Kennedy v. Sonoma County Superior Court et al

Northern District of California, cand-4:2015-cv-01642

ORDER GRANTING {{2}} MOTION for Leave to Proceed in forma pauperis; DISMISSING {{1}} Complaint with Leave to Amend. Signed by Magistrate Judge Kandis A. Westmore on 05/14/2015. (kawlc2S, COURT STAFF) (Additional attachment(s) added on 5/14/2015: # {{1}} Certificate/Proof of Service)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 RHEANNA D. KENNEDY, 8 Case No. 15-cv-01642-KAW Plaintiff, 9 v. ORDER GRANTING APPLICATION 10 TO PROCEED IN FORMA PAUPERIS; SONOMA COUNTY SUPERIOR COURT, DISMISSING COMPLAINT WITH 11 et al., LEAVE TO AMEND 12 Defendants. Re: Dkt. Nos. 1, 2 Northern District of California United States District Court 13 14 Rheanna D. Kennedy ("Plaintiff"), who proceeds pro se, commenced the above-captioned 15 case on April 10, 2015. (Compl., Dkt. No. 1.) Plaintiff also filed an application to proceed in 16 forma pauperis. (Pl.'s IFP Appl., Dkt. No. 2.) The Court has reviewed Plaintiff's application to 17 proceed in forma pauperis and finds that Plaintiff is unable to pay the filing fee. See 28 U.S.C. § 18 1915(a)(1). Plaintiff's application to proceed in forma pauperis is, therefore, GRANTED. 19 Plaintiff's complaint, however, must be dismissed with leave to amend, because the complaint fails 20 to state a claim upon which relief can be granted. 21 I. LEGAL STANDARD 22 Pursuant to 28 U.S.C. § 1915(e)(2), a court "shall dismiss [a] case at any time if the court 23 determines that. . . the action. . . fails to state a claim on which relief may be granted." See Fed. 24 R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain "a 25 short and plain statement of the claim showing that the pleader is entitled to relief." But "a 26 complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is 27 plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare 28 recitals of the elements of a cause of action" and "conclusory statements" are not adequate. 1 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 2 probability requirement, but it asks for more than a sheer possibility that a defendant has acted 3 unlawfully. . . . When a complaint pleads facts that are merely consistent with a defendant's 4 liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. 5 (quoting Twombly, 550 U.S. at 557) (internal citations omitted). 6 Pro se pleadings are liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) 7 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). "A pro se complaint, however inartfully 8 pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. . . . " 9 Estelle, 429 U.S. at 106 (internal citations omitted). 10 III. DISCUSSION 11 Plaintiff's claims stem from the alleged warrantless removal of two minor children. 12 (Compl. ¶¶ IV.1-3, Dkt. No. 1.) She alleges that on February 7, 2013, Elizabeth Martinez visited Northern District of California United States District Court 13 three separated residences, accompanied by police departments from three different cities, to 14 illegally remove her children. (Id.) 15 Based on the events surrounding and following this alleged warrantless removal, Plaintiff 16 commenced this action against the Sonoma County Superior Court, the Sonoma County Human 17 Services Department (CPS), the Sonoma County Public Defender's Office, the Rohnert Park 18 Police Department, the Santa Rose Police Department, the El Sobrante Police Department, Judge 19 James Bertoli, Public Defender Bonnie Alonzo, Public Defender David Fuller, Patty Ramano, 20 Jackie Gillespie, Juana Marquez, Shannen Fraley, and Elizabeth Martinez ("Defendants"). 21 (Compl. ¶¶ III.3-12.) 22 In her complaint, Plaintiff asserts the following causes of action: (1) a claim under 42 23 U.S.C. § 1983 for violations of her civil rights, (2) a claim "[f]or violation of Plaintiffs State 24 Rights CA § 52.1," (3) a claim for intentional infliction of emotional distress, (4) a claim for 25 "Negligence, Disregard and Malice," (5) "Deprivation of Due Process, Breach of contract," and (6) 26 a claim for abuse of process. (Id.) 27 While she asserts claims against fifteen different Defendants, the bare assertions in the 28 complaint fail to give many of these Defendants fair notice of the claims asserted against them. 2 1 For example, Plaintiff alleges that Judge James Bertoli "deprived Plaintiff of civil rights, allowed 2 Human Services Department to lie, manipulate, withhold information, fabric [sic] evidence and 3 neglected to prevent all action-U.S.C. 42 § 1986." (Compl. ¶ III.5.) She similarly alleges that 4 Public Defender Bonnie Alonzo "allowed [the] court and CPS to deprive Plaintiff of civil rights 5 and state laws and statute laws of California (WIC) laws and was basically ineffective and 6 negligent as council [sic] to Plaintiff." (Id. ¶ III.6.) The allegations concerning Public Defender 7 David Fuller, Patty Ramano, Jackie Gillespie, and Juana Marquez are similarly conclusory. (See 8 id. ¶¶ III.7-10.) With respect to the three police departments named as Defendants, Plaintiff 9 merely alleges that "Martinez went to three separate residences along with police departments 10 from three different cities." (Compl. ¶ IV.1.) The remaining allegations in the complaint only 11 refer to Defendants generally, and with the exception of a few instances of specific conduct by 12 Martinez and Fraley, the Court is unable to discern which defendant engaged in what conduct. Northern District of California United States District Court 13 Thus, the allegations in the complaint, even when liberally construed, do not "contain sufficient 14 factual matter, accepted as true, to state a claim to relief that is plausible on its face." See 15 Twombly, 550 U.S. at 555. 