Capolupo v. Eills

• Court: District Court, N.D. California
• Decided: December 5, 2019
• Docket: 1:18-cv-07458
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 CARRIE ANN CAPOLUPO, Case No. 18-cv-07458-RMI

9 Plaintiff, ORDER ON MOTION TO DISMISS 10 v. PLAINTIFF’S SECOND AMENDED COMPLAINT 11 KRISTEN EILLS, et al., Re: Dkt. No. 51 12 Defendants.

13 14 Now pending before the court is Defendants’ Motion (dkt. 51) seeking dismissal of 15 Plaintiff’s Second Amended Complaint (“SAC”) (dkt. 49) without further leave to amend. 16 Plaintiff has responded (dkt. 54), and Defendants have replied (dkt. 55). For the reasons stated 17 below, Defendants’ Motion is granted in part and denied in part. 18 BACKGROUND 19 Proceeding pro se, Plaintiff, Carrie Capolupo, filed an original complaint against two 20 social workers, an attorney for Humboldt County, and Humboldt County Child Protective 21 Services, for violating her rights to privacy and to the free exercise of her religion. Compl. (dkt. 1). 22 In lieu of an Answer, Defendants moved to dismiss (dkt. 13), which was followed by Plaintiff’s 23 First Amended Complaint, naming the same two social workers and county counsel, but replacing 24 Humboldt County Child Protective Services with Humboldt County in the caption. First Amend. 25 Compl. (“FAC”) (dkt. 19) at 1. Defendants then moved to dismiss the FAC (dkt. 21), which the 26 court granted without prejudice, allowing Plaintiff an opportunity to cure the lack of adequate 27 factual allegations to support the claims in the FAC by way of another amendment (dkt. 48). The 1 Plaintiff’s claim of interference with her religious freedom and retaliation for her religious 2 practice, the court dismissed this claim with leave to amend such that Plaintiff could cure the 3 insufficiency of alleging nothing more than a disagreement with a court-ordered medical 4 examination of Plaintiff’s minor child as part of a routine child welfare investigation based on 5 what Plaintiff believes was a baseless referral from Plaintiff’s own parents. See Order Dismissing 6 FAC (dkt. 48) at 11-12 (“In amending, rather than relying on conclusory statements, Plaintiff must 7 include actual facts that explain precisely what happened, and why it would constitute a violation 8 of her religious beliefs and form the basis of a constitutional claim.”). Second, Plaintiff’s FAC 9 presented a Fourth Amendment claim, and the court found all but one of its supporting allegations 10 were incapable of supporting any cognizable Fourth Amendment claim; however, the court did 11 note that “to the extent that Plaintiff wishes to complain about the sheriff’s deputies [who 12 accompanied the social workers and] reportedly instructed her to sit on her couch and reportedly 13 grabbed her phone, the court notes again that Plaintiff has not named any law enforcement officers 14 in this action.” Id. at 12-13. Third, the FAC presented a Due Process claim, challenging the 15 issuance and execution of the court order requiring a medical examination of Plaintiff’s child, 16 specifically, that there was a 1-day delay in the execution of the order beyond its 72-hour limit; the 17 court found that Plaintiff had not alleged any prejudice stemming from the delay, and accordingly 18 Plaintiff was granted leave to amend this claim as well. Id. at 13-14. Lastly, because Plaintiff 19 named Humboldt County as a Defendant in the FAC but had not alleged sufficient facts to state a 20 claim of municipal liability, the court described the standards governing claims against 21 municipalities and granted leave to amend this claim in order to provide sufficient allegations of 22 fact in line with those standards. Id. at 14-15. 23 Plaintiff’s Claims: 24 Thereafter, Plaintiff filed a Second Amended Complaint (“SAC”) (dkt. 49) which is the 25 subject of the pending motion to dismiss. The SAC consists of an introduction, a section about 26 jurisdiction, a lengthy preamble entitled, “Claim Against Public Entity County of Humboldt, 27 Humboldt County Department of Health Human Services / Social Services” (id. at 2-19), followed 1 punitive damages, as well as attorneys’ fees and costs (id. at 27-28). In the preamble, Plaintiff 2 mentions two previously unnamed persons, Connie Beck and Yvonne Winter, Humboldt County’s 3 Social Services Director and Social Services Supervisor, respectively. Id. at 4. Plaintiff 4 denominates them as “defendants,” but she does not allege any specific facts pertaining to them 5 nor did she name them in any of the eleven numbered claims. Id. 6 Plaintiff’s first five claims each expressly name the following defendants – Humboldt 7 County itself, an unspecified number of unidentified Sheriff’s Deputies, as well as individual 8 Defendants Deputy County Counsel Rory Kalin and social workers Kristen Ellis, Kimberly 9 Schneider, and Juan Carlos Enriquez-Paredes. See id. at 19-22. In Claim-1, Plaintiff contends that, 10 through instituting and conducting child welfare proceedings, Defendants collectively deprived 11 Plaintiff of her right to freely express her religious beliefs and denied her right to privacy by 12 subjecting her to threats, using excessive force, and maliciously prosecuting her to deter her from 13 practicing her religion. Id. at 19. In Claim-2, Plaintiff submits that Defendants violated her right to 14 be free from unreasonable searches and seizures. Id. at 20. Claim-3 alleges that Defendants 15 subjected Plaintiff to excessive force. Id. at 21. In Claim-4, Plaintiff argues that the institution of 16 the child welfare proceedings “constituted malicious prosecution in that there was no basis for the 17 Plaintiffs’ (sic) seizure, yet Defendants continued with the prosecutions, which were resolved in 18 Plaintiffs’ (sic) favor.” Id. at 21-22. In Claim-5, Plaintiff submits that Defendants subjected her to 19 a “deprivation of liberty without due process of law.” Id. at 22. 20 In Claim-6, alleging municipal liability, Plaintiff contends that Defendant Humboldt 21 County, acting through its Department of Health and Human Services, “developed, implemented, 22 enforced, encouraged and sanctioned de facto policies, practices, and/or customs exhibiting 23 deliberate indifference [to] the Plaintiffs’ (sic) constitutional rights which cause[d] the violation of 24 such rights.” Id. at 23. Specifically, Plaintiff argues that these actions were willfully done with the 25 specific intent to deprive Plaintiff of her rights under the First, Fourth, Fifth, and Fourteenth 26 Amendments to the Constitution. Id. at 23-24. In Claim-7, Plaintiff submits that Defendants 27 violated Article I, Section-4, of the California Constitution by “discriminating against Plaintiff[’]s 1 done without lawful justification or jurisdiction, and were designed to and did cause specific and 2 serious psychological [damage] and suffering . . . .” Id. at 24-25. In Claim-8, Plaintiff argues that 3 Defendants violated Article I, Section-13, of the California Constitution by subjecting Plaintiff “to 4 unlawful search and seizure, [such that she was] coerced or forced out of her residence [which 5 was] done without reasonable suspicion or probable cause . . . .” Id. at 25. In Claim-9, a malicious 6 prosecution claim under the common law of California, Plaintiff submits that Defendants 7 “maliciously commenced [j]uvenile proceedings against Plaintiff[’]s children . . . falsely and 8 without probable cause . . . [that] were terminated/dismissed/unfound (sic) in Plaintiff[’]s favor.” 9 Id. at 25-26. In Claim-10, brought under the California Unruh Civil Rights Act, Plaintiff contends 10 that “[b]y conducting the complained of search in the manner described herein, [D]efendants 11 interfered with [P]laintiff’s federal and state constitutional and statutory rights by means of threats, 12 intimidation, and/or coercion . . . .” Id. at 26-27. Lastly, in Claim-11, Plaintiff submits that “[b]y 13 conducting the complained of search in the manner described,” Defendants Schneider, Enriquez- 14 Paredes, the unidentified Sheriff’s Deputies, and the County of Humboldt, violated § 4030 of the 15 California Penal Code. Id. at 27. 16 Plaintiff’s Factual Allegations: 17 By way of facts, the SAC contains largely the same set of factual allegations that were 18 pleaded in the FAC. The SAC alleges that the petition for an investigatory medical examination of 19 Plaintiff’s child was taken before a judge without prior notice to Plaintiff. SAC at 8. While the 20 SAC offers more by way of argument and less by way of a description of those court proceedings, 21 Plaintiff’s Response to Defendants’ Motion to Dismiss relies upon and makes repeated references 22 to the records of those proceedings (see Pl.’s Opp. (dkt. 54) at 8, 9, 17-18, 21), which have been 23 filed in this court, and of which this court has already taken judicial notice. See Order (dkt. 48) at 7 24 n.3. Those court records constitute the application for a warrant as well as the associated findings 25 and orders of Judge Hinrichs of the Humboldt County Superior Court, Juvenile Division. See 26 Defs.’ Mot., Exh. A (dkt. 23-1 *SEALED*) at 2-9. The facts contained within the SAC as well as 27 the records of the child welfare proceedings are as follows. 1 I.A. (age 1 in 2017)1 and Plaintiff’s son B.M.K (age 4 in 2017) with another father. Id. at 8. 2 During the time period in question, the children resided in Manilla, California, with Plaintiff and 3 R.R.’s father, Derrick Andrews. Id. Plaintiff and Mr. Andrews were reported to practice a religion 4 that involves certain purification rituals. Id. According to the referral, “[t]he baby is bathed daily 5 by the mother, who boils water and pours the boiling water onto the baby’s pressure points and 6 artery-fed organs, including the genitals, bottom, belly button, and over the heart and kidneys.” Id. 7 The referral added that Plaintiff believes that this process “strengthen[ed] the child’s organs.” Id. 8 The following day, Child Welfare Services (“CWS”) dispatched social-worker Defendants 9 Schneider and Enriquez-Paredes to Plaintiff’s home in Manilla, accompanied by a number of 10 Humboldt County Sheriff’s Office deputies. Id. Once there, Plaintiff and Mr. Andrews would not 11 allow the social workers or deputies to enter the home or to see the children; at which point 12 Defendant Schneider told Plaintiff that if the parents would not allow the social workers to see the 13 children, a warrant would be sought. Id. At this point, Plaintiff was reported to have told 14 Defendant Schneider that the purification ritual in question involves boiling water with tea, 15 placing rags into the hot tea, and then wrapping her infant daughter with those rags. Id. Plaintiff 16 also alleges that she “chose to explain the customs of aborigines” to the social worker Defendants. 17 See SAC at 7-8. During this conversation, Mr. Andrews was reported to have scaled a fence, 18 climbed onto the rooftop of his residence, shouted “that he was going to climb a mountain to 19 preach,” bemoaned his displeasure with the “social worker devils,” and complained more 20 generally about “crimes committed against his people.” Id. This apparently caused the social 21 workers and deputies to leave the residence. Id. Later that day, two other social workers employed 22 by CWS conducted an interview with Robert Keating, the father of Plaintiff’s son B.M.K. Id. at 9. 23 Mr. Keating reported to CWS that he possessed audio recordings of conversations between 24 Plaintiff and Plaintiff’s mother wherein Plaintiff is heard saying that she has poured boiling water 25 on her infant daughter’s reproductive organs in order “to keep her from being promiscuous when 26 27 1 As an attachment to the SAC, Plaintiff has filed what appears to be a birth certificate for her infant daughter, I.A., who was born in early July of 2016. The document, dated in September of 2016, reflects that 1 she is older.” Id. Mr. Keating also reported to CWS that, while speaking on the phone with his 2 son, he frequently heard Mr. Andrews yelling in the background and threatening to beat B.M.K. 3 Id. 4 On August 3, 2017, social worker Defendant Kristin Ellis appeared before Judge Hinrichs 5 to petition for a warrant. Id. at 6, 8-9. Consequently, a case was opened in the Juvenile Division of 6 the Humboldt County Superior Court, styled, In the matter of: I.A. and B.M.K. Id. at 6. The 7 petition was filed by Defendant Kalin (acting in an official capacity as Deputy County Counsel), 8 seeking an order permitting entry into Plaintiff’s home, an interview with both of Plaintiff’s 9 children, and a medical examination for Plaintiff’s infant daughter. Id. at 6, 9. Judge Hinrichs 10 found that: (1) that there was reasonable cause to believe that the children involved come within 11 the description of the California Welfare and Institutions Code § 300 (bringing within the 12 jurisdiction of the juvenile court those matters where it can be shown that a child has suffered, or 13 there is a substantial risk that the child will suffer, serious physical, emotional, or other harm); (2) 14 that the circumstances require a medical examination of Plaintiff’s daughter by a licensed medical 15 practitioner with specialized training in diagnosing and treating child abuse in order to determine 16 whether there has been any such abuse; and (3) that entry into the Plaintiff’s home by CWS and or 17 law enforcement investigators was required pursuant to California Welfare and Institutions Code § 18 328 for investigators to speak with the children and to inspect the safety of the home in order to 19 determine whether further proceedings in juvenile court may be warranted. Id. at 6-7. Based on 20 these findings, Judge Hinrichs issued an order authorizing CWS to obtain a suitable medical 21 examination for Plaintiff’s daughter in order to determine whether the child had been abused or 22 neglected, adding that the examination shall take place within 72 hours unless the child were to 23 need protective custody, in which case it was to take place with 72 hours of the effectuation of the 24 protective custody. Id. at 7. Judge Hinrichs’s order further provided that “[t]he child’s parent, 25 guardian, or caretaker shall immediately permit Child Welfare Services and/or Law Enforcement 26 investigators to enter the child’s home so they can see and speak with the child and inspect the 27 safety of the home in order to determine whether child welfare services should be offered to the 1 In any event, the SAC goes on to contend that, because Plaintiff’s daughter is named R.R. 2 rather than I.A., Defendants’ “intrusive behavior” violated Plaintiff’s right to privacy, which once 3 asserted, caused Defendants to retaliate. See SAC (dkt. 49) at 8. Plaintiff then goes on to 4 enumerate a list of reasons as to why, in Plaintiff’s view, Judge Hinrichs’s order was invalid. See 5 id. at 8-9. First, Plaintiff argues that order was invalid because it identified Plaintiff’s daughter as 6 I.A. rather than R.R. Id. at 8. Second, Plaintiff submits that, before the case was taken to Judge 7 Hinrich, Plaintiff told Defendants Schneider and Enriquez-Paredes the following: that her children 8 have conventional doctors; that Mr. Andrews is not hostile; that the source or sources of the 9 original referral harbored racial animosity towards Plaintiff or Mr. Andrews; and, that Plaintiff and 10 Mr. Andrews “are members/initiate of a federal[ly] recognized international non-profit 11 organization called The Earth Center of Mannu (sic), inc, who[se] mission is to inspire, research 12 and support education into the original ancestor culture of humanity for the health [and] well- 13 being of all people.” Id. at 8-9. Plaintiff also alleges that she told the social-worker Defendants on 14 August 2, 2017 that the customs of this organization do not injure or damage her infant daughter 15 in any way, that “the customs of the Healing Baths [] stop when the child begins to walk,” and that 16 her daughter had been walking since April of 2017. Id. at 9. In addition to arguing that these 17 alleged statements rendered Judge Hinrichs’s order invalid, Plaintiff also contends that, based on 18 her refusal to permit the social workers to see her infant daughter on August 2, 2017, the social 19 workers and deputies “retaliated by returning to [] [her] residence on August 7, 2017 with an 20 investigative warrant due to [] [Plaintiff] establishing her right to privacy . . . on August 2, 2017.” 21 Id. at 9. 22 The SAC then alleges that when the above-mentioned Defendants visited Plaintiff on 23 August 7, 2019, to effectuate Judge Hinrichs’s order for a medical examination, insisting that 24 Plaintiff and her children accompany them to the emergency room, that “[P]laintiff was coerced 25 into going to the emergency room by being prevented from engaging in her religious customs such 26 as Healing showers followed by chants,” as well as from breast-feeding her daughter. Id. at 10. 