1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 KARENA A. FENG, Case No. 19-cv-06877-LB
12 Plaintiff, ORDER GRANTING MOTIONS TO 13 v. DISMISS
14 COUNTY OF SANTA CLARA, et al., Re: ECF Nos. 11, 14, 18, 21 15 Defendants. 16 17 INTRODUCTION 18 Pro se plaintiff Karena A. Feng has been diagnosed with a mental disorder, and at one point 19 (when she was in a maternity recovery ward), a psychiatrist evaluated her and hospitalized her 20 involuntarily under California and Welfare Institutions Code § 5150. Ms. Feng claims that this 21 placement occurred so that the Department of Family and Child Services (“DFCS”) could put her 22 children up for adoption or sex trafficking. Ms. Feng sued defendants the County of Santa Clara, 23 the City and County of San Francisco, psychiatrist Anna Piotrowski, M.D., Santa Clara social 24 workers Mayra Alvarez and Brian Hawkinson, San Francisco social worker Amy Yim, California 25 Superior Court Judge Amber Rosen, and Ms. Feng’s court-appointed attorney Arthur Gee-Yeh 26 Tan, alleging that the defendants are collectively engaging in a conspiracy against her and are 27 liable to her for at least $650 million in damages. 1 Judge Rosen, Dr. Piotrowski, Mr. Tan, Ms. Yim, and the City and County of San Francisco 2 move to dismiss Ms. Feng’s complaint. (The Santa Clara defendants — the County, Ms. Alvarez, 3 and Mr. Hawkinson — have not yet appeared in this case or moved to dismiss.1) The court can 4 decide the defendants’ motions without oral argument. N.D. Cal. Civ. L.R. 7-1(b). The court 5 grants the pending motions to dismiss. The court dismisses Ms. Feng’s claims against Judge 6 Rosen with prejudice and dismisses Ms. Feng’s claims against Dr. Piotrowski, Mr. Tan, Ms. Yim, 7 and the City and County of San Francisco without prejudice, meaning that the court gives Ms. 8 Feng an opportunity to file an amended complaint. Ms. Feng must file an amended complaint that 9 addresses the deficiencies the court identified in this order within 21 days (i.e., by January 16, 10 2020). If she does not do so, the court will dismiss her claims against Dr. Piotrowski, Mr. Tan, Ms. 11 12
13 1 Ms. Feng first purported to serve the Santa Clara defendants on October 23 and 24, 2019. Proof of 14 Service – ECF No. 9 at 6, 12, 14. Ms. Feng moved for entry of default against Ms. Alvarez and Mr. Hawkinson. Pls. Mots. for Default – ECF Nos. 22, 23, 34. Ms. Alvarez and Mr. Hawkinson specially 15 appeared to oppose Ms. Feng’s motions for default Alvarez and Hawkinson Opp’n to Pl. Mots. for Default – ECF No. 24; Alvarez Opp’n to Pl. Mot. for Default – ECF No. 35. All of the Santa Clara 16 defendants also consented to magistrate-judge jurisdiction. Santa Clara Defs. Consent – ECF No. 28. A defendant’s specially appearing to oppose entry of default does not waive any defenses, including 17 a defense of lack of service. See, e.g., Geiche v. City and Cty. of San Francisco, No. C 08-3233 JL, 2009 WL 1948830, at *9 (N.D. Cal. July 2, 2009) (holding that specially-appearing defendants were 18 not properly served with the summons or complaint, despite their specially appearing in the lawsuit to contest service). 19 Similarly, a defendant’s consenting to magistrate-judge jurisdiction does not waive any defenses, 20 including a defense of lack of service. See Harper v. City of Cortez, No. 14-cv-02984-KLM, 2015 WL 4113825, at *3 (D. Colo. July 8, 2015) (holding that defendants’ consent to magistrate-judge 21 jurisdiction did not waive service or jurisdiction defenses). To hold otherwise would put parties in the unfair position of being unable to consent to a magistrate judge without also having to waive defenses. 22 See id.; cf. Miller v. Wholesale Am. Mortg., Inc., No. 17-cv-05495-LB, 2018 WL 306714, at *4 (N.D. Cal. Jan. 5, 2018) (parties who want to consent to magistrate-judge jurisdiction should not have their 23 consents unduly frustrated). Ms. Feng purported to re-serve Mr. Hawkinson and Ms. Alvarez on December 19, 2019. Proof of 24 Service – ECF No. 40. The Santa Clara defendants have not (yet) appeared in response to this renewed purported service. 25 In sum, all parties — even those who have not otherwise generally appeared — have consented to 26 magistrate-judge jurisdiction, and the undersigned can decide the motions to dismiss. Cf. Williams v. King, 875 F.3d 500, 503–05 (9th Cir. 2017). 27 Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF- generated page numbers at the top of documents. 1 Yim, and the City and County with prejudice, meaning that she will not be able to replead her 2 claims against them.
