Wright v. Southern Arizona Children's Advocacy Center

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Brian Wright, et al., No. CV-21-00257-TUC-JGZ 10 Plaintiffs, ORDER on Defendant SACAC’s 11 v. Motion for Summary Judgment (Doc. 273) and Plaintiffs’ Motions for Partial 12 Southern Arizona Children's Advocacy Summary Judgment against SACAC Center, et al., and Dr. Woolridge (Docs. 288 & 283) 13 Defendants. 14 15 16 On December 16, 2020, Sahuarita Police Department (SPD) officers brought minor 17 Plaintiff L.A.W. to Southern Arizona Children’s Advocacy Center (“SACAC” or 18 “Center”) to investigate allegations of physical abuse, after a mandatory reporter at his 19 elementary school contacted the Arizona Department of Child Safety (DCS) regarding a 20 mark on the back of L.A.W.’s leg. (Doc. 273 at 2.) At the Center, the Medical Director, 21 Dr. Dale Woolridge, conducted a forensic medical examination (FME) of L.A.W. (Id.) 22 L.A.W.’s parents were not notified prior to the exam and there was no court order 23 approving the exam. (Doc. 204 at 11–12.) 24 In the pending action, L.A.W. and Brian Wright, his father, assert § 1983 claims 25 against Dr. Woolridge (Claims 5 and 6) and SACAC (Claims 7 and 8), alleging the FME 26 violated their constitutional rights. In pending motions, Plaintiffs seek partial summary 27 judgment against Dr. Woolridge (Doc. 283) and SACAC (Doc. 288) on these claims; and 28 1 SACAC filed its own motion for summary judgment on Claims 7 and 8, (Doc. 288).1 Dr. 2 Woolridge previously filed a motion for summary judgment on Claims 5 and 6 (Doc. 297), 3 which was denied. (Doc. 361.) 4 The motions were heard on May 23, 2024. At argument, Dr. Woolridge asserted the 5 defense of qualified immunity. Dr. Woolridge had raised this defense in his answer to the 6 Plaintiff’s third amended complaint (TAC), (see Doc. 389 at 8), in his previous motion for 7 summary judgment, (Doc. 297 at 2–4), and in his response to Plaintiffs’ motion for 8 summary judgment, (Doc. 296 at 2). Plaintiffs requested the opportunity to provide 9 additional briefing on qualified immunity, and the Court granted the request. (See Docs. 10 395, 402.) 11 Having considered the parties’ arguments, the Court will grant SACAC’s motion 12 for summary judgment and deny Plaintiffs’ motions. Further, the Court finds that Dr. 13 Woolridge is entitled to qualified immunity on Claims 5 and 6. 14 I. Summary Judgment Standard 15 A court must grant summary judgment “if the movant shows that there is no genuine 16 dispute as to any material fact and the movant is entitled to judgment as a matter of 17 law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 18 (1986). The movant bears the initial responsibility of presenting the basis for its motion 19 and identifying those portions of the record, together with affidavits, if any, that it believes 20 demonstrate the absence of a genuine issue of material fact. Id. at 323. A genuine dispute 21 exists if “the evidence is such that a reasonable jury could return a verdict for the 22 nonmoving party,” and material facts are those “that might affect the outcome of the suit 23 under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 24 At summary judgment, the judge’s function is not to weigh the evidence and 25 determine the truth but to determine whether there is a genuine issue for trial. Id. at 252. 26 In its analysis, the court must believe the nonmovant’s evidence and draw all inferences in 27 1 SACAC’s motion is fully briefed at Docs. 273, 274, 293, 310. The Plaintiffs’ motion against Dr. Woolridge is fully briefed at Docs. 283, 284, 285, 296. The Plaintiffs’ motion 28 against SACAC is fully briefed at Docs. 288, 289, 300, 301, 311. 1 the nonmovant’s favor. Id. at 255. In reviewing the evidence, the court need only consider 2 the cited materials, but it may consider any other materials in the record. Fed. R. Civ. P. 3 56(c)(3). “Only admissible evidence may be considered by the trial court in ruling on a 4 motion for summary judgment.” Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 5 (9th Cir. 1998). 6 A movant is entitled to judgment as a matter of law against a party who fails to make 7 a showing sufficient to establish the existence of an element essential to that party’s case, 8 and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In 9 Celotex, the Supreme Court explained: “In such a situation, there can be ‘no genuine issue 10 as to any material fact,’ since a complete failure of proof concerning an essential element 11 of the nonmoving party’s case necessarily renders all other facts immaterial. The moving 12 party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed 13 to make a sufficient showing on an essential element of her case with respect to which she 14 has the burden of proof.” Id. at 322–23. 15 Although “[c]redibility determinations, the weighing of the evidence, and the 16 drawing of legitimate inferences from the facts are jury functions, not those of a judge ... 17 ruling on a motion for summary judgment,” the “mere existence of a scintilla of evidence 18 in support of the plaintiff's position [is] insufficient....” Anderson, 477 U.S. at 252, 255. 19 “Where the record taken as a whole could not lead a rational trier of fact to find for the 20 nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith 21 Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted). 