Carbonell v. San Diego, County of et al

Filing 40

ORDER Granting Motions to Dismiss [Doc. Nos. 16 - 19 ]. Signed by Judge Cathy Ann Bencivengo on 11/07/2017. (jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SONIA INES CARBONELL, Case No.: 3:17-CV-64-CAB-BLM Plaintiff, 12 13 v. 14 ORDER GRANTING MOTIONS TO DISMISS COUNTY OF SAN DIEGO et al., [Doc. Nos. 16-19] Defendant. 15 16 17 This matter is before the Court on a motion to dismiss filed by Defendants TERM 18 a/k/a Treatment and Evaluation Resource Management, Optum Health Holdings, LLC 19 (“Optum”), Radmila West, and LeAnn Skimming (collectively, the “TERM Defendants”), 20 and a motion to dismiss filed by Defendants the County of San Diego (the “County”), and 21 Sara Maltzman (together, the “County Defendants”).1 The motions have been fully briefed 22 and the Court deems them suitable for submission without oral argument. For the 23 following reasons, the motions are granted as to Plaintiff’s federal claims, and in the 24 absence of those claims, the Court declines to exercise supplemental jurisdiction over the 25 state law claims. 26 27 Both sets of defendants have also filed motions to strike which have become moot in light of the Court’s decision on the motions to dismiss. 1 28 1 3:17-CV-64-CAB-BLM Allegations in the First Amended Complaint (“FAC”) 1 I. 2 Plaintiff Sonia Ines Carbonell is a clinical and cultural psychologist who assisted 3 “indigent, not original Spanish-speaking parents and family in dealing with the juvenile 4 court and other legal systems in San Diego County.” [Doc. No. 10 at ¶ 6.] In 2008, 5 Carbonell contracted with Defendant Optum (formerly known as United Behavioral 6 Health) to provide these services. [Doc. No. 10-1.] The contract stated Carbonell was an 7 independent contractor [Doc. No. 18-2 at 8], and that Optum was acting as the 8 administrative services organization for the County of San Diego Behavioral Health 9 Services. [Doc. No. 10-1 at 3.] Pursuant to this contract with Optum, Carbonell would 10 provide services to children and adults in the Child Welfare Services (“CWS”) system or 11 the Juvenile Probation Services system referred to her through TERM [Id. at 18-20; Doc. 12 No. 10 at ¶ 7], which is a “mental health program developed under the direction of the 13 Board of Supervisors and operated by the Health and Human Services Agency (HHSA), 14 County of San Diego.” [Doc. No. 10 at ¶ 1; Doc. No. 18-2 at 7.] 15 The FAC alleges that: 16 TERM, Optum (named Defendant doctors) and various County of San Diego agencies, including the [HHSA], [CWS], were engaged in a conspiracy to subvert psychologists retained and paid by state and federal funding to change their honest, legitimate opinions based on their training, experience, and credentials in order to a) punish families that would not believe false accusations of sexual abuse by a family member; b) provide a false cover for criminal acts also amounting to civil wrongs by County of San Diego employees, primarily social workers, but including criminally and civilly culpable foster family parents (not County of San Diego employees), every and all to the detriment of the families unfortunate to be devoured and damaged when in their clutches. 17 18 19 20 21 22 23 24 [Doc. No. 10 at ¶ 9.] 25 The thirty-seven page FAC frequently repeats these conclusions and asserts several 26 others, but it alleges few facts. In general, Carbonell appears to allege that Optum 27 terminated her contract and prohibited her from providing additional services to TERM 28 clients because of testimony that she provided in juvenile dependency hearings that 2 3:17-CV-64-CAB-BLM 1 Defendants did not like. The FAC, which Carbonell filed after her original complaint was 2 removed from state court based on federal question jurisdiction, asserts five state law 3 claims and three claims under federal law: (1) “Violation of 42 U.S.C. § 1983”; (2) 4 “Violation of Title VI of the Civil Rights Act of 1964”; and (3) “Violation of 42 U.S.C. § 5 1981 et seq.” 6 The TERM Defendants now move to dismiss all claims against each TERM 7 defendant for failure to state a claim. The County Defendants move to dismiss only the 8 three federal claims, while separately moving to strike the state law claims. 