3 STATEMENT2 4 Construing her complaint liberally, Ms. Feng alleges the following. 5 Ms. Feng gave birth to a baby (her fourth child) in November 2018.3 On November 26, Dr. 6 Piotrowski entered Ms. Feng’s maternity ward and said that “she just had another patient with 7 postpartum depression or psychosis, and she doesn’t want to bump into another one,” or words to 8 that effect.4 Ms. Feng responded that she had nothing to do with another patient, that she had been 9 delayed for discharge, and that she wanted to bring her newborn baby home to show the rest of her 10 family.5 Ms. Feng alleges that Dr. Piotrowski demanded that she take some type of psychedelic 11 drug and said, “If Plaintiff does not take it, then [Dr. Piotrowski] would call CPS [Child Protective 12 Services] to take the children away, throw me into the ward, do not disclose the address so no one 13 can save me and that I cannot see another day’s light, I will lose my children forever,” or words to 14 that effect.6 Ms. Feng asked for a second opinion, to which Dr. Piotrowski replied, “NO!”7 Ms. 15 Feng alleges that Dr. Piotrowski yelled that “she IS the law,” or words to that effect.8 Ms. Feng 16 alleges that Dr. Piotrowski wrote in Ms. Feng’s medical chart that all staff must follow Dr. 17 Piotrowski in her capacity as the “boss” and the “law.”9 18 At some point between November 26 and November 28, 2018, a medical provider 19 involuntarily placed Ms. Feng in a psychiatric ward at the Crestview Psychiatric Facility in Santa 20 21 22 2 Unless otherwise stated, the facts in the Statement are allegations from the Complaint and are presumed to be true for the purposes of this order. 23 3 See Compl. – ECF No. 1 at 6 (¶¶ 18, 20). 24 4 Id. (¶ 19). 5 Id. (¶ 20). 25 6 Id. at 6–7 (¶ 21). 26 7 Id. (¶ 22). 27 8 Id. (¶ 23). 9 Id. (¶ 24). 1 Clara.10 The facility discharged Ms. Feng on November 28, 2018.11 Syed Munir, MD, signed Ms. 2 Feng’s discharge papers.12 The typed notes on the discharge papers say that Ms. Feng was 3 diagnosed with an “unspecified mental disorder.”13 Handwritten notes on the discharge papers 4 cross out Ms. Feng’s diagnosis of “mental disorder” and instead say “psychosis disorder.”14 5 On November 26, Dr. Piotrowski called Mayra Alvarez, a DFCS social worker, to remove Ms. 6 Feng’s children LF, KF, MF, and RSF from her home.15 The police arrived at Ms. Feng’s home 7 and found Ms. Feng’s children there with another couple, the Shiangs.16 Ms. Feng alleges that Ms. 8 Alvarez lied and reported that the children were at Ms. Feng’s home by themselves (instead of 9 with the Shiangs) and “deliberately arranged the conditions, so when [sic] such conditions looked 10 worse than they really were.”17 Ms. Feng alleges that Ms. Alvarez “removed her prizes — an 11 Asian baby in high demand for adoption and a 13-year-old girl ideal to medicate in preparation for 12 sex trafficking.”18 13 On November 28, 2018, Santa Clara DFCS social worker Brian Hawkinson filed an 14 unspecified petition against Ms. Feng.19 In December 2018, Mr. Hawkinson filed a second 15 petition.20 Mr. Hawkinson claimed, among other things, that “the mother [Ms. Feng] was 16
17 10 Id. at 6 (¶ 15), 10 (¶ 36); Compl. Ex. A (psychiatrist discharge summary) – ECF No. 1 at 38–39. 18 11 Compl. Ex. A (psychiatrist discharge summary) – ECF No. 1 at 38–39. 12 Id. 19 13 Id. 20 14 Id.; see also Compl. – ECF No. 1 at 7 (¶ 25) (alleging that all of “the staff” — presumably staff at the maternity ward and/or staff working with Dr. Piotrowski — agreed that Ms. Feng had psychosis). 21 15 Compl. – ECF No. 1 at 8 (¶ 27). 22 16 Id. (¶ 28). 23 17 Id. 18 Id. at 8–9 (¶ 29); see also id. at 6 (¶ 16) (“Upon information and belief, LF and RSF were ideal ages 24 for adoption and sex trafficking which are big money makers for the [racketeering] Enterprise [of the defendants].”). Ms. Feng does not allege that any of her children were actually put up for adoption or 25 sex trafficking. Instead, she alleges that they initially were placed in foster homes, id. at 9 (¶ 33), and then ultimately were placed with the Shiangs, see id. at 12 (¶ 42). 