27 The SAC goes on to allege that upon examination of Plaintiff’s children, medical staff at the 1 With one exception, the remainder of the contents of the SAC constitute either argument or 2 conclusory statements rather than allegations of fact. For example, the SAC complains that the 3 original referrals that triggered the child welfare investigation and proceedings were rooted in 4 “harassment and discriminatory allegations by Plaintiff’s ex-boyfriend and parents who believe 5 themselves to be White Christians.” Id. at 9. Likewise, the SAC argues, at length, that the 6 provisions of California law that govern child welfare proceedings were unconstitutional as 7 applied to her but without any comprehensible explanation as to why or how. Id. at 11-14. Other 8 portions of the SAC are both repetitive and difficult to understand, such as Plaintiff’s contention to 9 the following effect: “The investigative warrant was invalid. The investigative as applied gave 10 Leverage/discretion” to social-worker Defendants Schneider and Enriquez-Paredes “to subject 11 plaintiff to threats, duress, and coercion to have a medical exam since probable cause for the 12 removal was absent.” Id. at 14. First, Plaintiff has not alleged that her child was ever “removed” 13 from her custody; second, since Judge Hinrichs had ordered the medical examination of Plaintiff’s 14 daughter, it appears that Plaintiff is once again imputing the coercive nature of a court order onto 15 the child welfare officers tasked with effectuating that order. See Order Dismissing FAC (dkt. 48) 16 at 13 (“Plaintiff found the choice [between complying with Judge Hinrichs’s order or facing 17 further proceedings] to be coercive – however, such is the nature of court orders, compliance is not 18 optional.”). Otherwise, the SAC presents a great many conclusory statements, such as the 19 statement that Defendants acted “for purposes not related to the health, safety, and welfare” of her 20 children, but with “malicious intent, gross recklessness, and deliberate indifference to [Plaintiff’s] 21 familial rights.” Id. at 6. 22 However, the court will note that while shy on details, Plaintiff has also alleged that during 23 the execution of Judge Hinrichs’s order deputies “seized” Plaintiff and forced her to sit on a couch 24 in her residence. Id. at 10. Plaintiff had included slightly greater detail in the First Amended 25 Complaint, alleging that during the execution of Judge Hinrichs’s order, in addition to being 26 “commanded to sit on the couch . . . one sheriff grabbed her phone out of her hand and said 27 Plaintiff could not use her phone.” See FAC (dkt. 19) at 12. The omission of the alleged seizure of 1 allegation in this regard than to simply say that Plaintiff was seized by one or more deputies and 2 forced to sit on a couch for an unspecified amount of time while social workers spoke with her 3 children in another room. See generally SAC (dkt. 49) at 1-28. Additionally, it also appears that 4 Plaintiff may be alleging that she considered herself to have been seized at the emergency room as 5 well due to someone reportedly asking her not to leave while her child was being examined. Id. at 6 11-12. 7 By way of relief, Plaintiff seeks a declaration that Defendants’ conduct violated her rights 8 under the provisions enumerated in her eleven claims. Id. at 27. An injunction requiring “that 9 Defendants DHHS possessing any information arising from the actions complained of herein shall 10 collect and deliver to the Plaintiff[] all such records and expunge or delete all such information 11 from their records.” Id. at 28. Plaintiff also seeks an injunction prohibiting Defendants from 12 interfering in Plaintiff’s constitutionally protected activities, especially when it involves “reports 13 from Plaintiff[’]s [p]arents or relatives and ex boyfriends from again [causing] similar 14 discriminatory harassment.” Id. Additionally, Plaintiff seeks compensatory damages, punitive 15 damages, attorneys’ fees, costs of suit, as well as any other relief the court may deem appropriate. 16 Id. 17 STANDARD OF REVIEW 18 A plaintiff may bring an action under 42 U.S.C. § 1983 to redress violations of “rights, 19 privileges, or immunities secured by the Constitution and [federal] laws,” that were perpetrated by 20 a person or entity, including a municipality, acting under the color of state law. 42 U.S.C. § 1983; 21 see also Monell v. Dep’t of Social Servs., 436 U.S. 658, 690-95 (1978). In the present context, in 22 order to survive a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a 23 plaintiff must allege facts that “raise a right to relief above the speculative level,” Bell Atl. Corp. v. 24 Twombly, 550 U.S. 544, 555 (2007); thus, the “complaint must contain sufficient factual matter, 25 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 26 662, 678 (2009). While “all well-pleaded allegations of material fact are taken as true and 27 construed in a light most favorable to the nonmoving party,” Wyler Summit Partnership v. Turner 1 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. 2 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Thus, mere recitals of the 3 elements of a cause of action, supported only by conclusory statements, are insufficient. Iqbal, 556 4 U.S. at 678; Twombly, 550 U.S. at 555. 5 Further, because Plaintiff is unrepresented, this court will construe her pleadings and 6 arguments liberally, interpreting them to raise the strongest arguments they suggest. See Bernhardt 7 v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) (“[c]ourts have a duty to construe pro se 8 pleadings liberally, including pro se motions”); cf. Wilwording v. Swenson, 404 U.S. 249, 251 9 (1971) (per curiam) (habeas corpus petition that presents claims cognizable under 42 U.S.C. § 10 1983 should be construed to that extent as a complaint under § 1983); with, Franklin v. State of 11 Oregon, 662 F.2d 1337, 1347-48 & n.13 (9th Cir. 1981) (courts should construe pro se pleadings 12 liberally; construing § 1983 complaint as a habeas corpus petition). 13 Dismissal for failure to state a claim is appropriate only where it appears, beyond doubt, 14 that the plaintiff can prove no set of pleaded facts that would entitle her or him to relief. Morley v. 15 Walker, 175 F.3d 756, 759 (9th Cir. 1999). In short, for a complaint to survive a motion to 16 dismiss, the non-conclusory factual content, and reasonable inferences from that content, must 17 plausibly suggest a claim entitling the plaintiff to relief. Moss v. United States Secret Serv., 572 18 F.3d 962, 970 (9th Cir. 2009). 19 DISCUSSION 20 To put it briefly, Defendants’ pending Motion to Dismiss the SAC argues: that Plaintiff has 21 failed to allege any new facts that could support any of her previously presented claims under § 22 1983; that Plaintiff’s new claim for malicious prosecution should be dismissed because she does 23 not allege that any charges were brought against her; that the municipal liability claim against 24 Humboldt County should be dismissed because it is once again “based on boilerplate allegations 25 and, otherwise, there is no underlying constitutional violation;” that Plaintiff’s new state law 26 claims should be dismissed because the claims are not properly presented and untimely; and, 27 lastly, that Plaintiff failed to bring the required motion to add official-capacity Defendants Connie 1 Defs.’ Mot. (dkt. 51) at 12. 2 Improperly Named Parties 3 In dismissing Plaintiff’s previously operative complaint, the court granted Plaintiff leave to 4 amend, such as to add factual allegations, in support of the already-pleaded claims against the 5 already-named Defendants. See Order (dkt. 48) at 11-15. However, rather than adding factual 6 allegations, the SAC has mostly advanced argument, a few new claims (also lacking in factual 7 support), and two improperly added “parties” who are untethered from any relevant factual 8 allegations. See generally SAC (dkt. 49). 9 Plaintiff’s Original Complaint (dkt. 1) named social-worker Defendants Ellis and 10 Schneider, as well as Deputy County Counsel Rory Kalin, and Humboldt County itself. Compl. 11 (dkt. 1) at 1-2. In lieu of an answer, Defendants filed a motion to dismiss. Defs.’ Mot. (dkt. 8). 12 Rather than respond to the motion, Plaintiff amended her pleading as a matter of course. FAC (dkt. 13 19). While continuing to name Defendants Ellis, Schneider, Kalin, and Humboldt County, the 14 FAC added a new social worker Defendant – Juan Carlos Enriquez-Paredes. Id. at 1-2. Construed 15 liberally, both the Original Complaint and the FAC, also complained about one or more 16 unidentified deputies from the Sheriff’s Office. Once again, Defendants moved to dismiss the 17 FAC. Defs.’ Mot. (dkt. 21). Granting Defendants’ motion, the court then dismissed the four claims 18 presented in the FAC due to Plaintiff’s failure to allege sufficient facts in support of any of the 19 claims. See Order Dismissing FAC (dkt. 48) at 11 (finding that in place of allegations of fact, 20 Plaintiff has generally only pleaded a series of conclusory statements, or unwarranted deductions 21 of fact, or unreasonable inferences.). Thereafter, Plaintiff filed the SAC (dkt. 49), which now 22 advanced eleven claims, rather than four, against the same list of defendants, but while purporting 23 to also add Connie Beck, the Social Services Director of the Humboldt County Department of 24 Health and Human Services (“DHHS”), as well as Yvonne Winter, a Social Services Supervisor at 25 DHHS. See SAC (dkt. 49) at 4. While the SAC mentions Ms. Winter and Ms. Beck in the 26 preamble, they are not expressly named in Plaintiff’s eleven claims as are the other Defendants. 27 See id. at 4, 17, 19-27. Furthermore, while Plaintiff alleges that Ms. Beck and Ms. Winter occupy 1 act or omission for which either might be responsible. See generally id. 2 A party may amend its pleading once as a matter of course within 21 days after serving it 3 or within 21 days after service of a responsive pleading or motion under Rule 12(b), (e), or (f). 4 Fed. R. Civ. P. 15(a)(1). However, in all other cases, amendment can only be had with the 5 opposing party’s written consent or leave of court. Fed. R. Civ. P. 15(a)(2). While this court 6 granted Plaintiff leave to file an amended pleading following the dismissal of the FAC, the scope 7 of that leave to amend was limited to adding factual allegations in support of the already-pleaded 8 claims against the already-named Defendants. Plaintiff neither sought leave of court nor 9 Defendants’ written consent to add new claims or to add new parties. Since Plaintiff is proceeding 10 pro se, the court will construe the inclusion of new claims and parties in the SAC as a motion for 11 leave to do the same. Because Defendants have addressed Plaintiff’s seven newly added claims in 12 the currently pending motion to dismiss, the court will consider the claims in light of the motion. 13 Plaintiff’s attempt to add Ms. Beck and Ms. Winter is, however, another matter. Because 14 their inclusion is not attended with any supporting factual allegations as to any specific action or 15 omission connecting them to any of Plaintiff’s claims, such that the court could construe those 16 allegations as a motion for leave to add them as parties; also because they are only named in the 17 preamble of the SAC but not in the claims; and because Defendants have objected (see Defs.’ Mot. 18 (dkt. 51) at 28-29) – the court finds that Plaintiff has improperly attempted to add Ms. Beck and 19 Ms. Winter as parties. Accordingly, it is herewith ORDERED that Ms. Yvonne Winter and Ms. 20 Connie Beck are DROPPED from this action. See Fed. R. Civ. P. 21 (“On motion or on its own, 21 the court may at any time, on just terms, add or drop a party.”). 22 Causes of Action 23 The court will note that while the SAC ventures to delineate 11 separate causes of action, 24 Plaintiff frequently mixes subject matter between and across these claims. For example, Plaintiff 25 mentions excessive force and malicious prosecution in the middle of describing her free exercise 26 of religion claim even though those constitute independently pleaded claims found elsewhere in 27 the operative complaint. See SAC (dkt. 49) at 19-27. Indeed, ferreting out and parsing Plaintiff’s 1 nevertheless, the court will address Defendants’ motion for dismissal of Plaintiff’s causes of 2 action in the order in which the claims appear in the SAC. 3 Claim-1 – Religious Liberty, Retaliation, and Family Privacy: 4 In Claim-1, invoking § 1983, as well as the First and Fourteenth Amendments, Plaintiff 5 contends that through the above-described child welfare proceedings, Defendants collectively 6 deprived Plaintiff of her right to freely express her religious beliefs while also denying her right to 7 privacy by subjecting her to threats, using excessive force, and maliciously prosecuting her to 8 deter her from practicing her religion. SAC (dkt. 49) at 19. First, the court will note that any 9 allegation of excessive force will be dealt with below in its appropriate context – Plaintiff feels so 10 strongly about her allegations of Fourth Amendment seizure and excessive force that she has 11 peppered them throughout all of her claims. Second, the court will note that the only new factual 12 allegation added by Plaintiff in the SAC is that she was planning on engaging in a “healing 13 shower,” followed by some chanting, at the time that social workers and deputies showed up to 14 enforce Judge Hinrichs’s order for a medical exam. Otherwise, Plaintiff also contends that, 15 notwithstanding the child welfare referral (which she alleges came from her own mother and her 16 ex-boyfriend), Defendants were constitutionally prohibited from instituting and conducting routine 17 child welfare proceedings in a California court based on a referral that claimed Plaintiff poured 18 boiling water on her infant daughter because of the suggestion that Plaintiff allegedly told one of 19 the social workers involved that she merely wrapped her daughter in rags soaked in hot tea as part 20 of a custom or practice connected to her religion. 21 As to Plaintiff’s mentioning of her right to privacy in the context of her First Amendment 22 claim, the Supreme Court has stated that there is no “general right to privacy” in the United States 23 Constitution, but that this area is “left largely to the law of the individual [s]tates.” Katz v. United 24 States, 389 U.S. 347, 351 (1967). Nevertheless, the Supreme Court has developed a privacy 25 jurisprudence consisting of two “zones” of constitutional privacy: (1) “individual interest in 26 avoiding disclosure of personal matters,” and (2) “the interest in independence in making certain 27 kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600 (1977). The latter has 1 Va. 1995). In the present context, the court construes Plaintiff’s mention of “privacy” in 2 connection with her religious exercise and retaliation claims as suggesting that her right to family 3 association and family privacy was intruded upon. See e.g., Smith v. Org. of Foster Families for 4 Equal. & Reform, 431 U.S. 816, 861 (1977) (“The Court surmises that foster families who share 5 these attachments might enjoy the same constitutional interest in “family privacy” as natural 6 families.”). This right to familial association and privacy includes the right of parents to make 7 important medical decisions for their children, and of children to have those decisions made by 8 their parents rather than the state. See Parham v. J.R., 442 U.S. 584, 602 (1979); see also 9 Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999) (holding that “the government’s interest in the 10 welfare of children embraces not only protecting children from physical abuse, but also protecting 11 children’s interest in the privacy and dignity of their homes and in the lawfully exercised authority 12 of their parents.”). Thus, the state has dual and sometimes competing interests in both protecting 13 children from abuse while preserving the privacy and dignity of the home. Accordingly, it is well 14 established that officials may go so far as to remove a child from the custody of the parent, even 15 without prior judicial authorization, if the information they possess at the time of the seizure is 16 such that gives reasonable cause to believe that the child is in imminent danger of serious bodily 17 injury and that the scope of such an intrusion is reasonably necessary to avert that specific injury. 18 See Wallis ex rel. Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 1999); Kirkpatrick v. Cnty. of 19 Washoe, 843 F.3d 784, 789 (9th Cir. 2016); Mabe v. San Bernardino Cty., Dep’t of Pub. Soc. 20 Servs., 237 F.3d 1101, 1107 (9th Cir. 2001); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997); 21 see also Doe v. Lebbos, 348 F.3d 820, 827 (9th Cir. 2003) (“[C]ase qualified as an “emergency” 22 situation. Under our precedent, Herrera therefore did not violate the Does’ constitutional right to 23 family privacy, George’s right to family association, or Lacey’s Fourth Amendment rights by 24 detaining Lacey until the November 5 hearing.”). 25 Regarding the substance of Plaintiff’s claim under the First Amendment, the provision 26 protects the free exercise of religion, and government actions that substantially burden a religious 27 practice must be justified by a compelling state interest and must be narrowly tailored to achieve 1 1983, a plaintiff must establish that the government has placed a substantial burden on his or her 2 free exercise of religion. Vernon v. City of Los Angeles, 27 F.3d 1385, 1393 (9th Cir. 1994). Next, 3 a court must determine whether some compelling state interest justifies the infringement. See 4 Longmire v. City of Oakland, C 10-01465 JSW, 2010 WL 2629818 (N.D. Cal. June 29, 2010). 