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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 GALINA V. ANDREYEV, Case No. 2:25-cv-01394-DC-CSK

12 Plaintiff, ORDER GRANTING IFP REQUEST AND

GRANTING LEAVE TO AMEND

13 v.

14 MARCELLA TROTSIOUK, et al.,

(ECF Nos. 2, 12)

15 Defendants.

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17 Plaintiff Galina V. Andreyev is representing herself in this action and seeks leave

18 to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.)

19 Plaintiff’s application in support of the IFP request makes the required financial showing.

20 Accordingly, the Court grants Plaintiff’s IFP request.

21 I. SCREENING REQUIREMENT

22 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis

23 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to

24 state a claim on which relief may be granted,” or “seeks monetary relief against a

25 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith,

26 203 F.3d 1122, 1126-27 (2000) (en banc). A claim is legally frivolous when it lacks an

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1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R.

28 Civ. P. 72, and Local Rule 302(c).

1 arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). In

2 reviewing a complaint under this standard, the court accepts as true the factual

3 allegations contained in the complaint, unless they are clearly baseless or fanciful, and

4 construes those allegations in the light most favorable to the plaintiff. See Neitzke, 490

5 U.S. at 327; Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960

6 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011).

7 Pleadings by self-represented litigants are liberally construed. Hebbe v. Pliler, 627

8 F.3d 338, 342 & n.7 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal).

9 However, the court need not accept as true conclusory allegations, unreasonable

10 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d

11 618, 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does

12 not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007);

13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

14 To state a claim on which relief may be granted, the plaintiff must allege enough

15 facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A

16 claim has facial plausibility when the plaintiff pleads factual content that allows the court

17 to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

18 Iqbal, 556 U.S. at 678. A pro se litigant is entitled to notice of the deficiencies in the

19 complaint and an opportunity to amend unless the complaint’s deficiencies could not be

20 cured by amendment. See Lopez, 203 F.3d at 1130-31; Cahill v. Liberty Mut. Ins. Co., 80

21 F.3d 336, 339 (9th Cir. 1996).

22 II. THE FIRST AMENDED COMPLAINT

23 The First Amended Complaint (“FAC”) brings this 42 U.S.C. § 1983 action against

24 Defendants Marcella Trotsiouk, Igor Trotsiouk, Sacramento County Adult Protective

25 Services (“APS”), Sacramento County Sheriff’s Office, Sheriff Jim Cooper, and Dr.

26 Babenko. FAC ¶¶ 6-11 (ECF No. 12). The FAC alleges Plaintiff’s elderly mother, Maria

27 Khailo, has been subjected to abuse, neglect, and unlawful medication practices by

28 Defendants. Id. ¶ 2. Plaintiff alleges, while acting with a valid power of attorney for her

1 mother, she instructed Defendant Dr. Babenko to discontinue medication that was

2 causing Plaintiff’s mother severe adverse effects including sedation, confusion, and

3 cognitive decline. Id. ¶¶ 6, 12-13. Plaintiff alleges Defendant Dr. Babenko willfully

4 refused to discontinue administering the medication, which has led to Plaintiff’s mother’s

5 mental deterioration and loss of clarity. Id. ¶¶ 14-15. Plaintiff alleges only when

6 threatened with legal action did Defendant Dr. Babenko remove Plaintiff’s mother’s

7 medication from her medical chart. Id. ¶ 16. Plaintiff alleges Defendant Dr. Babenko’s

8 conduct shows deliberate indifference of Plaintiff’s mother’s medical needs and a

9 disregard for Plaintiff’s power of attorney. Id. ¶ 17. Plaintiff alleges the following four

10 causes of action pursuant to Section 1983: (1) violation of due process and familial

11 association; (2) elder abuse, neglect and isolation; (3) Monell2 liability; and (4) deliberate

12 indifference to serious medical needs. FAC at 3. For relief, Plaintiff seeks monetary

13 damages and injunctive relief. FAC at 4.

