Franco v. Fresno, County of et al
ORDER AND REPORT AND RECOMMENDATION - The court GRANTS 1 MOTION for Leave to Proceed in forma pauperis. It is RECOMMENDED that the Court DISMISS 2 Complaint. Objections to R&R due by 3/9/2017. Signed by Magistrate Judge Kimberly A. Jolson on 2/23/2017. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
JOSE A. FRANCO, et al.,
Civil Action 2:17-cv-11
Judge Michael H. Watson
Magistrate Judge Jolson
FRESNO COUNTY, et al.,
ORDER AND REPORT AND RECOMMENDATION
Plaintiff, Jose Franco, an Ohio resident who is proceeding without the assistance of
counsel, brings this action against the County of Fresno, California, the Fresno County
Department of Social Services (“DSS”), the City of Fresno, the City of Fresno Police
Department (“FPD”), Officer Richard Hill, Officer Alvarado, Officer Daryll Van Duersen,
Officers Does 1-10, Tiffany Gonzales-Remine, Rita Levalle, Ramon Garcia, Alyssa CruzRodrigues, Lupe Rios, Sharam Peyvandi, Delfino Neira, Judge Brian M. Arax, L. Flores, Isaiah
Peterson, Lourdes Espinosa, S. Moua, Does 1-25, Carlos Michael Rodriguez, and Irene
Arrendondo-Rodriguez. (Doc. 1-1). This matter is before the Undersigned for consideration on
Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc. 1) and the initial screen of
Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2).
Plaintiff’s request to proceed in forma pauperis is GRANTED. All judicial officers who
render services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a).
Furthermore, having performed an initial screen and for the reasons that follow, it is
RECOMMENDED that the Court DISMISS Plaintiff’s claims.
Because Plaintiff proceeds in forma pauperis, the Court must dismiss the Complaint, or
any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to set
forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” In
reviewing the Complaint, the Court must construe it in favor of Plaintiff, accept all well-pleaded
factual allegations as true, and evaluate whether it contains “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). On the other hand, a
complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555). Although pro se
complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic
pleading essentials” are still required. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
Plaintiff asserts various state-law claims, as well as several federal claims, and seeks
monetary damages, injunctive relief, and declaratory relief. (Doc. 1-1 at 49, 54). As an initial
matter, Plaintiff attempts to bring this case on his behalf and on behalf of his wife, Serena I.
Franco. (See id.). Although Plaintiff may bring the Complaint pro se on his own behalf, he
cannot bring the Complaint on behalf of his wife. See, e.g., United ex rel. Antoon v. Cleveland
Clinic Found., 978 F. Supp. 2d 880, 894 (S.D. Ohio 2013) (noting that Plaintiff “may, of course,
bring a pro se complaint on behalf of himself, but he cannot bring a pro se complaint on behalf
of another”). Consequently, the Court will consider only Plaintiff Jose Franco’s claims.
A. Federal Law Claims
1) 42 U.S.C. § 1983 Claims Against Individuals
Plaintiff seeks to assert various claims under 42 U.S.C. § 1983 against all Social Worker
Defendants, Police Defendants, and Does 1-25. (Doc. 1-1 at 24–31). The term “Social Worker
Defendants” is not defined in the Complaint, but the Court assumes Plaintiff is referring to what
he defined as “DSS Defendants” (id. at 3), which includes Tiffany Gonzales-Remine, Rita
Levalle, Ramon Garcia, Alyssa Cruz-Rodriguez, Lupe Rios, and Sharam 1 Peyvandi, all of whom
are being sued in their individual and official capacities. (Id. at 2–3). The Police Defendants are
defined in the Complaint as Officer Richard Hill, Officer Alvarado, Officer Daryll Van Duersen,
and Officer Does 1-3, all of whom are also being sued in their individual and official capacities.
(Id. at 3–4).
First and foremost, Plaintiff makes no factual allegations against Does 1-25.
