1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE ALCALA, et al., CASE NO: 2:19-cv-00969-KJM-CKD PS
12 Plaintiffs, ORDER AND 13 v. FINDINGS AND RECOMMENDATIONS 14 THERESA MURPHY, et al., (ECF Nos. 31, 32, 40, 44) 15 Defendants. 16 17 Presently before the court are defendants’ two motions to dismiss.1 (ECF Nos, 31, 32.) 18 Plaintiffs2 have filed oppositions and a request to amend their complaint, and defendants have 19 filed replies. (ECF Nos. 37, 39, 40, 42, 43, 44.) For the reasons set forth below, the court 20 recommends granting defendants’ motions and dismissing plaintiffs’ complaint without leave to 21 amend. 22 BACKGROUND 23 Plaintiffs’ second amended complaint alleges that defendants violated the Fourth and 24 Fourteenth Amendments when they removed plaintiffs’ child from plaintiffs’ custody and failed 25 to provide plaintiffs’ child with adequate services. (ECF No. 12 at 4-6.) Following the removal, 26 1 Defendants Brenda Ceballos and Sutter County filed the first motion to dismiss (ECF No. 31) 27 and defendants Butte County, Theresa Murphy, Theresa Hendrix, and Karen Ely subsequently moved to dismiss. (ECF No. 32.) 28 2 Plaintiffs are Jesse Alcala and Wendy Milano. 1 plaintiffs’ child was allegedly transferred from Butte County to Sutter County. (Id. at 5.) The 2 factual assertions contained in the complaint are that Sutter County did not “provide proper 3 services” (id.); plaintiffs’ “child was detained by Butte County” (id. at 6); “unlawful blood draw 4 and illegal[] entry of premises” (id.); “father Jesse Alcala [was] arrested for false domestic 5 violence and cruelty to a minor charge” (id.); “neighbors lied [and] made false statements” (id.); 6 and that plaintiffs’ child “has suffered emotional [and] physical . . . harm,” (id.) The operative 7 complaint does not make any specific allegation against the individuals named as defendants in 8 this matter, nor are these individual defendants mentioned in the complaint beyond being named 9 the caption. (See ECF No. 12.) 10 Prior to defendants being served in this case the court denied plaintiffs’ request for an 11 injunction which sought to block state-court proceedings that were determining the custody of 12 plaintiffs’ child. (ECF Nos. 20, 22.) Defendants have subsequently entered this matter and filed 13 the motions to dismiss presently before the court. (ECF Nos. 31, 32.) 14 LEGAL STANDARD 15 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by 16 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific 17 claims alleged in the action. “A motion to dismiss for lack of subject matter jurisdiction may 18 either attack the allegations of the complaint or may be made as a ‘speaking motion’ attacking the 19 existence of subject matter jurisdiction in fact.” Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 20 594 F.2d 730, 733 (9th Cir. 1979). 21 When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, 22 no presumption of truthfulness attaches to the plaintiff’s allegations. Thornhill Publ’g Co., 594 23 F.2d at 733. “[T]he district court is not restricted to the face of the pleadings, but may review any 24 evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of 25 jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 26 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff has the burden 27 of proving that jurisdiction does in fact exist. Thornhill Publ’g Co., 594 F.2d at 733. 28 //// 1 DISCUSSION 2 Defendants’ Motions to Dismiss 3 It is well settled that federal courts should abstain from adjudicating domestic relations 4 cases, including those involving the custody of children. Peterson v. Babbitt, 708 F.2d 465, 466 5 (9th Cir.1983) (per curiam). Even if the case raises constitutional issues, abstention is proper if 6 the case, at its core, is a child custody dispute. Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 7 1987). In this circuit, federal courts refuse jurisdiction if the primary matter concerns child 8 custody issues or the status of parent and child or husband and wife. See id.; Csibi v. Fustos, 670 9 F.2d 134, 136-37 (9th Cir. 1982). “The strong state interest in domestic relations matters, [and] 10 the superior competence of state courts in settling family disputes because regulation and 11 supervision of domestic relations within their borders is entrusted to the states . . . makes federal 12 abstention in these cases appropriate.” Peterson, 708 F.2d at 466. “[T]he whole subject of 13 domestic relations and particularly child custody problems is generally considered a state law 14 matter.” Id. 15 As an initial matter, plaintiffs assert that the court has both diversity and subject matter 16 jurisdiction over their claims. (ECF No. 12.) However, plaintiffs’ complaint alleges that 17 defendants and plaintiffs are all citizens of California, therefore defeating diversity. See 28 18 U.S.C. 1332. Accordingly, the question before the court is whether this court has federal- 19 question jurisdiction. 20 Here, plaintiffs are requesting that a federal court rule on the issues of care, custody, and 21 control of plaintiffs’ child—subjects traditionally left to the states. See Peterson, 708 F.2d at 466. 22 Similar to Coats, plaintiffs’ complaint—liberally construed—alleges tort claims against county 23 officials involved in determining the custody of plaintiffs’ child. See Coats, 819 F.2d at 237 To 24 that end, the only substantive factual allegations contained in the complaint appear to be that 25 plaintiffs’ child was detained, transferred, and provided with inadequate care. And here, as in 26 Coats, even if the court does not read the complaint as seeking direct adjudication of plaintiffs’ 27 parental rights, the case nonetheless is “at its core a child custody dispute,” and therefore not 28 properly brought before this court. Id. Additionally, to the extent plaintiffs are asserting 1 constitution deprivations, they can litigate any constitutional issue before the state court. 2 Accordingly, the court finds that abstention is appropriate in this matter. 3 In plaintiffs’ opposition to the present motions to dismiss, they for the first time assert that 4 defendants should also be held liable due to medical malpractice. (See ECF No. 37 at 3.) 5 However, federal courts do not have federal-question jurisdiction over medical malpractice 6 claims, which are state-law claims. See James v. Sunrise Hosp., 86 F.3d 885, 886 (9th Cir.1996) 7 (“Medical Malpractice is a state law tort.”). Additionally, even if plaintiffs asserted that 8 defendants were acting under color of state law—which their complaint fails to do—after filing 9 three complaints plaintiffs have failed to put forth any allegations that rise to the level of medical 10 malpractice, let alone deliberate indifference. See Toguchi v. Chung, 391 F.3d 1051, 1057–58, 11 1060 (9th Cir.2004) (noting that deliberate indifference is a high legal standard; medical 12 malpractice, negligence, a difference of medical opinion, or a difference of opinion with the 13 physician regarding the course of treatment are not sufficient).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE ALCALA, et al., CASE NO: 2:19-cv-00969-KJM-CKD PS
12 Plaintiffs, ORDER AND 13 v. FINDINGS AND RECOMMENDATIONS 14 THERESA MURPHY, et al., (ECF Nos. 31, 32, 40, 44) 15 Defendants. 16 17 Presently before the court are defendants’ two motions to dismiss.1 (ECF Nos, 31, 32.) 18 Plaintiffs2 have filed oppositions and a request to amend their complaint, and defendants have 19 filed replies. (ECF Nos. 37, 39, 40, 42, 43, 44.) For the reasons set forth below, the court 20 recommends granting defendants’ motions and dismissing plaintiffs’ complaint without leave to 21 amend. 22 BACKGROUND 23 Plaintiffs’ second amended complaint alleges that defendants violated the Fourth and 24 Fourteenth Amendments when they removed plaintiffs’ child from plaintiffs’ custody and failed 25 to provide plaintiffs’ child with adequate services. (ECF No. 12 at 4-6.) Following the removal, 26 1 Defendants Brenda Ceballos and Sutter County filed the first motion to dismiss (ECF No. 31) 27 and defendants Butte County, Theresa Murphy, Theresa Hendrix, and Karen Ely subsequently moved to dismiss. (ECF No. 32.) 28 2 Plaintiffs are Jesse Alcala and Wendy Milano. 