Vela v. U. S. Government Health and Human Servives, Child Welfare Services

Filing 7

FINDINGS and RECOMMENDATION to Dismiss Case Without Prejudice for Failure to State a Claim and Failure to Prosecute re 1 Complaint, signed by Magistrate Judge Helena M. Barch-Kuchta on 11/17/2021. Referred to Unassigned DJ; Objections to F&R due within fourteen (14) days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ISABEL VALDEZ VELA,

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Plaintiff,

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Case No. 1:20-cv-01152-NONE-HBK
FINDINGS AND RECOMMENDATION TO
DISMISS CASE WITHOUT PREJUDICE FOR
FAILURE TO STATE A CLAIM AND
FAILURE TO PROSECUTE1

v.

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U.S. GOVERNMENT HEALTH AND
HUMAN SERVICES, CHILD WELFARE,

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FOURTEEN-DAY OBJECTION PERIOD

Defendant.

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The undersigned recommends the district court dismiss the action for failure to state a

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claim, or alternatively for failure to prosecute by not timely complying with the Court’s order

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directing her to file an amended complaint.

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BACKGROUND

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Plaintiff Isabel Valdez Vela initiated this action by filing a pro se complaint on August 17,

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2020. (Doc. No. 1). The former magistrate judge granted Plaintiff’s motion to proceed in forma

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pauperis (“IFP”) on August 19, 2020. (Doc. No. 3). The IFP order was returned to the court as

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This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Eastern District of
California Local Rule 302 (E.D. Cal. 2019).

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undeliverable on August 31, 2020. Likewise, the order re-assigning the case to the undersigned

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magistrate judge was returned as undeliverable on November 24, 2020. Upon review of the

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docket, the undersigned magistrate judge issued a minute order noting that the complaint

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contained both a physical address and a different address identified as the “mailing address.”

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(See Doc. No. 5). Because the previous orders had been mailed only to the physical address, the

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Court directed the Clerk to update the docket to include the mailing address of record and resend

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the orders previously marked as “undeliverable.” (Id.).

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Because Plaintiff had been granted IFP status, the Court conducted a screening of the
Complaint; and, finding the Complaint deficient and filing to state a claim, directed Plaintiff to

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file an amended complaint within 30 days of receiving the July 26, 2021 order. (Doc. No. 6). In

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directing Plaintiff to file an amended complaint, the court noted that the complaint contained

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procedural and substantive defects. (Id. at 4). Specifically, the Court noted that the complaint did

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not include facts in support of any constitutional claims. (Id.). And, the sole defendant, the U.S.

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Government Health and Human Services, Child Welfare Services, was not a proper defendant.

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(Id. at 4).

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complaint, Plaintiff was permitted an opportunity to do so. (See generally Id.). However, the

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order warned Plaintiff that failure to timely file an amended complaint would result in the

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recommendation that this case be dismissed for the reasons set forth in the July 26, 2021 order.

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(Id. at 5, ¶ 2). As of the date on this Findings and Recommendations and since updating the

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address of record to Plaintiff’s identified mailing address, no orders have not been returned to the

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Court as undeliverable. (See docket). Nevertheless, Plaintiff has not timely filed an amended

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complaint as directed in the Court’s order.

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Finding Plaintiff may be able to correct these deficiencies by filing an amended

APPLICABLE LAW AND ANALYSIS

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For the reasons set forth below, the undersigned recommends the district court dismiss the

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action for failure to state a claim, or alternatively for failure to prosecute by not timely complying

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with the Court’s order directing her to file an amended complaint.

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A. Section 1915(e)(2)(b)(ii) dismissal for Failure to State a Claim

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Because Plaintiff is proceeding in form pauperis, the Court may dismiss a case “at any

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time” if the Court determine, inter alia, the action fails to state claim or seeks monetary relief

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against a defendant who is immune from such relief. 28 U.S.C § 1915(e)(2)(B)(ii)-(iii).

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However, a complaint should not be dismissed unless it appears beyond doubt that the plaintiff

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can prove no set of facts in support of his or her claim that would entitle him to relief. Johnson v.

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Knowles, 113 F.3d 1114, 1117 (9th Cir.), cert. denied, 552 U.S. 996 (1997). Dismissal for failure

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to state a claim in this context is governed by the same standard as dismissal under Federal Rule

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of Civil Procedure 12(b)(6). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). As

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such, a complaint must contain sufficient factual matter to state a claim to relief that is “plausible

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on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A complaint is plausible on its face

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when it contains sufficient facts to support a reasonable inference that the defendant is liable for

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the misconduct alleged.” Id. At this stage, the court accepts the facts stated in the complaint as

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true. Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976). The Court does not accept as

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true allegations that are merely conclusory, unreasonable inferences, or unwarranted deductions.

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Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Nor are legal conclusions

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considered facts. Iqbal, 556 U.S. at 678.

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Liberally construed, the Complaint appears to be attempting to state a Fourteenth

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Amendment Claim stemming from the removal of Plaintiff’s children from her home by a state

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social worker. “Parents and children have a well-elaborated constitutional right to live together

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without governmental interference.” Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000).

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“The Fourteenth Amendment guarantees that parents will not be separated from their children

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without due process of law except in emergencies.” Mabe v. San Bernardino County, Dep't of

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Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001). Officials violate this right if a child is

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removed from the home absent “information at the time of the seizure that establishes ‘reasonable

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cause to believe that the child is in imminent danger of serious bodily injury and that the scope of

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the intrusion is reasonably necessary to avert that specific injury.’” Id. at 1106 (quoting Wallis,

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202 F.3d at 1138). The Fourth Amendment also affords protection to the child from removal

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from their homes absent the same showing. Doe v. Lebbos, 348 F.3d 820, 827 n. 9 (9th Cir.
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2003). An official, including a social worker, who removes a child from its home without a

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warrant must have reasonable cause to believe that the child is likely to experience serious bodily

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harm in the time that would be required to obtain a warrant. Mabe, 237 F.3d at 1108. See also

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Rogers v. Cty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007).