26 19 Id. at 10 (¶ 36); see id. at 4 (¶ 10), 12 (¶ 40), 13 (¶ 45), 15 (¶ 59), 16 (¶ 62) (alleging that Mr. 27 Hawkinson is a Santa Clara DFCS employee). 20 Id. at 10 (¶ 36). 1 hallucinating and paranoid.”21 Ms. Feng alleges that Mr. Hawkinson “doctored” his petitions and 2 claims that Mr. Hawkinson was the one who crossed out “mental disorder” and wrote “psychosis 3 disorder” on her discharge papers.22 4 Ms. Feng does not clearly allege where Mr. Hawkinson filed his petition, but construing her 5 complaint liberally, it appears that Mr. Hawkinson may have filed his petition before California 6 Superior Court Judge Amber Rosen.23 The court appointed Arthur Gee-Yeh Tan as Ms. Feng’s 7 attorney.24 Ms. Feng alleges that Mr. Tan told her, “I will handle this the right way,” instructed 8 her, “do not say a thing” in court or “you won’t get your kids back,” and demanded that she 9 receive therapy.25 Mr. Tan told the court that Ms. Feng submitted to everything Mr. Hawkinson 10 wrote in his petition.26 11 The petition and court proceeding appear to have resulted in Santa Clara County’s placing Ms. 12 Feng’s children LF, KF, MF, and RSF initially in foster homes.27 Ms. Feng alleges that the foster 13 homes were “inhumane” and “abusive.”28 Ms. Feng alleges that Mr. Hawkinson demanded that 14 Ms. Feng consent to LF’s, KF’s, MF’s, and RSF’s adoption.29 Ms. Feng alleges that Mr. 15 Hawkinson “mistreated and tortured” LF, KF, MF, and RSF and “manipulated the situation” to 16 have LF, KF, MF, and RSF categorized with mental issues, when in fact they do not have any 17 18 21 Id. (¶ 34). 19 22 Id. at 10–11 (¶¶ 36–38); see Compl. Ex. A (psychiatrist discharge summary) – ECF No. 1 at 38–39. 20 23 Ms. Feng does not clearly set forth what she is alleging Judge Rosen did. See Compl. – ECF No. 1 at 21 (¶ 75) (alleging that Judge Rosen had “no subject matter jurisdiction at all,” without specifying 21 what the underlying matter was), 32–3 (¶¶ 117–19) (alleging that Judge Rosen violated the Fourteenth Amendment without specifying what the underlying matter was). The court construes Ms. Feng’s 22 complaint liberally and assumes that Judge Rosen presided over Mr. Hawkinson’s petition and any ensuing proceedings, because if Judge Rosen did not preside over these proceedings, then Ms. Feng 23 alleges no cognizable facts against Judge Rosen at all. 24 24 Id. at 9 (¶ 30). 25 Id. at 9 (¶ 31), 10 (¶ 34). 25 26 Id. at 9 (¶¶ 30–31), 10 (¶ 34). 26 27 Id. at 9 (¶ 33). 27 28 Id. 29 Id. at 11 (¶ 39). 1 mental issues.30 Ms. Feng alleges that Mr. Hawkinson did not allow her to telephone or video chat 2 with her children and that in-person visitation times were “contaminated” as, on multiple 3 occasions, she would wait to meet with her children but her children were not brought to the 4 visitation location.31 5 In March 2019, Mr. Hawkinson approved LF, KF, MF, and RSF to stay with the Shiangs at the 6 Shiangs’ home in San Francisco.32 Because Ms. Feng’s case was not in San Francisco, the Shiangs 7 had to travel to Ms. Feng’s residence or to another location that Mr. Hawkinson would specify in 8 order for Ms. Feng to have “visitation” (presumably with her children).33 Mr. Hawkinson told Ms. 9 Feng that she had to live in San Francisco in order to have her file transferred to San Francisco.34 10 Ms. Feng planned to move to a “shared” living space in San Francisco.35 Amy Yim, a San 11 Francisco DFCS worker, did not approve of Ms. Feng’s shared location and insisted that she live 12 by herself.36 Ms. Feng alleges that Ms. Yim has been telling Ms. Feng’s children, friends, and 13 lawyer, and teachers and police officers, that Ms. Feng is schizophrenic.37 14 Ms. Feng alleges that Ms. Yim concocted an “entrapment scheme” against her.38 On August 15 23, 2019, Ms. Feng’s children LF, KF, MF, and RSF had an appointment for immunization 16 shots.39 Ms. Feng alleges that her children were not allowed to go to their appointment because 17 Ms. Yim said so.40 Ms. Feng alleges that her children therefore had to schedule a nighttime 18 19 30 Id. at 11–12 (¶ 40). 