Lim v. Miller

• Court: District Court, E.D. California
• Decided: June 17, 2022
• Docket: 1:21-cv-01734
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHONG SOOK LIM, Case No. 1:21-cv-01734-DAD-BAM 12 Plaintiff, ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS 13 v. (Docs. 2, 4) 14 LISA A. MILLER, Ph.D., et al., SCREENING ORDER GRANTING 15 Defendants. PLAINTIFF LEAVE TO AMEND 16 (Doc. 1) 17 18 Plaintiff Chong Sook Lim (“Plaintiff”), proceeding pro se, initiated this civil rights action 19 pursuant to 42 U.S.C. § 1983 against Lisa A. Miller, Ph.D. and Does 1-53 on December 7, 2021. 20 (Doc. 1.) 21 I. Application to Proceed in Forma Pauperis 22 Concurrent with her complaint, Plaintiff filed an application to proceed in forma pauperis 23 without prepaying fees or costs pursuant to Title 28 of the United States Code section 1915(a). 24 (Doc. 2.) The application was not signed. Accordingly, on March 3, 2022, the Court directed 25 Plaintiff to file a completed application to proceed in forma pauperis. (Doc. 3.) Plaintiff 26 submitted a signed application to proceed in forma pauperis on March 30, 2022. (Doc. 4.) 27 Plaintiff has made the showing required by section 1915(a), and accordingly, the request 28 to proceed in forma pauperis is GRANTED. 28 U.S.C. § 1915(a). 1 II. Screening Requirement and Standard 2 The Court screens complaints brought by persons proceeding in pro se and in forma 3 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to 4 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be 5 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 6 U.S.C. § 1915(e)(2)(B)(ii). 7 A complaint must contain “a short and plain statement of the claim showing that the 8 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 9 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 11 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 12 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 13 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 14 To survive screening, Plaintiff’s claims must be facially plausible, which requires 15 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 16 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 17 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 18 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 19 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 20 III. Summary of Plaintiff’s Allegations 21 Plaintiff brings this section 1983 action against Defendant Lisa A. Miller, Ph.D., a 22 licensed clinical psychologist. Plaintiff’s complaint relates to state court child custody 23 proceedings on December 18, 2019, and October 14, 2021, involving Plaintiff and her minor 24 daughter, Yerin Lim. (Doc. 1, Compl. at ¶¶ 1, 7, 8.). According to the complaint, Defendant 25 provided a report and appeared as a witness in contested family court proceedings, presumptively 26 as a child custody evaluator. (Id. at ¶¶ 7, 8, 33, 35, 38.) Plaintiff alleges that “Defendant falsely 27 diagnosed Plaintiff, who is an adult and the mother of a child, as a result of three conjoint 28 therapies as a child psychologist.” (Id. at ¶ 4.) Defendant is sued based on allegations that “she 1 neglected [her] responsibility to report to the CPS, reported false information about the Plaintiff 2 and the child to the Family Court several times, committed perjury in family court hearings, and 3 violated the law of confidentiality to be observed as a child psychologist.” (Id.) 4 On December 18, 2019, the family court rejected Plaintiff’s request for change of custody 5 based on Defendant’s allegedly false report that Plaintiff had Munchausen by Proxy Syndrome 6 (“MBPS”). The court ordered supervised visits and ordered Plaintiff to attend individual 7 counseling because of the allegedly false MBPS diagnosis. Plaintiff contends that without 8 Defendant’s report, “the court had no reason to dismiss the Plaintiff’s custody change and 9 unsupervise [sic] visits on December 18, 2019. (Id. at ¶ 7.) 10 At some unknown point, Plaintiff requested that the family court dismiss Defendant’s 11 reports as invalid and inaccurate, but that request was dismissed. Plaintiff asserts that according 12 to Defendant’s report, “Plaintiff could neither have custody of her child nor have any visitation 13 rights.” (Id. at ¶ 14.) Plaintiff asserts that Defendant is not eligible for custody evaluation with 14 her license and her recommendations as a custody evaluator should be dismissed. (Id.) Plaintiff 15 further asserts that Defendant, a child psychologist, is unqualified to do adult psychiatric 16 evaluations and analyses. Defendant’s alleged “misdiagnosis and misreporting cause the 17 Plaintiff, who was a preschool teacher, to lose her job for a living and lose her full custody of her 18 child.” (Id. at ¶ 15.) 