FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY A.; CHARLES B.; CHARLOTTE
B.; LEO C.; VICTOR C.; DELIA D.;
MAIZY D.; JONATHAN D.; LINDA E.;
CHRISTINE F.; OLIVIA G.; SHELDON
H.; MASON I., individually and on
behalf of others so situated,
Plaintiffs-Appellants,
No. 10-17680
v.
D.C. No.
MICHAEL WILLDEN, Director, 2:10-cv-00528-
Nevada Department of Health and RCJ-PAL
Human Services; DIANE COMEAUX,
OPINION
Administrator, Nevada Division of
Child and Family Services;
VIRGINIA VALENTINE, Clark County
Manager; CLARK COUNTY; TOM
MORTON, Director of Clark County
Department of Family Services,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted
February 13, 2012—San Francisco, California
Filed May 4, 2012
Before: Procter Hug, Jr., Betty B. Fletcher, and
Richard A. Paez, Circuit Judges.
Opinion by Judge B. Fletcher
4745
HENRY A. v. WILLDEN 4749
COUNSEL
Brian R. Matsui, Morrison & Foerster LLP, Washington, DC
(argued); Lori A. Schechter, Dorothy L. Fernandez, Jeffrey K.
Rosenberg, Morrison & Foerster LLP, San Francisco, Califor-
nia; William Grimm, Leecia Welch, Bryn Martyna, National
Center for Youth Law, Oakland, California; Bruno Wolfen-
4750 HENRY A. v. WILLDEN
zon, Gregory M. Schulman, Wolfenzon Schulman & Rolle,
Las Vegas, Nevada, for plaintiffs-appellants Henry A.,
Charles B., Charlotte B., Leo C., Victor C., Delia D., Maizy
D., Jonathan D., Linda E., Christine F., Olivia G., Sheldon H.,
and Mason I.
Margaret G. Foley, Buckley King LPA, Las Vegas, Nevada,
for defendants-appellees Virginia Valentine, Tom Morton,
and Clark County.
Linda C. Anderson, Chief Deputy Attorney General, Las
Vegas, Nevada, for defendants-appellees Michael Willden
and Diane Comeaux.
OPINION
B. FLETCHER, Circuit Judge:
Plaintiff-appellants (“Plaintiffs”), a group of foster children
in Clark County, Nevada, appeal the dismissal of their com-
plaint pursuant to Federal Rule of Civil Procedure 12(b)(6).1
For the reasons that follow, we reverse the dismissal of
Counts One, Two, Three, Eight, and Eleven; affirm the dis-
missal of counts Nine and Ten; and remand for further pro-
ceedings.
1
At oral argument, counsel for Defendants suggested that some of the
named plaintiffs are no longer in government custody but provided no fur-
ther information. Without knowing which plaintiffs are no longer in cus-
tody and what claims for injunctive relief relate to them, there is simply
no way for us to determine whether some claims for injunctive relief are
now moot. On remand, any mootness arguments should be brought to the
attention of the district court. We note, however, that Plaintiffs’ damages
claims are not moot in any event. See Bernhardt v. Cnty. of Los Angeles,
279 F.3d 862, 872 (9th Cir. 2002) (noting that a live claim for even nomi-
nal damages will prevent dismissal for mootness).
HENRY A. v. WILLDEN 4751
I. BACKGROUND
Plaintiffs brought this action under 42 U.S.C. § 1983
against State and County officials, alleging violations of their
substantive due process rights under the Fourteenth Amend-
ment and violations of their federal statutory rights under the
Adoption Assistance and Child Welfare Act (CWA), 42
U.S.C. § 670 et seq.; the Child Abuse Prevention and Treat-
ment Act (CAPTA), 42 U.S.C. § 5101 et seq.; and the Indi-
viduals with Disabilities Education Act (IDEA), 20 U.S.C.
§ 1431 et seq.2 Plaintiffs’ action consists of individual claims
for damages and injunctive relief and class claims for injunc-
tive relief.
The defendants (“Defendants”) named in the action are
Clark County; Virginia Valentine, the Clark County Manager;
Tom Morton, the Director of Clark County’s Department of
Family Services; Diane Comeaux, the Administrator of
Nevada’s Division of Child and Family Services; and Michael
Willden, the Director of Nevada’s Department of Health and
Human Services. The complaint also lists as “John Doe”
defendants ten caseworkers and ten supervisors for Clark
County’s Department of Family Services. According to the
complaint, the State of Nevada was responsible for providing
foster care services until October 2004, when that responsibil-
ity was transferred to Clark County. The State retains respon-
sibility for supervision and oversight of Clark County’s foster
care system, including the County’s compliance with state
and federal law.3
The complaint alleges that Clark County’s foster care sys-
2
Plaintiffs also raised claims under the supremacy clause, which they
voluntarily dismissed, and several pendent state law claims, which the dis-
trict court dismissed pursuant to 28 U.S.C. § 1367(c).
3
For the purposes of reviewing a Rule 12(b)(6) dismissal, we accept as
true all well-pleaded facts in the complaint. ASW v. Oregon, 424 F.3d 970,
974 (9th Cir. 2005).
4752 HENRY A. v. WILLDEN
tem is plagued by systemic failures that result in violations of
the rights guaranteed to foster children by federal statutes and
the Due Process clause of the Fourteenth Amendment. The
specific allegations include the failure to provide caseworkers
with even basic training; the failure to provide foster children
and their foster parents with case plans and medical records;
the failure to provide foster children with necessary medical
care; the failure to provide foster children with guardians ad
litem; the failure to investigate reports of abuse and neglect in
foster homes; the failure of Clark County to incorporate state
and federal requirements into its child welfare policies; and
the failure of the State to ensure that Clark County is operat-
ing its foster care system in compliance with federal law.
The complaint’s allegations also describe how these sys-
temic failures have injured the named plaintiffs. For the sake
of brevity, we summarize only a few examples.
The alleged failure to provide adequate medical care has
had serious consequences for several of the named plaintiffs.
Henry A. was forced to change treatment providers more than
ten times, but his medical records were not transferred prop-
erly. As a result, Henry was given a dangerous combination
of psychotropic medications and was hospitalized in an inten-
sive care unit for two weeks, on the brink of organ failure.
Upon release from the hospital, Henry was administered the
same medications again and returned to the ICU.
When Jonathan D. became seriously ill with an impacted
colon, the County failed to approve a colonoscopy or other
treatment measures, despite repeated requests from Jonathan’s
doctor and his foster parent. Without the County’s consent,
Jonathan’s doctor was forced to wait until Jonathan’s condi-
tion became life-threatening, justifying emergency surgery
without the County’s permission. By that point, Jonathan had
been in severe pain for months.
Other plaintiffs were injured by the failure to provide foster
children and their foster parents with the records and docu-
HENRY A. v. WILLDEN 4753
mentation required by federal law. For example, when Olivia
G. was placed with a foster parent after being discharged from
a psychiatric facility, her foster parent did not receive the
authorization to fill her prescriptions, forcing Olivia to go
through a painful withdrawal.
Finally, some plaintiffs were left in foster homes without
any intervention despite their reports of abuse and neglect.