22 “Conclusory allegations unsupported by factual data cannot defeat summary judgment.” 23 Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003). 24 // 25 // 26 // 27 // 28 // 1 II. Undisputed Facts2 2 A. Doctor Woolridge 3 Defendant Dr. Woolridge is an emergency medicine doctor at Banner University 4 Medical Center and a professor at the University of Arizona College of Medicine. (Doc. 5 282-1 at 8.) He also serves as the Medical Director of SACAC. (Doc. 285, PSOF ¶ 1.)3 Dr. 6 Woolridge is employed by SACAC part-time as an independent contractor. (Doc. 282-1 at 7 8.) As part of his employment, Dr. Woolridge performs FMEs of minors brought to 8 SACAC. (Doc. 285, PSOF ¶ 3.) 9 B. The Protocols 10 The Pima County Protocols for Multidisciplinary Investigation of Child Abuse (the 11 Protocols) provide “guidelines to assist those who investigate and work with child abuse 12 and domestic violence in reducing the secondary trauma that is often associated with such 13 investigations.” (Doc. 274-1 at 14.) The Protocols are intended to be a model for how child 14 abuse cases are handled in Pima County but are non-binding and not intended to be 15 followed with “unthinking or irrational rigidity.” (Id.) According to the Protocols, it is law 16 enforcement’s responsibility to conduct an impartial investigation within the bounds of the 17 2 The facts are taken from Defendant SACAC’s Separate Statement of Facts in support of 18 its motion for summary judgment, cited as Doc. 274, DSOF; Plaintiffs’ Separate Statement of Facts in support of their Motion for Partial Summary Judgment Against Defendant Dale 19 Woolridge, cited as Doc. 285, PSOF; and Defendant SACAC’s Controverting Statement of Facts, cited as Doc. 301, CSOF. The facts are undisputed unless otherwise specified. 20 Where support for an asserted fact was challenged, the Court relied on the supporting documents. 21 Plaintiffs failed to file a controverting statement of facts in response to SACAC’s motion for summary judgment and separate statement of facts. (Doc. 274). Plaintiffs failed 22 to file a separate statement of facts in support of their own motion for summary judgment against SACAC. Instead Plaintiffs improperly relied on the statement of facts they filed in 23 support of their motion for summary judgment against Dr. Woolridge. (Doc. 289 at 2.) This is clearly improper. LRCiv 56.1(b). Moreover, many of the facts included are unsupported 24 or contradicted by the documentation. Finally, although Dr. Woolridge did not dispute Plaintiffs’ facts—because the facts were irrelevant to Dr. Woolridge’s arguments— 25 SACAC does. Thus, although Plaintiffs assert at times that certain facts are undisputed by “Defendants,” the facts are only undisputed by Dr. Woolridge. Needless to say, Plaintiffs’ 26 improper incorporation of their statement of facts in support of a motion pertaining to a different party has caused much extra work. 27 3 SACAC has two associate directors. (Doc. 285, PSOF ¶ 2; Doc. 301, CSOF ¶ 2.) The associate directors have no role in this case. Plaintiffs state the associate directors also 28 conduct FMEs, (Doc. 285, PSOF ¶ 5), but fail to provide evidentiary support, (Doc. 301, CSOF ¶ 5). 1 law while considering the responsibilities of other organizations, such as SACAC, involved 2 in the investigation and treatment of victims. (Doc. 274-1 at 24.) The Protocols state that a 3 forensic examiner will not accept a case until there is law enforcement or DCS 4 involvement. (Doc. 274-1 at 31.) The Protocols also dictate that DCS, law enforcement or 5 the Office of Child Welfare Investigations will notify the parent or guardian when a child 6 is taken into temporary custody and inform them of interview and examination times. (Doc. 7 274-1 at 58, 79.) 8 According to the Protocols, FMEs are “needed in most physical abuse incidents 9 wherein legal proceedings are anticipated. It will be necessary to collect physical evidence 10 related to the child’s condition or injuries. This includes all injuries, and not just the most 11 obvious or serious ones.” (Doc. 285, PSOF ¶ 16; Doc. 301, CSOF ¶ 16; Doc. 274-1 at 34.) 12 The purpose of FMEs is “to ensure the health and safety of the child; reassure the patient 13 and caretaker; identify medical conditions; collect evidence of child abuse, endangerment, 14 or neglect; diagnose sexually transmitted diseases; and screen for pregnancy.” (Doc. 274- 15 1 at 34.) FMEs are only conducted after a referral or request from law enforcement or DCS 16 agents. (Doc. 285, PSOF ¶ 6; Doc. 301, CSOF ¶ 6.) 17 C. SACAC 18 SACAC was established in 1996 under an agreement signed by the Pima County 19 Sheriff’s Department, Pima County Attorney’s Office, Tucson Police Department, Oro 20 Valley Police Department, Marana Police Department, and Child Protective Services (now 21 known as DCS). (Doc. 274-1 at 78.) SACAC is a non-profit privately-operated agency that 22 serves as an “interagency coordinated response center” for the purpose of furthering child 23 abuse investigations. (Doc. 274-1 at 78; Doc. 285, PSOF ¶ 9; Doc. 301, CSOF ¶ 9.) 