14 III. DISCUSSION

15 A. Lack of Standing

16 To the extent Plaintiff seeks to raise claims on behalf of her mother, Maria Khailo,

17 Plaintiff lacks standing to do so. To have Article III standing, a party must show (1) it has

18 suffered an “injury in fact,” (2) its injury is “fairly traceable” to the defendant's actions,

19 and (3) its injury will likely be “redressed” by the action. Lujan v. Defenders of Wildlife,

20 504 U.S. 555, 560-61 (1992). Plaintiff appears to assert rights on behalf of her mother.

21 See generally FAC. To the extent Plaintiff is seeking to assert the rights of her mother,

22 Plaintiff lacks standing to do so. Plaintiff may only challenge violations of her own rights

23 that result in an actual injury. See Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[P]laintiff

24 generally must assert [her] own legal rights and interests, and cannot rest [her] claim to

25 relief on the legal rights or interests of third parties.”). In addition, Plaintiff’s alleged

26 power of attorney also does not confer standing to assert claims on her mother’s behalf.

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28 2 Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978).

1 The Ninth Circuit has held that a power of attorney is insufficient to confer standing to

2 assert constitutional claims on behalf of another. See Johns v. Cnty. of San Diego, 114

3 F.3d 874, 876 (9th Cir. 1997) (“[C]onstitutional claims are personal and cannot be

4 asserted vicariously…While a non-attorney may appear pro se on his own behalf, he has

5 no authority to appear as an attorney for others than himself.”) (internal quotation marks

6 and citations omitted). Therefore, to the extent Plaintiff seeks to raise constitutional

7 claims on behalf of her mother, Plaintiff lacks standing to raise such claims. See id.

8 B. Improper Defendants Under 42 U.S.C. § 1983

9 Plaintiff brings this action under 42 U.S.C. § 1983, which provides a cause of

10 action for the deprivation of rights, privileges, or immunities secured by the Constitution

11 or laws of the United States by a person acting “under color of any statute.” Gomez v.

12 Toledo, 446 U.S. 635, 638 (1980). Section 1983 claims must demonstrate the defendant

13 (1) acted under color of state law; and (2) caused a plaintiff to be deprived of a right

14 secured by the Constitution or laws of the United States. See Lindke v. Freed, 601 U.S.

15 187, 194 (2024). The FAC alleges causes of action against Defendants Marcella

16 Trotsiouk, Igor Trotsiouk, and Dr. Babenko, who each appear to be private actors based

17 on the FAC’s allegations. See FAC ¶¶ 7-8, 11-17; at 3-4.

18 Generally, private parties do not act under color of state law. Price v. Hawaii, 939

19 F.2d 702, 707-08 (9th Cir. 1991); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d

20 826, 835 (9th Cir. 1999). However, a private entity’s action may be “under color of state

21 law” where there is “significant” state involvement in the action. Franklin v. Fox, 312 F.3d

22 423, 444 (9th Cir. 2002) (citation omitted). To determine whether actions committed by

23 private actors that allegedly caused the deprivation of a right are fairly attributable to the

24 state, the court must determine whether the depriving party is “a person who may fairly

25 be said to be a state actor.” Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d

26 916, 922 (9th Cir. 2011) (citation omitted). Courts have recognized four tests to

27 determine whether a private individual’s actions amount to state action: (1) the public

28 function test; (2) the joint action test; (3) the state compulsion test; and (4) the

1 governmental nexus test. Franklin, 312 F.3d at 445. Satisfaction of any one test is

2 sufficient to find state action, so long as no countervailing factor exists. Lee v. Katz, 276

3 F.3d 550, 554 (9th Cir. 2002). These factors are helpful to determine the significance of

4 state involvement, but there is no specific formula to define state action. Sutton, 192

5 F.3d at 835-36.

6 Under the public function test, private individuals or groups become agencies of

7 the state when they are endowed by the state with powers or functions that are

8 governmental in nature. Lee, 276 at 554-55. Under the joint action test, courts consider

9 whether state officials and private parties have acted in concert, leading to a deprivation

10 of plaintiff’s constitutional rights. Franklin, 312 F.3d at 445. Under the state compulsion

11 test, state action is found where the state has exerted coercive power such that the