According to the complaint, Defendants failed to investigate
Linda E.’s reports of physical abuse in her foster home;
placed Leo C. and Victor C. in a foster home that had a
known history of neglect; and placed Mason I. in an out-of-
state facility despite numerous reports of patient abuse there
and Mason’s own complaints of sexual abuse.
II. JURISDICTION & STANDARD OF REVIEW
These factual allegations, among others, form the basis for
the parts of the complaint that are at issue in this appeal:
Counts One, Two, and Eleven, based on the Fourteenth
Amendment to the United States Constitution; Counts Three
and Eight, based on the CWA; Count Nine, based on CAPTA;
and Count Ten, based on CAPTA and the IDEA.4 The district
court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a).
The district court dismissed these claims pursuant to Federal
Rule of Civil Procedure 12(b)(6) and entered final judgment
in favor of Defendants on October 27, 2010. Plaintiffs filed a
timely notice of appeal, and we have jurisdiction under 28
U.S.C. § 1291.
We discuss each claim in detail below. We review de novo
the district court’s decision to grant Defendants’ motion to
dismiss under Rule 12(b)(6). ASW, 424 F.3d at 974. “We
accept as true all well pleaded facts in the complaint and con-
strue them in the light most favorable to the nonmoving
4
The dismissal of the remaining counts has not been challenged on
appeal. See supra note 2.
4754 HENRY A. v. WILLDEN
party.” Id. We also review whether the district court abused
its discretion by dismissing the complaint without granting
leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
2000).
III. DISCUSSION
A. Substantive Due Process Claims
Generally, “the Fourteenth Amendment’s Due Process
Clause . . . does not confer any affirmative right to govern-
mental aid” and “typically does not impose a duty on the state
to protect individuals from third parties.” Patel v. Kent Sch.
Dist., 648 F.3d 965, 971 (9th Cir. 2011) (citations and alter-
ations omitted). There are, however, two exceptions to this
rule. First, there is the “special relationship” exception —
when a custodial relationship exists between the plaintiff and
the State such that the State assumes some responsibility for
the plaintiff ’s safety and well-being. Id. at 971 (citing
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S.
189, 198-202 (1989)). Second, there is the “state-created dan-
ger exception” — when “the state affirmatively places the
plaintiff in danger by acting with ‘deliberate indifference’ to
a ‘known and obvious danger[.]’ ” Id. at 971-72 (quoting L.W.
v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). “If either excep-
tion applies, a state’s omission or failure to protect may give
rise to a § 1983 claim.” Id. at 972.
Plaintiffs here have raised claims under both exceptions,
arguing (1) that Defendants have a custodial relationship with
foster children and have failed to provide adequate safety and
medical care, and (2) that Defendants have affirmatively
placed some of the children in danger by putting them in fos-
ter care placements that were known to be abusive.
1. Special Relationship Exception (Counts One and
Eleven)
Counts One and Eleven of the complaint allege that Defen-
dants have violated Plaintiffs’ “right to be free from harm
HENRY A. v. WILLDEN 4755
while involuntarily in government custody and their right to
medical care, treatment, and services.” Count One seeks dam-
ages and injunctive relief for the individual plaintiffs and
Count Eleven seeks injunctive relief on behalf of a class of
foster children who have failed to receive early intervention
services that they are entitled to under federal law.
Both counts proceed to provide more detailed factual alle-
gations. Count One provides a list of the conduct that alleg-
edly has violated Plaintiffs’ rights to adequate safety and
medical care:
(a) failure to adequately provide medical, dental, and
mental health services, including but not limited to
standardized periodic health screenings and treat-
ments, medical services for maximum reduction of
physical or mental disability, and monitoring of,
administration, and use of psychotropic drugs by fos-
ter children;
(b) failure to inform caregivers of essential informa-
tion;
(c) failure to conduct legally required visits with fos-
ter children;
(d) failure to adequately respond to reports of abuse;
(e) failure to ensure adequacy of relative caregiver
placements; and
(f) failure to adequately inspect out of state facilities
and monitor treatment and services provided to fos-
ter children placed in out of state facilities.
Count One also incorporates the detailed examples of how
Defendants failed to provide adequate medical care and safety
to the individual plaintiffs, such as the failure to approve Jon-
4756 HENRY A. v. WILLDEN
athan’s necessary medical treatment despite knowledge that
he was seriously ill; the failure to provide Olivia’s foster par-
ents with the information and authorization to fill her pre-
scriptions; and the failure to respond to reports of abuse and
neglect at Linda and Mason’s foster care placements. Count
Eleven alleges that Defendants’ routine failure to refer eligi-
ble children to early intervention services amounts to a denial
of adequate medical care.
The district court dismissed Counts One and Eleven after
concluding that Defendants were entitled to qualified immu-
nity because Plaintiffs failed to allege a violation of a clearly
established constitutional right. The district court explained
that while the State must “provide individuals in state custody
with their basic human needs,” the specific examples of medi-
cal care and services listed by Plaintiffs were not clearly
established constitutional rights.
[1] This conclusion is plainly wrong with respect to Plain-
tiffs’ damages claim against Clark County and Plaintiffs’
claims for injunctive relief. “Qualified immunity shields fed-
eral and state officials from money damages unless a plaintiff
pleads facts showing (1) that the official violated a statutory
or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Ashcroft
v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (emphasis added).
Qualified immunity is not available as a defense in § 1983
cases “against a municipality” or “against individuals where
injunctive relief is sought instead of or in addition to dam-
ages.” Pearson v. Callahan, 555 U.S. 223, 242 (2009). Defen-
dants do not dispute the law on this point. We therefore
reverse the district court’s dismissal of Count Eleven, which
seeks only injunctive relief, and reverse the dismissal of
Count One with respect to the claims for injunctive relief and
the damages claim against Clark County. Qualified immunity
simply does not apply to these claims.5
5
For the first time on appeal, the County defendants argue that dismissal
against Clark County is proper because Plaintiffs have failed to suffi-
HENRY A. v. WILLDEN 4757
Qualified immunity is, however, a possible defense to the
claims for damages against the individual defendants in Count
One. Even if a complaint sufficiently alleges that a govern-
ment official violated a federal constitutional or statutory
right, that official is entitled to qualified immunity from
money damages if the right was not “clearly established” at
the time of the challenged conduct. See al-Kidd, 131 S. Ct. at
2080. “A Government official’s conduct violates clearly
established law when, at the time of the challenged conduct,
the contours of a right are sufficiently clear that every reason-
able official would have understood that what he is doing vio-
lates that right.” Id. at 2083 (internal quotation marks and
alterations omitted). “This is not to say that an official action
is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say
that in the light of pre-existing law the unlawfulness must be
apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal
citations omitted).
[2] In this case, the district court’s qualified immunity
analysis was too narrow. The district court looked at Plain-
tiffs’ detailed factual allegations and essentially determined
that Defendants were entitled to qualified immunity because
the “very action[s] in question” had not “previously been held
ciently plead that the violations of their constitutional rights were pursuant
to a policy, practice, or custom as required by Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978). Although ordinarily we may consider affirm-
ing dismissal on any ground supported by the record, Dougherty v. City
of Covina, 654 F.3d 892, 900 (9th Cir. 2011), that discretion “extends to
issues raised in a manner providing the district court an opportunity to rule
on it.” Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 974 (9th Cir.
