Tin Quoc Phan v. County of Orange

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 SOUTHERN DIVISION

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12 TIN QUOC PHAN, ) No. SA CV 22-105-SB (PLA)

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13 Plaintiff, )

) ORDER DISMISSING COMPLAINT WITH

14 v. ) LEAVE TO AMEND

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15 COUNTY OF ORANGE, et al., )

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16 Defendants. )

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18 On January 21, 2022, plaintiff filed a pro se civil rights action pursuant to 42 U.S.C. § 1983.

19 (ECF No. 1). Plaintiff did not prepay the filing fees and instead submitted a Request to Proceed

20 In Forma Pauperis (“IFP”). (ECF Nos. 2, 4). In his Complaint, plaintiff names as defendants the

21 County of Orange (ECF No. 1 at 2; “County”); Loretta Lopez, a Senior Social Worker in the County

22 (id. at 2); and Lauri Luchonok, a Senior Social Worker in the County (id. at 3). The two individual

23 defendants are named in their official capacities only. (Id. at 2-3). In the portion of the Complaint

24 for plaintiff to state the legal basis for jurisdiction, plaintiff sets forth a lengthy list of “rights” that

25 were violated, including: “life, liberty, and property,” “familial association,” “an active and integral

26 role in childs [sic] life,” “due process,” “the Fourteenth Amendment,” and the “fundamental rights

27 of parents.” In this same list, plaintiff also references “fraud by misrepresentation,” “fraud by

28 concealment profiling [sic],” “biased gender based discrimination,” “retaliation,” “child abuse,” “child

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1 endangerment,” and “gross and intentional negligence [sic].” (Id. at 3). The Complaint lists only

2 one incident date, March 26, 2021. (Id. at 4). Plaintiff’s claims appear to arise from the removal

3 and continued detention of his child. In his statement of the relief that he is seeking in this action,

4 plaintiff references a “previous arbitration order” and alleges that unspecified “county courts would

5 not confirm and dismissed the arbitration ruling.” Plaintiff seeks the return of his child and “relief

6 according to arbitration,” including damages awarded and punitive damages as assessed in that

7 order. (Id. at 7).

8 In accordance with the mandate of 28 U.S.C. § 1915(e)(2), the Court has screened the

9 Complaint to determine whether the action is frivolous or malicious; or fails to state a claim upon

10 which relief may be granted; or seeks monetary relief against a defendant who is immune from

11 such relief. See 28 U.S.C. § 1915(e)(2); Shirley v. Univ. of Idaho, 800 F.3d 1193, 1194 (9th Cir.

12 2015) (citing 28 U.S.C. § 1915(e)(2) and noting that a “district court shall screen and dismiss an

13 action filed by a plaintiff proceeding in forma pauperis”); Calhoun v. Stahl, 254 F.3d 845 (9th Cir.

14 2001) (“the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”). The Court’s

15 screening of the pleading under the foregoing statute is governed by the following standards. A

16 complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack

17 of a cognizable legal theory; or (2) insufficient facts alleged under a cognizable legal theory. See,

18 e.g., Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017); see also Rosati v. Igbinoso,

19 791 F.3d 1037, 1039 (9th Cir. 2015) (“In determining whether a complaint should be dismissed

20 for failure to state a claim under [28 U.S.C. § 1915(e)(2)], we apply the familiar standard of Fed.

21 R. Civ. P. 12(b)(6).”). Further, with respect to a plaintiff’s pleading burden, the Supreme Court has

22 held that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more

23 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will

24 not do. . . . Factual allegations must be enough to raise a right to relief above the speculative

25 level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)

26 (internal citations omitted, alteration in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

27 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (to avoid dismissal for failure to state a claim, “a complaint

28 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

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1 on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the

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

3 (internal citation omitted)).

4 Since plaintiff is appearing pro se, the Court must construe the allegations of the pleading

5 liberally and must afford plaintiff the benefit of any doubt. See Hebbe v. Pliler, 627 F.3d 338, 342

6 (9th Cir. 2010). Further, it is particularly important in a civil rights case filed by a pro se litigant to

7 attempt to ascertain plaintiff’s claims to protect his or her access to the courts. See Blaisdell v.

