Opinion

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 AMY KIMMONS, No. 2:26-cv-1512-DC-CKD (PS)

12 Plaintiff,

13 v. ORDER AND

14 SACRAMENTO SHERIFF FINDINGS AND RECOMMENDATIONS

DEPARTMENT, et al.

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Defendants.

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17 Plaintiff Amy Kimmons proceeds pro se and in forma pauperis. This matter is referred to

18 the undersigned by Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Plaintiff’s second amended

19 complaint, titled “Eighth Amended Complaint” (SAC), is before the court for screening. For the

20 reasons set forth below, the undersigned recommends dismissal of this action for failure to state a

21 claim.

22 I. Screening Requirement

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

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

25 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is

26 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27

27 (2000). In performing this screening, the court liberally construes a pro se plaintiff’s pleadings.

28 See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).

1 A complaint must contain “a short and plain statement of the claim showing that the

2 pleader is entitled to relief....” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

4 conclusory statements, do not suffice[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While factual allegations are accepted as

6 true, legal conclusions are not. Iqbal, 556 U.S. at 678. Courts “are not required to indulge

7 unwarranted inferences[.]” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

8 (internal quotation marks and citation omitted).

9 Pro se litigants are entitled to have their pleadings liberally construed and to have any

10 doubt resolved in their favor, Eldridge, 832 F.2d at 1137, but a plaintiff’s claims must be facially

11 plausible to survive screening. Facial plausibility for a claim requires sufficient factual detail to

12 allow the court to reasonably infer that a named defendant is liable for the misconduct alleged.

13 Iqbal, 556 U.S. at 678.

14 II. Allegations in the Amended Complaint

15 Plaintiff’s sister’s ex-husband was killed by cartel actors and plaintiff fears gang

16 retaliation, alleging an “active threat” from a named defendant who maintains documented

17 connections to transnational narcotics organizations. (ECF No. 10 at 1.) Plaintiff alleges she is in

18 a position of “state created danger” by defendant Brewster “confirming an active bounty on the

19 minor child” and other defendants “denying protection and facilitating workplace/medical

20 retaliation[.]” (Id. at 2.) Plaintiff also alleges fraud in connection with a permanent restraining

21 order based on collusion to suppress evidence between her former attorney and defendant

22 Shaver’s counsel. (Id.)

23 The named defendants are Sacramento Sheriff, El Dorado County, Folsom Police, Folsom

24 Cordova Unified School District, UC Davis Medical Center, One Community Health, three

25 individuals and Doe defendants (ECF No. 10 at 1.) Plaintiff seeks monetary damages and

26 equitable relief, including an order vacating a state court permanent restraining order and other

27 state court orders. (Id. at 2.) Plaintiff also seeks a “writ of assistance (U.S. Marshal Protection).”

28 (Id. at 2.)

1 III. Discussion

2 At the outset, the court cannot grant plaintiff the newly requested relief in the form of

3 vacating the permanent restraining order or any other state court orders. Federal district courts do

4 not have appellate jurisdiction over state courts. See, e.g., Rooker v. Fid. Trust Co., 263 U.S. 413

5 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482–86 (1983); Bianchi v. Rylaarsdam,

6 334 F.3d 895, 898 (9th Cir. 2003). Under the Rooker–Feldman doctrine, federal courts lack

7 jurisdiction to exercise appellate review over final state court judgments in the manner plaintiff

8 seeks. See id.; Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005).

9 In addition, plaintiff’s due process claim under 42 U.S.C. § 1983 asserting a state created

10 danger appears to arise in part out of child custody orders. The “domestic relations exception”

11 prevents this court from exercising jurisdiction over child custody matters, which are generally

12 considered state law matters. See Ankenbrandt v. Richards, 504 U.S. 689 (1992); Peterson v.

13 Babbitt, 708 F.2d 465, 466 (9th Cir. 1983) (per curiam). Federal abstention under the domestic

14 relations exception is appropriate even if the case is premised on alleged federal constitutional

15 violations. Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987). “If the constitutional claims…

16 have independent merit, the state courts are competent to hear them.” Id.

17 To the extent plaintiff brings a due process claim arising out of matters other than child

18 custody orders, “[t]he Fourteenth Amendment’s Due Process Clause generally does not provide

19 an affirmative right to government aid.” Herrera v. Los Angeles Unified Sch. Dist., 18 F.4th

20 1156, 1158 (9th Cir. 2021). The general rule is that governmental officials such as law

21 enforcement officers are not liable for failing to protect private citizens from the acts of third

22 parties. See Escamilla v. City of Santa Ana, 796 F.2d 266, 270 (9th Cir. 1986). Plaintiff’s vague

23 allegations about failure to protect do not suffice to invoke the state-created danger exception to

24 the general rule. See Martinez v. High, 91 F.4th 1022, 1028-29 (9th Cir.), cert. denied, 145 S. Ct.

25 547 (2024) (“To establish the “state-created danger” exception, a plaintiff must prove two

26 things[:] The officer’s affirmative conduct must expose the plaintiff to a foreseeable danger that

27 she would not otherwise have faced[;] [a]nd the officer must act with deliberate indifference to a

28 known or obvious danger.” (internal quotation marks and citations omitted).)

1 Otherwise, to the extent plaintiff seeks to proceed under 42 U.S.C. § 1983, plaintiff fails

2 to state a claim. Plaintiff does not allege any harm suffered was caused by a policy or custom of a

3 local government entity or one of its departments such that any local government entity defendant

4 could be liable for a constitutional injury. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690

5 (1978); Gant v. Cnty. of Los Angeles, 772 F.3d 608, 617 (9th Cir. 2014). Plaintiff also does not

6 allege facts sufficient to suggest that any individual defendant acting under color of state law

7 personally participated in, and is liable for, a deprivation of plaintiff’s rights. See Simmons v.

