                                                                          FILED
                           NOT FOR PUBLICATION                            MAR 27 2017
                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

ABHIJIT PRASAD,                                  No. 15-15256

              Plaintiff - Appellant,             D.C. No. 5:14-cv-00179-BLF

 v.                                              MEMORANDUM*

SANTA CLARA DEPARTMENT OF
SOCIAL SERVICES, et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Northern District of California
                  Beth Labson Freeman, District Judge, Presiding

                     Argued and Submitted February 15, 2017
                            San Francisco, California

Before: BERZON and CLIFTON, Circuit Judges, and GARBIS,** District Judge.

      Abhijit Prasad appeals the district court’s dismissal with prejudice of his



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
              The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
First Amended Complaint (FAC), in which he alleged causes of action for (1)

deprivation of a liberty interest without due process of law under 42 U.S.C. § 1983;

(2) conspiracy to deprive him of his civil rights under 42 U.S.C. § 1985; and (3)

intentional infliction of emotional distress (IIED). The gravamen of Prasad’s FAC

is that Santa Clara County (“the County”) and two of its employees (collectively,

“the Defendants”) included in the statewide Child Welfare System/Case

Management System (“CWS/CMS”) database allegations of child abuse lodged

against Prasad in Santa Clara County, without allowing Prasad a hearing to contest

the inclusion of these allegations in the CWS/CMS. We affirm in part and reverse

in part.

1.     The district court did not err in dismissing Prasad’s due process claim. It is

undisputed that Prasad did not receive the opportunity to challenge his inclusion in

CWS/CMS via an administrative hearing. But Prasad was able to challenge the

factual basis behind the same allegation of child abuse included in the CWS/CMS

in a grievance hearing, at which he contested his inclusion in a second state

database, the Child Abuse Central Index (CACI). At that hearing, the County’s

findings as to the underlying allegation of child abuse were affirmed.1

       1
       At oral argument, counsel for the defendants suggested that the County’s
determination as to Prasad’s younger daughter was “inconclusive” rather than
                                                                      (continued...)

                                           2
      Prasad continues to litigate the outcome of his CACI hearing in state court.

Should he ultimately obtain a reversal of the County’s determination and succeed

in having the child abuse allegation removed from CACI, it appears that the same

allegation will remain in the CWS/CMS without any mechanism for challenging its

inclusion in that database. If so, at that point Prasad may have a plausible due

process claim. See Castillo v. Cty. of Los Angeles, 959 F. Supp. 2d 1255, 1257–58,

1264 (C.D. Cal. 2013). Because that issue is premature at this time, the district

court did not err in dismissing Prasad’s due process claim. The district court erred,

however, in dismissing the claim with prejudice, as Prasad may eventually have a

colorable claim if he ultimately prevails in state court.

2.    The district court did not err in dismissing Prasad’s claim of conspiracy to

deprive him of his civil rights. Generally, without “some racial, or perhaps

otherwise class-based, invidiously discriminatory animus behind the conspirators’

action,” no action under 42 U.S.C. § 1985 may lie. Griffin v. Breckenridge, 403

U.S. 88, 102 (1971). Prasad’s bare allegation that County officials conspired

against him on the basis of his “race and national origin” is wholly conclusory and



      (...continued)
“substantiated,” and that that determination was affirmed at the grievance hearing.
The FAC, however, does not so allege, nor does it challenge any “inconclusive”
determinations specifically.

                                           3
unsupported by any facts alleged in his FAC. In fact, Prasad himself asserts

elsewhere in the FAC that the defendants’ motivation was financial rather than

discriminatory.

3.    The district court did not err in dismissing Prasad’s IIED claim. To state a

claim for IIED, a plaintiff must plausibly allege “extreme and outrageous conduct

by the defendant with the intention of causing, or reckless disregard of the

probability of causing, emotional distress.” Hughes v. Pair, 46 Cal. 4th 1035,

1050–51 (2009) (internal citations and quotation marks omitted). “A defendant's

conduct is ‘outrageous’ when it is so extreme as to exceed all bounds of that

usually tolerated in a civilized community.” Id.

      To the extent that Prasad argues that the entry of the Santa Clara County

allegations into the CWS/CMS proximately caused him emotional distress, he has

not plausibly pled that that conduct was outrageous in the sense that it “exceeded

all bounds of that usually tolerated in a civilized society.” The Defendants were

required by California law to maintain a record of all reports of child abuse

received, whether substantiated or not. See Cal. Penal Code § 11165.9. And the

California legislature expressly authorized the creation of CWS/CMS to “[p]rovide

all child welfare agencies with a common data base” and to “[c]onsolidate the

collection and reporting of information for those programs which are closely

                                          4
related to child welfare services.” Cal. Welf. & Inst. Code § 16501.5(b)(4), (6).

By entering reports of alleged child abuse into the CWS/CMS, the Defendants

appear to have acted squarely within the bounds of acceptable societal behavior, as

suggested by the Legislature’s declaration of intent.

      For the foregoing reasons, we AFFIRM the district court’s dismissal of

Prasad’s FAC, and we AFFIRM the dismissal with prejudice as to Prasad’s § 1985

claim and his IIED claim. We VACATE the dismissal with prejudice of Prasad’s

due process claim and REMAND to the district court. On remand, the district

court shall enter judgment dismissing Prasad’s due process claim without prejudice

to refiling after the CACI proceedings are complete.




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