United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
L. ROBART, UNITED STATES DISTRICT JUDGE
the court are: (1) Defendants City of Redmond (“the
City”) and Natalie D'Amico's (collectively,
“City Defendants”) motion for summary judgment
against Plaintiff Susan (Shiying) Chen (1st MSJ (Dkt. #
106)); City Defendants' motion for summary judgment
against Plaintiffs Naixing (Nash) Lian, J.L., and L.L. (Ms.
Chen, Mr. Lian, J.L., and L.L. are collectively referred to
as “Plaintiffs”) (2d MSJ (Dkt. # 108)); and
Plaintiffs' motion for summary judgment against City
Defendants (3d MSJ (Dkt. # 141)). The parties filed responses
and replies to the motions. (See 1st Resp. (Dkt. #
155); 2d Resp. (Dkt. # 151); 3d Resp. (Dkt. # 142); 1st Reply
(Dkt. # 166); 2d Reply (Dkt. # 165); 3d Reply (Dkt. # 143);
see also Joinder (Dkt. # 144).) The court has
considered the motions, the parties' submissions
concerning the motions, the relevant portions of the record,
and the applicable law. Being fully advised,  the court GRANTS
City Defendants' summary judgment motion against Ms.
Chen; GRANTS in part, DENIES in part, and DENIES as moot in
part City Defendants' summary judgment motion against Mr.
Lian, J.L., and L.L.; and GRANTS in part and DENIES in part
Plaintiffs' motion for summary judgment against City
J.L.'s Medical History
Chen and Mr. Lian are the parents of J.L. and L.L. (FAC (Dkt.
# 96) ¶¶ 3-7; Lian Decl. (Dkt. # 122) ¶ 2;
Chen Decl. (Dkt. # 131) ¶ 1.) J.L. was born in 2008, and
L.L. was born in 2010. (FAC ¶¶ 6-7.) In 2012, J.L.
was diagnosed with gastrointestinal (“GI”)
problems and Autism Spectrum Disorder. (Chen Decl.
¶¶ 3-7; see also Lo Decl. (Dkt. # 132)
¶ 2, Exs. B-L at RED00721.) GI issues are common in children
with autism. (See Green Decl. (Dkt. # 129) ¶
6.) From August 2012 to October 2013, Plaintiffs took J.L. to
several medical providers, including a naturopath, to address
his GI issues. (See 1st Resp. at 5 (citing medical
J.L.'s medical providers is Dr. John Green, an autism
specialist in Portland, Oregon. (See Green Decl.
¶¶ 2-11.) J.L. first saw Dr. Green in October 2012.
(Id.) At this appointment, Dr. Green recommended a
low carbohydrate diet for J.L. (See Id. ¶ 19
(“[M]y Case Summary also discusses various low
carbohydrate diets that I recommended.”); RED00575
(“No sugar, no potato, no rice, no yams or sweet
potatoes.”).) Because Dr. Green was in Portland and
Plaintiffs are in Washington (see Lian Decl. ¶
1), Plaintiffs allege that Dr. Green referred J.L. to Dr.
Hatha Gbedawo (see Chen Decl. ¶ 10; Gbedawo
Decl. (Dkt. # 158) ¶ 6; but see RED00565 (Dr.
Green's case summary, explaining that he
“subsequently learned that [J.L.'s] care had been
transferred in April 2013 to Hatha Gbedawo ND.”)). Dr.
Gbedawo is a “board certified naturopathic physician,
” who saw J.L. nine times between April 2013 and
October 2013. (Gbedawo Decl. ¶¶ 2, 7.)
October 7, 2013, Ms. Chen took J.L. to see Dr. Kate Halamay
at Pediatric Associates. (RED00351-53.) Dr. Halamay had seen
J.L. previously. (E.g., RED00339.)
According to the notes from the October 7 appointment, J.L.
had been experiencing abdominal pain for around six weeks.
