2

Page(s)

3 CASES

4 Blum v. Stenson, 465 U.S. 886 (1984) ................................................................................................................ 11

5

City ofRiverside v. Rivera,

6

477 U.S. 561 (1986) .................................................................................................................. 5

7 Dang v. Cross, 422 F.3d 800 (9th Cir. 2005)................................................................................................... 14

8

Doe v. Gill,

9

No. C 11-5009,2012 U.S. Dist. LEXIS 74250 (N.D. Cal. May 29, 2012) .............................. 6

10 Fed. Deposit Ins. Corp. v. Lake Elsinore 521, LLC,

No. 2:11-cv-00386-GMN-LRL, 2011 U.S. Dist. LEXIS 126866

11

(D. Nev. Nov. 1, 2011).............................................................................................................. 7

12 Fullmer v. Brown, No. 2:09-cv-01442-BES-PAL (D. Nev. Dec. 7, 2011) ............................................................. 6

13

Guerra v. Madera Mgmt. Co.,

14

No. 1:11-cv-01488, 2012 U.S. Dist. LEXIS 132510 (E.D. Cal. Sept. 17, 2012)...................... 6

15 Guerrero v. Brentwood Union Sch. Dist., No. 13-03873 LB, 2014 U.S. Dist. LEXIS 47167 (N.D. Cal. Apr. 4, 2014) .......................... 13

16

Harris v. Marhoefer,

17

24 F.3d 16 (9th Cir. 1994)....................................................................................................... 14

18 Hensley v. Eckerhart, 461 U.S. 424 (1983) ............................................................................................................ 7, 10

19

Johnson v. Clayton,

20

No. 2:08-cv-01810-RCJ-LRL (D. Nev. Dec. 28, 2010)........................................................ 6, 7

21 K.J. v. Div. ofYouth & Family Servs., No. 1:04-cv-03553-JBR (D.N.J. Mar. 15, 2006) .................................................................... 13

22

Kerr v. Screen Extras Guild, Inc.,

23

526 F.2d 67 (9th Cir. 1975)................................................................................................... 7, 9

24 Martinez v. City ofAvondale, No. CV-12-1837, 2014 U.S. Dist. LEXIS 28941 (D. Ariz. Mar. 6, 2014) ............................... 6

25

Mendez v. Cnty. ofSan Bernardino,

26

540 F.3d 1109 (9th Cir. 2008)................................................................................................... 5

27 Mendez v. Reinforcing Ironworkers Union Local 416,

No. 2:09-cv-02332-LRH-NJK, 2013 U.S. Dist. LEXIS 120893

28

(D. Nev. Aug. 22, 2013)............................................................................................................ 8

PET. & MEM. IN SUPP. OF PET. FOR APPROVAL OF NEGOTIATED ATTORNEYS' FEES & COSTS

CASE No. 2:10-CV-00528-RCJ-PAL

4826-8585-0145.1 sf-348084

11

Case 2:10-cv-00528-RCJ-PAL Document 403 Filed 01/16/15 Page 5 of 21

1 Mix v. Jones-Johnson, No. 2:06-cv-411-RLH-LRL (D. Nev. Aug. 19, 2009) .......................................................... 6, 7

2

Perdue v. Kenny A.,

3

559 U.S. 542 (2010) .................................................................................................................. 1

4 Riker v. Gibbons,

No. 3:08-cv-00115-LRH-VPC, 2010 U.S. Dist. LEXIS 120841

5

(D. Nev. Oct. 28, 201 0) ........................................................................................................... 11

6

Robidoux v. Rosengren, 638 F.3d 1177 (9th Cir. 2011)............................................................................................... 5, 6

7

Van Asdale v. Int'l Game, Tech.,

8

No. 3:04-cv-00703-RAM, 2011 U.S. Dist. LEXIS 56715 (D. Nev. May 24, 2011) ............ 8, 9

9 Woods v. Carey, 722 F.3d 1177 (9th Cir. 2013)................................................................................................. 14

10

STATUTES & RULES

11

28 u.s.c.

12

§1920 ........................................................................................................................................ 4

u.s.c. 13 42 § 1983 ........................................................................................................................ 2, 5, 11, 13

14

§ 1988 ................................................................................................................................ 1, 4, 5

15 LR 54-16(b)(3) ............................................................................................................................ 7, 9

16

17

18

19

20

21

22

23

24

25

26

27

28

4826-8585-0145.1 PET. & MEM. 1N SUPP. OF PET. FOR APPROVAL OF NEGOTIATED ATTORNEYS' FEES & COSTS

CASE No. 2:10-CV-00528-RCJ-PAL

sf-3490804

111

Case 2:10-cv-00528-RCJ-PAL Document 403 Filed 01/16/15 Page 6 of 21

1 I. INTRODUCTION

2

After four years of hard-fought litigation, the parties have reached a settlement to resolve

3 all of Plaintiffs' claims as to the alleged harms they suffered in Clark County foster care,

4 including any claims for attorneys' fees and costs. Under the settlement, the four minor Plaintiffs

5 and three adult Plaintiffs are to receive a cumulative total of$1,575,0001 Additionally, Clark

6 County Defendants2 will pay attorneys' fees and costs in the amount of$500,000, which will not

7 be deducted from Plaintiffs' awards. The Clark County Board of County Commissioners

8 approved the parties' settlement at a public hearing on November 18, 2014, and Plaintiffs'

9 Petition to Approve Compromise Settlement and Distribution ("Petition") was filed under seal

10 with this Court on November 21,2014 (Dkt. 386) and approved on January 9, 2015 (Dkt. 400).

11

Plaintiffs and Clark County Defendants now petition this Court for approval of the

12 negotiated fees and costs settlement pursuant to 42 U.S. C. Section 1988. As demonstrated

13 below, Plaintiffs are entitled to recover their fees and costs, and the amount negotiated is fair and

14 reasonable. The settlement amount does not come close to compensating Plaintiffs' counsel for

15 the more than 17,000 hours of work expended on this case along with the roughly $306,439.06

16 they have spent out-of-pocket. There is a strong presumption that the lodestar method results in a

17 reasonable fee, Perdue v. Kenny A., 559 U.S. 542,552-53 (2010), and the compromise of

18 $500,000 in fees represents less than 15 percent of Plaintiffs' counsel's lodestar, which is

19 $3,355,260.50? The negotiated fees and costs also amount to less than 25 percent of the total

20 settlement amount, and Plaintiffs' counsel have waived their right to recover any contingency fee

21

1 The Plaintiffs' original complaint named thirteen Plaintiffs, but seven currently have claims

22

pending (Notice

before this court. See Plaintiffs' Second Amended Complaint. Dkt. 178, Dkt. 245. of Voluntary Dismissal Without Prejudice of the Actions ofMaizy and Jonathan D.,

23 Christine F., and Olivia G.")

24

2 Clark County Defendants are all Defendants remaining in Burnette, Virginia Valentine, Tom Morton, Lisa Ruiz-Lee,

the case: Clark County, Don Sylvia Clark, Teresa Cragon,

Darrell

25 Ford, Patricia Martin, Thor Martinez, Philomena Osemwengie, Stacey Scott, and Sonya

Weathers, represented by Lewis Brisbois Bisgaard & Smith LLP, and Yvette Chevalier and

26 Debbie Mallwitz, represented by Kolesar and Leatham.

27 3 The "lodestar" is calculated as the hours reasonably worked multiplied by the reasonable hourly rate.
28
4826-8585-0145.1 PET. & MEM. IN SUPP. OF PET. FOR APPROVAL OF NEGOTIATED ATTORNEYS' FEES & COSTS CASE No. 2:10-CV-00528-RCJ-PAL sf-3480804

Case 2:10-cv-00528-RCJ-PAL Document 403 Filed 01/16/15 Page 7 of 21

1 from the clients.

2 II. FACTUALANDPROCEDURALBACKGROUND

3

Plaintiffs are former foster children who were in the custody of Clark County's

4 Department of Family Services ("DFS"). They filed suit on Aprill3, 2010, seeking redress for

5 alleged harms suffered while in foster care.4 They sued for violations of their federal

6 constitutional and statutory rights under 42 U.S.C. Section 1983, as well as for violations of

7 Nevada state law. SAC~~ 198-281.

8

Following four years of litigation, seven Plaintiffs remain in the case, four of whom are

9 minors. A brief summary of the minor Plaintiffs' claims in the SAC are as follows:

10

Henry A.: Henry was seven years old when he first came into Clark County custody, and

he remained in foster care from November 2005 until February 2013. During this time he

11

suffered numerous alleged harms. For instance, when he was eleven years old, Henry

suffered near organ failure allegedly as a result of a medication regimen that involved

12

multiple psychotropic medications. He was allegedly hospitalized twice in the intensive

care unit and allegedly nearly died. The parties have agreed to settle Henry's claims for

13

$325,000.

14

Charles & Charlotte B.: Charles and Charlotte are siblings who entered Clark County

foster care at eight years old and three months old, respectively. They were in care for

15

approximately two years, from March 2009 to March 2011. In the very first foster home

into which they were placed, Charlotte, an infant, was allegedly locked in a closet and left

16

unattended, and Charles was allegedly beaten with a plastic baseball bat when he tried to

help her. The foster mother and her son were convicted of child abuse, and Charlotte was

17

allegedly hospitalized for several days due to her injuries. The parties have agreed to

settle Charles's claims for $150,000 and Charlotte's claims for $100,000.

18

Mason I.: Clark County DFS took Mason into custody when he was five years old. He

19

remained in care for over ten years, until September 2013. When he was ten years old,

DFS sent Mason to Florida to an institution for deaf individuals. While there, he was

20

allegedly sexually abused by staff and by another resident. Mason remained at this

institution for nearly twenty months. The parties have agreed to settle Mason's claims for

21

$350,000.

22

These children's path to settlement has been long and complex. They initially sued

23

4 On July 12, 2013, Plaintiffs filed their Second Amended Complaint ("SAC"), which is the

24

operative complaint in the case. working for the State of Nevada,

Dkt. 178. The Second Amended Complaint names Defendants Michael Willden and Amber Howell (the "State Defendants"),

25

and Defendants working for or responsible for the Clark County Department of Family Services: Clark County, Tom Morton, Virginia Valentine, Don Burnette, Lisa Ruiz-Lee, Yvette Chevalier,

26 Teresa Cragon, Darrel Ford, Debbie Mallwitz, Patricia Martin, Thor Martinez, Philomena

Osemwengie, Stacey Scott, and Sonya Weathers (collectively "County Defendants"). It also

27 names Defendant Sylvia Clark, whom Plaintiffs voluntarily dismissed without prejudice on

October 17, 2013. Dkt. 245.

28

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1 County and State Defendants, who filed a total of five motions to dismiss at three different stages, 2 along with multiple joinders and a motion for reconsideration. After the Court granted the initial 3 motions to dismiss in October 2010, Plaintiffs appealed to the Ninth Circuit, which reversed in 4 part and remanded the case. Based on the motion to dismiss rulings and the appeal, Plaintiffs

5 amended their complaint twice.5

6

The discovery that began in the summer of2010 and re-commenced in the fall of2012

7 was protracted and hard fought and filled with motion practice by Plaintiffs and Defendants.

8 Plaintiffs took nearly forty depositions, and County Defendants deposed all but one Plaintiff in

9 addition to taking six other depositions. County Defendants produced over 120,000 pages of

10 documents that Plaintiffs' counsel organized and reviewed. Declaration of Mark W. Danis, Dkt.

11 389, filed under seal in support of Plaintiffs' Petition and Memorandum in Support ofNegotiated

12 Attorneys' Fees and Costs("Danis Dec!.")~ 6. 13 The parties' extensive litigation efforts are demonstrated by the 400-plus docket entries in this

14 case to date.

15

As the case neared the close of discovery, Plaintiffs and Defendants engaged multiple

16 expert witnesses in the following fields: child welfare systems, child psychology, child

17 psychiatry, and life care planning.

18

On May 27,2014, Magistrate Judge Leen convened the parties for a settlement

19 conference. Dkt. 333. After an all-day in-person meeting and follow-up conference call

20 discussions over a period of approximately one month, the parties reached agreement on

21 settlement amounts. Declaration ofLeecia Welch, Dkt. 390, filed in support of Plaintiffs'

22 Petition and Memorandum in Support ofNegotiated Attorneys' Fees and Costs ("Welch Dec!.")

23 ~ 15. County Defendants have agreed to pay a total of$1.575 million to the seven Plaintiffs who

24 remain in this case. Petition at 2. The settlement for the four minor Plaintiffs totals $925,000.

25

26 27

P5lilDgahiuntrtoiinffgftsht,iheseaCcchoouuerrvste'esnortuufaltihlnleygssw,uaPitsl,aaPidnlaotiipfnfttseifdtfh,setgurerranfoderudea1lllo8ys, teotxrhireteeitrdusrftnoaesntdderitnocgahrtioes.

Of the thirteen original or her biological family. seek injunctive relief and

In the

claims against State Defendants became moot. Dkt. 247.

28

4826-8585-0145.1 PET. & MEM. IN SUPP. OF PET. FOR APPROVAL OF NEGOTIATED ATTORNEYS' FEES & COSTS

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1 !d. The remaining amount-$650,000-represents the settlement amount for the three Plaintiffs 2 who were minors when they filed this suit but who have now reached the age of majority. 6 !d. at

3 3.

4

The parties also reached a compromise on Plaintiffs' claim for attorneys' fees and costs

5 pursuant to 42 U.S.C. Section 1988. The parties have agreed to settle the claim for fees and costs

6 for a total of$500,000. Petition at 4. County Defendants have agreed to pay attorneys' fees and

7 costs directly; thus, no fees or costs will be deducted from the recovery of the Plaintiffs. !d.;

8 Welch Dec!. 'If 15.

9

Following agreement on the basic terms of the settlement, Plaintiffs' counsel spent

10 substantial time over the next five months to bring the case to closure. Welch Dec!. 'If 16. The

ll unique circumstances of each Plaintiff, coupled with several being minors and the fact that they

12 live in three different states, necessitated a variety of different settlement structures. After several

13 months of negotiation and research as to viable financial alternatives, the parties agreed that the

14 four minor Plaintiffs will receive their settlement funds through one or more of: a special needs

15 trust, an annuity, and a blocked financial account. Welch Dec!. 'If 16. In addition to selecting

16 these settlement structures, the parties resolved numerous other issues before finalizing the

17 settlement terms. Welch Dec!. 'If 16.

18

Given the resources expended over the course of nearly five years, the negotiated fee

19 amount is fair and reasonable. Indeed, the amount that Plaintiffs have agreed to accept represents

20 a reduction of more than 85 percent off Plaintiffs' lodestar claim. Further, the compromise is

21 intended to cover Plaintiffs' costs, in addition to their fees, and Plaintiffs' counsel have expended

22 more than $306,439.06 in costs and expenses litigating this case. Danis Dec!. Ex. B, Welch Dec!.

23 Ex. B, Declaration of Bruno Wolfenzon, Dkt. 391, filed in support ofPlaintiffs' Petition and

24

25 26 27

Payc6poelTapashitrrnsesotsvcitefhoafalamstdospLuufrlefotthofmPeeralieassndeiedntatctVliloeflifvemcsgeteraoensrdrettChhaL.aseeratwmoonodsCtrhi.sk,enixcVpaleyduirceudftaoliotnrrrsPmgCtleaah.d,lialnetaotngiLnfdefidnbsLdeisisahenaxnEdluoa.fatosElbpf.aeetnfhnSodeterseipenehStPyChAsellaiCaciCrnak'o1tl['i1uC[farf2bots,2uua-tsnh2sete3ywd.aDuetlArtFlio.nlSrtgnhTceothuhyuesesgst'eohffodetuyher.es

and !d.

at '1['1[ 22-23; 104(d), (±); 128(±)-(g); 151(a)-(e); 242-43; 255.

28

4826·8585-0145.1 PET. & MEM. IN SUPP. OF PET. FOR APPROVAL OF NEGOTIATED ATTORNEYS' FEES & COSTS

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1 Memorandum in Support of Negotiated Attorneys' Fees and Costs ("Wolfenzon Dec!.") Ex. B.

2 III. DISCUSSION

3

A. Plaintiffs Are Entitled to Attorneys' Fees and Costs Under 42 U.S. C.

Section 1988 and Under the Parties' Settlement Agreement.

4

5

Pursuant to 42 U.S.C. Section 1988, courts have authority to award attorneys' fees in

6 actions brought under 42 U.S.C. Section 1983. The Ninth Circuit has interpreted this statute to

7 mean that "a court's discretion to deny fees under Section 1988 is very narrow and ... fee awards

8 should be the rule rather than the exception." Mendez v. Cnty. ofSan Bernardino, 540 F.3d 1109,

9 1126 (9th Cir. 2008) (quoting Herrington v. Cnty. ofSonoma, 883 F.2d 739, 743 (9th Cir. 1989)).

I 0 This interpretation supports Congress's intent that Section 1988 "provide many victims of civil

11 rights violations with effective access to the judicial process." See City ofRiverside v. Rivera,

12 477 U.S. 561, 576 (1986).

13

Through this settlement Plaintiffs are the prevailing party for purposes of recovering their

14 reasonable fees and costs. The parties entered into a settlement providing for payments to each

15 Plaintiff and for payment to Plaintiffs' counsel of an agreed amount for fees and costs under

16 Section 1988. Pursuant to the settlement agreement, payment ofthe negotiated fees and costs will

17 be made directly to Plaintiffs' counsel and will not be deducted from any individual Plaintiffs

18 settlement amount.

19

B. The Parties' Settlement Agreement Is Fair and Reasonable.

20

Settlements involving minors require the court to play an oversight role "to determine

21 whether the settlement serves the best interests of the minor." Robidoux v. Rosengren, 638 F.3d

22 1177, 1181 (9th Cir. 2011) (citations omitted). The court's inquiry, however, should not

23 "place[]. .. undue emphasis on the amount of attorney's fees provided for in a settlement ...."

24 !d. The Ninth Circuit has clarified that when reviewing a settlement agreement involving minor

25 plaintiffs, "[m]ost importantly, the district court should evaluate the fairness of each minor

26 plaintiffs net recovery without regard to the proportion of the total settlement value designated

27

28

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1 for adult co-plaintiffs or plaintiffs' counsel-whose interests the district court has no special duty 2 to safeguard." Id. at 1182 (citing Dacanay v. Mendoza, 573 F.2d 1075, 1078 (9th Cir. 1978)).7

3

In Robidoux, the Ninth Circuit reversed where the court below looked to state law in

4 reviewing the minors' settlement. 638 F.3d at 1182. The district court had rejected the proposed

5 settlement because it allowed for 56 percent of the total settlement to go toward attorney's fees

6 and the practice in state court was to award attorneys a maximum of25 percent of the settlement.

7 !d. at 1179-80. In reversing, the Ninth Circuit held that "[s]o long as the net recovery to each

8 minor plaintiff is fair and reasonable in light of their claims and average recovery in similar cases,

9 the district court should approve the settlement as proposed by the parties." !d. at 1182.

10

Here, the net amounts· to the minor Plaintiffs are fair and reasonable. Each will receive

11 between $100,000 and $350,000, with no deduction for attorneys' fees or costs. Petition at 3, 4.

12 These awards match or exceed settlements that courts have approved in other litigation where

13 foster children sued Clark County Department of Family Services for harms suffered while in

14 County custody. See, e.g., Order on Petition for Compromise of Minors' Claims with Clark

15 County, 4, Fullmer v. Brown, No. 2:09-cv-01442-BES-PAL (D. Nev. Dec. 7, 2011) (approving

16 net awards of$20,000; $30,000; and $100,000 to minor plaintiffs); Order at 3, Johnson v.

17 Clayton, No. 2:08-cv-01810-RCJ-LRL (D. Nev. Dec. 28, 2010) (approving net awards of

18 $36,769.17 and $33,407.09 to the two minor plaintiffs); Order on Amended Petition to Approve

19 Compromise Settlement and Distribution at 4, Mix v. Jones-Johnson, No. 2:06-cv-411-RLH-LRL

20 (D. Nev. Aug. 19, 2009) (approving net awards of$11,500; $34,500; and two awards of$92,000

21 to the four minor plaintiffs).

22

Even if the Court were to look to the customary fee percentage taken from settlements of

23 minors in Nevada, the fee proposal here--less than 25 percent of the total settlement amount-is

24

25 26 27

f7sL2eu8AEdc9eXlh4trh1IacSola(uscD1egl3a.sh2.iAmt5hSr1sieez0ea.R,n(MEodeb..agDpir.de..,noMC6du,aaxa2lnr.c0ttoS1isnue4terpa)tz;tte.wvG.1laau7Cswe,isr2tircy0lale1aonvi2.ftm)Aa;MsvsD,oatnonoduedewmarvalh.eeerGM,othNiuglelmso,r.dtNi.CtissoCVt.hroi-oCc.1,ltd21Nci-1no1o-gu8.5r31a0t7s:p01,ph912la,-i02vec10dev41-ta02oUp1pUc.4Sla8.i.Sse8eDd.,sDi2Rsi0nitos.1vbt2L.oidLElUvoEXi.unSXIxgS.IiDSnist.

74250, at *5-6 (N.D. Cal. May 29, 2012).

28

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1 less than what courts have approved in other cases. Order at 2, Johnson v. Clayton (approving a 2 settlement where 33 percent of the total award is made as payment for attorneys' fees); Order at 3 6, Mix v. Jones-Johnson (approving settlement where 35 percent of the total award is designated

4 as attorneys' fees).

5

On November 21, 2014, Plaintiffs separately filed a petition for this Court's approval of

6 the minors' settlement. Plaintiffs outline below the reasonableness of the attorneys' fee

7 settlement in an effort to assist the Court's inquiry into whether the overall settlement agreement

8 is in the minors' best interests. For the reasons set forth below, there can be no question that the

9 fees and costs portion of the overall settlement is reasonable and should be approved along with

10 the petition to approve the minors' compromise.

11

c. The Fees and Costs Agreed to by the Parties Are Reasonable.

12

1.

Plaintiffs have agreed to settle for a significant reduction of their fee

claim.

13

14

The Supreme Court explained in Hensley v. Eckerhart, 461 U.S. 424,433 (1983), that the

15 "most useful starting point for determining the amount of a reasonable fee is the number of hours

16 reasonably expended on the litigation multiplied by a reasonable hourly rate." This figure, the

17 "lodestar," is the presumptive reasonable fee. !d. at 433. Once the lodestar is reached, the court

18 may adjust it upward or downward based on the factors that the Ninth Circuit outlined in Kerr v.

19 Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). Fed. Deposit Ins. Corp. v. Lake

20 Elsinore 521, LLC, No. 2:11-cv-00386-GMN-LRL, 2011 U.S. Dist. LEXIS 126866, **6-7

21 (D. Nev. Nov. 1, 2011) (explaining that "[c]alculation of reasonable attorney's fees is a two-step

22 process" consisting of first calculating the lodestar and second examining the award in light of the

23 Kerr factors); see also LR 54-16(b)(3).

24

Here, Plaintiffs have agreed to settle their claim for attorneys' fees and costs for a fraction

25 of the full amount to which their counsel are entitled based on the lodestar calculation. To

26 achieve the results in this case--obtaining payment of over $1.5 million to their clients-

27 Plaintiffs' counsel expended 17,480.20 hours of compensable time. Danis Dec!.~ 12; Welch

28 Dec!.~ 13; Wolfenzon Dec!.~ 5. This equates to a lodestar of$3,355,260.50 at reasonable hourly

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1 rates for the Las Vegas market. Danis Dec!.~ 12; Welch Dec!.~ 13; Wolfenzon Dec!.~ 5. The 2 fees and costs settlement also constitutes less than 25 percent of the total recovery in the case, far 3 below what courts in Nevada have held to be reasonable percentages when taken as a contingency

4 fee. 8 See § III(B), supra.

5

Complete time records and hourly rate information are attached as exhibits to the

6 declarations in support of this Petition.9 A summary of Plaintiffs' counsel's hourly rates, hours

7 worked, and total lodestar is as follows:

8

Law Firm

Rate Range (NV)

Hours

Lodestar

9 Morrison & Foerster LLP

$100-$250

12,273.00

$2,391,422.50

10 Nat'! Center tor Youth Law

$100-250

5,163.60

$956,861.00

11 Wolfenzon Rolle

$75 -185

43.60

$6,977.00

12 TOTAL

17,480.20

$3,355,260.50

.

13

For purposes of this case, Plaintiffs' counsel have calculated their lodestar using

14 reasonable hourly rates charged for similar work in the Clark County legal market. These rates

15 range from $200 per hour for a junior associate with 0-3 years of experience to $250 per hour for

16 a senior partner. Wolfenzon Dec!.~ 7; Declaration ofKarie Wilson, Dkt. 392, filed under seal in

17 support of Plaintiffs' Petition and Memorandum in Support ofNegotiated Attorneys' Fees and

18 Costs ("Wilson Dec!.") ~ 4. The Clark County rates that Plaintiffs use here are at or below rates

19 that courts in the District of Nevada have approved in other cases. See, e.g., Mendez v.

20 Reinforcing Ironworkers Union Local 416, No. 2:09-cv-02332-LRH-NJK, 2013 U.S. Dist.

21 22 23

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24 25 26 27

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28

4826-8585-0145.1 PET. & MEM. IN SUPP. OF PET. FOR APPROVAL OF NEGOTIATED ATTORNEYS' FEES & COSTS

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1 LEXIS 120893, **11-12 (D. Nev. Aug. 23, 2013) (awarding $415 per hour to an attorney with 2 16 years of experience); VanAsdale v. Int'l Game, Tech., No. 3:04-cv-00703-RAM, 2011 U.S. 3 Dist. LEXIS 56715, *8-11 (D. Nev. May 24, 2011) (awarding $450 per hour for an attorney with 4 40 years of experience, $350 per hour for a 19-year attorney, and $120 per hour for paralegal

5 work). 10

6

In arriving at their lodestar, Plaintiffs' counsel exercised billing judgment. Senior

7 attorneys have reviewed the time records from their respective firms to ensure that the services

8 for which time is submitted were reasonable and were actually and necessarily performed in the

9 prosecution of this case. Danis Dec!. '1]10; Welch Dec!. '1]11; Wolfenzon Dec!. '1]5. For example,

10 Morrison & Foerster has written off in excess of$600,000 of time in an exercise of billing

11 judgment. Danis Dec!. '1]9. The National Center for Youth Law similarly has not billed for time

12 spent by legal personnel who worked fewer than 30 hours on the case. Welch Dec!. '1]11.

13 Morrison & Foerster has waived its claim to travel time and the National Center for Youth Law

14 has charged only half-time for travel. Danis Dec!. '1]9; Welch Dec!. '1]11. Local counsel Alverson

15 Taylor Mortensen & Sanders is waiving its right to recover fees. Wilson Dec!. '1]3. The fees

16 presented in this Petition were reasonably and necessarily incurred in the course of this four-and-

17 a-half-year litigation, involving three rounds of motions to dismiss, significant additional motion

18 practice, and extensive fact and expert discovery. Danis Dec!. '1]6; Welch Dec!. '1]'1]8-11;

19 Wolfenzon Dec!. '1]'1]4, 5; see also§ II, supra.

20

2.

The Kerr factors weigh in favor of approving this fee settlement.

21

In Kerr, the Ninth Circuit enumerated twelve factors for courts to consider in determining

22 whether the lodestar should be adjusted in the course of awarding attorneys' fees. 526 F.2d at

23 70.11 In this case, each of the Kerr factors weighs in favor of an upward adjustment of attorneys'

24

25 26

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27

they would charge to fee-paying clients. 11 These factors replicate those articulated

in

Local

Rule

54-16(b )(3).

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I fees. Even so, rather than seeking an enhancement of their lodestar, Plaintiffs have taken a 2 significant reduction in the amount to which they are legally entitled, making approval of the

3 negotiated fee settlement all the more reasonable.

4

A. The Results Obtained and the Amount Involved: Plaintiffs in this case have settled

5 their claims for a total of$1.575 million, with each individual award ranging from $100,000 to

6 $350,000. Petition at 3. The settlement amounts for the minor Plaintiffs substantially exceed

7 settlements in other litigation by former foster children against Clark County Department of

8 Family Services. See § III(B), supra (citing cases in which settlement awards to minors ranged

9 from $20,000 to $1 00,000).

10

Plaintiffs could not have achieved this result without significant expenditure of attorney

11 time and resources, as demonstrated by Plaintiffs' counsel's lodestar, which totals $3,355,260.50

12 at rates typically charged in the Clark County legal market. § III(B)(l ), supra. Plaintiffs have 13 substantially achieved the goals of the lawsuit by winning significant monetary damages for the

14 harms they allegedly suffered while in foster care. 12

15

B. The Time and Labor Required: Plaintiffs' counsel have worked over 17,000 hours

16 spanning more than a four-year period to achieve the results in this case. Danis Dec!.~ 12; Welch

17 Dec!.~ 13; Wilson Dec!.~ 3; Wolfenzon Dec!.~~ 4, 5. Plaintiffs' counsel engaged in intensive

18 litigation activities, as demonstrated by the 400-plus docket entries to date. Further, the fee award

19 the parties have negotiated is intended to cover Plaintiffs' significant litigation costs and out-of-

20 pocket expenses, which total $306,439.06. § III(C)(3), infra. These fees and costs were incurred

21 in the course of such activities as taking and defending roughly 50 depositions; hiring four experts

22 to review case files, interview Plaintiffs, and write expert reports; and engaging in extensive

23 motion practice during discovery proceedings. !d.; § II, supra.

