Clavelle et al v. Children Family Services of Contra Costa and Solano County

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/22/15 ORDERING that 2 Motion to Proceed IFP is GRANTED; Plaintiffs' complaint is DISMISSED with leave to amend. Plaintiffs are granted 30 days from the date of service of this order to file an amended complaint.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANSWAN & MALIKA CLAVELLE,

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Plaintiffs,

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No. 2:14-cv-927-MCE-EFB PS

v.

ORDER

CHILDREN FAMILY SERVICES OF
CONTRA COSTA & SOLANO
COUNTY,

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Defendants.

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Plaintiffs seek leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 Their

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declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.

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Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

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Determining that plaintiffs may proceed in forma pauperis does not complete the required

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inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant. As discussed

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below, plaintiffs’ complaint fails to state a claim and must be dismissed.

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This case, in which plaintiffs are proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1).
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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it

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fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976),

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construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the

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plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy

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the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2)

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“requires a complaint to include a short and plain statement of the claim showing that the pleader

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is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds

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upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing

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Conley v. Gibson, 355 U.S. 41 (1957)).

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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co.,

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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,

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confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction

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requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a

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“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be

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authorized by a federal statute that both regulates a specific subject matter and confers federal

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jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity
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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the

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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

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Plaintiffs’ complaint is brought under 42 U.S.C. § 1983. It names as defendants the

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Children Family Services of Contra Costa (“Contra Costa CFS”); Children Family Services of

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Solano County (“Solano County CFS”); Julie Lutz; Lindsay Kennedy; Eleanor Walker; Adrienne

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Brooks; Jonathan Chapman; Heather Walsh; Tina Payne; Susan Dolan; Kim McDowell; Meghan

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Morris; and Denise Billingsley.2 Its allegations are difficult to decipher, but appears to include

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claims that various defendants and county agencies relied upon false statements about domestic

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violence to remove plaintiffs’ minor children from their home and to terminate plaintiffs’ parental

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rights. The complaint seeks damages and an injunction prohibiting any adoption proceeding and

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requiring the immediate return of the two minor children.

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Specifically, the complaint alleges that plaintiffs previously resided in Concord,

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California, with their minor child, referred to herein as F.C. ECF No. 1 ¶ 17. It further alleges

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that in December 2011, plaintiff Malika Franswan was involved in a verbal altercation with her

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child’s doctor. Id. ¶ 20. During the altercation, the doctor allegedly threatened to contact child

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protective services. Id. Thereafter, on January 18, 2012, defendant Julie Lutz, a social worker,

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came to plaintiffs’ house and allegedly demanded entrance. Id. ¶ 21. Ms. Lutz allegedly

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threatened to have plaintiffs arrested and to remove their minor son from the home. Id.

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Plaintiffs subsequently submitted a complaint against Ms. Lutz to Valerie Early, the

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director of Contra Costa CFS. Id. ¶ 25. A meeting was held to deal with the “issues” plaintiff

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was having with Ms. Lutz. Id. ¶ 27. Plaintiffs allege that at this meeting Ms. Lutz yelled and

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screamed. Id. Plaintiffs also claim that after this meeting, Ms. Lutz’s supervisor acknowledged

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While the complaint’s caption only names Children Family Services of Contra Costa &
Solano County as a defendant, the complaint purports to allege claims against several defendants.
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that the minor child was healthy and happy, and that the child protective services’s case would be

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closed. Id. ¶ 30.

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The complaint further alleges that in February 2012, Ms. Lutz called plaintiffs and stated

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that “it’s not over,” and then hung up the phone. Id. ¶ 31. Then, in April 2013, Ms. Lutz

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allegedly removed plaintiffs’ minor child from the home without a warrant or without exigent

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circumstances.” Id. ¶ 32. Plaintiffs claim that Lutz, with Kennedy’s approval, subsequently went

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before a state court and presented fraudulent testimony and fabricated documents to obtain a court

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order which caused the minor child to be detained from April 2013 to December 2013. Id. ¶ 33,

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35.

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In July 2013, plaintiff Malika Clavelle gave birth to another child, referred to herein as

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D.C. Id. ¶ 36. According to the complaint, this child, too, was improperly removed. Plaintiffs

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allege that in October 2013, defendant Eleanor Walker, an employee of Contra Costa CFS,

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“testified using the same fraudulent testimony of Defendant Julie Lutz coupled with information

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she obtained from” the plaintiffs in August 2011, to have plaintiffs’ other child detained. Id. ¶ 9,

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36. Plaintiffs claim that defendant Adrienne Brooks allowed Walker to submit the fraudulent

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testimony and evidence. Id. ¶ 37. They also claim that in October 2013, Walker and defendant

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Jonathan Chapman, without imminent risk of harm to the child, a warrant, or reasonable cause,

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removed plaintiffs’ second child from the child’s grandmother’s home. Id. ¶ 39.

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The complaint further alleges that in November 2013, Walker and Brooks were “aware of

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minor [F.C.’s] repeated physical injuries . . .[and] wish to return home to his naturel parents,” but

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these defendants left F.C. in an abusive environment. Id. ¶ 42. Defendant Heather Walsh was

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aware of reports of physical abuse, but declined to remove F.C. from the “injurious environment.”

