(PS) Conerly et al v. Tarpin et al

Filing 50

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 01/19/2023 RECOMMENDING that 12 , 15 , 25 and 31 be GRANTED; On the Court's own Motion, Plaintiffs' claims against Defendant Jones be DISMISSED; 30 Defe ndant Jones' Motion for More Definite Statement be DENIED as MOOT; Plaintiffs' Complaint be DISMISSED without leave to amend. The Clerk of the Court be DIRECTED to close this case. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these Findings and Recommendations. (Rodriguez, E)

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Case 2:22-cv-01525-TLN-CKD Document 50 Filed 01/19/23 Page 1 of 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARINA CONERLY, et al., 12 Plaintiffs, 13 FINDINGS AND RECOMMENDATIONS v. 14 SHARIF TARPIN, et al., 15 No. 2:22-cv-1525-TLN-CKD PS (ECF Nos. 12, 15, 25, 30, 31) Defendants. 16 Plaintiffs Carina Conerly, James Conerly, and Marilyn Y. Tillman Conerly 1 proceed pro 17 18 se with this civil action. (ECF No. 1.) This matter is before the undersigned pursuant to Local 19 Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Several motions filed by the defendants are before 20 the court. (ECF Nos. 12, 15, 25, 30, 31.) 21 I. Procedural Background 22 Plaintiffs filed a fee-paid complaint on August 30, 2022. (ECF No. 1.) 23 On October 4, 2022, defendants Michelle Cooksey, Heron School, Kerry House, Natomas 24 Unified School District, and Stephanie Schulzkump (“Heron defendants”) filed a motion to 25 dismiss. (ECF No. 12.) The motion is fully briefed with plaintiffs’ opposition and defendants’ 26 reply. (ECF Nos. 26, 32.) 27 28 1 Plaintiffs, as non-lawyers, cannot represent the fourth listed plaintiff, M.T., a minor. See Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997). 1 Case 2:22-cv-01525-TLN-CKD Document 50 Filed 01/19/23 Page 2 of 8 1 On October 4, 2022, defendants Melissa Clark, Timothy Hammons, Regency Park 2 Elementary School, and Twin Rivers Unified School District (“Regency Park defendants”) filed a 3 motion to dismiss. (ECF No. 15.) The motion is fully briefed with plaintiffs’ opposition and 4 defendants’ reply. (ECF Nos. 26, 33.) 5 On October 26, 2022, defendant Kara Ueda (“Judge Ueda”) filed a motion to dismiss. 6 (ECF No. 25.) The motion is fully briefed with plaintiffs’ opposition and defendant’s reply. (ECF 7 Nos. 35, 42.) 8 On October 28, 2022, defendant Enrika Jones filed a motion for a more definite statement. 9 (ECF No. 30.) Plaintiffs opposed the motion in writing 2 and defendant filed a reply. (ECF No. 36, 10 43.) 11 On October 31, 2022, defendants Sacramento Police Department (“SPD”), Katherine 12 Lester, Colleen Gray, Alexander Thompson, and Luke Chirbas (“SPD defendants”) filed a motion 13 to dismiss. (ECF No. 31.) The motion is fully briefed with plaintiffs’ opposition and defendants’ 14 reply. (ECF Nos. 36, 44.) II. Legal Standards 15 A. Motion for a More Definite Statement 16 17 Rule 12(e) of the Federal Rules of Civil Procedure allows a party to move for a more 18 definite statement of a pleading that is so vague, ambiguous, or indefinite that the party cannot 19 reasonably prepare a response. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); 20 Neveau v. City of Fresno, 392 F. Supp. 2d 1159, 1169 (E.D. Cal. 2005) (Rule 12(e) motions 21 attack “the unintelligibility of the complaint”). A motion under Rule 12(e) “must be made before 22 filing a responsive pleading and must point out the defects complained of and the details desired.” 23 Fed. R. Civ. P. 12(e). 24 The court considers a Rule 12(e) motion in light of the liberal pleading standard set forth 25 in Rule 8, which requires a complaint to “(1) a short and plain statement of the grounds for the 26 court’s jurisdiction[;] (2) a short and plain statement of the claim showing that the pleader is 27 28 2 The court construes plaintiffs’ opposition filed on November 16, 2022 (ECF No. 36) as opposing the motion for a more definite statement. (See ECF No. 36-1 at 3.) 