5 Notably, parents have a First Amendment right to direct their minor children’s religious 6 upbringing. See Wisconsin v. Yoder, 406 U.S. 205, 231 (1972); see also Elk Grove Unified Sch. 7 Dist. v. Newdow, 542 U.S. 1, 16 (2004) (citing Newdow v. United States Cong., 313 F.3d 500, 504 8 (9th Cir. 2002)). 9 Turning to the retaliation component of Claim-1, generally speaking, the elements of a 10 prima facie retaliation claim are satisfied by, (1) engaging in a protected activity, (2) suffering an 11 adverse government action, and (3) showing a causal link between the protected activity and the 12 adverse government action. See Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008) 13 (citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002)). Thus, 14 “[g]overnment retaliation against a plaintiff for exercising his or her First Amendment rights may 15 be shown by proving the following elements: (1) that the plaintiff was engaged in constitutionally 16 protected activity; (2) that the defendant’s actions caused the plaintiff to suffer an injury that 17 would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that 18 the defendant’s adverse action was substantially motivated as a response to the plaintiff’s exercise 19 of constitutionally protected conduct.” Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 20 2007); see also Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000); Steiner v. Showboat 21 Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994). Put another way, “a plaintiff must prove that 22 but for the retaliatory motive, the incidents to which he [or she] refers . . . would not have taken 23 place.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (Plaintiff “must allege specific 24 facts showing retaliation.”). 25 Here, the court finds that Plaintiff’s bare statements to the effect that a burden was placed 26 upon her religious practice, or that Defendants’ motives were retaliatory and due to her religious 27 preference, without alleging or explaining how, are insufficient to state a plausible claim for relief. 1 once, and having construed Plaintiff’s pleadings liberally, and having taken all of Plaintiff’s well- 2 pleaded allegations of material fact as true and then construing them in the light most favorable to 3 Plaintiff, nevertheless, the court is of the opinion that Plaintiff has not articulated a plausible claim 4 as to any constitutionally cognizable infringement of her rights to religious liberty, family 5 association, family privacy, or any facts related to retaliation. This is so because, in place of 6 allegations of fact, Plaintiff has generally only pleaded a series of conclusory statements, or 7 unwarranted deductions of fact, or unreasonable inferences. See Sprewell, 266 F.3d at 988. 8 Factually speaking, the story narrated by the SAC is insufficient to make out a claim for 9 any First Amendment violations. With regards to this claim, Plaintiff alleges the following 10 assertions of fact: that her mother and ex-boyfriend told child welfare officials that Plaintiff pours 11 boiling water on her infant daughter; that child welfare officials visited Plaintiff and asked to see 12 her children; that Plaintiff refused and told one social worker that she does not pour boiling water 13 onto the child, but rather soaks rags in hot tea and wraps the child with those rags, and that 14 Plaintiff had already stopped that practice some months earlier; that Defendants thereafter initiated 15 child welfare proceedings and secured an order from a judge for entry and inspection of Plaintiff’s 16 home and for a medical examination of Plaintiff’s daughter; and finally, that instead of taking a 17 “healing shower” and chanting, Plaintiff reluctantly accompanied social workers to the hospital 18 where the court-ordered examination was conducted and reflected no signs of abuse. This is the 19 entirety of the factual allegations in the SAC that might be relevant to Plaintiff’s contentions that 20 Defendants have interfered with the free exercise of her religion, as well as intruding upon and 21 invading her family privacy, and then retaliating against her refusal to voluntarily permit social 22 workers to see her children by instituting child welfare proceedings. 23 Plaintiff has not alleged any set of facts approaching what would be necessary to state a 24 claim to the effect that there has been any impermissible intrusion into her family privacy interest 25 in maintaining independence in making important decisions concerning herself and her child, or of 26 her right to familial association, or of the privacy and dignity of her home. Plaintiff essentially 27 alleges that child welfare officials received what could only appear as credible reports from 1 danger of being injured or killed due to boiling water being poured onto her. Plaintiff alleges that 2 she told Defendant Schneider that it was not boiling water that she poured onto her daughter, but 3 rather that she wrapped her daughter in rags soaked in hot tea. Then, when Plaintiff refused to 4 allow social workers to see her children, they secured a court order for a medical examination. 5 Plaintiff then alleges that she reluctantly complied with that order, but that at the time she was 6 approached with Judge Hinrichs’s order, she was planning to take a “healing shower,” followed by 7 chanting. Plaintiff has not alleged that the “healing shower” or the chanting had to take place at a 8 certain time, in a certain place, or with a certain frequency, such as to render that particular trip to 9 the hospital for a court-ordered medical examination of her child a burden, let alone a substantial 10 burden, on her religious freedom. Likewise, there was no impermissible intrusion into her family 11 privacy. First, any intrusion (if at all) was minimal. Plaintiff’s first encounter with the social 12 workers was a consensual visit and a simple conversation. The intrusion into Plaintiff’s family 13 privacy was essentially the fact that Plaintiff had to endure a trip to the hospital for a court-ordered 14 medical exam of her child based on alarming reports from Plaintiff’s own mother and ex- 15 boyfriend, as well as a less troubling report from herself that she wrapped her infant daughter in 16 rags soaked in hot tea. The substance of Plaintiff’s allegations here only manage to give rise to 17 reasonable cause to believe that Plaintiff’s child was potentially in imminent physical danger; and 18 thus, that the scope of any intrusion into Plaintiff’s private familial affairs was reasonably 19 necessary to avert that specific potential injury. See Wallis, 202 F.3d at 1138; Kirkpatrick, 843 20 F.3d at 789; Mabe, 237 F.3d at 1107; Ram, 118 F.3d at 1310; Lebbos, 348 F.3d at 827. 21 By the same token, Plaintiff has failed to allege facts that could constitute a prima facie 22 case of retaliation. All Plaintiff alleges in this regard is that, because she refused to allow social 23 workers to see her children, the social workers sought and secured a court order in retaliation, and 24 also that Plaintiff was somehow being retaliated against for the exercise of her religious practice. 25 This is a non-sequitur. Plaintiff has alleged no specific facts whatsoever pertaining to retaliation, 26 instead, the SAC only presents arguments and conclusory statements in this regard. Plaintiff has 27 not alleged that any Defendant has acted in any manner that might chill the exercise of 1 motivated as a response to Plaintiff’s exercise of any constitutionally protected conduct. Having 2 had two prior opportunities to amend, Plaintiff has still failed to articulate and allege a plausible 3 First Amendment claim, and because granting leave to amend would be futile given that a proper 4 basis could not be stated on amendment of the present set of allegations, Defendants’ Motion (dkt. 5 51) is GRANTED as to Claim-1, which is DISMISSED WITH PREJUDICE as to all 6 Defendants. 