2010). In any event, we note that the complaint does make specific factual
allegations regarding the County’s policies and customs, including a cus-
tom of failing to provide even basic training to caseworkers before assign-
ing them caseloads; County policies that do not incorporate State and
federal requirements; and a custom of failing to share necessary medical
information between State and County officials. Compare Dougherty, 654
F.3d at 900-01.
4758 HENRY A. v. WILLDEN
unlawful.” See id. Instead, the district court should have (1)
determined the contours of a foster child’s clearly established
rights at the time of the challenged conduct under the “special
relationship” doctrine of substantive due process, and (2)
examined whether a reasonable official would have under-
stood that the specific conduct alleged by Plaintiffs violated
those rights. See al-Kidd, 131 S. Ct. at 2083. Using the correct
analysis, we conclude that Plaintiffs have alleged violations of
their clearly established constitutional rights, and the individ-
ual defendants are not entitled to qualified immunity at this
stage of the litigation.
[3] It is clearly established that “when the State takes a
person into its custody and holds him there against his will,
the Constitution imposes upon it a corresponding duty to
assume some responsibility for his safety and general well-
being.” DeShaney, 489 U.S. at 199-200. When the State
asserts this type of custody over a person “and at the same
time fails to provide for his basic human needs — e.g., food,
clothing, shelter, medical care, and reasonable safety — it
transgresses the substantive limits on state action set by . . .
the Due Process clause.” Id. at 200.
[4] It is also clearly established that this special relation-
ship doctrine applies to children in foster care. We recently
clarified that it has been clearly established since at least 1996
that foster children have “a federal constitutional right to state
protection” while they remain in the care of the State. Tamas
v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 846-47 (9th
Cir. 2010). Our circuit recognized the State’s duty to protect
foster children as early as 1992, when we observed that
“[o]nce the state assumes wardship of a child, the state owes
the child, as part of that person’s protected liberty interest,
reasonable safety and minimally adequate care and treatment
appropriate to the age and circumstances of the child.” Lips-
comb v. Simmons, 962 F.2d 1374, 1379 (9th Cir. 1992).
[5] All of the conduct challenged here occurred after 1996,
so there is no question that a foster child’s right to the basic
HENRY A. v. WILLDEN 4759
needs identified in DeShaney — food, clothing, shelter, medi-
cal care, and reasonable safety — was clearly established “at
the time of the challenged conduct.” See al-Kidd, 131 S. Ct.
at 2080. We can further clarify the contours of this right by
looking to our recent decision in Tamas.
First, Tamas itself held that this right encompasses “a foster
child’s liberty interest in social worker supervision and pro-
tection from harm inflicted by a foster parent.” 630 F.3d at
842. Tamas also clarified that the proper standard for deter-
mining whether a foster child’s due process rights have been
violated is “deliberate indifference,” the same standard
applied to substantive due process claims by prisoners. Id. at
844-45. This standard “requires an objective risk of harm and
a subjective awareness of that harm.” Id. at 844 (quoting
Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010)).
To be more specific, it requires (1) “a showing of an objec-
tively substantial risk of harm”; and (2) “a showing that the
officials were subjectively aware of facts from which an infer-
ence could be drawn that a substantial risk of serious harm
existed” and (a) “the official actually drew that inference” or
(b) “that a reasonable official would have been compelled to
draw that inference.” Id. at 845. “[T]he subjective component
may be inferred from the fact that the risk of harm is obvi-
ous.” Id. (internal quotation marks and citation omitted).
[6] Second, we can look to the clearly established law from
other circuits cited by the Tamas court. Those cases demon-
strate, for example, that a foster child’s due process rights are
violated when a state official exhibits deliberate indifference
to a child’s serious medical needs, Norfleet v. Ark. Dep’t of
Human Servs., 989 F.2d 289, 291 (8th Cir. 1993); to sus-
pected physical abuse in a foster home, Hernandez v. Tex.
Dep’t of Protective and Regulatory Servs., 380 F.3d 872, 881
(5th Cir. 2004); and to suspected sexual abuse in a foster
home, J.H. v. Johnson, 346 F.3d 788, 791 (7th Cir. 2003).
Because the substantive due process rights of foster children
are analogous to those of prisoners, see Tamas, 630 F.3d at
4760 HENRY A. v. WILLDEN
844-45, we can also look to our prisoner cases to further
define what constitutes a “serious medical need.” Those cases,
for example, have held that ignoring the instructions of a
treating physician, or failing to provide a prisoner with neces-
sary psychotropic medication, can amount to deliberate indif-
ference to serious medical needs. Wakefield v. Thompson, 177
F.3d 1160, 1164-65 (9th Cir. 1999).
[7] Having examined the relevant contours of a foster
child’s clearly established due process rights to adequate
safety and medical care, we conclude that a reasonable offi-
cial would have understood that at least some of the specific
conduct alleged by Plaintiffs violated those rights. Count One
of the complaint alleges generally that Defendants exhibited
deliberate indifference and violated the children’s rights to
“be free from harm while involuntarily in government custody
and their right to medical care”; alleges more specifically that
Defendants failed to provide adequate medical care, monitor
the administration of medication, or respond to reports of
abuse; and provides detailed factual allegations relating to the
individual plaintiffs. A reasonable official would have under-
stood that failing to authorize Jonathan’s medical treatment
despite knowledge of his serious illness and repeated requests
from his treating physician amounted to deliberate indiffer-
ence to a serious medical need. A reasonable official would
also have understood that failing to respond to Linda’s reports
of physical abuse in her foster home or the numerous reports
of abuse in Mason’s out-of-state placement would constitute
deliberate indifference to the children’s right to safety in their
foster care placements.
[8] It may be that Plaintiffs cannot prove these allegations,
or that they can only prove some of their less serious allega-
tions, such as the failure to provide standardized periodic
health screenings. If that turns out to be the case, the individ-
ual defendants can again raise the defense of qualified immu-
nity at a later stage in the proceedings. See Ortiz v. Jordan,
131 S. Ct. 884, 889 (2011). But at this stage, when we accept
HENRY A. v. WILLDEN 4761
as true all well pleaded facts in the complaint, Plaintiffs have
alleged violations of their clearly established constitutional
rights, and qualified immunity is not appropriate. We reverse
the district court’s dismissal of the damages claims in Count
One.
2. State-Created Danger Exception (Count Two)
[9] The State can also be held liable under the Fourteenth
Amendment’s Due Process clause for failing to protect an
individual from harm by third parties “where the state action
‘affirmatively place[s] the plaintiff in a position of danger,’
that is, where state action creates or exposes an individual to
a danger which he or she would not have otherwise faced.”
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir.
2006) (quoting DeShaney, 489 U.S. at 197). To determine
whether an official affirmatively placed an individual in dan-
ger, we ask: (1) whether any affirmative actions of the official
placed the individual in danger he otherwise would not have
faced; (2) whether the danger was known or obvious; and (3)
whether the officer acted with deliberate indifference to that
danger. Id. at 1062-64.
In Count Two of their complaint, Plaintiffs allege that
Defendants
act[ed] with deliberate indifference to known or
obvious danger in removing Plaintiffs from their
homes and placing them in the care of foster parents,
including in the care of relative caregivers and out of
state facilities and homes, who were unfit to care for
them and posed an imminent risk of harm to Plain-
tiffs’ safety.