2 Case 2:22-cv-01525-TLN-CKD Document 50 Filed 01/19/23 Page 3 of 8 1 entitled to relief; and (3) a demand for the relief sought, which may include relief in the 2 alternative or different types of relief.” Bureerong v. Uvawas, 922 F. Supp. 1450, 1461 (C.D. Cal. 3 1996). A court may “require such detail as may be appropriate in the particular case.” McHenry v. 4 Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (noting how confusing and unclear complaints impose 5 unfair burdens on litigants and judges); see also Rule 8(d)(1) (requiring each allegation in a 6 complaint be “simple, concise, and direct”). B. Motion to Dismiss under Rule 12(b)(6) 7 8 9 Dismissal under Rule 12(b)(6) may be warranted for “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica 10 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In evaluating whether a complaint states a claim 11 on which relief may be granted, the court accepts as true the allegations in the complaint and 12 construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 13 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). 14 “[R]ecitals of the elements of a cause of action, supported by mere conclusory statements, 15 do not suffice” to state a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A 16 complaint must do more than allege mere “labels and conclusions” or “a formulaic recitation of 17 the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In 18 order to state a valid claim for relief, a plaintiff must allege “enough facts to state a claim to relief 19 that is plausible on its face.” Twombly, 550 U.S. at 570. A claim that is plausible on its face has 20 sufficient factual content to allow a reasonable inference that the defendant is liable for the 21 misconduct alleged. Iqbal, 556 U.S. at 678. This plausibility standard “asks for more than a sheer 22 possibility that a defendant has acted unlawfully.” Id. 23 III. Discussion A. Allegations in the Complaint 24 25 As argued by all the moving defendants in their respective motions, the factual allegations 26 of the complaint are very difficult to discern but clearly arise out of a family law dispute between 27 the plaintiff, Carina Conerly, and defendant, Sharif Tarpin. Conerly and Tarpin are the parents of 28 M.T., a minor. 3 Case 2:22-cv-01525-TLN-CKD Document 50 Filed 01/19/23 Page 4 of 8 1 Tarpin enrolled M.T. at defendant Heron Elementary School (“Heron”) for the school year 2 beginning in 2022. (ECF No. 1 at 6.) Conerly, however, had wanted M.T. to attend defendant 3 Regency Park Elementary School (“Regency Park”) where she had enrolled M.T. (Id. at 6-7.) 4 “[B]y way of Judicial Officers,” and others, plaintiffs allege various defendants entered 5 into a conspiracy to change Tarpin’s physical appearance to aid him in a “false portrayal in public 6 places.” (ECF No. 1 at 6.) Other individuals conspired with each other to recruit, solicit, or 7 persuade others to destroy plaintiffs’ computers, printers, and other household electronic devices 8 via “many kinds of rays of charges, electricity, electronic attacks,” and other means to dissuade 9 plaintiffs from filing civil rights lawsuits. (Id.) Plaintiffs allege all the defendants’ actions 10 demonstrated systemic racism. (Id. at 7.) 11 Various individuals also conspired to fraudulently enroll plaintiff Conerly’s daughter into 12 another school rather than the one she was supposed to go to. (ECF No. 1 at 6-7.) Plaintiffs allege 13 the SPD did not assist them when requested on August 15, 2022, but when Tarpin called them on 14 the same day, the SPD responded quickly. (Id. at 7.) Plaintiff Conerly called the SPD again on 15 August 22, 2022, because Tarpin did not drop off M.T. as required by the custody order. (Id. at 16 15-16.) An attached appendix lists several dates beginning with March 9, 2022, and ending on 17 August 24, 2022, and appears to document instances when Tarpin did not drop off M.T. at court- 18 appointed times and places, among other observations. (Id. at 10-27.) 19 By way of this action, plaintiffs seek relief from the two schools, school district personnel, 20 law enforcement officers, and a judge, among other individuals. Plaintiffs allege their rights under 21 the Fourteenth Amendment were violated, along with Title 5 of the Code of Federal Regulations, 22 part 8741. 3 (Id. at 8.) B. Heron, Regency Park, and SPD Defendants (ECF Nos. 12, 15, 31) 23 24 Because they raise many of the same or similar arguments, the court considers the motions 25 to dismiss filed by the Heron defendants, the Regency Park defendants, and the SPD defendants 26 together. 27 28 3 There is no such section in the Code of Federal Regulations. 