24 25 26 27

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parties have negotiated.

28

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1

C. The Novelty and Difficulty of the Questions Involved: The Supreme Court has

2 recognized that civil rights litigation brought under 42 U.S.C. Section 1983 constitutes "complex

3 Federal litigation" on par with antitrust litigation. Blum v. Stenson, 465 U.S. 886, 893 (1984). As

4 Plaintiffs brought suit under Section 1983, they have met the prong of demonstrating that their

5 lawsuit presents novel and difficult legal questions. See SAC~~ 198-227, 276-281.

6

D. The Skill Requisite To Perform the Legal Service Properly: This case required

7 specialized skill spanning a variety of practice areas, ranging from litigation of federal civil rights

8 suits, to expertise in child welfare systems, to expertise in personal injury and emotional trauma

9 resulting from alleged abuse in foster care. The significant discovery in which the parties

10 engaged required the ability to manage and examine tens of thousands of documents related to

11 County Defendants' child welfare agency. Danis Dec!.~ 6. Plaintiffs' counsel Morrison &

12 Foerster contributed its expertise in complex federal litigation and in discovery management.

13 Danis Dec!. ~ 2. The National Center for Youth Law additionally contributed its significant

14 specialized knowledge of foster care systems and its expertise representing low-income children.

15 Welch Dec!.~~ 2, 3, 9.

16

E. The Preclusion of Other Employment by the Attorney Due to Acceptance of the

17 Case: Generally speaking, counsel's decision to litigate a case necessarily precludes work on

18 other cases. See, e.g., Riker v. Gibbons, No. 3:08-cv-00115-LRH-VPC, 2010 U.S. Dist. LEXIS

19 120841, at *27 (D. Nev. Oct. 28, 2010). That is particularly so in this case, where Plaintiffs'

20 counsel expended over 17,000 hours over the course of more than four years-all time in which

21 Plaintiffs' counsel were limited in their ability to accept other employment as a result of time

22 devoted to this suit.

23

F. The Customary Fee: As addressed in section III(C)(1 ), supra, Plaintiffs' counsel

24 have calculated their lodestar based on the rates customary to lawyers of comparable skill and

25 experience for similarly complex litigation. At the rates customarily charged by attorneys

26 practicing in Clark County, Plaintiffs through their fee settlement are accepting an award that is

27 less than 15 percent of the amount which they could reasonably claim. Measured in a different

28 way, the fees compromise amounts to less than 25 percent of the total recovery at issue, and is

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1 thus far less than the 33 and 35 percent contingency arrangements that courts in the District of

2 Nevada have approved as appropriate in other cases involving minors. See§ III(C)(l), supra.

3

G. Whether the Fee Is Fixed or Contingent: Plaintiffs' counsel's ability to obtain fees

4 was contingent on obtaining a successful outcome in this case. Plaintiffs are former foster

5 children and are generally indigent, and Plaintiffs' counsel advanced all the expenses of this

6 litigation. Danis Dec!. 'If 8; Welch Dec!. '1['1[ 10, 18. Nevertheless, Plaintiffs are not asking for a

7 lodestar enhancement based on this factor and· have in fact agreed to accept much less than their

8 full fees in the settlement of this case.

9

H. The Time Limitations Imposed by the Client or the Circumstances: This case

10 imposed significant time limitations due to the pace of the litigation and the fact that most of

11 Plaintiffs' counsel had to travel from out of state in order to attend hearings or visit their clients.

12 Even after the parties agreed to the settlement in principle, the complexity of settling damages

13 claims involving large sums of money to Plaintiffs required an additional five months of research

14 and negotiations before the parties were prepared to sign the Settlement Agreement and Release.

15 Welch Dec!. 'If 16.

16

I.

The Experience, Reputation, and Ability of the Attorneys: The firms representing

17 Plaintiffs are well known and respected throughout the legal communities in which they practice.

18 See§ III(C)(2)(D), supra. The two lead partners on the case from Morrison & Foerster have

19 more than 60 years oflitigation experience combined. Danis Dec!. '1['1[ 3, 4, Ex. A. The two lead

20 senior attorneys on this case from the National Center for Youth Law have nearly 60 years of

21 litigation experience combined, almost exclusively in the arena of child welfare litigation. Welch

22 Dec!. '1['1[ 5, 7. They have successfully represented children in foster care in suits across the

23 country, including in Arkansas, Washington, and Utah. Id. Resumes for the primary attorneys on

24 this case for each firm are attached to the Declarations of Mark Danis (Ex. A) and Leecia Welch

25 (Ex. A).

26

J.

The Undesirability of the Case: For a number of reasons, this was an

27 "undesirable" case for Plaintiffs' counsel to undertake. The litigation was extremely time-

28 consuming, complex, and expensive. See §§ III(C)(2)(C), (D), supra; § III(C)(3), infra. The

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Case 2:10-cv-00528-RCJ-PAL Document 403 Filed 01/16/15 Page 18 of 21

1 transient nature of foster care placements presented additional logistical hurdles. Many ofthe 2 Plaintiffs moved multiple times, and all of the Plaintiffs exited foster care during the course of 3 this lawsuit. All of the minor Plaintiffs now live outside of Nevada, in three different states, and 4 Plaintiffs' counsel have had to navigate relevant laws in each of those states. Welch Dec!.~ 16.

5 Finally, Plaintiffs' counsel undertook this litigation without any payment from clients and with 6 the knowledge that they might not recover their attorneys' fees or out-of-pocket expenditures.

7 Danis Dec!.~ 14; Welch Dec!.~~ 10, 18.

8

K. The Nature and Length of the Professional Relationship with the Clients:

9 Plaintiffs' counsel have long relationships with the Plaintiffs and/or with their Next Friends that

I 0 date back to 2009 or earlier. Welch Dec!. ~ 8. Plaintiffs' counsel have traveled to four different

II states to visit the clients where they live. !d.~ 9. Plaintiffs' counsel have developed close

12 relationships with each client, which is of special importance where the clients have been in foster

13 care and have often experienced much instability in their relationships with the adults in their

14 lives. !d.~~ 8-9.

15

L. Awards in Similar Cases: The negotiated attorneys' fee amount here is reasonable

16 in light of fee awards in similar cases. In other cases involving multi-year litigation where

17 children sue public agencies for damages under Section 1983 based on alleged child abuse and

18 neglect, courts have approved fee awards that far exceed the negotiated amount proposed here.

19 See, e.g., Guerrero v. Brentwood Union Sch. Dist., No. 13-03873 LB, 2014 U.S. Dist. LEXIS

20 47167, at **13-14 (N.D. Cal. Apr. 4, 2014) (approving payment of at least $1.675 million in

21 attorneys' fees); Stipulation and Order Approving Payment of Counsel Fees and Costs and

22 Approving Final Distributions at~~ 7-9, K.J v. Div. ofYouth & Family Servs., No. I :04-cv-

23 03553-JBR (D.N.J. Mar. 15, 2006) (approving payment of$1.35 million in attorneys' fees,

24 $72,389.90 in costs, and $24,550.84 in interest).

25

26

27

28

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Case 2:10-cv-00528-RCJ-PAL Document 403 Filed 01/16/15 Page 19 of 21

1

3.

Touhte-offe-epsoectktleetmlietnigtaitsiorneaesxopneanbsleesitnhlaitghPtlaoifntthifefss'ucbosutannsetilahlacvoests and

2

expended.

3

Since 2009, Plaintiffs' counsel have incurred significant costs and out-of-pocket litigation

4 expenses in the prosecution of this case. Danis Dec!. '1]8; Welch Dec!. '1]10. "Costs" include

5 those costs allowable under 28 U.S.C. Section 1920, as itemized in the Bill of Costs attached as

6 exhibits to the Declarations of Mark Danis, Leecia Welch, and Bruno Wolfenzon. "Out-of-

7 pocket litigation expenses" include those expenses that are ordinarily charged to fee-paying

8 clients and thus are recoverable as part of the overall attorneys' fees award. Dang v. Cross,

9 422 F.3d 800, 814 (9th Cir. 2005); Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994); see also

10 Woods v. Carey, 722 F.3d 1177, 1179 n.1 (9th Cir. 2013) ("Expenses normally charged to fee-

11 paying clients include 'photocopying, paralegal expenses, and travel and telephone costs.'")

12 (quoting Thornberry v. Delta Air Lines Inc., 676 F.2d 1240, 1244 (9th Cir.1982)).

13

In total, Plaintiffs' counsel have incurred $124,064.84 in costs, including photocopying

14 and hearing and deposition transcript charges, which are recoverable as a part of Plaintiffs' fees

15 and costs award. Additionally, Plaintiffs' counsel have incurred $182,374.22 in other out-of-

16 pocket litigation expenses that were necessary and reasonable for representation, including travel 17 for depositions and court appearances, long-distance telephone costs, postage, and expert fees. 13

18 A summary of the expenditures is below.

19

Plaintiffs' counsel is not seeking separate reimbursement of these amounts, and out-of-

20 pocket litigation expenses and costs will be paid out of the negotiated fees and costs award.

21 Welch Dec!.; Petition at 4.

22

23

24

25 26 27

eM1M3xooPprrelrtaneiidsnnoisttnieufnfr&es&'sF:coSLoeuaernnxsdsitseee/rlrW,shtahreavasvtesleaaelwlxsccoorlesuatsdsde.evadarDcnfharconecmidossctDtohse;sectissr!e.acc'1nar]eld8ct;auerWxliaapteleiolnocnsvheetsDhrtefeiomcfr!oe.wl;l'1ohw]w1ioc1irh.ndgiAtpolrdvuooetce-resossfons-niopnotTgcsaekcyeoelktsotrs; and, for

reimbursement. Wilson Dec!. '1] 3.

28

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Case 2:10-cv-00528-RCJ-PAL Document 403 Filed 01/16/15 Page 20 of 21

1
Law Firm
2
Morrison & Foerster LLP
3 Nat'! Center for Youth Law
Wolfenzon Rolle
4 TOTAL
5

Costs $123,413.09
$346.00 $305.75 $124,064.84

Other Out-of-Pocket Litigation Expenses
$141,968.97 $40,217.18 $188.07
$182,374.22

TOTAL $265,382.06 $40,563.18
$493.82 $306,439.06

6 IV. 7

CONCLUSION Plaintiffs have achieved significant results in this case, having reached a settlement of

8 $1.575 million for the four children and three adult Plaintiffs. To reach a complete settlement of

9 the case, the parties agreed to a negotiated compromise of$500,000 in attorneys' fees and costs,

10 which will not come out of Plaintiffs' recovery. The amount that Plaintiffs' counsel will receive

11 under the settlement agreement is fair and reasonable, and constitutes less than 25 percent of the

12 total settlement. For the reasons set forth above, Plaintiffs respectfully request that the Court

13 approve the parties' negotiated compromise of attorneys' fees and costs, to be paid as described

14 in the Settlement Agreement and Release.

15 Dated: January 16,2015 16 17 18 19 20 21
22
23 24 25

By: /41 H~O~
Mark W. Danis Attorneys for Plaintif.IS
JackLonden Mark W. Danis Aurora V. Kaiser Dinah X. Ortiz Sarah N. Davis MORRISON & FOERSTER LLP
J. Bruce Alverson Karie N. Wilson ALVERSON TAYLOR MORTENSEN & SANDERS
William Grimm Leecia Welch Erin Liotta NATIONAL CENTER FOR YOUTH LAW

26 Ill

27 Ill
28

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Case 2:10-cv-00528-RCJ-PAL Document 403 Filed 01/16/15 Page 21 of 21
ORDER IT IS SO ORDERED this 22nd day of January, 2015. ____________________________ ROBERT C. JONES

 </s> 1 THE HON. ROBERT C. JONES
2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8 HENRY A., by his next friend M.J.; CHARLES

9

and CHARLOTTE B., by their next friend R.D.; LEO C.; VICTOR C.; MAIZY and JONATHAN D. Case No.: 2:10-CV-00528-RCJ-PAL

10

by their next friend S.W.; LINDA E.; CHRISTINE F., and OLIVIA G. by their next friend E.F., and

ORDER APPROVING COMPROMISE

11

MASON I., by his next friend M.J., individually and on behalf of others so situated,

SETTLEMENT AND DISTRIBUTION

12

Plaintiffs,

13

vs.

14

MICHAEL WILLDEN, Director of the Nevada Department of Health and Human Services; DIANE

15

COMEAUX, former Administrator of Nevada Division of Child and Family Services; AMBER

16

HOWELL, Administrator of Nevada Division of Child and Family Services; VIRGINIA

17

VALENTINE, former Clark County Manager; DON BURNETTE, Clark County Manager;

18

CLARK COUNTY; TOM MORTON, former Director of Clark County Department of Family

19

Services; LISA RUIZ-LEE, Director of Clark County Department of Family Services; SYLVIA

20

CLARK, Senior Family Services Specialist; YVETTE CHEVALIER, Caregiver Services

21

Manager; TERESA CRAGON, Case Manager; DARREL FORD, Licensing Investigator; DEBBIE

22

MALLWITZ, Family Services Specialist II; PATRICIA MARTIN, Family Services Specialist;

23

THOR MARTINEZ, Family Services Specialist I; PHILOMENA OSEMWENGIE, Senior Family

24

Services Specialist; STACEY SCOTT, Family Services Specialist I; SONYA WEATHERS,

25 Family Services Specialist II; and DOES XI-XX,

Defendants.

26

27

1

28

1

This matter having come before the Court on Plaintiffs’ Petition to Approve Compromise

2 Settlement and Distribution (“plaintiffs’ Petition”), and having been duly considered, it is hereby

3 ORDERED THAT:

4

1. Plaintiffs’ Petition to Approve Compromise Settlement and Distribution is

5 GRANTED.

6

JG

7

2. CLARK COUNTY Defendants shall pay THREE HUNDRED TWENTY-FIVE

8 THOUSAND DOLLARS ($325,000.00) to settle JG’s claims.

9

3. The majority of the proceeds for JG’s settlement shall be used to purchase a tax-

10 free structured settlement annuity that will not begin to pay out until JG reaches 18 years of age.

11 CLARK COUNTY shall pay THREE HUNDRED AND FIVE THOUSAND DOLLARS

12 ($305,000.00) to Pacific Life and Annuity Services, Inc. to purchase this annuity from Pacific

13 Life Insurance Company. Pacific Life Insurance Company will make payments to JG pursuant to

14 the annuity schedule that is attached as Exhibit D to plaintiffs’ Petition. Attachment 1 sealed

15 annuity schedule filed contemporaneous to this order setting forth the terms and conditions of the 16 annuity for JG.1

17

4. TWENTY THOUSAND DOLLARS ($20,000.00) shall be placed into the

18 Attorney Client Account, to be held in trust for JG subject to N.R.S. 41.200 until further Order of

19 this Court or until JG turns 18, whichever occurs sooner.

20

5. Petitioner LM shall file with the Court proof of the deposit of the funds in the

21 Attorney Client Account, and the establishment of the above annuity, within 30 days of the receipt

22 of funds.

23 CD

24

6. CLARK COUNTY Defendants shall pay THREE HUNDRED FIFTY

25

26

1 Attachment 1 is attached as Exhibit E to the Petition to Approve Compromise Settlement

and Distribution. 27

2 28

1 THOUSAND DOLLARS ($350,000.00) to settle CD’s claims.

2

7. CLARK COUNTY Defendants shall pay THREE HUNDRED AND FIFTY

3 THOUSAND DOLLARS ($350,000.00) to the CD TRUST, with Dacotah Bank acting as

4 Administrative Trustee, pursuant to Exhibits G, H, and I of plaintiffs’ Petition.

5

8. Petitioner HS shall file with the Court proof that the settlement funds have been

6 placed into the trust within 30 days after receiving the funds.

7 DR

8

9. CLARK COUNTY Defendants shall pay ONE HUNDRED FIFTY THOUSAND

9 DOLLARS ($150,000.00) to settle DR’s claims.

10

10. Half of the proceeds from DR’s settlement shall be used to purchase a tax-free

11 structured settlement annuity that will not begin to pay out until DR reaches 18 years of age.

12 CLARK COUNTY shall pay SEVENTY-FIVE THOUSAND DOLLARS ($75,000.00) to Pacific

13 Life and Annuity Services, Inc. to purchase an annuity from Pacific Life Insurance Company.

14 Pacific Life Insurance Company will make payments to DR pursuant to the annuity schedule that

15 is attached as Exhibit M to plaintiffs’ Petition.

16

11. CLARK COUNTY shall pay SEVENTY-FIVE THOUSAND DOLLARS

17 ($75,000.00) to Barco Assignments Ltd. to purchase an annuity from Liberty Life Assurance

18 Company of Boston. Liberty Life Assurance Company of Boston will make payments to DR

19 pursuant to the annuity schedule that is attached as Exhibit N to plaintiffs’ Petition. Attachment 2

20 sealed annuity schedule filed contemporaneous to this order setting forth the terms and conditions 21 of the two annuities.2

22

12. Petitioners AR and DR shall file with the Court proof of the establishment of the

23 above annuities within 30 days of the receipt of funds.

24 SG

25

26

2 Attachment 2 is attached as Exhibit O to the Petition to Approve Compromise

Settlement and Distribution. 27

3 28

1

13. CLARK COUNTY Defendants shall pay ONE HUNDRED THOUSAND

2 DOLLARS ($100,000.00) to settle SG’s claims.

3

14. Under the Settlement Agreement and Release, the proceeds for SG’s settlement

4 will be used to purchase a tax-free structured settlement annuity that will not begin to pay out

5 until SG reaches 18 years of age. With the Court’s permission, CLARK COUNTY shall pay

6 ONE HUNDRED THOUSAND DOLLARS ($100,000.00) to Pacific Life and Annuity Services,

7 Inc. to purchase an annuity from Pacific Life Insurance Company. Pacific Life Insurance

8 Company will make payments to SG pursuant to the annuity schedule that is attached as Exhibit P

9 to plaintiffs’ Petition. Attachment 3 sealed annuity schedule filed contemporaneous to this order 10 setting forth the terms and conditions of the annuity.3

11

15. Petitioners AR and DR shall file with the Court proof of the establishment of the

12 above annuity within 30 days of the receipt of funds.

13

14

The Clerk of the Court shall file the attachment/exhibits “sealed annuity schedules” under

15 seal pursuant to the Court order dated October 5, 2010.

16

IT IS SO ORDERED.

17

DDaateteddtthhiiss 9__th__dadyayooffJ_a_n_u_a_r_y_,_2_0_1_5_.__, 2015.

18

_________________________________

19

ROBERT C. JONES

20

United States District Judge

21

22

23

24

25

26

3 Attachment 3 is attached as Exhibit Q to the Petition to Approve Compromise

Settlement and Distribution. 27

4 28

 </s> 1

2

3

4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

7 HENRY A., et al.,

)

)

8

Plaintiffs, )

)

9 vs.

)

)

10 DIRECTOR MICHAEL WILLDEN, et al.,

)

)

11

Defendants. )

__________________________________________)

12

Case No. 2:10-cv-00528-RCJ-PAL ORDER
(Mot for Protective Order - Dkt. #54)

13

The court conducted a hearing on September 16, 2010 to resolve the parties’ discovery and

14 scheduling disputes. Gregory Scholman, Jeffrey Rosenberg, William Grimm and Dorothy Fernandez

15 appeared on behalf of the Plaintiffs. Gloria Sturman, Margaret Foley and Linda Anderson appeared on

16 behalf of the Defendants. The court ruled from the bench, but indicated a written decision and order

17 would issue with respect to Clark County’s Motion for a Protective Order Seeking to Redact

18 Confidential Information and Documents Produced to Plaintiffs (Dkt. #54). The court has considered

19 the motion, Plaintiffs’ opposition (Dkt. #59), the Declaration of Jeffrey Rosenberg in support of

20 Plaintiffs’ opposition (Dkt. #61), Clark County’s reply (Dkt. #63), and the arguments of counsel at the

21 hearing.

22

BACKGROUND

23

The Complaint (Dkt. #1) in this case was filed April 13, 2010. It is an action brought by or on

24 behalf of thirteen children who are or have been in the legal custody of the State of Nevada and/or Clark

25 County, and placed in foster care. Plaintiffs seek monetary damages, declaratory and injunctive relief,

26 and have asserted class claims for declaratory and injunctive relief. Plaintiffs assert that Defendants’

27 child welfare system routinely fails in its legal obligations, duties, and responsibilities to foster children

28 placed in their care. Plaintiffs claim that Defendants’ policies, customs, and omissions, as detailed in

1 the complaint, fail to comply with federal and state laws, depart substantially from professional

2 judgment, standards, and/or practice, and reflect a deliberate indifference to the health and safety of the

3 children defendants are obligated to protect.

4

In the current motion, the Clark County Defendants seek a protective order to redact confidential

5 information in documents produced to Plaintiffs in discovery. The County seeks to redact from case

6 files and other documents produced in this case: dates of birth (date and month only); social security

7 numbers; foster parent names and contact information; FBI numbers; fingerprints; criminal history

8 database information; natural parents’ names; names and identifying information of non-plaintiff

9 children in foster homes; names and identifying information of persons making Child Protective

10 Services (“CPS”) reports; and medical information of Plaintiffs and non-plaintiff children in foster

11 homes.

12

The Clark County Defendants rely on a number of state statutory and administrative code

13 provisions governing the confidentiality of certain information in Department of Family Services

14 (“DFS”) case files to support their position redaction is required. Specifically, Defendants rely on the

15 provisions of NRS 127.200 and NAC 127.200, NRS 432B.290, 179A.110, and NRS 432B.513. The

16 Clark County Defendants argue that redaction is necessary to protect the privacy of medical information

17 and confidential child welfare information.

18

The Clark County Defendants are concerned whether Plaintiffs have standing to bring damages

19 claims on behalf of the named Plaintiff minor children under either federal or state law which

20 “heightens the need for redactions of confidential information”. The Clark County Defendants fear

21 that, if the Plaintiffs’ next of friends do not have standing to bring damages claims, the County

22 Defendants could be subjected to multiple suits asserting the same claims brought on behalf of the

23 natural parents of the minor children. The County Defendants anticipate raising this issue before the

24 district judge “in a substantive motion upon further research”.

25

The Plaintiffs oppose the Motion for Protective Order arguing that the County Defendants’

26 challenge to the representation of Plaintiffs by next of friends does not justify withholding relevant

27 information in discovery. The Plaintiffs also argue that the County Defendants cannot raise Nevada

28 State law and the County’s own internal policies to deny foster children discovery necessary to establish

2

1 violations of their civil rights. The Plaintiffs contend that the statutory provisions the County

2 Defendants rely upon do not support redaction.

3

The Plaintiffs argue that federal law does not support the County’s position that relevant

4 information may be withheld from discovery. The County is not seeking recognition of a new federal

5 privilege and allowing the County to redact relevant information would be inconsistent with public

6 policy to protect foster children. Finally, counsel for Plaintiffs argue that entry of a proposed Protective

7 Order governing confidentiality of documents produced in this case will adequately address any of the

8 County Defendants’ confidentiality concerns.

9

DISCUSSION

10

Fed. R.. Civ. P. 26(b) permits discovery into any matter, not privileged, that is relevant to any

11 party’s claim or defense. The court finds that the documents in dispute are relevant and discoverable

12 within the meaning of Rule 26(b). The Clark County Defendants resist discovery and seek to redact

13 information contained in the documents on the grounds that several state statutes protect them from

14 compelled disclosure.

15

Rule 501 of the Federal Rules of Evidence governs the determination of whether materials

16 sought in discovery in this federal case are privileged. It provides:

17

Except as otherwise required by the Constitution of the United States or provided by Act

of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority,

18

the privilege of a witness, person, government, State, or political subdivision thereof

shall be governed by the principles of the common law as they may be interpreted by the

19

courts of the United States in the light of reason and experience. However, in civil

actions and proceedings, with respect to an element of a claim or defense as to which

20

State law supplies the rule of decision, the privilege of a witness, person, government,

State, or political subdivision thereof shall be determined in accordance with State law.

21

22 Id.

23

Plaintiffs’ Complaint asserts both federal and state claims against the Defendants. The Plaintiffs

24 have asserted claims for violation of their constitutional rights under 42. U.S.C. § 1983, violation of

25 substantive due process under Article I, § 8(5) of the Nevada Constitution, negligence, violation of the

26 supremacy clause of the United States Constitution, and violation of Plaintiffs’ substantive due process

27 rights under the Nevada Constitution. Plaintiffs seek compensatory and punitive damages, penalties,

28 ///

3

1 costs, interest and attorneys fees allowed by 42 U.S.C. §§ 1983, 1988, a declaration that Defendants’

2 policies are unlawful, and injunctive relief.

3

In the Ninth Circuit, it is well settled that “in federal question cases with pendant state law

4 claims, the law of privilege is governed by the principles of the common law as they may be interpreted

5 by the courts of the United States in light of reason and experience.” Religious Technology Center v.

6 Wollersheim, 971 F.2d 364, 367 at n.10 (9th Cir. 1992) (refusing to apply California litigation privilege

7 in copyright action with pendant state law claims); Roberts v. Heim, 123 F.R.D. 614, 620-21 (reviewing

8 cases holding federal common law of privileges governs all privilege issues in federal question case

9 with pendant state law claims); see also Advisory Committee Notes to Rule 501 (stating that state law

10 applies only in diversity cases). “Where there are federal question claims and pendant state law claims

11 present, the federal law of privilege applies.” Agster v. Maricopa County, 422 F.3d 836, 839 (9th Cir.

12 2005). The Federal Rules of Civil Procedure, Fed R. Evid. 501 and federal privilege law clearly apply

13 to resolution of the parties’ discovery dispute.

14

In enacting Rule 501 in 1975, Congress authorized federal courts to define new evidentiary

15 privileges by interpreting “the principles of the common law . . . in light of reason and experience.”

16 Advisory Committee Notes to FRE 501. Rule 501 manifests a Congressional intent “not to freeze the

17 law of privilege” but to provide federal courts with the flexibility to develop rules of privilege on a

18 case-by-case basis. Trammel v. United States, 445 U.S. 40, 47 (1980). Rule 501 directed federal courts

19 to “continue the evolutionary development of testimonial privileges.” Id. Rule 501 “should be

20 understood as reflecting the view that the recognition of a privilege based on a confidential relationship

21 . . . should be determined on a case-by-case basis.” Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (citing

22 S.Rep. No. 93-1277 at 13 (1974) reprinted in U.S. Code Cong. & Admin. News 1974 at 7051, 7059).

23

Testimonial privileges are disfavored because they deprive litigants and the public of

24 “everyman’s evidence.” Trammel, 445 U.S. at 47. Testimonial privileges “are not lightly created or

25 expansively construed, for they are in derogation of the search for truth.” United States v. Nixon, 418

26 U.S. 683, 710 (1974). Federal courts should not create and apply a new privilege unless it “promotes

27 sufficiently important interests to outweigh the need for probative evidence.” Trammel, 445 U.S. at 51.

28 The Supreme Court has been especially reluctant to recognize a privilege in an area where it appears

4

1 that Congress has considered the relevant competing concerns but has not provided the privilege itself.”

2 University of Pa. v. EEOC, 493 U.S. 182, 189 (1990). This is because balancing conflicting interests is

3 a legislative function. Id.

4

The Supreme Court has recognized a federal common law privilege keeping grand jury

5 proceedings secret based on a rule of secrecy dating back to the 17th century which was imported into

6 federal common law. See Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 220 at n.9

7 (1979). It also recognized a well-established privilege for deliberative inter-agency documents in NLRB

8 v. Sears Roebuck & Co., 421 U.S. 132 (1975). More recently, the Supreme Court recognized a federal

9 common law psychotherapist privilege under Rule 501 in Jaffee v. Redmond, 518 U.S. 1 (1996).

10

However, the Supreme Court has refused to recognize new federal common law privileges more

11 often than not. In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court considered and flatly

12 rejected the creation of a reporter’s privilege to refuse to disclose the identity of sources in testimony

13 before a grand jury. The Supreme Court failed to recognize a legislative privilege barring the

14 introduction of evidence of the legislative acts of a legislator in United States v. Gillock, 445 U.S. 360

15 (1980). There is no privilege barring testimony on evidence of the editorial processes of the news

16 media. Herbert v. Lando, 441 U.S. 153 (1979). In University of Pa. v. EEOC, 493 U.S. 182 (1990), the

17 Supreme Court refused to recognize an academic peer review privilege. No physician-patient privilege

18 exists under federal common law. Whalen v. Roe, 429 U.S. 589 (1977). “The physician-patient

19 evidentiary privilege is unknown to the common law.” Id. at 602 at n. 28.