8 Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013); Pouncil v. Tilton, 704 F.3d 568, 574-75 (9th Cir.

9 2012) (the rule of liberal construction “protects the rights of pro se litigants to self-representation

10 and meaningful access to the courts”). In addition, the Court may not dismiss a claim because

11 a pro se litigant has set forth an incomplete “legal theory supporting the claim” alleged. See

12 Johnson v. City of Shelby, 574 U.S. 10, 11, 135 S. Ct. 346, 190 L. Ed. 2d 309 (2014). Finally, in

13 determining whether a complaint states a claim to relief that is plausible on its face, factual

14 allegations are accepted as true and construed in the light most favorable to plaintiff. See, e.g.,

15 Soltysik v. Padilla, 910 F.3d 438, 444 (9th Cir. 2018). However, the “tenet that a court must

16 accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”

17 Iqbal, 556 U.S. at 678; see also Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (“a

18 court discounts conclusory statements, which are not entitled to the presumption of truth, before

19 determining whether a claim is plausible”). Nor is the Court “bound to accept as true a legal

20 conclusion couched as a factual allegation or an unadorned, the-defendant-unlawfully-harmed-me

21 accusation.” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (internal quotation marks and

22 citations omitted).

23 After careful review of the Complaint under the foregoing standards, the Court finds that

24 plaintiff’s allegations fail to state a short and plain statement of any claim and appear insufficient

25 to state a federal civil rights claim against any defendant. In addition, the Court appears to lack

26 subject matter jurisdiction over this action because plaintiff appears to be seeking relief from an

27 allegedly erroneous state court decision. Accordingly, the Complaint is dismissed with leave to

28 amend. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (a “pro se litigant must be given

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1 leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the

2 complaint cannot be cured by amendment” (internal quotation marks omitted)).

3 If plaintiff desires to pursue any federal civil rights claims in this action, he is

4 ORDERED to file a First Amended Complaint no later than March 7, 2022, remedying the

5 deficiencies discussed below. Further, plaintiff is admonished that, if he fails to timely file

6 a First Amended Complaint or fails to remedy the deficiencies of this pleading as discussed

7 herein, then the Court will recommend that the action be dismissed without further leave

8 to amend.1

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10 A. SUBJECT MATTER JURISDICTION

11 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized

12 by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256, 133 S. Ct. 1059, 1064, 185 L.

13 Ed. 2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S. Ct. 1673,

14 128 L. Ed. 2d 391 (1994)). “A federal court is presumed to lack jurisdiction in a particular case

15 unless the contrary affirmatively appears.” Stevedoring Servs. of Am. v. Eggert, 953 F.2d 552,

16 554 (9th Cir. 1992); see also Scholastic Entm’t, Inc. v. Fox Entm’t Grp., Inc., 336 F.3d 982, 985

17 (9th Cir. 2003) (a court may dismiss sua sponte for lack of subject matter jurisdiction without

18 violating due process). A plaintiff must present a federal question on the face of a complaint. See

19 Rivet v. Regions Bank, 522 U.S. 470, 475, 118 S. Ct. 921, 139 L. Ed. 2d 912 (1998); Provincial

20 Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1086 (9th Cir. 2009) (in order for a

21 federal court to exercise federal question jurisdiction under § 1331, “the federal question must be

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1 Plaintiff is advised that this Court’s determination herein that the allegations in the

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Complaint are insufficient to state a particular claim should not be seen as dispositive of that claim.