Consequently, the Complaint does not contain sufficient factual matter to state a claim for relief
under Rule 12(b)(6), and those claims fail. Fed. R. Civ. P. 12(b)(6); see also Terrance v.
Northville Reg'l Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002) (holding that claims
against governmental officials must “allege facts that show the existence of the asserted
constitutional rights violation recited in the complaint and what each defendant did to violate the
asserted right”) (emphasis in original).
Second, Plaintiff’s claims for monetary damages against state actors in their official
capacities are barred by the Eleventh Amendment, which prevents private citizens from suing “a
state or its instrumentalities unless the state has given express consent.” Stein v. Mohr, No. 2:151
The Complaint refers to this person as “Shawn Peyvandi,” but the action was filed against a Sharam Peyvandi.
cv-2681, 2015 WL 5174980, at *3 (S.D. Ohio Sept. 4, 2015) (citing Pennhurst St. Sch. & Hosp.
v. Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby Cty., 211 F.3d 331, 334 (6th Cir.
2000)). Although Plaintiff has not named the State of California as a defendant, “[a] suit against
a state official in his or her official capacity is not a suit against the official but rather is a suit
against the official’s office, which is no different from a suit against the State.” McCoy v.
Michigan, 369 F. App’x 646, 654 (6th Cir. 2010) (internal quotations omitted) (quoting Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71(1989)). Moreover, “[i]t is well established that
§ 1983 does not abrogate the Eleventh Amendment.” Harrison v. Michigan, No. 10-2185, 2013
WL 3455488, at *3 (6th Cir. July 10, 2013) (citing Quern v. Jordan, 440 U.S. 332, 341 (1979)).
California has not waived its sovereign immunity and thus is entitled to the protections of the
Accordingly, dismissal of Plaintiff’s official capacity claims for
monetary damages against Defendants Gonzales-Remine, Levalle, Garcia, Cruz-Rodriguez,
Rios, Peyvandi, Officer Hill, Officer Alvarado, Officer Duersen, and Officer Does 1-3 is
appropriate. Stein, 2015 WL 5174980, at *3.
Finally, Plaintiff’s § 1983 claims against the remaining Defendants in their individual
capacity likewise fail. In order to plead a cause of action under 42 U.S.C. § 1983, a plaintiff
must plead two elements: “(1) a deprivation of a right secured by the Constitution or law of the
United States (2) caused by a person acting under color of state law.” Hunt v. Sycamore Cmty.
Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citation omitted). Several of
Plaintiff’s claims under § 1983 do not allege a right secured by the Constitution or law of the
United States. For example, Plaintiff alleges violations of his “due process right not to be
subjected to false accusations on the basis of false evidence” and his right to be free from
dishonesty of public employees. (Id. at 27). To the extent Plaintiff seeks relief from false
accusations or alleged dishonesty of public employees, these should be brought as a state-law
tort claim for defamation, not a claim under § 1983. Barksdale v. Miller, No. 2:13-CV-282,
2013 WL 1363804, at *2 (S.D. Ohio Apr. 3, 2013), report and recommendation adopted, No.
2:13-CV-282, 2013 WL 1832675 (S.D. Ohio Apr. 30, 2013) (holding that a Plaintiff’s
allegations against Defendant for false accusations is a state-law tort claim for defamation, not a
violation of any federal law).
Put simply, the claims fail “because there is no constitutionally
protected interest,” nor any federal law, protecting these asserted “rights.” Daniels v. Lisath, No.
2:10-CV-00968, 2011 WL 2710786, at *1 (S.D. Ohio July 13, 2011).
Plaintiff’s additional claims under § 1983 include warrantless seizure of his children
(Doc. 1-1 at 24), a violation of his right to familial association (id. at 24), a violation of his right
to privacy and family integrity (id.), unlawful search and detention (id. at 26), malicious
prosecution (id. at 25), and excessive use of force (id. at 29–30). Despite the lengthy complaint,
“Plaintiff fails to plead sufficient facts to state a facially plausible federal claim.” Horn v.