20 31 Id. at 12 (¶ 43). 21 32 Id. at 12 (¶ 42), 13 (¶ 45). 22 33 Id. at 13 (¶ 46). 34 Id. 23 35 Id. (¶ 47). 24 36 Id. (¶ 48); see id. at 14 (¶ 51), 15 (¶¶ 56, 59), 16 (¶¶ 61–62) (alleging that Ms. Yim is a San Francisco DFCS employee). 25 37 Id. at 14 (¶ 50). 26 38 Id. (¶ 54). 27 39 Id. 40 Id. at 14–15 (¶ 54). 1 appointment and that Ms. Yim then called the police to place her under arrest for not having her 2 children home earlier.41 On September 24, 2019, Ms. Yim filed a juvenile-dependency-court 3 petition.42 4 Ms. Feng alleges that Mr. Hawkinson is a DFCS “fixer” and that Ms. Yim is the DFCS 5 “master fixer” conspiring against her.43 6 7 STANDARD OF REVIEW 8 A complaint must contain a “short and plain statement of the claim showing that the pleader is 9 entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon 10 which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 11 A complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide the 12 ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic 13 recitation of the elements of a cause of action will not do. Factual allegations must be enough to 14 raise a claim for relief above the speculative level[.]” Twombly, 550 U.S. at 555 (internal citations 15 omitted). 16 To survive a motion to dismiss, a complaint must contain sufficient factual allegations, which 17 when accepted as true, “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 18 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when 19 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 20 defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a 21 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 22 unlawfully.” Id. (citing Twombly, 550 U.S. at 557). “Where a complaint pleads facts that are 23 merely consistent with a defendant’s liability, it stops short of the line between possibility and 24 25 26 41 Id. at 15 (¶ 54). 27 42 Id. at 14 (¶ 53). 1 plausibility of ‘entitlement to relief.’” Id. (internal quotation marks omitted) (quoting Twombly, 2 550 U.S. at 557). 3 “A pro se complaint must be ‘liberally construed,’ since ‘a pro se complaint, however 4 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 5 lawyers.’” Entler v. Gregoire, 872 F.3d 1031, 1038 (9th Cir. 2017) (quoting Erickson v. Pardus, 6 551 U.S. 89, 94 (2007)). 7 If a court dismisses a complaint, it should give leave to amend unless the “pleading could not 8 possibly be cured by the allegation of other facts.” United States v. United Healthcare Ins. Co., 9 848 F.3d 1161, 1182 (9th Cir. 2016) (citations and internal quotation marks omitted). But “leave 10 to amend may be denied when a plaintiff has demonstrated a ‘repeated failure to cure deficiencies 11 by amendments previously allowed.’” Id. at 1183 (quoting Eminence Capital, LLC v. Aspeon, Inc., 12 316 F.3d 1048, 1052 (9th Cir. 2003)). “It is not an abuse of discretion to deny leave to amend 13 when any proposed amendment would be futile.” Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 14 (9th Cir. 1990) (citing Klamath-Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 15 1292–93 (9th Cir. 1983)). 16 17 ANALYSIS 18 Ms. Feng brings three claims: (1) a claim against the County Santa Clara, the City and County 19 of San Francisco, Mr. Hawkinson, Ms. Alvarez, and Judge Rosen for violation of 42 U.S.C. 20 § 1983, (2) a claim against the County of Santa Clara, the City and County of San Francisco, Dr. 21 Piotrowski, Mr. Hawkinson, Ms. Alvarez, Ms. Yim, Judge Rosen, and Mr. Tan for violation of the 22 Fourteenth Amendment, (3) a claim against the County of Santa Clara, the City and County of San 23 Francisco, Dr. Piotrowski, Mr. Hawkinson, Ms. Alvarez, Ms. Yim, Judge Rosen, and Mr. Tan for 24 violation of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1961 25 et seq.44
