Hettinga v. Scott et al

Filing 7

Order that case be reassigned to a district judge, Order granting 2 application to proceed in forma pauperis, Report and recommendation signed by Magistrate Judge Howard R. Lloyd on 8/4/2017. Objections due by 8/21/2017. (hrllc3S, COURT STAFF) (Filed on 8/4/2017)

E-filed 8/4/2017

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

WYLMINA E HETTINGA,
Plaintiff,

8
9
10

United States District Court
Northern District of California

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER THAT CASE BE REASSIGNED
TO A DISTRICT JUDGE
ORDER GRANTING APPLICATION
TO PROCEED IN FORMA PAUPERIS

v.

REPORT AND RECOMMENDATION

11
12

Case No.17-cv-04387-HRL

STUART J. SCOTT, et al.,

Re: Dkt. Nos. 1, 2

Defendants.
Plaintiff Wylmina Hettinga (“Hettinga”) sues Judge Stuart J. Scott, Walter Hammon,
Timothy Loumena, and Peter Park, alleging violations of her constitutional rights. Dkt. No. 1.
Hettinga has also applied to proceed in forma pauperis. Dkt. No. 2.
The court grants Hettinga’s application to proceed in forma pauperis. As no party has yet
consented to or declined magistrate judge jurisdiction, the undersigned orders that this case be
reassigned to a district judge. For the reasons explained below, the undersigned recommends that
the newly assigned district judge dismiss this case for lack of subject-matter jurisdiction.
BACKGROUND
Hettinga alleges that she is the biological mother of a child with severe mental health
problems that are not being treated. Dkt. No 1. She and Defendant Loumena appear to be
involved in a custody dispute before Judge Scott in which Defendant Hammon represents the
child. Hettinga asserts that Judge Scott, “without any notice or due process,” canceled her
visitation rights and vacated the dates previously set for a custody trial. Id. She accuses
Defendants Hammon, Loumena, and Scott of (1) colluding to deny her constitutional right to

1

companionship, (2) presenting false evidence to the superior court (Hammon and Loumena), and

2

(3) inventing facts (Judge Scott). Id. The remaining Defendant, Peter Park, an employee at

3

Hettinga’s child’s school, allegedly intentionally misinterpreted court orders to keep Hettinga

4

from exercising her visitation rights. Hettinga seeks damages of $1,000 per day for each day that

5

she was denied her rights from each Defendant except Judge Scott. Id.

6

Hettinga attaches several documents to her complaint. These attachments include (1) a

7

“Seized Asset Claim Form” claiming her child as a seized asset; (2) a “Findings and Order After

8

Hearing” from the Santa Clara County Superior Court, in which Judge Scott orders that “[t]here

9

shall be no visitation schedule at this time,” vacates the trial dates, and continues the matter for a
review hearing in September 2017; and (3) a notice by Plaintiff that “her property, her son, has

11
United States District Court
Northern District of California

10

been seized in violation of her 14th Amendment due process rights.” Dkt. No. 1. Plaintiff asserts

12

that federal jurisdiction is premised on the presence of a federal question, and states: “18 U.S.C.

13

Section 983 proceedings were done unlawfully, without notice and in complete disregard for

14

federally protected guaranteed constitutional rights for Plaintiff and [her child].” Id.

15
16

DISCUSSION
A court may authorize the commencement of a civil action in forma pauperis (“IFP”) if the

17

court is satisfied that the applicant cannot pay the requisite filing fees. 28 U.S.C § 1915(a)(1). In

18

evaluating such an application, the court should “grant[] or deny[] IFP status based on the

19

plaintiff’s financial resources alone and then independently determine[] whether to dismiss the

20

complaint on the grounds that it is frivolous.” Franklin v. Murphy, 745 F.2d 1221, 1226-27 n.5

21

(9th Cir. 1984). A court may dismiss a case filed without the payment of the filing fee whenever it

22

determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief

23

may be granted; or (iii) seeks monetary relief against a defendant who is immune from such

24

relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Additionally, “federal courts have an independent

25

obligation to ensure that they do not exceed the scope of their jurisdiction.” Henderson ex rel.