24 Accordingly, while this Court believes that you have failed to plead sufficient factual matter in your

pleading, accepted as true, to state a claim to relief that is plausible on its face, you are not

25 required to omit any claim or defendant in order to pursue this action. However, if you decide to

pursue a claim in a First Amended Complaint that this Court has found to be insufficient, then this

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Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned district

judge a recommendation that such claim be dismissed with prejudice for failure to state a claim,

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subject to your right at that time to file Objections with the district judge as provided in the Local

28 Rules Governing Duties of Magistrate Judges.

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1 disclosed upon the face of the complaint” (internal quotation marks omitted)). A “plaintiff bears

2 the burden of proving” the existence of subject matter jurisdiction and “must allege facts, not mere

3 legal conclusions” to invoke the court’s jurisdiction. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th

4 Cir. 2014). “Absent a substantial federal question,” a district court lacks subject matter jurisdiction,

5 and claims that are “wholly insubstantial,” or “obviously frivolous,” are insufficient to “raise a

6 substantial federal question for jurisdictional purposes.” Shapiro v. McManus, 577 U.S. 39, 45-46,

7 136 S. Ct. 450, 193 L. Ed. 2d 279 (2015). Additionally, a federal court has an obligation to assure

8 itself of jurisdiction before proceeding to the merits of any case. See Lance v. Coffman, 549 U.S.

9 437, 439, 127 S. Ct. 1194, 167 L. Ed. 2d 29 (2007).

10 Here, plaintiff names as defendants the County and two social workers who appear to work

11 for the County. Plaintiff appears to seek only the enforcement of an arbitration ruling regarding

12 custody of his child. This Court does not have jurisdiction over the enforcement of an arbitration

13 order that appears to pertain to a state court juvenile dependency proceeding. (See, e.g., ECF

14 No. 1 at 7, 9, 18-19, 34). Further, although plaintiff references several federal civil rights (id. at

15 3), the pleading does not purport to raise any specific federal civil rights claim against any named

16 defendant. To the extent that plaintiff is alleging that the actions of any defendant violated state

17 law, an alleged violation of state law cannot give rise to a federal civil rights claim. See, e.g.,

18 Galen v. Cnty. of L.A., 477 F.3d 652, 662 (9th Cir. 2007) (“Section 1983 requires [a plaintiff] to

19 demonstrate a violation of federal law, not state law.”); Ove v. Gwinn, 264 F3d 817, 823 (9th Cir.

20 2001) (an alleged violation of California law fails to state a claim under § 1983).

21 Further, to the extent that plaintiff is purporting to allege that a California Superior Court

22 erred in failing to enforce a valid arbitration ruling in plaintiff’s favor, as noted above, Federal

23 District Courts may exercise only original jurisdiction; they may not exercise appellate jurisdiction

24 over state court decisions. See District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 482-

25 86, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983); Rooker v. Fid, Tr, Co., 263 U.S. 413, 415-16, 44 S.

26 Ct. 149, 68 L. Ed. 362 (1923). Review of state court decisions may be conducted only by the

27 United States Supreme Court. See Feldman, 460 U.S. at 476, 486; Rooker, 263 U.S. at 416; see

28 also 28 U.S.C. § 1257. Rooker-Feldman bars cases “brought by state-court losers complaining

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1 of injuries caused by state-court judgments rendered before the district court proceedings

2 commenced and inviting district court review and rejection of those judgments.” Exxon Mobil

3 Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005).

4 The Rooker-Feldman doctrine applies even when the challenge to the state court decision involves

5 federal constitutional issues. See Dubinka v. Judges of the Supe. Ct., 23 F.3d 218, 221 (9th Cir.

6 1994); Worldwide Church of God v. McNair, 805 F.2d 888, 891 (9th Cir. 1986). Further, “Rooker-

7 Feldman bars any suit that seeks to disrupt or ‘undo’ a prior state-court judgment, regardless of

8 whether the state-court proceeding afforded the federal-court plaintiff a full and fair opportunity to

9 litigate her claims.” See Bianchi v. Rylaarsdam, 334 F.3d 895, 901 (9th Cir. 2003) (internal

10 quotation marks omitted). In addition, the Rooker-Feldman doctrine is applicable even if plaintiff’s

11 state court appeals are not final, as long as the state courts have resolved the issue that the

12 plaintiff is seeking to litigate in a federal forum. See Mothershed v. Justices of the Supreme Court,

13 410 F.3d 602, 604 n.1 (9th Cir. 2005) (as amended); Worldwide Church of God, 805 F.2d at 893

14 n.3.

