Gingras v. Sacramento County Department of Child Support Services et al

Filing 27

ORDER by Judge Yvonne Gonzalez Rogers granting in part 4 Motion to Dismiss; granting in part 7 Motion to Dismiss for Lack of Jurisdiction; Plaintiff to filed amended complaint by 2/28/2013; denying 19 Ex Parte Motion for TRO. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 1/28/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 JOHN P GINGRAS, 8 Plaintiff, 9 10 United States District Court Northern District of California 11 Case No.: 12-CV-05509 YGR ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS WITH LEAVE TO AMEND vs. COUNTY OF SACRAMENTO, CALIFORNIA STATE TEACHERS RETIREMENT SYSTEM, and METROVIEW CONSULTING, 12 Defendant(s). 13 Plaintiff alleges that Defendant County of Sacramento1 over-garnished $48,000.00 in past- 14 15 due child support obligations from an account Plaintiff has with Defendant California State 16 Teachers Retirement System (“CalSTRS”), and that the County of Sacramento hired a private 17 investigation firm, Defendant Metroview Consulting, to follow Plaintiff. Plaintiff brings seven 18 claims: (1) Fraudulent Intentional Misuse of Process; (2) Silent Malicious Intentional Fraud; (3) 19 Conversion; (4) Fraudulent Misrepresentation; (5) Violations of Due Process Rights as Guaranteed 20 by the Bill of Rights; (6) Intentional and Negligent Emotional Distress; and (7) Invasion of Privacy. Both the County of Sacramento and CalSTRS have filed Motions to Dismiss. Plaintiff 21 22 separately has moved for a temporary restraining order to prevent Metroview Consulting’s private 23 investigators from physically and electronically stalking him. Having carefully considered the 24 papers submitted and the pleadings in this action, the Court hereby GRANTS IN PART both Motions 25 to Dismiss WITH LEAVE TO AMEND consistent with this Order, and DENIES the Motion for an Ex 26 Parte Temporary Restraining Order. 27 28 1 The County of Sacramento has been sued as Sacramento County Department of Child Support Services. 1 I. DISCUS SSION The Cou unty of Sacra amento moves to dismiss on the grou s unds that: (1) Plaintiff f fails to set 3 forth sufficient factual alleg h f gations to sup pport any of his claims; (2) his state law claims for fraud, f 4 conv version, and negligent an intentiona infliction of emotiona distress are common la claims d nd al al e aw 5 that cannot be brought again a public entity, see C Gov. Cod § 815; (3) his fraud a nst e Cal. de and 6 conv version claim are barred by Cal. Go Code § 8 ms d ov. 818.8; (4) he failed to comply with th e he 7 Gov vernment Cla aims Act, Ca Gov. Cod § 945.4; a (5) this a al. de and action was fi in the w iled wrong venue 8 beca ause it shoul have been filed in the Eastern Dis trict of Calif ld n fornia. CalS STRS moves to dismiss s 9 on th grounds that: (1) clai against a state agenc are barred by the Elev he t ims cy d venth Amen ndment; (2) a 10 state agency is not a “person subject to suit under 4 U.S.C. § 1983; (3) Pl e n n” o 42 laintiff has fa failed to state e 11 United States District Court Northern District of California 2 a cla against CalSTRS up which re aim C pon elief may be granted; (4) he failed to present a cl ) o laim to 12 CalS STRS under the Governm Claims Act, Cal. G ment s Gov. Code §§ 910, 945.4 & 950.2; an (5) § 4 nd 13 serv of the Complaint on CalSTRS was inadequa vice n w ate. 14 The Cou GRANTS both Motion to Dismiss WITH LEA TO AME for failu to state a urt b ns s AVE END ure 15 claim upon whic relief can be granted. The Court DENIES both Motions to Dismiss in m ch n h o nsofar as they y 16 seek dismissal for improper venue or im k f mproper serv vice. The Co DENIES Plaintiff’s M ourt Motion for 17 an Ex Parte Tem E mporary Res straining Ord because P der Plaintiff has not set forth sufficient g h grounds to 18 show that he is entitled to em w e mergency re elief without providing a actual notice to the partie he seeks es 19 to en njoin. 20 All of th pleading deficiencies identified in the Defenda he d i n ns it. ants’ motion have meri Plaintiff 21 conc cedes that he has failed to allege com e t mpliance wit the admin th nistrative cla processin aim ng 22 requ uirement and indicates th he will be amending his complaint to allege s d hat such compli iance. 23 How wever, Plaint will need to address all of the ple tiff d eading defic ciencies that the Defenda have ants 24 iden ntified, as set forth herein t n: 25 (1) Eleventh Am E mendment Immunity. I 26 Plaintiff needs to allege specific facts that sh f how the Elev venth Amend dment does not bar his 27 claim against CalSTRS. Th Eleventh Amendmen provides sovereign im ms C he nt mmunity for s states and 28 bars lawsuits in federal cour against sta or their a s rt ates agencies unl the state has specific less e cally waived d 2 1 its sovereign immunity. Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th 2 Cir. 1991). Congress can abrogate or limit a state’s Eleventh Amendment immunity under § 5 of 3 the Fourteenth Amendment, but such abrogation requires an “unequivocal expression” of 4 Congressional intent, and is a limited power. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 5 (2000). The Eleventh Amendment does not bar lawsuits against counties. Greater L.A. Council on 6 Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987); see also Monell v. Dep’t of Soc. 7 Servs., 436 U.S. 658, 690 n.54 (1978). 8 (2) Federal Constitutional Claims. 9 Section 1983 of Title 42 of the United States Code, 42 U.S.C. § 1983, (“Section 1983”) can provide a cause of action against persons2 acting under color of state law who have violated the 11 United States District Court Northern District of California 10 United States Constitution. See Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). In 12 general, governmental entities such as the County of Sacramento may not be held responsible for 13 the acts of their employees. See Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997). 14 Because municipal liability must be based on the actions of the municipality and not the actions of 15 its employees, to impose liability on the County of Sacramento under Section 1983, Plaintiff must 16 demonstrate that the constitutional deprivation was the product of a policy, practice, or custom of 17 the local governmental entity. Id. In order to state a Section 1983 cause of action against a local governmental entity such as 18 19 the County of Sacramento, Plaintiff will need to identify: 20 a) A specific federal constitutional right that was violated; 21 b) A specific custom, policy or practice of the entity that has deprived Plaintiff of that constitutional right; 22 c) 23 An affirmative causal link between the custom, policy or practice and the alleged constitutional violation; and 24 25 26 27 28 2 A state is not a “person” for purposes of Section 1983. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997). CalSTRS asserts that it is an agency of the State of California, which for purposes of the Section 1983 analysis would make CalSTRS an arm of the State of California, and Section 1983 claims against CalSTRS would be barred by the Eleventh Amendment. See Howlett v. Rose, 496 U.S. 356, 365 (1990). 3 d) d 1 Suffic cient facts to allow the C o Court to draw the reason w nable inferen that the nce 2 defendan can be liab for the misconduct a nt ble m alleged. See Bell Atlantic Corp. v. T Twombly, 550 0 3 U.S. 544 (2007). 4 4 (3) 5 Section 1983 does not provide a cause of act tion for violations of sta law. See Galen v. ate State Law Claims. S C 6 Cou of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). In ad unty A ddition, the Eleventh Am mendment 7 bars lawsuits in federal cour against sta or their a s rt ates agencies on the basis of violations o state law, f of 8 unle the state has specifica waived its sovereign immunity. See Pennhu State Sc & Hosp. ess ally n urst ch. 9 v. Halderman, 465 U.S. 89, 124-25 (198 H 4 84). In orde to sue a go er overnmental entity for vi iolations of state law (for ex e xample, here Plaintiff’s state law cau e, uses of actio include C on Conversion an nd 11 United States District Court Northern District of California 10 Frau udulent Misr representatio Plaintiff must: on), f a) a 12 Identi the speci statute(s) if any, tha waives tha governmen entity’s ify ific ), at at ntal immunit from suit; ty 13 b) b 14 Provi sufficient factual con ide ntent that allo the Cou to draw th ows urt he 15 reasonab inference that the def ble e fendant can b liable for the miscond alleged. See be r duct 16 Twombly supra, 550 U.S. 544; and y, 0 a c) c 17 requirem ments of the Government Claims Act if such fac exist. G t t, cts 18 19 Alleg facts that show Plainti complied with the ad ge s iff d dministrative II. CONCL LUSION 20 For the reasons set forth above, the Court Or r fo t rders as follo ows: 21 (1) Defe endant Count of Sacram ty mento’s Moti to Dismi is GRANT IN PART; ion iss TED T 22 (2) Defe endant CalST TRS’ Motion to Dismiss is GRANTED IN PART; n D 23 (3) Pursu to Fede Rule of Civil Proced uant eral C dure 12(b)(6) Plaintiff’s Complaint i ), is 24 DISM MISSED for failure to sta a claim up f ate pon which re elief can be granted WIT LEAVE TO AMEND TH 25 to th extent the Complaint can be amen he e nded consist with this Order; tent s 26 (4) Plain must file his amende complain by no later than Febru ntiff e ed nt r uary 28, 201 13; 27 (5) Failu to file an amended co ure omplaint by such date w result in d will dismissal of this lawsuit f 28 for failure to pro f osecute; 4 1 (6) Plaintiff’s Motion for an Ex Parte Temporary Restraining Order is DENIED. 2 This Order Terminates Docket Numbers 4, 7 & 19. 3 IT IS SO ORDERED. 4 5 6 Date: January 28, 2013 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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