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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

George Reiss, 

Plaintiff, 

v. 

Arizona Department of Child Safety, et al., 

Defendants. 

No. CV-18-00029-PHX-JJT

ORDER 

 At issue is the Motion to Dismiss (Doc. 12, Mot.), which Defendants Arizona 

Department of Child Safety (“DCS”), DCS Director Greg McKay (“McKay”), David 

Graham (“Graham”), Amanda Santiago (“Santiago”), and Marylou Kash (“Kash”) filed 

on April 30, 2018, and to which Plaintiff Dr. George Reiss filed a Response (Doc. 18, 

Resp.) and Defendants filed a Reply (Doc. 25, Reply). The Court elects to resolve the 

Motion without oral argument. See LRCiv 7.2(f). For the reasons that follow, the Court 

grants Defendants’ Motion. 

I. BACKGROUND 

 In the Complaint, Plaintiff alleges the following relevant facts, which the Court 

takes as true for the purpose of resolving the Motion to Dismiss. See Smith v. Jackson, 84 

F.3d 1213, 1217 (9th Cir. 1996). Plaintiff married his now former wife (“Mother”) in 

2009 and together they had two children—a son born in 2010 and a daughter born in 

2011. (Doc. 10, First Amended Complaint (“FAC”) ¶ 35.) Plaintiff and Mother separated 

in April 2015. (FAC ¶ 36.) On April 14, 2015, in the midst of negotiations for child 
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custody, Mother brought the two children to Phoenix Children’s Hospital to be evaluated 

for sexual abuse that she claimed Plaintiff had committed. (FAC ¶¶ 41–42.) After 

conducting a physical examination of the children, a physician found no signs of abuse. 

(FAC ¶ 44.) Nevertheless, DCS initiated an investigation based on Mother’s allegations 

of sexual abuse. (FAC ¶ 42.) Defendants Santiago and Kash, who were employed as 

caseworkers and investigators for DCS at the time, were assigned to the case. (FAC ¶ 42.) 

DCS contacted the Paradise Valley Police who assigned Detective Steven Schrimpf to the 

matter. (FAC ¶ 43.) 

 After the medical evaluation at the Phoenix Children’s Hospital, Kash and 

Detective Schrimpf interviewed the children. (FAC ¶ 45.) The son stated that Plaintiff 

had “touched his privates” on one occasion in the bathroom while the family was on 

vacation. (FAC ¶¶ 45–47.) The daughter stated that Plaintiff had touched her “privates,” 

but she was then too tired to complete the interview because at that point it was late at 

night. (FAC ¶ 47.) After the interviews, DCS decided to prohibit Plaintiff from having 

contact with his children and created a “safety plan,” which was an agreement of nocontact to be signed by Plaintiff. (FAC ¶ 48.) Defendant Kash then travelled to Plaintiff’s 

home and presented the safety plan, to which Plaintiff reluctantly agreed after being told 

that the only alternative was for his children to be placed in state custody. (FAC ¶¶ 51–

52.) 

 A couple days later, on April 16, 2015, Plaintiff filed for divorce in Arizona 

family court. (FAC ¶ 56.) On April 21, 2015, “in line with, if not wholly based on, DCS’s 

safety plan, the family court found that DCS had determined that [Plaintiff] . . . should 

have no contact with his children and ordered the same.” (FAC ¶ 57.) 

 On June 18, 2015, Santiago sent Plaintiff a letter indicating that she was going to 

recommend substantiating—meaning she had found reason to believe—Mother’s 

April 14, 2015 report and allegations of child abuse. (FAC ¶ 62.) On September 1, 2015, 

Plaintiff received a letter stating that DCS had completed the investigation and had 

reason to believe that Plaintiff had abused his children. (FAC ¶ 64.) On September 9, 
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2015, Plaintiff requested an appeal of DCS’s proposed substantiation of the sexual abuse 

report and submitted information to support his position that DCS should not substantiate 

the allegation. (FAC ¶¶ 66–67.) 

 Plaintiff alleges that, under Arizona law, if an accused party appeals a proposed 

substantiation by DCS, the Protective Services Review Team (“PSRT”) reviews the 

information and determines if there is enough evidence to support the decision made by 

DCS. (FAC ¶ 31.) Defendant Graham was program manager of PSRT at the time. 