12 private actor’s decision is considered that of the state. Johnson v. Knowles, 113 F.3d

13 1114, 1119 (9th Cir. 1997). Under the governmental nexus test, a private party acts

14 under the color of state law if there is such a close nexus between the state and the

15 private party’s action that the action is considered that of the state. Naoko Ohno v. Yuko

16 Yasuma, 723 F.3d 984, 995 n.13 (9th Cir. 2013).

17 Here, Plaintiff has not alleged sufficient facts to establish significant state

18 involvement in Defendants Marcella Trotsiouk, Igor Trotsiouk, and Dr. Babenko’s

19 actions. The FAC generally alleges Defendant Marcella “acted under color of state law

20 by misusing conservatorship proceedings to isolate and abuse Maria Khalio” and that

21 Defendant Igor was a “former IHSS caregiver, whose neglect and alcoholism caused

22 harm to Maria.” FAC ¶¶ 7-8. These allegations alone are not sufficient to establish state

23 action by Defendants Marcella Trotsiouk or Igor Trotsiouk. In addition, the allegations as

24 to Defendant Dr. Babenko appear to stem from Defendant Dr. Babenko’s conduct as a

25 private doctor. See FAC ¶¶ 11-17; at 3-4. “As a general matter, private hospitals and

26 doctors are not state actors and therefore cannot be sued under § 1983.” Felix v. Casey,

27 2021 WL 2209828, at *2 (E.D. Cal. June 1, 2021) (citing Briley v. California, 564 F.2d,

28 855-856 (9th Cir. 1977)). Here, Plaintiff has not pled sufficient allegations showing that

1 Defendant Dr. Babenko acted under color of state law, or the involvement of any

2 government actor, in providing medical care to Plaintiff’s mother. Accordingly, Plaintiff’s

3 causes of actions against Defendants Marcella Trotsiouk, Igor Trotsiouk, and Dr.

4 Babenko are dismissed with leave to amend. Plaintiff will be provided an opportunity to

5 amend her FAC, and if she can plead such facts, an amendment must allege sufficient

6 facts that Defendants Marcella Trotsiouk, Igor Trotsiouk, and/or Dr. Babenko acted

7 under color of state law.

8 C. Failure to Comply with Federal Rule of Civil Procedure 8

9 The FAC does not contain a short and plain statement of a claim as required by

10 Federal Rule of Civil Procedure 8. In order to give fair notice of the claims and the

11 grounds on which they rest, a plaintiff must allege with at least some degree of

12 particularity overt acts by specific defendants which support the claims. See Kimes v.

13 Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). A review of Plaintiff’s FAC reveals it consists

14 of “[t]hreadbare recitals of the elements” of her causes of action and fails to state a claim

15 for relief under Section 1983. Iqbal, 556 U.S. at 678.

16 42 U.S.C. § 1983 “provides a cause of action for the deprivation of any rights,

17 privileges, or immunities secured by the Constitution and laws of the United States.”

18 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (internal quotation marks

19 omitted). “Section 1983 is not itself a source of substantive rights but merely provides a

20 method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S.

21 266, 271 (1994) (citation and internal quotation marks omitted). To state a cognizable

22 § 1983 claim, a plaintiff must allege the violation of a right protected by the Constitution

23 and laws of the United States, and that the alleged deprivation was committed by a

24 person who acted under color of state law. 42 U.S.C. § 1983; see also Florer, 639 F.3d

25 at 921. An individual defendant is not liable on a civil rights claim unless the facts

26 establish the defendant's personal involvement in the constitutional deprivation or a

27 causal connection between the defendant's wrongful conduct and the alleged

28 constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989);

1 Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). That is, a plaintiff may not sue

2 any official on the theory that the official is liable for the unconstitutional conduct of his or

3 her subordinates. Iqbal, 556 U.S. at 679.

