County and City Claim Immunity in Abuse Case

     SAN FRANCISCO (CN) – A California county and two of its child protective services workers insist that they are not liable for the decades of sexual abuse experienced by six sisters.
     Zion Dutro tortured and molested biological daughters Amber Dutro, Glenda Stripes, Sarah Dutro and Martha McKnelly, and foster daughters Frances Smith and Christina Moore, over a 20-year period with the help of his wife, Glenda Lea Dutro. The pair were convicted and sentenced in 2011 to 300 years and 15 years in prison, respectively.
     Now adults, their children filed a complaint in May against the city of Antioch; Contra Costa County; several law enforcement and child-protective services officers; Calvary Open Bible Church; and two ministers.
     In addition to recounting the harrowing physical, mental and sexual abuse that Zion and Glenda Lea Dutro dealt, the complaint says that church leaders, Antioch police officers and Contra Costa CPS workers stonewalled investigations to protect the prominent evangelical couple.
     U.S. Magistrate Judge Nathanael Cousins dismissed the complaint in October, saying the women missed the deadline for filing state-law actions and failed to comply with tort-claim requirements against the city and county. Noting that the sisters might be able to better plead delayed discovery, he let them amend their complaint after first filing a tort claim with the city and county.
     Last month, the sisters told the court that McKnelly’s claims against Antioch and Contra Costa County were timely since she filed before her 26th birthday. They also renewed their state claims against the church defendants, stating that they filed their claims within three years of realizing that their ongoing psychological injuries stem from the sexual abuse and Zion Dutro’s status as an agent of the church.
     But the defendants said in two filings Friday that the sisters’ second amended complaint – which dropped federal and state claims for all sisters but McKnelly – is deficient for the same reasons as the first, and asked the judge to dismiss again.
     Contra Costa County and CPS workers Jack Rodgers and Tom Potts said that the statute of limitations on McKnelly’s claim ran out two years after her 18th birthday, in 2005, and that delayed-discovery rules apply only against a perpetrator and the perpetrator’s employer under California law.
     “Plaintiff does not set forth any allegations that would support a delayed discovery exception to the two year statute of limitations,” the county defendants said. “The allegations in the first amended complaint relating to ‘delayed discovery’ were rejected by the court.”
     The county defendants also said that they did not violate the sisters’ constitutional rights.
     “The conduct complained of in the first claim for relief is that social workers improperly interviewed the plaintiffs in 1995 and failed to visit the household thereafter. ‘[T]here is no constitutional due process right to have child witnesses in a child sexual abuse investigation interviewed in a particular manner, or to have the investigation carried out in a particularly way,'” Contra Costa County said, citing the 2001 9th Circuit decision in Devereaux v. Abbey.
     “The court, in finding no due process violation, held ‘mere allegations that defendants used interviewing techniques that were in some sense improper, or that violated state regulations, without more, cannot serve as the basis for a [civil rights claim],” the county defendants said.
     As a public entity, the county defendants say they have immunity. The city of Antioch and three of its police officers echoed that argument in their own motion to dismiss.
     “The doctrine of equitable estoppel focuses on the actions taken by the defendant in preventing a plaintiff from filing suit,” the Antioch defendants said. “The elements necessary to establish equitable estoppel are: (1) the defendants knew the facts; (2) defendants made a misrepresentation (by words or conduct) bearing on the necessity of bringing a timely suit; (3) defendants intended their words or conduct would be acted upon, or led plaintiff to believe it was so intended; (4) plaintiff was ignorant of the true state of facts; and (5) plaintiff reasonably relied on such misrepresentation in delaying the commencement of their action….There are no allegations anywhere in the [second amended complaint] that establish any of the elements necessary to support McKnelly’s reliance on the doctrine of equitable estoppel.”
     The Antioch defendants also challenged McKnelly’s claims that the police officers violated her civil rights with a half-hearted investigation of her abuse claims.
     They say that McKnelly “alleges without facts that Zion reacted by dishing out abuse that was “was worse and even more life threatening than the abuse she had suffered before the police became involved, and that the officers’ actions made it impossible for her to seek help from authorities.” (Emphasis in original.)
     “Despite these conclusions, couched as facts, McKnelly still fails to state a claim under Section 1983 because there is no constitutional right to police protection from third party criminal conduct,” the Antioch defendants said, also citing Devereaux.
     McKnelly’s attempt to bolster her 14th Amendment claims by pleading a state-created danger exception also fails, the Antioch filing states.
     “To adequately plead a state-created danger exception, McKnelly must allege facts that show the city affirmatively placed her in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger,'” the motion states. “The state-created danger exception does not create a broad rule that makes state officials liable under the Fourteenth Amendment whenever they increase the risk of some harm to members of the public. Further, mere negligence on the part of a state official is insufficient to state a constitutional violation.”
     “Moreover, there are no (sic) any factual allegations that the officers acted with deliberate indifference to a known danger,” the city added. “To the contrary, McKnelly alleges Pastor Wood reported to off-duty Officer Acosta that only Glenda S. had made an accusation about being molested; therefore, despite McKnelly’s conclusions, the facts alleged demonstrate that there was no known or obvious danger regarding the other plaintiffs at the time of the initial accusation by Glenda S., or any awareness by the Antioch police that there were even other children in the home. Nor are there any facts that police knew of and disregarded an excessive risk of harm to the plaintiffs, since there are no facts alleged to suggest that the officers knew of any danger posed to anyone but Glenda S. Similarly, there are no facts that show deliberate indifference, because even if as alleged the police did not contact CPS for sixteen days, this delay in time does not amount to ‘deliberate indifference.'”
     A hearing is set for Feb. 20.

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