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WO 

 NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Obeidalla Birair, et al., 

Plaintiffs, 

v. 

Edmond Kolycheck, et al., 

Defendants. 

No. CV-15-01807-PHX-DJH 

ORDER 

 This matter is before the Court on a number of Motions filed by the parties.1 

Defendant Officer Jason Flam (“Officer Flam”) filed a Motion for Summary Judgment 

and corresponding Statement of Facts (Docs. 71 and 72). Plaintiffs filed a Response and 

Officer Flam filed a Reply (Docs. 93 and 98). Defendants Candida Carrion, Edmond 

Kolycheck, Sarah Kramer, Sybil Padmore, and Amanda Torres (the “State Defendants”) 

filed a Motion for Summary Judgment and corresponding Statement of Facts (Docs. 80 

and 81)2

. Plaintiffs filed a Response and the State Defendants filed a Reply (Docs. 91 

and 99). Lastly, Plaintiffs filed a Motion for Partial Summary Judgment (Doc. 75)3

. The 

 1

 All parties requested oral argument on their respective Motions. The Court denies the requests because the issues have been fully briefed and oral argument will not aid the Court’s decision. See Fed.R.Civ.P. 78(b) (court may decide motions without oral 

hearings); LRCiv 7.2(f) (same). 

2

 The Court notes a number of spelling and grammatical errors, in addition to incorrect 

citations to law and the record in the State Defendants briefing, which has unnecessarily added to the complexity of this case. 

3

 The Court notes violations of this District’s Local Rules in the number of pages that were submitted by Plaintiffs on the various Motions and Responses. Plaintiffs’ Motion for Summary Judgment is 27 pages long. (Doc. 75). Plaintiffs’ Response to Officer 
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State Defendants and Officer Flam filed Responses to that Motion and the Plaintiffs filed 

a Reply (Docs. 88, 90, and 97). 

I. Background4

The material facts are not in dispute. Plaintiffs Obeidalla and Intisar Birair are 

parents to five minor children, referred to herein as Mo.B., A.B., Hy.B., Mu.B, and Ha.B. 

(Doc. 76 at 1). On September 11, 2014, the date of the incident in question, Mo.B., a 

son, was nine years old; A.B., a son, was six years old; Hy.B., a daughter, was four years 

old; Mu.B., a son, was three years old; and Ha.B., a daughter, was two years old. (Id.) 

The eldest child, Mo.B., was diagnosed with autism at some point in 2010. (Id.) 

 This case stems from the removal of Obeidalla and Intisar Birair’s five children by 

Arizona Department of Child Safety (“DCS”) officials on September 11, 2014. On that 

day, DCS employees Kolycheck and Kramer went to Plaintiffs’ home. (SOF ¶ 1).5

 DCS 

had received reports related to the Birairs not adequately supervising their children as 

early as 2011. One report received alleged that one of the Birair children had been found 

unsupervised and undressed in the middle of an intersection, and that another child had 

fallen into the family’s pool, nearly drowned, and was taken by ambulance to the hospital 

on September 10, 2014. (SOF ¶ 3). 

 Prior to the removal, DCS employees had several encounters with the Birair 

family, specifically with regard to Mo.B., the eldest Birair child. DCS’ Comprehensive 

Child Safety and Risk Assessment report identifies numerous incidents involving reports 

to their office about the Birair family and investigations DCS conducted as a result of 

 Flam’s Motion for Summary Judgment is 21 pages long, and their Response to the State Defendants’ Motion for Summary Judgment is 25 pages long. (Docs. 91 and 93). 

According to LRCiv 7.2, “Unless otherwise permitted by the Court, a motion including its supporting memorandum, and the response including its supporting memorandum, may not exceed seventeen (17) pages, exclusive of attachments and any required statement of facts.” LRCiv 7.2(e)(1). Plaintiffs did not obtain permission from the Court to file additional pages. Therefore, only the first 17 pages of Documents 75, 91, and 93 will be considered by the Court. 

4

 All references to the Complaint are to the First Amended Complaint. (Doc. 27). 

5

 Officer Flam’s Statement of Facts (Doc. 72). 
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those reports. (Doc. 76 at Ex. 8). The reports concern, almost exclusively, incidents 

related to Mo.B. 

 The first documented report dated May 3, 2011, states that “[d]ue to his disability, 

[Mo.B.] does not recognize dangerous situations, and he exhibits risk taking behavior.” 

(Doc. 76-8 at 3). This statement was made in response to a report from a member of the 

public that Mo.B. was jumping on a bed near an open second-story window that did not 

have a screen on it. The report states that Mo.B. did not sustain any injuries and no 

services were provided to the family as a result of the incident. (Id.) 

 An August 8, 2014, report states that “[Mo.B.] was found running naked down the 

middle of the street on Thomas . . . Once law enforcement had arrived the parents had 

already found [Mo.B] and took him home.” (Id.) Law enforcement confirmed to DCS 

employees after the August 8, 2014 incident that they had received a similar call with 

respect to Mo.B. on May 19, 2013. On that date, Mo.B. was found in the middle of the 

intersection of McDowell Road and 63rd Street. (Id.) An entry by DCS employee Sarah 

Opuroko (“Opuroku”) states related to the August 8, 2014 incident that Mo.B. “appeared 

fine and did not have any injuries.” (Id.) Also observed on this day was that the “pool 

Mo.B. was playing in was not fenced in.” (Id.) A report from this day concludes that 

“[e]ach of the children presented with no marks or bruises and were appropriately 

dressed.” (Id.) Moreover, the report states “the home was messy, but there were no 

immediate safety concerns.” (Id. at 9). There was no additional follow up by DCS 

employees related to this visit. (Id.) 

 On August 29, 2014, DCS employees conducted a 2014 home visit after receiving 

reports of Mo.B. running in and out of an intersection naked. (Doc. 76-8 at 7). After 

arriving at the home, employees noted that Mo.B. was no longer in the street but had 

been brought home. The report as to the visit of the home states that “[t]he home 

appeared chaotic with all the kids running around for the duration of the visit. Mother 

and father appeared to have a difficult time controlling the children.” (Id.) As to the 

state of Mo.B., the report states that he “was observed with no marks or bruise [sic], but 
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was naked for the duration of the visit.” (Id. at 6). The report states that Mrs. Birair 

opined that their neighborhood contains “a lot of older individuals and they are not used 

to having children around playing. She stated she feels segregated and judged by the 

people that live in her neighborhood.” (Id. at 9). There was no additional follow up by 

DCS employees related to this visit. (Id.) 