9 II. Legal Standards 10 The familiar standards apply here. To survive a motion to dismiss under Rule 11 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a 12 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 13 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, the Court 14 “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the 15 light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. 16 Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the other hand, the Court is “not bound to 17 accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 18 (quoting Twombly, 550 U.S. at 555). Nor is the Court “required to accept as true allegations 19 that contradict exhibits attached to the Complaint or . . . allegations that are merely 20 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v. 21 Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “In sum, for a complaint to survive 22 a motion to dismiss, the non-conclusory factual content, and reasonable inferences from 23 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss 24 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotation marks omitted). 25 III. 26 The FAC is confusing and conclusory, and because it focuses on alleged wrongdoing 27 within the San Diego County child welfare system to the detriment of the families involved 28 in that system, it is difficult to discern how Plaintiff was deprived of any rights provided Discussion 3 3:17-CV-64-CAB-BLM 1 by the Constitution or federal law or otherwise suffered an injury sufficient to give her 2 standing to assert a federal claim. Plaintiff’s opposition briefs, which consist almost 3 entirely of block quotes pasted from cases and from the FAC with no analysis or argument 4 specific to Plaintiff’s claims, shed little light on Plaintiff’s federal claims and why they 5 should survive dismissal. As best as the Court can discern, Plaintiff claims that she was 6 not retained as an independent contractor by Optum and has had been unable to perform 7 work for TERM clients based on her testimony at dependency hearings. That Plaintiff’s 8 contract was terminated and/or breached is insufficient without more to establish the 9 deprivation of a Constitutional or federal right as required to state a claim under 42 U.S.C. 10 § 1983, to assert a claim under Title VI of the Civil Rights Act, or to assert a claim under 11 42 U.S.C. § 1981. The Court declines to guess at possible factual allegations that would 12 support these claims. The lack of clarity and absence of fact allegations in the FAC alone 13 requires dismissal of these federal claims. Additional deficiencies specific to each claim 14 are discussed below. 15 A. 42 U.S.C. § 1983 16 The FAC repeatedly refers to violations of 42 U.S.C. § 1983. However, “Section 17 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for 18 vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 19 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). “The first inquiry in 20 any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right ‘secured by 21 the Constitution and laws.’” Baker, 443 U.S. at 140. Both motions to dismiss argue that 22 the FAC does not allege a deprivation of any such right.2 23 24 25 26 27 28 2 The TERM Defendants also argue that as private parties not acting under color of law, they cannot be held liable under section 1983. See Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (“While generally not applicable to private parties, a § 1983 action can lie against a private party when “he is a willful participant in joint action with the State or its agents.”) (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)); see also United States v. Price, 383 U.S. 787, 794 (1966) (“To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.”). However, because the Court agrees that the FAC does not allege 4 3:17-CV-64-CAB-BLM 1 The FAC alleges that this action is “brought under 42 U.S.C. § 1983 to recover 2 damages against defendants for violation of Plaintiff’s constitutional rights to engage in a 3 state regulated profession, right to be free of retaliation for refusal to break the law, 4 violation of her license, violation of the constitutional rights of those entrusted to her, 5 guaranteed by the 1st 4th 5th 9th and 14th Amendments to the United States Constitution.” 