26

Henderson v. Shinseki, 562 U.S. 428, 434 (2011). Hettinga qualifies financially for IFP status,

27

and the court therefore grants her IFP application. Even so, the undersigned recommends that the

28

court dismiss the complaint for lack of subject-matter jurisdiction.
2

1

Hettinga’s action amounts to a de facto appeal of a state court child custody order. Her

2

constitutional claims are inextricably intertwined with the decisions of the state court. Doe &

3

Associates Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001) (“Where the district

4

court must hold that the state court was wrong in order to find in favor of the plaintiff, the issues

5

presented to both courts are inextricably intertwined.”). As a result, the court lacks subject-matter

6

jurisdiction pursuant to the Rooker-Feldman doctrine. Watkins v. Proulx, 235 F. App’x 678, 679

7

(9th Cir. 2007); Doe & Associates, 252 F.3d at 1030 (Rooker-Feldman doctrine applies to

8

interlocutory state court orders).

9

To the extent that Hettinga’s claims are not barred by the Rooker-Feldman doctrine, there
are other problems with her complaint. As Hettinga sues Defendants Hammon, Loumena, and

11
United States District Court
Northern District of California

10

Park for damages related to a violation of her constitutional rights, the undersigned construes her

12

claim as arising under 42 U.S.C. Section 1983, which permits such actions. To state a claim under

13

Section 1983, a plaintiff must allege the violation of a constitutional or federal statutory right and

14

“must show that the alleged deprivation was committed by a person acting under color of state

15

law.” Naffe v. Frey, 789 F.3d 1030, 1035-36 (9th Cir. 2015) (quoting West v. Atkins, 487 U.S. 42,

16

48 (1988)). “An individual acts under color of state law when he or she exercises power

17

‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with

18

the authority of state law.’” Id., at 1036 (quoting U.S. v. Classic, 313 U.S. 299, 326 (1941)).

19

Hettinga has not plead any facts suggesting that Hammon and Loumena acted under color of state

20

law, and so the undersigned recommends dismissing the claims against these Defendants.

21

The undersigned further recommends dismissing the claims as against Park, as Hettinga

22

has not alleged facts to state a claim upon which relief may be granted against Park that is

23

plausible on its face. She alleges that Park intentionally misinterpreted Superior Court orders to

24

deny her of her visitation rights, but she does not state which court order(s) Park misinterpreted or

25

how he misinterpreted it/them. Additionally, to the extent that Hettinga’s claims against Park are

26

actually challenges to the Superior Court’s orders, such claims are barred by the Rooker-Feldman

27

doctrine.

28

As for Judge Scott, Hettinga does not specify what relief she seeks against him. As
3

1

Hettinga states that she does not seek damages from Judge Scott, the undersigned assumes that she

2

seeks injunctive relief. Such relief, however, is not available from judicial officers for acts or

3

omissions taken in their judicial capacities. 42 U.S.C. § 1983.

4

Finally, the undersigned concludes that Hettinga’s claims related to 18 U.S.C. Section 983

5

are frivolous, as the undersigned is not aware of any authority suggesting that a child may be an

6

asset subject to a civil forfeiture proceeding.
CONCLUSION

7
8

The undersigned grants Hettinga’s application to proceed in forma pauperis and orders that
this case be reassigned to a district judge. For the reasons explained above, the undersigned

10

recommends that the district judge dismiss the complaint. As amendment would not cure the

11
United States District Court
Northern District of California

9

Rooker-Feldman problems, the undersigned recommends that the dismissal be without leave to

12

amend. Any party may serve and file objections to this Report and Recommendation within

13

fourteen days after being served. Fed. R. Civ. P. 72.

14

SO ORDERED AND RECOMMENDED.

15

Dated: 8/4/2017

16
17
HOWARD R. LLOYD
United States Magistrate Judge

18
19
20
21
22
23
24
25
26
27
28
4