A. Removal of Children 

 On September 10, 2014, the Mesa Police Department was dispatched to the Birair 

home after 911-dispatch received a call regarding a child who had fallen into the 

swimming pool. Mu.B. had fallen into the pool and was submerged under the water. Mr. 

Birair jumped into the pool and pulled Mu.B. out of the water, pushing on Mu.B.’s chest 

in order to clear the airway of water. As a precaution, Mu.B. was taken to the hospital for 

observation. Mrs. Birair travelled to the hospital along with Mu.B. Mr. Birair remained 

at home with the other four children. Mrs. Birair remained in the hospital overnight with 

Mu.B. on the evening of September 10, 2014, and he was released the next morning. 

 On the evening of September 10, 2014, DCS employee Opuroku, while working 

the overnight shift, visited the home and reported that she observed the four children in 

the home. (Mu.B. remained in the hospital overnight with Mrs. Birair). (Doc. 76-8 at 

14). Her report states that “[a]ll four children were sleeping and the father lifted blankets 

off so [she] could observe their arm, legs, and face. All four children appeared healthy, 

well-nourished, were dressed appropriately, and were clean.” A report filed by Opuroku, 

after her visit to the Birair home states in a report titled “Assessment of Present Danger” 

that all of the “children appear healthy, and present with no visible injuries. The home 

was clean and appropriate, the parent [sic] plan on putting a fence around the pool. At 

this time, there are two doors with keys and parent [sic] are the only ones with key to the 

backyard.” (Doc. 76-8 at 14). Opuroku took no action to remove any of the children 

from the home on September 10, 2014. 

 Kolycheck’s report related to this incident states that he had “severe concerns 

about the ability of the parents to manage and supervise the children. Parents do not seem 
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to function in an expected manner.” (Doc. 76-8 at 3). His report further states that he 

had been to the home on multiple occasions and that the “children seem to be out of 

control,” and that one of the children was observed “in the family Mercedes eating 

chocolate.” (Id.) 

 On September 11, 2014, at approximately 2:30 p.m., DCS employees Kolycheck 

and Kramer, a newly hired DCS employee shadowing Kolycheck, arrived at the home to 

interview the Birairs related to the swimming pool incident. At the time they arrived, 

Mrs. Birair was still at the hospital with Mu.B. Kolycheck’s report states that when Mrs. 

Birair arrived home, he expressed concerns about the “lack of supervision leading up to 

the point of [Mu.B.] nearly drowning, and also expressed concerns about what had 

occurred prior with [Mo.B.] running around the neighborhood and busy intersection 

naked.” (Doc. 76-8 at 10). In their depositions, both Kolycheck and Kramer state that 

they had not made the decision to remove the children prior to arriving at and observing 

the situation at the home that day. (Docs. 76-4; 76-5). Kolycheck called his supervisor, 

Amanda Torres, speaking to her about the reasons he believed the children should be 

taken into DCS custody. (Id.) Torres agreed that the children needed to be taken into 

DCS custody. (Id.) Kolycheck’s report states that he told the parents that all five 

children would be removed from the home as a result of those concerns. His report states 

that after hearing this news the “parents became hostile and were talking to each other in 

Arabic.” (Id. at 13). 

 The DCS employees provided Mr. and Mrs. Birair with a temporary custody 

notice and stated that they would be removing the children from the home. (Flam’s SOF 

¶ 6). It is undisputed that DCS did not have a warrant or other order from a court to enter 

the residence and take the children. Rather, DCS made the determination to take the 

children without a court warrant based on what they observed at the home that day. It is 

clear that the Birairs did not want DCS to remove the children and were confused as to 

the basis for DCS’ authority to remove their children. (Id. at ¶ 7). At some point, the 

DCS employees felt that the Birairs had become confrontational, at which point Kramer 
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called the Mesa Police Department and reported that the Birairs were being 

confrontational and they would not allow DCS to remove the children. (Id. at ¶ 8). Mesa 

Police Officer Jason Flam was dispatched to the home. (Id.) When Officer Flam arrived, 

the Birairs requested to see a court order. (Id. at ¶10). Kramer showed them the 

temporary custody notice that had been drafted by Kolycheck. 

 Flam instructed the Birair parents to remain on the driveway as Kramer and 

Kolycheck went inside the home to remove the children. Mr. Birair stated that he was 

going to enter the home and started walking toward the front door. (Doc. 76 at 10). As a 

result of Mr. Birair not following his previous instructions to remain outside on the 

driveway, Flam removed his Taser, pointed it at Mr. Birair, and ordered him to lie on the 

ground. (Id.) Shortly thereafter, a second Mesa Police Department Officer arrived at the 

home, handcuffed Mr. Birair, and placed him in the back of a squad car.6

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Kolycheck and Kramer entered the home and began the process of removing the children. 

The children were then placed in vehicles and taken away from the residence. 

 On September 17, 2014, Kolycheck authored and verified the Dependency Petition 

that was filed with juvenile court by the Office of the Arizona Attorney General. This 

Petition sought a finding of dependency as to the five Birair children. The Petition 

alleged: 

[The parents] are neglecting the children by failing to provide the children 

with the basic necessities, food, clothing, shelter, medical care and 

appropriate parental supervision. The parents have failed to properly 

supervise the children. The parents have allowed the oldest child [Mo.B.], 

age nine, to run around in public areas naked. The parents have failed to 

properly supervise the child [Mu.B.] by allowing him near an unfenced 

swimming pool where he fell in and nearly drowned. The parents are 

neglecting the children’s special needs. The parents lock the children in 

their rooms in order to prevent them from running around the home. 

(Doc. 76-1). 

 Other than the incident of Mu.B. falling into the pool, there are no specific reports 

as to any child other than Mo.B. Moreover, it is undisputed that there is no record of 

 6

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Mo.B. being injured, or any record of any of the other four children being injured by 

Mo.B. Moreover, Kolycheck testified that there were no alternatives considered other 

than removing all of the children at that time, stating when asked whether alternatives 

were considered that “At the time, I do not recall, but I do not believe so either.” (Doc. 

76-5 at 14). 

