Hansen et al v. County of San Diego et al

Filing 45

ORDER dismissing case without prejudice. Plaintiff may file an amended complaint within 30 days of this order. Defendants motions to dismiss and motion to strike (Doc. Nos. 10 , 25 ) are denied as moot. Signed by Judge John A. Houston on 12/06/2018. (All non-registered users served via U.S. Mail Service)(jpp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

RICHARD MARK HANSEN; S.H., a
minor,

15
16
17
18

ORDER DISMISSING CASE
WITHOUT PREJUDICE

Plaintiffs,

13
14

Case No. 18cv0689-JAH (MDD)

v.
COUNTY OF SAN DIEGO; SAN
DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY; SAN
DIEGO POLICE DEPARTMENT; and
DOES 1-100,
Defendants.

19
20

INTRODUCTION

21

Pending before the Court are Defendant San Diego Police Department (“SDPD”)

22

and Defendant County of San Diego’s (“County of San Diego”) motions to dismiss

23

pursuant to Rules 12(b)(6) of the Federal Rules of Civil Procedure. Doc. Nos. 10, 25.

24

SDPD also filed a motion to strike pursuant to Rule 12(f)(2) of the Federal Rules of Civil

25

Procedure. Doc. No. 10. The motions are fully briefed. Plaintiff Richard Mark Hansen

26

(“Plaintiff”) filed a response in opposition to the County of San Diego’s motion to dismiss.

27

Doc. No. 38. After careful review of the pleadings, and for the reasons set forth below, the

28

Court DISMISSES the case without prejudice.
1
18cv0689-JAH (MDD)

1

BACKGROUND

2

On April 6, 2018, Plaintiff filed his complaint against Defendants. Doc. No. 1.

3

Plaintiff is appearing pro se. Id. In his complaint, Plaintiff lists S.H., his daughter and

4

minor, as a co-plaintiff and also as “a Minor on behalf of Hansen.” Id. at pg. 1. On May

5

3, 2018, SDPD filed its motion to dismiss and motion to strike portions of the complaint.

6

Doc. No. 10. The County of San Diego filed its motion to dismiss on June 22, 2018. Doc.

7

No. 25. Plaintiff filed a response in opposition to The County of San Diego’s motion on

8

August 7, 2018. Doc. No. 38. SDPD’s motions remain unopposed.

9

DISCUSSION

10

A minor lacks capacity to bring suit unless accompanied by a representative or court-

11

appointed guardian ad litem. Fed.R.Civ.P. 17(c). A minor also cannot bring suit on behalf

12

of another. Id. Based upon the filings, the Court infers that S.H. does not have a

13

representative or court-appointed guardian ad litem. The Ninth Circuit has ruled that “a

14

parent or guardian cannot bring an action on behalf of a minor child without retaining a

15

lawyer.” Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997). Here, Plaintiff

16

is pro se and not represented by counsel. Plaintiff cannot bring this action on behalf of

17

S.H., and S.H. cannot bring this action “on behalf of [Plaintiff].” Fed.R.Civ.P. 17(c).
In addition, based on the manner in which Plaintiff’s complaint is pled, it is difficult

18
19

to determine which claims Plaintiff Hansen is bringing against Defendants.

20

complaint, Plaintiff Hansen begins each cause of action by asserting: “Plaintiffs re-allege

21

and incorporate by reference all preceding paragraphs as though fully set forth herein.”

22

Doc. No. 1 at pgs. 11-21. Plaintiff Hansen also indicates that both he and S.H. seek the

23

same prayer for relief. Id. at pg. 22. Based upon this review, the Court finds that Plaintiff

24

Hansen’s claims cannot be adequately distinguished from S.H.’s grievances.

25

//

26

//

27

//

28

//

In the

2
18cv0689-JAH (MDD)

1

CONCLUSION

2

Based on the foregoing reasons, the Court DISMISSES the complaint without

3

prejudice. To the extent that Plaintiff is able to cure the noted deficiencies, Plaintiff may

4

file an amended complaint within 30 days of this order. Defendants’ motions to dismiss

5

and motion to strike (Doc. Nos. 10, 25) are DENIED as moot.

6

IT IS SO ORDERED.

7
8

DATED: December 6, 2018

9
10
11

_________________________________
JOHN A. HOUSTON
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
18cv0689-JAH (MDD)