John Benavidez v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN BENAVIDEZ; HEATHER No. 19-55274
BENAVIDEZ; J.C.B., a minor; A.J.B.,
a minor by and through their D.C. No.
Guardian Ad Litem Diana 3:18-cv-00558-
Benavidez, CAB-AGS
Plaintiffs-Appellants,

v. OPINION

COUNTY OF SAN DIEGO; JENNIFER
LISK; BENITA JEMISON,
Defendants-Appellees,

and

SAN DIEGO HEATH AND HUMAN
SERVICES AGENCY; POLINKSY
CHILDREN'S CENTER; DOES, 1
through 50 inclusive,
Defendants.

Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted July 7, 2020
Pasadena, California
2 BENAVIDEZ V. COUNTY OF SAN DIEGO

Filed April 12, 2021

Before: Marsha S. Berzon and Daniel P. Collins, Circuit
Judges, and Gary S. Katzmann, * Judge.

Opinion by Judge Katzmann;
Concurrence by Judge Collins

SUMMARY **

Civil Rights

The panel affirmed in part and reversed in part the
district court’s dismissal of an action brought pursuant to 42
U.S.C. § 1983 asserting that County social workers used
judicial deception and violated plaintiffs’ constitutional
rights in securing a juvenile court order resulting in the
medical examinations of plaintiffs’ minor children while the
children were in protective custody, without notice to the
parents or their consent.

The panel first held that the district court correctly ruled
that the Rooker-Feldman doctrine did not bar the exercise of
subject matter jurisdiction over this case. The panel held that
plaintiffs’ claims were not a de facto appeal from the
juvenile court orders. Instead, plaintiffs alleged that the
misrepresentations and inaction by social workers and other

The Honorable Gary S. Katzmann, Judge for the United States
*

Court of International Trade, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 BENAVIDEZ V. COUNTY OF SAN DIEGO 3

County employees resulted in violations of their
constitutional rights.

The panel held that the amended complaint sufficiently
alleged facts in support of a reasonable inference that County
social workers committed judicial deception that allowed
them to be held liable for the resulting unconsented-to
medical examinations. The amended complaint alleged that
social workers knowingly and falsely represented to the
juvenile court that they had made reasonable efforts to notify
the parents about the medical examinations. The parents did
not learn of the examinations, however, until after their
children were released from custody. The allegations
supported a plausible inference that the social workers
submitted their report and request for court authorization
with at least a reckless disregard for the truth and the alleged
misrepresentations were material to the granting of the
juvenile court’s orders.

The claims were also sufficient under Fed. R. Civ. P. 9(b)
because they alleged with particularity a claim involving
fraud. Finally, by asserting that the parents did not have
knowledge of the medical examinations until after they took
place, the amended complaint also sufficiently alleged
Fourth and Fourteenth Amendment violations arising from
the examinations.

The panel held that the social workers were not entitled
to qualified immunity for the alleged unconstitutional
judicial deception and unconstitutional medical
examinations. The panel held that this court’s precedent
established the right to be free from judicial deception in
child custody proceedings. Thus, a reasonable social worker
would understand that providing false information
concerning notification to parents when requesting a
4 BENAVIDEZ V. COUNTY OF SAN DIEGO

juvenile court order for a medical examination on minors in
protective custody would violate or at least disregard a
substantial risk of a violation of the parents’ rights. The
panel therefore reversed the district court’s dismissal of the
claims against the social workers on qualified immunity
grounds and remanded for proceedings consistent with the
panel’s opinion.

The panel held that none of the allegations regarding the
County’s alleged unconstitutional policy, practice, custom,
or failure to train its employees provided factual support for
Monell liability. The panel noted that plaintiffs failed to
provide anything more than the 2015 County policy
pertaining to parental consent, which was allegedly violated,
and the facts of a single incident of an unconstitutional
medical examination and judicial deception. These
allegations were insufficient to establish a Monell claim.
Therefore, the panel affirmed the district court’s dismissal of
plaintiffs’ claims against the County.

Concurring in the judgment, Judge Collins stated that
this was a relatively straightforward case that did not warrant
the extended discussion and broader statements contained in
the majority opinion. Judge Collins wrote that the
complaint’s allegations were sufficient to state a plausible
claim of knowing and intentional judicial deception that
escaped qualified immunity. He also agreed that plaintiffs’
Monell claim was properly dismissed with prejudice,
because the operative complaint did not allege sufficient
facts to support such a claim.
 BENAVIDEZ V. COUNTY OF SAN DIEGO 5

COUNSEL

Donnie R. Cox (argued), Law Office of Donnie R. Cox,
Oceanside, California; Paul W. Leehey, Law Office of Paul
W. Leehey, Fallbrook, California; for Plaintiffs-Appellants.

Jeffrey P. Michalowski (argued) and Christina Snider,
Senior Deputies; Thomas E. Montgomery, County Counsel;
Office of County Counsel, San Diego, California; for
Defendants-Appellees.

OPINION

KATZMANN, Judge:

This appeal turns on the sufficiency of allegations in an
amended complaint asserting judicial deception and
violation of other constitutional rights in securing a court
order resulting in medical examinations of minors without
notice to or consent of the parents. The Benavidezes, John
and Heather Benavidez (“Parents”) and their children J.C.B.
and A.J.B. (“Minors”), assert claims against the County of
San Diego, the San Diego County Health and Human
Services Agency (“HHSA”), the Polinsky Children’s Center
(“PCC”) (collectively, “the County”) and the County’s
social workers, Jennifer Lisk and Benita Jemison (“Lisk and
Jemison”), based on medical examinations of Minors during
their time in protective custody. The Benavidezes seek to
hold Lisk and Jemison liable under 42 U.S.C. § 1983 for
unconstitutional judicial deception in seeking a state juvenile
court order to authorize unconstitutional medical
examinations of the Minors without notice to or consent of
the Parents. They further seek to hold the County liable for
the unconstitutional medical examinations. The district
6 BENAVIDEZ V. COUNTY OF SAN DIEGO

court dismissed with prejudice the claim against Lisk and
Jemison based on qualified immunity and the claim against
the County based on a failure to allege Monell liability. We
affirm in part and reverse in part.

FACTUAL AND PROCEDURAL HISTORY

The Second Amended Complaint (“SAC”) alleges as
follows: Acting on behalf of the County, HHSA social
workers Lisk and Jemison obtained a protective custody
warrant and, with police assistance, removed the Minors
from their home to PCC. Three days later, on March 21,
2016, a California juvenile court held a detention hearing to
review the removal of the Minors and issued an “Order
Authorizing Medical Examination and Treatment” for each
of the Minors (collectively, “Orders”). The Parents were
present at the detention hearing. However, neither Lisk,
Jemison, nor any County employee discussed the medical
examinations with the Benavidezes before or after the
hearing. Furthermore, there was no discussion of medical
examinations at the hearing.

Prior to this hearing, the County submitted a Detention
Report to the court. The Report notably did not contain any
discussion of efforts made to obtain the Parents’ consent to
medical examinations of the Minors. The SAC alleges that
neither Lisk nor Jemison nor any County employee sought
the Parents’ consent or advised them of their right to be
present at the medical examinations of the Minors at any
point between the date of the Minors’ removal and the date
of the hearing and subsequent issuance of the Orders. These
alleged events contravene a policy enacted by the County in
2015 (“2015 Policy”), which required County employees to
obtain parental consent and to advise parents of their right to
be present at medical examinations at PCC.
 BENAVIDEZ V. COUNTY OF SAN DIEGO 7

As a result of the Orders, the Minors were subjected to
medical examinations at PCC on March 22, 2016, one day
after the hearing and four days after the Minors were
removed from their home. The medical examinations
included “a full body inspection including the children’s
genital and/or anal areas, obtaining urine to test, and drawing
blood and/or vaccinations.” The Parents were not informed
of these medical examinations until after they happened, did
not consent to these medical examinations, and were not
present or given the opportunity to be present at these
medical examinations. The Parents “did not become aware
that the examinations had occurred until after the Minor
Plaintiffs were released from PCC.” The Benavidezes then
appealed the juvenile court decisions involving removal of
the Minors from their home in California state court but did
not there challenge the medical examinations or related
Orders.

The Benavidezes filed this action in the U.S. District
Court for the Southern District of California on March 16,
2018. The Benavidezes amended their complaint on July 5,
2018, after the County filed a motion to dismiss. The district
court dismissed their first amended complaint, concluding
that it was a prohibited de facto appeal of the state court
decision under the Rooker-Feldman doctrine, failed to allege
constitutional violations, and failed to allege claims against
the County. The district court dismissed the complaint with
leave to amend. On November 9, 2018, the Benavidezes
filed the SAC. On February 12, 2019, the district court again
dismissed their complaint, this time with prejudice. The
district court concluded that: (1) the Rooker-Feldman
doctrine did not bar exercise of jurisdiction; (2) the
Benavidezes alleged constitutional violations in the medical
examinations; (3) the Benavidezes failed to allege a claim
against Lisk and Jemison because the government
8 BENAVIDEZ V. COUNTY OF SAN DIEGO

employees were entitled to qualified immunity; (4) the
Benavidezes failed to allege a claim against the County
because they did not allege “a direct causal link between a
municipal policy or custom and the alleged constitutional
deprivation”; and (5) further amendments would be futile, so
the case was dismissed with prejudice. The Benavidezes
timely appealed.