6 [Doc. No. 10 at ¶ 70.] In her opposition to the County Defendants’ motion, meanwhile, 7 Plaintiff argues that she is suing for civil rights violations committed against her. [Doc. 8 No. 23 at 5.] In support of this argument, Plaintiff cites to allegations in the FAC that 9 Defendants fired her in retaliation for testifying “under oath that Defendants in a civil 10 matter were in the wrong and had pressured her to lie.” [Doc. No. 10 at ¶ 14.; see also ¶¶ 11 28, 29.] 12 The FAC, however, does not allege facts that would support her conclusion that she 13 has been deprived of rights guaranteed by the Constitution or federal law.3 Moreover, she 14 must make allegations specific to each Defendant that would make that Defendant liable 15 under section 1983. Further, the FAC must allege which rights were allegedly violated. 16 Plaintiff lacks standing to assert a § 1983 claim based on violations of the rights of others. 17 See San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 479 (9th Cir. 1998) (“With 18 no alleged violation of their own rights and no standing to assert the rights of others, the 19 [plaintiffs] have no claim under § 1983.”); see also Kowalski v. Tesmer, 543 U.S. 125, 129 20 (2004) (“We have adhered to the rule that a party ‘generally must assert his own legal rights 21 and interests, and cannot rest his claim to relief on the legal rights or interests of third 22 parties.’”) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). 23 amendments to the Constitution like Plaintiff does in the FAC is not sufficient to state a 24 section 1983 claim, even if a state actor is involved. Merely listing 25 26 27 28 deprivation of a right secured by the Constitution or a law of the United States, the Court need not address whether the TERM Defendants can be held liable under section 1983. 3 Section 1983 does not provide a cause of action for violations of state law. Galen v. County of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). 5 3:17-CV-64-CAB-BLM 1 To the extent Plaintiff intends to allege that Defendants alleged retaliatory 2 termination of her independent contractor agreement deprived her of a right guaranteed to 3 her by the First Amendment, she must at least satisfy the requirements the Ninth Circuit 4 has articulated for First Amendment retaliation cases involving public employees: 5 9 (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. 10 Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (quoting Eng v. Cooley, 552 F.3d 11 1062, 1070 (9th Cir. 2009). Here, the FAC does not contain sufficient allegations to state 12 a plausible claim that her First Amendment rights were violated. To the contrary, the FAC 13 indicates that the alleged retaliation related to her “assessment and treatment of Child 14 Welfare clients,” her testimony as a fact and expert witness, her “refusal to alter her 15 professional opinions,” and her “involvement in legal [sic] and professionally protected 16 activities, testifying and providing mental health services for Latinos. . . .” [Doc. No. 10 17 at ¶¶ 3, 19, 29.] Based on these allegations, it appears that any speech in question here was 18 in the course of Plaintiff’s job duties, and not speech as a private citizen, meaning that her 19 claim does not satisfy the second requirement. Moreover, the FAC does not identify what 20 exactly Plaintiff said, but the above allegations imply that the matters on which Plaintiff 21 spoke were specific to particular cases within the dependency system, and were not matters 22 of public concern. Accordingly, the FAC does not allege facts stating a section 1983 claim 23 predicated on the deprivation of a First Amendment right. 6 7 8 24 Nor does the FAC allege facts that state a section 1983 claim based on the 25 deprivation of a Fourteenth Amendment right. Section 1983 “provides a cause of action 26 for the violation under color of law of property or liberty interests protected by the 27 Fourteenth Amendment.” Picht v. Peoria Unified Sch. Dist. No. 11 of Maricopa Cty., 641 28 F. Supp. 2d 888, 893 (D. Ariz. 2009); see also Guatay Christian Fellowship v. Cty. of San 6 3:17-CV-64-CAB-BLM 1 Diego, 670 F.3d 957, 983 (9th Cir. 2011) (“To obtain relief on § 1983 claims based upon 2 procedural due process, the plaintiff must establish the existence of (1) a liberty or property 3 interest protected by the Constitution; (2) a deprivation of the interest by the government; 