Nemcik v. San Mateo Police Department et al

Filing 10

ORDER DISMISSING CASE. Signed by Judge James Donato on 7/27/2016. (jdlc2S, COURT STAFF) (Filed on 7/27/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TANYA NEMCIK,
Plaintiff,

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SAN MATEO POLICE DEPARTMENT, et
al.,

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United States District Court
Northern District of California

ORDER DISMISSING CASE

v.

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Case No. 16-cv-02777-JD

Defendants.

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Pro se plaintiff Tanya Nemcik has filed a complaint against 16 individuals and the San

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Mateo Police Department alleging federal claims under 18 U.S.C. § 1983, 18 U.S.C. § 242, and

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the RICO Act, 18 U.S.C. §§ 1961 et seq., and state law claims for emotional distress, and medical

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and professional malpractice. The individual defendants include a California state court judge and

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family court personnel. The Court sua sponte dismisses the complaint for failure to state a claim,

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with leave to amend. Shoop v. Deutsche Bank Nat’l Trust Co., 465 Fed. Appx. 646 at *1 (9th Cir.

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2012).

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A pro se complaint must be liberally construed and given the benefit of doubt, but the

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plaintiff must still allege sufficient facts to state a plausible claim. Hebbe v. Pliler, 627 F.3d 338,

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341-42 (9th Cir. 2010). The complaint here fails that requirement with respect to the federal

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claims. As an initial matter, the gravamen appears to be a challenge to a California state court

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decree that awarded custody of plaintiffs’ children to her former husband. This Court has no

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authority to review the judgment of a state court, D.C. Ct. App. v. Feldman, 460 U.S. 462, 482

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(1983), and in any event, state judges and court personnel involved in custody determinations are

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immune from Section 1983 liability, Meyers v. Contra Costa County, 812 F.2d 1154, 1158-59 (9th

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Cir. 1987).

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The remaining allegations do not add up to any kind of a plausible claim under federal law.

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Nemcik alleges, for example, that a San Mateo police investigator wrote a false report in 2009,

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Dkt. No. 1 at ¶ 33, but the complaint provides no factual allegations at all in support of that

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statement and it appears to be time-barred under Section 1983. Jones v. Blanas, 393 F.3d 918,

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927 (9th Cir. 2004). The complaint refers to a conspiracy to deprive Nemcik of due process but

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again provides no facts at all in support of the contention and moreover fails to identify who the

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conspirators were and whether they were acting under color of state law for Section 1983

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purposes. Nemcik’s citation to 18 U.S.C. § 242 is inapposite because that is a criminal statute

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with no private right of action. And the complaint comes nowhere close to alleging facts that

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United States District Court
Northern District of California

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would support a federal racketeering claim.
Consequently, the complaint is dismissed for failing to state a plausible federal claim even

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under a lessened review for a pro se plaintiff. The Court declines to consider the supplemental

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state law claims in the absence of a cognizable federal claim. Nemcik may file an amended

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complaint no later than August 8, 2016.

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If needed, Nemcik may seek assistance through the Legal Help Center, a free service

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offered by the Justice & Diversity Center of the Bar Association of San Francisco to provide

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information and limited-scope legal assistance to pro se litigants in civil cases. The Legal Help

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Center is located in the United States Courthouse, 450 Golden Gate Avenue, 15th Floor, Room

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2796, San Francisco, CA 94102. Appointments may be made by dialing 415-782-8982, and

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additional information is available at http://www.cand.uscourts.gov/helpcentersf.

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IT IS SO ORDERED.
Dated: July 27, 2016

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JAMES DONATO
United States District Judge

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