26 27 44 Id. at 33–35 (¶¶ 121–26). Ms. Feng labels her claims “Count One,” “Count Two,” and “Count 1 1. Ms. Feng’s Claims Against Judge Rosen Are Barred by the Rooker–Feldman Doctrine and Judicial Immunity 2 3 1.1 The Rooker–Feldman Doctrine 4 “The Rooker–Feldman doctrine instructs that federal district courts are without jurisdiction to 5 hear direct appeals from the judgments of state courts.” Cooper v. Ramos, 704 F.3d 772, 777 (9th 6 Cir. 2012). “The doctrine bars a district court from exercising jurisdiction not only over an action 7 explicitly styled as a direct appeal, but also over the ‘de facto equivalent’ of such an appeal.” Id. 8 (citing Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003)). “‘It is a forbidden de facto appeal 9 under Rooker–Feldman when the plaintiff in federal district court complains of a legal wrong 10 allegedly committed by the state court, and seeks relief from the judgment of that court.’” Id. at 11 778 (quoting Noel, 341 F.3d at 1163). “A federal district court dealing with a suit that is, in part, a 12 forbidden de facto appeal from a judicial decision of a state court must refuse to hear the forbidden 13 appeal.” Noel, 341 F.3d at 1158. “As part of that refusal, it must also refuse to decide any issue 14 raised in the suit that is ‘inextricably intertwined’ with an issue resolved by the state court in its 15 judicial decision.” Id. “[A] federal claim is inextricably intertwined with the state-court judgment 16 if the federal claim succeeds only to the extent that the state court wrongly decided the issues 17 before it.” Cooper, 704 F.3d at 779 (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S., 1, 25 (1987) 18 (Marshall, J., concurring)). 19 Ms. Feng’s claims against Judge Rosen are, at most, that Judge Rosen applied incorrect 20 evidentiary standards in a state-court proceeding and thereby deprived her of due process.45 To 21 evaluate Ms. Feng’s claims, the court would need to review Judge Rosen’s state-court legal 22 determinations, which it may not do under the Rooker–Feldman doctrine. 23 Ms. Feng argues that the Rooker–Feldman doctrine does not apply because she is seeking 24 money damages against Judge Rosen.46 Not so. Ms. Feng’s claims for damages against Judge 25 Rosen for her state-court rulings are “inextricably intertwined” with a review of the rulings 26
27 45 Id. at 21 (¶ 75). 1 themselves. Cf. Cooper, 704 F.3d at 782 (“[Plaintiff]’s prayer for relief in the form of monetary 2 and punitive damages . . . [that] is contingent upon a finding that the state court decision was in 3 error. . . . is precisely th[e] sort of horizontal review of state court decisions that the Rooker– 4 Feldman doctrine bars.”). The Rooker–Feldman doctrine therefore applies and bars Ms. Feng’s 5 claims against Judge Rosen. 6 1.2 Judicial Immunity 7 “It is well established that state judges are entitled to absolute immunity for their judicial acts.” 8 Swift v. California, 384 F.3d 1184, 1188 (9th Cir. 2004) (citing Pierson v. Ray, 386 U.S. 547, 9 553–54 (1967)). Absolute judicial immunity extends to suits against a judge with respect to 10 judicial acts even when a plaintiff purports to name the judge as a defendant in her personal or 11 individual (as opposed to official) capacity. Cf. Romano v. Bible, 169 F.3d 1182, 1185–86 (9th 12 Cir. 1999) (holding that quasi-judicial defendants named “in their personal capacities” nonetheless 13 were entitled to absolute judicial immunity because “[t]he Supreme Court has adopted a 14 ‘functional approach’ to determine whether an officer is entitled to absolute immunity. This 15 approach looks to the nature of the function performed . . . .”) (emphasis in original). Ms. Feng’s 16 claims that Judge Rosen applied incorrect evidentiary standards and deprived her of due process 17 are claims against Judge Rosen for judicial acts and thus are barred by absolute judicial immunity. 