24 SACAC’s activities are to comply with the standards published by the National Children’s 25 Alliance. (Doc. 285, PSOF ¶ 8; Doc. 301, CSOF ¶ 8.) The National Children’s Alliance 26 “Standards for Accredited members” state: “The CAC is not just a facility, but serves as 27 an interagency coordinated response center.” (Doc. 301, CSOF ¶ 9.) 28 SACAC “provide[s] medical services to law enforcement and DCS, as well as 1 physicians and other health care providers, concerning suspected child maltreatment 2 cases.” (Doc. 285, PSOF ¶¶ 6–7; Doc. 301, CSOF ¶¶ 6–7.) SACAC’s website states: “The 3 Children’s Advocacy Center works closely with law enforcement, the Department of Child 4 Safety, prosecuting attorneys, and community agencies to ensure that these child victims 5 are treated with respect and dignity and receives [sic] the services they need, while assuring 6 offenders are held accountable for their crimes.” (Doc. 285, PSOF ¶ 12; Doc. 301, CSOF 7 ¶ 12.) SACAC does not have a written policy regarding parental notification of FMEs. 8 (Doc. 285, PSOF ¶ 20; Doc. 301, CSOF ¶ 20.) 9 D. The Incident 10 On December 16, 2020, a staff member of Copper View Elementary School called 11 911 to report a mark on L.A.W. (Doc. 285, PSOF ¶ 26; Doc. 301, CSOF ¶ 26.) L.A.W. was 12 taken to SACAC by an SPD Officer. (Doc. 285, PSOF ¶ 28; Doc. 301, CSOF ¶ 28.) 13 Detective Johnston testified: “I had an active investigation, and . . ., per the investigation, 14 I wanted [L.A.W.] to be medically checked and have a forensic interview. So he would 15 need to be transported to the [SA]CAC.” (Doc. 274, DSOF ¶ 2.) Once at SACAC, Detective 16 Johnson signed an “Authorization to Perform Forensic Medical Examination” as the 17 “Guardian” of L.A.W. (Doc. 274, DSOF ¶ 3; Doc. 285, PSOF ¶¶ 31–34.)4 On the 18 authorization form, Dr. Woolridge recorded that there was “no guardian present.” (Doc 19 285, PSOF ¶ 35; Doc. 301 ¶ 35.) At 1:00 p.m., Dr. Woolridge conducted an FME on 20 L.A.W. (Doc. 285, PSOF ¶ 31; Doc. 301, CSOF ¶ 31.) Dr. Woolridge testified that his 21 “actions were done in good faith and under the authority of valid statutes and recognized 22 public policy.” (Doc. 285, PSOF ¶ 32; Doc. 301, CSOF ¶ 32.) 23 4 The first page of the FME report is titled “Authorization to Perform Forensic Medical 24 Examination.” It reads: 25 I confirm I am a legal guardian of [L.A.W.] and I authorize Dr. Woolridge (name of examiner) to perform a medical forensic 26 examination, provide treatment, collect evidence, and photograph injuries. I also give permission to release copies of 27 the completed report to law enforcement for purposes of continuing an investigation. 28 (Doc. 285, PSOF ¶ 34.) 1 III. Claims 7 and 8 Against SACAC 2 In Claims Seven and Eight, Plaintiffs allege that the FME of L.A.W. violated their 3 Fourth and Fourteenth Amendment rights and that the “policy and protocol approved by 4 SACAC” was the moving force behind the unconstitutional FME. (Doc. 204 at 41-43.) To 5 prevail on their § 1983 claims against SACAC, the Plaintiffs must prove: 6 (1) SACAC acted under color of state law; 7 (2) SACAC’s employee violated Plaintiff’s constitutional rights; 8 (3) the employee acted pursuant to an official policy or custom of SACAC; and 9 (4) the official policy or custom caused the employee’s violation of Plaintiff’s 10 constitutional rights. 11 See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690–91 (1978); 12 Castro v. Cnty. of L.A., 833 F.3d 1060, 1073–75 (9th Cir. 2016). Because Plaintiffs have 13 the burden of proving their § 1983 claims, Plaintiffs must make a sufficient showing of 14 proof of all elements of their claims. 15 Upon review of Plaintiffs’ evidence, the Court concludes the Plaintiffs’ showing is 16 insufficient as to elements (3) and (4). Plaintiffs fail to show that SACAC has a policy of 17 conducting FMEs on minors without parental consent or court order to further criminal 18 investigations.5 (Doc. 289 at 3–4.) The Plaintiffs conceded at oral argument that the Pima 19 County Protocols do not authorize FMEs of minors without parental consent or court order 20 and Plaintiffs fail to demonstrate that unconsented or unauthorized FMEs are SACAC’s 21 “standard operating procedure.” Plaintiffs claim that Dr. Woolridge and the two Associate 22 Medical Directors have conducted hundreds of the “same” examinations, under the “same” 23 5 Plaintiffs also briefly assert that SACAC has a standard operating procedure to undertake invasive “genital/anal” examinations without an allegation or evidence of sexual abuse. 24 (Doc. 289 at 2.) Plaintiffs do not develop this argument, fail to describe the alleged policy in any meaningful way, and fail to point to any fact or evidence that would show such 25 policy exists. Plaintiffs rely solely on Dr. Woolridge’s statement that he visually examined L.A.W. as part of the “body surface exam.” (Doc. 282-1 at 50:7) This statement is 26 insufficient to show a SACAC policy of permitting invasive genital/anal examinations on children. Moreover, there is evidence that supports the need for a visual inspection of 27 L.A.W. including the facts that the school nurse observed a mark on L.A.W.’s left thigh under his buttocks; L.A.W. reported that Irlanda spanks his butt with her hand and objects; 28 and Dr. Woolridge’s observation of other abrasions above L.A.W.’s pullup. (Doc. 301 at 13.) 