15 To the extent that plaintiff is alleging that he suffered a legal wrong caused by an allegedly

16 erroneous decision of a state court, and he seeks relief from a state court decision, the Court lacks

17 jurisdiction over such “de facto appeal.” See, e.g., Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir.

18 2003). In addition, if plaintiff is attempting to bring a de facto appeal, then plaintiff also is barred

19 from litigating any claims that are “inextricably intertwined” with issues in that de facto appeal. See

20 Cooper v. Ramos, 704 F.3d 772, 782 (9th Cir. 2012) (Rooker-Feldman also applies where federal

21 adjudication of an issue “would impermissibly undercut the state ruling on the same issues”

22 (internal quotation marks omitted)); see also Feldman, 460 U.S. at 483 n.16 (stating that “[i]f the

23 constitutional claims presented to a United States District Court are inextricably intertwined with

24 the state court’s [decision], then the District Court is in essence being called upon to review the

25 state court decision”). Here, it appears to the Court that plaintiff is seeking to have this Court

26 review the decision of a state court not to enforce an arbitration order. To grant plaintiff the relief

27 that he seeks in this action, the Court would be required to review and reject the state court’s

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1 decision in the juvenile dependency action. Such de facto appeal is forbidden under the Rooker-

2 Feldman doctrine.

3 Moreover, because plaintiff appears to be attempting to bring a de facto appeal of a state

4 court decision in which he was the “loser,” the Rooker-Feldman doctrine also bars plaintiff from

5 adjudicating in federal court any claim that is inextricably intertwined with the state court’s

6 decision. Here, to the extent that the Court can discern any claim that plaintiff may be raising, any

7 claim appears to pertain to allegedly wrongful actions taken in connection with the state court

8 juvenile dependency proceeding. Accordingly, those claims can only succeed in this action “to

9 the extent that the state court wrongly decided the issues before it,” and a decision by this Court

10 in plaintiff’s favor would impermissibly undercut the state court’s decisions.

11 Therefore, this Court appears to lack subject matter jurisdiction over plaintiff’s federal civil

12 rights claims.

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14 B. FEDERAL RULE OF CIVIL PROCEDURE 8 (“RULE 8”)

15 Plaintiff’s Complaint fails to comply with Rule 8(a) and Rule 8(d). Rule 8(a) states:

16 A pleading that states a claim for relief must contain: (1) a short and plain statement

of the grounds for the court’s jurisdiction, unless the court already has jurisdiction

17 and the claim needs no new jurisdictional support; (2) a short and plain statement

of the claim showing that the pleader is entitled to relief; and (3) a demand for

18 the relief sought, which may include relief in the alternative or different types of

relief.

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20 Fed. R. Civ. P. 8(a) (emphasis added). Additionally, Rule 8(d)(1) provides: “Each allegation must

21 be simple, concise, and direct. No technical form is required.” Fed. R. Civ. P. 8(d)(1)

22 (emphasis added). Although the Court must construe a pro se plaintiff’s pleadings liberally, a

23 plaintiff nonetheless must allege a minimum factual and legal basis for each claim that is sufficient

24 to give each defendant fair notice of what plaintiff’s claims are and the grounds upon which they

25 rest. See, e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v.

26 Block, 932 F.2d 795, 798 (9th Cir. 1991) (complaint must give defendants “fair notice of the claims

27 against them”). If a plaintiff fails to clearly and concisely set forth factual allegations sufficient to

28 provide defendants with notice of which defendant is being sued on which theory and what relief

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1 is being sought against them, the complaint fails to comply with Rule 8. See, e.g., McHenry v.