20

The Jaffee decision established a framework for courts to consider in determining whether to

21 recognize new federal common law privileges. In that case, a police officer shot and killed a man in the

22 line of duty and received extensive counseling from a licensed clinical social worker. The plaintiffs in a

23 wrongful death action sought discovery of the notes of the police officer’s counseling sessions. The

24 Supreme Court accepted certiorari to resolve a conflict among the Courts of Appeals concerning

25 whether the federal courts should recognize a psychotherapist’s privilege under Rule 501. Jaffee

26 directed federal courts determining whether to recognize a new federal common law privilege to first

27 consider whether recognition of a privilege “promotes sufficiently important interests to outweigh the

28 need for probative evidence.” Id. at 9-10. Federal courts should consider both the individual and

5

1 public interests involved in recognizing a new federal common law privilege. Id. at 10-12. The courts

2 should also consider whether there is a consensus among the States in determining whether “reason and

3 experience” supports recognition of a privilege. Id. at 13. The Supreme Court recognized a

4 psychotherapist-patient privilege, finding the privilege was “rooted in the imperative need for

5 confidence and trust,” served important private and public interests, and that all fifty states and the

6 District of Columbia had enacted some form of a psychotherapist’s privilege. Id.

7

The Federal Rules of Civil Procedure and federal law clearly apply to resolution of the parties’

8 discovery disputes. The County Defendants do not argue that the material they seek to redact from

9 documents produced in this case are privileged. Rather, the Clark County Defendants assert they are

10 duty bound to assert the confidentiality provisions of the Nevada Revised Statutes relied upon in their

11 Motion for Protective Order in resisting unredacted discovery in this case. A number of federal courts

12 have recognized that Rule 501 allows recognition and respect for state evidentiary codes and privileges

13 which express important state interests and policies. See e.g. Pagano v. Oroville Hosp, 145 F.R.D. 683

14 (E.D. Cal 1993); Kelly v. City of San Jose, 114 F.R.D. 653, 656 (N.D. Cal 1987); United States v. King,

15 73 F.R.D. 103, 105 (E.D.N.Y. 1976); Lora v. Board of Education, 74 F.R.D. 565 (E.D.N.Y. 1977);

16 Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981). These cases

17 recognize that federal courts should attempt to determine the state interests involved and the importance

18 of those interests in making privilege determinations in federal cases. However, federal courts should

19 recognize state privileges only “where this can be accomplished at no substantial cost to federal

20 substantive and procedural policy.” King, 73 F.R.D. at 105.

21

Defendants rely on the Third Circuit’s decision in Doe v. SEPTA, 72 F.3d 1133, and the Ninth

22 Circuit’s decision in Caesar v. Montanos, 542 F.2d 1064 (9th Cir. 1976) to support their position the

23 court should recognize the privacy rights of non-parties and permit the County Defendants to redact

24 documents produced in this case. In Doe, an employee brought a Section 1983 Civil Rights action

25 against his employer for violation of his rights to privacy. The plaintiff claimed that in monitoring its

26 prescription drug program, the defendants learned that he had contracted AIDS. The jury found in favor

27 of the Plaintiff and awarded monetary damages. On appeal, the Third Circuit examined “the depth and

28 breadth of an employee’s conditional right to privacy in his prescription drug records.” The court

6

1 weighed the competing interests involved and held that the plaintiff’s privacy interest in his prescription

2 records was not an absolute right, and must be weighed against the employer’s interest in obtaining

3 information. The court held that the employer’s need for access to employee prescription records

4 outweighed the employee’s interests and confidentiality. Finding the defendants did not violate

5 plaintiff’s right to privacy by accessing his prescription records to monitor his health insurance plan, the

6 court reversed and remanded the judgment in favor of the plaintiff awarding compensatory damages for

7 his emotional distress.

8

In Caesar, the Ninth Circuit upheld the trial court’s contempt adjudication against a licensed

9 psychiatrist who refused to obey an order directing him to answer questions relating to communications

10 with a former patient based on the “patient-litigation exception” to the psychotherapist-privileged in a

11 California evidence code provision. The state trial court found that the patient had waived the

12 psychotherapist-privilege when she placed her mental or emotional condition in issue by claiming

13 damages for mental and emotional distress. Her psychotherapist was held in contempt for refusing to

14 answer questions concerning his treatment of the patient. He exhausted his state court remedies, and

15 sought relief in federal court claiming his contempt adjudication violated the patient’s constitutional

16 right to privacy. The Ninth Circuit held that a patient does not have an absolute constitutional right of

17 privacy in psychotherapist-patient communications, and that by placing her mental and emotional

18 condition in issue, disclosures of her communications with her psychotherapist were required in

19 discovery. The court, therefore, affirmed the judgment of the district court denying the

20 psychotherapist’s petition to set aside his contempt adjudication and sentence.

21

The Clark County Defendants rely on a variety of Nevada statutory provisions to support their

22 claims the court should grant a protective order and permit them to redact information which state

23 statutes protect from unauthorized use. First, the County relies on the provisions of NRS 127.200(3).

24 The County Defendants claim that this statute requires DFS to maintain documentation regarding

25 children for whom the agency is responsible as confidential and protected from unauthorized use. NRS

26 127.200 governs the adoption of adults. NRS 127.200(3) provides: “Neither the consent of the natural

27 parent or parents of a person to be adopted, nor of the Division, nor of any other person is required.”

28 ///

7

1 This case involves the placement of minor children in foster care, and this statute clearly has no

2 application to the parties’ dispute.

3

The Clark County Defendants also rely on the provisions of NRS 432B.290 which governs the

4 release of data or information concerning reports and investigations. The County Defendants

5 acknowledge that this statute authorizes the release of data or information in reports and investigations

6 of child abuse to courts and grand juries and others including attorneys, parents or guardians, and

7 guardians ad litem for children. However, the County has a policy that mandates that materials

8 provided to attorneys for children must be redacted to limit disclosures regarding non-clients and non-

9 parties to litigation. The County Defendants also acknowledge that NRS 432B.290(e) authorizes the

10 disclosure of data or information concerning reports and investigations of child abuse or neglect to a

11 court for in camera inspection, unless the court determines that public disclosure of the information is

12 necessary for the determination of an issue before it.” Other provisions of the statute permit a court of

13 competent jurisdiction to authorize the disclosure of additional information to the public for good cause

14 shown.

15

The County relies of the provisions of NRS 179A.110. It provides, in pertinent part: “No person

16 who receives information relating to records of criminal history pursuant to this chapter or who receives

17 information pursuant to NRS 179A.180 to 179A.240, inclusive, may disseminate it without express

18 authority of law or in accordance with a court order.” It prohibits unauthorized disclosure of criminal

19 history information and is not an absolute bar. Finally, the County Defendants rely on the provisions of

20 NRS 432B.513. It governs reports or information required to be provided to a parent or guardian before

21 certain state court proceedings. The County Defendants emphasize that they do not seek to assert these

22 statutory provisions to withhold documents, only to redact them.

23

This court is mindful of the state’s interest in protecting the private information of foster

24 children, foster parents, natural parents, and others involved in the foster care system. However, each

25 of the statutory provisions the County Defendants rely upon prohibit wholesale disclosures of

26 confidential information to the general public. The Plaintiffs concede that the information the County

27 Defendants seek to redact should be treated confidentially, and the parties have entered into a stipulated

28 protective order governing confidentiality which the court has approved. Each of the statutes the

8

1 County Defendants rely upon contain exceptions which allow disclosure of information and data to

2 wide categories of persons and entities for specified purposes, for compliance with applicable law, and

3 when ordered by a court of competent jurisdiction.

4

The Plaintiffs in this case seek to vindicate the constitutional and statutory rights of minor

5 children in the Defendants’ foster care system. The court finds that none of the statutory provisions the

6 Clark County Defendants rely upon prohibit disclosure, in this federal case, of case file materials,

7 documents, and records which are relevant and discoverable within the meaning of Federal Rule of

8 Civil Procedure 26(b)(1). The case files and other records sought in discovery in this case are essential

9 to a determination of the merits of Plaintiffs’ claims and the Defendants’ defenses. The files contain

10 critical information concerning children placed in Defendants’ foster care and will either support or

11 refute Plaintiff’s claims that Defendants’ child welfare system fails in its legal obligations, duties, and

12 responsibilities to foster children placed in their care. Federal common law does not recognize an

13 absolute right to privacy, and the extensive redactions the County Defendants seek are inconsistent with

14 the broad discovery authorized by the Federal Rules of Civil Procedure. Accordingly, the court finds

15 that the County Defendants have not met their burden of establishing that a protective order should

16 issue to permit the extensive redactions they seek in documents produced in discovery. The court’s

17 protective order governing confidentiality (Dkt. #72) applies to all of the files or documents of any child

18 who has been or is in DFS custody, and prohibits use of this confidential information for any purpose

19 other than the prosecution, defense or settlement of this action. The protective order is detailed and

20 comprehensive and is sufficient to protect the privacy interests at stake.

21

For all of the foregoing reasons,

22

IT IS ORDERED The Clark County Defendants’ Motion for Protective Order (Dkt. #54) is

23 DENIED.

24

Dated this 20th day of October, 2010.

25

26

______________________________________

Peggy A. Leen

27

United States Magistrate Judge

28

9

 </s> Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 1 of 68
United States District Court District of Nevada (Las Vegas) CIVIL DOCKET FOR CASE #: 2:10−cv−00528−RCJ−PAL

CLOSED

Henry A. et al v. Willden et al Assigned to: Chief Judge Robert C. Jones Referred to: Magistrate Judge Peggy A. Leen Case in other court: 9th Circuit Court of Appeal, 10−17680 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/13/2010 Date Terminated: 11/16/2015 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Henry A.

represented by Dinah Ximena Ortiz Morrison &Foerster 755 Page Mill Road Palo Alto, CA 94304 650−813−5664 Fax: 650−464−0792 Email: dortiz@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jack W. Londen Morrison &Foerster 425 Market Street San Francisco, CA 94105 415−268−7415 Fax: 415−268−7522 Email: JLonden@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch National Center for Youth Law 405 14th Street, 15th Floor Oakland, CA 94612 510−835−8098 Fax: 510−835−8099 Email: lwelch@youthlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Nicole Davis Morrison &Foerster 425 Market Street San Francisco, CA 94105 415−268−7000 Fax: 415−268−7522 Email: sarahdavis@mofo.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

William Grimm 405 14th Street Oakland, CA 94612 510−835−8098 Email: bgrimm@youthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aurora V. Kaiser

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 2 of 68
Morrison &Foerster 755 Page Mill Road Palo Alto, CA 94304 650−813−5600 Fax: 650−494−0792 Email: akaiser@mofo.com TERMINATED: 04/01/2015 PRO HAC VICE
Bruno Wolfenzon Wolfenzon Schulman &Ryan 6725 Via Austi Parkway Suite 260 Las Vegas, NV 89119 702−836−3138 Fax: 702−836−3139 Email: bruno@wolfenzon.com TERMINATED: 03/19/2013
Bryn Martyna National Center for Youth law 405 14th St Oakland, CA 94612 (510) 835−8098 x3036 Email: bmartyna@youthlaw.org TERMINATED: 07/25/2012 PRO HAC VICE
Camille L. Roberts National Center For Youth Law 405 14th Street Oakland, CA 94612 (510) 835−8098 Email: croberts@youthlaw.org TERMINATED: 07/25/2012
Daniel J Reed Reed &Mansfield 6655 W. Sahara Ave., Suite B−200 Las Vegas, NV 89146 702−533−7748 Email: attorneydanielreed@gmail.com TERMINATED: 03/19/2013
Dorothy L. Fernandez Morrison &Foerster LLP 425 Market St. San Francisco, CA 94105 415−268−7000 Fax: 415−268−7522 Email: dfernandez@mofo.com TERMINATED: 09/12/2012
Erin Liotta National Center for Youth Law 405 14th Street Oakland, CA 94612 510−835−8098 Fax: 510−835−8099 Email: eliotta@youthlaw.org TERMINATED: 07/06/2015
Gregory M Schulman Thorndal, Armstrong, Delk, Balkenbush &Eisinger

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 3 of 68
1100 E. Bridger Las Vegas, NV 89101 (702) 366−0622 Fax: (702) 366−0327 Email: gms@thorndal.com TERMINATED: 07/25/2012
Harold J. McElhinny Morrison &Foerster LLP 425 Market Street Suite 3200 San Francisco, CA 94105−2482 415−268−7000 TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey K. Rosenberg Morrison &Foerster LLP 1290 Avenue of the Americas New York, NY 10104 212−468−8000 Fax: 212−468−7900 Email: JRosenberg@mofo.com TERMINATED: 06/21/2013
Karie N. Wilson Alverson Taylor Mortensen &Sanders 7401 W. Charleston Blvd. Las Vegas, NV 89117 702−384−7000 Fax: 702−385−7000 Email: efile@alversontaylor.com ATTORNEY TO BE NOTICED
Kimberly N. Van Voorhis Morrison &Foerster LLP 755 Page Mill Road Palo Alto, CA 94304−1018 650−813−5600 Fax: 650−494−0792 Email: kvanvoorhis@mofo.com TERMINATED: 01/07/2014
Lori A. Schechter Morrison &Foerster LLP 425 Market San Francisco, CA 94105 415−268−7000 Fax: 415−268−7522 Email: LSchechter@mofo.com TERMINATED: 07/25/2012 PRO HAC VICE
Mark Wilmot Danis Morrison &Foerster 425 Market Street 32nd Floor San Francisco, CA 94105 415−268−7000 x7675 Fax: 415−276−7464 Email: MDanis@mofo.com TERMINATED: 11/13/2015 PRO HAC VICE

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 4 of 68

Mary F. Hansbury Morrison &Foerster LLP 425 Market Street San Francisco, CA 94105 415−268−7000 Fax: 415−268−7522 Email: mhansbury@mofo.com TERMINATED: 07/25/2012 PRO HAC VICE

Plaintiff
Charles B. TERMINATED: 07/21/2015

represented by Dinah Ximena Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jack W. Londen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Nicole Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aurora V. Kaiser (See above for address) TERMINATED: 04/01/2015 PRO HAC VICE

Bruno Wolfenzon (See above for address) TERMINATED: 03/19/2013

Bryn Martyna . 405 14th St Oakland, CA 94612 (510) 835−8098 x3036 Email: bmartyna@youthlaw.org TERMINATED: 07/25/2012 PRO HAC VICE

Camille L. Roberts (See above for address) TERMINATED: 07/25/2012

Daniel J Reed (See above for address) TERMINATED: 03/19/2013

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 5 of 68

Dorothy L. Fernandez (See above for address) TERMINATED: 09/12/2012

Gregory M Schulman (See above for address) TERMINATED: 07/25/2012

Harold J. McElhinny (See above for address) TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffrey K. Rosenberg (See above for address) TERMINATED: 06/21/2013

Karie N. Wilson (See above for address) ATTORNEY TO BE NOTICED

Kimberly N. Van Voorhis (See above for address) TERMINATED: 01/07/2014

Lori A. Schechter (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Mark Wilmot Danis (See above for address) TERMINATED: 11/13/2015 PRO HAC VICE

Mary F. Hansbury (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Plaintiff
Charlotte B. TERMINATED: 07/21/2015

represented by Dinah Ximena Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jack W. Londen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Nicole Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 6 of 68
William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aurora V. Kaiser (See above for address) TERMINATED: 04/01/2015 PRO HAC VICE
Bruno Wolfenzon (See above for address) TERMINATED: 03/19/2013
Bryn Martyna (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Camille L. Roberts (See above for address) TERMINATED: 07/25/2012
Daniel J Reed (See above for address) TERMINATED: 03/19/2013
Dorothy L. Fernandez (See above for address) TERMINATED: 09/12/2012
Gregory M Schulman (See above for address) TERMINATED: 07/25/2012
Harold J. McElhinny (See above for address) TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey K. Rosenberg (See above for address) TERMINATED: 06/21/2013
Karie N. Wilson (See above for address) ATTORNEY TO BE NOTICED
Kimberly N. Van Voorhis (See above for address) TERMINATED: 01/07/2014
Lori A. Schechter (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Mark Wilmot Danis (See above for address) TERMINATED: 11/13/2015 PRO HAC VICE
Mary F. Hansbury (See above for address)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 7 of 68

TERMINATED: 07/25/2012 PRO HAC VICE

Plaintiff
Leo C. TERMINATED: 01/22/2015

represented by Dinah Ximena Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jack W. Londen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Nicole Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aurora V. Kaiser (See above for address) TERMINATED: 04/01/2015 PRO HAC VICE

Bruno Wolfenzon (See above for address) TERMINATED: 03/19/2013

Bryn Martyna (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Camille L. Roberts (See above for address) TERMINATED: 07/25/2012

Daniel J Reed (See above for address) TERMINATED: 03/19/2013

Dorothy L. Fernandez (See above for address) TERMINATED: 09/12/2012

Erin Liotta (See above for address) TERMINATED: 07/06/2015

Gregory M Schulman (See above for address) TERMINATED: 07/25/2012

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 8 of 68

Plaintiff
Victor C. TERMINATED: 01/22/2015

Harold J. McElhinny (See above for address) TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey K. Rosenberg (See above for address) TERMINATED: 06/21/2013
Karie N. Wilson (See above for address) ATTORNEY TO BE NOTICED
Kimberly N. Van Voorhis (See above for address) TERMINATED: 01/07/2014
Lori A. Schechter (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Mark Wilmot Danis (See above for address) TERMINATED: 11/13/2015 PRO HAC VICE
Mary F. Hansbury (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
represented by Dinah Ximena Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jack W. Londen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Nicole Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aurora V. Kaiser (See above for address)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 9 of 68
TERMINATED: 04/01/2015 PRO HAC VICE
Bruno Wolfenzon (See above for address) TERMINATED: 03/19/2013
Bryn Martyna (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Camille L. Roberts (See above for address) TERMINATED: 07/25/2012
Daniel J Reed (See above for address) TERMINATED: 03/19/2013
Dorothy L. Fernandez (See above for address) TERMINATED: 09/12/2012
Erin Liotta (See above for address) TERMINATED: 07/06/2015
Gregory M Schulman (See above for address) TERMINATED: 07/25/2012
Harold J. McElhinny (See above for address) TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey K. Rosenberg (See above for address) TERMINATED: 06/21/2013
Karie N. Wilson (See above for address) ATTORNEY TO BE NOTICED
Kimberly N. Van Voorhis (See above for address) TERMINATED: 01/07/2014
Lori A. Schechter (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Mark Wilmot Danis (See above for address) TERMINATED: 11/13/2015 PRO HAC VICE
Mary F. Hansbury (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 10 of 68

Plaintiff
Delia D. TERMINATED: 07/12/2013

represented by Dinah Ximena Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jack W. Londen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruno Wolfenzon (See above for address) TERMINATED: 03/19/2013
Bryn Martyna (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Camille L. Roberts (See above for address) TERMINATED: 07/25/2012
Daniel J Reed (See above for address) TERMINATED: 03/19/2013
Dorothy L. Fernandez (See above for address) TERMINATED: 09/12/2012
Erin Liotta (See above for address) TERMINATED: 07/06/2015
Gregory M Schulman (See above for address) TERMINATED: 07/25/2012
Harold J. McElhinny (See above for address) TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey K. Rosenberg (See above for address) TERMINATED: 06/21/2013
Karie N. Wilson (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 11 of 68

Plaintiff Maizy D.

Kimberly N. Van Voorhis (See above for address) TERMINATED: 01/07/2014
Lori A. Schechter (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Mark Wilmot Danis (See above for address) TERMINATED: 11/13/2015 PRO HAC VICE
Mary F. Hansbury (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Sarah Nicole Davis (See above for address) ATTORNEY TO BE NOTICED
represented by Dinah Ximena Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jack W. Londen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Nicole Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aurora V. Kaiser (See above for address) TERMINATED: 04/01/2015 PRO HAC VICE
Bruno Wolfenzon (See above for address) TERMINATED: 03/19/2013
Bryn Martyna (See above for address) TERMINATED: 07/25/2012

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 12 of 68

PRO HAC VICE

Camille L. Roberts (See above for address) TERMINATED: 07/25/2012

Daniel J Reed (See above for address) TERMINATED: 03/19/2013

Dorothy L. Fernandez (See above for address) TERMINATED: 09/12/2012

Erin Liotta (See above for address) TERMINATED: 07/06/2015

Gregory M Schulman (See above for address) TERMINATED: 07/25/2012

Harold J. McElhinny (See above for address) TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffrey K. Rosenberg (See above for address) TERMINATED: 06/21/2013

Karie N. Wilson (See above for address) ATTORNEY TO BE NOTICED

Kimberly N. Van Voorhis (See above for address) TERMINATED: 01/07/2014

Lori A. Schechter (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Mark Wilmot Danis (See above for address) TERMINATED: 11/13/2015 PRO HAC VICE

Mary F. Hansbury (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Plaintiff Jonathan D.

represented by Dinah Ximena Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jack W. Londen (See above for address) LEAD ATTORNEY

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 13 of 68
ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Nicole Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aurora V. Kaiser (See above for address) TERMINATED: 04/01/2015 PRO HAC VICE
Bruno Wolfenzon (See above for address) TERMINATED: 03/19/2013
Bryn Martyna (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Camille L. Roberts (See above for address) TERMINATED: 07/25/2012
Daniel J Reed (See above for address) TERMINATED: 03/19/2013
Dorothy L. Fernandez (See above for address) TERMINATED: 09/12/2012
Erin Liotta (See above for address) TERMINATED: 07/06/2015
Gregory M Schulman (See above for address) TERMINATED: 07/25/2012
Harold J. McElhinny (See above for address) TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey K. Rosenberg (See above for address) TERMINATED: 06/21/2013
Karie N. Wilson (See above for address)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 14 of 68

ATTORNEY TO BE NOTICED

Kimberly N. Van Voorhis (See above for address) TERMINATED: 01/07/2014

Lori A. Schechter (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Mark Wilmot Danis (See above for address) TERMINATED: 11/13/2015 PRO HAC VICE

Mary F. Hansbury (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Plaintiff
Linda E. TERMINATED: 01/22/2015

represented by Dinah Ximena Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jack W. Londen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Nicole Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aurora V. Kaiser (See above for address) TERMINATED: 04/01/2015 PRO HAC VICE

Bruno Wolfenzon (See above for address) TERMINATED: 03/19/2013

Bryn Martyna (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Camille L. Roberts

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 15 of 68

(See above for address) TERMINATED: 07/25/2012

Daniel J Reed (See above for address) TERMINATED: 03/19/2013

Dorothy L. Fernandez (See above for address) TERMINATED: 09/12/2012

Erin Liotta (See above for address) TERMINATED: 07/06/2015

Gregory M Schulman (See above for address) TERMINATED: 07/25/2012

Harold J. McElhinny (See above for address) TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffrey K. Rosenberg (See above for address) TERMINATED: 06/21/2013

Karie N. Wilson (See above for address) ATTORNEY TO BE NOTICED

Kimberly N. Van Voorhis (See above for address) TERMINATED: 01/07/2014

Lori A. Schechter (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Mark Wilmot Danis (See above for address) TERMINATED: 11/13/2015 PRO HAC VICE

Mary F. Hansbury (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Plaintiff Christine F.

represented by Dinah Ximena Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jack W. Londen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 16 of 68
(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Nicole Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aurora V. Kaiser (See above for address) TERMINATED: 04/01/2015 PRO HAC VICE
Bruno Wolfenzon (See above for address) TERMINATED: 03/19/2013
Bryn Martyna (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Camille L. Roberts (See above for address) TERMINATED: 07/25/2012
Daniel J Reed (See above for address) TERMINATED: 03/19/2013
Dorothy L. Fernandez (See above for address) TERMINATED: 09/12/2012
Erin Liotta (See above for address) TERMINATED: 07/06/2015
Gregory M Schulman (See above for address) TERMINATED: 07/25/2012
Harold J. McElhinny (See above for address) TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey K. Rosenberg (See above for address) TERMINATED: 06/21/2013
Karie N. Wilson (See above for address) ATTORNEY TO BE NOTICED
Kimberly N. Van Voorhis

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 17 of 68

(See above for address) TERMINATED: 01/07/2014

Lori A. Schechter (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Mark Wilmot Danis (See above for address) TERMINATED: 11/13/2015 PRO HAC VICE

Mary F. Hansbury (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Plaintiff Olivia G.

represented by Dinah Ximena Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jack W. Londen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Nicole Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aurora V. Kaiser (See above for address) TERMINATED: 04/01/2015 PRO HAC VICE

Bruno Wolfenzon (See above for address) TERMINATED: 03/19/2013

Bryn Martyna (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Camille L. Roberts (See above for address) TERMINATED: 07/25/2012

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 18 of 68

Daniel J Reed (See above for address) TERMINATED: 03/19/2013

Dorothy L. Fernandez (See above for address) TERMINATED: 09/12/2012

Erin Liotta (See above for address) TERMINATED: 07/06/2015

Gregory M Schulman (See above for address) TERMINATED: 07/25/2012

Harold J. McElhinny (See above for address) TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffrey K. Rosenberg (See above for address) TERMINATED: 06/21/2013

Karie N. Wilson (See above for address) ATTORNEY TO BE NOTICED

Kimberly N. Van Voorhis (See above for address) TERMINATED: 01/07/2014

Lori A. Schechter (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Mark Wilmot Danis (See above for address) TERMINATED: 11/13/2015 PRO HAC VICE

Mary F. Hansbury (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

Plaintiff
Sheldon H. TERMINATED: 07/20/2012

represented by Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruno Wolfenzon (See above for address) TERMINATED: 03/19/2013

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 19 of 68

Plaintiff
Mason I. TERMINATED: 07/21/2015

Bryn Martyna (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Camille L. Roberts (See above for address) TERMINATED: 07/25/2012
Daniel J Reed (See above for address) TERMINATED: 03/19/2013
Dorothy L. Fernandez (See above for address) TERMINATED: 09/12/2012
Gregory M Schulman (See above for address) TERMINATED: 07/25/2012
Harold J. McElhinny (See above for address) TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED
Karie N. Wilson (See above for address) ATTORNEY TO BE NOTICED
Lori A. Schechter (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Mark Wilmot Danis (See above for address) TERMINATED: 11/13/2015 PRO HAC VICE
Mary F. Hansbury (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Sarah Nicole Davis (See above for address) ATTORNEY TO BE NOTICED
represented by Dinah Ximena Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jack W. Londen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leecia Welch (See above for address)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 20 of 68
LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Nicole Davis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Grimm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aurora V. Kaiser (See above for address) TERMINATED: 04/01/2015 PRO HAC VICE
Bruno Wolfenzon (See above for address) TERMINATED: 03/19/2013
Bryn Martyna (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Camille L. Roberts (See above for address) TERMINATED: 07/25/2012
Daniel J Reed (See above for address) TERMINATED: 03/19/2013
Dorothy L. Fernandez (See above for address) TERMINATED: 09/12/2012
Erin Liotta (See above for address) TERMINATED: 07/06/2015
Gregory M Schulman (See above for address) TERMINATED: 07/25/2012
Harold J. McElhinny (See above for address) TERMINATED: 10/19/2010 PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey K. Rosenberg (See above for address) TERMINATED: 06/21/2013
Karie N. Wilson (See above for address) ATTORNEY TO BE NOTICED
Kimberly N. Van Voorhis (See above for address)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 21 of 68
TERMINATED: 01/07/2014
Lori A. Schechter (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE
Mark Wilmot Danis (See above for address) TERMINATED: 11/13/2015 PRO HAC VICE
Mary F. Hansbury (See above for address) TERMINATED: 07/25/2012 PRO HAC VICE

V. Defendant Director Michael Willden
Defendant Administrator Diane Comeaux TERMINATED: 07/12/2013 Defendant

represented by Kathleen A. Nelson Lewis Brisbois Bisgaard &Smith, LLP 2101 Fourth Ave, Ste 700 Seattle, WA 98121 206−436−2020 Fax: 206−436−2030 Email: Kathleen.Nelson@lewisbrisbois.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tim Jude Vanden Heuvel Lewis Brisbois Bisgaard &Smith LLP 701 B. Street, Suite 1900 San Diego, CA 92101 619−233−1006 Fax: 619−233−8627 Email: tim.vandenheuvel@lewisbrisbois.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Linda C. Anderson Nevada Attorney General's Office 555 E. Washington Ave Suite 3900 Las Vegas, NV 89101− Email: landerson@ag.nv.gov ATTORNEY TO BE NOTICED
Tim J. Heuvel Lewis Brisbois Bisgaard &Smith LLP 701 B. Street, Suite 1900 San Diego, CA 92101 619−233−1006 TERMINATED: 11/17/2015
represented by Linda C. Anderson (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 22 of 68

Manager Virginia Valentine TERMINATED: 10/18/2013

represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret G Foley Lewis Brisbois Bisgaard &Smith, LLP 6385 S. Rainbow Blvd., Ste. 600 Las Vegas, NV 89118 702−693−4366 Fax: 702−893−3789 Email: margaret.foley@lewisbrisbois.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cayla Witty Lewis Roca Rothgerber LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, NV 89169 702−949−8200 Fax: 702−949−8398 Email: cwitty@lrrlaw.com ATTORNEY TO BE NOTICED