(FAC ¶ 9.) On September 28, 2015, Plaintiff submitted to PSRT a summary of 

exonerating information. (FAC ¶ 69.) On March 21, 2016, PSRT sent Plaintiff a letter 

informing him that Mother’s April 14, 2014 report and allegations of child abuse had 

been substantiated. (FAC ¶ 76.) On April 4, 2016, Plaintiff sent a letter to DCS, PSRT, 

and McKay, again summarizing exonerating information and requesting that DCS review 

the case pursuant to its duty under Arizona law to determine whether there was probable 

cause for substantiation. (FAC ¶ 78.) 

 On July 21, 2016, Plaintiff filed a complaint for Special Action (mandamus) relief 

in Arizona Superior Court alleging “that, despite being required by A.R.S. § 8-811(E) to 

review the allegations that DCS intended to substantiate, DCS had failed to fulfill that 

obligation, repeatedly refused to initiate a review of the abuse allegations, and continued 

to refuse to engage in its mandatory internal review process.” (FAC ¶ 79.) Soon after 

Plaintiff filed the Special Action, DCS agreed to review the documents Plaintiff 

submitted in exchange for Plaintiff dismissing his complaint. (FAC ¶ 80.) On 

September 6, 2016, after its review of Plaintiff’s materials, DCS issued a letter 

unsubstantiating Mother’s accusations and closing the DCS case against him. 

(FAC ¶ 81.) 

 In February 2017, the family court held a multi-day hearing where Defendant 

Kash testified that she largely substantiated a finding of sexual abuse against Plaintiff 

based on the children’s reporting, while conceding that there were several indications that 

the allegations were untrue. (FAC ¶¶ 88–89.) On March 2, 2017, the family court issued a 
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decree finding that there was never any credible evidence that Plaintiff sexually abused 

his children and no basis for a substantiation of DCS’s April 14, 2015 report. 

(FAC ¶¶ 94 –95.) 

 On January 23, 2017, Mother contacted DCS and the police to report Plaintiff for a 

second incident, alleging that Plaintiff showed their daughter a pornographic cartoon 

video on Mother’s iPad. (FAC ¶ 84.) The family court expressly addressed the 

accusations and decided they were untrue. (FAC ¶ 97.) In late February to mid-March 

2017, Mother re-raised the iPad allegations with DCS, after which DCS caseworkers 

interviewed Plaintiff’s daughter and informed Plaintiff that they were investigating the 

allegations. (FAC ¶¶ 97, 99.) Plaintiff alleges that DCS has not yet issued any finding 

unsubstantiating the iPad video allegation. (FAC ¶ 101.) In March 2017, Mother also 

alleged that the daughter had been kicked in the mouth by Plaintiff, but DCS investigated 

and found that unsubstantiated on May 27, 2017. (FAC ¶¶ 103, 107.) 

 Plaintiff originally filed a Complaint in Maricopa County Superior Court in this 

action on July 31, 2017. (Doc. 1, Notice of Removal.) Defendants removed to federal 

district court. (Doc. 1-1 at 9-21.) Plaintiff amended his Complaint on March 30, 2018. 

The FAC includes three counts alleging violations of 42 U.S.C. § 1983, two counts 

alleging violations of Plaintiff’s rights under the Arizona Constitution, and one count 

alleging violation of Arizona law. Defendants now move to dismiss the FAC under 

Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff has failed to state a claim 

upon which relief may be granted for the following reasons: DCS and Defendants McKay 

and Graham are not subject to § 1983, the individually named Defendants are entitled to 

immunity, and Plaintiff’s claims are time-barred. (Mot. at 4–12.) 

II. LEGAL STANDARDS 

 A complaint must include “only ‘a short and plain statement of the claim showing 

that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the 

. . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Fed. R. 
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Civ. P. 8(a). A dismissal under Rule 12(b)(6) for failure to state a claim can be based on 

either (1) the lack of a cognizable legal theory or (2) insufficient facts to support a 

cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 

1990). “While a complaint attacked by a Rule 12(b)(6) motion does not need detailed 

factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 

relief’ requires more than labels and conclusions, and a formulaic recitation of the elements 

of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted). The 

complaint must thus contain “sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 

Twombly, 550 U.S. at 570). “[A] well-pleaded complaint may proceed even if it strikes a 

savvy judge that actual proof of those facts is improbable, and that ‘recovery is very remote 

and unlikely.’” Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 

(1974)). 