4 Here, the FAC does not contain facts supporting any cognizable legal claim

5 against the remaining defendants, specifically as to Defendants APS, Sacramento

6 County Sheriff’s Office, and Sheriff Coopper. The Court addresses each of the claims’

7 deficiencies as it relates to Defendants APS, Sacramento County Sheriff’s Office, and

8 Sheriff Cooper.

9 1. Reference to a Prior Complaint

10 For each cause of action against Defendants APS, Sacramento County Sheriff’s

11 Office, and Sheriff Cooper, Plaintiff generally refers the Court to the original complaint

12 filed. See FAC at 3 (“See original complaint already filed”). Plaintiff cannot support her

13 claims by referring the Court to a prior complaint. An amended complaint supersedes a

14 prior complaint and once the amended complaint is filed and served, any previous

15 complaint no longer serves any function in the case. Lacey v. Maricopa Cnty., 693 F.3d

16 896, 927 (9th Cir. 2012). Plaintiff’s reliance on a prior complaint to support her claims

17 against Defendants APS, Sacramento County Sheriff’s Office, and Sheriff Cooper is

18 insufficient to meet the pleading standards articulated in Federal Rule of Civil Procedure

19 8.

20 2. Defendants Sacramento County Adult Protective Services and

21 Sacramento County Sheriff’s Office

22 The FAC seeks to bring Section 1983 claims against Defendants APS and

23 Sacramento County Sheriff’s Department based on municipal liability. FAC at 3. “In order

24 to establish municipal liability [under Monell], a plaintiff must show that a ‘policy or

25 custom’ led to the plaintiff’s injury.” Castro v. County of Los Angeles, 833 F.3d 1060,

26 1073 (9th Cir. 2016) (en banc) (quoting Monell, 436 U.S. at 694 (1978). To impose

27 liability under Monell, a plaintiff must show that (1) she was deprived of a constitutional

28 right; (2) the municipality has a policy; (3) the policy amounts to deliberate indifference to

1 plaintiff's constitutional rights; and (4) the policy is the moving force behind the

2 constitutional violation. Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006) (citing

3 Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1994)). The complaint must identify the

4 particular policy that plaintiff alleges caused his constitutional injury. See Lee v. City of

5 Los Angeles, 250 F.3d 668, 681 (9th Cir. 2002); see also Connick v. Thompson, 563

6 U.S. 51, 60 (2011) (under § 1983, local governments are responsible only for “their own

7 illegal acts,” and therefore to impose liability on a local government, plaintiffs must prove

8 that an “action pursuant to official municipal policy” caused their injury) (citations

9 omitted). Further, the policy at issue must be the result of a decision of a person

10 employed by the entity who has final decision or policymaking authority. Monell, 436

11 U.S. at 694. There must be a direct causal link between the policy or custom and the

12 injury, and a plaintiff must be able to demonstrate that his injury resulted from a

13 permanent and well-settled practice. Anderson, 451 F.3d at 1070.

14 Here, the FAC does not allege any facts that could support a Monell claim.

15 Plaintiff alleges Defendants APS “failed to protect Maria despite multiple complaints and

16 facilitated her unlawful isolation.” FAC ¶ 9. Plaintiff further alleges Defendant

17 Sacramento County Sheriff’s Department is “responsible for law enforcement policies

18 and practices that disregarded Plaintiff’s Power of Attorney and failed to protect Maria.”

19 Id. ¶ 10. Such conclusory allegations are insufficient to state a Monell claim. See

20 Western Mining Council, 643 F.2d at 624. Therefore, the claims against Defendants APS

21 and Sacramento County Sheriff’s Department are dismissed with leave to amend.

22 Plaintiff will be provided an opportunity to amend her FAC, and if she can plead such

23 facts, an amendment must allege specific facts demonstrating Plaintiff’s alleged

24 constitutional violations resulted from Defendants APS and Sacramento County Sheriff’s

25 Department’s “execution of a government’s policy or custom.” Monell, 436 U.S. at 694.

26 3. Defendant Sheriff Jim Cooper

27 The claims against Defendant Sheriff Cooper are dismissed for failure to

28 sufficiently state a claim because the FAC provides only general allegations as to Sheriff