4 and (3) lack of process.”) (internal quotation marks and brackets omitted). However, “the 5 mere fact of an independent contractor relationship with the state is insufficient, on its own, 6 to create a constitutionally protected property interest.” Blantz v. California Dept. of Corr. 7 & Rehab., 727 F.3d 917, 924 (9th Cir. 2013). The FAC contains no allegations other than 8 that Plaintiff had a contract that made her an independent contractor with Optum. This 9 allegation is not sufficient to create a constitutionally protected property interest in having 10 Defendants continue to refer her clients through TERM. Cf. Portman v. Cty. of Santa 11 Clara, 995 F.2d 898, 904 (9th Cir. 1993) (“[A] mere expectation that employment will 12 continue does not create a property interest.”). If Plaintiff chooses to amend her complaint 13 to assert a claim based on the deprivation of a property interest without due process, she 14 must allege facts that would support the existence of such a property interest in the 15 continued referral of clients through TERM. That Optum breached a contract with Plaintiff 16 is not sufficient, without more, to state a section 1983 claim. 17 The FAC also does not allege facts demonstrating that any Defendants deprived 18 Plaintiff of a constitutionally protected liberty interest. “A public employer can violate an 19 employee’s rights by terminating the employee if in so doing, the employer makes a charge 20 that might seriously damage the terminated employee’s standing and associations in his 21 community or imposes on a terminated employee a stigma or other disability that forecloses 22 his freedom to take advantage of other opportunities.” Blantz, 727 F.3d at 925 (quotation 23 marks, brackets, and citation omitted). However, “the liberty interests protected by the 24 Fourteenth Amendment are implicated only when the government’s stigmatizing 25 statements effectively exclude the employee completely from her chosen profession. 26 Stigmatizing statements that merely cause reduced economic returns and diminished 27 prestige, but not permanent exclusion from, or protracted interruption of, gainful 28 7 3:17-CV-64-CAB-BLM 1 employment within the trade or profession do not constitute a deprivation of liberty.” Id. 2 (internal quotation marks omitted). 3 Here, the FAC alleges injury to Plaintiff’s “reputation and potential capacity to 4 continue providing services to underserved populations with protective issues and Juvenile 5 Probation” and that Defendants recommended that “Plaintiff remain off the TERM network 6 and to [sic] be barred from working with child welfare services or child probation referral 7 regardless of funding source.” [Doc. No. 10 at ¶ 19 (emphasis in original).] Thus, 8 regardless of whether an independent contractor has the same liberty interests as an 9 employee,4 Plaintiff “has not alleged that she has been unable to find work as a 10 [psychologist], only that she has been unable to obtain work with [TERM or HHSA]. 11 Because [Plaintiff’s] liberty interest is in her profession as a [psychologist], not her 12 placement with a particular employer, this allegation is insufficient to trigger the due 13 process protections of the Fourteenth Amendment.” Blantz, 727 F.3d at 926. 14 The FAC also does not state a section 1983 claim based on the deprivation of a 15 Fourth Amendment right. The Fourth Amendment protects the “right of people to be 16 secure in their persons, houses, papers, and effects, against unreasonable searches and 17 seizures....” U.S. Const. amend. IV. “[A] person is protected by the Fourth Amendment 18 when he or she has ‘a subjective expectation of privacy and . . . the expectation [is] one 19 that society is prepared to recognize as reasonable.” Richards v. Cty. of Los Angeles, 775 20 F. Supp. 2d 1176, 1182 (C.D. Cal. 2011) (quoting Katz v. United States, 389 U.S. 347, 361 21 (1967) (Harlan, J., concurring)). Here, the FAC contains no allegations of any searches or 22 seizures by Defendants or any other facts that could be construed as a violation of 23 Plaintiff’s reasonable expectation of privacy. 24 Finally, Plaintiff is also unable to assert a section 1983 claim based on the due 25 process protections of the Fifth Amendment or on the Ninth Amendment. “[T]he Fifth 26 27 See Blantz, 727 F.3d at 923 (noting that the plaintiff’s status as an independent contractor was a “key distinction” from cases involving the property or liberty interests of public employees). 