1 circumstances, all directed by law enforcement to further criminal investigations, and all 2 without parental notification. (Doc. 289 at 3–4.) But Plaintiffs fail to provide any evidence 3 in support.6 Although Dr. Woolridge testified, “It seems reasonable” that from “2007 4 through 2019, just before Covid, I conducted 3 to 4 exams per month,” as SACAC aptly 5 explains: 6 [t]he testimony does not reference the type of exams, circumstances under which the exams were performed, 7 whether exigent circumstances for the examinations existed, whether parents were present at the examinations, whether 8 parents provided information for the examinations, whether signed authorized [sic] to conduct the exams were received 9 (and if so, who signed the authorization – parents, DCS, law enforcement, Pima County Attorney, AG, etc.) or other factors 10 that dispute Plaintiff’s characterization of these examinations as “the same.” Nor does Plaintiff take into consideration other 11 factors that may prevent extrapolating an estimated number of exams per month to arrive at a total number of exams for a 12 more extended duration, including any limitations on Woolridge’s availability due to vacation, illness, or other 13 circumstances. 14 (Doc. 300 at 4.) In fact, Plaintiffs fail to provide evidence of any other similarly-conducted 15 exam. “Conclusory allegations unsupported by factual data will not create a triable issue 16 of fact.” Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978). 17 Plaintiffs cite several cases where courts found that a policy could be inferred from 18 the evidence, but the cases are inapposite. In Rabinovitz v. City of Los Angeles, 287 F. 19 Supp. 3d 933 (C.D. Cal. 2018), the court found that the city was liable under Monell for 20 the unlawful custom, practice, and policy of police interviewing minors at school without 21 court order or consent from their parents. Id. at 966. But there it was undisputed that LAPD 22 had a policy which instructed officers not to notify parents before conducting interviews 23 of students regarding suspected abuse, and the plaintiffs presented evidence that a police 24 25 6 There is no support for Plaintiffs’ assertion in their statement of facts that “[w]hen a child is brought to SACAC by law enforcement and a FME is conducted, no parental notification 26 of the intent to conduct the examination is made.” (Doc. 285, PSOF ¶ 20.) The deposition testimony cited by Plaintiffs does not support this assertion. Director Forney did not 27 “concede” that parents are not given notice of such examinations being contemplated. (Doc. 289 at 5.) She testified that the Center does not have a policy dealing with the 28 notification of parents, either to notify or not to notify, prior to conducting interviews or exams. (Doc. 301, CSOF ¶ 20.) 1 officer had conducted nearly 1,000 interviews of minors and had only notified the parents 2 two or three times. Id. at 965.7 3 In Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000), police officers seized children, 4 aged two and five, and placed them in a county-run institution. Id. at 1143. Several days 5 later, without obtaining judicial authorization and without notifying their parents, a police 6 detective took them to a hospital for the performance of highly intrusive anal and vaginal 7 physical examinations. Id. at 1135. The trial court entered summary judgment in the City’s 8 favor concluding in part that plaintiffs had not offered any facts or evidence showing that 9 the city police department had a policy that caused the violation. Id. at 1136. In reversing, 10 the appeals court held that a jury could reasonably infer that the city had a standard 11 operating procedure by which the police department obtained invasive investigatory 12 examinations without seeking judicial authorization or notifying the parents based on 13 evidence that: (1) there was a contract between the hospital where the examinations 14 occurred and the police department for performance of the investigatory examinations; (2) 15 the detective testified that she removed the children in fulfillment of her investigative 16 function; and (3) because, “given the absence of any individualized suspicion of sexual 17 abuse, it is difficult to imagine . . . why else the Wallis children would have been subjected 18 to the invasive examinations.” Id. at 1143. 19 There is no similar evidence here, either from county law enforcement officers or 20 SACAC employees. There is no evidence that police officers regularly fail to obtain court 21 approval or parental consent before requesting an FME at SACAC.8 There is no evidence 22 that SACAC doctors regularly perform FMEs in the absence of court order or parental 23 7 The court limited its holding to “the lawfulness of the City’s policy, practice, or custom only in the context . . . where the parent or guardian of the suspected child abuse victim is 24 not the suspected perpetrator.” Id. at 964. 8 Plaintiffs argue that the existence of a policy permitting unconsented-to exams can be 25 inferred from the fact that SACAC conducts FMEs only upon referral by law enforcement or DCS. (Doc. 289 at 6–7; Doc. 285, PSOF ¶ 20.) The fact that police failed to provide 26 notice or obtain a court order before the referral of L.A.W. does not support the inference that law enforcement officers regularly fail to obtain consent or a court order prior to 27 making referrals to SACAC. If an officer is acting in accordance with the Pima County Protocols, the officer would have provided notification to the parents prior to an FME. 28 (Doc. 274-1 at 58, 60, 68, 86.) Plaintiffs fail to provide evidence that officers regularly fail to comply with the Protocols. 