(RED00351.) Dr. Halamay recommended that Ms. Chen take J.L.
to the GI department at Seattle Children's Hospital
(“SCH”), but Ms. Chen declined, stating that
“she has seen them for the past 14 months and they
‘have not done anything for [J.L.]'”
(RED00352.) Dr. Halamay's notes show that J.L. only
visited the SCH GI department once in the prior year.
(Id.) Ms. Chen then asked Dr. Halamay to order a
number of labs, but Dr. Halamay refused because she was
“unfamiliar with several of them and would not know how
to interpret them.” (RED00353.)
October 19, 2013, Ms. Chen and Mr. Lian took J.L. to Dr.
Julie Ellner at Mercer Island Pediatrics, in part hoping that
Dr. Ellner would order the labs they were seeking.
(See RED00107; Chen Decl. ¶ 27-28.) Dr.
Ellner's notes state that Ms. Chen was worried that J.L.
has a “severe problem with kidney or liver, ”
that he was losing weight, and was eating poorly. (RED00107.)
Ms. Chen told Dr. Ellner that J.L. had laboratory tests at a
hospital in New York, as well as an ultrasound, which showed
that there was something wrong with J.L.'s liver.
(Id.) However, Ms. Chen did not bring the lab
results to Dr. Ellner; nor was she able to remember the
doctor or the hospital where the tests were performed.
(Id.) Dr. Ellner referred J.L. to the emergency
that day, instead of going to the emergency room, Ms. Chen
took J.L. to Pediatric Associates. (See RED00356-58;
D'Amico Decl. (Dkt. # 107) ¶ 3h, Ex. H (“CPS
Docs”) at RED00050-51.) Similar to Dr. Ellner, Dr.
Roberta Winch at Pediatric Associates told Ms. Chen to take
J.L. to emergency care. (RED00358 (“IT IS VERY
IMPORTANT [J.L.] BE SEEN FOR FURTHER EVAL IN THE ED
[emergency department] AT SCH. I RECCOMEND [sic] THEY GO NOW.
PARENTS AGREED TO BE SEEN AT SCH ED AND SAID THEY WILL GO
THERE NOW.”).) Ms. Chen says that she did not
understand Dr. Winch's instruction. (See Chen
Decl. ¶ 27.) Instead, Ms. Chen took J.L. to SCH's
urgent care to have lab work done. (Id.;
Chen returned to SCH urgent care on October 20, 2013, to pick
up J.L.'s lab work. (Chen Decl. ¶ 28.) Once there,
doctors told Ms. Chen that J.L.'s lab work was abnormal,
showing elevated levels of creatinine and blood urea nitrogen
(“BUN”). (Id.) Ms. Chen then took J.L.
to SCH emergency care. (Id.; CPS Docs at
RED00050-51.) That day, Dr. Russell Migita in SCH's
emergency department examined J.L. and performed additional
tests, which showed J.L. improved since his October 19, 2013,
lab results, but were still “not normal.”
(RED00370-75.) Dr. Migita also expressed that J.L.
“would benefit from having a coordinated workup that
includes endocrinology, gastroenterology, and
nephrology.” (RED00374.) However, Dr. Migita discharged
J.L. from the hospital on October 20, 2013, because he did
not have “hypertensive emergency at this time and d[id]
not meet the eminent risk criteria for medical hold.”
(See RED00374-75.) Dr. Migita released J.L. on the
understanding that Ms. Chen and Mr. Lian would follow-up with
J.L.'s primary care provider. (RED00374-75 (noting
“Plan” to see Dr. Halamay “[w]ithin 1 to 3
October 23, 2013, Ms. Chen brought J.L. to see Dr. Gbedawo.
(Chen Decl. ¶ 31; Gbedawo Decl. ¶ 8.) Dr. Gbedawo
understood that J.L. had been to emergency and urgent care a
few days earlier and that he had been discharged “as
non-emergent.” (Gbedawo Decl. ¶ 8.) At the
appointment, Dr. Gbedawo “did not recommend that [Ms.
