Emert v. Schuck

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 R obert EMERT, Case No.: 24-cv-0002-AGS-AHG

4 Plaintiff, ORDER GRANTING IFP MOTION 5 v. (ECF 7), DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND, 6 Andrea SCHUCK, et al., AND CLOSING CASE 7 Defendants. 8

9 Plaintiff Robert Emert, suing for alleged civil-rights violations under 42 U.S.C. 10 § 1983, moves to proceed in forma pauperis. For the reasons below, that motion is granted, 11 but his complaint is dismissed without leave to amend. 12 IFP MOTION 13 Typically, parties instituting a civil action in a United States district court must pay 14 filing fees of $405.1 See 28 U.S.C. § 1914(a). But if granted the right to proceed in forma 15 pauperis, a plaintiff need not pay those fees. Rodriguez v. Cook, 169 F.3d 1176, 1177 16 (9th Cir. 1999). 17 Emert owns only one asset—a non-operational vehicle he values at $2,500. (ECF 7, 18 at 2.) He has no money in his bank accounts, has no income, is “over $50k in debt,” and 19 depends entirely on the “charity of [his] family” for housing and food. (Id.) The Court finds 20 that Emert has sufficiently shown an inability to pay the initial fees. See Blount v. Saul, 21 No. 21-cv-0679-BLM, 2021 WL 1561453, at *1 (S.D. Cal. Apr. 21, 2021) (“It is well- 22 settled that a party need not be completely destitute to proceed IFP.”). 23 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $55. See 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). 28 1 28 U.S.C. § 1915(e) SCREENING 2 When reviewing an IFP motion, the court must screen the complaint and dismiss it 3 if it “fails to state a claim,” 28 U.S.C. § 1915(e)(2)(B), judged by the same “Federal Rule 4 of Civil Procedure 12(b)(6) standard for failure to state a claim,” Watison v. Carter, 5 668 F.3d 1108, 1112 (9th Cir. 2012). The complaint must “contain sufficient factual matter, 6 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 7 556 U.S. 662, 678 (2009) (quotation marks omitted). Although a plaintiff’s allegations are 8 taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. 9 Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (cleaned up). Pro se pleadings are 10 “to be liberally construed.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976). 11 A. Background 12 This is the fourth of six federal cases Emert recently filed that stem from either his 13 2023 state-court criminal conviction or a family-court decision affecting his parental- 14 custody rights.2 In this iteration, Emert claims that his “criminal defense attorney,” 15 defendant Jose Badillo, negotiated an “oral plea agreement” with defendant Deputy District 16 Attorney Dawn Balerio and Emert’s ex-wife, defendant Andrea Schuck. (ECF 1, at 4–5, 17 7.) A “custody provision” of that agreement allegedly provided that Emert’s son Bryce 18 “would return to Plaintiff’s custody in a shared custody arrangement if Plaintiff pled guilty 19 to resolve criminal charges.” (Id. at 3.) Emert “pled guilty on April 4, 2023,” but he says 20 defendants “now falsely claim the plea deal did not contain any agreement regarding letting 21 Bryce reside with plaintiff.” (Id.) Emert neither provides the plea colloquy from that 22 23 24 2 The other five cases are: Emert v. Vena, No. 3:23-cv-0230-RSH-AHG (S.D. Cal. 25 Aug. 14, 2023) (filed Feb. 7, 2023); Emert v. San Diego Superior Ct., No. 3:23-cv-1723- BAS-MSB (S.D. Cal. Oct. 4, 2023) (filed Sept. 18, 2023); Emert v. California, No. 3:23- 26 cv-2318-JES-VET (S.D. Cal. Apr. 4, 2024) (filed Dec. 20, 2023); Emert v. San Diego Bd. 27 of Supervisors, 3:24-cv-0671-JO-MSB (S.D. Cal. Apr. 12, 2024) (filed Apr. 12, 2024); and Emert v. San Diego Superior Ct., No. 3:24-cv-0924-LL-MSB (S.D. Cal. May 31, 2024) 28 1 hearing nor attests that the judge taking his plea was aware of any “custody provision.” 2 He was sentenced to and “remain[s] on a restrictive 3-year probation term.” See Emert v. 3 California, No. 3:23-cv-2318-JES-VET (S.D. Cal. Apr. 4, 2024), ECF 4, at 2. 4 Emert sues his ex-lawyer Badillo, prosecutor Balerio, and his ex-wife Schuck, 5 claiming that their “breach of the plea agreement violated [his] constitutional rights under 6 the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment.” (Id. 7 at 5.) As circumstantial proof of his claims, Emert attaches transcripts of phone calls with 8 his ex-wife and his ex-lawyer during the weeks after his plea, which he surreptitiously 9 recorded. (See id. at 8–181.) These, he claims, “conclusively demonstrate that Defendants 10 made and breached an enforceable plea agreement.” (Id. at 6.) 