Hernandez v. County of San Diego Child Protective Services

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 MARK ANTHONY HERNANDEZ, JR., Case No.: 3:20-cv-00011-AJB-BGS

Booking No. 19766772,

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ORDER

Plaintiff,

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vs. 1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

15 (ECF No. 2)

COUNTY OF SAN DIEGO CHILD

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PROTECTIVE SERVICES; CARLY AND

17 RAY, Social Worker; JESSICA

VALDIVIA, Social Worker; DOES 1-10, 2) DISMISSING COMPLAINT

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Employees of San Diego County, PURSUANT TO 28 U.S.C.

19 Defendants. § 1915(e)(2) AND 28 U.S.C. § 1915A(b)

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21 Mark Anthony Hernandez, Jr. (“Plaintiff”), incarcerated at the George Bailey

22 Detention Facility in San Diego, California, has filed a pro se civil rights Complaint

23 pursuant to 42 U.S.C. Section 1983. (See ECF No. 1, Compl.) Plaintiff claims that

24 employees of San Diego County Child Protective Services (“CPS”) violated his civil

25 rights by recording him without his knowledge, defaming him, and filing false charges on

26 which Plaintiff was arrested, prosecuted, and convicted. (See id. at 3-6.)

27 Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. Section

28 1914(a) at the time of filing, and instead filed a Motion to Proceed In Forma Pauperis

1 (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF No. 2.)

2 I. Motion to Proceed In Forma Pauperis

3 All parties instituting any civil action, suit or proceeding in a district court of the

4 United States, except an application for writ of habeas corpus, must pay a filing fee of

5 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

6 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

7 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);

8 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is

9 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or

10 “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775

11 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately

12 dismissed. See 28 U.S.C. § 1915(b)(1)-(2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th

13 Cir. 2002).

14 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

15 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the

16 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

17 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

18 trust account statement, the Court assesses an initial payment of 20% of (a) the average

19 monthly deposits in the account for the past six months, or (b) the average monthly

20 balance in the account for the past six months, whichever is greater, unless the prisoner

21 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution

22 having custody of the prisoner then collects subsequent payments, assessed at 20% of the

23 preceding month’s income, in any month in which his account exceeds $10, and forwards

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative

27 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court

Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 administrative fee does

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1 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. §

2 1915(b)(2); Bruce, 136 S. Ct. at 629.

3 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust

4 account statement pursuant to 28 U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2.

5 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity, as

6 well as the attached prison certificate verifying his available balances. (See ECF No. 2, at

7 4-7.) These documents show that although he carried an average monthly balance of

8 $33.00 and had $33.00 in average monthly deposits to his trust account for the six months

9 preceding the filing of this action, Plaintiff had an available balance of just $0.29 at the

10 time of filing. (See id. at 4-6.)

11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), but

12 declines to impose the initial $0.03 partial filing fee pursuant to 28 U.S.C. Section

13 1915(b)(1) because his prison certificate indicates he may currently have “no means to

14 pay it.” See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be

15 prohibited from bringing a civil action or appealing a civil action or criminal judgment

16 for the reason that the prisoner has no assets and no means by which to pay the initial

17 partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. Section 1915(b)(4)

18 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a

19 “failure to pay . . . due to the lack of funds available to him when payment is ordered.”).

20 Instead, the Court directs the Watch Commander of George Bailey Detention Facility, or

21 his designee, to collect the entire $350 balance of the filing fees required by 28 U.S.C.

22 Section 1914 and to forward them to the Clerk of the Court pursuant to the installment

23 payment provisions set forth in 28 U.S.C. Section 1915(b)(1).

24 II. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section

25 1915A(b)

26 A. Standard of Review

27 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

28 answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b). Under

1 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any

2 portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from

3 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)

4 (en banc) (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002,

5 1004 (9th Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of

6 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the

7 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014)

8 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

9 “The standard for determining whether a plaintiff has failed to state a claim upon

10 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal

11 Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

12 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121

13 (9th Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the

14 familiar standard applied in the context of failure to state a claim under Federal Rule of

15 Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual

16 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

17 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at

18 1121.