1 consent. And, unlike the Wallis case, where the court noted the absence of “any 2 individualized suspicion of” abuse, the mark on L.A.W.’s leg and his statements to the 3 school nurse and forensic examiner did provide a basis for suspicion. The only similarity 4 between the present case and the Wallis case is the fact that SACAC acts in coordination 5 with law enforcement to conduct forensic medical examinations. 6 The evidence shows that SACAC does not have an official policy regarding 7 notification of parents and that Dr. Woolridge conducted one FME upon referral from a 8 law enforcement officer who had not obtained court approval or parental consent. This 9 evidence is insufficient to show the existence of a standard operating procedure.9 Because 10 Plaintiffs fail to provide evidence from which a reasonable juror could infer that an illegal 11 policy exists, the Court will grant summary judgment in favor of SACAC.10 12 IV. Claims 5 and 6 against Dr. Woolridge 13 In Claim Five, Plaintiffs allege Dr. Woolridge violated L.A.W.’s Fourth 14 Amendment rights by conducting an FME without proper authorization. (Doc. 204 at 39– 15 40). In Claim Six, Plaintiffs allege Dr. Woolridge violated L.A.W. and Brian Wright’s First 16 and Fourteenth Amendment rights by conducting the FME without a court order or parental 17 consent. (Id. at 40–41). To prove their § 1983 claims, Plaintiffs must show that (1) acts by 18 the defendant (2) under color of state law (3) deprived them of federal rights, privileges, or 19 immunities and (4) caused them damage. Thornton v. City of St. Helens, 425 F.3d 1158, 20 1163–64 (9th Cir. 2005) (cleaned up). In their motion for summary judgment, Plaintiffs 21 argue the undisputed evidence establishes all of the elements of their claims. As to the 22 second element—state action—Plaintiffs assert that the FME could only have been 23 accomplished under color of state custom and usage. (Doc. 284 at 2.) 24 If Dr. Woolridge did not act under color of state law, Dr. Woolridge cannot be liable 25 9 There is no evidentiary support cited for Plaintiffs’ assertion that “the Defendant admits 26 the customary practice that Wallis ruled to be unconstitutional.” (Doc. 289 at 5.) The assertion is also ambiguous. 27 10 In light of this conclusion, the Court does not address SACAC’s alternative argument that exigent circumstances were present that would excuse the requirement of obtaining 28 parental consent or court order to examine L.A.W., (Doc. 300 at 11). See Mann, 907 F.3d at 1166. 1 for violating Plaintiffs’ constitutional rights. If Dr. Woolridge is a state actor, the Court 2 must determine whether he can invoke defenses available to state actors including qualified 3 immunity. A finding of “state action” does not require the Court to find that Dr. Woolridge 4 is entitled to qualified immunity. Jensen v. Lane Cnty., 222 F.3d 570, 576 (9th Cir. 2000). 5 Because it appears that Dr. Woolridge is likely a state actor,11 the Court turns to the issue 6 of qualified immunity. 7 A. Availability of Qualified Immunity 8 The doctrine of “[q]ualified immunity strikes a balance between compensating those 9 who have been injured by official conduct and protecting government’s ability to perform 10 its traditional functions.” Wyatt v. Cole, 504 U.S. 158, 167 (1992) (citing Harlow v. 11 Fitzgerald, 457 U.S. 800 (1982)). “Among the important rationales for qualified immunity 12 are the preservation of the government’s ability to serve the public good by zealous 13 enforcement of the law and the avoidance of deterring talented candidates from entering 14 government employment for fear of liability.” Jensen v. Lane County, 222 F.3d 570, 576 15 (9th Cir. 2000) (citing Wyatt, 504 U.S. at 167). Qualified immunity protects government 16 employees “from liability for civil damages insofar as their conduct does not violate clearly 17 11 The determination of whether a private party is a state actor for purposes of § 1983 is a 18 fact-bound inquiry. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982). Because the determination is dependent on the facts, Dr. Woolridge has argued that summary judgment 19 on that issue is not proper. (Docs. 297 at 2; 402 at 2.) Although the inquiry of state action is “necessarily fact-bound,” Lugar, 457 U.S. at 939, the facts necessary to make such 20 determination are within the record. Applying the “close nexus/joint action test,” it appears that “there is such a close nexus between the State and the challenged action that seemingly 21 private behavior may be fairly treated as that of the State itself.” Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). In conducting the 22 FME, Dr. Woolridge acted at the behest of a law enforcement officer and pursuant to an established protocol designed solely to accomplish the state’s purpose of enforcing its laws. 23 See Jensen v. Lane Cnty., 222 F.3d 570, 574 (9th Cir. 2000) (holding contract services provided by licensed private physicians to municipal governments in the detention and 24 examination of persons brought into treatment facilities by police officers as possible mental patients constituted state action); Goichman v. Rheuban Motors, Inc., 682 F.2d 25 1320, 1322 (9th Cir. 1982) (holding a towing company acted under the color of state law by towing the plaintiff’s vehicle for the purpose of enforcing traffic laws). SACAC exists 26 to collaborate with law enforcement in the furtherance of child abuse investigations. (Doc. 285, PSOF ¶¶ 6–7; Doc. 301, CSOF ¶¶ 6–7.) FMEs are used to document evidence of child 27 abuse that may be helpful in criminal investigations and the results are provided to DCS and law enforcement. (Doc. 274-1 at 34.) Dr. Woolridge stated that he could infer pictures 28 taken by law enforcement during the FME were to aid their investigation of child abuse. (Doc. 274-1 at 18.) 1 established statutory or constitutional rights of which a reasonable person would have 2 known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing Harlow, 457 U.S. at 818). 3 Before qualified immunity can be invoked by a private citizen such as Dr. 4 Woolridge, the Court must find: (1) such defense is categorically available to him, and (2) 5 he is entitled to the defense. Jensen, 222 F.3d at 576 (citing Richardson v. McKnight, 521 6 U.S. 399 (1997)). To determine whether the defense is categorically available, the court 7 must consider the historical availability and the policy considerations underpinning the 8 doctrine.12 Id. at 576. 9 In their Supplemental Memorandum, Plaintiffs argue Dr. Woolridge is categorically 10 precluded from asserting qualified immunity based on the binding precedent of Jensen.13 11 (Doc. 395 at 2.) But the availability of qualified immunity is fact dependent. Filarsky v. 12 Delia, 566 U.S. 377, 393 (2012) (noting Richardson was a self-consciously “narrow[ ]” 13 decision that answered the “immunity question narrowly, in the context in which it arose”). 14 In discussing the Richardson factors, the Supreme Court in Filarsky reiterated: 15 The [Richardson] Court made clear that its holding was not meant to foreclose all claims of immunity by private 16 individuals. Instead, the Court emphasized that the particular circumstances of that case—“a private firm, systematically 17 organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the 18 government, undertak[ing] that task for profit and potentially in competition with other firms”—combined sufficiently to 19 mitigate the concerns underlying recognition of governmental immunity under § 1983. . . . Nothing of the sort is involved 20 12 The parties do not address the historical underpinnings of the policy. 21 13 Plaintiffs also argue that the only issue presented by Plaintiffs’ partial motion for summary judgment is whether Dr. Woolridge is a state actor and his actions subject to 22 liability and, therefore, the Court cannot defer entering judgment in favor of Plaintiffs to consider the untimely affirmative defense. (Doc. 395.) This argument is mistaken for two 23 reasons. First, Dr. Woolridge did oppose Plaintiffs’ motion on qualified immunity grounds, albeit initially incorrectly citing state rather than federal law. (See Woolridge Opposition, 24 Doc. 296 (referring to arguments in Dr. Woolridge’s motion for summary judgment) and Woolridge’s Motion for Summary Judgment, Doc. 297.) Second, qualified immunity can 25 be decided at any time, and ordinarily is decided long before trial. See Hunter v. Bryant, 502 U.S. 224, 228 (1991). Plaintiffs were provided notice of Dr. Woolridge’s intent to 26 pursue a qualified immunity defense in Dr. Woolridge’s answer, motion for summary judgment, opposition to Plaintiffs’ motion for summary judgment, and at oral argument, 27 and given an opportunity to brief the issue, which they did, (see Doc. 395). Plaintiffs do not identify any factual disputes that the Court would need to resolve to address the 28 applicability of qualified immunity. 1 here, or in the typical case of an individual hired by the government to assist in carrying out its work. 2 3 Id. at 393. The factors at play in Jensen are not present here. 4 To determine the historical availability of qualified immunity, the Court must 5 consider “the common law as it existed when Congress passed § 1983 in 1871.” Id, 384. 6 At common law, courts “did not draw a distinction between public servants and private 7 individuals engaged in public service in according protection to those carrying out 8 government responsibilities.” Id. at 387. In Filarsky, the Supreme Court stated that § 1983 9 is to be read “in harmony with general principles of tort immunities and defenses,” unless 10 those principles have been abrogated by the legislature. Id. at 389. One of these principles 11 is that immunity “should not vary depending on whether an individual working for the 12 government does so as a full-time employee, or on some other basis.” Id. The Supreme 13 Court pointed to numerous examples of individuals receiving immunity for actions taken 14 during temporary public service. Id. at 388–89. The Court concluded that a private attorney 15 working part-time for the City of Rialto, CA to conduct an internal investigation had 16 common-law grounds for claiming immunity. Id. at 393–94. 