 “To sustain an action under § 1983, a plaintiff must show (1) that the conduct 

complained of was committed by a person acting under color of state law; and (2) that the 

conduct deprived the plaintiff of a constitutional right.” Balistreri v. Pacifica Police 

Dept., 901 F.2d 696, 700 (9th Cir. 1988) (citing Rinker v. Napa County, 831 F.2d 829, 

831 (9th Cir. 1987)). If a plaintiff does not allege sufficient facts to state a plausible claim 

under this standard, a § 1983 claim must be dismissed. When a dismissed complaint 

cannot be cured by amendment, the Court dismisses the claim with prejudice. See Lopez 

v. Smith, 203 F.3d 1122, 1127–30 (9th Cir. 2000). 

III. ANALYSIS 

 A. Section 1983 Claims against Defendants in their Official Capacity

In their Motion, Defendants argue that all official-capacity claims seeking money 

damages must be dismissed because a state entity or officer named in an official capacity 

is not a “person” within the meaning of § 1983. (Mot. at 5.) The Court agrees. 

 According to § 1983, “Every person who, under color of [law] . . . , subjects, or 

causes to be subjected, any citizen of the United States . . . to the deprivation of any 
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rights, privileges, or immunities secured by the Constitution and the laws, shall be liable 

to the party injured.” 42 U.S.C. § 1983 (emphasis added). The Supreme Court has ruled, 

however, that a lawsuit against a state official acting in his or her official capacity is 

actually “a suit against the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 

71 (1989). The Supreme Court has also held that a state or state agency is not a “person” 

within the meaning of § 1983 and therefore is not subject to money damages in lawsuits 

alleging § 1983 violations. Id. at 58. Defendants McKay, Graham, Santiago, and Kash are 

all state officers named in an official capacity, and DCS is a state agency. Moreover, 

Plaintiff is seeking only money damages. Therefore, all official-capacity claims and 

claims against DCS constitute “a suit against the State itself” and, because a state is not a 

§ 1983 “person,” all such claims are dismissed. Id. at 59. Because the defects in these 

claims cannot be cured by amendment, the Court dismisses the claims with prejudice. See 

Lopez, 203 F.3d at 1127–30. 

 Plaintiff argues that Defendants are liable in an official capacity under § 1983 

because they acted according to a policy, practice, or custom that caused the deprivation 

of Plaintiff’s constitutional rights. (Resp. at 6.) The policy, practice, or custom inquiry, 

however, is relevant only where the plaintiff in a § 1983 lawsuit attempts to hold a 

municipality liable for the actions of one of its officials. Compare Monell v. Dep’t of Soc. 

Servs. of City of New York, 436 U.S. 658, 690 (1978) (holding that a municipality cannot 

be held liable for the actions of its employees under § 1983 unless the municipality’s 

policy or custom was the moving force behind the alleged constitutional harm), with Will, 

491 U.S. at 71 (holding that a state official acting in an official capacity is not a “person” 

under § 1983). Plaintiff does not contend that any of the Defendants are municipal, rather 

than state, officials. Therefore, Monell is inapposite. 

 Plaintiff also argues that McKay and Graham are liable in their supervisory 

capacities. (Resp. at 7.) However, a state official named in an official capacity is not 

made a “person” pursuant to § 1983 because he/she is also named in a supervisory 
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capacity. See Will, 491 U.S. at 71. Thus, it remains that all § 1983 claims against McKay 

and Graham are properly dismissed with prejudice. 

 B. Section 1983 First Amendment Retaliation Claims 

While Defendants are not subject to a § 1983 lawsuit in an official capacity, the 

FAC names Santiago and Kash in a personal capacity (FAC ¶¶ 10, 11), which makes 

them suable persons subject to money damages under § 1983. Hafer v. Melo, 502 U.S. 