19 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

20 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

21 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

22 relief [is] . . . a context-specific task that requires the reviewing court to draw on its

23 judicial experience and common sense.” Id. The “mere possibility of misconduct” or

24 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

25 this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th

26 Cir. 2009).

27 B. Plaintiff’s Factual Allegations

28 Plaintiff alleges that two CPS social workers, Defendants Ray and Valdivia, visited

1 him at home on April 10, 2018 in response to an undescribed incident that occurred the

2 day before. (Compl. at 3.) Defendant Ray allegedly placed her cell phone on the table

3 while the two social workers spoke to Plaintiff, who “felt comfortable and opened

4 up . . . .” (Id.) Subsequently, Plaintiff discovered that Defendant Ray recorded their

5 conversation without his knowledge or consent, and that recording was later used against

6 him in criminal proceedings. (See id.)

7 The next day, April 11, Defendant Ray called Plaintiff’s former parole officer and

8 asked whether Plaintiff was still on parole from a prior conviction. (See id. at 4.)

9 Although Plaintiff’s former parole officer correctly told Defendant Ray that Plaintiff had

10 been discharged from parole, Defendant Ray nonetheless called the hospital where

11 Plaintiff’s daughter was being treated, and told two nurses that Plaintiff’s parole

12 conditions did not allow him on the hospital grounds or near his daughter or other minors.

13 (See id.) As a result, Plaintiff states that he was not allowed to see his daughter in the

14 hospital. (See id.) Plaintiff alleges that he corrected Defendant Ray, explaining that he

15 was not on parole. (Id. at 4-5.) In response to that correction, Plaintiff alleges that

16 Defendant Ray filed unspecified “false charges” on which he was arrested and convicted.

17 (Id. at 6.)

18 Plaintiff alleges that Defendants Ray and Valdivia violated due process by

19 surreptitiously recording their conversation and using it against him in criminal

20 proceedings. (See id. at 3.) Additionally, Plaintiff contends that Defendant Ray defamed

21 his character by falsely stating that he was a parolee and was not permitted to see his

22 daughter in the hospital, and filed false charges against him, which led to “false

23 arrest/loss of liberty and other civil rights.” (See id. at 4-6.)

24 C. 42 U.S.C. Section 1983

25 To state a claim under 42 U.S.C. Section 1983, a plaintiff must allege two essential

26 elements: (1) that a right secured by the Constitution or laws of the United States was

27 violated, and (2) that the alleged violation was committed by a person acting under the

28 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

1 1035-36 (9th Cir. 2015).

2 a. Audio Recording and False Arrest Claims

3 As mentioned, Plaintiff claims that his civil rights were violated when, on April 10,

4 2018, Defendants Ray and Valdivia visited his home due to an undescribed incident that

5 occurred the day before. (See Compl. at 3.) During that visit Defendant Ray

6 surreptitiously recorded their conversation without Plaintiff’s knowledge or consent, and

7 “later . . . used [the recording] against [Plaintiff] in criminal court . . . .” (Id.) Plaintiff

8 alleges that those criminal proceedings were based on “false charges” on which he was

9 “wrongfully convicted . . . .” (Id. at 6.)

10 There are two methods for state prisoners to raise complaints related to their

11 imprisonment in federal court. See Muhammad v. Close, 540 U.S. 749, 750 (2004)

12 (“Federal law opens two main avenues to relief on complaints related to

13 imprisonment . . . .” (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973))). In general,

14 claims of constitutional violations related to the “circumstances” of a prisoner’s

15 confinement must be brought in a civil rights action under Section 1983, see id., while

16 constitutional challenges to the validity or duration of a prisoner’s confinement which

17 seek either “immediate release from prison” or the “shortening of [a state prison] term”

18 must be raised in a petition for federal habeas corpus under 28 U.S.C. Section 2254, or

19 through appropriate state relief. Wilkinson v. Dotson, 544 U.S. 74, 78-79 (2005)

20 (citations and internal quotation marks omitted); Nettles v. Grounds, 830 F.3d 922, 927

21 (9th Cir. 2016) (en banc) (“The Court has long held that habeas is the exclusive vehicle

22 for claims brought by state prisoners that fall within the core of habeas, and such claims

23 may not be brought in a § 1983 action.” (citing Dotson, 544 U.S. at 81-82)).