1 plaintiffs’ child was allegedly transferred from Butte County to Sutter County. (Id. at 5.) The 2 factual assertions contained in the complaint are that Sutter County did not “provide proper 3 services” (id.); plaintiffs’ “child was detained by Butte County” (id. at 6); “unlawful blood draw 4 and illegal[] entry of premises” (id.); “father Jesse Alcala [was] arrested for false domestic 5 violence and cruelty to a minor charge” (id.); “neighbors lied [and] made false statements” (id.); 6 and that plaintiffs’ child “has suffered emotional [and] physical . . . harm,” (id.) The operative 7 complaint does not make any specific allegation against the individuals named as defendants in 8 this matter, nor are these individual defendants mentioned in the complaint beyond being named 9 the caption. (See ECF No. 12.) 10 Prior to defendants being served in this case the court denied plaintiffs’ request for an 11 injunction which sought to block state-court proceedings that were determining the custody of 12 plaintiffs’ child. (ECF Nos. 20, 22.) Defendants have subsequently entered this matter and filed 13 the motions to dismiss presently before the court. (ECF Nos. 31, 32.) 14 LEGAL STANDARD 15 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by 16 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific 17 claims alleged in the action. “A motion to dismiss for lack of subject matter jurisdiction may 18 either attack the allegations of the complaint or may be made as a ‘speaking motion’ attacking the 19 existence of subject matter jurisdiction in fact.” Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 20 594 F.2d 730, 733 (9th Cir. 1979). 21 When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, 22 no presumption of truthfulness attaches to the plaintiff’s allegations. Thornhill Publ’g Co., 594 23 F.2d at 733. “[T]he district court is not restricted to the face of the pleadings, but may review any 24 evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of 25 jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 26 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff has the burden 27 of proving that jurisdiction does in fact exist. Thornhill Publ’g Co., 594 F.2d at 733. 28 //// 1 DISCUSSION 2 Defendants’ Motions to Dismiss 3 It is well settled that federal courts should abstain from adjudicating domestic relations 4 cases, including those involving the custody of children. Peterson v. Babbitt, 708 F.2d 465, 466 5 (9th Cir.1983) (per curiam). Even if the case raises constitutional issues, abstention is proper if 6 the case, at its core, is a child custody dispute. Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 7 1987). In this circuit, federal courts refuse jurisdiction if the primary matter concerns child 8 custody issues or the status of parent and child or husband and wife. See id.; Csibi v. Fustos, 670 9 F.2d 134, 136-37 (9th Cir. 1982). “The strong state interest in domestic relations matters, [and] 10 the superior competence of state courts in settling family disputes because regulation and 11 supervision of domestic relations within their borders is entrusted to the states . . . makes federal 12 abstention in these cases appropriate.” Peterson, 708 F.2d at 466. “[T]he whole subject of 13 domestic relations and particularly child custody problems is generally considered a state law 14 matter.” Id. 15 As an initial matter, plaintiffs assert that the court has both diversity and subject matter 16 jurisdiction over their claims. (ECF No. 12.) However, plaintiffs’ complaint alleges that 17 defendants and plaintiffs are all citizens of California, therefore defeating diversity. See 28 18 U.S.C. 1332. Accordingly, the question before the court is whether this court has federal- 19 question jurisdiction. 20 Here, plaintiffs are requesting that a federal court rule on the issues of care, custody, and 21 control of plaintiffs’ child—subjects traditionally left to the states. See Peterson, 708 F.2d at 466. 22 Similar to Coats, plaintiffs’ complaint—liberally construed—alleges tort claims against county 23 officials involved in determining the custody of plaintiffs’ child. See Coats, 819 F.2d at 237 To 24 that end, the only substantive factual allegations contained in the complaint appear to be that 25 plaintiffs’ child was detained, transferred, and provided with inadequate care. And here, as in 26 Coats, even if the court does not read the complaint as seeking direct adjudication of plaintiffs’ 27 parental rights, the case nonetheless is “at its core a child custody dispute,” and therefore not 28 properly brought before this court. Id. Additionally, to the extent plaintiffs are asserting 1 constitution deprivations, they can litigate any constitutional issue before the state court. 