Chen] take J.L. to the emergency department.”
(Id.) Rather, he recommended that Ms. Chen take J.L.
“to a nephrologist and a nutritionist for additional
consultations, and ordered additional labs and
that day, Ms. Chen took J.L. to Dr. Halamay, as she had been
instructed by Dr. Migita. (Chen Decl. ¶ 32.) According
to Dr. Halamay's notes, Dr. Hal Quinn at Mercer Island
Pediatrics, who had seen J.L. previously, called Dr. Halamay
before the appointment. (RED00397; RED00105-06.) Dr.
[E]xpressed great concern about this pt as well as family,
feels that he his [sic] very sick, concern about failure to
thrive, has lost several pounds since April, concerned that
family has been going from dr to dr but that pt is not
actually receiving appropriate medical attention.
(Id.) At the October 23 appointment, Dr. Halamay
noted that J.L. appeared “[v]ery tired” and
continued to “have distended abdomen, ” though
Ms. Chen said his condition was improving. (RED00397.) Dr.
Halamay also noted that Ms. Chen was confused about
doctors' instructions from October 19 and 20 to take J.L.
to certain specialists. (Id.) Dr. Halamay
recommended that Ms. Chen admit J.L. to the hospital
“at once” so that he could be seen by renal,
endocrine, and GI specialists. (Id.) Ms. Chen
“refused to take [J.L.] for admission, even after [Dr.
Halamay] stated that [she] felt admission was medically
necessary given his abdominal distension, weight loss, and
worsening lab values compared to those drawn a few weeks
Chen recalls that she “felt as though Dr. Halamay and
SCH were dismissive and had not provided proper care for
[J.L.]” (Chen Decl. ¶ 32.) Further, Ms. Chen told
Dr. Halamay at the October 23 appointment that she
“would not go back to see [Dr. Halamay] anymore”
and that she “would make a complaint against
her.” (Id.) Dr. Halamay told Ms. Chen that, if
Ms. Chen did not admit J.L. to the hospital, then she was
going to call the Child Protective Services
(“CPS”) division of the Washington State
Department of Social and Health Services
(“DSHS”). (Id.; RED00397.) Ms. Chen
restated that she would not take J.L. to SCH and left Dr.
Halamay's office. (Id.) Dr. Halamay then called
CPS. (RED00397; CPS Docs at RED00051.)
night on October 23, 2013, a CPS social worker arrived at
Plaintiffs' home and took J.L. to SCH's emergency
department. (See 3d MSJ at 7; but see Chen
Decl. ¶ 33 (stating that “[a]t [CPS]'s
recommendation, we took J.L. to SCH.”).) J.L. was seen
on October 24, 2013, by Dr. Virginia Sanders and Dr. Shannon
Staples. (See RED00791.) According to Dr.
Sanders's summary, J.L.'s showed a “failure to
thrive . . . [and] gross malnutrition and muscle wasting.
Concern for medical cause of wasting vs. neglect.”
(RED00792.) J.L. was then admitted to SCH's
“general medicine service” to treat his
malnutrition and receive a Suspected Child Abuse Network
(“SCAN”) consultation. (Id.)
at SCH on October 24, 2013, providers gave J.L. Pedialyte
even though Ms. Chen told them that “whenever [J.L.]
eats sugar his belly gets big.” (RED00927, RED00930.)
Ms. Chen also told the SCH providers that J.L. “cannot
eat many foods, including carbohydrates or sugar, ” but
Ms. Chen was unable to “identify any food that he does
eat.” (RED00927-28.) In addition, Ms. Chen interfered
with providers' attempts to give J.L. Pedialyte.