21, 31 (1991). Plaintiff alleges under § 1983 that Defendants withheld the decision to 

unsubstantiate allegations of sexual abuse against him in retaliation for a lawsuit he filed 

for mandamus relief on July 21, 2016. (FAC ¶ 79.) Plaintiff’s FAC, however, does not 

allege any facts showing that Santiago or Kash were involved in a decision to substantiate 

allegations against Plaintiff after July 21, 2016, when he filed the lawsuit. As such, 

Plaintiff fails to allege facts to state a claim of First Amendment retaliation by Santiago 

or Kash. Because it is possible that Plaintiff could allege such facts, his First Amendment 

retaliation claim may be cured by amendment. See Lopez, 203 F.3d at 1127–30. 

 C. Section 1983 Due Process Claims against Santiago and Kash 

 1. Absolute and Qualified Immunity 

Defendants argue that while Santiago and Kash may be individually liable in their 

personal capacities, they assert both absolute and qualified immunity as a defense. 

(Mot. at 11–12.) Santiago and Kash are not entitled to absolute and qualified immunity. 

A case worker such as Santiago or Kash may enjoy absolute immunity when performing 

either quasi-judicial functions, such as executing a court order in a child welfare 

proceeding, or “quasi-prosecutorial functions connected with the initiation and pursuit of 

child dependency proceedings.” Caldwell v. LeFavor, 928 F.2d 331, 333 (9th Cir. 1991); 

Meyers v. Contra Costa Cty. Dep’t. of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir. 1987). 

Here, there are no factual allegations indicating that Santiago or Kash’s actions could be 

characterized as quasi-judicial or quasi-prosecutorial. 

 The closer call is whether qualified immunity applies. Qualified immunity applies 

either when (1) the law governing the official’s conduct is not clearly established, or (2) 
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if the law is clearly established, a reasonable official could have believed that the conduct 

was lawful. Rogers v. County of San Joaquin, 487 F.3d 1288, 1297 (9th Cir. 2007). At 

the time that the conduct occurred, it was clearly established that Plaintiff had a 

constitutionally protected liberty interest in the custody and care of his children. Santosky 

v. Kramer, 455 U.S. 745, 753 (1982). However, it was also clearly established that a 

social worker may remove a child from a parent without a pre-deprivation hearing if 

he/she has “information at the time of the seizure that establishes ‘reasonable cause to 

believe that the child is in imminent danger of serious bodily injury and that the scope of 

the intrusion is reasonably necessary to avert that specific injury.’” Mabe v. San 

Bernardino Cty. Dep’t of Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001) (quoting 

Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000)). Courts have defined imminent 

danger of harm to be danger that harm may occur in the time required to obtain a warrant 

for removal of the child or children. Mabe, 237 F.3d at 1108. Thus, the question is 

whether Santiago or Kash could have reasonably believed that removal of the children, 

given the circumstances, did not violate Plaintiff’s constitutionally protected liberty 

interest in the care of his children. 

 The Court first clarifies that while Defendants did not remove Plaintiff’s children 

outright, they still could have violated his constitutional rights by implementing a safety 

plan that allowed no contact between Plaintiff and his children. On the night of April 14, 

2015, Kash travelled to Plaintiff’s home and presented the safety plan to which Plaintiff 

reluctantly agreed after being told that the alternative was state custody of his children. 

(FAC ¶¶ 51–52.) While Defendants did not physically remove Plaintiff’s children from 

his care or take legal custody of the children, the constitutionally protected liberty interest 

in the care and custody of a parent’s children is not so limited. Where, as here, without a 

court hearing, a social worker gives a parent a choice between two options both resulting 

in loss of contact with his/her children, the social worker may have interfered with the 

parent’s constitutionally protected liberty interest in the care and custody of their children 

without due process of law. See Woodrum v. Woodward Cty., Okl., 866 F.2d 1121, 1124–
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25 (stating that “a parent has a constitutionally protected liberty interest in the 

companionship and society of his or her child”). 

 Given this intrusion, the next question is whether it was justified by “information 

at the time of the seizure that establishes ‘reasonable cause to believe that the child is in 

imminent danger of serious bodily injury.’” Mabe, 237 F.3d at 1106. Here, the 

information available to Kash and Santiago suggesting that the children may have been in 

imminent danger of serious bodily injury consisted of accusations of sexual abuse by 

Mother and statements by the children that Plaintiff had touched their “privates.” 

(FAC ¶¶ 45–47.) While in many instances this may justify immediately severing contact 

between a parent and child, Plaintiff’s allegations of the surrounding circumstances here 

show that there may not have been “reasonable cause to believe” that the children were in 

imminent danger of serious bodily injury. Id. 