JURISDICTION

The district court had jurisdiction under 28 U.S.C.
§ 1331 and § 1343(a)(3). The Benavidezes timely filed
notice of appeal on March 8, 2019. This court has
jurisdiction of this appeal pursuant to 28 U.S.C. § 1291.

STANDARDS OF REVIEW

We review de novo a district court’s jurisdictional
determination under the Rooker-Feldman doctrine,
Manufactured Home Communities Inc. v. City of San Jose,
420 F.3d 1022, 1025 (9th Cir. 2005); a district court’s
dismissal for failure to state a claim, Palm v. L.A. Dep’t of
Water & Power, 889 F.3d 1081, 1085 (9th Cir. 2018); a
district court’s decision on qualified immunity, Thompson v.
Mahre, 110 F.3d 716, 721 (9th Cir. 1997); and a district
court’s decision on municipal liability under Monell v. Dep’t
of Soc. Servs., 436 U.S. 658 (1978); see, e.g., Dougherty v.
City of Covina, 654 F.3d 892, 897 (9th Cir. 2011). We
review for abuse of discretion a district court’s dismissal
with prejudice and without leave to amend. See OSU
Student All. v. Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).

DISCUSSION

The Benavidezes’ appeal involves two primary issues:
first, whether there is federal subject matter jurisdiction
 BENAVIDEZ V. COUNTY OF SAN DIEGO 9

where the County contends that the Rooker-Feldman
doctrine bars this claim as a de facto appeal of a state court
decision, second, whether the Benavidezes sufficiently
pleaded section 1983 liability against Lisk and Jemison in
light of qualified immunity and limited liability against
municipalities under Monell. As to these issues, we hold that
the Rooker-Feldman doctrine permits federal subject matter
jurisdiction over this claim, that the Benavidezes adequately
pleaded Lisk and Jemison’s section 1983 liability, and that
the district court did not abuse its discretion by dismissing
with prejudice the Benavidezes’ claims against the County.

I. The Rooker-Feldman Doctrine Does Not Bar Subject
Matter Jurisdiction.

As a threshold matter, we conclude that the district court
correctly ruled that the Rooker-Feldman doctrine does not
bar the exercise of subject matter jurisdiction over this case.
The district court held that the claims alleged were based on
the asserted legal wrongs committed by Lisk and Jemison
and the County’s corresponding policy and custom and were
not challenging the Orders issued by the juvenile court. The
County argues, as it did below, that the Benavidezes’ claims
constitute a prohibited de facto appeal of the juvenile court’s
decision, and thus the court does not have jurisdiction under
the Rooker-Feldman doctrine. We disagree.

The Rooker-Feldman doctrine derives its name from two
Supreme Court cases: Rooker v. Fidelity Trust Company,
263 U.S. 413 (1923), and D.C. Court of Appeals v. Feldman,
460 U.S. 462 (1983). “Under Rooker-Feldman, a federal
district court is without subject matter jurisdiction to hear an
appeal from the judgment of a state court.” Bianchi v.
Rylaarsdam, 334 F.3d 895, 896 (9th Cir. 2003). The
Rooker-Feldman doctrine bars lower federal courts from
exercising jurisdiction “to review the final determinations of
10 BENAVIDEZ V. COUNTY OF SAN DIEGO

a state court in judicial proceedings.” Doe & Assocs. Law
Offices v. Napolitano, 252 F.3d 1026, 1029 (9th Cir. 2001)
(citing Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995),
overruled on other grounds by Amphastar Pharm. Inc. v.
Aventis Pharma SA, 856 F.3d 696, 710 (9th Cir. 2017))
(other citations omitted). “Rooker-Feldman is a statute-
based doctrine, based on the structure and negative
inferences of the relevant statutes rather than on any direct
command of those statutes.” Noel v. Hall, 341 F.3d 1148,
1154–55 (9th Cir. 2003) (citation omitted). Plaintiffs thus
cannot come to federal court to seek “what in substance
would be appellate review of the state judgment.” Johnson
v. De Grandy, 512 U.S. 997, 1005–06 (1994) (citations
omitted).

Noel provided the following “general formulation” of the
Rooker-Feldman doctrine: “If a . . . plaintiff asserts as a legal
wrong an allegedly erroneous decision by a state court . . . ,
Rooker-Feldman bars subject matter jurisdiction in federal
district court. If . . . [a] plaintiff asserts as a legal wrong an
allegedly illegal act or omission by an adverse party, Rooker-
Feldman does not bar jurisdiction.” 341 F.3d at 1164.

Our case law makes clear that “this doctrine applies even
where the challenge to the state court decision involves
federal constitutional issues,” including section 1983 claims.
Napolitano, 252 F.3d at 1029 (citing Worldwide Church of
God v. McNair, 805 F.2d 888, 891 (9th Cir. 1986)); see
Branson, 62 F.3d at 291 (citations omitted). Furthermore,
the doctrine applies to both final and interlocutory decisions
from a state court. See Napolitano, 252 F.3d at 1030. The
doctrine does not depend on the availability of a forum;
instead, it exists to protect state courts from collateral attack
by a federal judgment. Id. In Kougasian v. TMSL, Inc.,
359 F.3d 1136 (9th Cir. 2004), however, we explained that
 BENAVIDEZ V. COUNTY OF SAN DIEGO 11

where a party alleges extrinsic fraud by an adverse party in
procuring a state court judgment, the Rooker-Feldman
doctrine does not apply, because such a claim does not
challenge the state court decision directly, id. at 1140–41.

The Benavidezes’ claims are not a de facto appeal from
the juvenile court Orders. Instead, they allege that the
misrepresentations by Lisk and Jemison and further inaction
by those social workers and other County employees
resulted in violations of their constitutional rights. As
discussed in more detail below, the Benavidezes’ claims are
based on section 1983, which provides a statutory cause of
action where state officials acting under color of law violate
constitutional rights. 42 U.S.C. § 1983. Despite the judicial
context and intermediate step of the juvenile court Orders,
the Benavidezes’ claims do not seek relief from or reversal
of the juvenile court’s Orders. Therefore, the Rooker-
Feldman doctrine does not serve as a jurisdictional bar to
their claims here.

The County fails to acknowledge that the Benavidezes
claim injury based on the alleged misrepresentation by Lisk
and Jemison that caused the juvenile court to issue the
Orders which authorized the medical examinations. In fact,
the Benavidezes challenge a legal wrong by Lisk and
Jemison preceding the issuance of the Orders, and the
County’s custom or failure to train to prevent against
unconstitutional medical examinations. As the district court
noted, the “alleged legal wrongs by Lisk and Jemison cannot
avoid scrutiny because they were successful in deceiving the
juvenile court.” Thus, the County is incorrect that the
Rooker-Feldman doctrine bars federal subject matter
jurisdiction.

This case is divergent from past cases in which the
Rooker-Feldman doctrine was held applicable. In Branson
12 BENAVIDEZ V. COUNTY OF SAN DIEGO

v. Nott, we determined that the Rooker-Feldman doctrine
barred a claim where the “complaint explicitly [sought]
reversal of the [California] appellate court’s decision.” 62
F.3d at 292. Similarly, in Napolitano, we explained that the
Rooker-Feldman doctrine barred jurisdiction where “the
state court had considered and rejected [plaintiff]’s
constitutional arguments” and “the district court could not
have found in favor of [plaintiff] on the constitutional claims
without holding that the state court had erred.” 252 F.3d at
1029–30. By contrast, the Benavidezes, for the first time,
challenge Lisk and Jemison’s alleged misrepresentation to
the state court, and the County’s alleged corresponding
liability for those wrongs. Cf. Johnson, 512 U.S. at 1006
(“The United States merely seeks to litigate its § 2 case for
the first time, and the Government’s claims, like those of the
private plaintiffs, are properly before the federal courts.”).

Even if the Benavidezes had directly challenged the
juvenile court decision, which they did not, the extrinsic
fraud corollary to the Rooker-Feldman doctrine would
apply. See Kougasian, 359 F.3d at 1141 (explaining that
extrinsic fraud is “not an error by [a] court,” but instead is “a
wrongful act committed by the party or parties who engaged
in the fraud”). The Benavidezes allege they did not become
aware of the medical examinations until after they took
place. This time sequence, they allege, precluded an
opportunity to be heard on the juvenile court’s Orders before
the medical examinations. And, they contend, the time
sequence also robbed them of their right to be present at
those medical examinations. As a result of the time
sequence, the Benavidezes had no opportunity to challenge
the Orders in state court, because they had no notice of the
examinations and because the examinations took place one
day after the juvenile court issued the Orders. Raising the
misrepresentation issue to the juvenile court or appealing the
 BENAVIDEZ V. COUNTY OF SAN DIEGO 13

Orders after the medical examinations had taken place would
have been pointless, because there was no undoing the
negative impact on the family of medical examinations that
had already taken place. Under the circumstances, the
extrinsic fraud corollary to the Rooker-Feldman doctrine
applies. See id. at 1140–41.