B. Dependency hearing, continued detention, and return of the children 

 In Kolycheck’s September 21, 2014 report, ten days after the children were 

removed, in a section “Assessment of Risk Factors...and Need for Intervention,” the 

report states that it is “in the best interest of the children to remain in DCS care until 

mother and father are able to accept responsibility and complete services that will benefit 

them as parents.” (Doc. 76-8 at 15). Under the heading “Assessment of Impending 

Danger,” Kolycheck states that the parents “admitted to leaving children unsurprised 

[sic],” and concludes that “[f]urther DCS intervention is need [sic] until the parents can 

come up with a plan to gain control and have a disciplinary system in the home.” (Id.) 

At the bottom of the report under the heading “Safety Decision,” Kolycheck states, 

“Unsafe - At least one child is in impending danger.” (Id.) 

 At the Dependency hearing, the juvenile court found there was sufficient evidence 

to keep the children out of the home for an indefinite period of time. The Birairs claim 

they did everything asked of them in order to have their children returned to them. 

Candida Carrion (“Carrion”) and Sybil Padmore (“Padmore”) were involved in the Birair 

case post-removal. Both Carrion and Padmore made reports to the juvenile court, 

arguing that the children should not be returned to the Birairs. These reports continued 

over a number of months. 

 Over a year after all the children were removed on September 11, 2014, 

eventually, all five children were returned to their parents. A.B. and Ha.B. were returned 

to their parents on October 9, 2015. Mu.B. was returned to his parents on December 7, 

2015. Mo.B. and Hy.B. were returned to their parents in late December 2015. There was 

never a finding of “dependency” over the children in the juvenile court. 
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II. Summary Judgment Standard 

 The Court must grant summary judgment “if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 

(1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). The 

materiality requirement means “[o]nly disputes over facts that might affect the outcome 

of the suit under the governing law will properly preclude the entry of summary 

judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Substantive law 

determines which facts are material. Id. The dispute must also be genuine, meaning the 

“evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Id. at 242. The Court determines whether there is a genuine issue for trial but does not 

weigh the evidence or determine the truth of matters asserted. Jesinger, 24 F.3d at 1131. 

 The moving party bears the initial burden of identifying the portions of the record, 

including pleadings, depositions, answers to interrogatories, admissions, and affidavits 

that it believes demonstrates the absence of a genuine issue of material fact. Celotex 

Corp., 477 U.S. at 323. If the moving party meets its initial burden, the opposing party 

must establish the existence of a genuine dispute as to any material fact. See Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-586 (1986). There is no issue 

for trial unless there is sufficient evidence favoring the non-moving party. Anderson, 477 

U.S. at 249. “If the evidence is merely colorable or is not significantly probative, 

summary judgment may be granted.” Id. at 249-250. However, the evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. 

at 255. 

III. Officer Flam’s Motion for Summary Judgment 

 Plaintiffs assert two Section 1983 claims against Officer Flam in their Complaint, 

a Fourth and Fourteenth Amendment violation claim in connection with his alleged 

involvement in the removal of the children, and a Fourth Amendment claim for excessive 

force against Mr. Birair at the time of the removal. (Doc. 27). Officer Flam seeks 
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summary judgment as to each of these claims, arguing that he is entitled to qualified 

immunity because he did not use excessive force and his actions at the scene were 

objectively reasonable. 

 “The doctrine of qualified immunity protects government officials ‘from liability 

for civil damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.’” Reese v. Cty. of 

Sacramento, 888 F.3d 1030, 1037 (9th Cir. 2018) (quoting Harlow v. Fitzgerald, 457 

U.S. 800, 818, 102 S.Ct. 2727 (1982)). “The purpose of qualified immunity is to strike a 

balance between the competing ‘need to hold public officials accountable when they 

exercise power irresponsibly and the need to shield officials from harassment, distraction, 

and liability when they perform their duties reasonably.’” Mattos v. Agarano, 661 F.3d 

433, 440 (9th Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808 

(2009)). “In determining whether an officer is entitled to qualified immunity, we 

consider (1) whether there has been a violation of a constitutional right; and (2) whether 

that right was clearly established at the time of the officer’s alleged misconduct.” Lal v. 

California, 746 F.3d 1112, 1116 (9th Cir. 2014) (citing Pearson, 555 U.S. at 232, 129 

S.Ct. 808). 

 Whether an officer’s use of force is reasonable under the Fourth Amendment 

requires a balancing of “the nature and quality of the intrusion on the individual’s Fourth 

Amendment interests” as weighed against the countervailing governmental interests at 

stake. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871 (1989) quoting

United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642 (1983). “As in other 

Fourth Amendment contexts, however, the ‘reasonableness’ inquiry in an excessive force 

case is an objective one: the question is whether the officers’ actions are ‘objectively 

reasonable’ in light of the facts and circumstances confronting them, without regard to 

their underlying intent or motivation.” Graham, 490 U.S. at 397 (1989). However, it is 

well established that the right to make an investigatory detention carries with it the right 

to use some degree of physical coercion or threat. See Terry v. Ohio, 392 U.S. 1, 22–27 
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(1968). “The calculus of reasonableness must embody allowance for the fact that police 

officers are often forced to make split-second judgments—in circumstances that are 

tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a 

particular situation.” Graham, 490 U.S. at 396–97 (1989). 

 To assess whether an officer was reasonable in his actions, a court must first 

assess the severity of the intrusion on the individual’s Fourth Amendment rights “by 

evaluating the type and amount of force inflicted.” Miller v. Clark County, 340 F.3d 959, 

964 (9th Cir. 2003); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 

1056 (9th Cir. 2003). Next, the court must “evaluate the government’s interests by 

assessing (1) the severity of the crime; (2) whether the suspect posed an immediate threat 

to the officers’ or public’s safety; and (3) whether the suspect was resisting arrest or 

attempting to escape.” Miller, 340 F.3d at 964; Graham, 490 U.S. at 396, 109 S.Ct. 

1865. Lastly, the court must “balance the gravity of the intrusion on the individual 

against the government’s need for that intrusion.” Espinosa v. City & Cty. of San 

Francisco, 598 F.3d 528, 537 (9th Cir. 2010). 

A. Excessive Force 

 Plaintiffs argue that Officer Flam’s pointing of his Taser at Mr. Birair was a use of 

excessive force and an unlawful “show of authority” that resulted in an unlawful seizure 

of Mr. Birair. (Doc. 93). Officer Flam argues that he did not use excessive force in his 

interactions with Mr. Birair. Officer Flam’s testimony, which is supported by his body 

camera footage from the scene, is that he did not even touch Mr. Birair, much less use 

excessive force against Mr. Birair. (Doc. 103). Officer Flam testified that he was only at 

the scene to make sure that everyone, including the Birair parents, the children, and the 

DCS employees, stayed safe. The undisputed facts support this conclusion as to Officer 

Flam. 

