Ludwig v. Adult Protective Services of Sacramento County et al

Filing 78

ORDER granting 70 Motion to Dismiss signed by Judge John A. Mendez on 1/24/12: Defendant Verna Magnuson dismissed. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUSAN LUDWIG,

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Plaintiff,

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v.
ADULT PROTECTIVE SERVICES OF
SACRAMENTO COUNTY, et al.,
Defendants.

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Case No. 2:10-cv-00325-JAM-EFB
ORDER GRANTING DEFENDANT VERNA
MAGNUSON’S MOTION TO DISMISS

This matter is before the Court on Defendant Verna Magnuson’s

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(“Defendant”) Motion to Dismiss (Doc. #70).1

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Ludwig (“Plaintiff”) opposes the motion (Doc. #73).

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filed a reply (Doc. #74).

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Defendant’s motion is GRANTED.

Plaintiff Susan
Defendant

For the reasons stated below,

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

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Plaintiff, originally a pro se litigant, filed this action

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against multiple individual and governmental defendants on February

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was originally
scheduled on January 25, 2012.
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8, 2010 (Doc. #1).

After obtaining counsel, she filed an Amended

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Complaint on June 29, 2011 (Doc. #35).

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Defendant Magnuson moved to dismiss the Amended Complaint, and a

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hearing on those motions was held on September 21, 2011.

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September 21 hearing resulted in dismissal of all defendants aside

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from Defendant Magnuson (Doc. #52).

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amend her complaint to cure defects in her allegations against

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defendant Adult Protective Services of Sacramento County (“APS”),

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which she declined to do in a statement filed with the court (Doc.

All defendants except for

The

Plaintiff was given leave to

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#65).

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time, the only claim remaining in this lawsuit is the first count

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of the Amended Complaint alleging violations of Plaintiff’s civil

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rights by Defendant Magnuson, a retired APS employee.

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Compl. ¶¶ 91-94.

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Since Plaintiff declined to amend the complaint a second

Amended

The allegations in the Amended Complaint are based on the

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February, 2008 search of Plaintiff’s home, Plaintiff’s brief

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detention during that time, and the subsequent removal of her

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mother from her care.

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arrived at her mobile home on February 1, 2008 along with APS

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employee Defendant Magnuson.

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and into the back of a police car while Defendant and the police

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searched the home and then took Plaintiff’s mother into custody.

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Plaintiff alleges that her mother was then institutionalized in

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health care facilities until she passed away in March, 2008.

Plaintiff alleges that police officers

Plaintiff was ordered out of the home

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On February 14, 2008, Plaintiff alleges that Defendant

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Magnuson, encouraged by APS, filled out a “Request for Orders to

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Stop Elder Abuse” for the mother and induced the mother to sign the

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form through false representations.
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Based on the signed request,

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Defendant Magnuson obtained an ex parte restraining order

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prohibiting Plaintiff from contacting her mother.

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The mother contracted pneumonia during her stay at McKinley

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nursing home, and died after being taken to Mercy Hospital in March

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2008.

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Plaintiff learned of her mother’s death four days later.

This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1343.

Venue is proper pursuant to 28 U.S.C. § 1391(b)(1)–(2).

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II.

OPINION

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A.

Legal Standard

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A party may move to dismiss an action for failure to state a

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claim upon which relief can be granted pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

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court must accept the allegations in the complaint as true and draw

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all reasonable inferences in favor of the plaintiff.

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Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319,

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322 (1972).

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are not entitled to the assumption of truth.

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129 S. Ct. 1937, 1950 (2009) (citing Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007)).

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plaintiff needs to plead “enough facts to state a claim to relief

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that is plausible on its face.”

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Dismissal is appropriate where the plaintiff fails to state a claim

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supportable by a cognizable legal theory.

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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In considering a motion to dismiss, the

Scheuer v.

Assertions that are mere “legal conclusions,” however,
Ashcroft v. Iqbal,

To survive a motion to dismiss, a

Twombly, 550 U.S. at 570.

Balistreri v. Pacifica

Upon granting a motion to dismiss for failure to state a
claim, the court has discretion to allow leave to amend the
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complaint pursuant to Federal Rule of Civil Procedure 15(a).