8 Navajo Cnty., Ariz., 609 F.3d 1011, 1020 (9th Cir. 2010). As to the medical care defendants,

9 plaintiff has not alleged stated action as required to state a claim under 42 U.S.C. § 1983. See

10 Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991); Van Strum v. Lawn, 940 F.2d 406, 409

11 (9th Cir. 1991).

12 Plaintiff also appears to assert a right to relief under 42 U.S.C. § 1985 for conspiracy to

13 interfere with civil rights. (ECF No. 1 at 1.) Plaintiff fails to state a claim under § 1985. “To state

14 a claim for conspiracy to violate constitutional rights, the plaintiff must state specific facts to

15 support the existence of the claimed conspiracy.” Olsen v. Idaho State Bd. of Medicine, 363 F.3d

16 916, 929 (9th Cir. 2004) (citation and internal quotations omitted). Conclusory allegations that the

17 defendants conspired and acted in concert to violate plaintiff’s rights fail to state a claim. See

18 Twombly, 550 U.S. at 555-557 (naked assertions, labels and conclusions, and formulaic

19 recitations of the elements of a cause of action do not suffice to state a claim).

20 In addition, to state a claim under 42 U.S.C. section 1985(2) or 1985(3), a plaintiff must

21 allege a conspiracy motivated by racial or class-based, invidious animus. See Bray v. Alexandria

22 Women’s Health Clinic, 506 U.S. 263, 267-68 (1993) (section 1985(3)); Portman v. Cnty. of

23 Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993) (second clause of section 1985(2)).1 The SAC

24 does not allege any racial or class-based, invidious animus. The SAC also lacks specific factual

25 allegations to support the existence of the claimed conspiracy.

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1 Section 1985(2) contains two clauses that give rise to separate causes of action. Portman, 995

27 F.2d at 908. The first clause concerns unlawful influence on federal court proceedings and is not

applicable. See id. at 909. In addition, § 1985(1), prohibiting preventing officers of the United

28 States from performing duties, is not applicable.

1 The complaint is also styled as brought under 18 U.S.C. § 3771 and the Crime Victims’

2 Rights Act (CVRA). However, plaintiff has no private right of action under the CVRA. See In re

3 Wild, 994 F.3d 1244, 1252 (11th Cir. 2021) (the CVRA does not authorize a person to file a

4 freestanding civil suit seeking judicial enforcement of her rights under the CVRA).

5 Finally, plaintiff appears to include in the SAC a claim for fraud, which is a state-law

6 claim. See Lazar v. Superior Ct., 12 Cal. 4th 631, 638 (1996) (the elements of fraud are (a)

7 misrepresentation; (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce

8 reliance; (d) justifiable reliance; and (e) resulting damage.”). While a federal court will examine

9 state law to determine whether the elements of fraud have been pled sufficiently to state a cause

10 of action, Rule 9(b) of the Federal Rules of Civil Procedure additionally requires that the

11 circumstances of the fraud be stated with particularity. Fed. R. Civ. P. 9(b).

12 Here, plaintiff’s fraud claim is devoid of supporting facts and fails to state a claim.

13 Moreover, because plaintiff has not stated any federal claim for relief over which this court has

14 original federal question jurisdiction, this court should not exercise supplemental jurisdiction over

15 any state law claims. See 28 U.S.C. § 1367(c)(3) (“district courts may decline to exercise

16 supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over

17 which it has original jurisdiction”); Kokkonen v. Guardian Life Insurance Co. Of America, 511

18 U.S. 375, 377 (1994) (federal courts are courts of limited jurisdiction and hear cases that arise in

19 diversity or present a federal question).

20 IV. Conclusion, Order, and Recommendation

21 For the reasons set forth above, the SAC fails to state a claim upon which relief can be

22 granted. Twice previously, the court has advised plaintiff of the deficiencies in the claims she

23 seeks to bring arising out of these underlying events and omissions. (ECF Nos. 6, 8.) It now

24 clearly appears that granting further leave to amend would be futile. Thus, the SAC should be

25 dismissed without further leave to amend. See California Architectural Bldg. Prod. v. Franciscan

26 Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988) (Valid reasons for denying leave to amend include

27 undue delay, bad faith, prejudice, and futility.”); Klamath-Lake Pharm. Ass’n v. Klamath Med.

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1 |} Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (leave to amend shall be freely given, but the

2 || court does not have to allow futile amendments).

3 For the reasons set forth above, IT IS ORDERED as follows:

4 1. In light of the recommendation that this case be dismissed for failure to state a claim,

5 all pleading, discovery, and motion practice is stayed pending resolution of these

6 findings and recommendations by the assigned district judge.

7 2. With the exception of objections to the findings and recommendations and any non-

8 frivolous motions for emergency relief filed under the Federal Rules of Civil

9 Procedure, the undersigned will not entertain or respond to any motions or other

10 filings until the findings and recommendations are resolved.

1] In addition, IT IS RECOMMENDED as follows:

12 1. Plaintiff's second amended complaint (titled Eighth Amended Complaint) (ECF No.

13 10) be dismissed without further leave to amend for failure to state a claim.

14 2. The Clerk of the Court be directed to close this case.

15 These findings and recommendations are submitted to the United States District Judge

16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

17 || after being served with these findings and recommendations, any party may file written

18 || objections with the court and serve a copy on all parties. Such a document should be captioned

19 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

20 || within the specified time may waive the right to appeal the District Court’s order. Martinez v.

21 | Yist, 951 F.2d 1153 (9th Cir. 1991).

22 | Dated: May 11, 2026 / □□ I / dle ae

24 UNITED STATES MAGISTRATE JUDGE

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