 The undisputed facts establish that when Officer Flam arrived on the scene, he had 

been told by dispatch that the Birairs were confrontational with DCS employees who 

were attempting to take the children into custody. (Flam SOF ¶¶ 8-11). He had also been 
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told that the Biraris were preventing DCS employees from taking the children into 

custody and that one of the parents had stated that they would lock themselves in the 

home with the children to prevent DCS from taking the children. This limited 

information is all that Officer Flam had regarding the situation at the Birair home. When 

he arrived at the home and spoke with Kolycheck, this information was relayed to him a 

second time. (Id.) Based on his experience as a police officer, Flam knew that child 

removal situations can be dangerous, and Plaintiffs agree that these are situations that are 

emotionally charged and have the potential to become dangerous. (Flam SOF, Ex. 3 at 

191:8-19). 

 When he arrived at the scene, Officer Flam instructed the Birair parents to remain 

outside the home on the driveway stating, “right now, for my safety, their safety, and 

everyone’s safety, you’re going to stay right here until my back up shows up.” (Flam 

SOF ¶¶ 8-11). Mrs. Birair then stated “we are just going to lock ourselves with the kids 

inside.” (Id. at ¶¶ 15). The situation escalated when Mr. Birair failed to follow Officer 

Flam’s instructions to remain outside the home and started moving toward the front door 

in order to go inside the home. Officer Flam, fearing that Mr. Birair would barricade 

himself inside the home with the kids, and as a result of Mr. Birair not following his 

previous instructions to remain outside on the driveway, removed his Taser and pointed it 

at Mr. Birair, ordering him to lie on the ground. A second officer arrived shortly 

thereafter, handcuffed Mr. Birair, and placed him in the back of a squad car. 

 The facts here are not in dispute. While the parties did not cite any Ninth Circuit 

authority directly on point, Ninth Circuit decisions have held that the firing of a taser 

generally does not eliminate an officer’s qualified immunity even when the court found 

that there was not a risk of harm to the officer or the public and that a reasonable person 

would not have used a taser in a similar situation. See Mattos, 661 F.3d at 448 (“although 

Brooks has alleged an excessive force claim, the law was not sufficiently clear at the time 

of the incident to render the alleged violation clearly established. Accordingly, the 

defendant officers are entitled to the defense of qualified immunity against Brooks’s § 
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1983 excessive force claim.”). 

 Here, Officer Flam pulled his taser on Mr. Birair when he refused to follow Flam’s 

order to remain in place on the driveway. Unlike the cases cited by Plaintiffs, it is 

undisputed that Officer Flam did not fire the taser at Mr. Birair. Flam did not physically 

touch Mr. Birair. In view of the facts that Officer Flam knew when he arrived, and what 

he witnessed at the home, his actions were objectively reasonable. When he drew his 

Taser and ordered Mr. Birair to the ground, he was doing so in reaction to the fact that 

Birair was not complying with Flam’s instructions to remain outside. 

 The amount of force used here was relatively slight in that Officer Flam did not 

have any physical contact with Mr. Birair. Moreover, there was a strong interest in 

preventing Mr. Birair from entering the home based on the totality of the circumstances 

on the scene. Flam was reasonable in his belief that Birair was attempting to escape, as 

Birair stated that he was going to go into the home and he began walking toward the front 

door. See Graham, 490 U.S. at 396, 109 S.Ct. 1865. Moreover, Flam considered the 

need of DCS to safely remove the children. Even so, Mr. Birair was not physically 

restrained by Officer Flam, nor was he placed under arrest. 7 See Espinosa, 598 F.3d 528. 

In light of the facts available to Officer Flam, namely Mr. Birair’s non-compliance with 

Officer Flam’s instructions, Flam’s actions were objectively reasonable. The Court finds 

that there are no material facts in dispute that would preclude granting summary 

judgment. Officer Flam and is entitled to qualified immunity as to this claim. Therefore, 

as to the excessive force claim, summary judgment is granted in favor of Officer Flam 

and against Plaintiffs. 

 B. Removal of the Children 

Plaintiffs also argue that Officer Flam was an “integral participant” in the removal 

of the Birair children, and that as a result of his assisting CPS, he should be liable for the 

 7

 Officer Flam argues, somewhat indirectly, that he was aware of the possibility of a crime having occurred. See A.R.S. § 8-821(J) (“A person who knowingly interferes with 

the taking of a child into temporary custody under this section is guilty of a class 2 misdemeanor.”). Based on the holding here, the Court does not need to reach this 

argument as it does not matter whether he believed that Mr. Birair had committed a 

crime. His actions were objectively reasonable. 
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warrantless seizure of the children. (Doc. 27 at 41-46). Plaintiffs’ argument is that 

Officer Flam should not have relied on the representations made by the DCS employees, 

but rather he should have conducted his own “reasonable investigation” into the situation 

at the home and should have somehow prevented DCS from removing the children. 

(Doc. 93 at 13). Officer Flam’s testimony, which is supported by his body camera 

footage from the scene, is that he did not participate in the decision to remove the 

children, that he did not participate in the removal of the children, and that he never 

entered the home. 

 Established Ninth Circuit precedent holds that “[l]aw enforcement officers and 

agencies are entitled to rely on one another to a certain extent.” Sjurset v. Button, 810 

F.3d 609, 621 (9th Cir. 2015); citing Guerra v. Sutton, 783 F.2d 1371, 1375 (9th Cir. 

1986). In Sjurset, the Ninth Circuit held that officers who entered the home and removed 

children at the request of DHS without a warrant were entitled to qualified immunity and 

that they acted reasonably “in reliance on DHS’s protective-custody determination.” 

Sjurset, 810 F.3d at 619. See also Jones v. Williams, 297 F.3d 930, 936 (9th Cir. 2002) 

(declining to submit a jury instruction that would ask “to find all of the officers liable for 

an alleged constitutional violation merely for being present at the scene of an alleged 

unlawful act”). 