Gloria J Sturman Buckley King LPA 10655 Park Run Drive Suite 190 Las Vegas, NV 89144 702−727−2930 Fax: 702−240−5900 Email: Sturman@buckleyking.com ATTORNEY TO BE NOTICED

Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

Defendant
Clark County, Nevada TERMINATED: 10/18/2013

represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cayla Witty (See above for address) ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

Defendant

represented by

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 23 of 68

Director Tom Morton TERMINATED: 10/18/2013

Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cayla Witty (See above for address) ATTORNEY TO BE NOTICED

Gloria J Sturman (See above for address) ATTORNEY TO BE NOTICED

Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

Defendant
Amber Howell Administrator of Nevada Division of Child and Family Services

represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Linda C. Anderson (See above for address) ATTORNEY TO BE NOTICED

Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

Defendant
Don Burnette Clark County Manager TERMINATED: 10/18/2013

represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cayla Witty (See above for address) ATTORNEY TO BE NOTICED

Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

Defendant

represented by

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 24 of 68

Lisa Ruiz−Lee Director of Clark County Department of Family Services TERMINATED: 10/18/2013

Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cayla Witty (See above for address) ATTORNEY TO BE NOTICED

Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

Defendant
Sylvia Clark TERMINATED: 10/18/2013

represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) ATTORNEY TO BE NOTICED

Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

Defendant
Yvette Chevalier TERMINATED: 10/18/2013

represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan J. Lefebvre Kolesar &Leatham 400 South Rampart Boulevard 3320 West Sahara Avenue, Suite 380 Suite 400 Las Vegas, NV 89145 702−362−7800 Fax: 702−362−9472 Email: alefebvre@klnevada.com ATTORNEY TO BE NOTICED

Jonathan D. Blum Kolesar &Leatham 400 S. Rampart Blvd., Suite 400 Las Vegas, NV 89145 702−362−7800 Fax: 702−362−9472 Email: jblum@klnevada.com ATTORNEY TO BE NOTICED

Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

Defendant

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Teresa Cragon TERMINATED: 10/18/2013

represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cayla Witty (See above for address) ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) ATTORNEY TO BE NOTICED

Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

Defendant
Darrel Ford TERMINATED: 10/18/2013

represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cayla Witty (See above for address) ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) ATTORNEY TO BE NOTICED

Defendant
Debbie Mallwitz TERMINATED: 10/18/2013

represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan J. Lefebvre (See above for address) ATTORNEY TO BE NOTICED

Jonathan D. Blum (See above for address) ATTORNEY TO BE NOTICED

Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

Defendant
Patricia Martin TERMINATED: 10/18/2013

represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cayla Witty (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 26 of 68

Defendant Thor Martinez TERMINATED: 10/18/2013
Defendant Philomena Osemwengie TERMINATED: 10/18/2013
Defendant Stacey Scott TERMINATED: 10/18/2013
Defendant

Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015
represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cayla Witty (See above for address) ATTORNEY TO BE NOTICED
Margaret G Foley (See above for address) ATTORNEY TO BE NOTICED
Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015
represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret G Foley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cayla Witty (See above for address) ATTORNEY TO BE NOTICED
Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015
represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cayla Witty (See above for address) ATTORNEY TO BE NOTICED
Margaret G Foley (See above for address) ATTORNEY TO BE NOTICED
Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015
represented by

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 27 of 68

Sonya Weathers TERMINATED: 10/18/2013

Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cayla Witty (See above for address) ATTORNEY TO BE NOTICED

Margaret G Foley (See above for address) ATTORNEY TO BE NOTICED

Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

Defendant
National Deaf Academy, LLC Terminated as this party isn't listed as a defendant in 176 Amended Complaint TERMINATED: 11/08/2013

represented by Eric K Stryker Wilson Elser Moskowitz Edelman &Dicker LLP 300 S. 4th Street 11th Floor Las Vegas, NV 89101 702−727−1400 Fax: 702−727−1401 Email: eric.stryker@wilsonelser.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Clark County, Nevada

represented by Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Lisa Ruiz−Lee

represented by Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Tom Morton

represented by Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Don Burnette

represented by Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Virginia Valentine

represented by Tim Jude Vanden Heuvel (See above for address)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 28 of 68

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Teresa Cragon

represented by Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Darrel Ford

represented by Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Patricia Martin

represented by Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Thor Martinez

represented by Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Philomena Osemwengie

represented by Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Stacey Scott

represented by Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Sonya Weathers

represented by Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor
Randal Dock TERMINATED: 05/28/2013

represented by Randal Dock 4664 Little Wren Lane Las Vegas, NV 89115 702−453−8756 PRO SE

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ThirdParty Plaintiff Debbie Mallwitz

represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alan J. Lefebvre (See above for address) ATTORNEY TO BE NOTICED
Jonathan D. Blum (See above for address) ATTORNEY TO BE NOTICED
Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

V. ThirdParty Defendant Deborah Hill
ThirdParty Defendant Joseph Hill
ThirdParty Plaintiff Yvette Chevalier

represented by Kathleen A. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tim Jude Vanden Heuvel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alan J. Lefebvre (See above for address) ATTORNEY TO BE NOTICED
Jonathan D. Blum (See above for address) ATTORNEY TO BE NOTICED
Tim J. Heuvel (See above for address) TERMINATED: 11/17/2015

V. ThirdParty Defendant Deborah Hill

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ThirdParty Defendant Joseph Hill
ThirdParty Defendant National Deaf Academy, LLC TERMINATED: 05/07/2014

represented by Eric K Stryker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/13/2010
04/13/2010
04/14/2010
04/14/2010 04/14/2010
04/14/2010 04/14/2010
04/14/2010

# Docket Text
1 COMPLAINT against Clark County, Diane Comeaux, DOES I−XX, Tom Morton, Virginia Valentine, Michael Willden (Filing fee $ 350 receipt number 0978−1577649), filed by Olivia G., Maizy D., Charles B., Henry A., Mason I., Delia D., Charlotte B., Linda E., Sheldon H., Jonathan D., Leo C., Christine F., Victor C.. Certificate of Interested Parties due by 4/23/2010. Proof of service due by 8/11/2010. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Michael Willden, # 3 Summons Diane Comeaux, # 4 Summons Virginia Valentine, # 5 Summons Clark County, # 6 Summons Tom Morton)(Schechter, Lori) (Entered: 04/13/2010)
2 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Lori A. Schechter and DESIGNATION of Local Counsel Bruno Wolfenzon (Filing fee $ 175 receipt number 0978−1577651) filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Motion ripe 4/13/2010. (Attachments: # 1 Affidavit In Support of Petition for Pro Hac Vice Admission)(Schechter, Lori) (Entered: 04/14/2010)
3 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Jeffrey K. Rosenberg and DESIGNATION of Local Counsel Bruno Wolfenzon (Filing fee $ 175 receipt number 0978−1577652) filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Motion ripe 4/14/2010. (Attachments: # 1 Affidavit In Support of Petition for Pro Hac Vice Admission)(Schechter, Lori) (Entered: 04/14/2010)
4 CERTIFICATE of Interested Parties filed by Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. There are no known interested parties other than those participating in the case. (Schechter, Lori) (Entered: 04/14/2010)
5 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Mary F. Hansbury and DESIGNATION of Local Counsel Bruno Wolfenzon (Filing fee $ 175 receipt number 0978−1577655) filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Motion ripe 4/14/2010. (Attachments: # 1 Affidavit In Support of Petition for Pro Hac Vice Admission)(Hansbury, Mary) (Entered: 04/14/2010)
Case assigned to Judge Howard D. McKibben and Magistrate Judge Peggy A. Leen. (AXM) (Entered: 04/14/2010)
6 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 10−2. Counsel to comply with completion and electronic filing of the Designation of Local Counsel and Verified Petition. For your convenience, click on the following link to obtain the form from the Court's website − www.nvd.uscourts.gov/Forms.aspx. Counsel is also required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic service of pleadings. Please visit the Court's website www.nvd.uscourts.gov to register Attorney(s). Verified Petition due by 5/29/2010.(no image attached) (AXM) (Entered: 04/14/2010)
7 NOTICE PURSUANT TO LOCAL RULE IB 2−2: In accordance with 28 USC § 636(c) and FRCP 73, the parties in this action are provided with a link to the "AO

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04/14/2010 04/19/2010 04/19/2010
04/19/2010
04/19/2010
04/19/2010
04/26/2010
04/26/2010 04/26/2010 04/26/2010

85 Notice of Availability, Consent, and Order of Reference − Exercise of Jurisdiction by a U.S. Magistrate Judge" form on the Court's website − www.nvd.uscourts.gov. Consent forms should NOT be electronically filed. Upon consent of all parties, counsel are advised to manually file the form with the Clerk's Office. (no image attached) (AXM) (Entered: 04/14/2010)
8 Summons Issued as to Clark County, Diane Comeaux, Tom Morton, Virginia Valentine, Michael Willden. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(AXM) (Entered: 04/14/2010)
9 ORDER OF RECUSAL. This action is referred to Chief Judge Roger L. Hunt for reassignment. Signed by Judge Howard D. McKibben on 4/19/10. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 04/19/2010)
10 VERIFIED PETITION for Permission to Practice Pro Hac Vice by William Grimm and DESIGNATION of Local Counsel Wolfenzon Schulman &Rolle (Filing fee $ 175 receipt number 0978−1582876) filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Motion ripe 4/19/2010. (Attachments: # 1 Affidavit In Support of Petition for Pro Hac Vice Admission)(Hansbury, Mary) (Entered: 04/19/2010)
11 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Bryn Martyna and DESIGNATION of Local Counsel Wolfenzon Schulman &Rolle (Filing fee $ 175 receipt number 0978−1582930) filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Motion ripe 4/19/2010. (Attachments: # 1 Affidavit In Support of Petition for Pro Hac Vice Admission)(Hansbury, Mary) (Entered: 04/19/2010)
12 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Camille Roberts and DESIGNATION of Local Counsel Wolfenzon Schulman &Rolle (Filing fee $ 175 receipt number 0978−1582949) filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Motion ripe 4/19/2010. (Attachments: # 1 Affidavit In Support of Petition for Pro Hac Vice Admission)(Hansbury, Mary) (Entered: 04/19/2010)
13 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Leecia Welch and DESIGNATION of Local Counsel Wolfenzon Schulman &Rolle (Filing fee $ 175 receipt number 0978−1582974) filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Motion ripe 4/19/2010. (Attachments: # 1 Affidavit In Support of Petition for Pro Hac Vice Admission)(Hansbury, Mary) (Entered: 04/19/2010)
14 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Roger L. Hunt, on 4/26/2010. By Deputy Clerk: Michael Zadina. IT IS ORDERED that this case is reassigned to Judge Robert C. Jones for all further proceedings as district judge. Judge Howard D. McKibben no longer assigned to case. All further documents must bear the correct case number 2:10−cv−00528−RCJ−PAL. (no image attached) (Copies have been distributed pursuant to the NEF − MJZ) (Entered: 04/26/2010)
15 SUMMONS Returned Executed by Olivia G., Maizy D., Charles B., Henry A., Mason I., Delia D., Charlotte B., Linda E., Sheldon H., Jonathan D., Leo C., Christine F., Victor C.. Clark County served on 4/16/2010, answer due 5/7/2010. (Schulman, Gregory) (Entered: 04/26/2010)
16 SUMMONS Returned Executed by Olivia G., Maizy D., Charles B., Henry A., Mason I., Delia D., Charlotte B., Linda E., Sheldon H., Jonathan D., Leo C., Christine F., Victor C.. Tom Morton served on 4/16/2010, answer due 5/7/2010. (Schulman, Gregory) (Entered: 04/26/2010)
17 SUMMONS Returned Executed by Olivia G., Maizy D., Charles B., Henry A., Mason I., Delia D., Charlotte B., Linda E., Sheldon H., Jonathan D., Leo C., Christine F., Victor C.. Virginia Valentine served on 4/16/2010, answer due

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04/29/2010 04/29/2010 05/07/2010 05/10/2010 05/10/2010 05/10/2010 05/10/2010 05/24/2010
05/24/2010
05/24/2010
05/24/2010
05/24/2010

5/7/2010. (Schulman, Gregory) (Entered: 04/26/2010)
18 SUMMONS Returned Executed by Olivia G., Maizy D., Charles B., Henry A., Mason I., Delia D., Charlotte B., Linda E., Sheldon H., Jonathan D., Leo C., Christine F., Victor C.. Diane Comeaux served on 4/20/2010, answer due 5/11/2010. (Schulman, Gregory) (Entered: 04/29/2010)
19 SUMMONS Returned Executed by Olivia G., Maizy D., Charles B., Henry A., Mason I., Delia D., Charlotte B., Linda E., Sheldon H., Jonathan D., Leo C., Christine F., Victor C.. Michael Willden served on 4/20/2010, answer due 5/11/2010. (Schulman, Gregory) (Entered: 04/29/2010)
20 MOTION to Dismiss or in the Alternative Motion for a More Definite Statement by Defendants Clark County, Tom Morton, Virginia Valentine. Responses due by 5/24/2010. (Attachments: # 1 Exhibit A)(Sturman, Gloria) (Entered: 05/07/2010)
21 MOTION to Dismiss by Defendant Michael Willden. Responses due by 5/27/2010. (Anderson, Linda) (Entered: 05/10/2010)
22 STIPULATION Regarding Plaintiffs' Voluntary Dismissal of Causes of Action VI and VII by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Schulman, Gregory) (Entered: 05/10/2010)
23 STIPULATION And [Proposed] Order Extending Time For Plaintiffs To File A Response to Defendants' Motion to Dismiss by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Schulman, Gregory) (Entered: 05/10/2010)
24 NOTICE of Appearance by attorney Linda C. Anderson on behalf of Defendant Diane Comeaux. (Anderson, Linda) (Entered: 05/10/2010)
25 ORDER Granting 2 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Lori A. Schechter and approving Attorney Bruno Wolfenson as Designation of Local Counsel for Plaintiffs. Signed by Judge Robert C. Jones on 5/24/10. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − EDS) (Entered: 05/26/2010)
26 ORDER Granting 3 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Jeffrey K. Rosenberg and approving Attorney Bruno Wolfenson as Designation of Local Counsel for Plaintiffs. Signed by Judge Robert C. Jones on 5/24/10. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − EDS) (Entered: 05/26/2010)
27 ORDER Granting 5 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Mary F. Hansbury and approving Attorney Bruno Wolfenson as Designation of Local Counsel for Plaintiffs. Signed by Judge Robert C. Jones on 5/24/10. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − EDS) (Entered: 05/26/2010)
28 ORDER Granting 10 Verified Petition for Permission to Practice Pro Hac Vice for Attorney William Grimm and approving Attorney Bruno Wolfenzon as Designation of Local Counsel for Plaintiff. Signed by Judge Robert C. Jones on 5/24/10. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − EDS) (Entered: 05/26/2010)
29 ORDER Granting 11 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Bryn Martyna and approving Attorney Bruno Wolfenzon as Designation of Local Counsel for Plaintiffs. Signed by Judge Robert C. Jones on 5/24/10. Any Attorney not yet registered with the Court's CM/ECF System shall submit a

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05/24/2010
05/24/2010
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06/04/2010 06/04/2010 06/07/2010 06/08/2010 06/09/2010

Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − EDS) (Entered: 05/26/2010)
30 ORDER Granting 12 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Camille Louise Roberts and approving Attorney Bruno Wolfenzon as Designation of Local Counsel for Plaintiffs. Signed by Judge Robert C. Jones on 5/24/10. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − EDS) (Entered: 05/26/2010)
31 ORDER Granting 13 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Leecia Welch and approving Attorney Bruno Wolfenzon as Designation of Local Counsel for Plaintiffs. Signed by Judge Robert C. Jones on 5/24/10. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − EDS) (Entered: 05/26/2010)
32 ORDER ON STIPULATION Granting 23 Stipulation to Extend Time for Plaintiffs to File a Reponse to 20 and 21 Motions to Dismiss. Responses due 5/27/10. Signed by Judge Robert C. Jones on 5/24/10. (Copies have been distributed pursuant to the NEF − EDS) (Entered: 05/26/2010)
33 ORDER ON STIPULATION Granting 22 Stipulation Regarding Plaintiffs' Voluntary Dismissal of Causes of Action VI and VII. Signed by Judge Robert C. Jones on 5/24/10. (Copies have been distributed pursuant to the NEF − EDS) (Entered: 05/26/2010)
34 STIPULATION AND [PROPOSED] ORDER PERMITTING PLAINTIFFS TO FILE CONSOLIDATED RESPONSE TO DEFENDANTS SEPARATE MOTIONS TO DISMISS by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Hansbury, Mary) (Entered: 05/26/2010)
35 JOINDER to 20 21 Motion to Dismiss; filed by Defendants Clark County, Tom Morton, Virginia Valentine. (Sturman, Gloria) Docket entry relationship added on 6/1/2010. (MJZ) (Entered: 05/27/2010)
36 RESPONSE to 21 MOTION to Dismiss, 20 MOTION to Dismiss or in the Alternative Motion for a More Definite Statement, filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. PLAINTIFFS CONSOLIDATED OPPOSITION TO STATE AND CLARK COUNTY DEFENDANTS MOTIONS TO DISMISS, OR, IN THE ALTERNATIVE, MOTIONS FOR A MORE DEFINITE STATEMENT Replies due by 6/6/2010. (Schechter, Lori) (Entered: 05/27/2010)
37 PROPOSED Discovery Plan/Scheduling Order filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C. JOINT FRCP 26(f) REPORT AND PROPOSED DISCOVERY PLAN. (Hansbury, Mary) (Entered: 06/04/2010)
38 STIPULATION and Order Extend Time File Reply re Mtn Dismiss by Defendants Clark County, Tom Morton, Virginia Valentine. (Sturman, Gloria) (Entered: 06/04/2010)
39 REPLY to Response to 21 MOTION to Dismiss ; filed by Defendants Diane Comeaux, Michael Willden. (Anderson, Linda) (Entered: 06/07/2010)
40 NOTICE of Hearing: Scheduling Conference set for 6/22/2010 10:15 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen re: 37 Joint Report and Proposed Discovery Plan.(no image attached)(TKH) (Entered: 06/08/2010)
41 REPLY to Response to 20 MOTION to Dismiss or in the Alternative Motion for a More Definite Statement ; filed by Defendants Clark County, Tom Morton, Virginia Valentine. (Attachments: # 1 Exhibit A)(Sturman, Gloria) (Entered: 06/09/2010)

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42 MINUTE ORDER IN CHAMBERS of the Honorable Robert C. Jones, United States District Judge on 6/11/2010, by Carrie Lipparelli, Judicial Assistant. IT IS HEREBY ORDERED that ORAL ARGUMENT RE: 20 Clark County Defendants' Motion to Dismiss, or, in the Alternative, Motion for a More Definite Statement, 21 State Defendants' Motion to Dismiss, or in the Alternative, Motion for More Definite Statement is set for 08/13/2010 09:00 AM in LV Courtroom TBD, before Judge Robert C. Jones. IT IS SO ORDERED. Signed Judge Robert C. Jones. (Copies have been distributed pursuant to the NEF − CL) (Entered: 06/11/2010)
43 STIPULATION And [Proposed] Order For Continuance Of Oral Argument Re: Defendants Motion To Dismiss by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Schechter, Lori) (Entered: 06/16/2010)
44 MINUTES OF PROCEEDINGS − Scheduling Conference held on 6/22/2010 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Mary F. Hansbury, Esq., Gregory Schulman, Esq., William Grimm, Esq., Camille L. Roberts, Esq.; Def Counsel: Gabriel Lither, Esq., Gloria Sturman, Esq., Margaret Foley, Esq.; Court Reporter/FTR #: 10:16:23 − 10:55:16; Time of Hearing: 10:15am; Courtroom: 3B; The Court scheduled this matter after reviewing counsels' Status Report/Discovery Plan and Scheduling Order 37 . After hearing counsels's representations concerning the status of discovery as well as counsels' discovery requests concerning placing a limitation on document production and individual discovery, IT IS ORDERED: Parties are directed to meet and confer regarding electronically stored information, the form of Proposed Protective Order that is being sought, and the scope of discovery sought from the individual Defendants. Status Conference set for 7/20/2010 @ 10:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. Joint Status Report due by 7/16/2010, and shall be filed as directed in open court. The Court informs counsel that it is candidly inclined to treat the individually names Plaintiffs as individuals as both sides have indicated that there are Plaintiff specific issues to consider, and also admonishes counsel that they should not send duplicate sets of discovery asking for the same information. To the extent that it is truly individualized, individualized discovery will be provided. Otherwise counsel are expected to consolidate and ask for common sets of discovery rather than overlapping. (no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 06/23/2010)
45 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Dorothy L. Fernandez and DESIGNATION of Local Counsel Bruno Wolfenzon (Filing fee $ 175 receipt number 0978−1662785) by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Motion ripe 7/1/2010. (Attachments: # 1 Affidavit Affidavit In Support of Petition for Pro Hac Vice Admission)(Hansbury, Mary) (Entered: 07/01/2010)
46 TRANSCRIPT of Proceedings, 44 Scheduling Conference held on 6/22/2010, before Magistrate Judge Peggy A. Leen. Court Reporter/Transcriber: Exceptional Reporting Services, Inc., 361−949−2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 8/4/2010. Redacted Transcript Deadline set for 8/14/2010. Release of Transcript Restriction set for 10/12/2010. (ABB) (Entered: 07/14/2010)
47 Joint STATUS REPORT by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hansbury, Mary) (Entered: 07/16/2010)
48 MINUTES OF PROCEEDINGS − Status Conference held on 7/20/2010 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Mary F. Hansbury, Esq., Gregory M. Schulman, Esq., William Grimm, Esq.; Def Counsel: Margaret Foley, Esq., Gloria Sturman, Esq., Linda Anderson, Esq.; Court Reporter/FTR #: 10:04:46 − 10:26:54; Time of Hearing: 10:00am; Courtroom:

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3B; The Court advises counsel to follow up with U.S. District Judge Robert Jones's Chambers regarding their Proposed Stipulation 43 or, in the alternative, be prepared for oral arguments are they are currently scheduled on 8/13/2010 @ 9:00am. The Court next hears from counsel regarding their efforts with ESI. Counsel indicate that they agree to have their I.T. specialists communicate with one another directly, and Defense counsel agrees to complete their initial customer lists and keyword filter search lists. The Court next hears counsels' arguments concerning the form of a proposed protective order. IT IS ORDERED: Defendant will have until 7/31/2010 to file their Motion for Protective Order. Plaintiffs' counsel will have 15 days from the date of filing to file their opposition, and reply will be due 10 days later. If Defendants file a Motion to Stay, parties will adhere to the same deadlines and briefing schedule as set forth for Defendants' Motion for Protective Order. Plaintiffs are granted permission to file a joint response to both motions, IT IS FURTHER ORDERED: The parties will have their respective IT specialists meet and confer no later than 8/06/2010, IT IS FURTHER ORDERED: Defendant will produce their customer lists and keyword filter search lists no later than 8/06/2010, and Plaintiffs will have ten days from service to accept/reject/file any counter proposal, IT IS FURTHER ORDERED: Defense counsel are directed to exercise their best good faith efforts to produce the index of, or a status report concerning, the Clark K. materials by 8/06/2010 as directed in open court. The Court will set these matters for hearing after the oral argument schedule before U.S. District Judge Robert Jones is clarified.(no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 07/21/2010)
49 ORDER Granting 45 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Dorothy L. Fernandez approving Attorney Bruno Wolfenzon as Designation of Local Counsel for Plaintiffs. Signed by Judge Robert C. Jones on 7/21/10. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − EDS) (Entered: 07/22/2010)
50 ORDER ON STIPULATION Granting 43 Stipulation for Continuance of Oral Argument re 20 MOTION to Dismiss or in the Alternative Motion for a More Definite Statement. Motion Hearing reset for 9/16/2010 01:00 PM in LV Courtroom TBA before Judge Robert C. Jones. Signed by Judge Robert C. Jones on 7/21/10. (Copies have been distributed pursuant to the NEF − EDS) (Entered: 07/22/2010)
51 ORDER Status Conference Hearing and Various Deadlines. Joint Status Report due by 9/14/2010. Status Conference set for 9/16/2010 02:00 PM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. Signed by Magistrate Judge Peggy A. Leen on 7/21/10. (Copies have been distributed pursuant to the NEF − ASB) (Entered: 07/23/2010)
52 TRANSCRIPT of Proceedings, 48 Status Conference held on 7/20/2010, before Magistrate Judge Peggy A. Leen. Court Reporter/Transcriber: Exceptional Reporting Services, Inc., 361−949−2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 8/19/2010. Redacted Transcript Deadline set for 8/29/2010. Release of Transcript Restriction set for 10/27/2010. (DXS) (Entered: 07/29/2010)
53 MOTION to Stay DEFENDANTS VIRGINA VALENTINE AND TOM MORTONS MOTION FOR STAY OF DISCOVERY PENDING RESOLUTION OF Motion to Dismiss by Defendants Clark County, Tom Morton, Virginia Valentine. Motion ripe 7/30/2010. (Sturman, Gloria) (Entered: 07/30/2010)
54 MOTION for Protective Order SEEKING TO REDACT CONFIDENTIAL INFORMATION IN DOCUMENTS PRODUCED TO PLAINTIFFS by Defendants Clark County, Tom Morton, Virginia Valentine. Motion ripe 7/30/2010. (Sturman, Gloria) 55 Corrected image filed on 8/2/2010. (MJZ) (Entered: 07/30/2010)

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55 NOTICE of Corrected Image/Document re 54 MOTION for Protective Order SEEKING TO REDACT CONFIDENTIAL INFORMATION IN DOCUMENTS PRODUCED TO PLAINTIFFS by Defendants Clark County, Tom Morton, Virginia Valentine. (Service of corrected image is attached). (Sturman, Gloria) (Entered: 08/02/2010)
56 RESPONSE to 53 MOTION to Stay DEFENDANTS VIRGINA VALENTINE AND TOM MORTONS MOTION FOR STAY OF DISCOVERY PENDING RESOLUTION OF Motion to Dismiss, filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Replies due by 8/26/2010. (Fernandez, Dorothy) (Entered: 08/16/2010)
57 Submission of PROPOSED ORDER on 56 Response to Motion, ; filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Fernandez, Dorothy) (Entered: 08/16/2010)
58 DECLARATION of Dorothy L. Fernandez re 53 MOTION to Stay DEFENDANTS VIRGINA VALENTINE AND TOM MORTONS MOTION FOR STAY OF DISCOVERY PENDING RESOLUTION OF Motion to Dismiss ; filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Declaration of Dorothy L. Fernandez In Support of Plaintiffs' Opposition to Motion for Stay (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Fernandez, Dorothy) (Entered: 08/16/2010)
59 RESPONSE to 54 MOTION for Protective Order SEEKING TO REDACT CONFIDENTIAL INFORMATION IN DOCUMENTS PRODUCED TO PLAINTIFFS, filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Replies due by 8/26/2010. (Fernandez, Dorothy) (Entered: 08/16/2010)
60 Submission of PROPOSED ORDER filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Denying County Defendants' Motion for Protective Order Seeking to Redact Confidential Information in Documents Produced to Plaintiffs (Fernandez, Dorothy) (Entered: 08/16/2010)
61 DECLARATION of Jeffrey K. Rosenberg re 54 MOTION for Protective Order SEEKING TO REDACT CONFIDENTIAL INFORMATION IN DOCUMENTS PRODUCED TO PLAINTIFFS ; filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Jeffrey K. Rosenberg's Declaration In Support of Plaintiffs' Opposition to County's Motion for Protective Order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Fernandez, Dorothy) (Entered: 08/16/2010)
62 REPLY to Response to 53 MOTION to Stay DEFENDANTS VIRGINA VALENTINE AND TOM MORTONS MOTION FOR STAY OF DISCOVERY PENDING RESOLUTION OF Motion to Dismiss ; filed by Defendants Tom Morton, Virginia Valentine. (Attachments: # 1 Exhibit, # 2 Exhibit)(Sturman, Gloria) (Entered: 08/26/2010)
63 REPLY to Response to 54 MOTION for Protective Order SEEKING TO REDACT CONFIDENTIAL INFORMATION IN DOCUMENTS PRODUCED TO PLAINTIFFS ; filed by Defendants Clark County, Tom Morton, Virginia Valentine. (Sturman, Gloria) (Entered: 08/26/2010)
64 NOTICE of Hearing on 54 MOTION for Protective Order SEEKING TO REDACT CONFIDENTIAL INFORMATION IN DOCUMENTS PRODUCED TO PLAINTIFFS, 53 MOTION to Stay DEFENDANTS VIRGINA VALENTINE AND TOM MORTONS MOTION FOR STAY OF DISCOVERY PENDING RESOLUTION OF Motion to Dismiss : Motion Hearing set for 9/16/2010 02:00 PM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. These motions shall be heard in conjunction with the status conference currently scheduled for the