16 The Court notes that even if Plaintiff could properly allege facts showing that Judge 17 Bertoli engaged in any of the conduct that is the basis for Plaintiff's claims, absolute immunity 18 would likely attach to his actions. See Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1985) 19 ("Absolute immunity fails to attach to judicial officers only when they act clearly and completely 20 outside the scope of their jurisdiction. Allegations of malice or bad faith in the execution of the 21 officer's duties are insufficient to sustain the complaint when the officer possesses absolute 22 judicial immunity."); Haile v. Sawyer, No. C 02-5723 MJJ, 2003 WL 1907661, at *2 (N.D. Cal. 23 Apr. 14, 2003) ("It is well-settled that judges are immune from civil suit for actions taken in their 24 judicial capacity, unless 'taken in the complete absence of all jurisdiction.'") (citation omitted). 25 Any claim against the Sonoma County Superior Court would also be barred by the Eleventh 26 Amendment, which renders state entities immune from tort actions for damages. See Hyland v. 27 Wonder, 117 F.3d 405, 413 (9th Cir. 1997). To the extent that Plaintiff is asserting ineffective 28 assistance of counsel or otherwise challenges the court proceedings, an appeal is the appropriate 3 1 method to address her claims. 2 Plaintiff has also failed to separately plead each cause of action. See Fed. R. Civ. P. 10 ("A 3 party must state its claims or defenses in numbered paragraphs, each limited as far as practicable 4 to a single set of circumstances. . . . If doing so would promote clarity, each claim founded on a 5 separate transaction or occurrence. . . must be stated in a separate count or defense."). Plaintiff's 6 second cause of action is for violations of "Plaintiffs State Rights CA § 52.1," but in the section 7 related to that claim, she alleges that "[t]he specific acts by Defendants violated Article I, Section 8 13 of the Constitution of the State of California and Cal. Civ. Code § 52.1." (Compl. ¶ V.1.) 9 Plaintiff's fourth cause of action is "For Negligence, Disregard and Malice," and her fifth cause of 10 action is captioned "Deprivation of Due Process, Breach of Contract." For the sake of clarity, 11 Plaintiff should separately plead each cause of action, along with the specific facts that support 12 each one and specific facts pertaining to each defendant. Plaintiff should also be sure to identify Northern District of California United States District Court 13 the proper legal basis for each of her claims. Disregard and malice, for example, describe mental 14 states, not separate claims for relief. 15 IV. CONCLUSION 16 For the reasons stated above, Plaintiff's application to proceed in forma pauperis is 17 GRANTED. Plaintiff's complaint is also dismissed with leave to amend. Plaintiff shall file a 18 first amended complaint within 30 days of this order. Plaintiff is on notice that the first amended 19 complaint will supersede the original complaint, such that it will be treated as nonexistent. See 20 Armstrong v. Davis, 275 F.3d 849, 878 n.40 (9th Cir. 2001), abrogated on other grounds by 21 Johnson v. Cal., 543 U.S. 499 (2005). For this reason, Plaintiff shall properly identify the legal 22 and factual bases for all of her claims, free of any reference to any prior complaint, and she shall 23 clearly identify the specific claims asserted against each defendant. See King v. Atiyeh, 814 F.2d 24 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa Cnty., 693 F.3d 896 25 (9th Cir. 2012). She shall also allege specific facts pertaining to each defendant under each 26 applicable cause of action. The first amended complaint shall comply with Federal Rule of Civil 27 Procedure 5.2, which outlines specific requirements that apply to certain pleadings, including 28 those naming minors. Failure to file a first amended complaint within 30 days of this order may 4 1 result in dismissal of this action for failure to prosecute. 2 To ensure that her first amended complaint complies with this order, Plaintiff may wish to 3 contact the Federal Pro Bono Project's Help Desk—a free service for pro se litigants—by calling 4 (415) 782-8982. The Court has also adopted a manual for use by pro se litigants, which may be 5 helpful to Plaintiff. This manual, and other free information is available online at: 6 http://cand.uscourts.gov/proselitigants. 7 IT IS SO ORDERED. 8 DATE: 05/14/15 __________________________ KANDIS A. WESTMORE 9 United States Magistrate Judge 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5