24 Thus, to the extent Plaintiff seeks damages based on claims that he was unlawfully

25 convicted, sentenced, and/or incarcerated, he may not pursue those claims in a civil rights

26 action pursuant to 42 U.S.C. Section 1983, without first showing his conviction (or

27 convictions) has already been invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87

28 (1994).

1 In Heck, the Supreme Court held:

2 in order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by

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actions whose unlawfulness would render a conviction or

4 sentence invalid, a § 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct appeal,

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expunged by executive order, declared invalid by a state

6 tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas

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corpus, 28 U.S.C. § 2254. A claim for damages bearing that

8 relationship to a conviction or sentence that has not been so

invalidated is not cognizable under § 1983.

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10 Id. at 486-87; Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1054-55 (9th Cir.

11 2016).

12 “Suits challenging the validity of the prisoner’s continued incarceration lie within

13 ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state

14 prisoner who is making a constitutional challenge to the conditions of his prison life, but

15 not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir.

16 2003) (emphasis added) (quoting Preiser, 411 U.S. at 498-99 (holding that a writ of

17 habeas corpus is “explicitly and historically designed” to provide a state prisoner with the

18 “exclusive” means to “attack the validity of his confinement” in federal court)).

19 Although Plaintiff labels his recording claim as one for violation of his “Due Process

20 Rights and other civil rights,” Compl. at 3, it is more appropriately analyzed under the

21 rubric of the Fourth Amendment, which prohibits “unreasonable searches and seizures.”

22 See U.S. Const. Amend. IV. “While ‘the Supreme Court left open the question whether

23 Heck’s bar applies to Fourth Amendment violations,’ the Ninth Circuit has since ‘answered

24 that question in the affirmative.’” Finley v. Fisher, No. 14-cv-00913-HSG, 2015 WL

25 3466394, at *3 (N.D. Cal. June 1, 2015) (quoting Whitaker v. Garcetti, 486 F.3d 572, 583

26 (9th Cir. 2007)). As the Ninth Circuit has held, Section 1983 claims alleging “illegal search

27 and seizure of evidence upon which criminal charges are based” are barred by Heck. See

28 Whitaker, 486 F.3d at 584 (“[Plaintiffs] claim that Defendants committed judicial

1 deception to obtain the wiretap warrants and then impermissibly hid the existence of, and

2 evidence produced by, those wiretaps—evidence that triggered the police investigations

3 and state prosecutions against them. In other words, they challenge the search and seizure

4 of the evidence upon which their criminal charges and convictions were based. Heck and

5 Harvey bar such a collateral attack through the vehicle of a civil suit.” (citing Harvey v.

6 Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000), overruled in part on other grounds by

7 Wallace v. Kato, 549 U.S. 384, 393-94 (2007))); Branson v. City of Los Angeles, No. CV

8 11-00565 MMM (JEMx), 2011 WL 13220154, at *7 (C.D. Cal. Apr. 21, 2011) (“Under

9 the holding in Harvey, which the Ninth Circuit has reaffirmed numerous times, a plaintiff

10 cannot challenge an asserted Fourth Amendment violation that produced evidence of his

11 guilt until such time as his conviction has been vacated or overturned.”).

12 Similarly, Heck “generally bars a claim for false arrest under § 1983 if success in the

13 false arrest suit would be inconsistent with the underlying conviction.” Hart v. Parks, 450

14 F.3d 1059, 1065 n.5 (9th Cir. 2006). Plaintiff alleges that Defendant Ray filed false

15 criminal charges against him in reliance on the illegally obtained recording. (See Compl.

16 at 3-6.) In substance, Plaintiff is arguing that there was no probable cause to arrest and

17 prosecute him. A finding in Plaintiff’s favor would thus implicate Heck because it would

18 “necessarily imply the invalidity of [Plaintiff’s] conviction.” Cabrera v. City of

19 Huntington Park, 159 F.3d 374, 380 (9th Cir. 1988); see also Heck, 512 U.S. at 487; Smith

20 v. Ball, 278 F. App’x 739, 741 (9th Cir. 2008) (holding that retaliation claim was barred

21 by Heck “because prevailing on [plaintiff’s] claim would imply the invalidity of her

22 criminal convictions arising from the same events.”); Guerrero v. Gates, 442 F.3d 697, 703

23 (9th Cir. 2006) (“Wrongful arrest, malicious prosecution, and a conspiracy among Los

24 Angeles officials to bring false charges against [Plaintiff] could not have occurred unless

25 he were innocent of the crimes for which he was convicted”).