2 Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996); Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674

3 (9th Cir. 1981). A claim has “substantive plausibility” if a plaintiff alleges “simply, concisely, and

4 directly [the] events” that entitle him to damages. Johnson, 574 U.S. at 12. Moreover, failure to

5 comply with Rule 8 constitutes an independent basis for dismissal of a complaint that applies even

6 if the claims in a complaint are not found to be wholly without merit. See McHenry, 84 F.3d at

7 1179.

8 As the Supreme Court has made clear, in order to state a claim against a particular

9 defendant, plaintiff must allege sufficient factual allegations against that defendant to nudge each

10 claim he wishes to raise “across the line from conceivable to plausible.” See Bell Atl. Corp., 550

11 U.S. at 570. Here, plaintiff’s Complaint does not clearly allege any particular claim against any

12 named defendant. In order to state a federal civil rights claim against a specific defendant, plaintiff

13 must allege that such defendant, while acting under color of state law, deprived him of a right

14 guaranteed under the Constitution or a federal statute. See West v. Atkins, 487 U.S. 42, 48, 108

15 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). “A person deprives another ‘of a constitutional right, within

16 the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative

17 acts, or omits to perform an act which he is legally required to do that causes the deprivation of

18 which [the plaintiff complains].’” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoting

19 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (emphasis and alteration in original)). Here,

20 plaintiff does not set forth any factual allegations showing that any specific official took an

21 affirmative act, participated in another’s affirmative act, or failed to perform an act that he or she

22 was legally required to do that caused plaintiff to suffer a constitutional deprivation. Rather,

23 plaintiff’s Complaint includes a lengthy list of possible legal grounds arising under both federal and

24 state law, and plaintiff does not purport to link any of the alleged deprivations or injuries to any

25 defendant. Further, plaintiff fails to support any injury he allegedly suffered with factual allegations

26 showing how any named defendant caused such injury. As the Supreme Court has held, a

27 pleading does not satisfy Rule 8 if it merely states a “defendant-unlawfully-harmed-me accusation”

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1 or sets forth “naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678

2 (alteration in original, internal quotation marks omitted).

3 In addition, the format of plaintiff’s 68-page Complaint is confusing, and it fails to satisfy the

4 requirement of Rule 8 that a pleading be sufficient to provide each defendant with fair notice of

5 what claim is being raised against them. See, e.g., McKeever, 932 F.2d at 798. The Complaint

6 does not set forth separate claims against each defendant. Rather, following his list of possible

7 Constitutional deprivations and violations of state law (ECF No. 1 at 3), plaintiff merely references

8 an “Attachment to C” (id. at 4). What follows is a “Declaration” on a form from the Superior Court

9 of California that is not dated. This document is filled with single-spaced un-numbered lines in

10 very small typeface. (Id. at 5). Plaintiff then includes a one-page document (also undated) that

11 is entitled “Attachment . . . C-attachment,” which has a note on the bottom stating that: “This C-

12 attachment will replace attachment-C of original complaint. I mistakingly [sic] submitted the wrong

13 attachment which was a talk to text version I would never knowingly have submitted.” (Id. at 6).

14 Plaintiff, however, has filed only one version of his Complaint in this action, so it is unclear what

15 attachment he desires to replace. Following the “C-attachment” is plaintiff’s request for relief and

16 his signature page, which is confusingly dated January 10, 2021 [sic]. (Id. at 7-8). Plaintiff then

17 attaches other documents that appear to relate to the juvenile dependency action in state court

18 (id. at 9-24 (one dated May 24, 2021 (id. at 17), one dated June 7, 2021 (id. at 20))), and another

19 declaration of plaintiff (id. at 50-52 (dated September 2, 2021)). Plaintiff also attached documents

20 pertaining to a “Notice of Demand for Emergency Arbitration” and an arbitration order on a

21 letterhead “Online Contract Arbitration,” which is dated June 17, 2021. (Id. at 25-48). Several

22 other attachments appear to be letters from supporters that plaintiff submitted in the juvenile

23 dependency action. (Id. at 55-58). Plaintiff also attaches family photographs without any

24 explanation of their relevance to the claims raised in this action. (Id. at 59-68). It is not clear to