4 28 8 3:17-CV-64-CAB-BLM 1 Amendment’s due process clause only applies to the federal government.” Bingue v. 2 Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). The federal government is not a defendant 3 here. Meanwhile, the Ninth Amendment is “not a source of rights as such; it is simply a 4 rule about how to read the Constitution.” San Diego County Gun Rights Comm. v. Reno, 5 98 F.3d 1121, 1125 (9th Cir.1996) (quoting Laurence H. Tribe, American Constitutional 6 Law 776 n. 14 (2d ed. 1988)) (emphasis in original). Accordingly, a section 1983 claim 7 cannot be predicated on a violation of a Ninth Amendment right. Preskar v. United States, 8 248 F.R.D. 576, 586 (E.D. Cal. 2008) (recommending that section 1983 claims predicated 9 on a violation of the Ninth Amendment should fail because “[t]he Ninth Amendment does 10 not independently create a constitutional right for purposes of stating a claim”). 11 In sum, the absence of fact allegations supporting a claim that Plaintiff’s federal or 12 Constitutional rights were violated is fatal to Plaintiff’s claim under section 1983. 13 Accordingly, the motions to dismiss are granted as to the section 1983 claim. 14 B. Title VI of Civil Rights Act 15 Title VI provides that “[n]o person in the United States shall, on the ground of race, 16 color, or national origin, be excluded from participation in, be denied the benefits of, or be 17 subjected to discrimination under any program or activity receiving Federal financial 18 assistance.” 42 U.S.C. § 2000d. This “prohibition extends to discrimination in employment 19 by programs or activities that receive federal funding; however, covered entities can only 20 be sued for employment discrimination ‘where a primary objective of the Federal financial 21 assistance [to that program or activity] is to provide employment.’” Reynolds v. Sch. Dist. 22 No. 1, Denver, Colo., 69 F.3d 1523, 1531 (10th Cir. 1995) (quoting 42 U.S.C. § 2000d-3); 23 see also Temengil v. Trust Territory of Pac. Islands, 881 F.2d 647, 653 (9th Cir. 1989) 24 (affirming dismissal of Title VI claim based on alleged employment discrimination against 25 Micronesian government). 26 employment discrimination by institutions receiving federal funds unless (1) providing 27 employment is a primary objective of the federal aid, or (2) discrimination in employment 28 necessarily causes discrimination against the primary beneficiaries of the federal aid.” Thus, “Title VI does not provide a judicial remedy for 9 3:17-CV-64-CAB-BLM 1 Ahern v. Bd. of Educ. of City of Chicago, 133 F.3d 975, 978 (7th Cir. 1998) (quoting 2 Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87, 89 (4th Cir. 1978)). 3 Here, as discussed below in connection with the section 1981 claim, the FAC lacks 4 any factual allegations supporting any discrimination by Defendants. Moreover, even if 5 there were such allegations, the Title VI claim fails because there is no allegation that the 6 primary objective of whatever federal financial assistance was received by any of the 7 Defendants was to provide employment. Assuming that Plaintiff could allege and prove 8 facts that would support a claim that Defendants discriminated against her on account of 9 her Hispanic origin, Title VII regulates such discrimination. Consolidated Rail Corp. v. 10 Darrone, 465 U.S. 624, 632 n.13 (1984) (contrasting Title VI with Title IX and 11 Rehabilitation Act because, “[a]s the Court of Appeals observed, it was unnecessary to 12 extend Title VI more generally to ban employment discrimination, as Title VII 13 comprehensively regulates such discrimination”); see also Regents of Univ. of California 14 v. Bakke, 438 U.S. 265, 413 n.11 (1978) (Stevens, J, concurring in part and dissenting in 15 part) (noting that “the immediate object of Title VI was to prevent federal funding of 16 segregated facilities,” and that “Congress responded to the problem of employment 17 discrimination by enacting a provision that protects all races,” referring to Title VII). 