(D'Amico Decl. ¶ 3c, Ex. C (“D'Amico
Report”) at RED00015.) The doctors noted that Ms. Chen
was “asked to leave” the hospital room
“because of her erratic and obstructionist
behavior.” (RED00930.) However, after J.L. consumed
several ounces of Pedialyte, J.L. “reaccumulated
significant abdominal distention, ” which required the
doctors to use a catheter to relieve the distention.
J.L.'s Placement in Foster Care
removed J.L. and L.L. from Ms. Chen and Mr. Lian's
custody on October 24, 2013. (See 3d MSJ at 7.) A
72-hour dependency hearing was held from October 28 to
October 30, 2013, to determine if J.L. should be removed from
Plaintiffs' home. (See FAC ¶ 59.) Dr. Green
and Dr. Gbedawo provided testimony in support of Ms. Chen at
the dependency hearing. (See id.) After the hearing,
L.L. was returned to Ms. Chen and Mr. Lian, but J.L. remained
in CPS's custody. (Id. ¶ 61; 3d MSJ at 7
n.8.) J.L. was kept at SCH until November 7, 2013, at which
time he was placed into foster care. (See RED01139.)
It appears that J.L. remained in CPS's custody until
September 12, 2014, when the Attorney General's Office
(“AGO”) terminated his dependency proceedings.
(See Lo Decl. ¶ 9, Ex. S; see also FAC
¶ 72; but see (Riensche Decl. (Dkt. # 110)
¶ 3, Ex. 3 (“Exception Justification”) at 14
(explaining that J.L. was returned to Mr. Lian's care in
weight fluctuated during his first weeks in CPS's
custody. (See RED01102-39.) For example, J.L.
weighed 26.9 pounds when he was admitted to SCH on October
24, 2013, which is the third percentile. (RED00791.) By
November 3, 2013, J.L.'s weight increased to 32.19
pounds. (RED01126.) However, by the time J.L. was placed in
foster care on November 7, 2013, his weight had decreased to
30.2 pounds. (RED01138.) On November 20, 2013, after J.L. had
been in foster care for nearly two weeks, his weight had
decreased even further to 29 pounds. (RED00109 (but noting
that that J.L. is “doing much better now” and
that his weight is in the thirteenth percentile).)
Detective D'Amico's Investigation
D'Amico was assigned to investigate Plaintiffs on October
24, 2013. (See D'Amico Report at RED00008-22.)
Two month prior, Detective D'Amico had received 40 hours
of specialized training in “Child Abuse Interviewing
and Assessment.” (Shickich Decl. (Dkt. # 167) ¶
10, Ex. A.) Detective D'Amico started the investigation
by following up on work done by RPD Officer Paul Chung and
Seattle Police Department (“SPD”) Officer Michael
Severance. (D'Amico Report at RED00009-10.) As part of
Officer Chung's initial investigation, he learned that
CPS “believed [Ms. Chen] was suffering from Munchausen
Syndrome and therefore would purposely harm [J.L.]
as a result of this to gain attention.” (Id.
morning of October 24, 2013, Detective D'Amico visited
J.L. at SCH. (Id. at RED00011.) Afterward, Detective
D'Amico went with Detective Lieutenant Matthew Peringer
to Plaintiffs' residence and spoke with Ms. Chen and Mr.
Lian. (Id. at RED00011-12.) Detective D'Amico
and Detective Lieutenant Peringer interviewed Ms. Chen and
Mr. Lian without the use of an interpreter even though
English was their second language. (Id. at RED00012;
Chen Decl. ¶ 39; Lian Decl ¶ 14.) Detective
D'Amico focused the interview on J.L.'s diet.