25 the Court how any of these attachments pertain to any claim that plaintiff is raising in this action

26 against any defendant named in this action. Moreover, although plaintiff is proceeding pro se, he

27 must comply with the Federal Rules of Civil Procedure and the Local Rules of the District Court

28 for the Central District of California during this case. See, e.g., Briones v. Riviera Hotel & Casino,

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1 116 F.3d 379, 382 (9th Cir. 1997) (“pro se litigants are not excused from following court rules”);

2 see also L.R. 83-2.2.3 (“Any person appearing pro se is required to comply with these Local Rules

3 and with” the Federal Rules.). Plaintiff’s Complaint violates Local Rules, inter alia, concerning

4 typeface requirements, the limitation of only 28 numbered lines per page, and the requirement that

5 each page of a pleading be numbered consecutively. See, e.g., L.R. 11-3.1, 11-3.1.1, 11-3.2, 11-

6 3.3, 11-3.6, 11-3.8. In addition, plaintiff appears to include documents filed in a Superior Court

7 action that do not appear to be relevant to claims raised herein. To the extent that plaintiff believes

8 that any exhibit is essential to a claim raised in an amended pleading, then he should attach such

9 document at the end of the pleading as an exhibit and clearly allege the relevance of each

10 attached document to the applicable claim raised within his amended pleading.

11 Additionally, because plaintiff’s Complaint does not purport to raise any specific claim, it is

12 not clear to the Court how many claims plaintiff is raising or what claim he is raising against which

13 defendant. Further, plaintiff’s Complaint largely fails to allege specific facts against any individual

14 defendant. Moreover, plaintiff’s pleading fails to clearly allege that the actions or failure to act by

15 any named defendant caused plaintiff to suffer a particular federal Constitutional deprivation.

16 Although the Court may not dismiss a claim because a pro se plaintiff has failed to set forth a

17 complete legal theory to support the claim alleged, plaintiff, at a minimum, must set forth a short

18 and plain statement of the factual basis for his claims sufficient to give defendants fair notice of

19 the grounds for each claim that he wishes to raise against each defendant. See Johnson, 574

20 U.S. at 11; McKeever, 932 F.2d at 798 (a complaint must give defendants “fair notice of the claims

21 against them”). Further, the Supreme Court has made clear that the Court has “no obligation to

22 act as counsel or paralegal to pro se litigants.” Pliler v. Ford, 542 U.S. 225, 231, 124 S. Ct. 2441,

23 159 L. Ed. 2d 338 (2004); see also Noll, 809 F.2d at 1448 (“courts should not have to serve as

24 advocates for pro se litigants”). In order to state a claim upon which relief may be granted, plaintiff

25 must allege sufficient facts, accepted as true, to state a claim against a defendant who is acting

26 under color of state law that is plausible on its face. See, e.g., Iqbal, 556 U.S. at 678. Here,

27 plaintiff fails to set forth sufficient and specific factual allegations against any defendant to support

28 a plausible federal civil rights claim against a named defendant. Plaintiff’s bare and unsupported

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1 allegations that defendants caused the “illegal removal” of his child by “misrepresenting the truth”

2 (ECF No. 1 at 6-7) are entirely insufficient to raise an inference that a specific defendant took an

3 action, participated in the action of another, or failed to take an action that he or she was legally

4 obligated to do that caused plaintiff to suffer a federal civil rights deprivation. See, e.g., Bell Atl.

5 Corp., 550 U.S. at 556 (“an allegation of parallel conduct and a bare assertion of conspiracy will

6 not suffice”). A pleading that fails to raise more than a “mere possibility of misconduct” is

7 insufficient to show that the “pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal quotation

8 marks omitted).