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same date and time. (no image attached)(TKH) (Entered: 09/07/2010)
65 STIPULATION and [Proposed] Order for Continuance of Oral Argument re: Defendants' Motion to Dismiss, Second Requested Extension by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Fernandez, Dorothy) (Entered: 09/08/2010)
66 Joint STATUS REPORT by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Fernandez, Dorothy) (Entered: 09/14/2010)
67 ORDER GRANTING 65 Stipulation to Continue Oral Argument. IT IS ORDERED that oral argument RE: 20 Motion to Dismiss or in the Alternative Motion for a More Definite Statement and 21 Motion to Dismiss currently scheduled for 9/16/10 1:00 p.m. is RESCHEDULED to Tuesday, 10/19/2010 08:30 AM in LV Courtroom TBD before Judge Robert C. Jones. Signed by Judge Robert C. Jones on 09/14/2010. (Copies have been distributed pursuant to the NEF − LE) (Entered: 09/14/2010)
68 NOTICE of Appearance by attorney Gloria J Sturman on behalf of Defendants Clark County, Tom Morton, Virginia Valentine. By Margaret G. Foley (Sturman, Gloria) (Entered: 09/15/2010)
69 MINUTES OF PROCEEDINGS − Status Conference held on 9/16/2010 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Gregory M. Scholman, Esq., Jeffrey K. Rosenberg, Esq., William Grimm, Esq., Dorothy Fernandez, Esq.; Def Counsel: Gloria Sturman, Esq., Margaret Foley, Esq., Linda Anderson, Esq.; Court Reporter/FTR #: 2:04:09 − 2:40:18; Time of Hearing: 2:00pm; Courtroom: 3B; The Court hears the arguments of Counsel concerning Defendants' Motions to Stay 53 and for Protective Order 54 . After hearing representations, IT IS ORDERED: Defendants' Motion to Stay... 53 is GRANTED; IT IS FURTHER ORDERED:Defendants' Motion for Protective Order... 54 is DENIED. Counsel are directed to meet and confer further regarding terms, as directed in open court, and to submit them at their earliest convenience. Counsel are informed that they will be closely scrutinized by the Court. A SEPARATE WRITTEN ORDER SHALL ISSUE. The Court next hears from Counsel concerning their progress regarding Electronically Stored Information (ESI) as well as discovery related issues regarding production of the Clark K. materials. IT IS FURTHER ORDERED:Status Conference set for 10/19/2010 @ 10:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. (Copies have been distributed pursuant to the NEF − JAM) (Entered: 09/20/2010)
70 STIPULATION and [Proposed] Protective Order by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Fernandez, Dorothy) (Entered: 10/01/2010)
71 TRANSCRIPT of Proceedings, 69 Order on Motion to Stay, Order on Motion for Protective Order, Status Conference, held on Thursday, September 16, 2010, before Magistrate Judge Peggy A. Leen. Court Reporter/Transcriber: Exceptional Reporting Services, Inc., 361−949−2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 10/26/2010. Redacted Transcript Deadline set for 11/5/2010. Release of Transcript Restriction set for 1/3/2011. (SLR) (Entered: 10/05/2010)
72 ORDER GRANTING 70 Stipulated Protective Order. See Order for details. Signed by Magistrate Judge Peggy A. Leen on 10/5/10. (Copies have been distributed pursuant to the NEF − ECS) (Entered: 10/05/2010)
73 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Harold J. McElhinny and DESIGNATION of Local Counsel Bruno Wolfenzon (Filing fee $ 175 receipt number 0978−1762418) by Plaintiff Henry A.. Motion ripe 10/12/2010. (Attachments: # 1 Affidavit in Support of Petition for Pro Hac Vice

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Admission)(Rosenberg, Jeffrey) (Entered: 10/12/2010)
74 RESPONSE /Opposition to the Verified Petition for Permission to Practice on behalf of Harold J. McElhinny filed by Defendants Clark County, Tom Morton, Virginia Valentine. (Sturman, Gloria) (Entered: 10/15/2010)
75 REPLY to 74 Response − Other ; PLAINTIFFS RESPONSE TO OPPOSITION TO THE VERIFIED PETITION FOR PERMISSION TO PRACTICE ON BEHALF OF HAROLD J. MCELHINNY filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Attachments: # 1 Declaration Declaration of Dorothy L. Fernandez in Support of Plaintiffs' Response to Opposition to the Verified Petition for Permission to Practice on Behalf of Harold J. McElhinny)(Fernandez, Dorothy) (Entered: 10/17/2010)
76 NOTICE of Hearing Location: Motion Hearing set for 10/19/2010 08:30 AM in LV will be conducted in Courtroom 7D before Judge Robert C. Jones. (no image attached)(LE) (Entered: 10/18/2010)
77 STRICKEN per 78 Minute Order. (MJZ) ORDER granting 73 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Harold J. McElhinny for Plaintiffs and approving Designation of Local Counsel. Signed by Judge Robert C. Jones on 10/19/2010. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MJZ) (Entered: 10/19/2010)
78 MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 10/19/2010. By Deputy Clerk: Michael Zadina. IT IS HEREBY ORDERED that 73 Verified Petition for Permission to Practice Pro Hac Vice by Harold J. McElhinny is DENIED and 77 Order is STRICKEN.(no image attached) (Copies have been distributed pursuant to the NEF − MJZ) (Entered: 10/19/2010)
80 MINUTES OF PROCEEDINGS − Status Conference held on 10/19/2010 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Melissa Jaime; Pla Counsel: Gregory Schulman, Jeffrey Rosenberg, William Grimm, Dorothy Fernandez; Def Counsel: Margaret Foley, Wade Gochnour; Court Reporter/FTR #: 10:05 − 10:57 a.m.; Time of Hearing: 10:00 am; Courtroom: 3B;
The Court makes an inquiry of counsel, as to the influence, the rulings made on the dispositive motions will have on the current discovery deadlines. Discussions are held between the Court, Mr. Rosenberg and Ms. Foley regarding three issues in relation to the Courts inquiry, the production of documents from Clark K., and the Countys failure to produce unredacted case documents and list of electronic discovery search terms. The Court next hears from Counsel concerning their progress regarding Electronically Stored Information (ESI). At this time the Court is going to require counsel to met and confer immediately after this hearing to attempt to reach a resolution.
IT IS ORDERED: that a further status conference is set for 11/2/2010 @ 02:00 PM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. The parties may appear telephonically by dialing 702−868−4907, and entering code "123456" when prompted.
FURTHER ORDERED the parties are to file a status report by 12:00 p.m. (Noon) on 10/29/2010.
(no image attached) (Copies have been distributed pursuant to the NEF − MAJ) (Entered: 10/20/2010)
83 MINUTES OF PROCEEDINGS − Motion Hearing RE: 20 MOTION to Dismiss or in the Alternative Motion for a More Definite Statement, 21 MOTION to Dismiss, held on 10/19/2010 before Judge Robert C. Jones. Crtrm Administrator: Lesa Ettinger; Pla Counsel: Gregory Schulman, Jeffery Rosenberg, William Grimm, Dorothy Fernandez and Harold McElhinny on behalf of Lori Schechter; Def Counsel: Gloria Sturman, Margaret Foley and Linda Anderson; Court

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Reporter/FTR #: Margaret Griener; Time of Hearing: 8:38 − 9:43 AM; Courtroom: 7D; Preliminarily, the Court hears arguments of counsel with respect to 73 Verified Petition for Permission to Practice Pro Hac Vice by Harold J. McElhinny. IT IS ORDERED that 73 Verified Petition for Permission to Practice Pro Hac Vice by Harold J. McElhinny is DENIED. Mr. McElhinny's request to appear on behalf of Lori A. Schechter for purpose of this proceeding is granted.
Next, the Court hears arguments of counsel with regard to the motions at issue. Counsel shall supplement the record with copies of their briefs filed in the Ninth Circuit Court of Appeals, as directed by the Court. The Court takes this matter under submission. Written ruling of the Court will issue.
IT IS ORDERED that any similar lawsuits filed in this District asserting class allegations, shall be assigned to Judge Robert C. Jones. (no image attached) (Copies have been distributed pursuant to the NEF − LE) (Entered: 10/22/2010)
79 ORDER that the Clark County Defendants Motion for Protective Order 54 is DENIED. Signed by Magistrate Judge Peggy A. Leen on 10/20/10. (Copies have been distributed pursuant to the NEF − ECS) (Entered: 10/20/2010)
81 TRANSCRIPT of Proceedings, 80 Status Conference held on 10/19/2010, before Magistrate Judge Peggy A. Leen. Court Reporter/Transcriber: Exceptional Reporting Services, Inc., 361−949−2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 11/11/2010. Redacted Transcript Deadline set for 11/21/2010. Release of Transcript Restriction set for 1/19/2011. (ABB) (Entered: 10/21/2010)
82 SUPPLEMENT CLARK K. BRIEFS FILED IN NINTH CIRCUIT COURT OF APPEALS REQUESTED BY JUDGE JONES by Defendants Clark County, Tom Morton, Virginia Valentine. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Sturman, Gloria) (Entered: 10/21/2010)
84 TRANSCRIPT of Proceedings held on 10/19/2010 before Judge Robert C. Jones. Court Reporter/Transcriber: Margaret Griener, 775−329−9980. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website <a href=http://www.nvd.uscourts.gov target=_blank>www.nvd.uscourts.gov</a> before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 11/16/2010. Redacted Transcript Deadline set for 11/26/2010. Release of Transcript Restriction set for 1/24/2011. (MG) (Entered: 10/26/2010)
85 ORDER Granting 20 and 21 Motions to Dismiss. Signed by Judge Robert C. Jones on 10/26/10. (Copies have been distributed pursuant to the NEF − ASB) (Entered: 10/27/2010)
86 CLERK'S JUDGMENT in favor of Clark County, Diane Comeaux, Michael Willden, Tom Morton, and Virginia Valentine and against Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., and Victor C. Signed by Clerk of Court, Lance S. Wilson on 10/27/10. (Copies have been distributed pursuant to the NEF − ASB) (Entered: 10/27/2010)
87 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Peggy A. Leen, on 10/28/2010. Due to this case being CLOSED on October 26, 2010, the status hearing, currently scheduled for November 2, 2010 at 2:00 p.m. is VACATED. (no image attached) (Copies have been distributed pursuant to the NEF − TKH) (Entered: 10/28/2010)

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11/02/2011

88 BILL OF COSTS by Defendants Clark County, Tom Morton, Virginia Valentine. Tax or object to Bill of Costs by 11/29/2010. (Sturman, Gloria) (Entered: 11/11/2010)
89 NOTICE OF APPEAL by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. Filing fee $ 455, receipt number 0978−1805337. E−mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit. (Rosenberg, Jeffrey) (Entered: 11/24/2010)
90 OBJECTION to 88 Bill of Costs ; filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Rosenberg, Jeffrey) (Entered: 11/24/2010)
91 ERRATA to 90 Objection to Bill of Costs ; Corrected Proof of Service filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Rosenberg, Jeffrey) (Entered: 11/24/2010)
92 USCA Appeal Fees received $455 receipt number 0978−1805337 re 89 Notice of Appeal, filed by Delia D., Sheldon H., Maizy D., Olivia G., Linda E., Mason I., Christine F., Henry A., Jonathan D., Charles B., Leo C., Victor C., Charlotte B.. E−mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit. (JAG) (Entered: 11/29/2010)
93 Designation of Transcripts and Transcript Order forms and instructions for 89 Notice of Appeal,. The forms may also be obtained on the Court's website at www.nvd.uscourts.gov/Forms.aspx. (JAG) (Entered: 11/29/2010)
94 ORDER for Time Schedule as to 89 Notice of Appeal, filed by Delia D., Sheldon H., Maizy D., Olivia G., Linda E., Mason I., Christine F., Henry A., Jonathan D., Charles B., Leo C., Victor C., Charlotte B.. USCA Case Number 10−17680. (JAG) (Entered: 12/03/2010)
95 COSTS TAXED in the amount of $0.00 and included in the judgment re 88 Bill of Costs. (MJZ) (Entered: 12/16/2010)
96 TRANSCRIPT DESIGNATION by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C. re 89 Notice of Appeal, 83 Motion Hearing,,,,,, 84 Transcript,,. Designation of Transcripts to be Used in Record on Appeal (Fernandez, Dorothy) (Entered: 12/22/2010)
97 CERTIFICATE OF RECORD on 89 Notice of Appeal.

The record on appeal, consisting of the reporter's transcripts and the United States District Court clerk's record is ready for the purpose of the appeal.

This file exists in electronic format and is accessible via CM/ECF − PACER. The documents comprising the United States District Court clerk's record have been numbered in conformance with Rule 11(b) of the Federal Rules of Appellate Procedure. These document numbers are reflected on the United States District Court's docket sheet and should be used for reference purposes in the briefs.

Appeals in Habeas Corpus and 28 USC 2255 Motion to Vacate Sentence cases are treated as civil appeals in the Court of Appeals. Criminal appeals briefing schedules will be issued upon the filing of this document.

04/27/2012 05/04/2012

E−mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit. (no image attached) (ASB) (Entered: 11/02/2011)
98 ORDER of USCA, Ninth Circuit, as to 89 Notice of Appeal. Appellants unopposed request for judicial notice, filed May 4, 2011, is GRANTED. (ECS) (Entered: 04/30/2012)
99 MEMORANDUM/OPINION of USCA, Ninth Circuit, as to 89 Notice of Appeal. We REVERSE the dismissal of Counts One, Two, Three, Eight, and Eleven; AFFIRM the dismissal of Counts Nine and Ten; and REMAND for further

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proceedings. On remand, the district court should allow Plaintiffs leave to amend their substantive due process claims, and Plaintiffs can seek further leave to amend if they wish to add a claim under the IDEAs express cause of action. Plaintiffs shall recover their costs on appeal. REVERSED in part, AFFIRMED in part, and REMANDED. (ECS) (Entered: 05/04/2012)
100 MANDATE of USCA, Ninth Circuit, as to 99 USCA Memorandum re 89 Notice of Appeal. REVERSED in part, AFFIRMED in part, and REMANDED. (ECS) (Entered: 06/05/2012)
102 STIPULATION and [Proposed] Order Setting Schedule for Plaintiffs to File an Amended Complaint and for Defendants to File Responses to the Amended Complaint filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Fernandez, Dorothy) (Entered: 06/20/2012)
103 ORDER on Mandate as to 99 USCA Memorandum/Opinion and 100 USCA Mandate AFFIRMING in part, REVERSING in part, and REMANDING the judgment of the District Court re 89 Notice of Appeal, filed by Delia D., Sheldon H., Maizy D., Olivia G., Linda E., Mason I., Christine F., Henry A., Jonathan D., Charles B., Leo C., Victor C., Charlotte B.. Signed by Chief Judge Robert C. Jones on 6/20/12. (MMM) (Entered: 06/21/2012)
104 AMENDED COMPLAINT with Jury Demand against All Defendants, filed by Olivia G., Maizy D., Charles B., Henry A., Mason I., Delia D., Charlotte B., Linda E., Jonathan D., Leo C., Christine F., Victor C.. Adds and removes parties. Proof of service due by 11/17/2012. (Attachments: # 1 Certificate of Service) (Fernandez, Dorothy) (Entered: 07/20/2012)
105 NOTICE of Disassociation of Certain Counsel filed by Plaintiff Henry A. (Wolfenzon, Bruno) (Entered: 07/25/2012)
106 ORDER ON STIPULATION re 102 Stipulation for Plaintiffs to File an Amended Complaint and for Defendants to Answer/Respond. Don Burnette answer due 8/20/2012; Clark County answer due 8/20/2012; Diane Comeaux answer due 8/20/2012; Amber Howell answer due 8/20/2012; Tom Morton answer due 8/20/2012; Lisa Ruiz−Lee answer due 8/20/2012; Virginia Valentine answer due 8/20/2012; Michael Willden answer due 8/20/2012. Signed by Chief Judge Robert C. Jones on 8/3/12. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 08/03/2012)
107 MOTION to Dismiss Amended Complaint, or in the Alternative, for More Definite Statement filed by Defendant Michael Willden. Responses due by 9/6/2012. (Anderson, Linda) (Entered: 08/20/2012)
108 MOTION to Dismiss Amended Complaint filed by Defendant Clark County. Responses due by 9/7/2012. (Foley, Margaret) (Entered: 08/21/2012)
109 MOTION to Dismiss Amended Complaint by Defendant Don Burnette. Responses due by 9/7/2012. (Foley, Margaret) (Entered: 08/21/2012)
110 MOTION to Dismiss Amended Complaint by Defendant Tom Morton. Responses due by 9/7/2012. (Foley, Margaret) (Entered: 08/21/2012)
111 MOTION to Dismiss Anended Complaint by Defendant Lisa Ruiz−Lee. Responses due by 9/7/2012. (Foley, Margaret) (Entered: 08/21/2012)
112 MOTION to Dismiss Amended Complaint by Defendant Virginia Valentine. Responses due by 9/7/2012. (Foley, Margaret) (Entered: 08/21/2012)
113 CERTIFICATE OF SERVICE for 111 MOTION to Dismiss Amended Complaint, 108 MOTION to Dismiss Amended Complaint, 109 MOTION to Dismiss Amended Complaint, 112 MOTION to Dismiss Amended Complaint, 110 MOTION to Dismiss Amended Complaint by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. (Foley, Margaret) (Entered: 08/21/2012)

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114 JOINDER to 107 MOTION to Dismiss Amended Complaint, or in the Alternative, for More Definite Statement ; filed by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. (Foley, Margaret) (Entered: 08/27/2012)
115 NOTICE of Association of Counsel by Karie N. Wilson on behalf of Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Sheldon H., Victor C.. (Wilson, Karie) (Entered: 08/30/2012)
116 RESPONSE to 107 MOTION to Dismiss Amended Complaint, or in the Alternative, for More Definite Statement, filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Victor C.. Replies due by 9/16/2012. (Fernandez, Dorothy) (Entered: 09/06/2012)
117 RESPONSE to 108 MOTION to Dismiss Amended Complaint filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Victor C.. Replies due by 9/16/2012. (Fernandez, Dorothy) (Entered: 09/06/2012)
118 NOTICE OF WITHDRAWAL of Attorney Dorothy L. Fernandez filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., and Victor C. (Rosenberg, Jeffrey) (Entered: 09/12/2012)
119 REPLY to Response to 107 MOTION to Dismiss Amended Complaint, or in the Alternative, for More Definite Statement filed by Defendants Diane Comeaux, Amber Howell, Michael Willden. (Anderson, Linda) . (Entered: 09/14/2012)
121 ORDER Granting 118 Motion to Withdraw as Attorney. Dorothy L. Fernandez is relieved as counsel of record for Plaintiffs. Signed by Magistrate Judge Peggy A. Leen on 9/13/12. (Copies have been distributed pursuant to the NEF − EDS) (Entered: 09/17/2012)
120 STIPULATION FOR EXTENSION OF TIME (First Request) to File Reply to Response to 108 MOTION to Dismiss Amended Complaint filed by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, and Virginia Valentine. (Foley, Margaret) (Entered: 09/17/2012)
122 ORDER that County Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) ( 109 , 110 , 111 , 112 ) filed with the Court on August 21, 2012 will be consolidated with County Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) 108 for purposes of ruling as the motions appear to be identical. FURTHER ORDERED that the 120 Stipulation for Extension of Time to Reply re 108 Motion to Dismiss is GRANTED. Replies due by 9/24/2012. Signed by Chief Judge Robert C. Jones on 9/18/12. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 09/18/2012)
123 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Erin Liotta and DESIGNATION of Local Counsel Karie N. Wilson (Filing fee $ 200 receipt number 0978−2532333) filed by Plaintiff Henry A.. Motion ripe 9/24/2012. (Wilson, Karie) (Entered: 09/24/2012)
124 REPLY to Response to 111 MOTION to Dismiss Amended Complaint, 108 MOTION to Dismiss Amended Complaint, 109 MOTION to Dismiss Amended Complaint, 112 MOTION to Dismiss Amended Complaint, 110 MOTION to Dismiss Amended Complaint filed by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. (Foley, Margaret) (Entered: 09/24/2012)
125 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Kimberly N. Van Voorhis and DESIGNATION of Local Counsel Karie N. Wilson (Filing fee $ 200 receipt number 0978−2584444) filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Linda E., Maizy D., Mason I., Olivia G., Victor C.. Motion ripe 10/31/2012. (Wilson, Karie) (Entered: 10/31/2012)

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126 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Jack W. Londen and DESIGNATION of Local Counsel Karie N. Wilson (Filing fee $ 200 receipt number 0978−2584464) filed by Plaintiffs Charles B., Charlotte B., Christine F., Delia D., Henry A., Jonathan D., Leo C., Linda E., Maizy D., Mason I., Olivia G., Victor C.. Motion ripe 10/31/2012. (Wilson, Karie) (Entered: 10/31/2012)
127 ORDER Granting 123 Verified Petition for Permission to Practice Pro Hac Vice by Attorney Erin Liotta and approving Designation of Local Counsel Karie N. Wilson. Signed by Chief Judge Robert C. Jones on 11/1/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 11/01/2012)
128 ORDER Granting 125 Verified Petition for Permission to Practice Pro Hac Vice by Attorney Kimberly N. VanVoorhis and approving Designation of Local Counsel Karie N. Wilson. Signed by Chief Judge Robert C. Jones on 11/1/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 11/02/2012)
129 ORDER Granting 126 Verified Petition for Permission to Practice Pro Hac Vice by Attorney Jack W. Londen and approving Designation of Local Counsel Karie N. Wilson. Signed by Chief Judge Robert C. Jones on 11/1/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 11/02/2012)
130 PROPOSED Discovery Plan/Scheduling Order filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 11/06/2012)
131 NOTICE of Hearing: A Scheduling Conference set is for 11/20/2012, at 08:30 AM, in LV Courtroom 3B before Magistrate Judge Peggy A. Leen, regarding 130 Supplemental Joint FRCP 26(f) Report and Proposed Discovery Plan.

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Out−of−state counsel may appear telephonically. Those appearing telephonically are instructed to call Jeff Miller, Courtroom Deputy, at (702) 464−5420 before 4:00 p.m., 11/19/2012 to indicate the name of the party participating and a telephone number where that party may be reached. The courtroom deputy will initiate the call for the hearing.(no image attached)(TKH) (Entered: 11/09/2012)
132 MOTION to Stay Discovery Pending Resolution of 107 and 108 Motions to Dismiss by Defendant Clark County. Motion ripe 11/19/2012. (Foley, Margaret) (Entered: 11/19/2012)
133 MOTION to Stay Discovery Pending Resolution of 107 and 108 Motions to Dismiss by Defendants Don Burnette, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. Motion ripe 11/19/2012. (Foley, Margaret) (Entered: 11/19/2012)
134 MINUTES OF PROCEEDINGS − Scheduling Conference held on 11/20/2012 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Karie Wilson, Esq., William Grimm, Esq., Kimberly Van Voorhis, Esq.; Def Counsel: Linda Anderson, Esq., Margaret Foley, Esq.; Court Reporter/FTR #: 8:33:38 − 8:48:19; Time of Hearing: 8:30am; Courtroom: 3B; The Court has reviewed Counsels' Proposed Discovery Plan and Scheduling Order 130 , and hears representations as to the County Defendants' production of unredacted case files to Plaintiff's Counsel. IT IS ORDERED: County Defendants will have 7 days from today's date to certify they have completed the previously ordered production of documents/files, and shall ensure production of the complete files of the two children who remain in care, to Plaintiff's Counsel. The Court encourages Counsel to meet and confer with each other in the event there is a discrepancy in the production, and informs Counsel that it would be available to conduct a Telephonic Dispute Resolution in Chambers if necessary. The Court notes the filing of Defendants' Motions to Stay Discovery 132 and 133 . Counsel reserve their right to hold oral argument on these Motions once the briefing period expires. The Court and Counsel further discuss the potential Discovery Plan/Schedule in this case. The Court is inclined to defer issuing a formal schedule until after the Motions to Stay

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132 and 133 are ruled on, and informs Counsel that that does not preclude them from starting written discovery and document exchanges. Motion Hearing set for 12/11/2012 @ 10:45 AM in LV Courtroom 3C before Magistrate Judge Peggy A. Leen. Counsel may appear telephonically at these proceedings and shall contact Courtroom Administrator Jeff Miller no later than 12/10 to make arrangements.(no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 11/21/2012)
135 RESPONSE to 132 MOTION to Stay Discovery Pending Resolution of 107 and 108 Motions to Dismiss and 133 MOTION to Stay Discovery Pending Resolution of 107 and 108 Motions to Dismiss, filed by Plaintiff Henry A.. Replies due by 12/13/2012. (Attachments: # 1 Proposed Order Proposed Order)(Wilson, Karie) (Entered: 12/03/2012)
136 REPLY to Response to 132 MOTION to Stay, 133 MOTION to Stay Discovery filed by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. (Attachments: # 1 Exhibit)(Foley, Margaret) (Entered: 12/10/2012)
137 MINUTES OF PROCEEDINGS − Motion Hearing held on 12/11/2012 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Karie Wilson, esq., William Grimm, esq., Daniel Reed, esq., Kimberly Van Voorhis, esq., Erin Liotta, esq.; Def Counsel: Margaret Foley, esq., Shannon Richards, esq., Rachel Solow, esq.; Court Reporter/FTR #: 10:45:31 − 11:22:12; Time of Hearing: 10:45am; Courtroom: 3B; The Court has reviewed the County Defendants' Motions to Stay 132 and 133 and the related briefing, and hears Counsels' respective positions on the merits. IT IS ORDERED: Defendants' Motions to Stay 132 and 133 are DENIED without prejudice to the Defendants filing any appropriate Motion for Protective Order as stated in open court. The Court makes findings for the record. (Copies have been distributed pursuant to the NEF − JAM) (Entered: 12/11/2012)
138 TRANSCRIPT of Proceedings, 134 Scheduling Conference,,,,,,,, held on 11−20−12, before Magistrate Judge Peggy A. Leen. Court Reporter/Transcriber: Kathy French, 530−913−9213. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website <a href=http://www.nvd.uscourts.gov target=_blank>www.nvd.uscourts.gov</a> before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 1/1/2013. Redacted Transcript Deadline set for 1/11/2013. Release of Transcript Restriction set for 3/11/2013. (KF) (Entered: 12/11/2012)
139 TRANSCRIPT of Proceedings, 137 Motion Hearing held on 12/11/2012, before Magistrate Judge Peggy A. Leen. Court Reporter/Transcriber: Exceptional Reporting Services, Inc., 361−949−2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 1/25/2013. Redacted Transcript Deadline set for 2/4/2013. Release of Transcript Restriction set for 4/4/2013. (ABB) (Entered: 01/04/2013)
140 SCHEDULING ORDER. Discovery due by 8/27/2013. Motions due by 9/26/2013. Proposed Joint Pretrial Order due by 10/25/2013. Signed by Magistrate Judge Peggy A. Leen on 1/10/13. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 01/11/2013)
141 ORDER that the Motions to Dismiss 107 and 108 are Granted in part and Denied in part. Signed by Chief Judge Robert C. Jones on 2/27/13. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 02/27/2013)
142 STIPULATION FOR EXTENSION OF TIME (First Request) Regarding Scheduling Order by Plaintiff Henry A.. (Wilson, Karie) (Entered: 03/11/2013)
143 MOTION to Withdraw as Attorney by Henry A. (Wolfenzon, Bruno) (Entered: 03/14/2013)