(Id.) According to Detective D'Amico, Ms. Chen
said that J.L. was on a “special diet that was gluten
free and lacked carbohydrates.” (D'Amico Report at
RED00012.) Ms. Chen and Mr. Lian contest this
characterization, saying that they explained that they
provided J.L. with fresh fruit and gluten-free bread. (Chen
Decl. ¶¶ 39-40.) All agree, though, that it was
explained at this meeting that Mr. Lian did most of the
cooking. (See D'Amico Report at RED00012; Lian
Decl. ¶ 16.) After the meeting, Detective D'Amico
went back to SCH where she spoke with “several”
physicians who explained that J.L.'s kidneys were in a
pre-renal state caused by dehydration and that his liver was
not functioning properly. (See D'Amico Report at
October 25, 2013, Ms. Chen and Mr. Lian went to a meeting at
the CPS office. (Chen Decl. ¶ 42.) Detective D'Amico
attended the meeting. (Id.; D'Amico Report at
RED00013.) Ms. Chen and Mr. Lian claim that, at the meeting,
they told CPS about Dr. Green's dietary advice to
restrict carbohydrates. (Chen Decl. ¶ 42; Lian Decl.
¶ 17.) After the meeting, CPS reported that it was
“concerned for the imm[edi]ate safety of [J.L.] in
parents' care, ” and was “recommend[ing] out
of home placement for [J.L.] upon his discharge from the
hospital.” (CPS Docs at RED00069.)
November 5, 2013, Detective D'Amico participated by
telephone in a SCAN meeting at SCH. (D'Amico Report at
RED00014.) According to Detective D'Amico's notes,
SCH medical staff advised that “there were no findings
of a lack of tolerance with any food they had given J.L.,
” and that, even had J.L. been on a special diet,
“he would not have been left malnourished and
dehydrated.” (Id.) SCH medical staff
classified J.L.'s condition when he was first admitted as
indicative of “serious bodily harm.”
November 7, 2013, CPS provided Detective D'Amico with a
list of J.L.'s 13 medical providers. (Id.)
Detective D'Amico requested records from all the
providers and “received all but three providers'
medical records” by December 4, 2013. (Id.)
Detective D'Amico summarized each provider's records
in her police report and identified the three providers that
had not responded to her records request: Pediatric
Associates, Magnolia Behavioral Therapy, and Bothell
Pediatric and Hand Therapy. (Id. at RED00014-18.) In
addition, Detective D'Amico summarized and attached an
email from CPS memorializing a phone call with a fourteenth
provider, a speech pathologist who worked with J.L.
(Id. at RED00018-19.)
December 9, 2013, still lacking some of the medical records,
Detective D'Amico determined:
At this time, there is probable cause to believe [Ms. Chen]
violated RCW 9A.42.030 Criminal Mistreatment 2nd degree for
acting in a manner that created an imminent risk of great
bodily harm to [J.L.] causing him to be admitted to Seattle
Children's Hospital for approximately three weeks. There
is also probable cause to believe [Ms. Chen] withheld basic
necessities of life to include nutrition as [J.L.] was
diagnosed as grossly malnourished and dehydrated upon arrival
at Seattle Children's Hospital.
(Id. at RED00019.) That same day, Detective
D'Amico signed a probable cause certification to file
criminal charges against Ms. Chen and transmitted her
investigative file-which included J.L.'s available
medical records-to the King County Prosecuting Attorney's
Office (“the KCPAO”). (D'Amico Decl. ¶
6, Ex. E (“PCC”).)
transmitting her investigative file and probable cause
certification to the KCPAO, Detective D'Amico followed up
with the medical providers who had not provided records.
(D'Amico Report at RED00019.) In mid-December 2013,
Bothell Pediatric and Hand Therapy and Magnolia Behavioral
Therapy provided Detective D'Amico their records.
(Id. at RED00019-20.) Pediatric Associates provided
its records on January 23, 2014. (Id. at RED00021.)
In addition, on January 27, 2014, Detective D'Amico
requested updated records from SCH and Mercer Island
Pediatrics, which the providers gave on February 10 and 12,
2014, respectively. (Id.) Detective D'Amico
summarized these additional records and transmitted them to
the KCPAO, along with an updated report. (Id. at
RED00020-22; D'Amico Decl. ¶ 9.)
