sufficient allegations to plausibly show the defendants acted under color of law now here the defendants were not a purely private hospital the provided urgent medical treatment or care instead the defendant's contract with the county of los angeles to perform non urgent forensic examinations me ask you just i want to try to cabin and what we're talking about the police had gone to the scene of some reported abuse found a child there who they thought was a victim and just taken him to a hospital with which they had no contract or to be a crime victim but i think they would need to call the ambulance the ambulance takes him to the hospital and hospital performs exactly the same forensic examination as an l underwent do you have a nine hundred eighty three claim against that hospital i don't think you would in the sense that that is then a government official trying to get medical treatment for child care so came to the closest you start from that baseline tell me what additional facts here in your view turn this into a state action whether having a government contract per se means that you're a state actor the person who sells tires for the trucks that the state uses or for any number of there are hundreds of government contractors and they all state actors for purposes of nine hundred eighty three the difference here is we have a contract to say yes or no question you haven't answered the question does a contract to pursue a make the contracting party a state actor i don't believe so but here and when you have a contract for medical services where there's other facilities that the county uses and actually operates and selves to provide these type of examinations so you have a contract to provide those type of medical services so your argument is that they're providing a governmental service because it's in effect outsourcing a service that the county would otherwise do itself is if you look at department of a bizarre look at the partner health services when there's that contract in place to provide these type of services then well that is what i want to make sure i understand your point it's not simply that there's a contract in place it's the contract isn't that the contract requires the hospital to provide services which are governmental in nature yes the cut the here the contract is what is a service it's governmental in nature here it's not the medical treatment of the child as they were there is nothing there's no medical an issue what's what's the what's the service that's that governmental in nature that you see the hospital providing it was a forensic examination to determine whether or not there was child abuse there is no medical treatment nothing to treat or heal this child and why is that a governmental service we look at the machinery under key a piece of the mcintyre when they've come in and function when some evidence that this is a governmental service but your argument wouldn't be any different if the government didn't operate any of these if it just contracted it out entirely that's correct your honor because i take it your argument is this is a criminal doesn't mean that every aspect of that governmental service then is governmental because this was simply a forensic examination that let's say the police officers did not have the expertise you know to conduct because it's a medical exam right this examination when we look at for the face of forensic examination is not to treat letters still it is a medical examination if the three of us look be under wallace and be green be cameron his progeny you need a warrant you need government to put aside for a second whether or not there were any constitutional violations here were not at that stage of this case the judge dismissed it as i take it because he thought your client was in a state hospital was in a state actor right yes that's correct and i believe there was a footnote that kind of tied back the first opinion the first order but this is the order that we are the last order was for there are no state actor assume that when and l gets brought to the children's hospital he's got obvious injuries and they treat the injuries and they also do a forensic examination is the treatment of the injury state action contract at this stage the exact terms of the contract we do not have before us we have every laboratory agreement that that's in the record and we have to deal with child abuse to potential child abuse victims we have the deposition testimony discussing the forensic aspect of the can i can take you of course for a second this is a strange case in the sense that you litigated it in state court dismissed the hospital and then came back and sued them in federal court and so we've got all these depositions in and other things from the state court litigation attached to the complaint do we treat everything in this is a motion to dismiss do we treat everything in those depositions as if they were true what do we do with that that attach stuff yes i believe your honour's do you treat that as it's true what we have here is it supporting the allegations th is this just before us on state action or did the judge make any findings that there were no constitutional violations if you give me one second i can take a look to find you exactly to bridge the briefing is all about state action  i mean i think there's a plausible for my sort of narrow perspective to the extent that there's even that that the constitution requires the parent's consent under certain circumstances in those circumstances except except ind agencies were shown here there's a plausible allegation it may fail in summary judgment the hospital may have qualified immunity but i'm just i just want to know whether or not the judge whether it what else underlies the judge's order here is so in th so effectively even though he didn't discuss it some of that aspect didn't come into play into this order but the heart of what you say what does that mean what is what it is first order so that his first order didn't touch upon state action he actually said it there we're not looking at state action i'm just looking at the constitutional deprivation and i'm finding that there is no constitutional deprivation alleged so that's another issue that we have not had any chance to amend the state action but here's my problem and your briefing doesn't address whether there's or whether the judge erred in his first ruling in finding or not are we do address that there is a concert a violation that occurred in the briefing and isn't there we discussed was in green and i want to get back for a moment though to judge her prior hypothetical and i want to ask whether the fact that the mission changed and then they treated the patient does that take that out of the realm of being the acts of the state act simply because that was not in