19 Defendant also reportedly “emailed Plaintiff’s eldest daughter, spitting out all the 20 information about the Plaintiff and the patient.” (Id. at ¶ 17.) Defendant allegedly stated, “The 21 typical outcome of Munchausen by Proxy is death. I do not want that to happen to your sister. I 22 am not the only doctor professional that has had the same assessment of the situation.” (Id.) 23 Plaintiff is concerned that Defendant is still consulting with Plaintiff’s child. Defendant 24 “showed a trial of retaliation against the Plaintiff and a great effort to forcibly separate the child 25 from the child’s mother. Defendant is building a new relationship by coaching and managing the 26 child from Plaintiff and her family. Defendant is alienating the child, the child’s mother, her 27 sister and her whole family.” (Id. at ¶ 23.) Plaintiff and her family reported Defendant to the 28 California Board of Psychologists in January 2020. 1 On December 19, 2019, Defendant reported to the family court that certain of Plaintiff’s 2 actions were part of Munchausen Syndrome. Plaintiff claims that Defendant’s “irresponsible and 3 unconsidered false diagnosis, misunderstanding and distortion . . . destroyed the life of an 4 innocent mother and her family.” (Id. at ¶ 30.) 5 Plaintiff further alleges that after Defendant confirmed with Plaintiff’s individual therapist 6 that Plaintiff was still attending therapy, Defendant continued to claim and report to the court that 7 Plaintiff was not complying with the court order because Plaintiff had discontinued her therapy. 8 Plaintiff avers that “[t]hese false statements and delusions about the Plaintiff, the Defendant 9 concluded, would increasingly negatively affect repeated contact between the Plaintiff and the 10 child.” (Id. at ¶ 32.) 11 Plaintiff asserts that Defendant violated the California Board of Psychology policy by 12 sharing child-patient and parent information with a third party without prior consent or 13 permission. Defendant allegedly disclosed all information about Plaintiff and Plaintiff’s child to 14 other patients and their parents, and Plaintiff’s friends and eldest daughter. (Id. at ¶ 34.) Plaintiff 15 claims that Defendant provided unfiltered information about Plaintiff’s child to a third party. (Id. 16 53.) 17 Plaintiff claims that Defendant must no longer see the child as patient, that Defendant is 18 jealous of the bond between mother and child and is trying to turn attention to herself by breaking 19 several laws. Plaintiff avers that Defendant is not competent to carry on the work of a Child 20 Custody Evaluator and that Defendant has created speculation about the Plaintiff that is 21 unreasonable and far from reality. As an example of the purported speculation, Plaintiff points to 22 Defendant’s statement that she has “grave concerns that nonprofessionals such as church 23 members or family friends would not be able to stop [Plaintiff] from engaging in inappropriate 24 and potentially dangers behaviors, which may include her taking the child and refusing to return 25 her to her custodial parent.” (Id. at ¶ 38.) Plaintiff claims that Defendant does not know how to 26 distinguish between her fantasies/shows and reality. Plaintiff also claims that she has not had any 27 contact with Defendant since 2019 and Defendant does not have a right to evaluate Plaintiff or the 28 case. Plaintiff contends that what Defendant has done to Plaintiff and her child is an act of racism 1 toward an Asian mother and the intent to deprive Plaintiff of her maternal rights is a human rights 2 violation. (Id. at ¶ 43.) 3 On October 14, 2021, the court again dismissed Plaintiff’s request for custody change and 4 unsupervised visits. Defendant was summoned as a witness in the contested hearing. Defendant 5 “testified that Plaintiff was not complying with the court order by lying that Plaintiff was not 6 attending the individual therapy ordered by the court.” (Id. at ¶ 8.) The court did not confirm this 7 information with Plaintiff or the report of Plaintiff’s individual therapist. Plaintiff alleges:

8 Defendant falsely stated that the Plaintiff continued to harass the child’s biological father and his extended family with inappropriate conduct without 9 substantiation, and that the Plaintiff entered the Defendant’s office at number 15 or 20 times and stated differently “many many many times” without an 10 appointment and falsely stated that the Plaintiff had requested a false report that the child had been abused by the child’s father. 11 12 (Id. at ¶ 33.) Plaintiff claims that Defendant provided other “completely unsubstantiated false 13 testimony” at the contested hearing. (Id. at ¶ 48.) 14 Plaintiff alleges that Defendant violated various California statutes, including the 15 California Family Code, the California Penal Code and the California Civil Code. Plaintiff also 16 claims that Defendant violated 18 U.S.C. §§ 1621 and 1623. As relief, Plaintiff seeks monetary 17 damages and injunctive relief. 18 IV. Discussion 19 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8, fails to state 20 a cognizable claim upon which relief may be granted, and seeks monetary relief against a 21 defendant who is immune from such relief. As Plaintiff is proceeding in pro se, and in an 22 abundance of caution, the Court will allow Plaintiff an opportunity to amend her complaint to the 23 extent she can do so in good faith. To assist Plaintiff, the Court provides the relevant pleading 24 and legal standards. 