Criminal Charges Against Ms. Chen
January 31, 2014, the KCPAO charged Ms. Chen with one count
of criminal mistreatment in the second degree for her actions
between October 19 and 24, 2013. (Carlstrom Decl. (Dkt. #
111) ¶ 3, Ex. A.) No. criminal charges were filed
against Mr. Lian. (FAC ¶ 111.) Carla Carlstrom, a Senior
Deputy Prosecuting Attorney with the KCPAO, “made the
decision to file” the charge against Ms. Chen.
(Carlstrom Decl. ¶¶ 2-7.) Before filing the charge,
Ms. Carlstrom spoke with Detective D'Amico and was aware
that J.L.'s medical records file was incomplete.
(Id. ¶ 6.)
Chen was arraigned on February 18, 2014. (FAC ¶ 117.) On
July 29, 2014, Ms. Chen's public defender, Twyla Carter,
wrote to the KCPAO requesting dismissal of the charge against
Ms. Chen. (Riensche Decl. ¶ 3, Ex. 2 (“Carter
Letter”); see also Carter Decl. (Dkt. # 127)
¶ 15.) On September 19, 2014, the KCPAO dropped the
criminal case against Ms. Chen. (Riensche Decl. ¶ 3, Ex.
5 (“Order of Dismissal”).)
KCPAO said that it dropped the charges against Ms. Chen in
part because “[r]ecords unavailable at the time of
filing complete the timeline of events between October 19,
2013, and October 24, 2013.” (Riensche Decl. ¶ 3,
Ex. 3 (“Exception Justification”) at 14.) The
KCPAO explained that it based its initial charging decision
on three facts: (1) that Ms. Chen failed to take J.L. to
emergency care immediately when recommended by physicians on
October 19, 2013; (2) that Ms. Chen took Pedialyte away from
J.L. against SCH's medical providers' orders; and (3)
Ms. Chen's pattern of taking J.L. to see multiple
providers who were not coordinating J.L.'s care.
(Id. at 13.) The records the KCPAO reviewed after
filing the charge undermined its charging decision.
the records showed that Ms. Chen took J.L. to emergency care
each time a doctor requested it, even if she delayed the
visit. (Id. at 14 (explaining that two doctors
requested that Ms. Chen take J.L. to emergency care on
October 19, 2013, and that she took J.L. to emergency care on
October 20, 2013).) The KCPAO based its misunderstanding on a
report by Dr. James Metz from the SCAN team who
“mistakenly wrote in a report” that Ms. Chen
“refused admittance to the ER” on October 20,
2013, against Dr. Migita's advice. (Id.) In
reality, Dr. Migita discharged J.L. on October 20, 2013,
because J.L. did not have “hypertensive emergency at
this time and d[id] not meet the eminent risk criteria for
medical hold.” (Id.; see also
the records revealed that J.L. was on a special diet at the
advice of medical providers and that Dr. Green advised Ms.
Chen “never to give [J.L.] Pedialyte because it would
cause distention.” (Exception Justification at 14-15.)
The KCPAO also noted that other doctors, including J.L.'s
then-current pediatrician, did not believe that Ms. Chen
starved J.L. and that J.L.'s weight continued to
fluctuate while he was in foster care. (Id. at 15.)
The KCPAO further stated that, since J.L. returned to Mr.
Lian in July 2014, he “has been doing substantially
better according to CPS reports.” (Id.)
the KCPAO maintained that even the updated records showed Ms.
Chen had an “evasive” relationship with
J.L.'s medical providers, which prevented them from
coordinating J.L.'s care. (Id.) Ultimately,
however, the KCPAO determined that it would be unable to meet
its burden of proof against Ms. Chen at trial:
Central to this case is [Ms. Chen's] decision to see
multiple providers all at once who were not coordinating
[J.L.'s] care. These issues were confounded by a language
barrier and [Ms. Chen's] unwillingness to be completely
transparent with doctors. On one instance when visiting Dr.