9 Further, plaintiff appears to be alleging that the two individual defendants, who both are

10 identified as social workers (ECF No. 1 at 2-3), “falsely presented” unspecified evidence in

11 connection with a restraining order against plaintiff that appears to have been related to the

12 removal of plaintiff’s child from his custody. (Id. at 6). Plaintiff also alleges that the “truth has been

13 covered up in family court,” but he does not allege that any defendant took a deliberate action to

14 present false evidence in the dependency proceeding. (Id.). Rather, plaintiff appears to allege

15 that one defendant, Lopez, instructed the mother of his child to request a restraining order against

16 plaintiff; the mother knew that the allegations used in the restraining order where false; the “police”

17 knew about unspecified “lies”; and the child was removed by unspecified individuals based on the

18 “falsified restraining order.” (Id. at 4-5). It does not appear from the factual allegations in the

19 Complaint that any named defendant deliberately fabricated evidence that caused plaintiff to suffer

20 a constitutional injury during the juvenile court proceedings. To the extent that plaintiff is

21 purporting to allege that either named social worker violated his federal due process rights by

22 presenting false information in connection with the juvenile dependency action, plaintiff should set

23 forth facts showing how each defendant made: “(1) a misrepresentation or omission (2) [that was]

24 made deliberately or with a reckless disregard for the truth, that was (3) material to the judicial

25 decision.” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1147 (9th Cir. 2021); see also Keates

26 v. Koile, 883 F.3d 1228, 1240 (9th Cir. 2018). Further, if plaintiff wishes to proceed with such a

27 claim against any defendant, then he must satisfy the heightened pleading standard of Federal

28 Rule of Civil Procedure 9(b). Pursuant to Rule 9(b), a plaintiff must allege “with particularity the

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1 circumstances constituting fraud.” Accordingly, plaintiff should set forth in an amended pleading

2 a simple, concise, and direct account of “the who, what, when, and where” of each allegedly false

3 statement. See, e.g., Benavidez, 993 F.3d at 1145, 48-49 (citing Fed. R. Civ. P. 9(b)’s heightened

4 pleading standard in a claim alleging judicial deception in a juvenile dependency proceeding).

5 Here, plaintiff’s Complaint does not purport to identify with particularity any fabrication made by

6 any named defendant.

7 Accordingly, the Court finds that the Complaint fails to comply with Rule 8 and fails to set

8 forth a “short and plain statement” showing the factual basis for any federal civil rights claim

9 against any named defendant. A pleading that merely alleges “naked assertion[s] devoid of further

10 factual enhancement” is insufficient to comply with Rule 8. See Iqbal, 556 U.S. at 678 (alteration

11 in original, internal quotation marks omitted). Further, plaintiff’s factual allegations fall far short of

12 raising a purported right to relief on any federal claim beyond the speculative level. See Bell Atl.

13 Corp., 550 U.S. at 555. The Court additionally finds that plaintiff has failed to meet his burden of

14 alleging facts, not mere legal conclusions, to support subject matter jurisdiction. See, e.g.,

15 Shapiro, 577 U.S. at 45-46 (“Absent a substantial federal question,” a district court lacks subject

16 matter jurisdiction, and claims that are “wholly insubstantial,” or “obviously frivolous,” are

17 insufficient to “raise a substantial federal question for jurisdictional purposes.”).

18

19 C. MONELL LIABILITY

20 Plaintiff names as defendants only the County and two individuals in their official capacities.

21 The Supreme Court has held that an “official-capacity suit is, in all respects other than name, to

22 be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099,

23 87 L. Ed. 2d 114 (1985). Such a suit “is not a suit against the official personally, for the real party

24 in interest is the entity.” Id. at 166 (emphasis omitted). In this case, plaintiff names the individual

25 defendants only in their official capacity, and they appear to be employees of the County.

26 Accordingly, plaintiff’s claims against County employees in their official capacities is the same as

27 his claims against the County.