25 A. Federal Rule of Civil Procedure 8 26 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and 27 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 28 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 1 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 2 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 3 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 4 at 570, 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are 5 not. Id.; see also Twombly, 550 U.S. at 556–557. 6 Plaintiff’s complaint is not a short and plain statement of her claims. Plaintiff’s narrative 7 is rambling, confusing, and lacks chronological order. It also contains extraneous statements and 8 information, making it difficult to separate the relevant factual allegations from the irrelevant 9 ones. It is not the type of complaint contemplated by Rule 8. See Murguia v. Langdon, No. 10 1:19-cv-00942-DAD-BAM, 2020 WL 3542310, at *12 (E.D. Cal. June 30, 2020) (dismissing 11 complaint with leave to amend where complaint failed to comply with Rule 8 and was “mostly 12 narrative ramblings and storytelling”). If Plaintiff files an amended complaint, it should be a 13 short and plain statement of her claims and must be limited only to those factual allegations 14 related to her claims which identify what happened, when it happened and who was involved. 15 Fed. R. Civ. P. 8. 16 B. Child Custody Claims 17 Plaintiff presents her claims as a civil rights action against Defendant Miller. However, 18 to the extent Plaintiff’s purpose in bringing this action is to seek modification of child custody 19 orders or modification of the terms and conditions of visitation, she may not do so. The Court 20 lacks jurisdiction over claims concerning child custody issues because they are exclusively 21 matters of state law. See Ankenbrandt v. Richards, 504 U.S. 689, 702-704 (1992) (holding that 22 the domestic relations exception to federal subject matter jurisdiction “divests the federal courts 23 of power to issue divorce, alimony and child custody decrees.”); see also Peterson v. Babbitt, 24 708 F.2d 465, 466 (9th Cir.1983) (stating that “federal courts have uniformly held that they 25 should not adjudicate cases involving domestic relations, including ‘the custody of minors and a 26 fortiori, right of visitation.’ For that matter, the whole subject of domestic relations and 27 particularly child custody problems is generally considered a state law matter”). “Even when a 28 federal question is presented, federal courts decline to hear disputes which would deeply involve 1 them in adjudicating domestic matters.” Thompson v. Thompson, 798 F.2d 1547, 1558 (9th 2 Cir.1986). 3 Further, to the extent Plaintiff is challenging the orders of the state court regarding 4 custody or visitation premised on Defendant Miller’s reports or testimony, she may not do so. 5 This Court lacks subject matter jurisdiction to review the final determinations of state court 6 dependency proceedings. See, e.g., Worldwide Church of God v. McNair, 805 F.2d 888, 890 7 (9th Cir.1986) (“The United States District Court ... has no authority to review the final 8 determinations of a state court in judicial proceedings.”). Under the Rooker-Feldman doctrine, a 9 federal district court does not have subject-matter jurisdiction to hear an appeal from the 10 judgment of a state court. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 11 (2005); see also Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); 12 Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923). Therefore, Plaintiff’s claims relating to 13 child custody and supervised visitation, which presumably arise from state court orders, would 14 be barred by the Rooker-Feldman doctrine. See Walton v. Hopper, No. 2:22-cv-00453 JAM AC 15 PS, 2022 WL 837268, at *4 (E.D. Cal. Mar. 21, 2022), (“Child custody and parental rights are 16 quintessentially state law matters that are generally outside the purview of the federal court.”), 17 report and recommendation adopted, No. 2:22-cv-0453 JAM AC PS, 2022 WL 1506096 (E.D. 18 Cal. May 12, 2022). 19 C. Quasi-Judicial Immunity 20 “It has long been established that judges are absolutely immune from liability for acts 21 ‘done in the exercise of their judicial functions.” Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 22 2008) (quotation omitted). The absolute immunity granted to judges has been extended to other 23 public officials “who perform activities that are ‘functionally comparable’ to those of judges.” 