11 He bases federal jurisdiction on defendant “Balerio’s role in making the plea 12 agreement which the other defendants failed to honor.” (Id. at 3.) He asks the Court to 13 “order[] Defendants to specifically perform the original plea agreement by letting Bryce 14 live with his father.” (Id.) 15 B. Discussion 16 Section 1983 lawsuits are “a private right of action against individuals who, acting 17 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 18 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (citing 42 U.S.C. § 1983). To state a § 1983 19 claim, a plaintiff must plausibly allege “both (1) deprivation of a right secured by the 20 Constitution and laws of the United States, and (2) that the deprivation was committed by 21 a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 22 (9th Cir. 2012). 23 1. Deputy District Attorney Balerio 24 Emert fails to plausibly allege how Balerio violated his constitutional rights. 25 “In order for a person acting under color of state law to be liable under section 1983 there 26 must be a showing of personal participation in the alleged rights deprivation.” Jones v. 27 Williams, 297 F.3d 930, 934 (9th Cir. 2002). Emert’s allegations of any involvement by 28 Balerio with custody issues are paper-thin. First, he says Balerio once spoke with Schuck 1 about “what [Schuck] wants [] out of [Emert] and what [Schuck] wants in regards to 2 [Emert’s] participation in [their son’s] life.” (Id. at 137.) He also claims that his then-lawyer 3 told him Balerio “agreed to a plea deal whereby [Emert’s son] would return to [Emert’s] 4 custody.” (Id. at 3.) Accepting as true that Emert’s lawyer told him this (even though the 5 lawyer denies it (see id.)), it does not follow that Balerio actually agreed to any such thing. 6 In fact, the Court is entitled to treat this inference with some skepticism. After all, Balerio 7 has no power to enforce a private citizen’s surrender of her child-custody rights—let alone 8 set aside a family-court ruling granting those rights. 9 Several other circumstances also seem to absolve Balerio of any § 1983 liability. 10 Emert does not allege that Balerio directly promised him anything about parental rights or 11 that she mentioned custody during his plea colloquy, when he could have objected. He 12 merely asserts in a conclusory fashion that Balerio’s “involvement created a binding 13 agreement under state law”—yet he admits it was “the other defendants [who] failed to 14 honor” any purported arrangement. (ECF 1, at 3.) Balerio is not specifically alleged to 15 have taken any “affirmative act, participate[d] in another’s affirmative acts, or omit[ted] to 16 perform an act [she was] legally required to do” that resulted in a violation of Emert’s due- 17 process rights. See Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 And the attached documents undermine Emert’s claim that any custody agreement 19 involving Balerio existed. “[W]hen an exhibit to a complaint is inconsistent with the 20 complaint’s allegations, the exhibit controls.” Nguyen v. Bank of Am., NA, 563 F. App’x 21 558, 558 (9th Cir. 2014). The nearly 200 pages of recorded phone calls point to two 22 separate arrangements—the actual plea agreement with the state and an “agreement to 23 agree” about custody between Emert and his ex-wife Schuck. (See generally ECF 1, 24 at 8–181.) The transcripts indicate Emert understood all along that any agreement with his 25 ex-wife was separate from his plea deal. After he’d pleaded guilty, Emert told Schuck: 26 “I thought we were going to come to an agreement. . . . I took the deal based on what you 27 said.” (ECF 1, at 63 (emphasis added).) Schuck then told him “we have [a] little ways to 28 go before we can do an agreement” and insisted that any arrangement between them be “in 1 writing.” (Id. at 68, 111.) Emert acknowledged that Schuck’s “[l]awyers were going to 2 draft something and propose it to” him. (Id. at 176 (emphasis added).) Weeks later, he still 3 “look[ed] forward to an agreement” with her but had “not received that yet.” (Id. at 176, 4 179.) Finally, a full six weeks after Emert’s guilty plea, Schuck indicated that they had 5 reached an impasse: “We are not in negotiations nor will we be until you do as I have 6 requested and drop your other cases. At that point I will work with you for some shared 7 physical (only) custody of Bryce.” (Id. at 180.) If any understandings were receded from, 8 they involved only private citizens, not the state. Emert does not plausibly allege that 9 Balerio had any connection with this second, inchoate arrangement between the parents. 10 Perhaps Emert took the plea deal in the misplaced hope that his ex-wife would 11 independently cede custody. But that has nothing to do with Balerio. 