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Id. ¶ 44. Plaintiffs further claim that defendant “Kim McDowell allowed Heather Walsh to

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knowingly le[ft] the minor in the injurious environment” id. ¶ 45, and that in March 2014,

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defendants Walker and Walsh “fraudulently testified based on fraudulent and fabricated

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documents they knew to be false . . . in order to obtain an order deeming minor [F.C.] a ward of

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the juvenile court.” Id. ¶ 51.

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Plaintiffs claim that the same month, defendant Meghan Morris threatened to seize D.C.

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because plaintiffs were asserting their constitutional rights. Id. ¶ 52. The threats were allegedly

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allowed or tolerated by defendant Denise Billingsley, id. ¶ 53, and Morris subsequently

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presented fraudulent testimony in order to obtain a custody warrant to detain D.C. Id. ¶ 56. In

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April 2014, defendants Morris, Billingsley, and Payne allegedly detained D.C., and placed the

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minor child in foster care. Id. ¶ 58.

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Based on these allegations, plaintiffs purport to assert thirty-five causes of action. Id. at 8-

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19. But the complaint does not identify or otherwise designate the causes of action by title, nor

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identify which defendant or defendants each claim is asserted against. Instead, plaintiffs’ claims

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are only identified numerically. As far as the court can discern, the majority of plaintiffs’ claims

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appear to be brought under 42 U.S.C. § 1983 for violation of plaintiffs’ constitutional rights, but

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even that is not clear.

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To state a claim under § 1983, plaintiffs must allege: (1) the violation of a federal

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constitutional or statutory right; and (2) that the violation was committed by a person acting under

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). Each of plaintiffs’ purported

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causes of action fails to allege sufficient facts to state a claim under section 1983. Particularly

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problematic is plaintiffs’ failure to identify in each cause of action the specific constitutional

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violation that was allegedly committed by each defendant. For instance, in their first, second,

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fourth, and fifth cause of action, plaintiffs allege that defendant Lutz, acting with malice and the

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intent to intimidate, verbally assaulted plaintiffs and “threatened to make false and fabricated

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allegations of mental illness, Domestic Abuse, and medical neglect and to have [plaintiffs]

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arrested . . . .” ECF No. 1 ¶¶ 59, 60, 62, 63. Plaintiffs do not, however, identify a specific

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constitutional provision that Lutz allegedly violated. Plaintiffs’ other causes of actions contain

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similarly vague and conclusory allegations regarding the submission of fabricated evidence and

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making undisclosed perjuriously statements before the state court for the purpose of removing the

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minor children from plaintiffs’ custody. See generally id. at 8-19. Additionally, the complaint is

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replete with allegations that various defendants failed to protect the minor children from future

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harm. See id. ¶¶ 69, 71, 72, 75, 77-80. Again, however, plaintiffs fail to identify a single specific
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constitutional violation that was allegedly committed by any of the named defendants.3 As

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drafted, the court is unable to discern the precise cause of action plaintiffs intend to allege against

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each defendant. Furthermore, the complaint is devoid of specific allegations in support of

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plaintiffs’ claims. As plaintiffs have failed to identify a precise constitutional provision that each

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defendant violated, and provide no factual allegations to establish each such alleged violation(s),

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plaintiffs have failed to give defendants “fair notice of what the claim is and the grounds upon

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which” each claim rests. Twombly, 550 U.S. at 554, 562-563 (2007). Accordingly, plaintiffs’

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section 1983 claims against the individual defendants must be dismissed.

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Plaintiffs name Children Family Services of Contra Costa and Children Welfare Services

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of Solano County as defendants. See ECF No. 1. at 1. “Municipalities and other local

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government units . . . [are] among those persons to whom § 1983 applies.” Monell v. Dep’t of

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Soc. Servs., 436 U.S. 658, 690 (1978). However, a municipal entity or its departments, is liable

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under § 1983 only if plaintiff shows that his constitutional injury was caused by employees acting

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pursuant to the municipality’s policy or custom. See Villegas v. Gilroy Garlic Festival Ass’n, 541

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F.3d 950, 964 (9th Cir. 2008) (citing 436 U.S. at 690-94). “[A]n act performed pursuant to a

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‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject

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a municipality to liability on the theory that the relevant practice is so widespread as to have the

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force of law.” Board of Cty. Comm’rs. of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997). A

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local governmental entity may also be liable if it has a “policy of inaction and such inaction

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amounts to a failure to protect constitutional rights.” Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th

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Cir. 1992) (citing City of Canton v. Harris, 489 U.S. 378 (1989)); see also Monell, 436 U.S. at

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690-91. The custom or policy of inaction, however, must be the result of a “conscious,” City of

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Canton, 489 U.S. at 389, or “‘deliberate choice to follow a course of action . . . made from among

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various alternatives by the official or officials responsible for establishing final policy with

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In the first paragraph of the complaint, plaintiffs allege that defendants violated their
rights under the First, Fourth, Fifth, Ninth, Thirteenth, and Fourteen Amendments to the United
States Constitution. ECF No. 1 ¶ 1. They do not, however, identify the specific constitutional
provisions that were violated or explain which facts support each alleged violation.
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respect to the subject matter in question.’” Oviatt, 954 F.2d at 1477 (quoting Pembaur v. City of

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Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion)).