The complaint also contains more detailed factual allegations,
including that Defendants placed Leo and Victor in a foster
home that had a known history of neglect; that Defendants
required Mason to have unsupervised visits with his grandpar-
4762 HENRY A. v. WILLDEN
ents despite having knowledge that they had abused him; and
that Defendants placed Mason in an out-of-state facility that
had a known history of chronic neglect and abuse.
The district court dismissed Count Two for failure to state
a claim under the state-created danger doctrine, and ruled in
the alternative that Defendants were entitled to qualified
immunity because Plaintiffs’ rights under the state-created
danger doctrine were not clearly established. Citing repeat-
edly to the dissent from denial of rehearing en banc in Ken-
nedy v. City of Ridgefield, rather than the opinion itself, the
district court reasoned that the complaint did not sufficiently
allege that Defendants “did more than simply expose the
plaintiff to a danger that already existed” because Defendants
merely “place[d] foster children into an already broken sys-
tem.”
[10] The district court’s reasoning was erroneous. The test
that the district court took from the dissent from denial in
Kennedy — that the official must do more than “expose the
plaintiff to a danger that already existed” — is not the law of
this circuit. Compare 440 F.3d 1091, 1093 (9th Cir. 2006)
(Tallman, J., dissenting from denial of rehearing en banc) with
439 F.3d at 1061 (opinion of the court). Such a test would
render the state-created danger doctrine meaningless. As dis-
cussed above, this doctrine provides an exception to the gen-
eral rule that the Fourteenth Amendment does not impose a
duty on the State to protect individuals from third parties.
Thus, by its very nature, the doctrine only applies in situations
where the plaintiff was directly harmed by a third party — a
danger that, in every case, could be said to have “already
existed.” The “dangers” examined in our previous cases —
such as a vengeful, unstable neighbor, see Kennedy, 439 F.3d
1055; a violent, predatory inmate, see L.W., 92 F.3d 894; or
a rapist prowling a high-crime area late at night, see Wood v.
Ostrander, 879 F.2d 583 (9th Cir. 1989) — already “existed”
before the plaintiffs were harmed by them. But the point of
the state-created danger doctrine is that the affirmative actions
HENRY A. v. WILLDEN 4763
of a state official “create[d] or expose[d] an individual to a
danger which he or she would not have otherwise faced.”
Kennedy, 439 F.3d at 1061 (opinion of the court) (emphasis
added).
[11] That is precisely what Plaintiffs have alleged here.
They allege that Defendants knew of the danger of abuse and
neglect that Plaintiffs faced in certain foster homes and acted
with deliberate indifference by exposing Plaintiffs to that dan-
ger anyway. This is sufficient to state a claim under the con-
trolling opinion in Kennedy. The fact that the dangerous foster
homes “already existed” is irrelevant.
[12] Moreover, we have already held that the state-created
danger doctrine applies to placing a foster child in a home
where there is a known danger of abuse. Tamas, 630 F.3d at
843-44. As we explained in Tamas, the State’s approval of a
foster care placement despite reports of suspected abuse
creates a danger of abuse that the foster child would not other-
wise have faced. Id. We therefore reverse the district court’s
dismissal of Count Two for failure to state a claim under the
state-created danger doctrine. Because Tamas also held that
these rights were clearly established, we reject the district
court’s conclusion that qualified immunity provides an alter-
native ground for dismissal. See id. at 837-38, 846 (holding
that the due process rights of foster children are clearly estab-
lished and applying the state-created danger doctrine to foster
care licenses issued in 1997 and 1999).
3. Liability of the State Officials
The State defendants also argue that, with respect to them,
the complaint fails to state a claim for substantive due process
violations because it does not adequately allege that the State
officials had a custodial relationship with the foster children
or that they are liable as supervisors.6 Although the district
6
The County defendants did not raise this argument in their motion to
dismiss and have not raised it before this court.
4764 HENRY A. v. WILLDEN
court did not address this argument, the State raised it below,
and we may affirm the district court’s dismissal on any
ground supported by the record. Dougherty, 654 F.3d at 900.
[13] First, the State defendants argue that they cannot be
held liable under the “special relationship” exception in Count
One because the plaintiff foster children are technically in the
custody of Clark County. This argument is not persuasive.
The complaint alleges that defendant Willden has “responsi-
bility for ensuring the provision of child welfare services
throughout the state” and that defendant Comeaux leads the
agency which “must evaluate all child welfare services pro-
vided throughout the State and take corrective action against
any agency providing child welfare services which is not
complying with any applicable laws, regulations, or policies.”
Furthermore, the complaint also alleges that at least two plain-
tiffs, Henry and Linda, were in the custody of the State before
the foster care system was transferred to Clark County. This
is sufficient to plead a custodial relationship between the fos-
ter children and the State defendants.
Second, the State defendants argue that plaintiffs have
failed to state a claim against them for supervisory liability.
We recently reaffirmed that a plaintiff may state a claim under
§ 1983 against a supervisor for deliberate indifference. Starr
v. Baca, 652 F.3d 1202 (9th Cir. 2011). “A defendant may be
held liable as a supervisor under § 1983 if there exists either
(1) his or her personal involvement in the constitutional depri-
vation, or (2) a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional viola-
tion.” Id. at 1207 (internal quotation marks and citation omit-
ted). “A supervisor can be liable in his individual capacity for
his own culpable action or inaction in the training, supervi-
sion, or control of his subordinates; for his acquiescence in
the constitutional deprivation; or for conduct that showed a
reckless or callous indifference to the rights of others.” Id. at
1208 (quoting Watkins v. City of Oakland, 145 F.3d 1087,
1093 (9th Cir. 1998)). In order to adequately plead such a
HENRY A. v. WILLDEN 4765
claim, “allegations in a complaint . . . may not simply recite
the elements of a cause of action, but must contain sufficient
allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself effectively.” Id. at
1216. These factual allegations “must plausibly suggest an
entitlement to relief, such that it is not unfair to require the
opposing party to be subjected to the expense of discovery
and continued litigation.” Id.
After thoroughly examining the plaintiffs’ complaint, we
agree that there are few specific allegations against the State
defendants. Most of the allegations in the complaint simply
reference “Defendants,” without specifying whether the con-
duct at issue was committed by the named State officials,
County officials, or the “John Doe” supervisors or casework-
ers. For many of the detailed factual allegations, such as the
failure to respond to a particular report of abuse or authorize
a particular medical procedure, it is implausible to suggest
that Willden or Comeaux personally committed the alleged
violation.
The allegations that do expressly reference the State defen-
dants are too general to state a claim for supervisory liability.
In Starr v. Baca, the plaintiff alleged that Sheriff Baca himself
had been given clear notice by the Department of Justice of
the specific unconstitutional conditions in the jails; that the
Sheriff received numerous reports documenting inmate vio-
lence caused by the unconstitutional conduct of his deputies;
and that the Sheriff ultimately acquiesced in these constitu-
tional violations. See 652 F.3d at 1208-10.