18 Accordingly, the FAC does not state a claim under Title VI. 19 C. 42 U.S.C. § 1981 20 Section 1981 “declares that all persons ‘shall have the same right . . . to make and 21 enforce contracts . . . as is enjoyed by white citizens.’” Univ. of Texas Sw. Med. Ctr. v. 22 Nassar, 133 S. Ct. 2517, 2529 (2013) (quoting CBOCS W., Inc. v. Humphries, 553 U.S. 23 442, 445 (2008)). This statute “encompasses a complaint of retaliation against a person 24 who has complained about a violation of another person’s contract-related ‘right.’” 25 Humphries, 553 U.S. at 445. Here, the FAC appears to claim both that Defendants 26 discriminated against Plaintiff directly on account of her Hispanic origin, and also that they 27 retaliated against her. Yet, the FAC does not contain any factual allegations plausibly 28 asserting these claims. 10 3:17-CV-64-CAB-BLM 1 As for the claim that Defendants discriminated against Plaintiff on account of her 2 Hispanic origin, there are no facts alleged that would plausibly suggest that Defendants 3 took any actions because of Plaintiff’s Hispanic origin. Nothing in the FAC suggests that 4 Defendants treated Plaintiff differently because she is Hispanic or that her Hispanic origin 5 had anything to do with the termination of her contract. To the contrary, the FAC alleges 6 that Defendants terminated Plaintiff because of actions she took in connection with her 7 work, including testimony Plaintiff provided in dependency hearings. Accordingly, the 8 FAC does not state a section 1981 claim based on discrimination against Plaintiff. 9 Likewise, the FAC does not allege any facts that suggest a plausible section 1981 10 retaliation claim. As mentioned above, in Humphries, the Supreme Court held that section 11 1981 allows for retaliation claims based on complaints “about a violation of another 12 person’s contract-related ‘right.’” 553 U.S. at 445 (emphasis added). The FAC alleges 13 that Plaintiff “repeatedly objected to rampant discrimination against her and her clientele 14 group [indigenous Indian groups (Mixtec) from Mexico] to the Defendants. . . .” [Doc. 15 No. 10 at ¶ 90.] Yet, the FAC does not contain any factual allegations concerning what 16 Plaintiff said and to whom, or, as stated above, of any facts that suggest a plausible claim 17 of discrimination against either Plaintiff or her clients. Further, the FAC does not include 18 any allegations about how any discrimination against Plaintiff’s clients concerned their 19 “contract-related” or section 1981 rights. See generally Nassar, 133 S. Ct. at 2530 (noting 20 that “Congress’ enactment of a broadly phrased antidiscrimination statute may signal a 21 concomitant intent to ban retaliation against individuals who oppose that discrimination, 22 even where the statute does not refer to retaliation in so many words”) (emphasis added); 23 see also Zastrow v. Houston Auto Imports Greenway Ltd., 789 F.3d 553, 562 (5th Cir. 24 2015) (“Section 1981 also prohibits retaliation against an individual who ‘has tried to help 25 a different individual, suffering direct racial discrimination, secure his § 1981 rights.’”) 26 (quoting Humphries, 553 U.S. at 452) (emphasis added). Rather, at most the FAC alleges 27 that Plaintiff’s complaints that resulted in retaliation concerned the familial rights of 28 11 3:17-CV-64-CAB-BLM 1 Plaintiff’s clients. Accordingly, the FAC does not state a claim for either discrimination 2 or retaliation under section 1981. 3 D. Monell Claims Against Entity Defendants 4 Following Monell v. Department of Social Services, 436 U.S. 658 (1978), “it is well- 5 settled that in claims brought under 42 U.S.C. § 1983, municipalities are liable only for 6 constitutional violations resulting from an official ‘policy or custom.’” Fed’n of African 7 Am. Contractors v. City of Oakland, 96 F.3d 1204, 1216 (9th Cir. 1996) (quoting Monell 8 v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)). This “policy or 9 custom” requirement also applies to claims under 42 U.S.C. § 1981. Id. at 1215. “In sum, 10 in Monell the Court held that ‘a municipality cannot be held liable’ solely for the acts of 11 others, e.g., ‘solely because it employs a tortfeasor.’” Los Angeles Cty., Cal. v. Humphries, 12 562 U.S. 29, 36 (2010) (quoting Monell, 436 U.S. at 691). Put differently, “a municipality 13 sued under § 1983 is not subject to vicarious liability for the acts of its agents.” Duvall v. 14 Cty. of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001). 