26 There is one potential exception to this rule, however. In Ove v. Gwinn, 264 F.3d

27 817 (9th Cir. 2001), the Ninth Circuit addressed a challenge by two plaintiffs to the

28 qualifications of nurses who contracted with the municipal defendants to handle blood tests

1 for individuals suspected of driving under the influence. See id. at 820. Although the

2 plaintiffs pleaded guilty to and were convicted of the charges against them, the Ninth

3 Circuit held that their subsequent Section 1983 claims were not barred by Heck because

4 their lawsuit concerned “the way in which their blood was drawn,” and would not

5 necessarily imply the invalidity of their convictions since “[t]heir convictions derive from

6 their pleas, not from verdicts obtained with supposedly illegal evidence.” Id. at 820-23

7 (emphasis in original).

8 As currently alleged, the Court finds that Plaintiff’s audio recording and false arrest

9 claims are barred by Heck. Plaintiff asserts that the evidence Defendant Ray gathered

10 during their conversation was obtained in violation of his constitutional rights and allegedly

11 “used in criminal court” to support false criminal charges on which he was ultimately

12 convicted. (See Compl. at 3, 6.) He alleges that this conviction was wrongful and seeks

13 damages for “false arrest/loss of liberty and other civil rights,” arguing that the charges

14 were filed because he “inform[ed] C.P.S. social worker Carly Ray of her wrong

15 accusations.” (See id. at 6.) Therefore, like the claims at issue in Whitaker and Harvey,

16 finding in Plaintiff’s favor on his audio recording and false arrest claims would necessarily

17 imply that his arrest, prosecution, and conviction were invalid. See Whitaker, 486 F.3d at

18 584 (holding that Heck and Harvey bar civil suits attacking the search and seizure of

19 evidence upon which criminal charges and conviction are based); see also Agner v. City of

20 Hermosa Beach, 315 F. App’x 29, 30 (9th Cir. 2008) (false arrest claims barred by Heck

21 because the same evidence supported the arrest and conviction).

22 Because Plaintiff does not claim to have already invalidated his conviction, Heck,

23 512 U.S. at 487, or otherwise state a claim based on the audio recording or alleged false

24 arrest that is not barred by Heck, his audio recording and false arrest claims must be

25 dismissed sua sponte and in their entirety for failing to state a claim upon which

26 Section 1983 relief can be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B) and Section

27 1915A(b).

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1 b. Defamation

2 Plaintiff further alleges that Defendant Ray defamed him and violated “other civil

3 rights,” by incorrectly informing two nurses at the hospital where Plaintiff’s daughter was

4 being treated that Plaintiff was on active parole and “not allowed on the hospital grounds

5 or anywhere around [his] daughter or any minors due to [his] parole conditions.”

6 (Compl. at 4.)

7 Defamation is generally not actionable under Section 1983. See Paul v. Davis, 424

8 U.S. 693, 699-701 (1976) (holding that a person’s interest in a good name and not being

9 branded as a criminal does not give rise to a claim under the Due Process Clause of the

10 Fourteenth Amendment); Whatley v. Gray, No. 3:17-cv-01591-DMS-NLS, 2018 WL

11 828200, at *2 (S.D. Cal. Feb. 8, 2018) (“[C]laims of ‘defamation of character’ . . . , libel

12 or slander do not rise to the level of a federal constitutional violation.” (internal citation

13 omitted)). This is because Plaintiff’s interest in his good reputation alone is not a liberty

14 or property interest protected by the Due Process Clause of the Fourteenth Amendment.