12 Nor does he state a § 1983 equal-protection claim against Balerio. To do so, 13 “a plaintiff must show that the defendants acted with an intent or purpose to discriminate 14 against the plaintiff based upon membership in a protected class.” Barren v. Harrington, 15 152 F.3d 1193, 1194 (9th Cir. 1998). Emert seems to assert he’s in a protected class of 16 “similarly situated parents.” (ECF 1, at 5.) But he doesn’t explain how Balerio treated him 17 differently from those outside the class concerning custody agreements in plea deals. With 18 the fall of that theory, so fall his chances of prosecuting a § 1983 claim against Balerio. 19 2. Badillo and Schuck 20 Emert cannot maintain a § 1983 claim against his ex-wife or ex-lawyer, since he 21 fails to allege how either was acting under color of state law. Emert does mention that 22 “Badillo failed to secure the plea agreement regarding Bryce’s custody in writing,” but to 23 the extent he may be trying to allege legal malpractice against his ex-lawyer, the Court 24 declines to exercise supplemental jurisdiction over that or any other construable state-law 25 claim. (See ECF 1, at 3.) 26 3. Improper Vehicle for Remedy Sought 27 Even if Emert had managed to state a § 1983 claim, the relief he requests—“specific 28 performance” of the alleged plea agreement so he can gain physical custody of his son (see 1 ECF 1, at 4)—is not properly sought under that statute. Moreover, specific performance is 2 impossible. Even if Emert’s plea deal somehow included a child-custody provision, 3 42 U.S.C. § 1983 does not authorize this Court to summarily annul a state’s custody ruling. 4 With very few exceptions, a California family court “that has made a child custody 5 determination . . . has exclusive, continuing jurisdiction over the determination.” See Cal. 6 Fam. Code § 3422(a). What’s more, the family court itself cannot modify its ruling without 7 a showing “that there is new evidence or that there are changed circumstances that make a 8 change of placement in the best interest of the child.” In re Stephanie M., 867 P.2d 706, 9 718 (Cal. 1994). Nor can this Court constitutionally order Emert’s ex-wife to disregard the 10 family-court determination, relinquish her parental rights, and hand over her child. 11 When a “breach of plea agreement” claim is brought and “specific performance is 12 impossible,” as it is here, “the only other possible remedy is rescission of the plea 13 agreement and withdrawal of the guilty plea.” Carter v. Sandoval, No. 2:18-cv-02064- 14 RFB-EJY, 2020 WL 4668190, at *6 (D. Nev. July 9, 2020), aff’d, 859 F. App’x 53 15 (9th Cir. 2021). Such a claim “may not be pursued in a § 1983 action,” as “habeas corpus 16 is the exclusive remedy to attack the legality of the conviction or sentence.” Id. (citing 17 Nettles v. Grounds, 840 F.3d 922, 933 (9th Cir. 2016)). 18 Finally, even if the Court were to construe Emert’s complaint as a habeas petition, 19 it would fail. A federal habeas petitioner must exhaust state remedies by “present[ing] the 20 California Supreme Court with a fair opportunity to rule on the merits of every issue 21 raised.” Emert v. California, No. 3:23-cv-2318-JES-VET, 2024 WL 787381, at *1 (S.D. 22 Cal. Feb. 26, 2024) (dismissing Emert’s previous habeas action for failure to exhaust). 23 Separately and additionally, “a petitioner must name the state officer having custody of 24 him as the respondent.” Id. at *2. Emert has done neither. 25 C. Denial of Leave to Amend 26 Accordingly, the complaint fails to survive screening and must be dismissed for 27 failure to state a claim. See 28 U.S.C. § 1915(e). Although a “court should not dismiss a 28 pro se complaint without leave to amend unless it is absolutely clear that the deficiencies 1 ||of the complaint could not be cured by amendment,” no such cure is possible here. See 2 || Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (cleaned up). Because the relief 3 ||Emert seeks is not even available under § 1983, any amendment would be futile; in such a 4 ||case, courts may deny leave to amend. See Joe v. Supreme Ct. of Cal., No. 22-16224, 2023 5 || WL 5346048, at *1 (9th Cir. Aug. 21, 2023) (affirming denial of leave to amend for pro se 6 || pleading when “amendment would be futile”). 7 |\|D. Conclusion 8 Emert’s IFP motion (ECF 7) is GRANTED. But his complaint is DISMISSED for 9 || failure to state a claim, without leave to amend. All other outstanding motions (ECF 8 & 10 are DENIED AS MOOT. The Clerk is directed to close this case. 11 |)Dated: August 21, 2024

13 Andrew G. Schopler 4 United States District Judge

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