To begin with, Plaintiff’s allegations indicate that the children were with Mother, 

not Plaintiff, at the time that the safety plan was executed. (FAC ¶ 45.) Thus, it is at least 

plausible that Plaintiff would not have had access to the children within the relatively 

short amount of time required to obtain a warrant. Furthermore, the son indicated that his 

“privates” had been touched “on one occasion . . . while the family was on vacation.” 

(FAC ¶ 46.) Plaintiff alleges that the son’s statement was consistent with Plaintiff helping 

him use the bathroom. (FAC ¶ 46.) Even if that was not apparent, however, the son’s 

statement that his “privates” had been touched by his father on one occasion separated by 

a significant amount of time, does not reasonably suggest imminent danger of serious 

bodily injury that would prevent Santiago or Kash from taking the time required to obtain 

a warrant. See Wallis v. Spencer, 202 F.3d 1126, 1140 (9th Cir. 2000) (stating that 

information suggesting that abuse occurs only on certain dates militates against 

concluding that a child is in imminent danger). 

 Finally, Plaintiff alleges that physical examinations of the children before the 

safety plan was executed did not suggest any abuse had occurred. (FAC ¶ 44.) This 

should have indicated that the children were not in danger of serious bodily injury. See 
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Rogers v. Cty. of San Joaquin, 487 F.3d 1288, 1295 (9th Cir. 2007) (holding no 

reasonable cause to believe children are in imminent danger when physical state of 

children suggests neglect rather than abuse). While allegations of sexual abuse must be 

taken seriously, the law requires that decisions to deprive parents of contact with their 

children only be made when necessary to prevent danger of immediate harm. Mabe, 237 

F.3d at 1106. The Court finds that in the situation alleged by the Plaintiff, based on the 

information available at the time, it is at least plausible that a reasonable person would 

not have believed that prohibiting contact between Plaintiff and his children was 

necessary to prevent danger of imminent serious bodily injury. It is therefore at least 

plausible that Santiago and Kash would not be entitled to qualified immunity for the 

initial deprivation of Plaintiff’s contact with his children. Thus, the Court would decline 

to dismiss Plaintiff’s claims against Santiago and Kash on this basis. 

 2. Statute of Limitations 

Given that Plaintiff’s only remaining § 1983 claims are those against Defendants 

Santiago and Kash in their individual capacities, the Court turns to Defendant’s argument 

that those claims are barred by the applicable statute of limitations. (Mot. at 5–6.) 

Because § 1983 does not include a statute of limitations, courts apply the most 

appropriate state statute of limitations in construing the timeliness of a § 1983 claim. 

Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004) (citation omitted). 

For § 1983 claims in Arizona, courts use the statute of limitations period established for 

personal injury claims, which is two years from when the claim accrues. Id.; A.R.S. § 12-

542. Federal law determines when a federal civil rights claim accrues. Morales v. City of 

Los Angeles, 214 F.3d 1151, 1154 (9th Cir. 2000). Under federal law, a claim accrues 

“when the plaintiff knows or has reason to know of the actual injury” that is the basis of 

the cause of action. Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1051 

(9th Cir. 2008). 

 In a § 1983 action for a procedural due process violation, the injury giving rise to 

the claim is complete when (1) “a liberty or property interest . . . has been interfered with 
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by the State;” and (2) “the procedures attendant upon that deprivation were 

constitutionally” insufficient. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 

460 (1989). 

 Here, Defendants contend that Plaintiff’s injury occurred—and thus his claim 

accrued—on April 14, 2015, when the safety plan was executed, depriving him from 

contact with his children. Defendants argue in the alternative that, at the latest, Plaintiff’s 

claims accrued on June 18, 2015, when he received notification from Santiago stating 

that she planned to propose substantiating DCS’s report of sexual abuse. (Mot. at 6.) If 

Plaintiff’s claims accrued on either date, the two-year statute of limitations would have 

run by the time the Complaint was filed on July 31, 2017. 