4 Case 2:22-cv-01525-TLN-CKD Document 50 Filed 01/19/23 Page 5 of 8 1 The Heron and Regency Park defendants assert (1) plaintiffs’ complaint is unintelligible 2 and fails to state any factual allegations or a cognizable claim for relief; (2) plaintiffs James 3 Conerly and Marilyn Tillman Conerly lack standing; (3) plaintiff Conerly cannot represent M.T.; 4 and (4) Heron and Regency Park are improper parties to this suit. (ECF Nos. 12, 15.) 5 The SPD defendants assert (1) plaintiff’s complaint fails to state any facts or make any 6 allegations that support a claim for relief; (2) plaintiffs fail to state a claim under the Fourteenth 7 Amendment claim; (3) plaintiffs James and Marilyn Conerly lack standing; and (4) a parent lacks 8 capacity to sue in pro se on behalf of a minor child. (ECF No. 31-1.) 9 In order to state a claim alleging a violation of due process under the Fourteenth 10 Amendment, plaintiffs must bring an action under 42 U.S.C. § 1983. Their complaint does not do 11 so. But even if the complaint did bring the cause of action under 42 U.S.C. § 1983, the claim 12 would still fail. 13 A plaintiff may bring an action under 42 U.S.C. § 1983 to redress violations of “rights, 14 privileges, or immunities secured by the Constitution and [federal] laws” by a person or entity, 15 including a municipality, acting under the color of state law. 42 U.S.C. § 1983; Monell v. Dep’t 16 of Social Servs., 436 U.S. 658, 690-95 (1978). To state a claim under 42 U.S.C. § 1983, a 17 plaintiff must show (1) the defendant committed the alleged conduct while acting under color of 18 state law; and (2) the plaintiff was deprived of a constitutional right as a result of the defendant’s 19 conduct. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 20 To state a procedural due process claim, a plaintiff must allege: (1) a deprivation of a 21 constitutionally protected liberty or property interest, and (2) a denial of adequate procedural 22 protections. Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003); see Bd. of Regents v. Roth, 23 408 U.S. 564, 569-70 (1972). To state a substantive due process claim, a plaintiff must allege “a 24 state actor deprived [him] of a constitutionally protected life, liberty, or property interest” in such 25 a way that ‘shocks the conscience’ or ‘interferes with rights implicit in the concept of ordered 26 liberty.’” Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (quoting Rochin v. 27 California, 342 U.S. 165, 172 (1952)). 28 //// 5 Case 2:22-cv-01525-TLN-CKD Document 50 Filed 01/19/23 Page 6 of 8 1 In the interest of judicial economy, the court addresses the argument most dispositive of 2 plaintiffs’ complaint as to these defendants. The complaint fails to state a claim as to any of the 3 Heron defendants, Regency Park defendants, or SPD defendants. Plaintiffs do not allege a life, 4 liberty, or property interest of which they were deprived as necessary to state a procedural or 5 substantive due process claim. Plaintiffs also do not identify a process that was due but which 6 they were denied. Merely stating plaintiffs’ due process rights under the Fourteenth Amendment 7 were violated does not suffice to state a claim. See Twombly, 550 U.S. at 555. The complaint 8 must be dismissed because it fails to state a claim against any of the Heron, Regency Park, or 9 SPD defendants. C. Judge Ueda (ECF No. 25) 10 11 12 Judge Ueda asserts (1) the complaint fails to demonstrate the court has subject matter jurisdiction; and (2) the complaint fails to state a claim. (ECF No. 25.) 13 The complaint fails to make any specific factual allegations against Judge Ueda, and 14 therefore fails to state a claim. But even if plaintiffs had alleged facts against Judge Ueda in 15 relation to Judge Ueda having presided over a family law or other related matter, Judge Ueda is 16 immune from suit for such conduct. 17 Absolute judicial immunity is afforded to judges for acts performed that relate to the 18 judicial process. In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002). This immunity reflects a long- 19 standing principal for the proper administration of justice that a judicial officer, in exercising the 20 authority vested, shall be free to act without apprehension of personal consequences. Olsen v. 21 Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). “Judicial immunity applies ‘however 22 erroneous the act may have been, and however injurious in its consequences it may have proved 23 to the plaintiff.’” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (quoting Cleavinger v. 24 Saxner, 474 U.S. 193 (1985)). 25 Judge Ueda is entitled to absolute judicial immunity from damages for acts that relate to 26 the judicial process. The complaint also fails to state a claim against Judge Ueda because it does 27 not allege any facts specific to Judge Ueda. Plaintiffs’ claims against Judge Ueda must be 28 dismissed. 6 Case 2:22-cv-01525-TLN-CKD Document 50 Filed 01/19/23 Page 7 of 8 D. Enrika Jones (ECF No. 30) 1 2 Defendant Jones asserts plaintiff’s complaint is unintelligible and fails to apprise movant 3 of the claims or substance of any claims. (ECF No. 30.) In opposition to the motion, plaintiffs 4 merely set forth the general applicable law for a motion for a more definite statement. (See ECF 5 No. 36-1 at 3.) Plaintiffs’ opposition does not respond substantively to defendant Jones’ 6 arguments. Neither plaintiffs’ complaint nor their opposition to defendant Jones’ motion gives 7 any indication why they included defendant Jones in this case. 8 Plaintiffs’ complaint does not allege defendant Jones is a state actor such that any actions 9 she took were under color of state law as required for a claim brought 42 U.S.C. § 1983. The 10 complaint fails to state a claim against defendant Jones. Under the circumstances, where the 11 complaint contains no allegations against defendant Jones, sua sponte dismissal of plaintiffs’ 12 claims against defendant Jones is appropriate. See Omar v. Sea–Land Serv., Inc., 813 F.2d 986, 13 991 (9th Cir. 1987) (a trial court may dismiss a claim sua sponte under Rule 12(b)(6)); Silverton 14 v. Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (a district court may properly on its 15 own motion dismiss an action as to defendants who have not moved to dismiss). 16 IV. Conclusion 17 Leave to amend should be “freely given when justice so requires.” Fed. R. Civ. P. 15(a). 18 Nevertheless, a pro se litigant’s complaint may be dismissed without leave to amend when it is 19 absolutely clear that no amendment can cure the defect. Lucas v. Dep’t of Corrs., 66 F.3d 245, 20 248 (9th Cir. 1995). Here, it is clear the deficiencies in the complaint cannot be cured through amendment. 21 22 Plaintiffs and/or plaintiff Conerly have filed numerous other similar lawsuits in this court arising 23 from the same underlying family law dispute which have been dismissed as patently frivolous, for 24 lack of jurisdiction, and for failure to state a claim. See, e.g., Conerly, et al. v. Kaiser Permanente, 25 et al., No. 2:19-cv-2535-JAM-DB; Conerly v. Winn, et al., 2:20-cv-01833-JAM-AC; Conerly v. 26 Yap, et al., No. 2:21-cv-1132-TLN-CKD; Conerly v. Winn, et al., No. 2:21-cv-1076-TLN-JDP; 27 //// 28 //// 7 Case 2:22-cv-01525-TLN-CKD Document 50 Filed 01/19/23 Page 8 of 8 1 Conerly v. Superior Court, No. 2:20-cv-0362-KJM-KJN. 4 Under all the circumstances, it is clear 2 that granting leave to amend would be futile. RECOMMENDATIONS 3 4 For the reasons set forth above, it is HEREBY RECOMMENDED that: 5 1. Defendants’ motions to dismiss (ECF Nos. 12, 15, 25 and 31) be GRANTED; 6 2. On the court’s own motion, plaintiffs’ claims against defendant Jones be 7 DISMISSED; 8 3. 9 Defendant Jones’ motion for a more definite statement (ECF No.30) be DENIED as MOOT; 10 4. Plaintiffs’ complaint be dismissed without leave to amend; and 11 5. The Clerk of the Court be directed to close this case. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 14 days after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 17 shall be served on all parties and filed with the court within fourteen (14) days after service of the 18 objections. The parties are advised that failure to file objections within the specified time may 19 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 20 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 21 Dated: January 19, 2023 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 22 23 24 25 8.Conerly22cv1525.mtd.fr 26 27 28 4 “[A] court may take judicial notice of its own records in other cases[.]” United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 8

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