In sum, the district court correctly determined that the
Rooker-Feldman doctrine does not bar federal subject matter
jurisdiction over the Benavidezes’ claims.

II. The Benavidezes Sufficiently Pleaded Section 1983
Liability Against Lisk and Jemison, but Not Against
the County.

The Benavidezes brought suit pursuant to section 1983,
which, in relevant part, creates a cause of action for “the
deprivation of any right[], privilege[], or immunit[y] secured
by the Constitution” by individuals acting “under color of”
law. 42 U.S.C. § 1983. “To state a claim under § 1983, a
plaintiff must allege two essential elements: (1) that a right
secured by the Constitution or laws of the United States was
violated, and (2) that the alleged violation was committed by
a person acting under the color of State law.” Long v. County
of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing
West v. Atkins, 487 U.S. 42, 48 (1988)). In the SAC, the
Benavidezes alleged violations of their Fourth and
Fourteenth Amendment rights in relation to the medical
examinations, caused by Lisk and Jemison’s judicial
deception of the juvenile court in procuring the Orders for
the medical examinations. The Benavidezes claimed that
both constitutional violations were the result of actions by
the County, its sub-divisions, and its employees, specifically
Lisk and Jemison. The parties do not dispute the second
prong of the Benavidezes’ section 1983 claim—that the
14 BENAVIDEZ V. COUNTY OF SAN DIEGO

violation was allegedly committed by Lisk, Jemison, and
other County employees acting under color of law.

The district court dismissed the Benavidezes’ section
1983 claims in the SAC with prejudice. In assessing
dismissal of claims pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, the court must “accept factual
allegations in the complaint as true and construe the
pleadings in the light most favorable to the nonmoving
party.” Manzarek v. St. Paul Fire & Marine Ins. Co.,
519 F.3d 1025, 1031 (9th Cir. 2008) (citation omitted). To
survive a motion to dismiss under Rule 12(b)(6), a complaint
must allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A plausible claim includes “factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” United
States v. Corinthian Colls., 655 F.3d 984, 991 (9th Cir. 2011)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Under
the pleading standards of Rule 8(a)(2), a party must make a
“short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see also
United States v. United Healthcare Ins. Co., 848 F.3d 1161,
1180 (9th Cir. 2016) (discussing pleading requirements for
claims regarding fraud under Rule 9(b), for which dismissals
are “functionally equivalent” to Rule 12(b)(6)). A complaint
“that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Thus, “conclusory allegations of law and unwarranted
inferences are insufficient to defeat a motion to dismiss.”
Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).

The County seems to argue that the Benavidezes’ section
1983 claim regarding Lisk and Jemison’s alleged judicial
 BENAVIDEZ V. COUNTY OF SAN DIEGO 15

deception must meet the heightened standard of Rule 9(b),
which governs pleading claims involving fraud. Under Rule
9(b), a plaintiff “must state with particularity the
circumstances constituting fraud.” Fed. R. Civ. P. 9(b).
Particularity includes “‘the who, what, when, where, and
how of the misconduct charged,’ including what is false or
misleading about a statement, and why it is false[.]
Knowledge, however, may be pled generally.” United
Healthcare Ins., 848 F.3d at 1180 (citations omitted)
(quoting Ebeid ex rel. United States v. Lungwitz, 616 F.3d
993, 998 (9th Cir. 2010)). This heightened standard serves
the dual purpose of (1) giving defendants notice of the
alleged misconduct so that they may defend themselves and
(2) deterring plaintiffs from using complaints as a “pretext
for the discovery of unknown wrongs” while protecting
defendants and the courts from the costs associated with
these complaints. Id. (quoting Bly-Magee v. California,
236 F.3d 1014, 1018 (9th Cir. 2001)). However, “this
standard ‘does not require absolute particularity or a recital
of the evidence.’” Id. (quoting 5A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1298
(3d ed. 2016)). Further, “a complaint need not allege ‘a
precise time frame,’ ‘describe in detail a single specific
transaction’ or identify the ‘precise method’ used to carry
out the fraud.” Id. (quoting Cooper v. Pickett, 137 F.3d 616,
627 (9th Cir. 1997)).

A. Threshold Constitutional Violations

“The first inquiry in any § 1983 suit . . . is whether the
plaintiff has been deprived of a right ‘secured by the
Constitution and laws.’” Baker v. McCollan, 443 U.S. 137,
140 (1979). The SAC alleged that the County conducted the
medical examinations without notice to, consent from, or the
opportunity to be present for the Parents, and that Lisk and
16 BENAVIDEZ V. COUNTY OF SAN DIEGO

Jemison caused these circumstances through judicial
deception. The district court relied on our previous decisions
to hold that the Benavidezes sufficiently alleged conducting
the medical examinations on the Minors at PCC without
parental notice or consent violated their constitutional rights.
Specifically, Plaintiffs’ claims sufficiently alleged a
violation of their constitutional right to family association,
which “includes the right of parents to make important
medical decisions for their children, and of children to have
those decisions made by their parents rather than the state.”
The district court did not independently address the
Benavidezes’ claims in the context of a constitutional
violation through judicial deception, nor did it address
whether these claims satisfied the heightened pleading
standard under Rule 9(b).

i. Due Process Violation in Connection with
Judicial Deception

The Benavidezes argue that the SAC alleges that Lisk
and Jemison procured the juvenile court Orders through
judicial deception in violation of their due process rights.
The SAC alleges that: (1) Lisk and Jemison requested that
the juvenile court issue the Orders, (2) the Orders were based
on the representation by Lisk and Jemison that “reasonable
efforts” had been made to notify the Minors’ parents about
the medical examinations, (3) that representation was false,
and (4) Lisk and Jemison knew that it was false because they
had made no effort to notify the Parents. Furthermore, the
SAC alleges that there were no hearings other than the
Detention Hearing at which the Parents were present and
where the Parents could have been notified of the
examinations. Thus, the Benavidezes argue, the SAC
sufficiently alleged facts in support of a reasonable inference
that Lisk and Jemison committed judicial deception that
 BENAVIDEZ V. COUNTY OF SAN DIEGO 17

allows them to be held liable for the resulting unconsented-
to medical examinations. We agree.

We have previously recognized a constitutional right
under the Due Process Clause of the Fourteenth Amendment
to be free from judicial deception and fabrication of evidence
in the context of civil child custody cases. See Costanich v.
Dep’t of Soc. and Health Servs., 627 F.3d 1101,1108 (9th
Cir. 2010) (“[D]eliberately fabricating evidence in civil child
abuse proceedings violates the Due Process clause of the
Fourteenth Amendment when a liberty or property interest is
at stake . . . .”); Wallis v. Spencer, 202 F.3d 1126, 1142 (9th
Cir. 2000) (stating “parents have a right arising from the
liberty interest in family association to be with their children
while they are receiving medical attention” and “children
have a corresponding right to the love, comfort, and
reassurance of their parents while they are undergoing
medical procedures”).

“To support a § 1983 claim of judicial deception, a
plaintiff must show that the defendant deliberately or
recklessly made false statements or omissions that were
material to the finding . . . .” KRL v. Moore, 384 F.3d 1105,
1117 (9th Cir. 2004). A plaintiff who provides direct
evidence of false statements can allege deliberate fabrication
of evidence in violation of constitutional due process
guarantees. See Costanich, 627 F.3d at 1108. “Reporting
that a witness said something he or she did not cannot
reasonably be characterized as a recording error or a
misstatement,” but is instead fabricated evidence. Reynolds
v. County of San Diego, 224 F. Supp. 3d 1034, 1055 (S.D.
Cal. 2016) rev’d in part on other grounds sub nom. Reynolds
v. Bryson, 716 F. App’x 668 (9th Cir. 2018) (citation
omitted). Furthermore, in the search warrant context, we
have previously held that an omission of a fact necessary to
18 BENAVIDEZ V. COUNTY OF SAN DIEGO

establish probable cause presented a triable issue of material
facts about whether that omission “amounted to at least
reckless disregard for the truth.” Bravo v. City of Santa
Maria, 665 F.3d 1076, 1088 (9th Cir. 2011).