1 Cooper. The FAC as pled does not provide sufficient allegations showing Defendant

2 Sheriff Cooper’s connection or involvement in Plaintiff’s alleged violations. See generally

3 FAC. As best as the Court can tell, Plaintiff appears to name Defendant Sheriff Cooper

4 in his supervisory capacity of the Sacramento County Sheriff’s Department. See FAC

5 ¶ 10. Plaintiff alleges Defendant Sheriff Cooper is “responsible for law enforcement

6 policies and practices that disregarded Plaintiff’s Power of Attorney and failed to protect

7 Maria.” Id. “A supervisor is only liable for constitutional violations of his subordinates if

8 the supervisor participated in or directed the violations, or knew of the violations and

9 failed to act to prevent them. There is no respondeat superior liability under section

10 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Though all claims against

11 Defendant Sheriff Cooper are dismissed, leave to amend will be provided. Plaintiff will be

12 provided an opportunity to amend her FAC, if she can, to allege specific facts

13 demonstrating Defendant Sheriff Cooper’s connection to or involvement in the alleged

14 violations.

15 D. Leave to Amend

16 Although the Federal Rules adopt a flexible pleading policy, even a pro se

17 litigant’s complaint must give fair notice and state the elements of a claim plainly and

18 succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). In

19 light of Plaintiff’s pro se status, and because it is at least conceivable that Plaintiff could

20 allege additional facts to state Section 1983 claims against one or more of the named

21 defendants, the Court finds it appropriate to grant Plaintiff an opportunity to amend the

22 First Amended Complaint. See Lopez, 203 F.3d at 1130-31 (indicating that prior to

23 dismissal, the court is to tell the plaintiff of deficiencies in the complaint and provide an

24 opportunity to cure if it appears at all possible the defects can be corrected).

25 If Plaintiff elects to file an amended complaint, this new pleading shall allege facts

26 establishing the existence of federal jurisdiction and must contain a short and plain

27 statement of Plaintiff's claim. See Fed. R. Civ. P. 8. The allegations of the complaint

28 must be set forth in sequentially numbered paragraphs, with each paragraph number

1 being one greater than the one before, each paragraph having its own number, and no

2 paragraph number being repeated anywhere in the complaint. Each paragraph should

3 be limited “to a single set of circumstances” where possible. See Fed. R. Civ. P. 10(b).

4 Forms are available to help plaintiffs organize their complaint in the proper way. They

5 are available at the Clerk's Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA

6 95814, or online at www.uscourts.gov/forms/pro-se-forms.

7 The amended complaint must not require the court and the defendants to guess

8 at what is being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th

9 Cir. 1996) (affirming dismissal of a complaint where the district court was “literally

10 guessing as to what facts support the legal claims being asserted against certain

11 defendants”). The amended complaint must not require the court to spend its time

12 “preparing the ‘short and plain statement’ which Rule 8 obligated plaintiffs to submit.” Id.

13 at 1180. The amended complaint must not require the court and defendants to prepare

14 lengthy outlines “to determine who is being sued for what.” Id. at 1179.

15 Plaintiff is informed that the court cannot refer to a prior complaint or other filing in

16 order to make the amended complaint complete. Local Rule 220 requires that an

17 amended complaint be complete in itself without reference to any prior pleading. As a

18 general rule, an amended complaint supersedes prior complaint(s), and once the

19 amended complaint is filed and served, any previous complaint no longer serves any

20 function in the case. Lacey, 693 F.3d at 927. The amended complaint should be titled

21 “Second Amended Complaint.”

22 IV. CONCLUSION

23 In accordance with the above, IT IS ORDERED that:

24 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is GRANTED;

25 2. Plaintiff’s First Amended Complaint (ECF No. 12) is DISMISSED without

26 prejudice with leave to amend; and

27 3. Plaintiff shall have 30 days from the date of this order to file an amended

28 complaint that complies with the instructions provided above. If Plaintiff

1 fails to timely comply with this order, the undersigned may recommend that

2 this action be dismissed.

3

4 | Dated: September 8, 2025 C □□ $ \U

5 CHI SOO KIM

6 UNITED STATES MAGISTRATE JUDGE

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