 Here, it is undisputed that Officer Flam was not involved in the DCS employees’ 

decision to remove the children from the home. He arrived at the scene after being 

dispatched to the home in order to make sure everyone remained safe. He continued to 

reiterate while at the scene that he would not assist the DCS employees in removing the 

children from the home and that he would not enter the home. Unlike in Sjurset, it is 

undisputed here that Flam did not enter the home. Moreover, Flam was not aware of the 

underlying reasons allegedly justifying the decision to remove the children, and, as 

Arizona law establishes, was not required to inquire about the basis. The Arizona statute 

related to the removal and temporary custody of children from their parents requires the 

cooperation of law enforcement officers when the situation requires their assistance. See 
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Ariz. Rev. Stat. § 8-456 (“Law enforcement officers shall cooperate with the department 

to remove a child from the custody of the child’s parents, guardian or custodian when 

necessary.”) (emphasis added). Moreover, although Plaintiffs argue that Officer Flam 

was required to conduct an independent investigation into whether there were grounds for 

a warrantless removal, the parties have not identified relevant authority showing that 

Arizona law (or any other governing authority) requires law enforcement officers to 

conduct their own investigations in a DCS removal situation. 

 Officer Flam did not participate in the decision to remove the children from the 

home and had no knowledge of the circumstances of the removal. He did not assist in the 

removal, nor did he enter the home. His role at the home was to make sure that everyone 

stayed safe. The Court finds that there are no material disputed facts that would preclude 

granting summary judgment as to this claim. Therefore, summary judgment is granted in 

favor of Officer Flam and against Plaintiffs. Officer Flam will be dismissed from this 

case. 

IV. Plaintiffs’ Motion for Partial Summary Judgment 

Plaintiffs move for summary judgment as to liability on Counts One, Two, and 

Three of their Amended Complaint. (Doc. 75). Each of these claims asserts a Section 

1983 violation in connection with the warrantless removal of their children. Count One 

alleges that the children’s warrantless removal was unlawful. Count Two alleges 

unlawful governmental interference with familial relations. Count Three alleges Fourth 

and Fourteenth Amendment violations for unlawful search and seizure. All three claims 

are asserted against Kolycheck, Kramer, Torres, and Officer Flam.8

 

 Defendants also move for summary judgment on these three Counts, arguing that 

there are no material facts in dispute and that they are entitled to judgment as a matter of 

law on absolute and qualified immunity grounds. The main issue is whether or not the 

State Defendants had sufficient cause to remove the children from the home without a 

 8

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warrant, as it is undisputed that there was no warrant or court order to remove any of the 

children. 

A. Legal Standards 

 “The doctrine of qualified immunity protects government officials ‘from liability 

for civil damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.’” Reese v. Cty. of 

Sacramento, 888 F.3d 1030, 1037 (9th Cir. 2018) (quoting Harlow v. Fitzgerald, 457 

U.S. 800, 818, 102 S.Ct. 2727 (1982)). 

 “Section 1983 creates a cause of action against any person who, acting under color 

of state law, violates the constitutional rights of another person.” Mabe v. San 

Bernardino County, 237 F.3d 1101, 1106 (9th Cir. 2001); see 42 U.S.C. § 1983. “Parents 

have a well-elaborated constitutional right to live with their children that is an essential 

liberty interest protected by the Fourteenth Amendment’s guarantee that parents and 

children will not be separated by the state without due process of law except in an 

emergency.” Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 789 (9th Cir. 2016); citing

Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 1999) (internal citations omitted); see 

also Burke v. Cty. of Alameda, 586 F.3d 725 (9th Cir. 2009); Rogers v. Cty. of San 

Joaquin, 487 F.3d 1288 (9th Cir. 2007); Mabe, 237 F.3d at 1107; Ram v. Rubin, 118 F.3d 

1306 (9th Cir. 1997); Demaree v. Pederson, 887 F.3d 870 (9th Cir. 2018). 

 Situations in which the government can remove a child from the home without a 

court order or warrant are very narrow. Id. at 878. Under Arizona law, the Department 

of Child Safety may take a child into temporary custody if probable cause exists to 

believe that the child is in imminent danger of abuse or neglect, or if the child has 

suffered physical injuries. A.R.S. § 8-821(B). “Under the Fourth Amendment, 

government officials are ordinarily required to obtain prior judicial authorization before 

removing a child from the custody of her parent. However, officials may seize a child 

without a warrant if the information they possess at the time of the seizure is such as 

provides reasonable cause to believe that the child is in imminent danger of serious bodily 
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injury and that the scope of the intrusion is reasonably necessary to avert that specific 

injury.” Kirkpatrick, 843 F.3d at 790 (emphasis added); see also Wallis, 202 F.3d at 

1136 (Parents have a Fourteenth Amendment right against government interference with 

their children “without due process of law except in an emergency”). The “imminent” 

nature of the threat must be that “the child is likely to experience serious bodily harm in 

the time that would be required to obtain a warrant.” Demaree, 887 F.3d at 878 (citing 

Kirkpatrick, 843 F.3d at 790). (emphasis added). “Serious allegations of abuse that have 

been investigated and corroborated usually give rise to a ‘reasonable inference of 

imminent danger sufficient to justify taking children into temporary custody’ if they 

might again be beaten or molested during the time it would take to get a warrant. Rogers 

v. Cty. of San Joaquin, 487 F.3d 1288, 1294–95 (9th Cir. 2007) citing Ram, 118 F.3d at 

1311. However, “an official’s prior willingness to leave the children in their home 

militates against a finding of exigency, as does information that the abuse occurs only on 

certain dates or at certain times of day.” Rogers, 487 F.3d at 1295. 

 B. Analysis 

 Both Plaintiffs and the State Defendants argue for summary judgment in their 

favor as to Counts One, Two, and Three of the FAC. Plaintiffs, claim Kolycheck, 

Kramer, and Torres violated their clearly established constitutional rights when the 

children were removed from the home without a court order and in absence of an 

emergency. Thus, Plaintiffs argue that immunity does not protect these state officers and 

that summary judgment should be entered in their favor as to these Counts. 

 There is no dispute that the Birair children were removed by the State Employees 

without a court order. Therefore, the Birair parents’ rights were violated unless the State 

Employees can show that this was a narrow situation in which an emergency justified 

their removal. See Kirkpatrick. More specifically, the State Defendants must show that 

all of the children were in “imminent danger of serious bodily injury” at the time they 

removed the children from the home. Id. at 790. 

 The absolute and qualified immunity inquiry requires this Court to determine 
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whether the parents’ rights to be free from removal of their children without a court order 

were well-established prior to the date of the removal on September 11, 2014. The Court 

finds that these rights, that a child could not be removed from the home absent court 

order without imminent danger of serious bodily injury to the child at the time of the 

removal, were well-established in the law at the time of removal. See Wallis, 202 F.3d at 

1136 (Families have a “well-elaborated constitution right to live together without 

governmental interference”); see also Rogers, 487 F.3d at 1297 (“[W]e had repeatedly 

held that a family’s rights were violated if the children were removed absent an imminent 

risk of serious bodily harm.”).