 Because Plaintiff’s § 1983 claim is one of procedural due process, Defendants are 

correct that his constitutional interest in the care and custody of his children was first 

interfered with on April 14, 2015, when Plaintiff was initially deprived of contact with 

his children. This injury forms the basis for the first part of Plaintiff’s § 1983 procedural 

due process claim. But the second part—that the procedures attendant upon that 

deprivation were constitutionally deficient—must also have occurred in order for 

Plaintiff’s claim to have accrued. See Zinermon v. Burch, 494 U.S. 113, 126 (1990) 

(stating that “[t]he constitutional violation actionable under § 1983 is not complete when 

the deprivation occurs; it is not complete unless and until the State fails to provide due 

process”). 

 At the outset, the Court notes that Plaintiff does not contend that the procedures 

required before a parent is deprived of custody under Arizona law or DCS policy are 

constitutionally deficient on their face. Plaintiff alleges that Santiago and Kash acted contrary 

to the procedural safeguards in place by initially denying him contact with his children 

without sufficient evidence and, among other things, failing to unsubstantiate the claims of 

sexual abuse despite the availability of exonerating evidence.1

 (FAC ¶¶ 112–133.) 

 1

 Because Plaintiff does not allege that Santiago or Kash acted according to a DCS or Arizona policy or custom, the claims against them in their official capacity must be dismissed, as already stated. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (holding that a § 1983 official-capacity suit requires that “the entity’s policy or custom must have played 
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 The Court now turns to whether and at what point these procedures were 

constitutionally deficient such that Plaintiff knew or should have known of the injury 

giving rise to his § 1983 claim. The procedural safeguards that must accompany a 

deprivation of a constitutionally protected interest are a matter of federal law. Vitek v. 

Jones, 445 U.S. 480, 491 (1980). The Ninth Circuit has held that due process requires 

that parents receive notice and a hearing before they are deprived of contact with their 

children unless the depriving party has “information at the time of the seizure that 

establishes reasonable cause to believe that the child is in imminent danger of serious 

bodily injury and that the scope of the intrusion is reasonably necessary to avert that 

specific injury.” Mabe, 237 F.3d at 1106 (internal quotations omitted). As noted above, 

the Court finds that Plaintiff’s allegations are sufficient to plausibly demonstrate that he 

did not receive due process of law before being deprived of contact with his children in 

the absence of reasonable cause to believe that the children were in imminent danger of 

serious bodily injury, considering Plaintiff’s allegations that he did not receive notice or a 

hearing prior to deprivation. 

 Therefore, Plaintiff knew or should have known of the injury giving rise to his 

claims on the night of April 14, 2015, when the safety plan went into effect denying him 

contact with his children, because it was then that the procedures depriving him of his 

rights were constitutionally deficient. Kash presented the safety plan to Plaintiff on the 

night of April 14, 2015. He knew that he was being prohibited from having contact with 

his children based on accusations of sexual abuse by Mother and statements made by the 

children. (FAC ¶¶ 112–133.) He therefore had all the information necessary to realize 

that there was no reasonable cause to believe that he posed imminent danger of serious 

bodily harm to his children. Plaintiff also knew that he had not received a hearing prior to 

 a part in the violation of federal law”). However, Santiago and Kash are still subject to a § 1983 lawsuit in a personal capacity for allegedly depriving Plaintiff of his constitutionally protected rights. Id. 
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being deprived of contact with his children. In sum, Plaintiff knew or had reason to know 

of the injury giving rise to his claim, on April 14, 2015.2

 

 Plaintiff argues that his § 1983 due process claim did not accrue until the 

DCS/PSRT proceedings reached a final conclusion on September 6, 2016. (Resp. at 7–8.) 

Plaintiff relies on Hoesterey v. City of Cathedral City, where the Ninth Circuit held that 

§ 1983 due process claims brought by a plaintiff whose employment was terminated did 

not accrue until the termination was “unequivocal, and communicated in such a manner 

that no reasonable person could think there might be a retreat or a change in position.” 

945 F.2d 317, 320 (9th Cir. 1991). However, unlike Hoesterey, the date of accrual in this 

instance does not depend on the conclusion of a post-deprivation proceeding. Plaintiff’s 

injury—the deprivation of his liberty interest to the care and custody of his children 

without due process—was complete when he was deprived of contact with his children 

without a hearing and without exigent circumstances. 