15 Here, the FAC alleges that TERM has “an official written policy, called ‘quality 16 control,’ that California licensed psychologists must allow TERM . . . to review all 17 psychological reports so that it could compel all licensed therapists to change them, delete 18 them, or alter opinions if County of San Diego social workers demanded it to be done, in 19 order to knowingly mislead juvenile court judges . . . .” [Doc. No. 10 at ¶ 10.] The FAC 20 does not, however, allege how this policy—allowing TERM to review psychologists’ 21 reports and compel changes in those reports—resulted in a violation of Plaintiff’s 22 constitutional rights, as required for a § 1983 claim, or resulted in discrimination against 23 Plaintiff on account of her Hispanic origin, as required for her § 1981 claim. The FAC 24 characterizes this policy as impinging only “familial rights” and the rights of foster parents 25 in criminal and civil proceedings [Id. at ¶ 10], and elsewhere asserts that she is asserting 26 her § 1983 claim for “violation of the constitutional rights of those entrusted to her.” [Id. 27 at ¶ 70.] As a result, the FAC fails to state section 1981 and 1983 claims against TERM, 28 Optum, and the County for this reason as well. 12 3:17-CV-64-CAB-BLM 1 IV. 2 “A district court ‘may decline to exercise supplemental jurisdiction’ if it ‘has 3 dismissed all claims over which it has original jurisdiction.’” Sanford v. MemberWorks, 4 Inc., 625 F.3d 550, 561 (9th Cir. 2010)) (quoting 28 U.S.C. § 1367(c)(3)). “In the usual 5 case in which all federal-law claims are eliminated before trial, the balance of factors to be 6 considered under the pendent jurisdiction doctrine—judicial economy, convenience, 7 fairness, and comity—will point toward declining to exercise jurisdiction over the 8 remaining state-law claims.” Id. (internal brackets and citation omitted). Here, the 9 remaining claims in the FAC are based on California state law, and “primary responsibility 10 for developing and applying state law rests with the state courts.” Neal v. E-Trade Bank, 11 No. CIV. S-11-0954 FCD, 2011 WL 3813158, at *4 (E.D. Cal. Aug. 26, 2011). 12 Accordingly, having dismissed the federal claims, and in consideration of the early stage 13 of these proceedings, the Court declines to exercise supplemental jurisdiction over the 14 remaining state law claims. 15 11CV0092-LAB WVG, 2012 WL 896206, at *2 (S.D. Cal. Mar. 14, 2012) (“There is no 16 alleged basis for diversity jurisdiction in this case, and the Court is well within its discretion 17 to dismiss a case for lack of jurisdiction when all federal claims have been dismissed and 18 only state law claims over which it has supplemental jurisdiction remain.”); Keen v. Am. 19 Home Mortg. Servicing, Inc., No. CIV. S-09-1026 FCD/KJM, 2010 WL 624306, at *1 20 (E.D. Cal. Feb. 18, 2010) (“[W]hen federal claims are eliminated before trial, district courts 21 should usually decline to exercise supplemental jurisdiction.”). State Law Claims See generally Banayan v. OneWest Bank F.S.B., No. 22 V. 23 In light of the foregoing, it is hereby ORDERED as follows: 24 1. The County Defendants’ motion to dismiss is GRANTED; 25 2. The TERM Defendants’ motion to dismiss is GRANTED as to claims five, 26 Disposition six, and seven; 27 3. Claims five, six, and seven are DISMISSED WITHOUT PREJUDICE; 28 4. The parties’ motions to strike are DENIED AS MOOT; 13 3:17-CV-64-CAB-BLM 1 5. 2 3 Having dismissed the only federal claims, the Court declines to exercise supplemental jurisdiction over the remaining state law claims; 6. If Plaintiff intends to file an amended complaint that re-asserts some or all of 4 the dismissed federal claims and attempts to remedy the defects articulated 5 herein, Plaintiff shall file a notice with the Court stating that intention on or 6 before November 15, 2017, and shall file the amended complaint itself on or 7 before November 28, 2017; and 8 9 10 11 12 7. If Plaintiff does not file a notice with the Court by November 15, 2017 stating her intention to file an amended complaint that re-asserts the dismissed federal claims, the Court will remand this case to state court. It is SO ORDERED. Dated: November 7, 2017 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 3:17-CV-64-CAB-BLM

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