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Plaintiffs’ complaint does not allege a constitutional violation based on a policy or

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custom. Accordingly, as plaintiffs’ § 1983 claims against Children Family Services of Contra

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Costa & Children Welfare Services of Solano County are against government units, plaintiffs

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have failed to state a section 1983 claim against them.

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The complaint also makes reference to 18 U.S.C. §§ 242 and 1001. These criminal

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statutes do not provide a private right of action, and therefore any claim brought under these

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statutes must be dismissed. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (holding

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that 18 U.S.C. § 242 is a criminal provision that does not provide a basis for civil liability);

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Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007) (finding that 18 U.S.C. § 1001 does

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“not provide for a private right of action and [is] thus not enforceable through a civil action.”).

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Lastly, the complaint contains a single reference to the American with Disabilities Act.

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ECF No. 1 at 2. Title II of the ADA prohibits a public entity from discriminating against a

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qualified individual with a disability on the basis of disability. 42 U.S.C. § 12132. In order to

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state a claim that a public program or service violated Title II of the ADA, a plaintiff must show:

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(1) he is a “qualified individual with a disability”; (2) he was either excluded from participation in

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or denied the benefits of a public entity’s services, programs, or activities, or was otherwise

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discriminated against by the public entity; and (3) such exclusion, denial of benefits, or

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discrimination was by reason of his disability. McGary v. City of Portland, 386 F.3d 1259, 1265

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(9th Cir. 2004); see also Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) (“If a

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public entity denies an otherwise ‘qualified individual’ ‘meaningful access’ to its ‘services,

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programs, or activities’ ‘solely by reason of’ his or her disability, that individual may have an

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ADA claim against the public entity.”). Plaintiffs’ complaint alleges no facts that satisfy those

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required elements.

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Further, “[t]o recover monetary damages under Title II of the ADA . . . , a plaintiff must

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prove intentional discrimination on the part of the defendant.” Duvall v. County of Kitsap, 260

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F.3d 1124, 1138 (9th Cir. 2001). The standard for intentional discrimination is deliberate
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indifference, which “requires both knowledge that a harm to a federally protected right is

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substantially likely, and a failure to act upon that likelihood.” Id. at 1139. Again, plaintiffs’

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allegations do not meet that requirement.

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Lastly, plaintiffs cannot allege an ADA claim against any of the defendants in their

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individual capacities. “In suits under Title II of the ADA . . . the proper defendant usually is an

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organization rather than a natural person . . . . Thus, as a rule, there is no personal liability under

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Title II.” Roundtree v. Adams, No. 1:01-cv-06502-OWW-LJO, 2005 U.S. Dist. LEXIS 40517, at

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*22 (E.D. Cal. Dec. 1, 2005) (quotations and citations omitted). Indeed, a plaintiff cannot bring

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an action under 42 U.S.C. § 1983 against a State official in his individual capacity to vindicate

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rights created by Title II of the ADA. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002).

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Thus, an ADA plaintiff may seek injunctive relief against an individual defendant only if the

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defendant is sued in his or her official capacity. Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-

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88 (9th Cir. 2003).

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Based on the forgoing, the court finds that plaintiffs’ claims are too vague and conclusory

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to state a cognizable claim for relief. Plaintiffs are granted leave to file an amended complaint, if

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they allege a cognizable legal theory against a proper defendant and sufficient facts in support of

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that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiffs choose to file an amended complaint, the amended complaint

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shall clearly set forth the allegations against each defendant and shall specify a basis for this

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court’s subject matter jurisdiction. Any amended complaint shall plead plaintiffs’ claims in

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“numbered paragraphs, each limited as far as practicable to a single set of circumstances,” as

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required by Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper

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that bears line numbers in the left margin, as required by Eastern District of California Local

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Rules 130(b) and 130(c). Any amended complaint shall also use clear headings to delineate each

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claim alleged and against which defendant or defendants the claim is alleged, as required by Rule

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10(b), and must plead clear facts that support each claim under each header.

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another's act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Additionally, plaintiffs are informed that the court cannot refer to prior pleadings in order

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to make an amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself. This is because, as a general rule, an amended complaint supersedes the

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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

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plaintiff files an amended complaint, the original no longer serves any function in the case.

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Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not

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alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiffs that failure to

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comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order

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may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110.

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Accordingly, IT IS ORDERED that:

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1. Plaintiffs’ request for leave to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiffs’ complaint is dismissed with leave to amend, as provided herein.

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3. Plaintiffs are granted thirty days from the date of service of this order to file an

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amended complaint. The amended complaint must bear the docket number assigned to this case

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and must be labeled “Amended Complaint.” Failure to timely file an amended complaint in

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accordance with this order will result in a recommendation this action be dismissed.

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DATED: October 22, 2015.

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