In contrast, the allegations here claim that the agencies
directed by Willden and Comeaux have oversight responsibil-
ity for Clark County’s foster care system and are required to
ensure that Clark County is complying with state and federal
law. The complaint also alleges that all of the defendants had
knowledge of independent reports documenting the systemic
failures of foster care in Nevada. But it does not allege that
4766 HENRY A. v. WILLDEN
Willden or Comeaux had any personal knowledge of the spe-
cific constitutional violations that led to Plaintiffs’ injuries, or
that they had any direct responsibility to train or supervise the
caseworkers employed by Clark County.
The allegations that come closest to pleading personal
involvement by Willden and Comeaux concern the failure to
provide medical records to the children and their foster par-
ents in order to facilitate their medical care. Paragraphs 27
and 28 allege that Willden is responsible for “ensuring county
compliance with all federal mandates of the Medicaid pro-
gram” and that Comeaux is “responsible for administering the
Medicaid program with respect to children in the child wel-
fare system.” Paragraph 42 alleges that “State Defendants . . .
are responsible for the management and day-to-day operation
of Nevada’s Children’s Mental Health Services program.”
Finally, Paragraph 59 alleges that the State defendants fail to
share the medical records from the State’s Medicaid database
and the Mental Health Services program with the County
defendants, which in turn prevents County employees from
sharing that information with foster parents.
When read together, these allegations suggest that there
may be a causal connection between the State defendants’
failure to share these medical records and the injuries suffered
by plaintiffs such as Henry, who received a dangerous combi-
nation of prescription drugs because his medical records were
not given to his treatment providers.
But even if the complaint in its current form fails to state
a claim against the State officials for substantive due process
violations, the district court abused its discretion by failing to
give the plaintiffs an opportunity to amend their complaint.
“[W]e have repeatedly held that a district court should grant
leave to amend even if no request to amend the pleading was
made, unless it determines that the pleading could not possi-
bly be cured by the allegation of other facts.” Lopez, 203 F.3d
at 1130 (internal quotation marks omitted). Here, Plaintiffs
HENRY A. v. WILLDEN 4767
offered to amend their complaint if necessary in their
response to the motion to dismiss, but the district court did
not grant leave to amend and did not provide any reasons for
its decision.
[14] As we have already concluded, the complaint ade-
quately pleads violations of Plaintiffs’ clearly established sub-
stantive due process rights, and it plausibly suggests an
entitlement to relief from at least some of the defendants.
Where the complaint falls short in some places is tying its fac-
tual allegations to particular defendants. But this type of defi-
ciency can likely be cured by amending the complaint, and
there is certainly no evidence to suggest that allowing amend-
ment would be futile.
[15] Therefore, on remand, Plaintiffs should be given an
opportunity to amend their substantive due process claims.
We note that in any future proceedings in the district court,
each defendant’s liability must be analyzed individually using
the proper standard, whether that individual is a line-level
caseworker, a supervisory official, or a municipality. See
Tamas, 630 F.3d at 847.
B. Federal Statutory Claims
[16] Section 1983 can also be used to enforce federal stat-
utes. Blessing v. Freestone, 520 U.S. 329, 340 (1997). For a
statutory provision to be privately enforceable, however, it
must create an individual right. See id. (“In order to seek
redress through § 1983, however, a plaintiff must assert the
violation of a federal right, not merely a violation of federal
law.”).
Blessing established a three-prong test for determining
whether a federal statute creates an individual right. “The
Blessing test requires: 1) that Congress intended the statutory
provision to benefit the plaintiff; 2) that the asserted right is
not so ‘vague and amorphous’ that its enforcement would
4768 HENRY A. v. WILLDEN
strain judicial competence; and 3) that the provision couch the
asserted right in mandatory rather than precatory terms.” Wat-
son v. Weeks, 436 F.3d 1152, 1158 (9th Cir. 2006) (citing
Blessing, 520 U.S. at 340-41). In Gonzaga University v. Doe,
the Supreme Court clarified that the first prong of the Blessing
test is meant to determine whether Congress “unambiguously
conferred” a federal right. 536 U.S. 273, 283 (2002). This
requires “rights-creating language,” meaning that the text of
the statute “must be phrased in terms of the persons benefit-
ed.” Id. at 284, 284 n.3 (quotation marks and citations omit-
ted).
If a statutory provision satisfies the Blessing test, it is pre-
sumptively enforceable through § 1983. Watson, 436 F.3d at
1158 (citing Blessing, 520 U.S. at 341). This presumption is
rebutted “if Congress expressly or impliedly foreclosed
enforcement under section 1983.” Id. “[A]n implied foreclo-
sure occurs if Congress created ‘a comprehensive enforce-
ment scheme that is incompatible with individual
enforcement.’ ” Id. at 1158-59 (quoting Blessing, 520 U.S. at
341).
Here, the plaintiffs seek to enforce four sets of federal stat-
utory provisions through § 1983: the case plan provisions of
the CWA, the records provisions of the CWA, the guardian ad
litem provision of CAPTA, and the early intervention services
provisions of CAPTA and the IDEA. All of these are spend-
ing statutes; the State of Nevada has agreed to administer its
foster care system in accordance with these federal laws in
return for financial assistance from the federal government.
The district court dismissed these claims on the basis that
none of the provisions are privately enforceable.7
7
The district court’s order occasionally refers to these claims as “statu-
tory, constitutional violations” and explains that Defendants are entitled to
qualified immunity because it is not “clearly established” that the statutory
provisions at issue are privately enforceable. These statements are incor-
rect. First, enforcement through § 1983 does not transform a statutory
HENRY A. v. WILLDEN 4769
1. CWA: Case Plan Provisions (Count Eight)
Count Eight of the complaint seeks injunctive relief for a
class of children who have not received a case plan as
required by the CWA. The case plan provisions of the CWA
are codified at 42 U.S.C. §§ 671(a)(16) and 675(1). Section
671(a)(16) states that:
In order for a State to be eligible for payments under
this part, it shall have a plan approved by the Secre-
tary which . . . provides for the development of a
case plan (as defined in section 675(1) of this title)
for each child receiving foster care maintenance pay-
ments under the State plan . . . .
Section 675(1) provides a detailed definition of what a case
plan must include, such as the child’s health and educational
records, a description of the child’s permanency plan, and a
plan for ensuring the child’s educational stability.
The district court concluded that these provisions do not
contain sufficient “rights-creating language” to satisfy the
first prong of the Blessing test. We disagree and join the
majority of federal courts in holding that the case plan provi-
sions are enforceable through § 1983. See, e.g., L.J. v. Mas-
singa, 838 F.2d 118, 123 (4th Cir. 1988); Lynch v. Dukakis,
719 F.2d 504, 512 (1st Cir. 1983); Sam M. v. Chafee, 800 F.
Supp. 2d 363, 386-88 (D.R.I. 2011); Connor B. v. Patrick,
771 F. Supp. 2d 142, 170-72 (D. Mass. 2011); Kenny A. v.
right into a constitutional right. Section 1983 provides for enforcement of
rights guaranteed by federal statutes alone. See Blessing, 520 U.S. at 340.
Second, whether a federal statute is privately enforceable and whether an
official is entitled to qualified immunity for a violation of that statute are
two separate inquiries. There need not be “clearly established law” show-
ing that a statute is privately enforceable. See, e.g., ASW, 424 F.3d 970
(considering as a matter of first impression whether §§ 671(a)(12) and
673(a)(3) of the CWA are privately enforceable).