17 Similarly, Dr. Woolridge was carrying out governmental responsibilities by 18 collecting evidence for an investigation of child abuse on behalf of law enforcement and 19 DCS. The Plaintiffs do not allege that Dr. Woolridge was doing so with malice or in bad 20 faith. There is no dispute that a doctor employed directly by law enforcement or DCS on a 21 full-time basis to conduct similar examinations would be entitled to seek the protection of 22 qualified immunity. See id. at 394-95. Accordingly, the historical common law supports 23 the availability of qualified immunity to Dr. Woolridge. 24 The policy justifications for allowing the defense of qualified immunity include: (1) 25 “protecting the public from unwarranted timidity on the part of public officials” and 26 “encouraging the vigorous exercise of official authority”; (2) preventing lawsuits from 27 distracting officials from their governmental duties; and (3) “ensuring that talented 28 candidates are not deterred by the threat of damages suits from entering public service.” 1 Jensen, 222 F.3d at 577 (citing Richardson, 521 U.S. at 408). In Jensen, the plaintiff sued 2 a psychiatrist under § 1983, for involuntarily confining plaintiff for evaluation, pursuant to 3 state statute, but without probable cause. Jensen, 222 F.3d at 573. The psychiatrist worked 4 for a private firm that contracted with the county to provide mental health evaluations to 5 detainees at the county psychiatric hospital. Id. The Ninth Circuit held that the defense of 6 qualified immunity was not available to the psychiatrist. Id. at 580. Referencing the 7 Richardson factors, the court reasoned: 8 concerns about timidity are moderated by the likelihood that [the private firm’s] failure to adequately complete the 9 commitment and psychiatric care duties for which it has contracted will lead to its replacement by competitors. 10 Likewise, the threat of liability can be overcome by private firms subject to market forces through such devices as 11 monetary incentives, insurance, and indemnity agreements. If the state finds that the threat of liability is deterring talented 12 private doctors or doctor groups from contracting with it, the state can raise compensation levels and provide other 13 incentives to maintain high levels of quality participation in this joint undertaking. These are exactly the market forces 14 contemplated in Richardson and Halvorsen. 15 Id. at 578. 16 Unlike the private firm in Jensen, SACAC, by virtue of its structure, is not subject 17 to similar market forces. SACAC was created through the agreement of municipal entities 18 for the purpose of conducting forensic interviews and examinations to aid law enforcement 19 in the investigation of child abuse. SACAC has no other function. SACAC is a non-profit 20 and the only identified provider of these types of services in Pima County. There do not 21 appear to be other medical providers who would organize to replace SACAC to provide 22 FMEs should the threat of liability deter talented private doctors from contracting with 23 SACAC. Allowing qualified immunity as a defense would protect the public from 24 unwarranted timidity on the part of SACAC’s doctors and encourage the vigorous exercise 25 of their responsibilities. 26 In Jensen, the court stated the third Richardson factor15 worked against finding 27 15 The court in Jensen also noted that the threat of legal action distracting officials from 28 their governmental duties, the second Richardson factor, is not independently compelling because qualified immunity never provides complete protection from the distractions of 1 qualified immunity on the part of the psychiatrist because: “If the state finds that the threat 2 of liability is deterring talented private doctors or doctor groups from contracting with it, 3 the state can raise compensation levels and provide other incentives to maintain high levels 4 of quality participation in this joint undertaking.” Id. But, as discussed above, because the 5 market forces inherent in the contractual relationship in Jensen are not present here, the 6 court’s reasoning does not readily apply. Dr. Woolridge is a part-time employee at 7 SACAC. (Doc. 274-1 at 78.) He also works at Banner Hospital and as a professor at the 8 University of Arizona Medical School. (Id.) It is unlikely that increased compensation 9 would cause him to continue to perform these examinations knowing he could be exposed 10 to legal liability for assisting law enforcement in child abuse investigations. 11 For similar reasons, other courts have concluded that a private doctor performing 12 services under a contract with the government may invoke qualified immunity. In Estate 13 of Jensen v. Clyde, 989 F.3d 848 (10th Cir. 2021), the court found that a private doctor 14 providing medical care to prisoners and training to officers was entitled to seek qualified 15 immunity. The physician and his physician’s assistant provided a discrete function to the 16 prison, and while they had some decision-making authority, the county was ultimately in 17 charge of implementing medical policies and training their corrections officers. Id at 856. 