28

12

Case 8:22-cv-00105-SB-PLA Document 10 Filed 02/07/22 Page 13 of 14 Page ID #:98

1 To the extent that plaintiff is purporting to state a federal civil rights claim against the

2 County pursuant to Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56

3 L. Ed. 2d 611 (1978), the Supreme Court in Monell held that “a local government may not be sued

4 under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution

5 of a government's policy or custom, whether made by its lawmakers or by those whose edicts or

6 acts may fairly be said to represent official policy, inflicts the injury that the government as an

7 entity is responsible under § 1983.” Monell, 436 U.S. at 694; see also Connick v. Thompson, 563

8 U.S. 51, 60, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011) (“under § 1983, local governments are

9 responsible only for their own illegal acts” (emphasis and internal quotation marks omitted)). To

10 state a claim arising from the execution of a local entity’s policy or custom, a plaintiff must set forth

11 factual allegations to show that the execution of a specific policy, ordinance, regulation, custom

12 or the like was the “actionable cause” of any alleged constitutional violation. See Tsao v. Desert

13 Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012) (“a plaintiff must also show that the policy at

14 issue was the ‘actionable cause’ of the constitutional violation, which requires showing both but

15 for and proximate causation”). Moreover, a Monell claim may not be premised on an isolated or

16 sporadic incident. See, e.g., Gant v. Cnty. of L.A., 772 F.3d 608, 618 (9th Cir. 2014) (a plaintiff

17 does not establish liability under Monell without showing that “a single incident of unconstitutional

18 actively” was more than an “isolated or sporadic” incident); Trevino v. Gates, 99 F.3d 911, 918 (9th

19 Cir. 1996) (“Liability for improper custom may not be predicated on isolated or sporadic incidents;

20 it must be founded upon practices of sufficient duration, frequency and consistency that the

21 conduct has become a traditional method of carrying out policy.”).

22 Here, plaintiff’s Complaint only alleges a single incident pertaining to the removal of his

23 child from his custody. The Complaint does not set forth any factual allegations concerning any

24 specific practice, policy, or custom of the County that he alleges was a “traditional method of

25 carrying out policy” and which is alleged to have caused him to suffer a constitutional violation in

26 connection with this incident. Accordingly, plaintiff’s factual allegations fail to raise a federal civil

27 rights claim to relief that is plausible on its face against the County or the two County employees

28 in their official capacities.

13

Case 8:22-cv-00105-SB-PLA Document 10 Filed 02/07/22 Page 14of14 Page ID #:99

1 kok &

2 Because plaintiff is proceeding pro se in this civil rights action, the Court will provide him

3] with an opportunity to amend. Based on the above deficiencies, plaintiff's Complaint is dismissed

4] with leave to amend. If plaintiff desires to pursue this action, he is ORDERED to file a First

5 || Amended Complaint no later than March 7, 2022, remedying the deficiencies discussed herein.

6] Further, plaintiff is admonished that, if he fails to timely file a First Amended Complaint or fails to

7| remedy the deficiencies of his pleading as discussed herein, the Court will recommend that the

8| action be dismissed without further leave to amend and with prejudice.

9 The First Amended Complaint must bear the docket number assigned in this case; be

□□ □ labeled “First Amended Complaint’; and be complete in and of itself without reference to the

11] original Complaint or any other attachment or document. Each claim plaintiff alleges must clearly

12 || set forth which defendant(s) is alleged to be responsible for the alleged violation, and clearly and

concisely reference the factual allegations that are relevant to each claim. Further, if plaintiff

chooses to proceed with this action, then plaintiff must use the blank Central District civil rights

□□□ complaint form accompanying this order, must sign and date the form, must completely and

16| accurately fill out the form, and must use the space provided in the form to set forth all of the

17 || claims that he wishes to assert in a First Amended Complaint. Plaintiff must also comply with the

18 | Local Rules of this Court. The Clerk is directed to provide plaintiff with a blank Central District civil

19] rights complaint form.

20 In addition, if plaintiff no longer wishes to pursue this action, he may request a voluntary

21] dismissal of the action pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. The clerk

also is directed to attach a Notice of Dismissal form for plaintiff's convenience.

23 IT IS SO ORDERED.

24 Cm Fat XK. Mram=t-

25|| DATED: February 7, 2022

PAUL L. ABRAMS

26 UNITED STATES MAGISTRATE JUDGE

27

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