4770 HENRY A. v. WILLDEN
Perdue, 218 F.R.D. 277, 292-93 (N.D. Ga. 2003); Brian A. v.
Sundquist, 149 F. Supp. 2d 941, 946-49 (M.D. Tenn. 2000);
Jeanine B. v. Thompson, 877 F. Supp. 1268, 1283-84 (E.D.
Wis. 1995); B.H. v. Johnson, 715 F. Supp. 1387, 1402 (N.D.
Ill. 1989). But see Carson P. v. Heineman, 240 F.R.D. 456,
544 (D. Neb. 2007); Olivia Y. v. Barbour, 351 F. Supp. 2d
543, 562 (S.D. Miss. 2004); Charlie H. v. Whitman, 83 F.
Supp. 2d 476, 489-90 (D.N.J. 2000).
[17] Section 671(a)(16) unambiguously requires the State
to provide for the development of a case plan “for each child.”
As the Massachusetts district court wrote recently in Connor
B., rights-creating language “is readily discernible” in
§ 671(a)(16) because it “expresses a clear mandate by using
the term ‘shall’ ” and “discusses how the state must distribute
benefits to each child.” 771 F. Supp. 2d at 171. “Plainly, these
directives are both couched in mandatory terms and are
unmistakably focused on the benefitted class, i.e., foster chil-
dren.” Id.
Our court’s precedent also supports this conclusion. We
have concluded in two different cases that other provisions of
the CWA contain rights-creating language.8 In ASW, we held
that §§ 671(a)(1) and 673(a)(3) create a right to individualized
adoption assistance payment determinations and that
§ 671(a)(12) creates a right to a hearing when adoption assis-
tance payments are reduced. 424 F.3d at 975-79. In California
State Foster Parent Association v. Wagner, we held that
§§ 672(a) and 675(4)(A) create a right to foster care mainte-
nance payments that cover certain enumerated costs. 624 F.3d
974, 978-82 (9th Cir. 2010). Both of these decisions recog-
nized the importance of language phrasing the benefit in
terms of “each child,” see id. at 979-81, or “each family,” see
ASW, 424 F.3d at 976 (citing Rabin v. Wilson-Coker, 362
F.3d 190, 201 (2d Cir. 2004)). As in those cases, the reference
8
These decisions are not dispositive because we must examine each pro-
vision separately rather than the statute as a whole. ASW, 424 F.3d at 977.
HENRY A. v. WILLDEN 4771
here to a case plan “for each child” focuses squarely on the
protected individual, rather than an aggregate interest or a reg-
ulated entity. See Wagner, 624 F.3d at 980 (citing Gonzaga,
536 U.S. at 288-89).
Defendants’ argument to the contrary is not persuasive.
Defendants maintain that “Congress only required the State to
have a plan to ‘develop’ a case plan for each child.” But as
we recognized in ASW, Congress has directed that statutory
provisions within the Social Security Act should not “be
deemed unenforceable because of its inclusion in a section . . .
requiring a State plan or specifying the required contents of
a State plan.” 42 U.S.C. § 1320a-2; ASW, 424 F.3d at 977 n.11.9
We conclude that the first Blessing factor weighs in favor of
an enforceable right.
[18] The second and third Blessing factors also show that
the case plan provisions are presumptively enforceable. The
requirement that each child have a case plan is not “so vague
and amorphous that its enforcement would strain judicial
competence.” Watson, 436 F.3d at 1158 (internal quotation
marks omitted). The definition provided in § 675(1) describes
exactly what a case plan must include; as in ASW, “there is
no ambiguity as to what [the state is] required to do[.]” 424
F.3d at 976. In Wagner, we held that another detailed defini-
tion in § 675, which provided an itemized list of what
expenses “foster care maintenance payments” must cover, sat-
isfied the second Blessing prong. 624 F.3d at 981. We con-
9
This statute is known as the “Suter fix.” In Suter v. Artist M., 503 U.S.
347 (1992), the Supreme Court held that § 671(a)(15) of the CWA, which
requires a State to make “reasonable efforts” to reunify families, is not pri-
vately enforceable. The Court relied in part on the placement of that provi-
sion in a part of the statute detailing the requirements of a State plan. The
“Suter fix” overturned that reasoning with respect to all provisions in
Chapter 7 of Title 42 (the Social Security Act) without overturning the
specific holding that § 671(a)(15) is not privately enforceable. The CWA
is also known as Title IV-E of the Social Security Act. Wagner, 624 F.3d
at 978.
4772 HENRY A. v. WILLDEN
clude that § 675(1) does so as well. Finally, we have already
determined that the repeated use of the word “shall” in the
CWA shows that the statute is written in mandatory rather
than precatory terms. Id. at 982.
We now turn to whether the presumption that the case plan
provisions are enforceable is rebutted by Congressional action
that has “expressly or impliedly foreclosed enforcement under
section 1983[.]” Watson, 436 F.3d at 1158. In Wagner, we
recognized that the CWA provides no administrative forum
through which aggrieved foster children or parents can seek
redress, which weighs in favor of enforcement through
§ 1983. 624 F.3d at 982. Here, however, Defendants argue
that because Congress created an express cause of action to
enforce § 671(a)(18), it could not have intended the other sub-
sections of § 671(a) to be privately enforceable. See Charlie
H., 83 F. Supp. 2d at 489. The district court also relied on this
reasoning. This argument, however, has been implicitly
rejected by our holding in ASW that § 671(a)(12) creates an
enforceable right. Furthermore, because the express cause of
action created for § 671(a)(18) is actually broader than
§ 1983, it does not suggest an intent to limit § 1983 enforce-
ment. See Joseph A. v. Ingram, 275 F.3d 1253, 1264 (10th
Cir. 2002); cf. ASW, 424 F.3d at 978 (“[T]he dispositive issue
is whether the private remedy provided by statute is more
restrictive than those available through a § 1983 action, such
that the § 1983 action would function as an end run around
the enforcement mechanism Congress provided.”).
[19] We conclude that the case plan provisions of the
CWA, codified at §§ 671(a)(16) and 675(1), are enforceable
through § 1983. We therefore reverse the district court’s dis-
missal of Count Eight.
2. CWA: Records Provisions (Count Three)
Count Three is a claim for injunctive relief and damages on
behalf of the individual plaintiffs. It seeks to enforce the
HENRY A. v. WILLDEN 4773
requirement that a State provide updated health and education
records to foster parents as part of a “case review system.”
These provisions are codified at 42 U.S.C. §§ 671(a)(16),
675(1), and 675(5)(D).
As it does with respect to a case plan, § 671(a)(16) requires
a State to provide for a “case review system” for each child.
Section 675(5)(D) defines “case review system” to include “a
procedure for assuring that . . . a child’s health and education
record . . . is reviewed and updated, and a copy of the record
is supplied to the foster parent or foster care provider with
whom the child is placed, at the time of each placement of the
child in foster care.” Section 675(1)(C) outlines the detailed
information that must be included in a child’s health and edu-
cation record.
The district court analyzed the records provisions of the
CWA along with the case plan provisions and concluded that
the records provisions were also not enforceable. The district
court adopted the reasoning of the Eleventh Circuit in 31 Fos-
ter Children v. Bush, which held that the language describing
a case review system as “a procedure for assuring” that a fos-
ter child has accurate health and education records gives the
provision “an aggregate or system wide focus instead of one
that indicates concern with whether the needs of any particu-
lar child are met.” 329 F.3d 1255, 1272 (11th Cir. 2003).