2 Accordingly, the court finds that abstention is appropriate in this matter. 3 In plaintiffs’ opposition to the present motions to dismiss, they for the first time assert that 4 defendants should also be held liable due to medical malpractice. (See ECF No. 37 at 3.) 5 However, federal courts do not have federal-question jurisdiction over medical malpractice 6 claims, which are state-law claims. See James v. Sunrise Hosp., 86 F.3d 885, 886 (9th Cir.1996) 7 (“Medical Malpractice is a state law tort.”). Additionally, even if plaintiffs asserted that 8 defendants were acting under color of state law—which their complaint fails to do—after filing 9 three complaints plaintiffs have failed to put forth any allegations that rise to the level of medical 10 malpractice, let alone deliberate indifference. See Toguchi v. Chung, 391 F.3d 1051, 1057–58, 11 1060 (9th Cir.2004) (noting that deliberate indifference is a high legal standard; medical 12 malpractice, negligence, a difference of medical opinion, or a difference of opinion with the 13 physician regarding the course of treatment are not sufficient). 14 Because plaintiffs’ complaint is at its core a child custody dispute, the undersigned 15 recommends that the action be dismissed. 16 Leave to Amend. 17 If the court finds that a complaint should be dismissed for failure to state a claim, it has 18 discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 19 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the defects 20 in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also Cato 21 v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to 22 amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that 23 the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v. Carlson, 809 24 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear that a 25 complaint cannot be cured by amendment, the court may dismiss without leave to amend. Cato, 26 70 F.3d at 1005-06. 27 As outlined above, the court does not have jurisdiction to hear plaintiffs’ complaint. 28 Additionally, plaintiffs’ claim of medical malpractice, contained in their opposition, does not cure VADS Se VEY AM SUING INI NS INES MMU OI ET OPEN PT Aye Vv VIS
1 | this deficiency. As plaintiffs have already filed three complaints in this matter and have failed to 2 | sufficiently plead the basis of jurisdiction, the undersigned finds that any additional leave to file 3 | an amended complaint would be futile. Accordingly, the undersigned recommends denying 4 | plaintiffs’ request for amendment and dismissing this action without leave to amend. 5 | CONCLUSION 6 For the reasons set forth above, it is HEREBY RECOMMENDED that: 7 1. Defendants’ motions to dismiss be GRANTED (ECF Nos. 31, 32); 8 2. Plaintiffs’ motion to amend their complaint be DENIED (ECF Nos. 40, 44); 9 3. The action be DISMISSED without leave to amend; and 10 4. The Clerk of Court be directed to close this case. 11 In light of these recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 12 || discovery, and motion practice in this action are STAYED pending resolution of the findings and 13 | recommendations. With the exception of objections to the findings and recommendations and 14 | any non-frivolous motions for emergency relief, the court will not entertain or respond to any 15 || motions and other filings until the findings and recommendations are resolved. 16 These findings and recommendations are submitted to the United States District Judge 17 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) 18 | days after being served with these findings and recommendations, any party may file written 19 | objections with the court and serve a copy on all parties. Such a document should be captioned 20 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 21 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 22 | objections. The parties are advised that failure to file objections within the specified time may 23 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 24 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 25 | Dated: April 28, 2020 dp. A. fe 26 CAROLYN K. DELANEY : 7 UNITED STATES MAGISTRATE JUDGE 28 | 16.Alcala.969.F&R