 Defendants argue that risk of bodily harm to the children was imminent, and thus 

that removal without a warrant was necessary. However, these arguments are belied by 

the Defendants own deposition testimony. Defendants further argue that “the situation 

was so fluid that the DCS caseworkers did not have time to consider any type of prior 

court order.” (Doc. 80 at 4). Further, they argue that “Under Arizona law, DCS’s first 

priority is to protect children. A.R.S. § 8-451. This is especially true since Arizona law 

provides a procedure by which parents can challenge CPS’s actions concerning protective 

custody and can be heard by the juvenile court in an expedited fashion. A.R.S. §§ 8-823.” 

(Id.) These arguments fail under current legal precedent and the actual facts of this case. 

 The leading Ninth Circuit case on point is Rogers v. County of San Joaquin. In 

Rogers, the Ninth Circuit granted summary judgment on a Section 1983 claim in favor of 

the parents and against a social worker who removed children without a warrant or court 

order under circumstances far worse than those present here. Rogers, 487 F.3d at 1295–

96 (holding that “the district court correctly concluded that Tommy’s bottle rot, the 

children’s malnourishment . . . the presence of disorderliness and . . . feces . . . may 

increase the risk of eventual illness, but there is no indication in the record of any 

particular risk that the Rogers children would become seriously ill during the few hours 

that it would take [the social worker] to obtain a warrant.”) 

 The State Defendants argue that “the children in Rogers were merely endangered 
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by apparent malnutrition, a cluttered home environment, and bottle rot,” and that is 

distinguishable from the current facts because the Birair parents repeatedly placed their 

children in imminent harm of “drowning or being hit by cars.” (Doc. 90 at 5). As 

discussed below, the undisputed facts of this case do not support Defendants’ arguments. 

 1. Kolycheck and Kramer 

 The most compelling statements to support Plaintiffs’ argument that there was no 

imminent risk of substantial bodily harm justifying the removal of the children comes 

from the State Defendants’ own testimony. Kolycheck, Kramer, and Torres were each 

deposed. Kolycheck was asked whether any of the children were in imminent danger of 

physical injury when the decision was made to remove the children on September 11, 

2014. 

 Question: Did you have the impression that the children were in immediate danger 

 of physical injury? 

 Kolycheck: Physical injury I don’t – I wouldn’t say specifically physical injury. 

 But there always is that underlying concern because Mo.B. – or not Mo.B. I’m 

 sorry – the other – Mu.B. did have the incident [falling in the pool] the night 

 before. 

 Question: Was there ever a time that you were concerned that Mr. or Mrs. Birair 

 was physically abusive to their children? 

 Kolycheck: No. 

 Question: Were you ever – did you ever have a concern that Mr. or Mrs. Birair 

 might be injuring their children somehow? 

 Kolycheck: Physically, no. 

 Question: “...in your previous visit in August, you didn’t have some 

 overwhelming concern about [the children’s] development or any of that kind of 

 information? 

 Kolycheck: Not at that time, no. 

(Doc. 76-5 at 17-20). Moreover, Kolycheck testified that at the time of removal that he 

had no concerns about any developmental delays with regard to A.B. or Mu.B. (Doc 76-
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5 at 14). Kramer similarly testified as to the lack of imminent danger to the children at 

the home on September 11, 2014. 

 

 Question: When you were in the driveway did you believe the children were in 

 danger of imminent physical harm in the house? 

 Kramer: At that very second, no... 

 Question: Before you arrived and the children were there, some of the children 

 were there with Mr. Birair, did you believe that they were in imminent physical 

 harm during that time, that there was something imminent that was going to 

 happen that was going to cause them injury or harm or abuse? 

 Kramer: The concern was that father wasn’t able to physically control Mo.B. 

 during that short time frame we were there, and, with the prior history, there was a 

 great concern about Mo.B.’s safety if father could not control him in that moment. 

 Question: Okay. There was no threat to them of like, of physical abuse or, or 

 danger from their parents, correct? 

 Kramer: No. 

(Doc. 94-4 at 17). 

 In responding to a question about the reasons for removal of the children, Kramer 

stated that “there was prior knowledge between Ed (Kolycheck) and Amanda Torres, the 

supervisor, about the case and the prior concerns and risk factors for the family. So based 

on that and then we saw – the things we saw in that home that day, including father’s 

inability to properly supervise and control Mo.B. that put him at risk...the recent near 

drowning, that involved supervision; and then the conversation observed about services 

and not getting them in place in appropriate time frame is what lead to the removal of the 

children.” (Doc. 94-4 at 19). While State Defendants attempt to characterize Kramer’s 

actions as those of someone who was just “shadowing” Kolycheck, it is undisputed that 

she was a DCS employee on the date in question, responding to the Birair home as part of 

a DCS investigation, and her testimony establishes that she was, at least partially, 

involved in the decision to remove the children. 

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general, the State Defendants did not establish a particularized concern as to the safety of 

each child. The DCS’ Policy and Procedures Manual states that a “child’s sibling[s] shall 

also be taken into temporary custody only if reasonable grounds independently exist to 

believe that temporary custody is clearly necessary to protect the child from suffering 

abuse or neglect.” (Doc. 78-2 at 20). Both Kramer and Kolycheck testified that their 

concerns were “primarily related to Mo.B.,” but that they did not consider anything other 

than removing all five children. (Doc. 76-4 at 8). When asked “when you removed the 

Birair children, did you consider just removing Mo.B?,” Kramer answered “No.” (Id.) 

Furthermore, Kramer stated that she believed there were “concerns about the other 

children in the home, but [she] only observed what [she] saw that day and that was 

specifically to Mo.B.” (Doc. 94-4 at 22). Lastly, the entry by Kolycheck in his report 

related to the safety of the children stated, “At least one child is in impending danger.” 

(Doc. 76-8 at 15). 