the course of the criminal state actor even though the treatment is not a part of the criminal investigation i think that there's but under the terms of the contract and knowing the joint club aeration  examination itself was intrusive and parents went there yes that that does go into play with the is there another way that children's hospital could have performed o forensic examination that would have been less intrusive i believe that once you have a for under color of law argument once there's this contract in place and once the defendants here collaborate participate assist in the machinery of a child conducted were us improper in the sense of being more intrusive than it would have otherwise been if they'd been just or not not with a contract or just  apparently is what the hospital was told that they conduct their examination in some way that was improper put aside whether consent is required to decide whether a warrant is required we're trying to get at is whether or not you're making an allegation that even putting aside all these things it was a bad examination yes your honor we are and i was aware of what i was going to be getting at is they did a highly intrusive examination you're looking at the child's genitals and rectum performing a full assume for the sake of this question that there is a validated claim of sexual abuse as house to a particular child and that there's that the parents have been notified or a word has been obtained all that has happened would the examination that is done in those circumstances be any less intrusive or would it be the same investigation of the child as was done here it's all the examinations from from what i understand from the yes and so the hospital conducted this then that forensic examination you know consistent with its contractual responsibilities in other words the state didn't tell the hospital how to conduct the examination this is just a standard for it's a good salmon nation that that right i don't believe that they said what type of examination to perform that but that they didn't say they certainly did tell him how to perform it did  just assume that for a moment does the people in the hospital then determine the nature of the examination to be given or to have a form a set of instructions from the police about what to do or can i tell from this record i don't believe that that's specifically in the record but i can double check on that to see about answering that i mean i know you make allegations about them collaborating in a team approach i'm just trying to find out whether or not the hospital examiners exercise independent judgment about what to do when the charges brought to the hospital or whether or not they have a set of instructions about what they must do the only inference and i can draw from that answer try to answer your question is that the composition of the carers team that's operated by the hospital that performs this examination is comprised of government social workers medical person no law enforcement prosecutors so they just so to some extent that group decides what the whoever's present at the moment decides what the appropriate examination is i would just say that for that for an inference you can take a look at that and see that there's a collaborative effort to terminate for things that thank you you've exceeded your time but we asked a lot of questions so you may have a minute for about good morning honorable i wanted and would you introduce yourself for the record i'm sorry i'm david pruitt i'm on behalf of the defendants and police children's hospital los angeles and children's hospital los angeles medical group and i would like to start off by pointing out that in a case where there are allegations that a private party is a state actor  subject to liability for violation of federal statutory constitutional law that there is a strong presumption against such a claim as a matter of law and that is a criteria that takes this case out of if you will some of the normal standard for reviewing a motion to dismiss that there's really here to me ask you a question about that yes let's assume that instead of this arrangement you have here the police or the county hires your clients and says it's really important that we look at these children  scene we could employ doctors to do that and put them on our staff but we don't have enough demand for it so we're going to hire your client to come to the scene with us and help us do a forensic examination at the scene with that and that examination occurs would would your client be a state actor into those circumstances well no because i don't know it's even know the doctors riding around with the police and helping them with the investigation they still would be a state actor not based upon the way that the facts are framed here you know in this in this instance children's hospital los angeles did not decide anything about the direction or target of any investigation well but you know and there my circumstance neither would the doctor the police would be going to the scene we just need to have a doctor on hand because when we show up there we might need one to do a forensic exam and so they rather than put a doctor on staff they they contract with your client to have the doctor ride around with them and they show up at the scene and then exactly what occurs here occurred just occurs at the scene not at the hospital  you're saying that wouldn't be state action on the part of your client well i think the issue boils down to under whose authority is the examination done what's under state authority nobody doubts that otherwise we wouldn't be here the examination is done because the state has brought somebody to you to examine it's not an elder and walk in off the streets and say i have a problem i'd like to be examined but that's the crux of the issue i mean you know plaintiff clinton plainest claim is in actuality that that an examination was done without the parents consent or without a warrant and the response to that is those two factors may have been true but the defendant still had the instruction of an authorized government authority to do the examination and th changes that let me get i hate to keep bothering you with my hypothetical bothering me but they help me focus on the case you agree that if one of your clients was a doctor at a public hospital under these circumstances what that a wonderful defense on the merits but that's a separate issue the question is with the state action if your client were the doctor l a county hospital i agree that that would be a government actor and the thing that i'm and have qualified immunity you can be a government official and not be the cause of a constitutional violation i'm just focusing on state action right and that's and i think that that last part is the key