Examples of judicial deception in child protective
custody cases are illuminating. In Reynolds, a district court
held that omission of two words from medical notes was
“[a]t worst . . . a reporting error or misstatement” and not
sufficient evidence of deliberately or recklessly false
statements or material. 224 F. Supp. 3d at 1056 (citation
omitted). By contrast, in Costanich, we held that allegations
that a social worker falsely claimed to have interviewed
several witnesses in connection with a child protective
custody case presented a triable issue of material fact that
there was deliberate fabrication of evidence. 627 F.3d
at 1112–14. In Greene v. Camreta, 588 F.3d 1011 (9th Cir.
2009), vacated in part, 563 U.S. 692 (2011), 661 F.3d 1201
(9th Cir. 2011), we held that “proof, in the form of [an]
affidavit and deposition testimony, that [defendant] included
false statements in his affidavit requesting a protective
custody order,” id. at 1035, was sufficient to present a
genuine issue of material fact of judicial deception to which
qualified immunity did not apply and summary judgment
was inappropriate, see id. at 1035–36. The Benavidezes had
to allege judicial deception sufficient to meet the
constitutional standard, if not the heightened pleading
standard of Rule 9(b), to overcome the County’s motion to
dismiss under Rule 12(b)(6). The SAC alleges the following
facts regarding judicial deception:

30. Prior to the Detention Hearing,
Defendants LISK, JEMISON and DOES 1
through 50 submitted a Detention Report to
the court. . . . [In their report], LISK,
 BENAVIDEZ V. COUNTY OF SAN DIEGO 19

JEMISON and DOES 1 through 50, included
no such discussion of the Consent forms or of
the Minor Plaintiffs being submitted to
medical procedures, including examinations,
or of the parents being informed they could
be present . . . .

32. Both HEATHER and JOHN attended the
Detention Hearing on March 21, 2016. At no
time before, during, or after the hearing, or
prior to the children’s medical procedures,
including examinations, did Defendants
LISK, JEMISON and/or DOES 1 to 50 speak
with or notify the PARENTS of the physical
examinations at PCC, or attempt to gain their
consent for those examinations, or inform
them that they could be present during any
such examination . . .

34. During the March 21, 2016 Detention
Hearing (the only court hearing in this matter
prior to the children’s examinations), there
was no request by the COUNTY that the
judge make any order regarding physical
examinations to be conducted of the Minor
Plaintiffs.

35. Instead, at some time before or after the
March 21, 2016 Detention Hearing,
Defendants LISK, JEMISON and/or DOES 1
through 50 submitted a request that the Court
sign an “Order Authorizing Medical
Examination and Treatment” (hereinafter
“ORDER”) of the minor Plaintiffs.
20 BENAVIDEZ V. COUNTY OF SAN DIEGO

The SAC also includes the text of the Orders, which states
that the juvenile court found that there had been an effort by
the County to notify the Parents, or the Parents objected to
medical examinations, and/or the County made “reasonable
efforts to schedule the examination of the child for a time
when the parent or guardian is available to attend, but such
efforts have been unsuccessful.” Finally, the SAC alleges
that the Parents did not learn of the medical examinations
until after the Minors were released from protective custody.
These statements allege a violation of constitutional
prohibition on judicial deception and meet the heightened
pleading standard of Rule 9(b).

1. Judicial Deception Under the
Constitution

To successfully allege a violation of the constitutional
right to be free from judicial deception, the Benavidezes
must make out a claim that includes (1) a misrepresentation
or omission (2) made deliberately or with a reckless
disregard for the truth, that was (3) material to the judicial
decision. See Greene, 588 F.3d at 1035.

First, the Benavidezes allege a misrepresentation by
referring to the Detention Order and request for
authorization for medical examinations submitted by the
County through Lisk and Jemison. The SAC alleges that
these documents omitted the County’s failure to attempt to
notify the Parents, despite the Parents being present and in
contact with the County, and the subsequent Orders making
findings of notice.

Second, taking the complaint as true and construing its
allegations in the light most favorable to the Benavidezes,
those allegations support a plausible inference that Lisk and
Jemison submitted the Detention Report and request for
 BENAVIDEZ V. COUNTY OF SAN DIEGO 21

court authorization for medical examinations and did so with
at least reckless disregard for the truth. The Benavidezes
alleged that the Parents received no notice of the medical
examinations, that Lisk and Jemison submitted the
Detention Report, and that Lisk and Jemison requested
authorization for the medical examinations without
confirming that the Parents had been contacted, or that
contact had been attempted, regarding the medical
examinations. Thus, a plausible inference of a reckless
disregard for the truth can be made. See Costanich, 627 F.3d
at 1111 (explaining that both “an interviewer who
deliberately mischaracterizes witness statements” and “an
investigator who purposefully reports that she has
interviewed witnesses, when she has actually only attempted
to make contact with them, deliberately fabricates
evidence”). The alleged misrepresentations by Lisk and
Jemison are akin to falsely attributing statements to an
interviewee or falsely reporting that interviews took place
when they had not, situations we have previously recognized
as rising to the level of a deliberate misrepresentation. See
id.

Finally, the alleged misrepresentation was material to
granting of the juvenile court’s Orders. See Greene,
588 F.3d at 1035 (“The alleged misrepresentation was
‘material’ to the granting of the removal order if the Juvenile
Court would have declined to issue the order had [the
defendant] been truthful.”) (citation omitted). The SAC
creates a plausible inference that the juvenile court could not
have made findings related to parental consent and notice of
the medical examinations without the misrepresentations of
Lisk and Jemison. According to the SAC, the juvenile court
did not discuss the medical examinations at the hearing with
the Parents present, and there is no other probable source for
the information on which the court based its findings. The
22 BENAVIDEZ V. COUNTY OF SAN DIEGO

SAC, therefore, alleges a constitutional violation by making
out a claim based on violations of the Benavidezes’ right to
be free from judicial deception.

2. Judicial Deception under Rule 9(b)

The claims are also sufficient under Rule 9(b) because
they allege with particularity a claim involving fraud. The
SAC contained particular allegations in stating the who,
what, when, and where of the judicial deception. See United
Healthcare Ins., 848 F.3d at 1180. First, the SAC identifies
Lisk and Jemison as the social workers who presented the
Detention Report to the juvenile court. 1 Second, the SAC
alleges specific omissions regarding failure to notify the
Parents of the medical examinations to the juvenile court. It
does so by pointing to the 2015 Policy detailing the
requirements of notice or court authorization, the deficient

1
The SAC states, “Prior to the Detention Hearing, Defendants
LISK, JEMISON and DOES 1 through 50 submitted a Detention Report
to the court.” The County argues that including “Does 1 through 50”
indicates that the complaint does not allege with particularity specific to
each defendant the fraudulent statements or omissions. However, the
2015 Policy indicates that the Detention Report would have most likely
been submitted by the social workers involved in removing the children.
This, therefore, creates an inference that Lisk, having removed the
Minors from their parents’ custody in consultation with and under the
supervision of Jemison, would have been responsible for submitting the
deficient Detention Report. There being no other, more plausible
explanation behind the alleged events, viewing the complaint in the light
most favorable to the Benavidezes dictates the conclusion that the
Benavidezes alleged that Lisk and Jemison made misrepresentations or
omissions to the juvenile court. In any event, Plaintiffs represented that
they could, if allowed, address this issue through further amendment to
the complaint by clarifying that Lisk and Jemison were most likely the
parties to have made the misrepresentations. Providing an opportunity
for Plaintiffs to amend their complaint accordingly would provide useful
clarification on remand.
 BENAVIDEZ V. COUNTY OF SAN DIEGO 23

Detention Report and request for authorization, and the
findings of the Orders based on those submissions to the
juvenile court. The SAC makes clear that the juvenile court
did not discuss the medical examinations with the Parents,
and the 2015 Policy indicates that the Detention Report
would have likely come from Lisk and Jemison. Therefore,
only Lisk and Jemison could have made statements to the
court regarding notice to the Parents for the juvenile court to
make this finding. In all, viewing the complaint in the light
most favorable to the Benavidezes, the juvenile court would
not have made its findings without the misrepresentations of
Lisk and Jemison regarding notice.

Additionally, the Order, as described by the
Benavidezes, “is a form . . . clearly developed by the County
. . . to be handed to judicial officers for signature,” plausibly
by the involved social workers. The SAC further alleges that
the court received this information sometime between March
18, 2016, when the County removed the Minors from their
home, and the issuance of the Orders on March 21, 2018.
This window is sufficiently specific to plead fraud with
particularity. See United Healthcare Ins., 848 F.3d at 1180
(“[A] complaint need not allege ‘a precise time frame.’”
(quoting Cooper, 137 F.3d at 627)). These details put the
County and Lisk and Jemison on notice of the timing, subject
of, and parties to the alleged misrepresentation that is
sufficient for them to prepare a defense. The SAC therefore
alleges, with the requisite particularity under Rule 9(b), Lisk
and Jemison’s judicial deception.

ii. Fourth and Fourteenth Amendment Violations
in Connection with the PCC Medical
Examinations

The Benavidezes also allege that their constitutional
rights were violated when the Minors were medically
24 BENAVIDEZ V. COUNTY OF SAN DIEGO

examined at PCC without the Parents’ notice, consent, or an
opportunity to be present. The district court agreed, noting
that “a court order is not an alternative to parental notice.
Nor does the existence of a court order automatically entitle
the County to conduct the examinations outside of the
presence of the parents.”