Lithopolis City Police Dep’t, No. 2:12-cv-00267, 2012 WL 1537640, at *2 (S.D. Ohio May 1,
2012). Plaintiff relies on general assertions for all of these claims. For example, Plaintiff states
that Defendants had a duty to not violate “the protection of parental rights, the right to privacy,
family integrity and the right to familial relations.” (Doc. 1-1 at 24). Other examples are as
Defendants, and each of them, were acting under color of state law when they
acted, or knew and agreed and thereby conspired, to violate Plaintiff[’s] civil
rights by, but not limited to, intimidation, malicious prosecution, removing,
detaining, and continuing to detain [Plaintiff’s children] from the care, custody
and control of their parents, without proper or just cause and/or authority, thereby
violating Plaintiff’s rights under the First, Fifth and Fourteenth Amendment.
(Id. at 25).
Defendants also violated their civil rights by failing to adhere to the requirements
of the Fourth Amendment of the United States constitution when they seized,
detained, questioned, threatened, examined, and/or searched [Plaintiff’s children]
without the consent of their person, Plaintiff Parents, and without obtaining a
prior court order or authorizing warrant.
(Id. at 25–26).
Said city of Fresno public employees maliciously conspired to violate the civil
rights of Plaintiff, including violation of the Plaintiff’s rights found in the Fourth
and Fourteenth Amendment of the United States Constitution by, but not limited
to, using excessive force to terrorize and seize the children . . . which was greater
than was reasonable under the circumstances.
(Id. at 30).
These conclusory allegations and formulaic recitations of the causes of action are
insufficient under Iqbal and Twombly. See Horn, 2012 WL 1537640, at *2. Further, even if
Plaintiff had provided more detailed allegations, he fails to demonstrate a lack of probable cause
relating to the alleged unlawful seizure and detention, as well as the malicious prosecution claim.
See Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (holding that to succeed on a malicious
prosecution claim under § 1983, “the plaintiff must show that there was a lack of probable cause
for the criminal prosecution”); Jones v. Napoleon, No. 15-13302, 2016 WL 98159, at *2 (E.D.
Mich. Jan. 8, 2016) (holding the complaint failed “to state any plausible claim for unlawful
detention or malicious prosecution” because Plaintiff failed to contend Defendants lacked
probable cause). Accordingly, Plaintiff fails to state a federal claim against the above-listed
Defendants in their individual capacities under § 1983.
2) Monell Claims Against Municipalities
Plaintiff also brings “Monell-Related Claims” against DSS, the Director of DSS, Delfino
Nierra, in his official capacity only, and Does 1-25 (Doc. 1-1 at 31–38). Although not explicit, it
also appears Plaintiff is alleging claims against FPD.
The Supreme Court held in Monell v. Dep’t of Soc. Servs. of City of N.Y., that
“municipalities are not completely immune from suit under § 1983.” 436 U.S. 658, 701 (1978).
However, the Court in Monell specified “that a municipality cannot be held liable solely because
it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on
a respondeat superior theory.” Id. at 691 (emphasis in original). Consequently, “a municipality
is liable under § 1983 only if the challenged conduct occurs pursuant to a municipality’s ‘official
policy,’ such that the municipality’s promulgation or adoption of the policy can be said to have
caused one of its employees to violate the plaintiff’s constitutional rights.” D’Ambrosio v.
Marino, 747 F.3d 378, 386 (6th Cir. 2014) (internal quotations omitted) (citing Monell, 436 U.S.
Accordingly, the Court must look to whether Plaintiff sufficiently alleged a municipal
To properly allege a municipal liability claim, a plaintiff must adequately allege
(1) the existence of an illegal official policy or legislative enactment; (2) that an
official with final decision making authority ratified illegal actions; (3) the
existence of a policy of inadequate training or supervision; or (4) the existence of
a custom of tolerance [of] or acquiescence [to] federal rights violations.