[20] We disagree with this analysis and instead join the
federal courts that have found the records provisions of the
CWA to be privately enforceable along with the case plan
provisions. See, e.g., Lynch, 719 F.2d at 512; Kenny A., 218
F.R.D. at 291-92; Brian A., 149 F. Supp. 2d at 946-49. We are
persuaded by the statute’s repeated focus on the individuals
benefitted by §§ 671(a)(16) and 675(5)(D): A case review
system must be provided with respect to each child; the
child’s health and education record must be provided to the
foster parent; and this must happen at the time the child is
placed in foster care. As in Wagner, the “focus on individual
4774 HENRY A. v. WILLDEN
foster children,” and the language “designating foster parents”
to receive a benefit on their foster child’s behalf, “together
unambiguously reflect Congress’s intent” that the records pro-
visions benefit individual foster children and parents. 624
F.3d at 981. Furthermore, like the case plan provisions, the
records provisions are couched in mandatory terms and con-
tain detailed, concrete requirements that are capable of judi-
cial enforcement.10 To conclude otherwise would be
inconsistent with our decisions in ASW and Wagner, as well
as our analysis of the case plan provisions above.
[21] Defendants argue that the district court’s decision is
supported by a footnote in ASW, which distinguished 31 Fos-
ter Children by noting that unlike § 673(3), the provision at
issue in ASW, the statutory text of § 675(5) alone does not
mention “a right . . . to have medical and education back-
grounds provided to caregivers[.]” 424 F.3d at 977 n.12. We
agree with Plaintiffs, however, that this footnote has little sig-
nificance because ASW did not consider § 675(5) in the con-
text of related provisions such as § 671(a)(16) and
§ 622(b)(8)(A)(ii). We conclude that, like the case plan provi-
sions, the records provisions can be enforced through § 1983,
and we reverse the district court’s dismissal of Count Three.
3. CAPTA: Guardian ad litem provisions (Count Nine)
Count Nine of the complaint seeks injunctive relief on
behalf of a class of foster children who have not been
appointed guardians ad litem. It seeks to enforce the guardian
ad litem provision of CAPTA, codified at 42 U.S.C.
§ 5106a(b)(2)(B)(xiii), which provides that:
10
Additional evidence of Congress’s intent to create an enforceable right
can be found at 42 U.S.C. § 622(b)(8)(A)(ii), which requires each State to
assure that it is “operating” a case review system “for each child receiving
foster care under the supervision of the State.” See, e.g., Kenny A., 218
F.R.D. at 292-93; Brian A., 149 F. Supp. 2d at 947; cf. 31 Foster Children,
329 F.3d at 1271 n.8. But see Charlie H., 83 F. Supp. 2d at 485-89.
HENRY A. v. WILLDEN 4775
A State plan . . . shall contain a description of the
activities that the State will carry out using amounts
received under the grant . . . including . . . an assur-
ance in the form of a certification by the Governor
of the State that the State has in effect and is enforc-
ing a State law, or has in effect and is operating a
statewide program . . . that includes provisions and
procedures requiring that in every case involving a
victim of child abuse or neglect which results in a
judicial proceeding, a guardian ad litem . . . shall be
appointed to represent the child in such proceedings
. . . .[11]
As the district court observed, Nevada does have a law
directing state courts to appoint a guardian ad litem for every
eligible child. See Nev. Rev. Stat. § 432B.500(1) (“After a
petition is filed that a child is in need of protection . . . the
court shall appoint a guardian ad litem for the child.”). But
courts do not always order these appointments, because Clark
County does not have enough guardian ad litem volunteers.
See Nev. Rev. Stat. § 432B.500(2) (“No compensation may
be allowed a person serving as a guardian ad litem pursuant
to this section.”). Plaintiffs thus seek an injunction compelling
the State and County defendants to “make it possible for state
courts to appoint a guardian ad litem in every case.” The dis-
trict court held that the guardian ad litem provision of CAPTA
was not privately enforceable and that, in the alternative,
abstention was warranted under the doctrine set forth in Youn-
ger v. Harris, 401 U.S. 37 (1971).
[22] As best we can tell, no court has specifically
addressed whether the guardian ad litem provision of CAPTA
is enforceable through § 1983, and no federal appellate court
has considered whether any provision of the current version
of CAPTA is privately enforceable. As a matter of first
11
At the time the complaint was filed, this provision was codified at 42
U.S.C. § 5106a(b)(2)(A)(xiii).
4776 HENRY A. v. WILLDEN
impression, we conclude that the guardian ad litem provision
does not create an individual right enforceable through
§ 1983.
The Sixth Circuit and the D.C. Circuit have held that an
earlier version of CAPTA is not privately enforceable. Doe v.
District of Columbia, 93 F.3d 861, 866-67 (D.C. Cir. 1996);
Tony L. v. Childers, 71 F.3d 1182, 1188-89 (6th Cir. 1995).
That version required that in order to qualify for a grant, a
State “shall provide that upon receipt of a report of known or
suspected instances of child abuse or neglect,” the State
would initiate an investigation and take immediate steps to
protect the abused or neglected child. 42 U.S.C. § 5106a(b)(2)
(1988) (emphasis added). Despite this mandatory language,
both circuits held that CAPTA was not privately enforceable
because it did not “mandate a particular means of investiga-
tion or state what type of actions must be taken” to protect a
child. Tony L., 71 F.3d at 1189; see also Doe, 93 F.3d at 867.
The Sixth Circuit also observed that “Congress wanted to
leave states a certain amount of discretion in this area.” Id.
In 1996, the language of CAPTA was changed substan-
tially. The current version requires each State receiving a
grant to submit a plan that “specifies the areas of the child
protective services system” that the State will address with its
grant money. 42 U.S.C. § 5106a(b)(1)(A). That plan must
“contain a description of the activities that the State will carry
out,” including, as detailed above, a certification that the State
is enforcing a law or operating a program that includes provi-
sions and procedures requiring the appointment of guardians
ad litem. 42 U.S.C. § 5106a(b)(2)(B)(xiii).
Every federal district court to consider the question has
found that the more recent versions of CAPTA do not satisfy
the Blessing test.12 See, e.g., Charlie H., 83 F. Supp. 2d at
12
The current version (as amended in 2010) is substantially similar to
the other versions that have been in place since the significant changes
made in 1996.
HENRY A. v. WILLDEN 4777
496-97; A.S. v. Tellus, 22 F. Supp. 2d 1217, 1224 (D. Kan.
1998); Jeanine B., 967 F. Supp. at 1118. These courts have
generally agreed that CAPTA’s requirements have too broad
a focus to create individual, enforceable rights. At least one
district court has emphasized that the current version presents
a weaker case for private enforcement than the prior version.
Jeanine B., 967 F. Supp. at 1118.
[23] We agree with this reasoning and affirm the district
court’s decision below. Unlike the case plan and records pro-
visions of the CWA, the guardian ad litem provision of
CAPTA does not contain the unambiguous rights-creating
language necessary to satisfy the first prong of the Blessing
test. As discussed above, when Congress wrote the CWA, it
incorporated detailed requirements for what a child’s case
plan or health and education record must include and how
those records must be incorporated into a case review system.