We first addressed a family’s Fourth and Fourteenth
Amendment rights in the context of medical examinations of
children while in protective custody in Wallis, 202 F.3d
1126. In Wallis, we explained that “[p]arents and children
have a well-elaborated constitutional right to live together
without governmental interference” that “includes the right
of parents to make important medical decisions for their
children, and of children to have those decisions made by
their parents rather than the state.” 202 F.3d at 1136, 1141
(citations omitted). Thus, Wallis recognized the right of
parents to notice and consent or judicial authorization in
advance of medical examinations of their children, unless a
“reasonable concern that material physical evidence might
dissipate” or an “urgent medical problem” exists. Id. at 1141
(citations omitted). We explained that the Constitution also
provides the right of parents and children to have a parent
present at children’s medical examinations. Id. at 1142
(stating “parents have a right arising from the liberty interest
in family association to be with their children while they are
receiving medical attention” and “children have a
corresponding right to the love, comfort, and reassurance of
their parents while they are undergoing medical
procedures”).

We again addressed the constitutional right of parents to
be present at their children’s medical examinations in
Greene, 588 F.3d 1011. Relying on Wallis, we reiterated the
right of parents and children “to be with each other during
 BENAVIDEZ V. COUNTY OF SAN DIEGO 25

potentially traumatic medical examinations” absent limited,
valid circumstances. Id. at 1036. We noted that the
“children’s right to their mother’s comfort and their mother’s
right to provide such comfort were . . . at their apex” where
the medical examination included inspection of and
photographing of the child’s genitals. Id. at 1037.

We most recently addressed these constitutional rights in
Mann v. County of San Diego, 907 F.3d 1154 (9th Cir. 2018).
Mann involved medical examinations of children at PCC,
the same facility and type of examinations at issue here,
without notice to the children’s parents. See id. at 1158. We
concluded that, “under Wallis, the County is required to
notify the parents and obtain parental consent (or a court
order) in advance of performing the Polinsky medical
examinations, and permit parents to be present for these
examinations.” Id. at 1162. Where the County fails to notify
“parents about the examinations and [performs the
examinations] without obtaining either the parents’ consent
or judicial authorization,” the County violates the
constitutional rights of children and parents. Id. at 1161
(citing Wallis, 202 F.3d at 1141). First, the County “violates
parents’ Fourteenth Amendment substantive due process
rights.” Id. at 1160–61. Second, the County violates the
children’s Fourth Amendment “right to ‘be secure in their
persons . . . against unreasonable searches and seizures.’”
Id. at 1164 (ellipsis in original) (quoting U.S. Const. amend.
IV).

The Benavidezes pleaded unconstitutional medical
examinations on the Minors in violation of the rights of both
the Minors and the Parents. Our most recent case on point,
Mann, makes clear that the County is required to: (1) notify
the parents of a medical examination of their children;
(2) obtain parental consent or a court order in advance of the
26 BENAVIDEZ V. COUNTY OF SAN DIEGO

medical examination; and (3) permit the parent to be present
at the examination. Id. at 1162. While the juvenile court did
issue the Orders authorizing the medical examinations, the
Benavidezes alleged sufficient facts that the medical
examinations took place without their notice, consent, or
presence. At a minimum, these allegations are sufficient to
make out a violation of Mann’s requirement that parents
have an opportunity to be present, and, taking the allegations
as true and in the light most favorable to the Benavidezes,
they suffice to plead a constitutional violation as to the
medical examinations themselves. The district court
correctly rejected the County’s argument that the Orders
were all that was necessary to make the medical
examinations constitutional. Because the Benavidezes
pleaded that they did not have knowledge of the medical
examinations until after they took place, the Benavidezes
sufficiently alleged that the medical examinations on the
Minors at PCC violated their constitutional rights. See
Mann, 907 F.3d at 1160–61, 1164.

Thus, the SAC sufficiently alleged constitutional
violations by Lisk and Jemison, in the form of judicial
deception, and by the County and its employees, in the form
of unconstitutional medical examinations.

b. Lisk and Jemison’s Liability Under Section 1983
in Light of Qualified Immunity

The next inquiry is whether Lisk and Jemison can be held
liable under section 1983 for the alleged judicial deception
and unconstitutional medical examinations or whether
qualified immunity protects them from liability. The
Benavidezes argue that, because Lisk and Jemison’s alleged
judicial deception caused the subsequent unconstitutional
medical examinations, qualified immunity cannot shield
them from liability. The district court held that Lisk and
 BENAVIDEZ V. COUNTY OF SAN DIEGO 27

Jemison were entitled to qualified immunity for the alleged
unconstitutional medical examinations and thus could not be
held liable under section 1983. The district court noted that,
while “Wallis and Mann, and the other cases discuss[]
parents’ right to advance notice when the County intends to
conduct a medical examination of their children,” those
cases “say nothing about a constitutional right to notice from
particular individuals or notice in a particular form.” The
district court stated that “the Parents only had a
constitutional right to be notified of the medical
examinations, not a constitutional right to be notified by Lisk
and Jemison.” Therefore, the district court concluded that,
because no precedent clearly prohibited “presenting a
proposed order granting the County the right to conduct
medical examinations of the Minor Plaintiffs without having
provided notice to the Parents themselves, or having a good
faith basis to believe that the Parents had been notified by
someone else,” Lisk and Jemison were not on notice that
their conduct would make them liable for a violation of
Plaintiffs’ constitutional rights. Furthermore, the district
court concluded that the Benavidezes’ claims regarding Lisk
and Jemison’s alleged misrepresentation to the juvenile
court were conclusory and so not sufficient to state a claim.
Thus, the district court held, Lisk and Jemison were entitled
to qualified immunity with respect to the unconstitutional
medical examinations.

We reverse that holding and the dismissal of the claims
against Lisk and Jemison. Because the district court
examined whether there was a clearly established
constitutional right at the time of Lisk and Jemison’s actions
through the lens of unconstitutional medical examinations
on children in protective custody, it incorrectly concluded
that Lisk and Jemison are entitled to qualified immunity.
28 BENAVIDEZ V. COUNTY OF SAN DIEGO

Lisk and Jemison are not entitled to qualified immunity for
unconstitutional judicial deception.

“Qualified immunity shields government actors from
civil liability under 42 U.S.C. § 1983 if ‘their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’”
Castro v. County of Los Angeles, 833 F.3d 1060, 1066 (9th
Cir. 2016) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). The purpose of qualified immunity is to
“give[] government officials breathing room to make
reasonable but mistaken judgments by protecting all but the
plainly incompetent or those who knowingly violate the
law.” Hardwick v. County of Orange, 844 F.3d 1112, 1117
(9th Cir. 2017) (alteration omitted) (quoting City & County
of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015)).
For a court to determine that a state actor is not entitled to
qualified immunity under section 1983, there must be a
constitutional violation on the facts alleged, and the
constitutional right violated must be “clearly established.”
Saucier v. Katz, 533 U.S. 194, 201 (2001). The “clearly
established” requirement guards state actors from liability
where “the law did not put the officer on notice that his
conduct would be clearly unlawful.” Id. at 202. Having
established above that the SAC meets the first prong of this
inquiry, we turn to the second: whether the constitutional
rights at issue were “clearly established” so as to put Lisk
and Jemison on notice that their conduct would violate the
Constitution.

Plaintiffs bear the burden of proving that a constitutional
right “was clearly established at the time of the incident.”
Greene, 588 F.3d at 1031 (citation omitted). “For a
constitutional right to be clearly established, its contours
‘must be sufficiently clear that a reasonable official would
 BENAVIDEZ V. COUNTY OF SAN DIEGO 29

understand that what he is doing violates that right.’” Hope
v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). A constitutional right
is clearly established where a Supreme Court case or a case
within the relevant circuit prohibits the particular conduct at
issue. Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir.
2004). “[W]hile closely analogous prior case law involving
an identical fact context is not required for qualified
immunity to be withheld, the unlawfulness of the action in
question must be apparent in light of some pre-existing law.”
Devereaux v. Perez, 218 F.3d 1045, 1053 (9th Cir. 2000)
(citing Mendoza v. Block, 27 F.3d 1357, 1361–62 (9th Cir.
1994)).

Our precedent establishes the right to be free from
judicial deception in child custody proceedings. See, e.g.,
Costanich, 627 F.3d at 1111–12 (“We have previously held
that when genuine issues of material fact arise regarding
fabrication of evidence in a child abuse investigative report,
a police officer is not entitled to qualified immunity because
‘[c]redibility is an issue for the trier of fact.’”) (alteration in
original) (quoting McSherry v. City of Long Beach, 560 F.3d
1125, 1130 (9th Cir. 2009), withdrawn and superseded by
584 F.3d 1129). Most analogous to the Benavidezes’ claims
is Greene, in which we concluded that a defendant social
worker was not entitled to qualified immunity “as to the false
representation claim, as the [plaintiffs’] right to be free from
judicial deception in securing the removal order was clearly
established at the time of [defendant’s] alleged
misrepresentations to the court.” 588 F.3d at 1034. Prior
cases establishing this right in the context of protective
custody were decided well before the date of the alleged
conduct in March 2016. Therefore, Lisk and Jemison had
fair warning that material omissions and misrepresentations
30 BENAVIDEZ V. COUNTY OF SAN DIEGO

with a deliberate disregard for the truth to a juvenile court
would violate the Constitution.