18 Ms. Feng argues that Judge Rosen “had no jurisdiction at all” and thus judicial immunity does 19 not apply.47 Not so. Ms. Feng’s claim that Judge Rosen purportedly applied the wrong evidentiary 20 standard does not plead that Judge Rosen acted in the clear absence of jurisdiction. Cf., e.g., 21 Thompson v. Santa Cruz Cty. Human Servs. Dep’t, No. 12-CV-03894-LHK, 2013 WL 1750960, at 22 *2, *10 (N.D. Cal. Apr. 23, 2013) (allegations that state-court judge “committed various errors in 23 the courts of the Juvenile Court proceedings” do not plead that judge acted in the clear absence of 24 jurisdiction). Absolute judicial immunity therefore applies and bars Ms. Feng’s claims against 25 Judge Rosen. 26 * * * 27 1 The court dismisses Ms. Feng’s claims against Judge Rosen as barred by the Rooker–Feldman 2 doctrine and judicial immunity. Because these issues cannot be cured through additional pleading, 3 this dismissal is with prejudice. Cf. Cooper, 704 F.3d at 785 (affirming dismissal without leave to 4 amend because amendment would have been futile). 5 6 2. Ms. Feng Does Not Plead a Cognizable Claim Under 42 U.S.C. § 1983 or the Fourteenth Amendment Against Dr. Piotrowski, Mr. Tan, Ms. Yim, or San Francisco 7 8 2.1 Ms. Feng Does Not Plead That Dr. Piotrowski or Mr. Tan Are State Actors 9 42 U.S.C. § 1983 allows individuals to sue government officials who violate their civil rights 10 while acting “under color of any statute, ordinance, regulation, custom, or usage, of any State.” 11 “The ‘under color of state law’ requirement is an essential element of a § 1983 case, and it is the 12 plaintiff’s burden to establish this element.” Gatpandan v. Wilmington Sav. Fund Soc’y FSB, No. 13 17-cv-04001-LB, 2017 WL 5751208, at *2 (N.D. Cal. Nov. 28, 2017) (some internal quotation 14 marks omitted) (quoting Duenas v. Freitas, No. C 13-0836 SBA, 2013 WL 3298249, at *5 (N.D. 15 Cal. June 28, 2013)). “‘Purely private conduct, no matter how wrongful, is not covered under 16 § 1983.’” Id. (quoting Duenas, 2013 WL 3298249, at *5). Similarly, a claim under the Fourteenth 17 Amendment requires an allegation of “state action.” Manda v. Albin, No. 5:19-cv-01947-EJD, 18 2019 WL 6311380, at *9 (N.D. Cal. Nov. 25, 2019). “Where, as here, deprivations of rights under 19 the Fourteenth Amendment are alleged, these two requirements” — Section 1983’s “under color 20 of state law” requirement and the Fourteenth Amendment’s “state action” requirement — 21 “converge.” Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 924 n.5 (9th Cir. 2011) 22 (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 n.8 (1999)).48 23 Ms. Feng does not allege that Dr. Piotrowski or Mr. Tan are state actors or acted under color of 24 state law. Cf. Mueller v. Auker, 700 F.3d 1180, 1191–92 (9th Cir. 2012) (private medical provider 25
26 48 Ms. Feng purports to bring separate claims under 42 U.S.C. § 1983 and the Fourteenth Amendment. Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method for 27 vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). The court therefore analyzes Ms. Feng’s 1 that reported possible child neglect to Child Protective Services under a state reporting statute did 2 not become a state actor by doing so); Miranda v. Clark Cty., 319 F.3d 465, 468 (9th Cir. 2003) 3 (en banc) (court-appointed attorney that is employed and paid by a public agency is not a state 4 actor when he is appointed by the court to represent a client). Ms. Feng’s opposition to Dr. 5 Piotrowski’s motion to dismiss does not cognizably respond to Dr. Piotrowski’s argument that she 6 is not a state actor,49 and Ms. Feng failed to file any opposition to Mr. Tan’s motion to dismiss.50 7 The court dismisses Ms. Feng’s claims under 42 U.S.C. § 1983 and the