 DCS employees are to follow the Department’s Policy and Procedure Manual 

which lays out situations that would justify emergency intervention. (Doc. 78-2). These 

include situations where: No caregiver is present and the child cannot care for him or 

herself; a child requires immediate medical treatment of a life-threatening medical 

condition or a condition likely to result in impairment of bodily functions or 

disfigurement; a child is suffering from nutritional deprivation that has resulted in 

malnourishment or dehydration to the extent that the child is at risk of death; the home 

environment has conditions that endanger the child’s health or safety, such as human or 

animal feces, undisposed garbage, exposed wiring, access to dangerous objects, or 

harmful substances that present a substantial risk of harm to the child; the child was 

physically injured as a result of the manufacturing of illegal drugs at the home; a doctor 

or psychologist has determined that a child’s caregiver is unable or unwilling to provide 

minimally adequate care; the physical or mental condition of the parent, guardian or 

custodian endangers the child’s health or safety. (Doc. 76-21). Both Kolycheck and 

Kramer testified that none of the above situations were present at the time of removal, 
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other than that Kolycheck stated that two of the children being locked in the bedroom 

could have endangered the children’s health or safety. (Doc. 76-5 at 22). 

 DCS filed a Dependency Petition (the “Petition”) on September 17, 2014 with 

respect to the Birair children. The Petition alleged that both parents were “unable to 

parent the children due to neglect. The parents are neglecting the children by failing to 

provide the children with the basic necessities, food, clothing, shelter, medical care and 

appropriate parental supervision.” (Doc. 76-1). The Petition went on to say that the 

“parents are neglecting the children’s special needs,” and that the “parents lock the 

children in their rooms in order to prevent them from running around the home.” (Id.) 

The Petition’s Certification states “I, Edmond G. Kolycheck, III, being duly sworn, upon 

oath depose and say: I am an employee of the petitioner, the Department of Child Safety, 

and I have been authorized to make this verification on its behalf. I have read the 

foregoing Petition and believe upon information and belief that the contents thereof are 

true and correct.” (Doc. 76-1 at 19). Kolycheck testified that he wrote most of the 

verified Petition, and further that he read the Petition before it was signed and submitted 

to the court. (Doc. 76-5 at 24). 

 Contrary to his sworn statements in the Petition, Kolycheck testified that, although 

he wrote it in the Petition to the court, he did not believe that the Birairs failed to provide 

food, clothing, or shelter for their children. (Id. at 24). Moreover, with regard to the 

statement that the parents lock their children in their rooms to avoid them running around 

the home, Kolycheck was asked: 

Question: Did the parents ever tell you that they locked the children in their 

rooms in order to prevent them from running around the home? 

Kolycheck: Not that I recall. 

Question: So that statement is based on the fact that the door to the 

bedroom was locked on September 11, 2014? 

Kolycheck: Correct. 
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Question: Any other basis for that statement? 

Kolycheck: No. 

(Doc. 76-5 at 25-26). 

 The allegations of imminent injury here are much less egregious than other 

warrantless removal cases where Courts have held the risk of injury was not imminent 

and thus that state workers were not entitled to absolute or qualified immunity. See 

Rogers, 487 F.3d at 1295–96; see also Demaree v. Pederson, 887 F.3d 870 (9th Cir. 

2018). What is egregious here is the manner in which the decision was made to remove 

all five children from their parents. Without seeking a court order, and absent a situation 

that would lead to imminent bodily harm to one or any of the children, the State decided 

to remove all of them. The admissions by the state employees, particularly Defendant 

Kolycheck’s refuting his sworn statements contained in the Dependency Petition, are 

extremely troubling. It is apparent to this Court that the juvenile court relied heavily on 

Kolycheck’s sworn statement in deciding to keep the children away from their parents. 

What is more, these statements, that the children were being neglected and not provided 

food, clothing, shelter, or medical care, and that the “parents lock the children in their 

rooms,” are misleading at best and perjury at worst. 

 Defendants attempt to Justify Kolycheck’s false statements in the verified Petition 

by saying that “A dependency petition is merely a list of allegations that DCS must prove 

by a preponderance of the evidence to prevail on its request to have the Birair children 

declared dependent. See A.R.S. § 8-845. Thus, if DCS succeeds, as it did in this case, in 

proving enough of the allegations to move the juvenile court to grant the dependency 

petition, it does not matter that some of the allegations turn out not to be true.” (Doc. 90 

at 7) (emphasis added). This Court vehemently disagrees. 

 Defendants’ very argument undermines the procedural safeguards of its child 

removal and dependency process. Defendants are obligated to provide truthful 

statements to a juvenile court tribunal to support their decision to remove a child or 

children from their parents. Here, Kolycheck’s declarations, made under oath in a sworn 
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Petition filed in the juvenile court, were not just untrue, he knew they were false yet he 

made them in an apparent attempt to influence the juvenile court into finding probable 

cause to support his actions. And the court did. Defendants attempt to counter Plaintiffs’ 

arguments by stating that probable cause existed as a matter of law because the “juvenile 

judge presiding over the dependency matter specifically found that the CPS caseworkers 

had probable cause to take the children into protective custody.” (Doc. 80 at 4). 

However, this determination occurred days after the removal, and based upon the false 

information. Defendants’ argument here utterly fails. 

 Moreover, in their Response in opposition to the Motion, the State Defendants, 

citing Hunter v. Bryant, 502 U.S. 224, 228 (1991), argue that the Plaintiffs’ Motion must 

fail because they have not presented evidence that the DCS workers reacted and relied 

upon information that was not trustworthy. (Doc. 90 at 4). This does not respond to the 

arguments in Plaintiffs’ Motion. Indeed, Plaintiffs do not argue that the information that 

DCS received was untrue or incorrect in any way. Plaintiffs do argue that the State 

Employees violated their Constitutional rights by removing the children, without a 

warrant, and without an imminent risk of bodily harm to all five children. Thus, the issue 

before this Court is whether those reports, and the observations the DCS agents observed 

in reaching their decision to remove the children, rose to the level of imminent bodily 

harm to all five children. The Court finds that Defendants have not and cannot meet their 

burden on this record. 

 Defendants also argue that Kolycheck is entitled to absolute immunity based on 

his decision to initiate the dependency proceedings. As a general matter, child protective 

services caseworkers are entitled to absolute immunity for their decision to initiate 

dependency proceedings. Beltran v. Santa Clara Cnty., 514 F.3d 906, 908 (9th Cir. 

2008); Nation v. Colla, 841 P.2d 1370, 1377 (Ariz. App. 1991). Here, Kolycheck signed 

the dependency petition that initiated the proceeding (Doc. 81 at 2, ¶ 12). However, this 

does not provide Kolycheck with absolute immunity for his decision to remove the 
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children without a warrant and without an imminent risk of bodily harm to all five 

children. 