7 Claim-2 – Unreasonable Searches and Seizures: 8 In Claim-2, Plaintiff submits that Defendants violated her right to be free from 9 unreasonable searches and seizures under the Fourth Amendment. Id. at 20. In this regard, Plaintiff 10 has fared better in alleging facts that might support a plausible claim as to a seizure of her person, 11 and perhaps also of her phone. In pertinent part, Plaintiff has alleged that a number of unidentified 12 deputies from the Sheriff’s Office accompanied social workers to her home on August 7, 2017, for 13 the execution of Judge Hinrichs’s order for entry into and inspection of Plaintiff’s home, as well as 14 for a medical examination of her daughter. Plaintiff has alleged that one or more deputies seized 15 her person and ordered her to remain seated on her couch for an unspecified period of time. 16 Plaintiff has also previously alleged that one or more of the deputies may have seized her phone 17 and prevented her from its use during that same period of time. Lastly, Plaintiff may have also 18 alleged that she was seized by someone at the hospital when asked not to leave while her infant 19 daughter was being examined by doctors. Additionally, although this argument has already been 20 rejected by this court,2 the SAC once again contends that Judge Hinrichs’s order was invalid and 21 thus, the court-ordered entry into, and inspection of, her home by social workers and deputies 22 violated her rights under the Fourth Amendment. 23 A core protection of the Fourth Amendment is that searches and seizures inside a home 24 without a warrant are presumptively unreasonable; however, because the ultimate touchstone of 25 the Fourth Amendment is reasonableness, even the warrant requirement is subject to certain 26 exceptions. See Brigham City v. Stuart, 547 U.S. 398, 403 (2006). This fundamental right, to be 27 1 free of unreasonable searches or seizures, is likewise applicable in the child welfare context. For 2 example, in Calabretta, the court held that the warrantless, non-emergency search and seizure of 3 an alleged victim of child sexual abuse at her home violated the Fourth Amendment. 189 F.3d at 4 814 (holding also that the general law of search warrants applies to child abuse investigations). As 5 to the definition of a warrant – inherent in its concept is its issuance by a “neutral and detached 6 magistrate,” and “[t]he further requirement of “probable cause” [which] instructs the magistrate 7 that baseless searches shall not proceed.” United States v. United States Dist. Court, 407 U.S. 297, 8 316 (1972); see also Coolidge v. New Hampshire, 403 U.S. 443, 453 (1971); and Katz, 389 U.S. at 9 356. The applicable standards for determining probable cause for a search warrant were most 10 recently expounded in Illinois v. Gates, 462 U.S. 213, 246 (1983), defining probable cause to 11 mean a “fair probability” that evidence is located in a particular place. Whether there is a fair 12 probability depends upon the totality of the circumstances, including reasonable inferences, and is 13 a “commonsense, practical question.” Id. Thus, certainty is not required, in fact, not even a 14 preponderance of the evidence is required. Id. 15 On review, as in this case, courts will not “flyspeck” the affidavit supporting a search 16 warrant through de novo review (see United States v. Kelley, 482 F.3d 1047, 1050-51 (9th Cir. 17 2007)); rather, reviewing courts are instructed to afford the issuing judge’s determination great 18 deference. See Gates, 462 U.S. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 19 (1969)). In addition, the Supreme Court has reminded reviewing courts that “[a]lthough in a 20 particular case it may not be easy to determine when an affidavit demonstrates the existence of 21 probable cause, resolution of doubtful or marginal cases in this area should largely be determined 22 by the preference to be accorded to warrants.” Gates, 462 U.S. at 237 n.10 (quoting United States 23 v. Ventresca, 380 U.S. 102, 109 (1965). 24 Here, because there was a court order authorizing the entry and search of her home, and 25 because the order was issued by a neutral magistrate and supported by probable cause, Plaintiff’s 26 Fourth Amendment claim pertaining to the entry of her home, as well as the inspection of its 27 interior, rests only on her conclusory statement that Judge Hinrichs’s order was invalid because 1 lacking. Child welfare officials had received information from Plaintiff’s ex-boyfriend as well as 2 her mother that indicated that Plaintiff was pouring boiling water on her infant daughter. Plaintiff 3 herself alleges in the SAC that she told Defendant Schneider that she would wrap her baby with 4 rags soaked in hot tea, but had stopped a few months earlier. While Plaintiff argues that her own 5 statement about tea-soaked rags versus the statements of two other persons about boiling water 6 changes the probable cause equation, she is incorrect. Likewise, Plaintiff’s allegation that her 7 daughter’s actual name was R.R., rather than I.A., as reflected in a document dated in September 8 of 2017, is of no import. Plaintiff made clear in her conversation with Defendant Schneider on 9 August 2, 2017, that the child in question – regardless of any name change – was in fact Plaintiff’s 10 infant daughter; likewise, the SAC leaves no doubt that the child in question is Plaintiff’s 11 daughter. Thus, under the totality of the circumstances, objectively viewed, there was more than a 12 “fair probability” for Judge Hinrichs to find that there was reasonable cause to believe that 13 Plaintiff’s daughter had suffered, or would suffer, the type of harm described in California Welfare 14 and Institutions Code § 300. Accordingly, the court finds that Plaintiff has failed to allege facts 15 that could support a plausible claim that her right to be free from unreasonable searches was 16 infringed by Defendants. Thus, to the extent that Claim-2 encompasses an unreasonable search 17 component, Defendant’s Motion to Dismiss (dkt. 51) is GRANTED and that component of 18 Claim-2 is DISMISSED WITH PREJUDICE as to all Defendants because granting leave to 19 amend would be futile given that a proper basis could not be stated on amendment of the present 20 set of allegations. 21 As to the seizure component of Claim-2, as mentioned above, Plaintiff has complained in 22 the SAC that she was seized by one or more deputies from the Sheriff’s Office at her home on 23 August 7, 2017, and perhaps also at the hospital on the same day. Additionally, Plaintiff had 24 previously complained in the FAC that one or more of the same deputies also seized her phone for 25 an unspecified period of time and prevented her from making calls. 26 The Fourth Amendment prohibits unreasonable searches and seizures, and the Supreme 27 Court has defined seizure as “an intentional acquisition of physical control.” Brower v. County of 1 when the police initiate contact with an individual, and it should be noted that Fourth Amendment 2 claims of unreasonable seizure also require courts to evaluate any force used after the initial 3 contact and throughout “the course of an . . . investigatory stop.” Graham v. Connor, 490 U.S. 4 386, 395 (1989). Additionally, the application of the Fourth Amendment’s requirement of 5 probable cause does not depend on whether an intrusion of lesser magnitudes is termed an “arrest” 6 under state law. Dunaway v. New York, 442 U.S. 200, 212-13 (1979) (“The mere facts that 7 petitioner was not told he was under arrest, was not “booked,” and would not have had an arrest 8 record if the interrogation had proved fruitless, while not insignificant for all purposes, obviously 9 do not make petitioner’s seizure even roughly analogous to the narrowly defined intrusions 10 involved in Terry and its progeny.”) (citing Terry v. Ohio, 392 U.S. 1 (1968)). 11 Here, while Plaintiff’s allegations fall short of this standard, it is not clear if Plaintiff was 12 asked to remain seated on her couch by the deputies in question or whether she was forced to do 13 so. Further, if Plaintiff was forced to remain on her couch, the SAC does not make it clear for how 14 long she was so detained, or by whom. Likewise, it is also unclear if Plaintiff is suggesting that 15 someone at the hospital simply asked her not to leave while her child was being examined, or if 16 Plaintiff was likewise seized at the hospital and, if so, by whom. However, because Plaintiff’s 17 allegations as to the seizure of her person and her property only address actions taken by one or 18 more of the unidentified deputies from the Sheriff’s Office, Defendants’ Motion (dkt. 51) is 19 GRANTED and the unreasonable seizure component of Claim-2 is herewith DISMISSED WITH 20 PREJUDICE as to Defendants Schneider, Ellis, Enriquez-Paredes, Kalin, and Humboldt County 21 because granting leave to amend as to those Defendants would be futile given that a proper basis 22 could not be stated on amendment of the present set of allegations. 