not be the cause of the constitutional violation you know for instance i mean you know that's not the theory that the district court system it is it is part as as i believe my calling accurately acknowledged by incorporating the previous order yes that you've read the previous order is saying even if what the hospital did had it been done by a state actor might have violated the constitution it  l is saying is i had a right not to be examined without my mother there or my father there without their consent and there we have cases that recognize it as a constitutional right wasn't it your hot your quiet that decided specifically alleges that when the d c i staff official went to the home where this plane took was resigning that she showed a badge to express her authority she took custody of the she searched the house for two hours instead of well fast forward to the hospital they bring the child to the hospital is there something in this complaint that says that the state a state official said to the hospital representatives and then conducted this examination even if your normal process would be to obtain consent from the parents or to have them present you were instructed not to do so here yes because tell me where that is is did your client take part in that process to keep the parents out no the complaints i read the complaint it says although the hospital's normal processes are to call parents in to get consent when children are brought in it decided not to do so in this circumstance doesn't the complaint say that i certainly do not recall the public complaints saying that and i've looked at it very carefully my recollection of the complaint is that they do you see how fast a visual is took custody and then took the child to the hospital and said we want the child examined and we have custody of the child here is you disputed in the first motion to dismiss whether the child was in custody at all right because that's part of the judge's order in the first motion to dismiss the judge says i can't tell when that child was taken into custody because i don't know i don't know whether or not they're bringing the undermine the judge's first dismissal there which is first dismissal was you haven't shown causation because you haven't shown that at the time of the examination the child was in d c s custody and then the there was doesn't the causation argument that the judge dismissed the complaint on the first time go away i i may not be understand your question i disagree with the suggestion that the idea of causation went away and i also would point out that even under the the four tests that are used to determine whether or not there's a state actor status that the that the formulation includes a determination of whether or not in acting as  say i'm finding that if you are a state actor what you did here was constitutional judges first order said you haven't shown any causation and that's different than finding no kind that there wasn't there were the actions invite the constitution so i'll be waiting to be misreading it the judge says you've got no injury in fact that arises from the actions of the hospital and and partly allowed the plaintiff to amend the complaint to clarify that and if in fact that inference that was being drawn by the judge at that time was events and that this examination was only done at the behest of defeat d c f s authority however he says i'm going to give deference to deposit ability that the plane of could allege some differing facts from that and if the plaintiff were then true allege some facts that indicated that children's had done something at a point in time were the child was not in d c fs custody that might change the correct because under let's put it this way we're not we have all these prison cases where people provide medical care to prisoners and or who you know who are in custody of the state and or or food and we treat them as state actors if if a constitutional violation is alleged wise why is it different why is the custody here because it's not inside a confined prison any different it's because in those cases that you're referring to this the standard that is violated is that the medical professionals are given complete responsibility relative to the medical services that a prisoner will or will not receive and they make the decision from start to finish they have complete control over that and if they act with deliberate indifference then they are subject to a constitutional claim because they have complete control they decided whether or not the patient w view it comes down to the fact that there is no discretion on the part of the hospital that is they bring in a child and say you must do the standard examination on this child and the hospital la it's not at all contested that look we're only here because they brought the child to the hospital and so it's surely it was done at the behest of the state the question judge great just isn't there for where in the complaint does it say that once the state shows up with the child and says sexual abuse victim at the hospital must do exactly what he did under these circumstances the doctor can look at the child and say i don't need to conduct this extensive examination or perhaps i would've called the parents or do something your argument is that the that your clients are in effect right tom at times once the child was brought there that may be true i'm just trying to find and you may be able to show that in summary judgment i mean asking how can i infer that from the complaint for examination they were that parent so although litter yeah but that's a functional parental relationship and there's more than that doesn't answer the state action issue maybe it would be why you win but what how does that  the hospital part of their deal and if i can piggyback on judge her with this question i want to know simply went back to judge greg with question what discretion did the hospital exercise here under the contract the police could bring a child to the hospital so we want you to do the examination and the hospital could have see it know the parent thought he had so we are going to conduct yes and judge berat acknowledged that in his words and so here the hospital then opted to conduct the complaint irrespective of the presence of the parents is that right the parent was the state because they had custody and they had the legal authority to ask for an examination and when they consented to it in an examination or is known there was no reason for the providers to decline to do it there's nothing inherently illegal about doing the examination examination as you point out was done per correctly and there was nothing that would suggest that there was some false occasion of evidence that would be for the purpose of depriving the actual parents of custody there