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NOTICE of Docket Correction to 143 NOTICE of Withdrawal. ERROR: Wrong event selected by attorney Bruno Wolfenzon. CORRECTION: Court modified entry as 143 MOTION to Withdraw as Attorney. (no image attached)(ASB) (Entered: 03/15/2013)
144 ORDER ON STIPULATION Granting 142 Stipulation to Extend Deadlines. Discovery due by 10/28/2013. Motions due by 11/25/2013. Proposed Joint Pretrial Order due by 12/27/2013. Signed by Magistrate Judge Peggy A. Leen on 3/15/13. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 03/18/2013)
145 ORDER Granting 143 Motion to Withdraw as Attorney by Daniel J Reed and Bruno Wolfenzon. Plaintiffs shall continue to be represented by their co−counsel of record at Alverson Taylor Mortensen &Sanders and the National Center for Youth Law. Signed by Magistrate Judge Peggy A. Leen on 3/19/13. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 03/19/2013)
146 MOTION to Amend/Correct 141 Order on Motion to Dismiss,,. or for Reconsideration by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. Responses due by 4/11/2013. (Foley, Margaret) (Entered: 03/25/2013)
147 MOTION to Intervene to File Amicus Curiae Brief in Support of the Henry A. Case by Intervenor Randal Dock. Responses due by 4/14/2013. (MMM) (Entered: 03/29/2013)
148 MOTION to Amend/Correct Complaint Motion for Leave to File Second Amended Complaint by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Delia D., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I.. Responses due by 4/22/2013. (Attachments: # 1 Proposed Order)(Van Voorhis, Kimberly) (Entered: 04/05/2013)
149 MEMORANDUM filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Delia D., Jonathan D., Maizy D., Christine F., Olivia G., Mason I. re 148 MOTION to Amend/Correct Complaint Motion for Leave to File Second Amended Complaint. (Van Voorhis, Kimberly) (Entered: 04/05/2013)
151 CERTIFICATE OF SERVICE for 149 Memorandum, by Plaintiff Henry A.. (Wilson, Karie) (Entered: 04/08/2013)
152 RESPONSE to 146 MOTION to Amend/Correct 141 Order on Motion to Dismiss,,. or for Reconsideration, filed by Plaintiff Henry A.. Replies due by 4/21/2013. (Wilson, Karie) (Entered: 04/11/2013)
153 RESPONSE to 147 MOTION to Intervene to File Amicus Curiae Brief in Support of the Henry A. Case, filed by Plaintiff Henry A.. Replies due by 4/25/2013. (Wilson, Karie) (Entered: 04/15/2013)
154 JOINDER to 153 Response to 147 MOTION to Intervene to File Amicus Curiae Brief in Support of the Henry A. Case filed by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Foley, Margaret) (Entered: 04/15/2013)
155 RESPONSE to 148 MOTION to Amend/Correct Complaint Motion for Leave to File Second Amended Complaint, filed by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. Replies due by 4/25/2013. (Attachments: # 1 Exhibit)(Foley, Margaret) (Entered: 04/15/2013)
156 REPLY to Response to 146 MOTION to Amend/Correct 141 Order on Motion to Dismiss,,. or for Reconsideration filed by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. (Foley, Margaret) (Entered: 04/22/2013)
157 REPLY to Response to 147 MOTION to Intervene to File Amicus Curiae Brief in Support of the Henry A. Case filed by Intervenor Randal Dock. (MMM) (Additional attachment(s) added on 5/28/2013: # 1 main document − REDACTED version) (MMM). (Entered: 04/25/2013)

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158 REPLY to Response to 148 MOTION to Amend/Correct Complaint Motion for Leave to File Second Amended Complaint filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 04/25/2013)
159 STIPULATION and (Proposed) Order by Plaintiff Henry A.. (Wilson, Karie) (Entered: 05/16/2013)
161 DECLARATION of William Grimm re: 160 MOTION to File Under Seal; filed by Plaintiff Henry A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wilson, Karie) (Entered: 05/21/2013)
162 ORDER that 147 Motion to Intervene is DENIED. FURTHER ORDERED that 160 Motion to Seal is GRANTED. Signed by Magistrate Judge Peggy A. Leen on 5/23/13. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 05/28/2013)
163 CERTIFICATE OF SERVICE by Plaintiff Henry A.. (Attachments: # 1 Exhibit A)(Wilson, Karie) (Entered: 06/18/2013)
164 CERTIFICATE OF SERVICE by Plaintiff Henry A.. (Attachments: # 1 Exhibit A)(Wilson, Karie) (Entered: 06/18/2013)
165 CERTIFICATE OF SERVICE by Plaintiff Henry A.. (Attachments: # 1 Exhibit A)(Wilson, Karie) (Entered: 06/18/2013)
166 ORDER granting in part and denying in part 146 Motion for Relief from Order. IT IS FURTHER ORDERED that 148 Motion for Leave to File Second Amended Complaint is GRANTED IN PART AND DENIED IN PART. See Order for Specifics. Signed by Chief Judge Robert C. Jones. (Copies have been distributed pursuant to the NEF − BLG) (Entered: 06/20/2013)
167 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Sarah N. Davis and DESIGNATION of Local Counsel Karie N. Wilson (Filing fee $ 200 receipt number 0978−2861773) filed by Plaintiff Henry A. . Motion ripe 6/20/2013. (Wilson, Karie) (Entered: 06/20/2013)
168 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Aurora V. Kaiser and DESIGNATION of Local Counsel Karie N. Wilson (Filing fee $ 200 receipt number 0978−2861789) filed by Plaintiff Henry A. . Motion ripe 6/20/2013. (Wilson, Karie) (Entered: 06/20/2013)
169 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Mark W. Danis and DESIGNATION of Local Counsel Karie N. Wilson (Filing fee $ 200 receipt number 0978−2861797) filed by Plaintiff Henry A. . Motion ripe 6/20/2013. (Wilson, Karie) (Entered: 06/20/2013)
170 NOTICE of Withdrawl of Jeffrey K. Rosenberg as Attorney by Henry A.. (Wilson, Karie) (Entered: 06/20/2013)
171 ORDER Granting 167 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Sarah N. Davis and approving Designation of Local Counsel Karie N. Wilson for Henry A., Charles B., Charlotte B., Leo C., Victor C., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I.. Signed by Chief Judge Robert C. Jones on 6/21/13. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 06/21/2013)
172 ORDER Granting 168 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Aurora V. Kaiser and approving Designation of Local Counsel Karie N. Wilson for Henry A., Charles B., Charlotte B., Leo C., Victor C., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I.. Signed by Chief Judge Robert C. Jones on 6/21/13. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 06/21/2013)

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06/21/2013
07/09/2013 07/11/2013 07/12/2013
07/15/2013 07/15/2013 07/16/2013 07/16/2013
07/17/2013 07/19/2013 07/22/2013 08/01/2013 08/08/2013 08/08/2013

173 ORDER Granting 169 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Mark W. Danis and approving Designation of Local Counsel Karie N. Wilson for Henry A., Charles B., Charlotte B., Leo C., Victor C., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I... Signed by Chief Judge Robert C. Jones on 6/21/13. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 06/21/2013)
174 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Dinah X. Ortiz and DESIGNATION of Local Counsel Karie N. Wilson (Filing fee $ 200 receipt number 0978−2880856) filed by Plaintiff Henry A. . Motion ripe 7/9/2013. (Wilson, Karie) (Entered: 07/09/2013)
175 STIPULATION FOR EXTENSION OF TIME (Second Request) of Scheduling Order by Plaintiff Henry A.. (Wilson, Karie) (Entered: 07/11/2013)
177 ORDER Granting 174 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Dinah A. Ortiz and approving Designation of Local Counsel Karie N. Wilson for Henry A., Charles B., Charlotte B., Leo C., Victor C., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I... Signed by Chief Judge Robert C. Jones on 7/12/13. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 07/15/2013)
178 CERTIFICATE OF SERVICE by Plaintiff Henry A.. (Wilson, Karie) (Entered: 07/15/2013)
179 ORDER ON STIPULATION Granting 175 Stipulation to Extend Deadlines. Discovery due by 1/31/2014. Motions due by 2/12/2014. Proposed Joint Pretrial Order due by 3/27/2013. Signed by Magistrate Judge Peggy A. Leen on 7/15/13. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 07/15/2013)
180 Emergency MOTION for Protective Order filed by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. Motion ripe 7/16/2013. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit)(Foley, Margaret) (Entered: 07/16/2013)
181 RESPONSE to 180 Emergency MOTION for Protective Order filed by Plaintiff Henry A.. Replies due by 7/26/2013. (Attachments: # 1 Affidavit Karie N. Wilson, # 2 Declaration, # 3 Exhibit Danis Declaration Exhibit 1, # 4 Exhibit Danis Declaration Exhibit 2, # 5 Exhibit Danis Declaration Exhibit 3, # 6 Exhibit Danis Declaration Exhibit 4, # 7 Exhibit Danis Declaration Exhibit 5)(Wilson, Karie) (Entered: 07/16/2013)
182 NOTICE of Withdrawal re 180 Emergency MOTION for Protective Order filed by Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentin. (Foley, Margaret) (Entered: 07/17/2013)
183 ANSWER to Complaint filed by Amber Howell, Michael Willden. Certificate of Interested Parties due by 7/29/2013. Discovery Plan/Scheduling Order due by 9/2/2013.(Anderson, Linda) (Entered: 07/19/2013)
184 CERTIFICATE of Interested Parties filed by Amber Howell, Michael Willden. There are no known interested parties other than those participating in the case . (Anderson, Linda) (Entered: 07/22/2013)
185 MOTION to Dismiss by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. Responses due by 8/18/2013. (Foley, Margaret) (Entered: 08/01/2013)
186 PROPOSED SUMMONS to be issued for Sylvia Clark, filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 08/08/2013)
187 PROPOSED SUMMONS to be issued for Darrel Ford, filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 08/08/2013)

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08/08/2013 08/08/2013 08/08/2013 08/08/2013 08/08/2013 08/08/2013 08/09/2013
08/13/2013
08/13/2013
08/13/2013
08/13/2013
08/13/2013

188 PROPOSED SUMMONS to be issued for Debbie Mallwitz, filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 08/08/2013)
189 PROPOSED SUMMONS to be issued for Patricia Martin, filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 08/08/2013)
190 PROPOSED SUMMONS to be issued for Thor Martinez, filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 08/08/2013)
191 PROPOSED SUMMONS to be issued for Sonya Weathers, filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 08/08/2013)
192 Summons Issued as to Sylvia Clark, Darrel Ford, Debbie Mallwitz, Patricia Martin, Thor Martinez, and Sonya Weathers. (ASB) (Entered: 08/08/2013)
193 STIPULATION FOR EXTENSION OF TIME (First Request) re 185 MOTION to Dismiss ; by Plaintiff Henry A.. (Wilson, Karie) (Entered: 08/08/2013)
194 JOINDER to 185 MOTION to Dismiss ; State Defendants' Joinder To County's Motion to Dismiss Second Amended Complaint, or in the Alternative, Motion For More Definite Statement filed by Defendants Amber Howell, Michael Willden. (Anderson, Linda) (Entered: 08/09/2013)
195 ERROR: Wrong form used. CORRECTION: Attorney advised to refile using correct summons form, PROPOSED SUMMONS to be issued for Teresa Cragon, filed by Plaintiff Henry A.. (Wilson, Karie) Modified on 8/13/2013 (RFJ). (Entered: 08/13/2013)
196 ERROR: Wrong form used. CORRECTION: Attorney advised to refile using correct summons form, PROPOSED SUMMONS to be issued for Stacey Scott, filed by Plaintiff Henry A.. (Wilson, Karie) Modified on 8/13/2013 (RFJ). (Entered: 08/13/2013)
197 ERROR: Wrong form used. CORRECTION: Attorney advised to refile using correct summons form, PROPOSED SUMMONS to be issued for Philomena Osemwengie, filed by Plaintiff Henry A.. (Wilson, Karie) Modified on 8/13/2013 (RFJ). (Entered: 08/13/2013)
198 ERROR: Wrong form used. CORRECTION: Attorney advised to refile using correct summons form, PROPOSED SUMMONS to be issued for Yvette Chevalier, filed by Plaintiff Henry A.. (Wilson, Karie) Modified on 8/13/2013 (RFJ). (Entered: 08/13/2013)
199 NOTICE: Attorney Action Required 195 , 196 , 197 and 198 to Proposed Summons to be issued: ERROR: Summons not issued due to wrong summons form used.

CORRECTION: Attorney Karie N. Wilson advised to download and complete, pursuant to FRCP 4, "AO 440 (Rev. 6/12) Summons in a Civil Action" form from the Court's Website at www.nvd.uscourts.gov and refile using the event "Proposed Summons to be issued"

08/13/2013 08/15/2013 08/15/2013 08/15/2013 08/15/2013

(no image attached)(RFJ) (Entered: 08/13/2013)
200 AMENDED STIPULATION FOR EXTENSION OF TIME re 185 MOTION to Dismiss; filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 08/13/2013)
201 PROPOSED SUMMONS to be issued filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 08/15/2013)
202 PROPOSED SUMMONS to be issued filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 08/15/2013)
203 PROPOSED SUMMONS to be issued filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 08/15/2013)
204 PROPOSED SUMMONS to be issued filed by Plaintiff Henry A.. (Wilson, Karie) (Entered: 08/15/2013)

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08/15/2013 08/27/2013 08/27/2013
08/27/2013
08/27/2013
08/29/2013
09/05/2013 09/10/2013 09/10/2013 09/18/2013 09/18/2013 09/18/2013 09/18/2013

205 Summons Issued as to Yvette Chevalier, Teresa Cragon, Philomena Osemwengie, Stacey Scott. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(RFJ) (Entered: 08/15/2013)
208 CERTIFICATE OF SERVICE by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Delia D., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Sheldon H., Mason I.. (Danis, Mark) (Entered: 08/27/2013)
209 MOTION to Seal 207 Declaration, − PLAINTIFFS' MOTION TO SEAL EXHIBIT D OF THE DECLARATION OF AURORA KAISER IN SUPPORT OF PLAINTIFFS' OPPOSITION TO CLARK COUNTY DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT AND STATE DEFENDANTS'S JOINDER − by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Delia D., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Sheldon H., Mason I.. Motion ripe 8/27/2013. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion to Seal)(Danis, Mark) (Entered: 08/27/2013)
210 DECLARATION of DINAH X. ORTIZ re 209 MOTION to Seal 207 Declaration, − PLAINTIFFS' MOTION TO SEAL EXHIBIT D OF THE DECLARATION OF AURORA KAISER IN SUPPORT OF PLAINTIFFS' OPPOSITION TO CLARK COUNTY DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT AND ST ; filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Delia D., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Sheldon H., Mason I.. (Danis, Mark) (Entered: 08/27/2013)
211 CERTIFICATE OF SERVICE for 209 MOTION to Seal 207 Declaration, − PLAINTIFFS' MOTION TO SEAL EXHIBIT D OF THE DECLARATION OF AURORA KAISER IN SUPPORT OF PLAINTIFFS' OPPOSITION TO CLARK COUNTY DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT AND ST, 210 Declaration, by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Delia D., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Sheldon H., Mason I.. (Danis, Mark) (Entered: 08/27/2013)
212 NOTICE of Non−Opposition by Henry A. re 209 MOTION to Seal 207 Declaration, − PLAINTIFFS' MOTION TO SEAL EXHIBIT D OF THE DECLARATION OF AURORA KAISER IN SUPPORT OF PLAINTIFFS' OPPOSITION TO CLARK COUNTY DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT AND ST. (Wilson, Karie) (Entered: 08/29/2013)
213 REPLY to Response to 185 MOTION to Dismiss filed by Defendants Don Burnette, Clark County, Patricia Martin, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Virginia Valentine. (Foley, Margaret) (Entered: 09/05/2013)
214 STIPULATION FOR EXTENSION OF TIME (Third Request) Regarding Discovery Deadlines by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. (Foley, Margaret) (Entered: 09/10/2013)
215 MOTION to Compel Discovery from County Defendants by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I.. Responses due by 9/27/2013. (Danis, Mark) (Entered: 09/10/2013)
217 NOTICE of Hearing on 215 MOTION to Compel Discovery from County Defendants : Motion Hearing set for 10/10/2013 09:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. (no image attached)(TKH) (Entered: 09/18/2013)
218 SUMMONS Returned Executed by Henry A. . Patricia Martin served on 8/16/2013, answer due 9/6/2013. (Wilson, Karie) (Entered: 09/18/2013)
219 SUMMONS Returned Executed by Henry A. Darrel Ford served on 9/12/2013, answer due 10/3/2013. (Wilson, Karie) (Entered: 09/18/2013)
NOTICE of Docket Correction to 218 and 219 Affidavits. ERROR: Wrong event selected by attorney Karie Wilson. CORRECTION: Clerk's office modified events as 218 and 219 SUMMONS Returned Executed. (no image attached)(ASB) (Entered: 09/18/2013)

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09/24/2013 09/26/2013 09/27/2013
09/27/2013
09/27/2013 09/30/2013

220 ORDER ON STIPULATION Denying 214 Stipulation for Extension of Discovery Deadlines and Scheduling Order. Signed by Magistrate Judge Peggy A. Leen on 9/16/13. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 09/18/2013)
221 SUMMONS Returned Executed by Henry A. Teresa Cragon served on 9/15/2013, answer due 10/6/2013. (Wilson, Karie) (Entered: 09/19/2013)
222 SUMMONS Returned Executed by Henry A. Stacey Scott served on 9/15/2013, answer due 10/6/2013. (Wilson, Karie) (Entered: 09/19/2013)
223 SUMMONS Returned Executed by Henry A. Sonya Weathers served on 9/15/2013, answer due 10/6/2013. (Wilson, Karie) (Entered: 09/19/2013)
NOTICE of Docket Correction to 221 , 222 , and 223 Affidavits. CORRECTION: Affidavits filed by attorney Karie Wilson modified as 221 , 222 , and 223 SUMMONS Returned Executed. Because the Amended Complaint is filed under seal, counsel cannot properly file these documents. As such, counsel will continue to file these documents as Affidavits in this case and the Clerk's Office will modify them appropriately. (no image attached)(ASB) (Entered: 09/19/2013)
224 NOTICE − PLAINTIFFS' INFORMATIONAL NOTICE REGARDING ORDER ON CUSTODY OF MASON I. by Henry A., Charles B., Charlotte B., Leo C., Victor C., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I.. (Danis, Mark) (Entered: 09/20/2013)
225 NOTICE OF PARTIAL WITHDRAWAL OF PLAINTIFFS' MOTION TO COMPEL DISCOVERY FROM COUNTY DEFENDANTS AND REQUEST TO MAINTAIN HEARING DATE by Henry A., Charles B., Charlotte B., Leo C., Victor C., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I. re 215 MOTION to Compel Discovery from County Defendants. (Danis, Mark) (Entered: 09/23/2013)
226 RESPONSE to 224 Notice (Other), 225 Notice (Other), ; filed by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. (Attachments: # 1 Exhibit Exhibit A)(Foley, Margaret) (Entered: 09/24/2013)
227 CERTIFICATE of Interested Parties filed by Don Burnette, Sylvia Clark, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. There are no known interested parties other than those participating in the case . (Foley, Margaret) (Entered: 09/26/2013)
228 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Kathleen Nelson and DESIGNATION of Local Counsel Margaret G. Foley (Filing fee $ 200 receipt number 0978−2977423) filed by Defendants Don Burnette, Sylvia Clark, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers . Motion ripe 9/27/2013. (Foley, Margaret) Corrected Image 233 filed on 10/3/13. (ASB) (Entered: 09/27/2013)
229 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Tim J. Vanden Heuvel and DESIGNATION of Local Counsel Margaret G. Foley (Filing fee $ 200 receipt number 0978−2977432) filed by Defendants Don Burnette, Sylvia Clark, Clark County, Teresa Cragon, Darrel Ford, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers . Motion ripe 9/27/2013. (Foley, Margaret) Corrected Image 232 filed on 10/2/13. (ASB) (Entered: 09/27/2013)
230 RESPONSE to 215 MOTION to Compel Discovery from County Defendants, filed by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. Replies due by 10/7/2013. (Attachments: # 1 Exhibit Exhibits A through D)(Foley, Margaret) (Entered: 09/27/2013)
231 NOTICE: Attorney Action Required to 228 &229 VERIFIED PETITIONS. ERROR: No Certificates of Good Standing are attached to either Verified Petition, as required by LR 10−2. ACTION REQUIRED: Attorney Margaret Foley advised

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10/02/2013 10/03/2013 10/04/2013 10/07/2013 10/10/2013
10/15/2013 10/15/2013 10/15/2013

to file two Notices of Corrected Image/Document events under the Notices category and link to 228 VERIFIED PETITION and 229 VERIFIED PETITION to include the entire Verified Petition with a Certificate of Good Standing for each Pro Hac Vice attorney. Questions may be answered by contacting the Help Desk at (702) 464−5555. (no image attached)(ASB) (Entered: 09/30/2013)
232 NOTICE of Corrected Image/Document re 229 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Tim J. Vanden Heuvel and DESIGNATION of Local Counsel Margaret G. Foley (Filing fee $ 200 receipt number 0978−2977432) filed by Defendants Don Burnette, Sylvia Clark, Clark County, Te by Defendants Don Burnette, Sylvia Clark, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Service of corrected image is attached). (Foley, Margaret) (Entered: 10/02/2013)
233 NOTICE of Corrected Image/Document re 228 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Kathleen Nelson and DESIGNATION of Local Counsel Margaret G. Foley (Filing fee $ 200 receipt number 0978−2977423) filed by Defendants Don Burnette, Sylvia Clark, Clark County, Teresa by Defendants Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine. (Service of corrected image is attached). (Foley, Margaret) (Entered: 10/03/2013)
234 NOTICE of Supplemental Lodgment by Don Burnette, Clark County, Tom Morton, Lisa Ruiz−Lee, Virginia Valentine re 185 MOTION to Dismiss . (Foley, Margaret) (Entered: 10/04/2013)
235 REPLY to Response to 215 MOTION to Compel Discovery from County Defendants filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Delia D., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Sheldon H., Mason I.. (Danis, Mark) (Entered: 10/07/2013)
237 MINUTES OF PROCEEDINGS − Motion Hearing held on 10/10/2013 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: E. Garcia; Pla Counsel: Karie Wilson, William Grimm and Sarah Davis; Def Counsel: Margaret Foley and Alan Lefebvne; Court Reporter/FTR #: 8:58a.m. − 9:37a.m.; Time of Hearing: 9:00a.m.; Courtroom: 3B; The Court makes preliminary remarks and hears representations of counsel as to 215 Motion to Compel Discovery from County Defendants. For the reasons stated on the record, the Court requires the IT person that Defendant's counsel believes is the most knowledgeable about DFS ESI to meet and confer with Plaintiff's counsel and Plaintiff's experts to negotiate an appropriate ESI protocol. Defendants' counsel addresses extending discovery deadlines. Parties are required to go forward with Ms. Ruiz' deposition on the notice topics. Defendants' counsel is requited to have face to face discussions about the eleven (11) topics counsel is willing to produce a witness on. The productions of licensing files are addressed. Status Conference set for Wednesday, November 13, 2013 at 9:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. Parties are required to submit to the Court a joint status report by the Friday before, indicating the progress made, as stated on the record. (Copies have been distributed pursuant to the NEF − EMG) (Entered: 10/10/2013)
238 SUMMONS Returned Executed; by Maizy D., Charles B., Henry A., Christine F., Olivia G., Mason I., Delia D., Charlotte B., Linda E., Sheldon H., Jonathan D., Leo C., Victor C. re 176 SECOND Amended Complaint, . Yvette Chevalier served on 10/8/2013, answer due 10/29/2013. (Davis, Sarah) Event modified on 10/16/2013 (RFJ). (Entered: 10/15/2013)
239 SUMMONS Returned Executed; by Maizy D., Charles B., Henry A., Christine F., Olivia G., Mason I., Delia D., Charlotte B., Linda E., Sheldon H., Jonathan D., Leo C., Victor C. re 176 SECOND Amended Complaint. Debbie Mallwitz served on 10/8/2013, answer due 10/29/2013. (Davis, Sarah) Event modified on 10/16/2013 (RFJ). (Entered: 10/15/2013)
240 SUMMONS Returned Executed; by Maizy D., Charles B., Henry A., Christine F., Olivia G., Mason I., Delia D., Charlotte B., Linda E., Sheldon H., Jonathan D., Leo C., Victor C. re 1 Complaint, , . Stacey Scott served on 9/26/2013, answer due 10/17/2013. (Davis, Sarah) Event modified on 10/16/2013 (RFJ). (Entered:

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10/15/2013 10/17/2013
10/17/2013
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11/01/2013 11/05/2013 11/05/2013 11/05/2013 11/08/2013

10/15/2013)
241 CERTIFICATE of Mailing; by Thor Martinez on 10/3/2013; executed by Maizy D., Charles B., Henry A., Christine F., Olivia G., Mason I., Delia D., Charlotte B., Linda E., Sheldon H., Jonathan D., Leo C., Victor C. (Davis, Sarah) Event modified on 10/16/2013 (RFJ). (Entered: 10/15/2013)
242 ORDER Granting 228 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Kathleen A. Nelson for Clark County et al., and approving Designation of Local Counsel for Attorney Margaret G Foley. Signed by Chief Judge Robert C. Jones on 10/17/2013. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − SLR) (Entered: 10/17/2013)
243 ORDER Granting 229 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Tim J. Heuvel for Clark County et al., and approving Designation of Local Counsel for Attorney Margaret G Foley. Signed by Chief Judge Robert C. Jones on 10/17/2013. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − SLR) (Entered: 10/17/2013)
244 SUMMONS Returned Executed by Maizy D., Charles B., Henry A., Christine F., Olivia G., Mason I., Delia D., Charlotte B., Linda E., Sheldon H., Jonathan D., Leo C., Victor C. Philomena Osemwengie served on 9/24/2013, answer due 10/15/2013. (Davis, Sarah) (Entered: 10/17/2013)
245 NOTICE of Voluntary Dismissal by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I.. (Danis, Mark) (Entered: 10/17/2013)
246 STIPULATION and [Proposed] Order Regarding Mootness by Defendants Amber Howell, Michael Willden. (Anderson, Linda) (Entered: 10/21/2013)
247 ORDER ON STIPULATION Granting 246 Stipulation Regarding Mootness. Signed by Chief Judge Robert C. Jones on 10/21/13. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 10/22/2013)
248 JOINDER to 185 MOTION to Dismiss Second Amended Complaint, or in the Alternative, Motion for More Definite Statement filed by Defendants Don Burnette, Sylvia Clark, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Foley, Margaret) Linked to motion. (ASB) (Entered: 10/28/2013)
251 Submission of PROPOSED ORDER re: 236 Emergency MOTION to Extend Time 140 SCHEDULING ORDER; filed by Defendants Yvette Chevalier, Debbie Mallwitz . (Blum, Jonathan) (Entered: 11/01/2013)
252 NOTICE of Hearing on 236 SEALED Emergency MOTION to Extend Time regarding discovery/nondispositive matter (Fourth Request) : Motion Hearing set for 11/13/2013, 09:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen, to be heard at the status conference which is currently scheduled for the same date and time.(no image attached)(TKH) (Entered: 11/05/2013)
253 RESPONSE to 234 Clark County Defendants' Ex Parte Request to Supplement Briefing by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 11/05/2013)
254 DECLARATION of Aurora V. Kaiser in support of 253 RESPONSE by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Attachments: # 1 Exhibit A)(Danis, Mark) (Entered: 11/05/2013)
255 ANSWER to Complaint , THIRD PARTY COMPLAINT against Deborah Hill, Joseph Hill filed by Debbie Mallwitz.(Blum, Jonathan) (Entered: 11/08/2013)

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256 ANSWER to Complaint , THIRD PARTY COMPLAINT against Deborah Hill, Joseph Hill, National Deaf Academy, LLC, a Florida limited liability company filed by Yvette Chevalier.(Blum, Jonathan) (Entered: 11/08/2013)
257 PROPOSED SUMMONS to be issued Deborah Hill, an individual, filed by ThirdParty Plaintiff Yvette Chevalier. (Blum, Jonathan) (Entered: 11/08/2013)
258 PROPOSED SUMMONS to be issued Joseph Hill, an individual, filed by ThirdParty Plaintiff Yvette Chevalier. (Blum, Jonathan) (Entered: 11/08/2013)
259 PROPOSED SUMMONS to be issued National Deaf Academy, LLC, a Florida limited liability compay, filed by ThirdParty Plaintiff Yvette Chevalier. (Blum, Jonathan) (Entered: 11/08/2013)
260 PROPOSED SUMMONS to be issued Deborah Hill, an individual, filed by ThirdParty Plaintiff Debbie Mallwitz. (Blum, Jonathan) (Entered: 11/08/2013)
261 PROPOSED SUMMONS to be issued Joseph Hill, an individual, filed by ThirdParty Plaintiff Debbie Mallwitz. (Blum, Jonathan) (Entered: 11/08/2013)
262 STATUS REPORT Joint Status Report by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 11/08/2013)
263 Summons Issued as to Deborah Hill and Joseph Hill. (ASB) (Entered: 11/12/2013)
264 Summons Issued as to Deborah Hill, Joseph Hill, and National Deaf Academy, LLC. (ASB) (Entered: 11/12/2013)
265 MINUTES OF PROCEEDINGS − Status Conference held on 11/13/2013 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Mark David, Esq., Sarah Davis, Esq., Sarah M. Dickey, Esq.; Def Counsel: Alan Lefebvre, Esq., Margaret Foley, Esq.; Court Reporter/FTR #: 9:20:53 − 10:07:01; Time of Hearing: 9:00am; Courtroom: 3B; The Court has reviewed the Joint Status Report 262 and Defendants' SEALED Motion 236 . The Court and Counsel discuss the issues raised in the Joint Status Report, beginning with Counsels' Electronically Stored Information (E.S.I.) protocol. IT IS ORDERED: Clark County Defendants shall produce the first wave of E.S.I. no later than 11/27/2013 unless good cause is shown why they cannot meet that deadline. The parties next address the Rule 30(b)(6) matters, and Plaintiff's Counsel agrees to provide Defense Counsel with additional records to assist in locating a Rule 30(b)(6) designee for the topics discussed. The Court and Counsel next discuss and clarify generic "medical care" topics. The parties next discuss issues concerning placement information. The parties agree to confer further, and the Court expects Clark County to produce a Rule 30(b)(6) designee on this matter as discussed in open court. The Court next raises the issue of the licensing files. Clark County is in the process of collecting these files. The Court directs that Clark County should prioritize their efforts to collect all the files for one child at a time, make those files available for inspection and copying, and then notify Plaintiff's Counsel who can review the entirety of the files and determine what is relevant or not. Plaintiffs would then pay for the costs of reproduction at a reasonable litigation rate. IT IS ORDERED: Clark County shall have until 11/27/2013 to have files ready for inspection and copying for the first child. Counsel next state their respective positions concerning an extension of the discovery deadlines. The Court will continue these proceedings. Status Conference set for 12/10/2013 @ 08:45 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. This will allow the parties to make progess with the E.S.I., depositions, and licensing file inspection. The Court will grant parties a 30 days extention of the deadlines at this time, and will address additional extensions on 12/10/2013. (no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 11/14/2013)
266 AMENDED THIRD PARTY COMPLAINT against Deborah Hill, Joseph Hill, filed by Debbie Mallwitz. No changes to parties. Proof of service due by 3/21/2014. (Blum, Jonathan) (Entered: 11/21/2013)
267 AMENDED THIRD PARTY COMPLAINT against Deborah Hill, Joseph Hill, National Deaf Academy, LLC, filed by Yvette Chevalier. No changes to parties. Proof of service due by 3/21/2014. (Blum, Jonathan) (Entered: 11/21/2013)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 54 of 68