23 Further, because it is not clear that an amendment could not remedy the defects of 24 Plaintiff’s claim to the effect that her person or her phone were seized by one or more unidentified 25 deputies from the Sheriff’s Office on August 7, 2017, Defendants’ Motion (dkt. 51) is 26 GRANTED IN PART, DENIED IN PART and the unreasonable seizure component of Claim-2 27 is herewith DISMISSED WITHOUT PREJUDICE as to the unidentified deputies from the 1 Claim-3 – Excessive Force: 2 Claim-3 alleges that Defendants subjected Plaintiff to excessive force. See SAC (dkt. 49) at 3 21. However, neither elsewhere in the SAC, nor within the body of Claim-3, does Plaintiff venture 4 any further to describe the force that was used against her; instead, Plaintiff simply states that she 5 was subjected to excessive force as a result of which she has suffered injuries. Because Plaintiff’s 6 companion allegation is that she was seized by one or more deputies, and perhaps that one or more 7 of the same deputies also seized her phone, it appears that Plaintiff’s excessive force claim is 8 essentially a component of her unreasonable seizure claim; after all, if a seizure of one’s person is 9 unlawful, any force used at all is “excessive” force. In any event, as stated above, Fourth 10 Amendment claims of unreasonable seizure also require courts to evaluate any force used after the 11 initial contact and throughout the encounter. See Graham, 490 U.S. at 395. As was the case with 12 the unreasonable seizure component of Claim-2, Plaintiff’s allegations in Claim-3 only potentially 13 relate to the one or more unidentified deputies from the Sheriff’s Office by whom Plaintiff claims 14 she was seized. In addition, in the conclusion to her Response to Defendants’ Motion to Dismiss, 15 Plaintiff specifically asks the court to dismiss her excessive force claim. See Pl.’s Opp. (dkt. 54) at 16 31. 17 Accordingly, as to Claim-3, Defendant’s Motion (dkt. 51) is GRANTED, Plaintiff’s 18 excessive force claim is DISMISSED WITH PREJUDICE as to all Defendants because granting 19 leave to amend would be futile given that a proper basis could not be stated on amendment of the 20 present set of allegations. 21 Claim-4 – Malicious Prosecution Under the Fourth Amendment: 22 As stated earlier, Plaintiff has engaged in an exercise of mix-and-match as it relates to the 23 substance of each of her claims, the named Defendants, and the provisions of law cited. Another 24 example of Plaintiff’s repetitive and confusing pleading is present in Claim-4, where Plaintiff 25 asserts that the Fourth Amendment was violated by the institution of the above-described child 26 welfare proceedings, and which “constituted malicious prosecution in that there was no basis for 27 the Plaintiffs’ (sic) seizure, yet Defendants continued with the prosecutions, which were resolved 1 Amendment does not address malicious prosecutions, and instead prohibits unreasonable searches 2 and seizures, as well as setting forth certain requirements pertaining to the oath, the particularity, 3 and probable cause foundations for warrants. Second, there is the fact that Plaintiff has not alleged 4 that she was prosecuted at all. Instead, she has alleged that, based on a report from her ex- 5 boyfriend and her mother, child welfare officials secured a court order authorizing a medical 6 examination of her daughter which was reported to have revealed no evidence of abuse or neglect. 7 The tort of malicious prosecution, on the other hand, is premised on the existence of a 8 criminal prosecution against the Plaintiff. See e.g., Heck v. Humphrey, 512 U.S. 477, 484 (1994) 9 (“One element that must be alleged and proved in a malicious prosecution action is termination of 10 the prior criminal proceeding in favor of the accused.”) (emphasis added); see also McDonough v. 11 Smith, 139 S. Ct. 2149, 2156 (2019) (“Common-law malicious prosecution requires showing, in 12 part, that a defendant instigated a criminal proceeding with improper purpose and without 13 probable cause.”) (emphasis added) (citing Restatement (Second) of Torts §653; Dobbs § 586 at 14 388-389; and Prosser & Keeton § 119 at 871). Thus, in order to state a § 1983 claim of malicious 15 prosecution, a plaintiff must allege “that the defendants prosecuted [her] with malice and without 16 probable cause, and that they did so for the purpose of denying [her] equal protection or another 17 specific constitutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). 18 Malicious prosecution actions are not limited to suits against prosecutors themselves, but may also 19 be brought against other persons who may have wrongfully caused criminal charges to be filed. 20 See Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126-27 (9th Cir. 2002); see also Awabdy 21 v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). 22 Here, Plaintiff has not alleged any of the elements necessary to make out a claim of 23 malicious prosecution, under § 1983, or otherwise. Plaintiff has not alleged that any of the 24 Defendants instigated any sort criminal proceeding against her; nor has Plaintiff therefore alleged 25 that such proceedings were instigated with malice or for the purpose of denying a constitutional 26 right. Although it was not a criminal proceeding, as to the child welfare proceedings which were 27 instituted, the court has already found that the order pertaining to the entry into Plaintiff’s home 1 In addition, Plaintiff specifically asks for the dismissal of this claim. See Pl.’s Opp. (dkt. 2 54) at 31. Thus, as to Claim-4, Defendants’ Motion (dkt. 51) is GRANTED. Plaintiff’s malicious 3 prosecution claim is DISMISSED WITH PREJUDICE as to all Defendants because granting 4 leave to amend would be futile given that a proper basis could not be stated on amendment of the 5 present set of allegations. 6 Claim-5 – Fifth Amendment Due Process Claim: 7 In Claim-5, without elaborating any further, Plaintiff submits that she was subjected to a 8 “deprivation of liberty without due process of law under the Fifth and Fourteenth Amendments to 9 the United States Constitution.” SAC (dkt. 49) at 22. As stated, the SAC has appeared to take a 10 shotgun approach to pleading, seemingly mentioning a grab-bag of constitutional amendments in 11 nearly every claim. Because Claim-5 says nothing further, a thorough review of the remainder of 12 the SAC reveals that by “deprivation of liberty,” Plaintiff may be referring to “the right to family 13 integrity and protections guaranteed by the United States Constitution in procedural and 14 substantive due process.” Id. at 2. Thus, Claim-5 appears to simply be a reiteration of the family 15 integrity and family privacy component of Claim-1 (see supra.). For the same reasons described 16 above, the court finds that Plaintiff has not alleged facts that would make out a claim that her 17 rights to familial integrity or privacy were the subject of any constitutionally impermissible 18 interference. 19 As with Claims 3 and 4, Plaintiff requests the dismissal of this claim as well. See Pl.’s 20 Opp. (dkt. 54) at 31. Accordingly, as to Claim-5, Defendants’ Motion (dkt. 51) is GRANTED, 21 and Plaintiff’s due process claim is DISMISSED WITH PREJUDICE as to all Defendants 22 because granting leave to amend would be futile given that a proper basis could not be stated on 23 amendment of the present set of allegations. 24 Claim-6 – Municipal Liability: 25 In Claim-6, alleging municipal liability, Plaintiff contends that Defendant Humboldt 26 County, acting through its Department of Health and Human Services, “developed, implemented, 27 enforced, encouraged and sanctioned de facto policies, practices, and/or customs exhibiting 1 such rights.” SAC (dkt. 49) at 23. Specifically, Plaintiff contends that these unnamed and 2 undescribed policies, practices, or customs were willfully implemented with the specific intent to 3 deprive Plaintiff’s rights under the First, Fourth, Fifth, and Fourteenth Amendments to the 4 Constitution. Id. at 23-24. The court finds that Plaintiff’s allegations pertaining to Claim-6 are 5 entirely conclusory statements that have been presented in boilerplate fashion. Plaintiff has not 6 alleged a single fact in connection with any policy, practice, or custom that related to any alleged 7 violation of Plaintiff’s constitutional rights. Accordingly, as to Claim-6, Defendants’ Motion (dkt. 8 51) is GRANTED, and Plaintiff’s municipal liability claim is DISMISSED WITH PREJUDICE 9 because granting leave to amend would be futile given that a proper basis could not be stated on 10 previous amendments of the present set of allegations. 