Jeffrey Wright in August 2012, for example, [Ms. Chen] was
downright evasive and likely dishonest with him. However,
there is no clear evidence that [Ms. Chen] withheld food or
medical care or that [Ms. Chen] knew [J.L.] was even facing
great bodily harm because, after all, Dr. Migita released
[J.L.] from the ER on 10/20/13.
originally brought this action pro se in December
2016. (See Dkt.) In June 2017, the court appointed
Plaintiffs pro bono counsel. (See 6/13/17
Am. Order (Dkt. # 15).) After extensive motions practice on
the pleadings, in March 2018, the court granted in part and
denied in part City Defendants' motion to dismiss
Plaintiffs' claims and granted Plaintiffs leave to amend.
(See generally 3/27/18 Order (Dkt. # 90); see
also 10/16/17 Order (Dkt. # 53); 11/30/17 Order (Dkt. #
73).) Plaintiffs filed the operative complaint on July 30,
2018. (See FAC.)
November 29, 2018, City Defendants brought two motions for
summary judgment on all seven of Plaintiffs' claims that
relate to them. (See 1st MSJ; 2d MSJ.) Six of these
claims are for various constitutional violations pursuant to
42 U.S.C. § 1983: (1) unlawful arrest; (2)
fabrication/withholding of evidence; (3) selective
enforcement; (4) malicious prosecution; (5) substantive due
process; and (6) procedural due process. (See FAC
¶¶ 132-208.) Plaintiffs' seventh claim alleges
malicious prosecution under Washington State law.
(Id. ¶¶ 221-40.) City Defendants'
first motion for summary judgment is against Ms. Chen and
concerns all seven of Plaintiffs' claims asserted against
City Defendants. (See 1st MSJ at 2.) City
Defendants' second motion for summary judgment is against
Mr. Lian, J.L., and L.L., and concerns only the substantive
and procedural due process claims because Mr. Lian, J.L., and
L.L. do not have standing to assert the other five claims.
(See 2d MSJ at 2; 2d Resp. at 28 (Mr. Lian, J.L.,
and L.L. agreeing that they only assert the due process
claims against City Defendants).) In addition, City
Defendants seek summary judgment against Mr. Lian, J.L., and
L.L. on their malicious prosecution counterclaim.
(See 2d MSJ at 2; see also Countercl. (Dkt.
# 97) at 23-28.)
December 6, 2018, Plaintiffs brought a motion for relief
under Federal Rule of Civil Procedure 56(d), in part
requesting additional time to conduct discovery and to
respond to City Defendants' motions for summary judgment.
(See 56(d) Mot. (Dkt.
# 116).) Before the court ruled on Plaintiffs' Rule 56(d)
motion, Plaintiffs filed their own motion for summary
judgment on City Defendants' malicious prosecution
counterclaim. (See 3d MSJ.) Shortly thereafter, the
court granted in part Plaintiffs' Rule 56(d) motion.
(See 2/13/19 Order (Dkt. # 146).)
court now addresses the three pending motions for summary
Motion to Strike
Defendants move to strike certain material that
Plaintiffs' rely upon in opposition to City
Defendants' motions for summary judgment. (See
2d Reply at 14-15.) The disputed material consists of: (1)
statements in Mr. Lian's declaration that City Defendants
characterize as hearsay (see Id. at 14; Lian Decl.
¶ 12); (2) statements in Ms. Carter's declaration
that City Defendants claim lack foundation, are an unfounded
expert opinion, are mere speculation, or are hearsay
(see 2d Reply at 14; Carter Decl. ¶¶ 5,
12-13, 16-21); (3) statements in Dr. Green's declaration
that City Defendants allege contradict his testimony at the
72-hour dependency hearing (see 2d Reply at 14-15;
Green Decl. ...