12/03/2013 12/05/2013 12/05/2013 12/09/2013
12/09/2013
12/10/2013
12/11/2013 12/11/2013

268 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on 12/3/2013. ORDERED that Oral Argument RE: 185 MOTION to Dismiss Second Amended complaint; or in the Alternative, Motion for a More Definite Statement is set for Wednesday, December 11, 2013 at 02:00 PM in LV Courtroom 4B before Chief Judge Robert C. Jones. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 12/03/2013)
269 SUMMONS Returned Executed by Yvette Chevalier re 256 Answer to Complaint, Third Party Complaint. National Deaf Academy, LLC served on 11/20/2013, answer due 12/11/2013. (Blum, Jonathan) (Entered: 12/05/2013)
270 SUMMONS Returned Executed by Yvette Chevalier re 267 Amended Complaint. National Deaf Academy, LLC served on 12/4/2013, answer due 12/25/2013. (Blum, Jonathan) (Entered: 12/05/2013)
271 TRANSCRIPT of Proceedings, 237 Order on Motion to Compel Motion Hearing before Magistrate Judge Peggy A. Leen. Court Reporter/Transcriber: Margaret Griener, 775−329−9980. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website <a href=http://www.nvd.uscourts.gov target=_blank>www.nvd.uscourts.gov</a> before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 12/30/2013. Redacted Transcript Deadline set for 1/9/2014. Release of Transcript Restriction set for 3/9/2014. (MG) (Entered: 12/09/2013)
272 TRANSCRIPT of Proceedings, 265 Status Conference held on 11/13/2013, before Chief Judge Robert C. Jones. Court Reporter/Transcriber: Margaret Griener, 775−329−9980. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website <a href=http://www.nvd.uscourts.gov target=_blank>www.nvd.uscourts.gov</a> before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 12/30/2013. Redacted Transcript Deadline set for 1/9/2014. Release of Transcript Restriction set for 3/9/2014. (MG) (Entered: 12/09/2013)
273 MINUTES OF PROCEEDINGS − Status Conference held on 12/10/2013 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Mark Danis, Esq., Sarah Davis, Esq.; Def Counsel: Cayla Witty, Esq., Margaret Foley, Esq., Alan Lefebvre, Esq.; Court Reporter/FTR #: 8:48:06 − 9:08:45; Time of Hearing: 8:45am; Courtroom: 3B; Counsel update the Court on the progress made concerning the E.S.I. production that had been previously discussed. The Court also hears updates regarding the production of licensing files and the deposition schedule that Counsel are working to complete. After the Court hears Counsels' representations, the parties next discuss and adjustment to the Discovery Plan and Scheduling Order dates. IT IS ORDERED: The discovery cutoff will be EXTENDED to 1/31/2014 will all related dates to be extended in a corresponding fashion. Separate Written Order shall issue, IT IS ORDERED: Status Conference set for 1/15/2014 @ 8:45 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen.(no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 12/11/2013)
274 ORDER that the following discovery plan and scheduling order deadlines will be extended as follows: Discovery due by 5/1/2014. Motions due by 6/2/2014. Proposed Joint Pretrial Order due by 7/14/2014. Signed by Magistrate Judge Peggy A. Leen on 12/10/13. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 12/11/2013)
276 MINUTES OF PROCEEDINGS − Motion Hearing RE: 185 MOTION to Dismiss held on 12/11/2013 before Chief Judge Robert C. Jones. Crtrm Administrator: Lesa Ettinger; Court Reporter/FTR #: Margaret Griener; Time of Hearing: 2:03 − 2:13 p.m.; Courtroom: 4B; Appearances are noted on the record. Representations of counsel are heard. The Court takes this matter under submission. Written ruling of the Court will issue. (no image attached) (Copies have been distributed pursuant to the NEF − LE) (Entered: 12/17/2013)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 55 of 68

12/12/2013
12/24/2013 12/27/2013 01/07/2014 01/09/2014 01/10/2014 01/13/2014 01/15/2014
01/17/2014 01/21/2014

275 (1st Notice) NOTICE: of Non−Compliance with Special Order 109: that Kathleen A. Nelsonand Tim J. Heuvel is in violation of Special Order 109. Participation in the electronic filing system became mandatory for all attorneys effective January 1, 2006. You are required to register for the Courts Case Management and Electronic Case Filing (CM/ECF) program and the electronic service of pleadings. Please visit the Courts website www.nvd.uscourts.gov, then select CM/ECF Info, to register the Attorneys. (ASB) (Entered: 12/12/2013)
277 STIPULATION to extend time re 267 AMENDED THIRD PARTY COMPLAINT; filed by ThirdParty Defendant National Deaf Academy, LLC, Defendant National Deaf Academy, LLC. (Stryker, Eric) (Entered: 12/24/2013)
278 ORDER ON STIPULATION Granting 277 Stipulation to Extend Time to Answer/Respond re 267 Amended Third Party Complaint. National Deaf Academy, LLC answer due 1/9/2014. Signed by Magistrate Judge Peggy A. Leen on 12/26/13. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 12/27/2013)
279 NOTICE of Change of Attorney on behalf of Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I.. (Danis, Mark) (Entered: 01/07/2014)
280 MOTION to Dismiss re: 267 AMENDED THIRD PARTY COMPLAINT for Lack of Jurisdiction; or in the Alternative for Stay of Third Party Proceedings; filed by Third Party Defendant National Deaf Academy, LLC. Responses due by 1/26/2014. (Attachments: # 1 Exhibit A)(Stryker, Eric) (Entered: 01/09/2014)
281 ORDER Granting in part and Denying in part 185 Defendants' Motion to Dismiss or for a More Definite Statement. A More Definitive Statement is due within 14 days of the entry of this Order. Signed by Judge Robert C. Jones on 01/10/2014. (Copies have been distributed pursuant to the NEF − AC) (Entered: 01/10/2014)
282 ORDER Granting 209 Plaintiff's Motion to Seal 207 Declaration. Signed by Judge Robert C. Jones on 01/13/2014. (Copies have been distributed pursuant to the NEF − AC) (Entered: 01/14/2014)
283 MINUTES OF PROCEEDINGS − Status Conference held on 1/15/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Karie Wilson, Esq., Sarah Davis, Esq.; Def Counsel: John Blum, Esq., Margaret Foley, Esq., Cayla Witty, Esq.; Court Reporter/FTR #: 8:47:26 − 9:18:15; Time of Hearing: 8:45am; Courtroom: 3B; The Court summarizes the previous proceedings. The Court hears the respective positions of Counsel concerning issues with E.S.I.. Counsel for the Clark County Defendants articulates concerns over the deposition of Director Lisa Ruiz−Lee, and Plaintiffs' Counsel argues in response. The Court will allow one final session of Miss Ruiz−Lee's deposition, which will be limited to four hours. Plaintiffs' Counsel are further directed to file any request for relief in the form of a motion if they feel, after the four hour session, that Defense Counsel did not produce a knowledgeable witness. The Court hears the respective positions of Counsel concerning issues with Rule 30(b)(6) depositions. Status Conference CONTINUED to 2/3/2014 @ 10:30 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. Joint Status Report due by 1/31/2014 @ 4:00pm.(no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 01/16/2014)
284 MOTION in Limine to Exclude Evidence of Plaintiffs' Damages for Failure to Disclose Computation of Damages Required by Fed.R.Civ.P. 26(a)(1)(A)(iii) by Defendants Yvette Chevalier, Debbie Mallwitz. Responses due by 2/3/2014. (Blum, Jonathan) (Entered: 01/17/2014)
285 JOINDER to 284 MOTION in Limine to Exclude Evidence of Plaintiffs' Damages for Failure to Disclose Computation of Damages Required by Fed.R.Civ.P. 26(a)(1)(A)(iii) filed by Defendants Don Burnette, Sylvia Clark, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Attachments: # 1 Exhibit)(Foley, Margaret) Linked to motion. (ASB) (Entered: 01/21/2014)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 56 of 68

01/22/2014
01/22/2014
01/23/2014 01/24/2014 01/31/2014 02/03/2014 02/03/2014 02/03/2014
02/10/2014

286 TRANSCRIPT of Proceedings, 273 Status Conference,,,, held on 12−10−13, before Magistrate Judge Peggy A. Leen. Court Reporter/Transcriber: Kathy French, 530−913−9213. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website <a href=http://www.nvd.uscourts.gov target=_blank>www.nvd.uscourts.gov</a> before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 2/12/2014. Redacted Transcript Deadline set for 2/22/2014. Release of Transcript Restriction set for 4/22/2014. (KF) (Entered: 01/22/2014)
287 TRANSCRIPT of Proceedings, 283 Status Conference,,,,, held on 1−15−14, before Magistrate Judge Peggy A. Leen. Court Reporter/Transcriber: Kathy French, 530−913−9213. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website <a href=http://www.nvd.uscourts.gov target=_blank>www.nvd.uscourts.gov</a> before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 2/12/2014. Redacted Transcript Deadline set for 2/22/2014. Release of Transcript Restriction set for 4/22/2014. (KF) (Entered: 01/22/2014)
290 DECLARATION of Margaret G. Foley, Esq. in Support of Defendant Philomena Osemwengie's Motion for Summary Judgment re 288 MOTION for Summary Judgment ; by Defendant Philomena Osemwengie. (Foley, Margaret) (Entered: 01/23/2014)
292 NOTICE IN RESPONSE TO THIS COURT'S ORDER RE PLAINTIFFS MAKING A MORE DEFINITE STATEMENT REGARDING MASON I. by Henry A., Charles B., Charlotte B., Leo C., Victor C., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I. re 281 Order on Motion to Dismiss,,,, Set/Reset Deadlines,. (Danis, Mark) (Entered: 01/24/2014)
296 Joint STATUS REPORT by Plaintiff Henry A.. (Wilson, Karie) (Entered: 01/31/2014)
297 RESPONSE to 284 MOTION in Limine filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I. (Danis, Mark) Removed duplicate wording. (ASB) Modified to add all plaintiffs on 2/5/2014 (RFJ). (Entered: 02/03/2014)
298 JOINDER to 293 RESPONSE to 280 MOTION to Dismiss; filed by Defendants Don Burnette, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Witty, Cayla) Removed duplicate wording and linked to documents. (ASB) (Entered: 02/03/2014)
300 MINUTES OF PROCEEDINGS − Status Conference held on 2/3/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Karie Wilson, Esq., Sarah Davis, Esq.; Def Counsel: Margaret Foley, Esq., Cayla Witty, Esq., John Blum, Esq.; Court Reporter/FTR #: 10:35:55 − 10:51:18; Time of Hearing: 10:30am; Courtroom: 3B; The Court has reviewed Counsels' Joint Status Report 296 and hears the representations of Counsel concerning pending discovery production and upcoming deposition scheduling. The Court hears the respective positions of Counsel regarding an extension of discovery deadlines. IT IS ORDERED: The Court will grant a 60 day extension of the existing deadlines for the purposes described in the Joint Status Report unless good cause is shown for any other limited extensions for limited purposes. Status Conference set for 3/18/2014 @ 09:30 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. Counsel shall file a Joint Status Report by 3/14/2014. This Court will coordinate with the District Judge regarding pending motions.(no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 02/07/2014)
301 MOTION to Extend Time to Serve the Amended Third−Party Complaint Upon Deborah and Joseph Hill by Third Party Plaintiffs Yvette Chevalier, Debbie Mallwitz. Responses due by 2/27/2014. (Blum, Jonathan) Modified motion type. (ASB) (Entered: 02/10/2014)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 57 of 68

02/11/2014 02/12/2014 02/28/2014 03/14/2014 03/18/2014
03/24/2014 03/28/2014 04/03/2014 04/03/2014

302 MOTION for Leave to File Reply to Plaintiffs' Opposition 297 to Motion 248 in Limine to Exclude Evidence of Plaintiffs' Damages for Failure to Disclose Computation of Damages Required by Fed.R.Civ.P. 26(A)(1)(A)(iii) by Defendants Yvette Chevalier, Debbie Mallwitz. Motion ripe 2/11/2014. (Blum, Jonathan) (Entered: 02/11/2014)
303 ORDER Granting 301 Defendants/Third−Party Plaintiffs Motion to Extend Time to Serve the 267 Amended Third−Party Complaint. Proof of service due by 5/20/2014. Signed by Magistrate Judge Peggy A. Leen on 02/12/2014. (Copies have been distributed pursuant to the NEF − AC) (Entered: 02/12/2014)
308 REPLY to Response to 288 MOTION for Summary Judgment filed by Defendant Philomena Osemwengie. (Foley, Margaret) (Entered: 02/28/2014)
309 Joint STATUS REPORT by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I., Third Party Plaintiffs Yvette Chevalier, Debbie Mallwitz, Defendants Yvette Chevalier, Clark County, Teresa Cragon, Darrel Ford, Debbie Mallwitz, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Stacey Scott, Virginia Valentine, Sonya Weathers. (Danis, Mark) (Entered: 03/14/2014)
311 MINUTES OF PROCEEDINGS − Status Conference held on 3/18/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Mark Danis, Esq., Sarah Davis, Esq., Sarah Dickey, Esq.; Def Counsel: Margaret Foley, Esq., John Bloom, Esq., Cayla Witty, Esq.; Court Reporter/FTR #: 9:44:45 − 10:15:43; Time of Hearing: 9:30am; Courtroom: 3B; The Court has reviewed Counsels' Joint Status Report 309 and hears the representations of Counsel concerning recently produced materials to Plaintiffs' Counsel, ESI, and Rule 30(b)(6) depositions currently scheduled. Plaintiff's Counsel memorializes an agreement they have reached with Defense Counsel on the record in which County Counsel will produce agreed upon ESI materials by the end of the month. Defense Counsel concurs that they will complete the production of the agreed upon materials by the last judicial day of March, 2014. SO ORDERED. The Court hears the respective positions of Counsel concerning issues surrounding scheduled Rule 30(b)(6) depositions. Plaintiffs have also filed a related SEALED Motion. IT IS ORDERED: Plaintiffs' Reply deadline to their SEALED Motion is compressed to 3 days after Defense Counsel files their opposition in the normal course. A Motions Hearing will be calendared shortly after briefing is completed. Counsel make their respective arguments concerning additional discovery and scheduling issues. The Court will reserve ruling on Counsels' scheduling requests until after the Motions Hearing. This Court will confer with the District Judge to determine which Motions this Court will be deciding. (no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 03/20/2014)
312 NOTICE of Hearing on 284 MOTION in Limine, and 310 Rule 37(A) and Rule 37(D) MOTION to Compel Depositions of Clark County's Witnesses and for Sanctions Against Clark County : Motion Hearing/Status Conference set for 4/8/2014 10:00 AM in LV Courtroom 3C before Magistrate Judge Peggy A. Leen. (no image attached)(TKH) Modified on 3/24/2014 (TKH). (Entered: 03/24/2014)
313 MOTION to Disqualify Plaintiffs' Counsel by Defendants Don Burnette, Clark County, Teresa Cragon, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. Motion ripe 3/28/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E)(Foley, Margaret) Removed duplicate wording. (ASB) (Entered: 03/28/2014)
315 RESPONSE to 310 SEALED Rule 37(A) and Rule 37(D) MOTION to Compel Depositions of Clark County's Witnesses and for Sanctions Against Clark County, filed by Defendant Clark County. Response in Opposition to Sealed Motion for Sanctions Replies due by 4/13/2014. (Attachments: # 1 Exhibit Exhibit Three)(Witty, Cayla) Linked to proper motion. (ASB) (Entered: 04/03/2014)
316 DECLARATION re 315 Response to 310 SEALED Rule 37(A) and Rule 37(D) MOTION to Compel Depositions of Clark County's Witnesses and for Sanctions Against Clark County filed by Defendant Clark County. (Witty, Cayla) Linked to proper motion. (ASB) (Entered: 04/03/2014)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 58 of 68

04/08/2014
04/09/2014 04/09/2014 04/11/2014 04/11/2014 04/13/2014

319 MINUTES OF PROCEEDINGS − Motion Hearing held on 4/8/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Karie Wilson, Esq., Mark Danis, Esq.; Def Counsel: Margaret Foley, Esq., John Bloom, Esq.; Court Reporter/FTR #: 10:20:30 − 11:09:20; Time of Hearing: 10:00am; Courtroom: 3C; The Court has set this matter on Defendants' Motion in Limine to Exclude Evidence... 284 , Defendants' Motion for Leave to File Reply... 302 , and Plaintiffs' SEALED Motion 310 . IT IS ORDERED: Defendants' Motion for Leave to File Reply... 302 is GRANTED. The Court hears the respective arguments of Counsel regarding the remaining pending motions. Counsel also jointly represent that they feel they may be prepared for a Settlement Conference after completion of some additional discovery. IT IS ORDERED: Plaintiffs' SEALED Motion 310 is GRANTED IN PART/DENIED IN PART as stated in open court. The Court makes findings for the record.Status and Dispute Resolution Conference set for 4/22/2014 @ 2:00 PM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. The Court directs Counsel to confer with each other and then to contact this Court's Courtroom Administrator to schedule a Settlement Conference date consistent with the schedule discussed in open court. IT IS ORDERED: Defendants' Motion in Limine to Exclude Evidence... 284 is DENIED as premature. Certain discovery deadlines are extended consistent with the Court's direction as stated in open court. (Copies have been distributed pursuant to the NEF − JAM) (Entered: 04/09/2014)
320 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Peggy A. Leen, on 4/9/2014. By Deputy Clerk: Jeff Miller. By Judicial Assistant: Teresa Hoskin. IT IS ORDERED: Status Conference set for 4/22/2014 is RESET IN TIME ONLY to 2:30 PM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen.(no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 04/09/2014)
321 NOTICE Letter to Judge Leen re: Court's direction to schedule settlement conference by Clark County, Lisa Ruiz−Lee, Tom Morton, Don Burnette, Virginia Valentine, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Philomena Osemwengie, Stacey Scott, Sonya Weathers. (Foley, Margaret) (Entered: 04/09/2014)
322 TRANSCRIPT of Proceedings, 300 Status Conference held on 2/3/2014, before Magistrate Judge Peggy A. Leen. Court Reporter/Transcriber: Margaret Griener, 775−329−9980. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website <a href=http://www.nvd.uscourts.gov target=_blank>www.nvd.uscourts.gov</a> before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 5/2/2014. Redacted Transcript Deadline set for 5/12/2014. Release of Transcript Restriction set for 7/10/2014. (MG) (Entered: 04/11/2014)
323 TRANSCRIPT of Proceedings, 311 Status Conference held on 3/18/2014, before Magistrate Judge Peggy A. Leen. Court Reporter/Transcriber: Margaret Griener, 775−329−9980. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website <a href=http://www.nvd.uscourts.gov target=_blank>www.nvd.uscourts.gov</a> before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 5/2/2014. Redacted Transcript Deadline set for 5/12/2014. Release of Transcript Restriction set for 7/10/2014. (MG) (Entered: 04/11/2014)
324 TRANSCRIPT of Proceedings, held on 4/8/2014, before Magistrate Judge Peggy A. Leen. Court Reporter/Transcriber: Margaret Griener, 775−329−9980. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website <a href=http://www.nvd.uscourts.gov target=_blank>www.nvd.uscourts.gov</a> before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 5/4/2014. Redacted Transcript Deadline set for 5/14/2014. Release of Transcript Restriction set for 7/12/2014. (MG) (Entered: 04/13/2014)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 59 of 68

04/14/2014 04/14/2014 04/14/2014 04/14/2014 04/22/2014
04/23/2014
04/24/2014 04/30/2014 05/05/2014 05/07/2014

325 RESPONSE to 313 MOTION to Disqualify Plaintiffs' Counsel, filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. Replies due by 4/24/2014. (Kaiser, Aurora) (Entered: 04/14/2014)
326 DECLARATION of William Grimm re 325 Response to 313 MOTION to Disqualify Plaintiffs' Counsel by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Kaiser, Aurora) Linked to motion. (ASB) (Entered: 04/14/2014)
327 DECLARATION of Aurora V. Kaiser re 325 Response to 313 MOTION to Disqualify Plaintiffs' Counsel by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kaiser, Aurora) Linked to motion. (ASB) (Entered: 04/14/2014)
328 DECLARATION of Katharine Walker re 325 Response to 313 MOTION to Disqualify Plaintiffs' Counsel by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kaiser, Aurora) Linked to motion. (ASB) (Entered: 04/14/2014)
332 MINUTES OF PROCEEDINGS − Status Conference held on 4/22/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Mark Danis, Esq., Sarah Danis, Esq.; Def Counsel: John Bloom, Esq., Margaret Foley, Esq.; Court Reporter/FTR #: 2:40:45 − 2:53:18; Time of Hearing: 2:30pm; Courtroom: 3B; The Court hears the respective positions of Counsel concerning any progress they have made since the last hearing as they have not contacted this Court's Courtroom Administrator to schedule a settlement conference. The Court confirms with Counsel that this case will not be transferred to another Magistrate Judge in the event that a settlement conference is unsuccessful. The Court hears from Counsel regarding some matters issues that they are attempting to resolve. The Court goes OFF RECORD at 2:53pm to discuss scheduling options with Counsel for the settlement conference. (no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 04/28/2014)
329 MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 4/23/2014 by Deputy Clerk: Ari Caytuero. IT IS ORDERED that a Motion Hearing re: 288 Motion for Summary Judgment, 280 Motion to Dismiss, 313 Motion to Disqualify Plaintiffs' Counsel, and 294 SEALED Counter−Motion for Jurisdictional Discovery is set for 5/15/2014 09:00 AM in LV Courtroom to be determined before Judge Robert C. Jones. (Copies have been distributed pursuant to the NEF − AC) (Entered: 04/23/2014)
330 REPLY to Response to 313 MOTION to Disqualify Plaintiffs' Counsel filed by Defendants Don Burnette, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Attachments: # 1 Exhibit Exhibit F, # 2 Exhibit Exhibit G)(Foley, Margaret) (Entered: 04/24/2014)
333 ORDER Scheduling Settlement Conference: Settlement Conference set for 5/27/2014 09:30 AM in LV Chambers before Magistrate Judge Peggy A. Leen. The settlement conference statements shall be received in chambers, Room 3071, no later than 4:00 p.m., 5/20/2014. Signed by Magistrate Judge Peggy A. Leen on 04/28/2014. (Copies have been distributed pursuant to the NEF − AC) (Entered: 04/30/2014)
334 SERVICE by Publication filed by Third Party Plaintiffs Yvette Chevalier, Debbie Mallwitz. Last publication date 04/18/2014. (Blum, Jonathan) (Entered: 05/05/2014)
335 ORDER Granting in part 280 Third Party Defendant's Motion to Dismiss or Stay and To Transfer Venue and the 267 First Amended Third−Party Complaint is DISMISSED as against National Deaf Academy, LLC. IT IS FURTHER ORDERED that 294 Third Party Plaintiff's Motion for Jurisdictional Discovery is DENIED. IT IS FURTHER ORDERED that Faiza Ebrahim, Kate Walker, Erin Liotta, and Leecia Welch must appear at the 5/15/2015 hearing prepared to testify as to the 313 Motion to DisqualifyCounsel. National Deaf Academy, LLC terminated. Signed by Judge Robert C. Jones on 05/07/2014. (Copies have been distributed pursuant to the NEF − AC) (Entered: 05/07/2014)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 60 of 68

05/12/2014 05/13/2014
05/16/2014 05/16/2014 05/20/2014 05/21/2014 05/21/2014 05/23/2014 05/27/2014 05/30/2014
06/04/2014
06/04/2014

336 STIPULATION re 329 Minute Order Setting Hearing on Motion,, ; Continuance of Evidentiary Hearing and Oral Argument by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 05/12/2014)
337 ORDER ON STIPULATION Granting 336 Stipulation for Continuance of Evidentiary Hearing re 313 Motion to Disqualify Plaintiffs' Counsel and 288 Motion for Summary Judgment. Evidentiary Hearing reset for 7/7/2014 09:00 AM in LV Courtroom to be determined before Judge Robert C. Jones. Signed by Judge Robert C. Jones on 05/13/2014. (Copies have been distributed pursuant to the NEF − AC) (Entered: 05/13/2014)
338 MOTION for Exception to Settlement Conference Attendance Requirement filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 05/16/2014)
NOTICE of Docket Correction to 338 RESPONSE−Other. ERROR: Wrong event selected by attorney Mark Danis. CORRECTION: Clerk's office modified event as 338 MOTION for Exception to Settlement Conference Attendance Requirement. (no image attached)(ASB) (Entered: 05/16/2014)
340 ORDER Granting 338 Plaintiffs' Motion for Exception to Settlement Conference Attendance Requirement. Signed by Magistrate Judge Peggy A. Leen on 05/19/2014. (Copies have been distributed pursuant to the NEF − AC) (Entered: 05/20/2014)
341 CERTIFICATE OF SERVICE by ThirdParty Plaintiff Yvette Chevalier. (Blum, Jonathan) (Entered: 05/21/2014)
342 STIPULATION by Defendants Don Burnette, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Foley, Margaret) (Entered: 05/21/2014)
343 MOTION Exception to Settlement Conference Attendance Requirement; filed by Defendants Don Burnette, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. Responses due by 6/9/2014. (Foley, Margaret) (Entered: 05/23/2014)
345 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Peggy A. Leen, on 5/27/2014. IT IS ORDERED that the Request for Exemption from Settlement Conference (Dkt. #343) is GRANTED. (Copies have been distributed pursuant to the NEF − TKH) (Entered: 05/27/2014)
348 MINUTES OF PROCEEDINGS − Settlement Conference − Telephinc Status Check held on 5/30/2014 before Magistrate Judge Peggy A. Leen. Judicial Assistant: Teresa K. Hoskins; Pla Counsel: Jack London, Leecia Welch, Mark Danis, Sarah Davis &Bill Grimm; Def Counsel: Margaret Foley, Jon Blum &Alan LeFebvre; Time of Hearing: 4:02 PM − 4:20 PM; IT IS ORDERED that a follow−up Telephonic Conference is set for 6/2/2014 04:30 PM before Magistrate Judge Peggy A. Leen. Counsel shall be connected to the conference call by dialing in on the Chambers' Meet Me Line at (702) 868−4907, Conference Code: 123456, no later than 4:25 p.m. (Copies have been distributed pursuant to the NEF − AC) (Entered: 05/30/2014)
349 MINUTES OF PROCEEDINGS − Settlement Conference − Telephonic Status Conference held on 6/4/2014 before Magistrate Judge Peggy A. Leen. Judicial Assistant: Teresa K. Hoskins; Pla Counsel: Erin Liotta, Bill Grimm, Leecia Welch, Mark Danis &Sarah Davis; Def Counsel: Margaret Foley, Jon Blum &Alan LeFebvre; Time of Hearing: 4:34 PM − 4:51 PM; Courtroom: LV Chambers; IT IS ORDERED that counsel shall confer by 6/4/2014. (Copies have been distributed pursuant to the NEF − AC) (Entered: 06/04/2014)
350 SERVICE by Publication filed by Third Party Plaintiffs Yvette Chevalier, Debbie Mallwitz. Last publication date 03/14/2014. (Blum, Jonathan) (Entered: 06/04/2014)

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06/06/2014 06/06/2014 06/09/2014 06/11/2014
06/11/2014 06/11/2014
06/18/2014