Fourteenth Amendment 8 against Dr. Piotrowski and Mr. Tan for failure to plead that they are state actors or acted under 9 color of state law. 10 2.2 Ms. Feng Does Not Plead That Ms. Yim Violated Her Constitutional Rights 11 In order for a defendant to be liable for depriving a plaintiff of her constitutional rights, “there 12 must be a showing of personal participation in the alleged rights deprivation[.]” Jones v. Williams, 13 297 F.3d 930, 934 (9th Cir. 2002) (citing cases). Ms. Feng argues that she was deprived of her 14 procedural and substantive due-process rights with respect to the removal of her children from her 15 custody.51 Ms. Feng complains about Mr. Hawkinson, Mr. Tan, and Judge Rosen with respect to 16 that removal,52 but she does not allege that Ms. Yim personally participated in that removal. Ms. 17 Feng alleges as a conclusion that Ms. Yim conspired to cover up witness tampering and 18 obstruction of justice in her trial proceedings,53 but she does not plead any specific facts with 19 respect to Ms. Yim that support this conclusion. Cf. Barren v. Harrington, 152 F.3d 1193, 1194 20 (9th Cir. 1998) (“A plaintiff must allege facts, not simply conclusions, that show that an individual 21 was personally involved in the deprivation of his civil rights.”).54 The court dismisses Ms. Feng’s 22
23 49 See Pl. Opp’n to Piotrowski Mot. – ECF No. 27. 24 50 See Docket. 51 Compl. – ECF No. 1 at 20–22 (¶¶ 73–76). 25 52 Id. 26 53 Id. at 30 (¶ 109). 27 54 Ms. Feng alleges that Ms. Yim has been telling her children, friends, and lawyer, and teachers and police officers, that she is schizophrenic. Id. at 14 (¶ 50). Without more, this does not plead a due- 1 claims under 42 U.S.C. § 1983 and the Fourteenth Amendment against Ms. Yim for failure to 2 plead a constitutional violation. 3 2.3 Ms. Feng Does Not Plead That the City and County of San Francisco Violated Her Constitutional Rights 4 5 In addition to pleading an underlying violation of a constitutional right, to plead a 6 constitutional claim against a government entity like the City and County of San Francisco, Ms. 7 Feng must plead that it maintained a policy or custom that resulted that violation. Monell v. Dep't 8 of Soc. Servs., 436 U.S. 658, 690–91 (1978). Liability against a government entity starts from the 9 premise that there is no respondeat superior liability under 42 U.S.C. § 1983, i.e., no entity is 10 liable simply because it employs a person who has violated a plaintiff’s rights. See, e.g., Monell, 11 436 U.S. at 691; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). To plead a claim against a 12 government entity, a plaintiff must show that (1) she possessed a constitutional right and was 13 deprived of that right, (2) the government entity had a policy, (3) the policy amounts to deliberate 14 indifference to her constitutional rights, and (4) the policy was the moving force behind the 15 constitutional violation. Plumeau v. Sch. Dist. #40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 16 1997).55 The court dismisses Ms. Feng’s claims under 42 U.S.C. § 1983 and the Fourteenth 17
18 (“[T]here is no constitutional protection for the interest in reputation.”) (citing Siegert v. Gilley, 500 19 U.S. 226, 233–34 (1991)). Ms. Feng also alleges that Ms. Yim “entrapped” her so that Ms. Yim could file a juvenile-dependency court petition against her. Id. at 14–15 (¶¶ 53–54). As a social worker, Ms. 20 Yim “ha[s] absolute immunity when [she] make[s] ‘discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents.’” Beltran v. Santa Clara 21 Cty., 514 F.3d 906, 908 (9th Cir. 2008) (en banc) (per curiam) (quoting Miller v. Gammie, 335 F.3d 889, 896 (9th Cir. 2003) (en banc)). Additionally, Ms. Yim has qualified immunity “insofar as [her] 22 conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc) (quoting 23 Pearson v. Callahan, 555 U.S. 223, 231 (2009)); see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017) (“[Q]ualified immunity protects ‘all but the plainly incompetent or those who knowingly 24 violate the law.’”) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 55 The Ninth Circuit has explained, “There are three ways to show a policy or custom of a 25 municipality: (1) by showing ‘a longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local government entity;’ (2) ‘by showing that the decision-making official 26 was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision;’ or (3) ‘by showing that an official with final 27 policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.’” Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (quoting Ulrich v. City and Cty. of San 1 committed an underlying constitutional violation and for failure to plead that San Francisco had a 2 policy that amounted to deliberate indifference to her constitutional rights and that such policy was 3 the moving force behind any purported constitutional violation. 4 5 3. Ms. Feng Does Not Plead a Cognizable Claim Under the RICO Act Against Dr. Piotrowski, Mr. Tan, Ms. Yim, or San Francisco 6 7 “To state a civil RICO claim, plaintiffs must allege (1) conduct (2) of an enterprise (3) through 8 a pattern (4) of racketeering activity (5) causing injury to plaintiffs’ ‘business or property.’” Ove v. 9 Gwinn, 264 F.3d 817, 825 (9th Cir. 2001) (citing 18 U.S.C. § 1964(c)). “Civil rights violations and 10 injury to reputation do not fall within the statutory definition of ‘racketeering activity’” and thus 11 “fail[] to state a claim under RICO.” Bowen v. Oistead, 125 F.3d 800, 806 (9th Cir. 1997). 12 Additionally, “RICO does not provide a cause of action for all types of injury to property interests, 13 but only for injuries resulting in ‘concrete financial loss.’” Diaz v. Gates, 420 F.3d 897, 898 (9th 14 Cir. 2005) (en banc) (per curiam) (citing Oscar v. Univ. Students Co-Operative Ass’n, 965 F.2d 15 783, 785 (9th Cir. 1992) (en banc)). “Without a harm to a specific business or property interest — 16 a categorical inquiry typically determined by reference to state law — there is no injury to 17 business or property within the meaning of RICO.” Id. at 900. Ms. Feng has not pleaded injury to 18 her business or property resulting in “concrete financial loss.” Cf. Ybarra-Johnson v. Arizona, No. 19 CV-14-00171-PHX-GMS, 2014 WL 5843358, at *1, *5 (D. Ariz. Nov. 12, 2014) (dismissing 20 RICO claim by mother and grandmother regarding termination of mother’s parental rights to her 21 children because “Plaintiffs have not alleged a crucial element of a RICO claim, that they suffered 22 concrete financial loss to their ‘business or property.’ Rather, Plaintiffs allege only personal 23 injuries. Any emotional distress or damage to Plaintiffs’ family relationships caused by 24 Defendants’ actions does not qualify as an injury to business or property under RICO.”) (citing 25 Diaz, 420 F.3d at 899–900). The court dismisses Ms. Feng’s RICO claims against Dr. Piotrowski, 26 Mr. Tan, Ms. Yim, and the City and County of San Francisco for failure to state a claim. 27 1 CONCLUSION 2 The court grants the pending motions to dismiss. 3 The court dismisses Ms. Feng’s claims against Judge Rosen with prejudice. 4 The court dismisses Ms. Feng’s claims against Dr. Piotrowski, Mr. Tan, Ms. Yim, and the City 5 and County of San Francisco without prejudice, i.e., the court extends Ms. Feng an opportunity to 6 || file an amended complaint. Ms. Feng must file an amended complaint that addresses the 7 deficiencies the court identified in this order within 21 days (i.e., by January 16, 2020). If she does 8 not do so, the court will dismiss her claims against Dr. Piotrowski, Mr. Tan, Ms. Yim, and the City 9 and County with prejudice. 10 11 IT IS SO ORDERED. a 12 Dated: December 26, 2019 LAE
ate LAUREL BEELER 14 United States Magistrate Judge 15
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