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Here, Plaintiff's Complaint suffers from procedural and substantive defects. First, the

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complaint fails to allege facts in support of any constitutional claim. Fed. R. Civ. P. 8(a)(2) (a

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complaint must contain “a short and plain statement of the claim showing the pleader is entitled

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to relief”). The Complaint does not identify the circumstances attendant to Plaintiff’s children

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being removed from her home. Plaintiff only states the children were removed without a warrant

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but does not provide any facts that exigent or other circumstances did not warrant removal.
Further, the Complaint names the “U.S. Government Health and Human Services, Child

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Welfare Services” as the sole defendant. An entity can only act through the acts of its agents.

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Plaintiff does identify an agent in her Complaint. A person wishing to pursue a § 1983 claim

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against a state entity may only sue the individual state officials or the employees involved. Monell

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v. Dep't of Social Servs., 436 U.S. 658, 690 (Eleventh Amendment does not forbid suing state

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officials for damages in their individual capacities, and for declaratory and injunctive relief in

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their official capacities, but there must be a policy, custom, or practice at issue). The Complaint

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has not identified the person acting under color of state law who allegedly violated Plaintiff’s

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rights.

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Finally, it appears the action is barred by the applicable statute of limitations under

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California law. Plaintiff identifies August 12, 2015 as the date the allegedly improper acts

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occurred. (Doc. No. 1 at 4). California's two-year statute of limitations for personal injury

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actions applies to § 1983 claims brought in this Court. Butler v. Nat'l Cmty. Renaissance of Cal.,

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766 F.3d 1191, 1198 (9th Cir. 2014); Cal. Code Civ. Proc. § 335.1. The accrual date of a § 1983

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claim is a question of federal law. Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal

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law, a civil rights action accrues “when the plaintiff knows or has reason to know of the injury

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that is the basis of the action.” Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015). Thus,

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based on the complaint, it appears the action is barred by the statute of limitations.
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Based on the foregoing reasons, the Court respectfully recommends that the district court

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dismiss the Complaint for failure to state a claim. Plaintiff was provided an opportunity to file an

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amended complaint to cure the deficiencies in her initial complaint but did not timely do so.

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B. Federal Rule of Civil Procedure 41(b)

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Alternatively, the undersigned recommends dismissal of the action for failure to

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prosecute. Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an

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action when a litigant fails to prosecute an action or fails to comply with other Rules or with a

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court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884,

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889 (9th Cir. 2019) (citations omitted). Local Rule 110 similarly permits the court to impose

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sanctions on a party who fails to comply with the court’s Rules or any order of court.
Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the

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public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3)

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the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; (5) the

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availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting court

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that these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis

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added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors

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and independently reviewing the record because district court did not make finding as to each);

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but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but

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noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se 1983 action when plaintiff did

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not amend caption to remove “et al” as the court directed and reiterating that an explicit finding of

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each factor is not required by the district court).

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The undersigned considers each of the above-stated factors and concludes dismissal is

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warranted in this case. The expeditious resolution of litigation is deemed to be in the public

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interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir.

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1999). This case has been pending since August 2020 and the only activity of record has been the

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Court’s orders. (See docket). Turning to the second factor, the Court’s need to efficiently

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manage its docket cannot be overstated. This Court has “one of the heaviest caseloads in the
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nation,” and due to unfilled judicial vacancies, which is further exacerbated by the Covid-19

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pandemic, operates under a declared judicial emergency. See Amended Standing Order in Light

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of Ongoing Judicial Emergency in the Eastern District of California. The Court’s time is better

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spent on its other matters than needlessly consumed managing a case with a recalcitrant litigant.

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Indeed, “trial courts do not have time to waste on multiple failures by aspiring litigants to follow

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the rules and requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir.

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2002) (Trott, J., concurring in affirmance of district court’s involuntary dismissal with prejudice

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of habeas petition where petitioner failed to timely respond to court order and noting “the weight

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of the docket-managing factor depends upon the size and load of the docket, and those in the best

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position to know what that is are our beleaguered trial judges.”). Delays inevitably have the

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inherent risk that evidence will become stale or witnesses’ memories will fade or be unavailable

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and can prejudice a defendant, thereby satisfying the third factor. See Sibron v. New York, 392

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U.S. 40, 57 (1968). Additionally, the instant dismissal is a dismissal without prejudice, which is a

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lesser sanction than a dismissal with prejudice, thereby addressing the fifth factor. After

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considering the factors set forth supra and binding case law, the undersigned recommends

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dismissal, without prejudice, under Federal Rule of Civil Procedure 41.

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Accordingly, it is RECOMMENDED:

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1. This case be dismissed without prejudice for failure to state a claim under 28 U.S.C. 28

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U.S.C § 1915(e)(2)(B)(ii) or in the alternative for failure to prosecute under Federal Rule Civil

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Procedure 41.

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2. The Clerk of Court be directed to terminate any pending motions/deadlines and close
this case.
NOTICE TO PARTIES
These findings and recommendations will be submitted to the United States district judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen

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(14) days after being served with these findings and recommendations, a party may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Parties are advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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Dated:

November 17, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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