351 MOTION for Entry of Clerks Default of Third−Party Defendant Deborah Hill by Third Party Plaintiffs Yvette Chevalier, Debbie Mallwitz. Motion ripe 6/4/2014. (Blum, Jonathan) (Entered: 06/04/2014)
352 MOTION for Entry of Clerks Default of Third−Party Defendant Joseph Hill by Third Party Plaintiffs Yvette Chevalier, Debbie Mallwitz. Motion ripe 6/4/2014. (Blum, Jonathan) (Entered: 06/04/2014)
353 Clerk's ENTRY OF DEFAULT as to Deborah Hill and Joseph Hill re 351 Motion for Entry of Clerks Default of Third−Party Defendant Deborah Hill and 352 Motion for Entry of Clerks Default of Third−Party Defendant Joseph Hill. (AC) (Entered: 06/05/2014)
357 MINUTES OF PROCEEDINGS − Settlement Conference − Telephonic Status Check held on 6/5/2014 before Magistrate Judge Peggy A. Leen. Judicial Assistant: Teresa K. Hoskins; Pla Counsel: Mark Danis; Def Counsel: Jon Blum; Time of Hearing: 4:01 PM − 4:09 PM; Courtroom: LV Chambers; IT IS ORDERED that the parties shall submit a stipulation and proposed order consistent with the discussions during the conference call with the court. Status Conference set for 7/3/2014 10:30 AM before Magistrate Judge Peggy A. Leen. Counsel shall be connected to the conference call by dialing (702) 868−4907, Conference Code: 123456, no later than 10:25 a.m. (Copies have been distributed pursuant to the NEF − AC) (Entered: 06/09/2014)
355 CERTIFICATE OF SERVICE by ThirdParty Defendant National Deaf Academy, LLC, Defendant National Deaf Academy, LLC. (Stryker, Eric) (Entered: 06/06/2014)
356 ORDER ON STIPULATION Granting 342 Stipulation to Seal 288 Motion for Summary Judgment and 291 Statement of Separate Concise Statement of Undisputed Material Facts in Support of Defendant Philomena Osemwengie's Motion for Summary Judgment. Signed by Judge Robert C. Jones on 06/06/2014. (Copies have been distributed pursuant to the NEF − AC) (Entered: 06/06/2014)
358 STIPULATION FOR EXTENSION OF TIME (Third Request) Staying Discovery, Extending Various Deadlines and Setting Status Check Hearing by Defendants Yvette Chevalier, Debbie Mallwitz. (Blum, Jonathan) (Entered: 06/09/2014)
359 ORDER ON STIPULATION Granting 358 Stipulation Extending/Staying Discovery, Extending Various Deadlines re 344 SEALED MOTION for Summary Judgment and Setting Status Check Hearing. Discovery is STAYED until 7/3/2014 except as outlined in Order. Responses re 344 SEALED MOTION for Summary Judgment are due by 7/15/2014. Replies due by 7/29/2014. A telephonic status conference is set for 7/3/2014 at 10:30 AM. The parties shall call in as instructed in the court's prior 357 order. Signed by Magistrate Judge Peggy A. Leen on 06/11/2014. (Copies have been distributed pursuant to the NEF − AC) Modified on 6/20/2014 (EAJ). (Entered: 06/11/2014)
360 NOTICE OF RE−FILING OF DEFENDANT PHILOMENA OSEMWENGIE'S MOTION FOR SUMMARY JUDGMENT FILED ON JANUARY 23, 2014, et al. by Don Burnette, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Attachments: # 1 Exhibit)(Foley, Margaret) (Entered: 06/11/2014)
361 NOTICE OF RE−FILING OF CONCISE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF DEFENDANT PHILOMENA OSEMWENGIE'S MOTION FOR SUMMARY JUDGMENT FILED ON JANUARY 23, 2014, et al. by Don Burnette, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Attachments: # 1 Exhibit)(Foley, Margaret) (Entered: 06/11/2014)
363 MINUTES OF PROCEEDINGS − Telephonic Dispute Resolution held on 6/18/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa K. Hoskin; Pla Counsel: Mark Danis and Bill Grimm; Def Counsel: Jon Blum and Margaret Foley; Time of Hearing: 4:33 pm − 4:50 pm; A dispute arose during a deposition, and various proposals to resolve the dispute were discussed. (Copies

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09/05/2014 09/08/2014 09/10/2014

have been distributed pursuant to the NEF − SLR) (Entered: 06/26/2014)
364 STIPULATION AND PROPOSED ORDER EXTENDING BRIEFING DATES &REQUESTING CONTINUANCE OF HEARING DATE by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 06/26/2014)
365 ORDER ON STIPULATION Granting 364 STIPULATION Extending Briefing Dates and Requesting Continuance of Hearing Date. Responses due by 8/14/2014. Replies due by 8/28/2014. Signed by Judge Robert C. Jones on 7/2/2014. (Copies have been distributed pursuant to the NEF − SLR) (Entered: 07/02/2014)
366 STIPULATION STIPULATION AND [PROPOSED] ORDER TO VACATE TELEPHONIC STATUS CONFERENCE by Defendants Don Burnette, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Foley, Margaret) (Entered: 07/02/2014)
367 ORDER approving the parties' 366 Stipulation. The telephonic status conference scheduled for July 3, 2014, at 10:30 a.m. is VACATED and RESET for 7/31/2014 at 09:00 a.m. in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. The parties shall call into the status conference as instructed in the court's prior 357 Order. Signed by Magistrate Judge Peggy A. Leen on 7/3/14. (no image attached) (Copies have been distributed pursuant to the NEF − EAJ) (Entered: 07/03/2014)
368 STIPULATION AND PROPOSED ORDER STAYING DISCOVERY AND EXTENDING BRIEFING (FOURTH REQUEST RE DISCOVERY; THIRD REQUEST RE BRIEFING) by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 07/29/2014)
369 ORDER ON STIPULATION granting 368 STIPULATION to stay Discovery and extend briefing to 344 MOTION for Summary Judgment. Discovery is stayed until 9/1/2013. Responses due by 9/16/2014. Replies due by 9/30/2014. Signed by Magistrate Judge Peggy A. Leen on 7/30/2014. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 07/31/2014)
370 MINUTES OF PROCEEDINGS − Status Conference held on 7/31/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Mark Dani, Leecia Welch; Def Counsel: Jon Blum, Margaret Foley; Time of Hearing: 9:00 A.M; IT IS ORDERED that a telephonic Status Conference is set for 9/4/2014 09:00 AM before Magistrate Judge Peggy A. Leen. Counsel shall be connected to the conference call by dialing (702) 868−4907, Conference Code: 123456, no later than 8:55 a.m. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 08/04/2014)
371 MINUTES OF PROCEEDINGS − Status Conference held on 9/5/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Mark Dani, Leecia Welch; Def Counsel: Jon Blum, Margaret Foley; Time of Hearing: 9:00 A.M; Telephonic Status Conference set for 9/12/2014 09:00 AM before Magistrate Judge Peggy A. Leen. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 09/05/2014)
372 STIPULATION FOR EXTENSION OF TIME (Fifth Request) − Stipulation and [Proposed] Order Staying Discovery and Extending Briefing − (Fifth Request re Discovery; Fourth Request re Briefing) − by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 09/08/2014)
373 ORDER ON STIPULATION Granting 372 STIPULATION for Order Staying Discovery and Extending Briefing (Fifth Request re Discovery; Fourth Request re Briefing) as to 344 SEALED MOTION for Summary Judgment . Discovery STAYED until 10/8/2014. Response to Motion for Summary Judgment due by 10/16/2014. Reply due by 10/30/2014. Signed by Magistrate Judge Peggy A. Leen on 9/10/2014. (Copies have been distributed pursuant to the NEF − EDS) (Entered: 09/10/2014)

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09/12/2014 09/23/2014 09/29/2014 10/07/2014 10/09/2014 10/16/2014 10/17/2014 10/23/2014 10/27/2014

374 MINUTES OF PROCEEDINGS − Status Conference held on 9/12/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Mark Dani, Leecia Welch, Erin Liotta; Def Counsel: Jon Blum, Margaret Foley; Time of Hearing: 9:19 a.m.; Telephonic Status Conference set for 9/19/2014 09:30 AM before Magistrate Judge Peggy A. Leen. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 09/12/2014)
375 MINUTES OF PROCEEDINGS − Status Conference held on 9/19/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Mark Dani, Leecia Welch; Def Counsel: Margaret Foley, Alan Lefebvre; Time of Hearing: 9:35 a.m.; Telephonic Status Conference set for 9/29/2014 09:00 AM before Magistrate Judge Peggy A. Leen. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 09/23/2014)
376 MINUTES OF PROCEEDINGS − Status Conference held on 9/29/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Leecia Welch; Def Counsel: Margaret Foley; Time of Hearing: 9:01 am − 9:09 am; A Telephonic Status Conference is set for 10/7/2014 02:00 PM before Magistrate Judge Peggy A. Leen. (Copies have been distributed pursuant to the NEF − SLR) (Entered: 10/03/2014)
377 MINUTES OF PROCEEDINGS − Status Conference held on 10/7/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Mark Dani, Erin Liotta, Bill Grimm; Def Counsel: Margaret Foley, John Blum; Time of Hearing: 2:12 p.m.; Telephonic Status Conference set for 10/17/2014 09:00 AM before Magistrate Judge Peggy A. Leen. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 10/08/2014)
378 STIPULATION FOR EXTENSION OF TIME (Sixth or more Request) Staying Discovery and Extending Briefing by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 10/09/2014)
379 ORDER ON STIPULATION granting 378 STIPULATION FOR EXTENSION OF TIME Staying Discovery and Extending Briefing on 344 Sealed MOTION for Summary Judgment. Responses due by 11/17/2014. Replies due by 12/1/2014. Discovery due by 11/10/2014. Signed by Magistrate Judge Peggy A. Leen on 10/15/2014. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 10/16/2014)
380 MINUTES OF PROCEEDINGS − Status Conference held on 10/17/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Mark Dani, Leecia Welch; Def Counsel: Margaret Foley; Time of Hearing: 9:00 A.M; Telephonic Status Conference is set for 10/23/2014 09:00 AM before Magistrate Judge Peggy A. Leen. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 10/20/2014)
381 MINUTES OF PROCEEDINGS − Status Conference held on 10/23/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Erin Liotta, Jack London; Def Counsel: Margaret Foley; Time of Hearing: 9:00 A.M; Telephonic Status Conference is set for 10/30/2014 09:30 AM before Magistrate Judge Peggy A. Leen. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 10/24/2014)
382 SECOND NOTICE: of Non−Compliance with Special Order 109: that Tim J. Heuvel is in violation of Special Order 109.

Participation in the electronic filing system became mandatory for all attorneys effective January 1, 2006. You are required to register for the Courts Case Management and Electronic Case Filing (CM/ECF) program and the electronic service of pleadings.

Continued failure to abide by Special Order 109 will be brought to the Judges attention for appropriate action within ten (10) days.

Please visit the Courts website www.nvd.uscourts.gov, then select ATTORNEY REGISTRATION located in the middle of the web page to register.

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10/31/2014
11/06/2014
11/13/2014
11/14/2014
11/25/2014 11/25/2014 11/25/2014 11/25/2014 11/25/2014 11/25/2014 12/10/2014 12/18/2014

(no image attached) (RFJ) (Entered: 10/27/2014)
383 MINUTES OF PROCEEDINGS − Telephonic Status Conference held on 10/31/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Erin Liotta, Mark Danis; Def Counsel: Margaret Foley; Time of Hearing: 9:34 AM; Telephonic Status Conference set for 11/6/2014 11:00 AM before Magistrate Judge Peggy A. Leen. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 10/31/2014)
384 MINUTES OF PROCEEDINGS − Status Conference held on 11/6/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Mark Dani, Leecia Welch; Def Counsel: Margaret Foley, John Blum; Time of Hearing: 11:05 a.m.; Telephonic Status Conference set for 11/13/2014 09:00 AM before Magistrate Judge Peggy A. Leen. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 11/10/2014)
396 MINUTES OF PROCEEDINGS − Status Conference held on 11/13/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Mark Danis, Jack London, Leecia Welch; Def Counsel: Margaret Foley, Stephanie Barker; Time of Hearing: 11:00 a.m.; IT IS ORDERED counsel for Clark County shall forthwith draft a simple proposed form of stipulation as discussed and send it to plaintiffs counsel for execution so that settlement proceeds may be tendered on Thursday, December 11, 2014 as the parties settlement documents contemplate. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 12/10/2014)
385 MINUTES OF PROCEEDINGS − Status Conference held on 11/14/2014 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Mark Dani, Erin Liotta; Def Counsel: Margaret Foley; Time of Hearing: 11:00 a.m.; IT IS ORDERED that counsel shall forthwith meet and confer and submit proposed stipulations discussed during the status conference. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 11/14/2014)
388 MOTION for Attorney Fees filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. Responses due by 12/12/2014. (Danis, Mark) (Entered: 11/25/2014)
390 DECLARATION of Leecia Welch re 388 MOTION for Attorney Fees filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Danis, Mark) (Entered: 11/25/2014)
391 DECLARATION of Bruno Wolfenzon re 388 MOTION for Attorney Fees filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Danis, Mark) (Entered: 11/25/2014)
392 DECLARATION of Karie Wilson re 388 MOTION for Attorney Fees filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 11/25/2014)
393 Submission of PROPOSED ORDER on 388 MOTION for Attorney Fees; filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I. . (Danis, Mark) (Entered: 11/25/2014)
394 CERTIFICATE OF SERVICE by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 11/25/2014)
395 STIPULATION re: Funds Payable by Clark County; filed by Defendants Don Burnette, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Foley, Margaret) (Entered: 12/10/2014)
397 STIPULATION to Dismiss All Claims with Prejudice; filed by Defendants Don Burnette, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Foley, Margaret) (Entered: 12/18/2014)

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12/19/2014 01/09/2015 01/11/2015 01/16/2015 01/16/2015
01/22/2015 01/22/2015 01/22/2015 01/22/2015 02/04/2015 02/04/2015 02/05/2015 02/05/2015

398 NOTICE re: 386 Motion to Approve Compromise Settlement; filed by Don Burnette, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Foley, Margaret) (Entered: 12/19/2014)
400 ORDER approving 386 Petition To Approve Compromise Settlement and Distribution. The Clerk of the Court shall file the attachment/exhibits sealed annuity schedules under seal pursuant to the Court order dated October 5, 2010. Signed by Judge Robert C. Jones on 1/9/2015. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 01/09/2015)
401 NOTICE re: 388 MOTION for Attorney Fees; filed by Don Burnette, Clark County, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Foley, Margaret) (Entered: 01/11/2015)
402 STIPULATION re 400 Order, ; and [Proposed] Order Regarding Agreement to Amend Settlement Agreement and Release by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Jonathan D., Maizy D., Linda E., Christine F., Olivia G., Mason I.. (Kaiser, Aurora) (Entered: 01/16/2015)
403 UNOPPOSED MOTION Joint Petition and Memorandum in Support of Petition for Approval of Plaintiffs' Negotiated Attorneys' Fees and Costs by Defendants Don Burnette, Sylvia Clark, Clark County, Nevada, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. Motion ripe 1/16/2015. (Foley, Margaret) (Entered: 01/16/2015)
404 ORDER granting 403 Unopposed Motion for approval of Plaintiffs' negotiated attorneys' fees and costs. Signed by Judge Robert C. Jones on 1/22/2015. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 01/22/2015)
405 ORDER ON STIPULATION granting 402 STIPULATION Regarding Agreement to Amend Settlement Agreement and Release. Signed by Judge Robert C. Jones on 1/22/2015. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 01/22/2015)
406 ORDER ON STIPULATION granting 397 STIPULATION to Dismiss All Claims with Prejudice by Plaintiffs Leo C., Victor C., and Linda E. against all Defendants. Signed by Judge Robert C. Jones on 1/22/2015. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 01/22/2015)
407 ORDER ON STIPULATION granting 395 STIPULATION re: Funds Payable by Clark County to Barco Assignments, LTD. Signed by Judge Robert C. Jones on 1/22/2015. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 01/22/2015)
408 WITHDRAWAL of Motion by Defendant Yvette Chevalier of Motion for Reconsideration filed under seal on May 19, 2014 [Dkt. 339] (Blum, Jonathan) (Entered: 02/04/2015)
409 WITHDRAWAL of Motion by Defendant Debbie Mallwitz of Motion for Summary Judgment filed under seal on May 23, 2014 [Dkt. No. 344] (Blum, Jonathan) (Entered: 02/04/2015)
410 WITHDRAWAL of 313 Motion to Disqualify Plaintiffs' Counsel by Defendants Don Burnette, Sylvia Clark, Clark County, Nevada, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers (Foley, Margaret) Not linked to motion. Modified on 2/6/2015 (EDS). (Entered: 02/05/2015)
411 WITHDRAWAL of 360 and 361 Philomena Osemwengie's Motion for Summary Judgment by Defendants Don Burnette, Sylvia Clark, Clark County, Nevada, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers (Foley, Margaret) Not linked properly. Modified on 2/6/2015. (EDS) (Entered: 02/05/2015)

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03/09/2015 03/09/2015
03/09/2015
03/09/2015 03/09/2015 03/12/2015
03/20/2015 03/20/2015 04/01/2015 04/23/2015 04/23/2015 07/06/2015 07/16/2015
07/21/2015 07/21/2015

412 MOTION for Release of Funds filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 03/09/2015)
414 DECLARATION re 412 MOTION for Release of Funds 1)Plaintiffs' Report Regarding Blocked Accounts and Petition for Release of Funds ; filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. Declaration of Arthur Keller In Support of Plaintiffs' Report Regarding Blocked Accounts and Petition for Release of Funds (Danis, Mark) (Entered: 03/09/2015)
415 DECLARATION re 412 MOTION for Release of Funds 1)Plaintiffs' Report Regarding Blocked Accounts and Petition for Release of Funds ; filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. Declaration of Stephanie Krol In Support of Plaintiffs' Report Regarding Blocked Accounts and Petition for Release of Funds (Danis, Mark) (Entered: 03/09/2015)
416 Submission of PROPOSED ORDER filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. [Proposed] Order Regarding Blocked Accounts and Petition for Release of Funds (Danis, Mark) (Entered: 03/09/2015)
417 CERTIFICATE OF SERVICE by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 03/09/2015)
418 ORDER granting 412 Motion for Release of Funds. Petitioner Henry A. will file receipts with the Court showing that funds have been used as requested and in compliance with this Order within thirty days from the completion of the above listed transactions. Signed by Judge Robert C. Jones on 3/12/2015. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 03/12/2015)
419 SUPPLEMENT to 400 Order; filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 03/20/2015)
421 CERTIFICATE OF SERVICE by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 03/20/2015)
422 NOTICE of Withdrawal of Counsel (Aurora V. Kaiser) by Henry A., Charles B., Charlotte B., Jonathan D., Maizy D., Christine F., Olivia G., Mason I.. (Danis, Mark) (Entered: 04/01/2015)
423 STATUS REPORT re: Disbursements; filed by Plaintiff Henry A.. (Danis, Mark) (Entered: 04/23/2015)
424 DECLARATION of Stephanie Krol re 423 Status Report; filed> by Plaintiff Henry A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Danis, Mark) (Entered: 04/23/2015)
426 NOTICE of Change of Attorney filed by Henry A., Charles B., Charlotte B., Jonathan D., Maizy D., Christine F., Olivia G., Mason I.. (Davis, Sarah) (Entered: 07/06/2015)
427 STIPULATION of Dismissal with Prejudice; filed by Defendants Don Burnette, Sylvia Clark, Clark County, Nevada, Teresa Cragon, Darrel Ford, Patricia Martin, Thor Martinez, Tom Morton, Philomena Osemwengie, Lisa Ruiz−Lee, Stacey Scott, Virginia Valentine, Sonya Weathers. (Foley, Margaret) (Entered: 07/16/2015)
428 ORDER GRANTING 427 Stipulation to Dismiss all Claims of Plaintiffs, Henry A., Charles B., Charlotte B. and Mason I. with Prejudice. Signed by Judge Robert C. Jones on 7/21/15. (Copies have been distributed pursuant to the NEF − PS) (Entered: 07/21/2015)
429 ORDER. Status Conference is set for 9/9/15 at 10:00 am before Judge Robert C. Jones. IT IS FURTHER ORDERED that out−of−state counsel requesting telephonic appearances shall file a Request to Appear Telephonically with the Court on or before 8/31/15 by 5:00 pm. IT IS FURTHER ORDERED that the parties shall file a Status Report with the court on or before 8/31/15 by 5:00 pm. Signed by Judge Robert C. Jones on 7/21/15. (Copies have been distributed pursuant to the NEF − PS) (Entered: 07/22/2015)

Case: 2:10-cv-00528-RCJ-PAL As of: 11/29/2015 08:08 PM PST 67 of 68

08/25/2015
08/31/2015 08/31/2015 09/01/2015

430 NOTICE of Hearing Location: Status Conference set for 9/9/2015 10:00 AM in LV Courtroom 7C before Judge Robert C. Jones. (no image attached)(LE) (Entered: 08/25/2015)
431 Joint STATUS REPORT by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 08/31/2015)
432 STATEMENT re 430 Notice of Hearing; filed by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 08/31/2015)
433 NOTICE of Attorney Action Required: to 432 Statement:

ERROR: Documents should have been filed as separate entries by attorney Mark Wilmot Danis , pursuant to Special Order 109 a separate document must be filed for each type of document or purpose .

Attorney advised in the future please file documents in accordance with Special Order 109 filing procedures; to prevent delay in the timely filing of documents.

09/01/2015 09/01/2015 09/02/2015
09/09/2015
10/21/2015 11/12/2015 11/12/2015

CORRECTION: Attorney is advised to file the additional MOTION contained in document 432 STATEMENT, using the appropriate event found under the MOTIONS category pursuant to Special Order 109. (no image attached)(RFJ) (Entered: 09/01/2015)
434 MOTION for Leave to Appear Telephonically. Attorney: Jack Londen and Leecia Welch. by Plaintiffs Henry A., Charles B., Charlotte B., Leo C., Victor C., Linda E., Mason I.. (Danis, Mark) (Entered: 09/01/2015)
435 ORDER Granting 434 Request to Appear Telephonically. Signed by Judge Robert C. Jones on 9/1/15. (Copies have been distributed pursuant to the NEF − PS) (Entered: 09/01/2015)
436 MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 9/2/2015. By Deputy Clerk: Lesa Ettinger. RE: 435 Order on Motion for Leave to Appear Telephonically. The parties that have been approved by the Court to appear telephonically for the 9/09/2015 Status Conference, the following instructions are given: Counsel shall dial into the ATTmeet−me−line number (1−888−675−2535, Access Code 2900398, Security Code 090915) five (5) minutes prior to the hearing. Please remain on the line until such time as the Court joins the call and convenes the proceedings. (no image attached) (Copies have been distributed pursuant to the NEF − LE) (Entered: 09/02/2015)
437 MINUTES OF PROCEEDINGS − Status Conference held on 9/9/2015 before Judge Robert C. Jones. Crtrm Administrator: Eileen Wood; Pla Counsel: Leecia Welch, Jonathan Blum, Mari Schann, Mark Danis; Def Counsel: Margaret Foley; Court Reporter: Margaret Greiner; Time of Hearing: 11:05−11:06 AM; Courtroom: 7C. Representations of counsel are heard. All matters have been resolved and funds distributed. Counsel to submit a proposed closing order. (no image attached) (Copies have been distributed pursuant to the NEF − EW) (Entered: 09/10/2015)
438 ORDER re 437 Status Conference held 9/9/15. ORDERED that a Status Conference is set for 10:00 A.M. Monday, December 7, 2015, in LAS VEGAS COURTROOM TBD, before Judge Robert C. Jones. Signed by Judge Robert C. Jones on 10/21/15. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 10/21/2015)
439 NOTICE of Change of Attorney (Mark Danis) by Plaintiffs. (Ortiz, Dinah) Modified event on 11/13/2015 (DKJ). (Entered: 11/12/2015)
440 STIPULATION to Close the Case by Plaintiffs. (Londen, Jack) (Entered: 11/12/2015)

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11/16/2015

441 ORDER Granting 440 Stipulation to Close Case. Signed by Judge Robert C. Jones on 11/16/15. (Copies have been distributed pursuant to the NEF − PS) (Entered: 11/17/2015)


[CONTENT] April 13, 2010 | Clark County | Las Vegas | Nevada | the U.S. District Court | Nevada ||| the Nevada Department of Health and Human Services | the Nevada Division of Child and Family Services | Clark County | County Department of Family Services | 42 | 1983 ||| NCYL | Clark K. v. Willden</i | August 2006 ||| Clearinghouse ||| County | State |||  |||  |||  ||| 40 | the 15 years ||| ICU ||| thirteen | more than half | 3,600 |||  ||| May 2010 ||| Oct. 26, 2010 | U.S. | Robert C. Jones ||| 2010 | WL 4362809 | D. | Oct. 26, 2010 |||  ||| May 4, 2012 | the U.S. Court of Appeals | the Ninth Circuit ||| 678 | 991 | 9th Cir. 2012 | J. |||  ||| July 20, 2012 | August 2012 |||  ||| February 27, 2013 | two ||| 2013 | D. | Feb. 27, 2013 ||| January 10, 2014 | two | 45 | C.F.R. ||| 2014 WL 117562 | D. | Jan. 10, 2014 ||| the spring of 2014 ||| $2.075 million dollars | November 18, 2014 | January 9, 2015 ||| About $1.6 million | seven | 500,000 ||| November 12, 2015 | November 16, 2015 [SUMMARY] On April 13, 2010, a group of children in foster care in Clark County (Las Vegas), Nevada filed this lawsuit in the U.S. District Court for the District of Nevada. The plaintiffs sued the Nevada Department of Health and Human Services, the Nevada Division of Child and Family Services, Clark County, and lark County Department of Family Services under 42 U.S.C. § 1983 and state law. (Previously, NCYL had filed a similar suit on behalf of another group of children, <i>Clark K. v. Willden</i>, in August 2006, but voluntarily dismissed it after the judge decided against certification of the class and all the plaintiffs had either aged out of the system or been adopted. That case can be found at <a href="http://www.clearinghouse.net/detail.php?id=14916">CW-NV-0002</a> in this Clearinghouse.) 

Back in this case, the plaintiffs alleged that County and State officials failed to protect the health and safety of children in foster care. According to the complaint, foster children in the county were denied stability, health care, and, in many cases, even the most minimal level of safety. Many children were taken from their homes only to be subjected to physical, sexual, or psychological abuse while in the county's custody. For example, child welfare officials placed an infant and her older brother in a foster home where the baby was locked in a closet, and her brother was beaten when he tried to help her. Another plaintiff was shuttled through 40 placements in the 15 years she was in foster care. Another child was hospitalized twice in the ICU for near organ failure after being given an overdose of psychotropic drugs.

The plaintiffs sought money damages for thirteen children named in the lawsuit, and systematic improvements for several classes of children that represent more than half of the 3,600 children in foster care in the county. The suit also sought improvements for children who had not had guardians <i>ad litem</i> appointed to represent them in court, children who had not been provided early intervention services, and children who were sent to foster parents without case plans that contain the information needed to properly care for them.

In May 2010, the defendants moved to dismiss this case for failure to state a claim. After extensive hearings and related motions, on Oct. 26, 2010, U.S. District Judge Robert C. Jones dismissed the action, holding that the defendants were entitled to qualified immunity because the plaintiffs failed to assert a clearly established constitutional right. 2010 WL 4362809 (D. Nev. Oct. 26, 2010). The plaintiffs, however, then appealed. On May 4, 2012, the U.S. Court of Appeals for the Ninth Circuit reversed, ruling that foster children have a clearly established constitutional right to safety and adequate medical care. 678 F.3d 991 (9th Cir. 2012) (Fletcher, J.).

On remand, the district court ordered the plaintiffs to file an amended complaint and the defendants to respond. On July 20, 2012, the plaintiffs filed an amended complaint, and in August 2012, the defendants moved to dismiss. Because of the delay that caused by the appeal, however, the plaintiffs had aged out of foster care, moved home with their families, or had been adopted. As a result of the plaintiffs exiting foster care, the district court on remand ruled on February 27, 2013 that only relief in the form of money damages would be available to them, except for the two plaintiffs that remained in the foster care system. 2013 WL 759479 (D. Nev. Feb. 27, 2013). Later, on January 10, 2014, the court further ruled that the two remaining plaintiffs also lacked standing to seek injunctive relief unless the plaintiffs filed a more definite statement supporting their claims as to the nature of the children's case plan deficiencies under 45 C.F.R. § 1356.21(g). 2014 WL 117562 (D. Nev. Jan. 10, 2014).

In the spring of 2014, in the midst of trial preparation and shortly after the plaintiffs served their expert witness reports, the parties entered into settlement talks. The talks resulted in a settlement agreement of $2.075 million dollars in damages, approved on November 18, 2014 and entered on January 9, 2015. About $1.6 million directly benefited the seven former foster children, while $500,000 covered attorney fees and costs for the plaintiffs’ attorneys. On November 12, 2015, the plaintiffs filed a stipulation to close the case, and the district court granted the stipulation on November 16, 2015, closing the case.