It was reasonably foreseeable that unconstitutional
misrepresentations to the juvenile court would result in
medical examinations on the Minors without their parents’
knowledge or consent. Thus, a reasonable social worker
would understand that providing false information
concerning notification to parents when requesting a
juvenile court order for a medical examination on minors in
protective custody would violate or at least disregard a
substantial risk of a violation of the Parents’ rights. Cf.
Hope, 536 U.S. at 739. Lisk’s and Jemison’s
misrepresentations to the juvenile court set in motion a path
by which the Minors would be subjected to unconstitutional
medical examinations. This scenario is comparable to an
individual who provides false information to obtain a search
warrant. Cf. Mann, 907 F.3d at 1164 (citing U.S. Const.
amend. IV). Regardless of whether they were responsible
for issuing or executing a warrant that resulted in an
unconstitutional search, their judicial deception alone is
sufficient to overcome their qualified immunity. See Hervey
v. Estes, 65 F.3d 784, 788 (9th Cir. 1995) (“[I]f an officer
‘submitted an affidavit that contained statements he knew to
be false or would have known were false had he not
recklessly disregarded the truth[,] . . . he cannot be said to
have acted in an objectively reasonable manner,’ and the
shield of qualified immunity is lost.” (quoting Branch v.
Tunnell, 937 F.2d 1382, 1387 (9th Cir. 1991), overruled on
other grounds in Galbraith v. County of Santa Clara,
307 F.3d 1119 (9th Cir. 2002))); Whitaker v. Garcetti,
486 F.3d 572, 581 (9th Cir. 2007) (“A seizure conducted
pursuant to a warrant obtained by judicial deception violates
the Fourth Amendment.” (citation omitted)). Thus, Lisk and
Jemison, through their alleged judicial deception, can be
 BENAVIDEZ V. COUNTY OF SAN DIEGO 31

held liable for the unconstitutional medical examinations.
We reverse the dismissal by the district court as to the claims
against Lisk and Jemison and hold that Lisk and Jemison are
not entitled to qualified immunity.

c. The County’s Liability Under Section 1983 in
Light of Monell

The second claim of the SAC alleges that the County is
liable for its employees’ conducting unconstitutional
medical examinations. The district court held that the
County could not be held liable under section 1983 for the
alleged constitutional violations because the Benavidezes
“failed to allege a direct causal link between a County
policy, custom, or practice and the alleged constitutional
violations.” We agree and affirm dismissal of the claims
against the County.

The Supreme Court in Monell held that municipalities
may only be held liable under section 1983 for constitutional
violations resulting from official county policy or custom.
436 U.S. at 694. “[A] municipality cannot be held liable
solely because it employs a tortfeasor—or, in other words, a
municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Id. at 691. The custom or
policy must be a “deliberate choice to follow a course of
action . . . made from among various alternatives by the
official or officials responsible for establishing final policy
with respect to the subject matter in question.” Castro,
833 F.3d at 1075 (ellipsis in original) (quoting Pembaur v.
City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality
opinion)).

The Supreme Court has made clear that policies can
include written policies, unwritten customs and practices,
failure to train municipal employees on avoiding certain
32 BENAVIDEZ V. COUNTY OF SAN DIEGO

obvious constitutional violations, see City of Canton v.
Harris, 489 U.S. 378, 387 (1989), and, in rare instances,
single constitutional violations are so inconsistent with
constitutional rights that even such a single instance
indicates at least deliberate indifference of the municipality,
see Bd. of County Comm’rs v. Brown, 520 U.S. 397, 405–06.

The Benavidezes variously characterize their theory of
Monell liability as a policy, practice, or custom, inadequate
training or failure to train, and a single incident that indicates
a failure to adequately train.

With respect to the custom or policy rubric, after a
district court held that the County’s policy on medical
examinations conducted at PCC on children in protective
custody was unconstitutional, the County implemented its
2015 Policy. See Mann, 907 F.3d at 1159 (discussing
Swartwood v. County of San Diego, 84 F. Supp. 3d 1093
(S.D. Cal. 2014)). The district court concluded that “[t]he
SAC does not allege, and Plaintiffs do not argue, that this
2015 Policy caused the alleged violations of Plaintiffs’
constitutional rights. Instead, Plaintiffs essentially assume
that because the 2015 Policy allegedly was not followed
here, it also must not be followed in other situations.”

Failure to train may constitute a basis for Monell liability
where the failure amounts to deliberate indifference to the
rights of those who deal with municipal employees. City of
Canton, 489 U.S. at 388–89. Mere negligence will not
suffice to show Monell liability. Dougherty, 654 F.3d at 900
(citation omitted). To allege a failure to train, a plaintiff
must include sufficient facts to support a reasonable
inference (1) of a constitutional violation; (2) of a municipal
training policy that amounts to a deliberate indifference to
constitutional rights; and (3) that the constitutional injury
would not have resulted if the municipality properly trained
 BENAVIDEZ V. COUNTY OF SAN DIEGO 33

their employees. Blankenhorn v. City of Orange, 485 F.3d
463, 484 (9th Cir. 2007) (citing Lee v. City of Los Angeles,
250 F.3d 668, 681 (9th Cir. 2001)). “A municipality’s
culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train.” Connick v.
Thompson, 563 U.S. 51, 61 (2011) (citation omitted).

As to the single instance category, generally, a single
instance of unlawful conduct is insufficient to state a claim
for municipal liability under section 1983. See, e.g., Fed’n
of Afr. Am. Contractors v. City of Oakland, 96 F.3d 1204,
1216 (9th Cir. 1996). Single acts may trigger municipal
liability where “fault and causation” were clearly traceable
to a municipality’s legislative body or some other authorized
decisionmaker, Brown, 520 U.S. at 406. Where, for
example, a “city has armed its officers with firearms[,] . . .
the need to train officers in the constitutional limitations on
the use of deadly force can be said to be ‘so obvious,’ that
failure to do so could properly be characterized as deliberate
indifference to constitutional rights.” City of Canton,
489 U.S. at 390 n.10.

Each of the Benavidezes’ three Monell theories fails.
First, the Benavidezes did not sufficiently allege that the
County’s written 2015 Policy caused the constitutional
violations. The 2015 Policy was adopted as part of the
settlement agreement that resolved the Swartwood dispute,
Mann, 907 F.3d at 1159, and requires municipal actors “to
obtain parental consent and provide advance notice to the
parents so that they can be present at the examination,” id. at
1166. Thus, our previous cases holding that the County’s
former policy was unconstitutional do not speak to the
County’s policy as of March 2016. Because the Benavidezes
allege that Lisk and Jemison violated the 2015 Policy, the
34 BENAVIDEZ V. COUNTY OF SAN DIEGO

SAC does not support Monell liability on the basis of that
policy.

Second, the Benavidezes argue that the previous cases
finding the County’s policy unconstitutional also evince a
custom deliberately indifferent to the rights of parents and
children that continues to this day, despite the adoption of
the 2015 Policy. However, one instance of County
employees violating the constitutional rights of parents and
children is insufficient to demonstrate a custom supporting
Monell liability. See City of Oklahoma City v. Tuttle,
471 U.S. 808, 824 (1985). The implementation of the 2015
Policy, which included the Detention Report form and the
juvenile court order form, indicates a changed policy or
custom since the court’s previous decisions. Absent a
pattern of conduct, alleging that the forms used are worded
in a way that allows County employees to circumvent the
County’s written policies in violation of the Constitution is
insufficient evidence of a County custom. Cf. Castro,
833 F.3d at 1075 n.10 (explaining that a plaintiff may prevail
on a Monell claim by “show[ing] a custom or practice of
violating a written policy”).

Third, the Benavidezes characterize their Monell claim
as a failure to train, but again support this claim only with a
single incident. As with single violations of a written policy,
“[T]hat a particular officer may be unsatisfactorily trained
will not alone suffice to fasten liability on the city, for the
officer’s shortcomings may have resulted from factors other
than a faulty training program.” City of Canton, 489 U.S.
at 390–91 (citations omitted); see also Blankenhorn,
485 F.3d at 485 (“Because Blankenhorn has limited his
proof to the City’s failure to train only Nguyen, he did not
meet his burden to withstand Defendants’ motion for
summary judgment.”).
 BENAVIDEZ V. COUNTY OF SAN DIEGO 35

The Benavidezes also argue that the single incident
exception previously identified by the Supreme Court should
directly apply here. Where, as here, the County employees
are not making life-threatening decisions, see Connick,
563 U.S. at 64, and because micromanaging of municipal
policies should be avoided, the single incident exception is
inapplicable.