was there was nothing done by this hospital have the the biological parents were present the hospital had first of all the ability to look behind the circumstances and see that there was a legal studio relationship that that state was because of suspected abuse so those circumstances if you're looking at whether or not they could look behind it and whether or not they are i think you're going beyond where they have to go because the state authorized them to do the examination but you know if you're say that they clean up you for second your argument here is that they acted perfectly reasonably under the circumstances and i think i may agree with my question is is that what's before us my words if that's not really my argument though and then sometimes i'm saying they had the discretion to act as medical providers or not for any particular person any time the contract did not require them to see any person at any time it did not require them to take custody of the new person for any reason it did not require them to investigate or determine whether or not someone acted in concert then with the police in determining that the police say what the parents and b to conduct the  investigation of the forensic examination without the biological parents present they've made that independent decision right now they they were the breathalyzer when they went in to use an analogy the police pull over someone and ordinarily i have the ability to decline to submit to a breathalyzer if i'm just walking around in the street but i've been driving i have been implicitly given consent to to have a  is a contract in this case am i correct there is a contract between the state and the hospital all of all that's alleged in this situation is that there is a contract that if the state needs an examination the medical providers are willing to do it there's nothing more than that but then it but i knew your view of that contract they could have said when they brought the child to the hospital we're too busy today or we don't want to see this child or even perhaps we'll see the child but we want to make sure yes the parents have been notified first yes and she extent that the police are using this is a resource i'm comparing this to the blood lab to the brussel eyes or if it's a please do something wrong in taking someone in their custody and then then they use evidence from a laboratory to help support their claim that doesn't mean that the laboratory because it's contracted to do this work put on the clothes of a state actor for the purpose of depriving this person of their constitutional or federal rights that's that and that's my analogy i'm sorry for i know i interrupted i'm sorry i'm just trying to get to this point that that right and what do you understand is your argument that there are breathalyzer breathalyzer has no discretion breat out numbers sure haps people doing lab tests at the direction of the state have no disgrace if you look at a blood test so that's why we're asking and you need to help us on this whether your client when this child about what he does medically yes correct and i would just point out that that then the plaintiff has conceded to two essential points first of all that they have no issue with the way the examination was done ok second of all they they have no issue with the fact that the hospital or the medical group at some point contacted the police to report suspicions of abuse relative to his brother those are not the things that they're saying  hospital or the medical group with any sort of state actor status the only thing they're focused on is the fact that the doctor examined the child when someone with authority legal authority to do so brought the child they maybe they were totally off base i'm looking at this from the hospital perspective why aren't they entitled to qualified immunity under that when the police show up and say we have a child that we believe we have probable cause to believe has been the subject of sexual abuse they may be dead wrong they bring the child to the hospital they say we've taken custody of this child you allege they have why isn't there permission to conduct the examination sufficient to immunize the hospital from  are not race or that never challenged a lot but the now issue is against the hospital's policies and procedures of cause the underlying violation as a result there's been no qualifying right no i understand that but i don't think that's in the now claim what you really saying is the hospital was a state actor and violated the constitution because that's what its policies and procedures did you not seeking to impose liability on the hospital because of what the state did you're seeking to impose liability on the hospital because what the hospital discretion that is to proceed with the the the examiner the forensic examination or the manner in which you conduct the examination itself it's both your honor and actually go back to one of the questions that was touched upon earlier here we do have allegations that it was the hospital's policies and procedures to not notify parent and to exclude the parent during those examinations well i think the hospital responsible to do that oh well the challenge family which gives them the or third you tend to say we are acting as the child's parents and we request or demand this examination and that's the question i was asking the statute says when you show up at a hospital with a child in the custody of in the custody of children services they're in effect local puranas they can they can ask for now you can sue the heck out of them and you haven't you've settled with this with the state if the child is in custody is your opponent correct in saying that the state is acting in local printers that they say there's they're not able to come in and get an examination without the even if they're acting in local  as here yes i believe it was or was that at that time the c p s agency had custody of the child and they brought them to the one of the examination occur at the hospital and they still said you have a constitutional violation of this and addition green became or is instructive in that it had a similar statutory language allowing examinations they said even forgot even though that's there we're still finding a constitutional violation because  even if it's a lesser agreement you're still going to have you know i just end the question the question is whether you have shown enough to make these private actors public actors and i was trying to draw the boundaries and i think your colleague agreed that if it was a public actor state action yes it's on trial that's not a dispute issue my point is that if that if we can all agree then that a public doctor in a public facility would be this would be so under state action the contract even if it's