 Plaintiff also argues that even if his claims did accrue on April 14 or June 18, 

2015, ongoing interference with his constitutional rights prevents a statute of limitations 

bar on his claims based on the continuing violation theory. (Resp. at 9.) “The continuing 

violation theory, which applies to § 1983 claims, allows a plaintiff to seek relief for 

events outside the limitations period.” Dowling v. Arpaio, No. CV-09-1401-PHX-JAT, 

2011 WL 843942, at *6 (D. Ariz. Mar. 8, 2011) (citing Knox v. Davis, 260 F.3d 1009, 

1013 (9th Cir. 2001)). “In order to show a continuing violation, a plaintiff must state facts 

sufficient to support a determination that the alleged . . . acts are related closely enough to 

constitute a continuing violation.” Id. But the continuing violation theory does not extend 

 

2 Although not raised by Defendants, Plaintiff may also be precluded from raising his claims before this Court when he may have been able to bring them in the state administrative or judicial proceedings. Under Arizona law, “[w]hen a state agency acts in a judicial capacity to resolve disputed issues of fact and law properly before it, and when the parties have an adequate opportunity to litigate those issues, federal courts must give the state agency's fact-finding and legal determinations the same preclusive effect to which it would be entitled in that state's courts.” Olson v. Morris, 188 F.3d 1083, 1086 

(9th Cir. 1999). The preclusive effect extends “to alleged constitutional errors that might have been corrected on proper application to the court which has jurisdiction of the appeal” of an administrative decision. Id.
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the statute of limitations for a continuing impact where there are no continuing acts. 

Knox, 160 F.3d at 1013; see also Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 

2002) (stating that the continuing violation theory generally applies when there is “‘no 

single incident’ that can fairly or realistically be identified as the cause of significant 

harm”). 

 Here, Plaintiff’s § 1983 claims are based on the initial deprivation of contact with 

his children stemming from the April 14, 2015 safety plan. Plaintiff’s continuing loss of 

contact with his children beyond April 21, 2015 was the result of an order by the family 

court overseeing his divorce, which Plaintiff alleges was “in line with, if not wholly 

based on, DCS’s safety plan.” (FAC ¶ 57.) Accepting Plaintiff’s allegation that the family 

court based its order on DCS’s safety plan, the continuing loss of his constitutional right 

to the care and custody of his children was at most a continuing impact resulting from the 

initial deprivation of his children. Since a continuing impact does not toll the statute of 

limitations, it remains that Plaintiff’s § 1983 procedural due process claim against 

Santiago and Kash accrued on April 14, 2015, or at the latest, June 18, 2015, and is 

therefore time-barred.3 Because they cannot be cured by amendment, the Court dismisses 

the claims with prejudice. See Lopez, 203 F.3d at 1127–30. 

 The Court also finds that Count Four—Plaintiff’s § 1983 substantive due process 

claim—to the extent it is otherwise valid, is time-barred. In a § 1983 action for a 

substantive due process violation, the injury giving rise to the claim is complete when 

there is an abuse of power by an official acting under color of law that shocks the 

conscience. Cty. of Sacramento v. Lewis, 523 U.S. 833, 834 (1998). Any plausible § 1983 

substantive due process claim would have accrued upon deprivation of Plaintiff’s 

constitutional interest on April 14, 2015 when DCS first informed him that he could no 

longer see his children. This claim is more than two years old and is thus time-barred. 

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IV. CONCLUSION 

The Court finds that all official-capacity claims and claims against DCS must be 

dismissed because the State is not a person subject to § 1983; that Plaintiff fails to state a 

plausible § 1983 First Amendment Retaliation claim against any remaining Defendant; 

and that while Santiago and Kash are not entitled to immunity, Plaintiff’s remaining 

§ 1983 claims against them are time-barred. Because the Court finds for the reasons 

given above that all federal law claims will be dismissed against all Defendants, the 

Court does not address any further issues raised in Defendants’ Rule 12(b)(6) motion. 

 IT IS THEREFORE ORDERED granting Defendants’ Motion to Dismiss 

(Doc. 12). 

 IT IS FURTHER ORDERED granting Plaintiff leave to amend Count 5 against 

Defendants Kash and Santiago, if the defects in this claim can be cured by amendment. 

Plaintiff shall file any amended Complaint by December 14, 2018. 

 Dated this 20th day of November, 2018. 

Honorable John J. Tuchi

United States District Judge