15 See Paul, 424 U.S. at 701. When a defamatory statement allegedly injures “some more

16 tangible interests,” however, it may be actionable under Section 1983. See id. This is

17 called the “stigma-plus” test, and the “plus” element requires “that the complaint allege

18 that the state action not only caused the stigma of a damaged reputation, but also that the

19 state action deprived the plaintiff of a protected liberty or property interest or a status

20 recognized by the state.” WMX Techs., Inc. v. Miller, 197 F.3d 367, 376 (9th Cir. 1999);

21 see also Humphries v. Cnty. of Los Angeles, 554 F.3d 1170, 1184-88 (9th Cir. 2009)

22 (discussing Paul and the stigma-plus test), rev’d on other grounds, 562 U.S. 29 (2010);

23 Gillette v. Malheur Cnty., No. 2:14-CV-01542-SU, 2016 WL 3180228, at *5 (D. Or. May

24 3, 2016) (“Plaintiff cannot establish a constitutional deprivation by showing that alleged

25 government defamation encouraged or prompted a third-party to injure plaintiffs. At

26 most, such allegations may state a claim for defamation under state law and not the U.S.

27 Constitution . . . .” (citing WMX Techs., Inc. v. Miller, 80 F.3d 1315, 1320 (9th Cir.

28 1996), dismissed on other grounds on rh’g, 104 F.3d 1133 (9th Cir. 1997) (en banc))

1 (internal citation omitted)).

2 Plaintiff alleges that as a result of Defendant Ray’s statements to two nurses at the

3 hospital where his daughter was being treated, Plaintiff “wasn’t allowed to see [his]

4 daughter . . . when she needed [him] most.” (Compl. at 4.) Although the Court is

5 unaware of any case directly holding that a parent has a constitutionally protected liberty

6 interest in visiting their child in the hospital, “there is no question that parents have a

7 constitutionally protected liberty interest in making decisions about the care, custody, and

8 control of their children.” Miller v. California, 355 F.3d 1172, 1175 (9th Cir. 2004)

9 (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)). Assuming that Plaintiff did have

10 such a liberty interest, Plaintiff nevertheless fails to state an actionable claim for

11 defamation. The Complaint alleges that two nurses at the hospital,2 not Defendant Ray or

12 any other individual acting under color of state law, caused his alleged injury when they

13 prevented him from visiting his daughter. (See Compl. at 4-5.) Thus, like other cases

14 alleging that defamation by a government actor caused a third party to harm Plaintiff’s

15 rights, Plaintiff’s defamation claim must be dismissed. See, e.g., Paul, 424 U.S. at 695-

16 97 (rejecting defamation allegations based on lost employment opportunities due to

17 police flyer incorrectly identifying plaintiff as an “active shoplifter”); Gillette, 2016 WL

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2 Count 2 of Plaintiff’s Complaint refers to these two nurses as “Jane Does 1-2.” (See Compl. at 4.)

21 Earlier in his Complaint, while identifying the Defendants, Plaintiff refers to “Does 1-10” as

“employee’s [sic] of San Diego County related to this matter.” (See id. at 2.) The Complaint does not

22 offer any additional detail about these Doe Defendants, nor does Plaintiff make clear whether he intends

to sue Jane Does 1-2, what claims (if any) he alleges against them, what hospital they work at, or

23 whether, as the Complaint may be suggesting, they are employees of San Diego County. Even if

Plaintiff wishes to sue Jane Does 1 and 2, Plaintiff offers no details about the remaining Doe

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Defendants. Although “’[a] plaintiff may refer to unknown defendants as Defendant John Doe 1, John

25 Doe 2, John Doe 3, and so on, . . . he must allege specific facts showing how each particular doe

defendant violated his rights.’” See Amezquita v. Hough, No. 3:19-cv-01461-AJB-KSC, 2019 WL

26 4674287, at *3 n.2 (S.D. Cal. Sept. 25, 2019) (quoting Cuda v. Employees/Contractors/Agents at or

OCCC, Civ. No. 19-00084 DKW-KJM, 2019 WL 2062945, at *3-4 (D. Haw. May 9, 2019)). To the

27 extent Plaintiff is alleging claims against Jane Does 1 and 2, they are dismissed for failure to state a

claim because Plaintiff has not alleged that they acted “under color of state law,” in allegedly violating

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1 3180228, at *6 (alleging that sheriff’s department official’s false statements caused bank

2 to repossess plaintiff’s assets was insufficient to state Section 1983 defamation claim);

3 Mazzeo v. Gibbons, 649 F. Supp. 2d 1182, 1197 (D. Nev. 2009) (blacklisting from

4 employment by private businesses based on government actors’ alleged defamatory

5 statements not actionable under Section 1983).