In contrast, CAPTA gives little specific guidance, requiring
only that a State either enact a law or create a program that
includes procedures designed to accomplish broad goals, such
as representation for every child by a guardian ad litem.13
[24] This approach leads us to conclude that Congress
intended to focus on “the aggregate or systemwide policies
and practices of a regulated entity[,]” rather than “individual
rights to benefits.” Watson, 436 F.3d at 1159 (citing Gonzaga,
536 U.S. at 287-88). Our conclusion is bolstered by CAPTA’s
legislative history, which explains that Congress intended “to
ensure that States are responsible for planning and implement-
ing the essential elements of an effective and efficient child
protective service system without placing undue administra-
tive burdens on States.” S. Rep. No. 104-117, at 13 (1995).
We thus affirm the district court’s dismissal of Count Nine on
the basis that the guardian ad litem provision is not enforce-
13
Also in contrast to the CWA, the “Suter fix” does not apply to
CAPTA, which is codified in Chapter 67 of Title 42 rather than Chapter
7. See supra note 9.
4778 HENRY A. v. WILLDEN
able through § 1983. We need not consider the district court’s
alternative holding that Younger abstention was appropriate.
4. CAPTA and IDEA: Early Intervention Services
(Count Ten)
Count Ten seeks injunctive relief on behalf of a class of
foster children who were not referred to early intervention
services for which they were eligible. It seeks to enforce pro-
visions of both CAPTA and IDEA that require States to refer
certain children to early intervention services. The CAPTA
provision, 42 U.S.C. § 5106a(b)(2)(B)(xxi), provides:
A State plan . . . shall contain a description of the
activities that the State will carry out using amounts
received under the grant . . . , including . . . an assur-
ance in the form of a certification by the Governor
of the State that the State has in effect and is enforc-
ing a State law, or has in effect and is operating a
statewide program . . . that includes . . . provisions
and procedures for referral of a child under the age
of 3 who is involved in a substantiated case of child
abuse or neglect to early intervention services
funded under Part C of the [IDEA].[14]
The IDEA provision requires a State to have “policies and
procedures that require the referral for early intervention ser-
vices . . . of a child under the age of 3 . . . who is involved
in a substantiated case of child abuse or neglect[.]” 20 U.S.C.
§ 1437(a)(6)(A). The district court held that the CAPTA pro-
vision is not privately enforceable and that IDEA’s compre-
hensive enforcement scheme precludes enforcement of that
provision through § 1983. We affirm the decision of the dis-
trict court.
14
At the time Plaintiffs filed their complaint, this was codified at 42
U.S.C. § 5106a(b)(2)(A)(xxi).
HENRY A. v. WILLDEN 4779
[25] Our analysis of the CAPTA guardian ad litem provi-
sion applies with equal force to the early intervention provi-
sion. Because Congress did not “unambiguously confer” an
individual federal right, the early intervention provision fails
the first prong of the Blessing test. See Gonzaga, 536 U.S. at
283.
[26] With respect to the IDEA claim, we have previously
held that the IDEA has a comprehensive enforcement scheme
that forecloses enforcement through § 1983. Blanchard v.
Morton Sch. Dist., 509 F.3d 934, 938 (9th Cir. 2007). Plain-
tiffs do not dispute this point, but they argue — for the first
time on appeal — that they are seeking to enforce the IDEA
claim not through § 1983, as their complaint alleges, but
through the express cause of action contained in Part C of the
IDEA (codified at 20 U.S.C. § 1439(a)(1)). Plaintiffs concede
that IDEA’s express cause of action requires parties to
exhaust their administrative remedies. They urge us, however,
to reverse the district court’s dismissal; reinstate their IDEA
cause of action; and allow Defendants to argue exhaustion as
an affirmative defense on remand. See Payne v. Peninsula
Sch. Dist., 653 F.3d 863, 867 (9th Cir. 2011) (en banc) (hold-
ing that IDEA’s exhaustion requirement is not jurisdictional
and must be raised as an affirmative defense).
[27] This course of action would be inappropriate. The dis-
trict court correctly applied the law to Plaintiffs’ § 1983 claim
and had no opportunity to decide whether Plaintiffs could pro-
ceed under IDEA’s express cause of action. We thus affirm
the district court’s dismissal of Count Ten. If, on remand,
Plaintiffs wish to pursue a claim under IDEA’s express cause
of action, they can seek leave to amend their complaint.
C. Assignment on Remand
Plaintiffs request that we reassign this case to a different
district judge on remand. Our supervisory powers under 28
U.S.C. § 2106 permit reassignment when “unusual circum-
4780 HENRY A. v. WILLDEN
stances” are present. United Nat’l Ins. Co. v. R&D Latex
Corp., 242 F.3d 1102, 1118 (9th Cir. 2001). We consider
three factors to determine whether unusual circumstances
exist: (1) whether the original judge would have substantial
difficulty in putting out of his mind previously expressed
views or findings determined to be erroneous; (2) whether
reassignment is necessary to preserve the appearance of jus-
tice; and (3) whether reassignment would entail waste and
duplication out of proportion to any gain in preserving the
appearance of fairness. Id. at 1118-19 (citing United States v.
Sears, Roebuck & Co., 785 F.2d 777, 779-80 (9th Cir. 1986)).
Plaintiffs argue that reassignment is warranted under the
first two factors because Judge Jones has prejudged the merits
of the case and expressed hostility toward Plaintiffs’ counsel.
In support of this argument, Plaintiffs point to Judge Jones’s
comments during proceedings in this case as well as during an
earlier, closely related case, Clark K. v. Guinn, No. 2:06-CV-
1068-RCJ-RJJ, 2007 WL 1435428 (D. Nev. May 14, 2007).15
[28] After thoroughly reviewing the record, as well as the
transcripts from Clark K. submitted by Plaintiffs in their
request for judicial notice, we conclude that reassignment is
not necessary. We agree that Judge Jones occasionally
expressed frustration with Plaintiffs’ counsel and made a few
troubling comments, especially concerning his willingness to
approve a potential settlement or consent decree in Clark K.
But those comments were not made during the present case,
and our review of the entire record shows that Judge Jones
gave genuine consideration to the arguments of both parties
and provided a reasoned decision. There is no indication that
15
In Clark K., a different group of foster children who were also repre-
sented by the National Center for Youth Law brought a class action seek-
ing injunctive relief against many of the same defendants named here.
Judge Jones denied the motion for class certification. While an appeal of
that denial was pending in our court, the parties stipulated to dismissal of
the case with prejudice as to those particular plaintiffs.
HENRY A. v. WILLDEN 4781
Judge Jones is unwilling to follow our instructions on remand.
In short, reassignment is an extreme remedy, and it is not war-
ranted here.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the dismissal of
Counts One, Two, Three, Eight, and Eleven; AFFIRM the
dismissal of Counts Nine and Ten; and REMAND for further
proceedings. On remand, the district court should allow Plain-
tiffs leave to amend their substantive due process claims, and
Plaintiffs can seek further leave to amend if they wish to add
a claim under the IDEA’s express cause of action. Plaintiffs
shall recover their costs on appeal.
REVERSED in part, AFFIRMED in part, and
REMANDED.