24 Id. (quoting Butz v. Economou, 438 U.S. 478, 513 (1978)). District courts in the Ninth Circuit, 25 including this district, have found that quasi-judicial immunity applies to defendants performing 26 functions similar to those that Defendant Miller was alleged to be performing as a child custody 27 evaluator. See, e.g., Thomas v. Ventura Cty. Superior Ct., No. CV 17-8659-MWF (ASx), 2018 28 WL 6016916, at *5 (C.D. Cal. Aug. 16, 2018) (finding “child custody recommending counselor” 1 entitled to quasi-judicial immunity); Karkanen v. Fam. Ct. Servs. of Contra Costa Cty., No. 17- 2 CV-00999-HSG, 2017 WL 2730227, at *3 (N.D. Cal. June 26, 2017) (finding child custody 3 evaluator entitled to absolute immunity); Stone v. Freitas, No. CV 14-1267-LJO, 2014 WL 4 6774192, at *4 (E.D. Cal. Nov. 10, 2014) (“child-custody evaluators” serve in quasi-judicial 5 roles, providing recommendations to the courts regarding child-custody). This immunity applies 6 even if Defendant Miller’s action were made in error, in excess of her authority, or she acted in 7 bad faith, so long as they were within the scope of her jurisdiction. See Stone, 2017 WL 8 2730227, at *5 (concluding that even if child-custody evaluator acted in error or in bad faith, her 9 actions were shielded from liability by quasi-judicial immunity so long as those actions were 10 within the scope of her jurisdiction). 11 D. Claims Under Title 18 of the United States Code 12 Plaintiff alleges violations of Title 18, sections 1621 and 1623. (Compl. at ¶ 62.) “[T]he 13 fact that a federal statute has been violated and some person harmed does not automatically give 14 rise to a private cause of action in favor of that person.” Touche Ross & Co. v. Redington, 442 15 U.S. 560, 568 (1979) (quoting Cannon v. University of Chicago, 441 U.S. 677, 688 (1979)). 16 Rather, the Court is to consider if Congress intended to create the private right of action in the 17 statute, looking first to the language of the statute. Id. “Civil causes of action ... do not generally 18 lie under the criminal statutes contained in Title 18 of the United States Code.” Del Elmer; 19 Zachay v. Metzger, 967 F. Supp. 398, 403 (S.D. Cal. 1997). 20 Here, the sections cited by Plaintiff under Title 18 provide for fines and incarceration for 21 criminal offenses. There is no language in these sections that would imply a cause of action 22 exists to allow Plaintiff to seek a remedy for these criminal statutes in this action. 23 E. California Penal Code Violations 24 Plaintiff cites a variety of California Penal Code sections. Generally, the California Penal 25 Code does not permit a private right of action. See Thomas v. Restaurant, Case No. 1:15-cv- 26 01113-DAD-SKO, 2015 WL 9583029, at *2 (E.D. Cal. Sept. 31, 2015). Plaintiff has not 27 demonstrated that any of the cited Penal Code sections authorize a private cause of action. 28 /// 1 F. State Law Claims 2 To the extent Plaintiff is attempting to assert state claims, the Court declines to screen 3 them in the absence of a cognizable claim for relief under federal law. Under 28 U.S.C. § 4 1367(a), in any civil action in which the district court has original jurisdiction, the “district courts 5 shall have supplemental jurisdiction over all other claims that are so related to claims in the 6 action within such original jurisdiction that they form part of the same case or controversy under 7 Article III of the United States Constitution,” except as provided in subsections (b) and (c). The 8 Supreme Court has stated that “if the federal claims are dismissed before trial, ... the state claims 9 should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). 10 Although the Court may exercise supplemental jurisdiction over state law claims, Plaintiff must 11 first have a cognizable claim for relief under federal law. 28 U.S.C. § 1367. 12 V. Conclusion and Order 13 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8, fails to state 14 a cognizable claim upon which relief may be granted, and seeks monetary damages from a 15 defendant that is immune from such relief. As Plaintiff is proceeding pro se, the Court will grant 16 Plaintiff an opportunity to amend her complaint to cure these deficiencies to the extent she is 17 able to do so in good faith. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 18 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 19 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 20 556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to 21 raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations 22 omitted). Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 23 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 24 “buckshot” complaints). 25 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 26 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 27 complaint must be “complete in itself without reference to the prior or superseded pleading.” 28 Local Rule 220. 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. The Clerk’s Office shall send Plaintiff a complaint form; 3 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 4 first amended complaint curing the deficiencies identified by the Court in this order or file a 5 notice of voluntary dismissal; and 6 3. If Plaintiff fails to file an amended complaint in compliance with this order, the 7 Court will recommend dismissal of this action, with prejudice, for failure to obey a court order 8 and for failure to state a claim upon which relief may be granted. 9 IT IS SO ORDERED. 10

11 Dated: June 16, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12

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