6 For these reasons, the Court finds Plaintiff’s Complaint fails to adequately allege a

7 defamation claim under Section 1983. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. §

8 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

9 c. Claims Against County of San Diego Child Protective Services

10 Although Plaintiff names CPS as a Defendant in the caption of his Complaint, CPS

11 is not listed as one of the Defendants. (Compare Compl. at 1, with id. at 2.) Moreover,

12 none of the counts of Plaintiff’s Complaint assert claims directly against CPS, focusing

13 instead on Defendants Ray and Valdivia. (See id. at 3-6.) Nonetheless, and to the extent

14 Plaintiff seeks to hold CPS liable for the alleged wrongs in the Complaint, such claims

15 must be dismissed.

16 CPS is allegedly an arm of San Diego County, and accordingly could potentially

17 be held liable under Section 1983 pursuant to the Supreme Court’s decision in Monell v.

18 New York Department of Social Services, 436 U.S. 658 (1978). To state a claim under

19 Monell, Plaintiff must allege that he was injured pursuant to an official policy or a

20 discriminatory practice “so permanent and well settled as to constitute a ‘custom or

21 usage’ with the force of law.” Id. at 691. Plaintiff has not alleged the existence of any

22 official policy or “permanent and well settled” practice by CPS that caused his alleged

23 injuries. See id. As a result, Plaintiff’s claims against CPS are dismissed sua sponte for

24 failure to state a plausible claim. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C.

25 § 1915A(b)(1); see also Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237

26 F.3d 1101, 1110-11 (9th Cir. 2001) (affirming grant of summary judgment on claims that

27 county could be liable for warrantless removal of minor child from the home where there

28 was no evidence of a policy or practice under Monell).

1 d. Leave to Amend

2 For all these reasons, the Court finds that Plaintiff’s Complaint fails to state a claim

3 upon which Section 1983 relief can be granted, and dismisses it sua sponte in its entirety

4 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at

5 1126-27; Rhodes, 621 F.3d at 1004. Having now provided Plaintiff with “notice of the

6 deficiencies in his complaint,” however, the Court will also grant Plaintiff an opportunity

7 to fix them, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing

8 Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

9 III. Conclusion and Orders

10 For the reasons explained, the Court:

11 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. Section

12 1915(a) (ECF No. 2).

13 2. DIRECTS the Watch Commander of George Bailey Detention Facility, or

14 his designee, to collect from Plaintiff’s inmate trust account the $350 filing fee owed in

15 this case by garnishing monthly payments in an amount equal to twenty percent (20%) of

16 the preceding month’s income and forwarding those payments to the Clerk of the Court

17 each time the amount in the account exceeds $10 pursuant to 28 U.S.C. Section

18 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME

19 AND NUMBER ASSIGNED TO THIS ACTION.

20 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch

21 Commander, George Bailey Detention Facility, 446 Alta Road, San Diego, California,

22 92158.

23 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

24 relief may be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B) and Section 1915A(b),

25 and GRANTS him forty-five (45) days leave from the date of this Order in which to file

26 an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s

27 Amended Complaint must be complete by itself without reference to his original

28 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint

1 || will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, Inc. v.

2 || Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

3 || pleading supersedes the original.””); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

4 ||2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

5 amended pleading may be “considered waived if not repled.’’).

6 If Plaintiff fails to file an Amended Complaint within the time provided, the Court

7 || will enter a final Order dismissing this civil action based both on Plaintiffs failure to

8 a claim upon which relief can be granted pursuant to 28 U.S.C. Section

9 || 1915(e)(2)(B) and Section 1915A(b), and his failure to prosecute in compliance with a

10 || court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir.

11 2005) (‘Ifa plaintiff does not take advantage of the opportunity to fix his complaint, a

12 || district court may convert the dismissal of the complaint into dismissal of the entire

13 || action.”).

14 IT IS SO ORDERED.

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16 || Dated: February 26, 2020 © □

V7 Hon. Anthony J. attaglia

18 United States District Judge

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