11 Claim-7 through Claim-11 – State-Law Claims: 12 In Claim-7, Plaintiff submits that Defendants violated Article I, Section-4, of the California 13 Constitution by “discriminating against Plaintiff[’]s religious customs and in initiating [child 14 welfare] proceeding[s] [that] were racially motivated and done without lawful justification or 15 jurisdiction, and were designed to and did cause specific and serious psychological [damage] and 16 suffering . . . .” SAC (dkt. 49) at 24-25. In Claim-8, Plaintiff argues that Defendants violated 17 Article I, Section-13, of the California Constitution by subjecting Plaintiff “to unlawful search and 18 seizure, [such that she was] coerced or forced out of her residence [which was] done without 19 reasonable suspicion or probable cause . . . .” Id. at 25. In Claim-9, a malicious prosecution claim 20 under the common law of California, Plaintiff submits that Defendants “maliciously commenced 21 [j]uvenile proceedings against Plaintiff[’]s children . . . falsely and without probable cause . . . 22 [and that] were terminated/dismissed/unfound (sic) in Plaintiff[’]s favor.” Id. at 25-26. In Claim- 23 10, brought under the California Unruh Civil Rights Act, Plaintiff contends that “[b]y conducting 24 the complained of search in the manner described herein, [D]efendants interfered with [P]laintiff’s 25 federal and state constitutional and statutory rights by means of threats, intimidation, and/or 26 coercion . . . .” Id. at 26-27. Lastly, in Claim-11, Plaintiff submits that “[b]y conducting the 27 complained of search in the manner described,” Defendants Schneider, Enriquez-Paredes, the 1 Penal Code. Id. at 27. 2 Having dismissed all of the claims over which this court has original jurisdiction, this court 3 has discretion to decline the exercise of supplemental jurisdiction of Plaintiff’s remaining state- 4 law claims. See 28 U.S.C. § 1367(c)(3); see also Un. Mine Workers of Am. v. Gibbs, 383 U.S. 715, 5 726 (1966); Seattle Fishing Servs. Ltd. Liab. Co. v. Bergen Indus. & Fishing Co., 242 F. App’x 6 436, 439 (9th Cir. 2007) (“the district court had discretion to dismiss SFS’s pendant state law 7 claims upon properly dismissing SFS’s § 1983 claim.”); and Acri v. Varian Assocs., Inc., 114 F.3d 8 999, 1000 (9th Cir. 1997) (“Certainly, if the federal claims are dismissed before trial, even though 9 not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”). In fact, 10 as it currently stands, given that the only bases for federal jurisdiction asserted by Plaintiff are her 11 § 1983 claims, and “pendant jurisdiction” under 28 U.S.C. §1367 over her state law claims, 12 Plaintiff cannot dispute that, if her federal claims fail, the court lacks subject matter jurisdiction 13 over her remaining claims. As such, dismissal of Plaintiff’s entire complaint would be proper 14 under Rule 12(b)(1) because the court has already resolved all federal claims giving rise to this 15 court’s original jurisdiction in favor of Defendants, and thus, the court declines to exercise 16 supplemental jurisdiction over Plaintiff’s remaining state law claims. See Ove v. Gwinn, 264 F.3d 17 817, 826 (9th Cir. 2001) (“A court may decline to exercise supplemental jurisdiction over related 18 state-law claims once it has dismissed all claims over which it has original jurisdiction.”). 19 Additionally, under § 1367(c)(2), this court has discretion to decline to exercise 20 supplemental jurisdiction over a state-law claim if such claim “substantially predominates over the 21 claim or claims over which it has original jurisdiction.” Further, “[p]redomination under section 22 1367(c)(2) relates to the type of claim” and where “the state law claims essentially replicate the 23 [federal] claims—they plainly do not predominate.” Lindsay v. Gov. Emps. Ins. Co., 448 F.3d 416, 24 425 (D.C. Cir. 2006); see also Feezor v. Tesstab Operations Grp., Inc., 524 F. Supp. 2d 1222, 25 1224 (S.D. Cal. 2007) (“Given the disparity in terms of comprehensiveness of the remedy sought, 26 state law claims substantially predominate over the ADA for purposes of 28 U.S.C. § 27 1367(c)(2).”); Org. for the Advancement of Minorities with Disabilities v. Brick Oven Rest., 406 F. 1 injunctive relief elevates state claims over federal claims); Molski v. EOS Estate Winery, No. CV 2 03-5880-GAF, 2005 WL 3952249, at *4 (C.D. Cal. July 14, 2005) (noting “[s]ince the state law 3 claims provide for injunctive relief, the federal claim adds nothing to the lawsuit that could not be 4 obtained in Superior Court.”). 5 In light of this, as to the type of dismissal, the court is inclined to dismiss Plaintiff’s state- 6 law claims due to the nature of the state-law claims as they relate to Plaintiff’s potentially- 7 surviving unreasonable seizure claim – the only federal claim for which Plaintiff is being granted 8 leave to amend. If Plaintiff choses to file an amended pleading, re-pleading her § 1983 claim 9 against the deputies whom she alleges seized her person and/or her phone – something which was 10 not authorized by Judge Hinrichs’s order – and that they used force against her, such would be a 11 single federal claim based on a discrete set of facts. On the other hand, if one were to combine that 12 single discrete § 1983 claim pertaining to the allegedly unauthorized seizure of her person and 13 phone with Plaintiff’s five state-law claims, the state-law claims would then predominate the 14 federal claim in this litigation. Plaintiff’s state-law claims are essentially a rehash of several of her 15 now-dismissed § 1983 claims, except that they complain of violations of a number of state-law 16 provisions about religious liberty and discrimination, unlawful search and seizure, being “coerced” 17 out of her residence, being subjected to common-law malicious prosecution, certain alleged 18 violations of the California Unruh Civil Rights Act, and certain asserted violations of provisions of 19 the California Penal Code. The court finds that this is not merely a matter of some overlap 20 between the unreasonable seizure claim that Plaintiff has been given leave to amend; instead, the 21 court finds that these five state-law claims, if not dismissed, would “substantially predominate” 22 over the single § 1983 claim on which Plaintiff has been granted leave to amend. Accordingly, as 23 to Claim-7 through Claim-11, Defendants’ Motion (dkt. 51) is GRANTED and Plaintiff’s state- 24 law claims are DISMISSED as to all Defendants. 25 Scope and Nature of Leave to Amend 26 Plaintiff is granted leave to file an amended pleading in order to articulate her unreasonable 27 seizure claim. As stated above, Plaintiff has alleged that she was seized and ordered to remain 1 was seized for a period of time as well. Plaintiff’s amended pleading may present only that claim; 2 and Plaintiff may only name those deputies believed to be responsible for the seizures at issue. 3 Further, in filing her amended pleading, for any party whose name is not known, that person may 4 be designated by a fictitious or numeric name (such as Deputy#1) and when the true name or 5 names are discovered, Plaintiff may amend her pleading accordingly. Plaintiff’s amended 6 complaint must therefore plead fictitious, or doe defendants, in the caption of the complaint; it 7 must also specifically articulate the basis for naming the defendants by other than their true 8 identity (for example, if the identity is unknown); and, most importantly, the amended complaint 9 must clearly specify the connection between the intended defendants and the conduct, activity or 10 omission, upon which Plaintiff bases her unreasonable seizure allegations. Plaintiff must exercise 11 reasonable diligence in ascertaining the true identity of the intended defendants, and thereafter 12 Plaintiff must promptly move to amend the complaint in order to substitute the actual defendants 13 in place of the fictional placeholders. Lastly, any amended pleading will have a clearly marked 14 section entitled, “Statement of Facts,” wherein Plaintiff shall take care, in an organized fashion, to 15 present detailed factual allegations (i.e., what happened, how long it took, where it happened, who 16 was involved, etc.) pertaining to the alleged seizures of her person and / or her phone. 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 1 CONCLUSION 2 For the reasons stated above, Defendants’ Motion to Dismiss (dkt. 51) is GRANTED IN 3 || PART, DENIED IN PART and Plaintiff's Second Amended Complaint (dkt. 49) is DISMISSED 4 || WITH PREJUDICE as to all claims and parties except that Claim-2, as it relates to a number of 5 || unidentified deputies from the Sheriff's Office, is DISMISSED WITHOUT PREJUDICE. 6 || Plaintiff is hereby ORDERED to file an amended pleading, if at all, no later than 30 days from 7 || the date of this Order. The failure to file an amended complaint will result in a dismissal of the 8 case with prejudice. 9 IT IS SO ORDERED. 10 Dated: December 5, 2019 11 a 12 ROBERT M. ILLMAN 13 United States Magistrate Judge 15 16

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