Ultimately, none of the allegations regarding the
County’s alleged unconstitutional policy, practice, custom,
or failure to train its employees provides factual support for
Monell liability. Therefore, the court affirms the district
court’s dismissal of the Benavidezes’ claims against the
County.

The Benavidezes also appeal the district court’s
dismissal with prejudice. The district court clearly acted
within its discretion in dismissing the Benavidezes’ claims
against the County without leave to amend. See Albrecht v.
Lund, 845 F.2d 193, 195 (9th Cir. 1988) (“If the district court
determines that the ‘allegation of other facts consistent with
the challenged pleading could not possibly cure the
deficiency,’ then the dismissal without leave to amend is
proper.” (quoting Schreiber Distrib. Co. v. Serv-Well
Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986))).
Despite three attempts to allege facts to support Monell
liability, Plaintiffs failed to provide anything more than the
2015 Policy itself and the facts of a single incidence of an
unconstitutional medical examination and judicial
deception. As discussed above, these allegations were
insufficient to establish a Monell claim. The Plaintiffs
apparently did not attempt to remedy this deficiency after the
district court first identified it in relation to the first amended
complaint. We affirm the district court’s dismissal of the
complaint against the County with prejudice.
36 BENAVIDEZ V. COUNTY OF SAN DIEGO

CONCLUSION

For the reasons stated, we (1) AFFIRM the district
court’s determination that the Rooker-Feldman doctrine is
inapplicable; (2) REVERSE the district court’s dismissal of
the claims against Lisk and Jemison; and (3) AFFIRM the
dismissal with prejudice of the claims against the County.
Accordingly, the case is REMANDED to the district court
and shall proceed consistent with this opinion.

COLLINS, Circuit Judge, concurring in the judgment:

This is a relatively straightforward case that did not
warrant the extended discussion and broader statements
contained in the majority opinion. I therefore concur only in
the judgment.

I

Plaintiffs John and Heather Benavidez and their minor
children, J.C.B. and A.J.B., brought this § 1983 action
alleging that two county social workers, Jennifer Lisk and
Benita Jemison, engaged in “judicial deception” by
“misrepresenting and concealing facts” in their request for a
state juvenile court order that would allow them to conduct
intrusive examinations of the children without their parents’
knowledge, consent, or participation. 1 Based on these

1
The operative complaint states, somewhat equivocally, that the
judicial deception was committed by Lisk, Jemison, “and/or” unnamed
Doe defendants. But the district court effectively ignored these
placeholder Doe allegations by construing the complaint as alleging that
“Lisk and Jemison” were the ones who “presented the Orders to the
juvenile court for signature outside of the presence of the Parents and
 BENAVIDEZ V. COUNTY OF SAN DIEGO 37

allegations, Plaintiffs asserted a single § 1983 claim against
Lisk and Jemison, and they also asserted, under Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978), a single § 1983
claim against the County of San Diego (including its relevant
agencies). After Defendants moved to dismiss, the district
court concluded that the operative complaint did not
sufficiently allege that Lisk and Jemison engaged in judicial
deception and that, in the absence of such allegations, they
were entitled to qualified immunity. The court also
dismissed the Monell claim, concluding that the complaint
failed sufficiently to allege that any constitutional violation
was caused by an official policy of the County. Plaintiffs
timely appealed.

II

As an initial matter, Defendants contend that the district
court lacked subject matter jurisdiction under the Rooker-
Feldman doctrine, which “prohibits a federal district court
from exercising subject matter jurisdiction over a suit that is
a de facto appeal from a state court judgment.” Kougasian
v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004); see also
Lance v. Dennis, 546 U.S. 459, 463 (2006). The district

without personally notifying the Parents that they were doing so or
confirming that such notice had been given” and who “made affirmative
misrepresentations to the juvenile court.” At oral argument in this court,
Plaintiffs confirmed that, if given leave to amend, they would
affirmatively allege that Lisk and Jemison were the only two social
workers assigned to the case and therefore were the only parties who
could have been responsible for making the false statements.
Accordingly, for purposes of evaluating the adequacy of Plaintiffs’
allegations, I construe them as alleging that the judicial deception was
committed only by Lisk and Jemison and not by some unnamed Doe
defendant.
38 BENAVIDEZ V. COUNTY OF SAN DIEGO

court correctly rejected this argument as contrary to
controlling Ninth Circuit precedent.

We have held that, where a party commits “extrinsic
fraud” on a state court by submitting a false declaration and
preventing the other side from presenting any response, the
Rooker-Feldman doctrine will not preclude a federal court
from hearing certain claims based on injuries arising from
the state court order that resulted from this extrinsic fraud.
See Kougasian, 359 F.3d at 1140; cf. Reusser v. Wachovia
Bank, N.A., 525 F.3d 855, 859–60 (9th Cir. 2008) (Rooker-
Feldman does apply, despite alleged fraud by the opposing
party, when the federal plaintiffs’ objections to the
fraudulently obtained judgment had been presented and
rejected in state court); Kougasian, 359 F.3d at 1140 n.1
(fraud claims that are not based on extrinsic fraud do not fall
within this particular exception to Rooker-Feldman). Here,
Plaintiffs allege that Lisk and Jemison knowingly submitted
false information to the state court in order to obtain an order
authorizing examination of the Benavidez children; that they
did so without affording Plaintiffs any opportunity to
respond or be heard and without informing the state court
that this was the case; and that the examinations were
completed the next day before the Benavidez parents knew
that they had been requested or had taken place. Moreover,
the single § 1983 cause of action alleged against Lisk and
Jemison, as well as the single derivative Monell claim
asserted against the County, both rest dispositively on the
premise that Lisk and Jemison committed a due process
violation by engaging in this extrinsic fraud. By thus
asserting extrinsic-fraud-based claims predicated on the
allegation that Lisk and Jemison used extrinsic fraud to
procure a state court order in a manner that effectively
deprived Plaintiffs of any opportunity to contest it prior to
its execution, Plaintiffs have pleaded sufficient allegations
 BENAVIDEZ V. COUNTY OF SAN DIEGO 39

to invoke the exception to Rooker-Feldman that we
recognized in Kougasian.

III

The district court, however, erred in concluding that
Plaintiffs did not plead sufficient facts to support a claim for
judicial deception and that Lisk and Jemison were therefore
entitled to qualified immunity.

A

“To state a claim for relief in an action brought under
§ 1983, [Plaintiffs] must establish that they were deprived of
a right secured by the Constitution or laws of the United
States, and that the alleged deprivation was committed under
color of state law.” American Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49–50 (1999). Here, the loadbearing allegation
in the sole § 1983 cause of action against Lisk and Jemison
is that, acting under color of state law, they engaged in
“judicial deception” by affirmatively “misrepresent[ing]
and/or conceal[ing]” crucial facts when they requested the
order authorizing intrusive examinations of the Benavidez
children and that they “knew” that the facts presented “were
not true.”

Where, as in this case, the individual defendants have
asserted qualified immunity, the § 1983 claim against them
will fail unless their actions violated a “clearly established
right”—i.e., a right whose contours were “‘sufficiently
definite that any reasonable official in the defendant’s shoes
would have understood that he [or she] was violating it.’”
City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019)
(citation omitted). At least where, as here, a claim of judicial
deception resting upon affirmative fraud is asserted, the
merits of the underlying constitutional claim largely collapse
40 BENAVIDEZ V. COUNTY OF SAN DIEGO

into the qualified immunity inquiry: every reasonable
official would understand that committing affirmative fraud
on a court in order to obtain authorization for intrusive
examinations is unconstitutional. 2 See, e.g., KRL v. Moore,
384 F.3d 1105, 1117 (9th Cir. 2004) (“It is clearly
established that judicial deception may not be employed to
obtain a search warrant.”); Costanich v. Dep’t of Soc. &
Health Servs., 627 F.3d 1101, 1108 (9th Cir. 2010)
(“deliberately fabricating evidence in civil child abuse
proceedings violates the Due Process clause of the
Fourteenth Amendment when a liberty or property interest is
at stake”); see generally Sandoval v. County of San Diego,
985 F.3d 657, 687–88 (9th Cir. 2021) (Collins, J., concurring
in judgment in part & dissenting in part) (noting that, where
the requisite scienter is high enough, the merits of the
scienter issue and the qualified immunity inquiry may
overlap). Indeed, at oral argument, Defendants’ counsel
conceded that, at the time Lisk and Jemison acted, it was
clearly established that making a knowingly false statement
to obtain a court order for an intrusive examination was a
violation of constitutional rights.