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“Dismissal with prejudice and without leave to amend is not

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appropriate unless it is clear . . . that the complaint could not

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be saved by amendment.”

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316 F.3d 1048, 1052 (9th Cir. 2003).

Eminence Capital, L.L.C. v. Aspeon, Inc.,

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B.

Discussion

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In the present motion, Defendant raises the two year statute

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of limitations for claims brought under 42 U.S.C. § 1983 as the

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primary grounds for dismissal.

Plaintiff agrees that the

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limitations period is two years, but she argues that the claim is

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analogous to a false imprisonment claim.

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did not accrue until either Defendant obtained judicial

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authorization on February 14, 2008 for the mother’s removal or the

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mother passed away in custody in March 2008, bringing the unlawful

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removal to an end.

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Thus, the cause of action

Plaintiff’s argument attempts to combine the holdings of two

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cases to support her position.

First, Plaintiff cites Wallis v.

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Spencer, 202 F.3d 1126, 1137 fn. 8 (9th Cir. 2000), for the

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proposition that courts may analyze a claim for loss of familial

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association with a dependent together with the dependent’s wrongful

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removal claim.

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388 (2007), for the proposition that a false imprisonment claim

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does not accrue until the alleged false imprisonment ends.

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Combining the two cases, Plaintiff’s position is that both

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Plaintiff’s claim for loss of familial association and the mother’s

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claim for wrongful removal, which is not presently before the

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Court, did not accrue until the mother’s wrongful removal ended.

Plaintiff then cites Wallace v. Kato, 548 U.S. 384,

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During the September 21, 2011 hearing, the Court heard

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arguments on Plaintiff’s theory that Wallis and Wallace effectively

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tolled the 2 year statute of limitations for the period of the

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Plaintiff’s mother’s confinement, making Plaintiff’s February 8,

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2010 filing timely.

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that time rejected Plaintiff’s position and held that a wrongful

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removal cause of action accrues at the time the dependent is

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removed.

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v. County of Alameda to be persuasive.

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Id.

Transcript, Doc. #55, at 31-32.

The Court at

The Court found the identical holding in Belinda K.
No. 10–CV–05797–LHK, 2011

WL 2690356, at *6 (N.D. Cal. July 8, 2011).
Plaintiff’s other hurdle is that the Court is not persuaded

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that the Wallace rule applies to the facts of this case.

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Wallace Court said, “The running of the statute of limitations on

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false imprisonment is subject to a distinctive rule-dictated,

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perhaps, by the reality that the victim may not be able to sue

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while he is still imprisoned.

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384, 388 (2007).

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averred any facts that show she was unable to file her claim.

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Since Plaintiff was never imprisoned, she was free to file her

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claim on the same day that her mother was removed from her care.

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At the September 21, 2011 hearing, the Court gave Plaintiff

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leave to amend her allegations to assert a claim against APS and

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Defendant based on allegations of fraud in obtaining the February

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14, 2008 court order.

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on February 14, 2008 would be within the applicable two year

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statute of limitations, Plaintiff declined to amend her

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allegations.

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14, 2008 events constituted a separate violation of her civil

. . .”

The

Wallace v. Kato, 549 U.S.

In the instant case, however, Plaintiff has not

While a constitutional violation occurring

Thus she presents no theory under which the February

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rights.
For the reasons stated above and at the September 21, 2011

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hearing, the Court finds that Plaintiff’s claims accrued on

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February 1, 2008 when her mother was removed from her care.

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the original complaint was filed more than two years after that

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date, it is not timely.

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Plaintiff’s failure to amend the complaint subsequent to the

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September 21, 2011 hearing is an admission that further amendments

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would be futile.

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with prejudice.

Since

Additionally, the Court finds that

As a result, Defendant’s motion should be granted

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III. ORDER

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The Court has carefully considered all of the papers filed

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with regard to this motion, and it is hereby ordered that

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Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint is

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GRANTED with prejudice.

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IT IS SO ORDERED.
Dated: January 24, 2012

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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