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Chen v. D'Amico

United States District Court, W.D. Washington, Seattle

May 24, 2019

SUSAN CHEN, et al., Plaintiffs,
v.
NATALIE D'AMICO, et al., Defendants.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT

          JAMES L. ROBART, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before 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, [1] 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 Defendants.

         II. BACKGROUND

         A. J.L.'s Medical History

         Ms. 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.[2]) 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 records).)

         One of 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.)

         On 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.)

         On 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 room. (Id.)

         Later 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.; RED00853-55.)

         Ms. 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 days”).)

         On 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 imaging.” (Id.)

         Later 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. Quinn:

[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 ago.” (Id.)

         Ms. 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.)

         Late at 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.)

         While 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. (Id.)

         B. J.L.'s Placement in Foster Care

         CPS 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 July 2014).)

         J.L.'s 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).)

         C. Detective D'Amico's Investigation

         Detective 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[3] and therefore would purposely harm [J.L.] as a result of this to gain attention.” (Id. at RED00010.)

         On the 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 RED00013.)

         On 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.)

         On 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.” (Id.)

         On 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.)

         On 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”).)

         After 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.)

         D. Criminal Charges Against Ms. Chen

         On 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.)

         Ms. 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”).)

         The 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.

         First, 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 RED00374-75.)

         Second, 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.)

         Third, 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.

(Id.)

         E. Procedural History

         Plaintiffs 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.)

         On 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.)

         On 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).)

         The court now addresses the three pending motions for summary judgment.

         III. ANALYSIS

         A. Preliminary Matters

         1. Motion to Strike

         City 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. ...


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