D’Ambrosio, 747 F.3d at 386 (internal quotation marks omitted) (citing Burgess v. Fischer, 735
F.3d 462, 478 (6th Cir. 2013).
It appears that Plaintiff attempts to establish his Monell claim in two of the four abovementioned ways. Plaintiff first alleges that Defendants followed illegal official policies that
existed at DSS and FPD. (Doc.1-1 at 33, 36). Second, Plaintiff claims that DSS, Defendant
Nierra, and FPD Defendants acted “with deliberate indifference in implementing a policy of
inadequate training and/or supervision, and or by failing to train and/or supervise its officer,
agents, and employees” (id. at 33, 37) and failed to “establish customs, policies, and practices” to
protect parents and their children (id. at 32).
As to the first allegation, Plaintiff attempts to argue that both DSS and FPD have official
policies of violating individuals’ civil rights. However, to demonstrate this, Plaintiff must
identify that the unconstitutional policy was “the moving force of the plaintiff’s constitutional
deprivation.” Meyers v. City of Cincinnati, 14 F.3d 1115, 1120 (6th Cir. 1994). “[T]he Supreme
Court ha[s] identified three means by which a plaintiff may establish such a policy:” (1) an
officially promulgated policy as the term is commonly understood, (2) a pervasive custom or
practice, or (3) a single act by an employee who has final policymaking authority with respect to
the area in which the action was taken. Id. (citing Monell, 436 U.S. at 690; Oklahoma City v.
Tuttle, 471 U.S. 808 (1985); Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986)).
Plaintiff does not allege, nor does it appear, that any of these categories are applicable to this
Second, establishing deliberate indifference in a failure-to-train claim “requires a
showing of prior instances of unconstitutional conduct demonstrating that the municipality had
ignored a history of abuse and was clearly on notice that the training in this particular area was
deficient and likely to cause injury.” Burgess, 735 F.3d at 478 (quoting Miller v. Sanilac Cty.,
606 F.3d 240, 255 (6th Cir. 2010) (internal quotations marks omitted). Here, Plaintiff does not
set forth any allegations that there were prior instances of misconduct to show that DSS, FPD, or
Defendant Nierra were on notice that training was inadequate and likely to cause injury.
Plaintiff’s Monell claims thus fail to meet one of the “narrow theories that demonstrate
the municipality’s direct conduct in the deprivation of federal rights.” See Martin v. City of
Broadview Heights, No. 1:08-cv-2165, 2011 WL 3648103, at *8 (N.D. Ohio Aug. 18, 2011).
And Plaintiff fails to state a federal claim against a municipality under § 1983.
B. State-Law Claims
In addition to asserting violations of his federal civil rights, Plaintiff’s final seven bases
for relief are rooted in state law. Plaintiff alleges a general violation of state civil rights,
intentional infliction of emotional distress, negligent infliction of emotional distress, negligence,
liability for children’s tort, false imprisonment, and invasion of privacy. (See Doc. 1-1 at 40–
49). The Sixth Circuit has held that “[i]f the federal claims are dismissed before trial, the state
claims generally should be dismissed as well. Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir.
2009). Accordingly, because the Undersigned recommends dismissal of all of Plaintiff’s federal
claims, it is further recommended that the Court decline to exercise supplemental jurisdiction
over Plaintiff’s remaining state-law claims pursuant to 28 U.S.C. § 1367(c)(3).
Based upon the foregoing, Plaintiff’s request to proceed in forma pauperis (Doc. 1) is
GRANTED. However, having performed an initial screen, for the reasons set forth above, it is
RECOMMENDED that the Court DISMISS Plaintiff’s Complaint.
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).
A Judge of this Court shall make a de novo
determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: February 23, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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