18 Further, due to the limited ability of the doctor to prescribe medications or authorize 19 elective surgeries, the court found that the nature of the doctor’s part-time role “does not 20 resemble a private doctor working in a private firm.” Id. In Perniciaro v. Lea, 901 F.3d 21 241 (5th Cir. 2018), the court found that part-time contract psychiatrists working at a state 22 mental hospital were entitled to raise the defense of qualified immunity, because their 23 similarly situated full-time government counterparts would also be entitled to such defense. 24 For these reasons, the Court finds that the defense of qualified immunity is 25 litigation. Jensen, 222 F.3d at 579. According to the Jensen court, where state law does not provide immunity, the distraction of litigation may be foreseeable. Id. As described in Dr. 26 Woolridge’s previous motion for summary judgment (Doc. 297), Arizona law specifically affords immunity to doctors conducting FMEs, regardless of whether they are publicly or 27 privately employed. A.R.S. § 13-3620(J). While existence of such state immunity tends to favor Dr. Woolridge in this analysis, ultimately, the existence of a historical affirmative 28 defense alone is insufficient to entitle a defendant to qualified immunity. See Wyatt, 504 U.S. at 165. 1 categorically available to Dr. Woolridge. The Court next considers whether the defense 2 applies in this case. 3 B. Entitlement to Qualified Immunity 4 “[T]o overcome qualified immunity, Plaintiffs must show that [Dr. Woolridge] (1) 5 ‘violated a federal statutory or constitutional right’ and (2) ‘the unlawfulness of [his] 6 conduct was clearly established at the time.’” Ballentine v. Tucker, 28 F.4th 54, 61 (9th 7 Cir. 2022) (quoting District of Columbia v. Wesby, 583 U.S. 48, 62–63 (2018)). It is within 8 the court’s discretion to bypass the first prong and determine qualified immunity applies 9 because the right at issue was not clearly established. Id. at 61. To find a clearly established 10 right, the court must consider the right at issue in a particularized sense, rather than “as a 11 broad general proposition.” Dunn v. Castro, 621 F.3d 1196, 1200–01 (9th Cir. 2010). 12 “Plaintiffs must point to prior case law that articulates a constitutional rule specific enough 13 to alert these [officials] in this case that their particular conduct was unlawful. …[T]he 14 prior precedent must be ‘controlling’—from the Ninth Circuit or Supreme Court—or 15 otherwise be embraced by a ‘consensus’ of courts outside the relevant jurisdiction.” Sharp 16 v. Cnty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (citation omitted). 17 “The Supreme Court has repeatedly stressed that courts must not define clearly 18 established law at a high level of generality.” Moore v. Garnand, 83 F.4th 743, 749 (9th 19 Cir. 2023) (quoting Ballentine, 28 F.4th at 64). “The general proposition, for example, that 20 an unreasonable search or seizure violates the Fourth Amendment is of little help in 21 determining whether the violative nature of particular conduct is clearly established.” 22 Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). Whether a right is clearly established turns 23 on whether it is “sufficiently definite that any reasonable official in the defendant’s shoes 24 would have understood he was violating it.” Nicholson v. City of Los Angeles, 935 F.3d 25 685, 695 (9th Cir. 2019) (quoting Kisela v. Hughes, 584 U.S. 100, 105 (2018)). 26 The Court finds that Plaintiffs have failed to identify clearly established law that 27 establishes a doctor acts in violation of the constitution by conducting an FME at the 28 request of law enforcement to ascertain whether a child’s injury is the result of child abuse. || The cases relied on by Plaintiffs in support of their Motion do not address the liability of a 2|| doctor performing medical examinations on children exhibiting signs of physical abuse. 3|| See Wallis, 202 F.3d at 1142 (concluding that a genuine issue of material fact existed as to whether the Wallises’ constitutional rights were violated by police officers who took 5 || custody of their daughters and subjected the children to invasive medical examinations); 6|| Mann, 907 F.3d at 1167 (concluding that the county’s policy of subjecting children to || medical exams without parental notification or consent was unreasonable); see also Wallis, 8 || 202 F.3d at 1145 (Rymer, P., dissenting) (mentioning the doctor who conducted the exams || was dismissed on immunity grounds). Because the Plaintiffs have failed to identify any 10 || case that would clearly establish a rule of conduct sufficiently definite that any reasonable 11 || doctor in Dr. Woolridge’s shoes would have understood he was violating it, and because 12 || the Court concludes that the defense of qualified immunity is available to Dr. Woolridge, 13 || the Court will enter judgment in favor of Dr. Woolridge and dismiss him from this action. Accordingly, 15 IT IS ORDERED: 16 1. Defendant SACAC’s Motion for Summary Judgment (Doc. 273) is granted. 17 2. Plaintiffs’ Motion for Partial Summary Judgment against Dr. Woolridge (Doc. 283) 18]| is denied. 19 3. Plaintiffs’ Motion for Partial Summary Judgment against SACAC (Doc. 288) is || denied. 21 4. Defendants SACAC and Dr. Dale Woolridge are dismissed from this case. 22 5. The Clerk of Court shall enter judgment in favor of the Defendants. The Clerk of 23 || Court is directed to close this case. 24 Dated this 30th day of September, 2024. 25 26 □ 27 C J oabes G. as 28 United States District Judge -17-