 Defendants cite the Supreme Court decision of Saucier v. Katz for the proposition 

that even if Kolycheck was mistaken in believing that he had probable cause that he is 

still entitled to immunity. Saucier v. Katz, 533 U.S. 194, 205 (2002) (reversed by 

Pearson v. Callahan, 555 U.S. 223 (2009)). However, the facts in this case, supported by 

his own deposition testimony, establish that Kolycheck had more than just a mistaken 

belief about his authority to remove the children. As the Ninth Circuit has held, officials 

are not entitled to immunity where they make false statements to justify their actions of 

removing the children. See Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 

1109 (9th Cir. 2010) (no immunity where workers made false statements in dependency 

proceedings); Beltran v. Santa Clara County, 514 F.3d 906, 908 (9th Cir. 2008) (no 

immunity where social workers “made false statements in a dependency petition”);

Hardwick, 844 F.3d 1112, 1117-18 (9th Cir. 2017) (recognizing “basic constitutional 

right to be free from knowing presentation of false or perjured evidence”).

 Even without Kolychek’s false statements, the State Defendants have not shown 

that exigent circumstances existed to justify a warrantless removal of the children. 

Kolycheck and Kramer both admitted, in sworn testimony, that there was no risk of 

imminent physical injury to the Birair children. The conditions clearly did not present an 

imminent risk of serious bodily harm to any child, much less all five of the children. 

Moreover, DCS employee Sarah Opuroko reported the previous evening, and after the 

near-drowning incident, that there were no concerns as to the children’s safety in the 

home, and therefore she did not act to have the children removed. (Doc. 76-8 at 9). The 

lack of exigent circumstances here would have been apparent to any reasonable DCS 

Employee. Additionally, all parties agree that no material facts are in dispute as to these 

Counts. The on-scene State Employees are not entitled to qualified immunity as it relates 

to Counts One, Two and Three. The State Defendants violated the Plaintiffs’ clearly 

established Fourth and Fourteenth Amendment rights by removing all five children from 
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the home without a court order and without an imminent risk of serious bodily harm. 

Therefore, the Court grants Plaintiff’s Motion for Partial Summary Judgment as to 

Kolycheck and Kramer. 

 2. Supervisor Torres 

 As to Supervisor Torres, there are material facts in dispute that preclude a finding 

of summary judgment for either side. The State Defendants agree that Torres was 

“involved in the removal of the Birair children.” (Doc. 90 at 2). Supervisors can be 

liable in situations where the supervisor knew of a constitutional violation and failed to 

act to prevent it. Starr v. Baca, 652 F.3d 1202, 1206–07 (9th Cir. 2011) (“[A] plaintiff 

may state a claim against a supervisor for deliberate indifference based upon the 

supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or her 

subordinates[,]” and a sufficient causal connection between his or her wrongful conduct 

and the violation). Here, material facts exist at this stage of the case as to the extent of 

Torres’ involvement. Therefore, the parties’ Summary Judgment Motions as to Counts 

One, Two, Three and Five as to Supervisor Torres are denied. 

V. State Defendants’ Motion for Summary Judgment 

 The final motion is the State Defendants’ Motion for Summary Judgement. Based 

on the holding above, the only remaining claims with respect to Kolycheck, Carrion, and 

Padmore are Counts Five, Six, and Seven. Counts Five Six and Seven relate to the 

alleged continued unlawful custody of the children, unlawful interference with medical 

care, and alleged injuries to the children during custody. For the reasons stated below, 

summary judgment as to these claims will be denied. 

 Deposition testimony among the State Defendants as to these claims is 

inconsistent. For instance, while Kolycheck testified that Mr. Birair was consistently 

unable to control Mo.B., Carrion testified that Mr. Birair was diligent and always able to 

control him. (Doc. 92-6 at 13). Carrion’s testimony as to the parents’ minimizing the 

special needs of the children is also inconsistent. At times she states that there were 

causes for concerns for all the children, while at other times stating that there were only 
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concerns about a few of the children having special needs and needing additional services 

outside of the home. (Id. at 9). 

 Additional facts in dispute as to these parties and claims include the justification 

for the continued removal of the children. It is unclear whether Carrion had concerns of 

the parents’ ability to supervise and care for all five children or that they were unable to 

supervise one or two of the children. Additionally, the record is inconsistent with what 

Carrion believed with respect to her concerns about each of the children. She testified 

that she did not remember the concerns she had with respect to A.B. and Ha.B. during the 

time that the children were removed from the home. (Doc. 92-6 at 19). 

 Fact issues also remain with respect to the Plaintiffs’ interference with the medical 

care claim. At some point while A.B. was in State custody, he was diagnosed with penile 

torsion by a urologist who recommended A.B. undergo a circumcision. (Doc. 92 at ¶ 

113). “Medical examinations are intrusions that trigger the Fourth Amendment.” Parkes 

v. Cty. of San Diego, 345 F. Supp. 2d 1071, 1093 (S.D. Cal. 2004) (citing Yin v. State of 

Cal., 95 F.3d 864, 870 (9th Cir. 1996)). Plaintiffs allege that they “were not notified of 

the examination and did not meet with the doctor.” (Doc. 91 at 24). Further, they allege 

that they “were not consulted with respect to the examination or the circumcision, and 

they did not consent, which was their constitutional right.” (Id.) Plaintiffs further allege 

that this procedure was authorized by Carrion. Defendants allege that the Birair parents 

had full knowledge of the medical procedure and that they consented to it. Material facts 

are in dispute as to this claim which precludes the Court from granting Defendants’ 

Motion for Summary Judgment. 

 Accordingly, 

IT IS HEREBY ORDERED that Officer Flam’s Motion for Summary Judgment 

(Doc. 71) is GRANTED in its entirety. The Clerk of Court is directed to dismiss Officer 

Flam from this action. 

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Partial Summary 

Judgment (Doc. 75) is GRANTED in part as to State Defendants Kolycheck and Kramer 
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and DENIED in part as to State Defendant Torres and Officer Flam. 

IT IS FURTHER ORDERED that State Defendants’ Motion for Summary 

Judgment (Doc. 80) is DENIED in its entirety. 

IT IS FINALLY ORDERED that within 10 days from the date of this Order, the 

parties shall file their Notice of Readiness for Pretrial Conference pursuant to this Court’s 

Rule 16 Scheduling Order (Doc. 40). 

 Dated this 5th day of September, 2018. 

Honorable Diane J. Humetewa 

United States District Judge