As a result, Plaintiffs’ operative complaint states a
§ 1983 claim against Lisk and Jemison, and defeats their
assertion of qualified immunity, if it pleads sufficient facts
with particularity to raise a plausible inference that Lisk and
Jemison affirmatively misstated or concealed crucial facts

2
The same might not be true in a case involving a claim that an
official committed judicial deception by making inaccurate statements
with “reckless[]” disregard for their truth. KRL, 384 F.3d at 1117. It is
perhaps possible that an official could recklessly make an inaccurate
statement in a manner that not every reasonable official in that person’s
shoes would recognize violates the plaintiff’s constitutional rights.
Because this issue need not be addressed in order to resolve this appeal,
I express no further view on it.
 BENAVIDEZ V. COUNTY OF SAN DIEGO 41

from the state court when they requested the examination
order. Reviewing the district court’s assessment of the
complaint’s allegations de novo, Patterson v. Van Arsdel,
883 F.3d 826, 829 (9th Cir. 2018), I conclude that Plaintiffs’
allegations were sufficient under this standard.

B

To survive a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), a plaintiff must allege “enough
facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Under the assumption that the heightened pleading standards
of Federal Rule of Civil Procedure 9(b) apply to claims of
judicial deception, the complaint’s allegations must “be
specific enough to give defendants notice of the particular
misconduct so that they can defend against the charge and
not just deny that they have done anything wrong.” Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)
(simplified). In other words, to satisfy Rule 9(b), a plaintiff
must allege “‘the who, what, when, where, and how’ of the
misconduct charged.” Id. (citation omitted). At the motion
to dismiss stage, we accept as true all well-pleaded factual
allegations set forth in the complaint and construe them in
the light most favorable to the plaintiffs. Patterson, 883 F.3d
at 829. So construed, Plaintiffs’ operative complaint alleges
the following facts.

The Benavidez children were removed from their
parents’ home on March 18, 2016. A detention hearing to
review the removal was held three days later, which the
parents attended. In connection with that hearing, Lisk and
42 BENAVIDEZ V. COUNTY OF SAN DIEGO

Jemison submitted a detention report to the court, and that
report made no mention of whether they had contacted the
parents about potential medical examinations, had requested
consent from the parents, or had told the parents that they
could be present during any examinations. Throughout that
three-day period, the Benavidez parents were available to
speak with Lisk and Jemison about such subjects, but Lisk
and Jemison never discussed those matters with them before,
during, or after the hearing. At the detention hearing, the
County did not request any order from the court regarding
physical examinations of the Benavidez children.

Nonetheless, at some point before or shortly after the
March 21, 2016 detention hearing, Lisk and Jemison
submitted a request that the state court sign two pre-printed
court forms entitled “Order Authorizing Medical
Examination and Treatment,” one for each of the Benavidez
children. As reflected on the face of the orders, which
Defendants submitted in the district court in support of their
motion to dismiss, the state court judge signed the orders on
March 21. The form orders contain a recital specifying the
finding that the court must make before it may issue such an
order. Accordingly, by issuing the orders, the state court
necessarily found that one or more of the following three
statements were true:

(1) the County of San Diego Health and
Human Services Agency (“Agency”) has
made reasonable efforts to locate or contact a
parent and/or guardian of the above-named
child to notify them of the Agency’s request
for a medical examination and treatment of
their child who is in the care of the Agency,
but such efforts have been unsuccessful; or
(2) upon request of the Agency, the child’s
 BENAVIDEZ V. COUNTY OF SAN DIEGO 43

parent or guardian has objected to the
medical examination and treatment of the
child; and/or (3) the Agency has made
reasonable efforts to schedule the
examination of the child for a time when the
parent or guardian is available to attend, but
such efforts have been unsuccessful . . . .

The complaint alleges that the court’s findings in the
orders were based on representations made by Lisk and
Jemison to the court, and that, at the time they made such
representations, Lisk and Jemison knew that all three
statements contained in the recital were false. Specifically,
they knew that no effort had been made to locate and contact
the Benavidez parents about medical examinations; that the
parents were never told about the County’s request and were
not given an opportunity to object to any examinations; and
that the parents were never told that an examination was
being requested or scheduled, nor were they told when or
where the children were scheduled for physical
examinations. Medical procedures and examinations were
conducted on the Benavidez children the very next day, and
the parents did not learn about those examinations until well
after they had occurred.

These factual allegations are more than sufficient to state
a claim for judicial deception under Iqbal and Rule 9(b). The
complaint alleges ample facts to establish that each of the
recitals in the order was false, and—given the complaint’s
allegation that the court’s findings were based on the
representations made by Lisk and Jemison—the complaint
sufficiently alleges that these two defendants made the false
representations on which those findings were based. The
district court stated that Plaintiffs had to “allege exactly what
Lisk and Jemison each told the juvenile court,” but that is
44 BENAVIDEZ V. COUNTY OF SAN DIEGO

wrong. Even under Rule 9(b)’s heightened pleading
standards, Plaintiffs sufficiently alleged the “‘who, what,
when, where, and how’” of the misconduct. Vess, 317 F.3d
at 1106 (citation omitted). Under the complaint’s
allegations, Lisk and Jemison were the ones who made the
challenged statements in presenting the request (either both
personally or Lisk acting personally with Jemison’s
approval); the statements consisted of representations that
one or more of the recitals in the court form were true; the
representations were made on or about March 21, 2016; and
they were made in some form of ex parte communication
with the court. These specifics are more than enough to
allow Lisk and Jemison to “‘defend against the charge and
not just deny that they have done anything wrong.’” Id.
(citation omitted).

Even under Rule 9(b), scienter “may be alleged
generally,” see Fed. R. Civ. P. 9(b), and the complaint’s
allegations are sufficient on this score as well. The
complaint alleges that Lisk and Jemison knew that those
representations were false, because they were the social
worker and supervisor assigned to the Benavidez case and
therefore knew that no efforts had been made to contact the
parents about medical examinations. Moreover, the
allegation that Lisk and Jemison obtained the order in some
form of direct communication with the court, and outside the
context of the detention hearing attended by the parents,
further strengthens a reasonable inference that Lisk and
Jemison knew that the parents were unaware of the medical-
examination request and that Lisk and Jemison were taking
steps to ensure that the parents did not learn of the request in
advance.

Accordingly, the complaint’s allegations are sufficient to
state a plausible claim of knowing and intentional judicial
 BENAVIDEZ V. COUNTY OF SAN DIEGO 45

deception that escapes qualified immunity. See KRL,
384 F.3d at 1117. The district court erred in concluding
otherwise.

IV

I agree that Plaintiffs’ Monell claim was properly
dismissed with prejudice, because the operative complaint
does not allege sufficient facts to support such a claim.

The complaint alleges that, in response to the decision in
Swartwood v. County of San Diego, 84 F. Supp. 3d 1093
(S.D. Cal. 2014), the County in February 2015 adopted a
formal policy that required adherence to the sort of parental
notice and consent measures that Plaintiffs allege were
violated here. The complaint then goes on to say that the
County has a policy or practice of causing or allowing
violations of the February 2015 policy, but the district court
correctly held that these allegations were utterly conclusory
and inadequate under Iqbal. Apart from pointing to
violations that predated the 2015 policy, the complaint
alleges only that (1) Lisk and Jemison were able to violate
that 2015 policy in this case and (2) the County’s “Detention
Report form” lacked a design that was sufficient to ensure
compliance with the 2015 policy. These meager allegations
fail to raise a plausible inference that the County has a policy
or practice of affirmatively allowing violations of its 2015
policy. See City of Oklahoma City v. Tuttle, 471 U.S. 808,
823–24 (1985) (“Proof of a single incident of
unconstitutional activity is not sufficient to impose liability
under Monell, unless proof of the incident includes proof that
it was caused by an existing, unconstitutional municipal
policy, which policy can be attributed to a municipal
policymaker.”); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.
1996) (“Liability for improper custom may not be predicated
on isolated or sporadic incidents.”).
46 BENAVIDEZ V. COUNTY OF SAN DIEGO

For similar reasons, Plaintiffs’ failure-to-train
allegations are also inadequate. Such a theory of Monell
liability usually requires a “pattern of similar constitutional
violations by untrained employees,” see Connick v.
Thompson, 563 U.S. 51, 62 (2011), and no such pattern has
been alleged here. See also Board of County Comm’rs of
Bryan County v. Brown, 520 U.S. 397, 407–08 (1997) (a
“one-time negligent administration” of a training program
does not “tend to show . . . the lack of proper training”). Nor
have Plaintiffs alleged facts to show that the “patently
obvious” consequence of the County’s training will be
constitutional violations such as the one alleged here.
Connick, 563 U.S. at 64.

Finally, Plaintiffs’ failure-to-discipline theory of Monell
liability fails for substantially the same reasons. See
Rodriguez v. County of Los Angeles, 891 F.3d 776, 803 (9th
Cir. 2018) (noting that such a theory requires a showing of
“‘widespread’” or “repeated constitutional violations” that
were ignored (citation omitted)).

* * *

For the foregoing reasons, I concur in the judgment
affirming the dismissal of the Monell claim with prejudice
and reversing the dismissal of the § 1983 claim against Lisk
and Jemison.