(PS) Selck v. Department of Social Services

• Court: District Court, E.D. California
• Decided: March 2, 2020
• Docket: 2:19-cv-00935
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MORREY SELCK, No. 2:19-cv-935-JAM-EFB PS 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, MARK 14 WILLIAMS, XAVIER CASTRO, 15 Defendants. 16 17 Several motions are pending in this action, which are addressed herein1: 18 1. Defendant California Department of Social Services’ (“DSS”) motion to dismiss 19 plaintiff’s first amended complaint for lack of subject matter jurisdiction and failure to 20 state a claim pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and Rule 21 12(b)(6), and to strike plaintiff’s second amended complaint pursuant to Rule 12(f) 22 (ECF No. 13); 23 2. Plaintiff’s motions for injunctive relief (ECF Nos. 6, 14, 23); 24 3. Plaintiff’s motions to amend the complaint2;

25 1 This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to 26 Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).

27 2 Since amending his complaint as a matter of course (see Fed. R. Civ. P. 15(a)), plaintiff has filed—without defendants’ consent or leave of court—four additional amended complaints. 28 ECF Nos. 9, 15, 22, 30. The court construes these amended complaints as motions for leave to 1 4. Plaintiff’s motion to compel discovery (ECF No. 16). 2 Also pending is the court’s July 30, 2019 order directing plaintiff to show cause why 3 sanctions should not be imposed for failure to timely respond to DSS’s motion to dismiss (ECF 4 No. 17). 5 For the following reasons, the order to show cause is discharged and no sanctions are 6 imposed. Further, it is recommended that DSS’s motion to dismiss be granted and the remaining 7 motions be denied.3 8 I. Order to Show Cause 9 DSS originally noticed its motion for hearing on July 31, 2019. In violation of Local Rule 10 230(c), plaintiff failed to timely respond to the motion. Accordingly, the hearing on the motion 11 was continued and plaintiff was ordered to show cause why sanctions should not be imposed for 12 his failure to timely respond to the motion. ECF No. 17. Plaintiff was also ordered to file an 13 opposition or statement of non-opposition to the pending motion. 14 In response, plaintiff filed an opposition (ECF No. 18) and a document entitled “Cause of 15 Action” (ECF No. 19), which are collectively construed as plaintiff’s opposition. Plaintiff, 16 however, has made no attempt to show cause why sanctions should not be imposed. 17 Nevertheless, in light of his pro se status, the order to show cause is discharged without the 18 imposition of sanctions. 19 II. DSS’s Motion to Dismiss 20 A. Background 21 Plaintiff’s first amended complaint primarily concerns the medical treatment provided to 22 plaintiff’s mother, which plaintiff perceives to be deficient. ECF No. 7. Plaintiff alleges that in 23 May 2019, his mother was hospitalized after she was assaulted. Id. at 1. He claims, however, 24 amend the complaint. 25

26 3 Because the court determined that oral argument would not be of material assistance to the court in resolving DSS’s motion, it was submitted without appearance and without argument 27 pursuant to Eastern District of California Local Rule 230(g). ECF No. 28. Plaintiff failed to notice his motions for hearing in violation of Local Rules 230(c) and 251(a). Nevertheless, the 28 court finds it appropriate to resolve each motion on the briefs and without oral argument. 1 that the county conservator appointed to his mother told hospital staff that there was no evidence 2 of an assault, and that the mother’s statements to the contrary should not be believed since she 3 was under the influence of psychotropic medications. Id. The conservator also allegedly 4 concealed “abuses and unlawful medication administration by unlicensed staff” and attempted to 5 depict plaintiff “as a criminal and a liar” in an effort to disparage plaintiff’s mother. Id. As far as 6 the court can discern, plaintiff purports to allege state law claims for fraud, defamation, and 7 attempted murder, but the factual basis for each of these claims is less than clear. Id. at 1-2. 8 DSS now moves to dismiss plaintiff’s complaint for lack of subject matter jurisdiction and 9 failure to state a claim. ECF No. 13-1. The court agrees that dismissal is appropriate for lack of 10 subject matter jurisdiction. Accordingly, it declines to address whether plaintiff’s allegations fail 11 to state a claim. 12 B. Rule 12(b)(1) 13 A federal court is a court of limited jurisdiction and may adjudicate only those cases 14 authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 15 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer 16 “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction 17 requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a 18 “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be 19 authorized by a federal statute that both regulates a specific subject matter and confers federal 20 jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity 21 jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the 22 matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World 23 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction 24 of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of 25 subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys 26 Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 27 A motion to dismiss pursuant to Rule 12(b)(1) seeks dismissal for lack of subject matter 28 jurisdiction. See Fed. R. Civ. P. 12(b)(1). On a Rule 12(b)(1) motion to dismiss for lack of 1 subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. See, e.g., 2 Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995); Thornhill Pub. 3 Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Different standards 4 apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. 5 United States, 966 F. Supp. 970, 971-72 (E.D. Cal. 1997). “A Rule 12(b)(1) jurisdictional attack 6 may be facial or factual.” Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 7 A facial attack “asserts that the lack of subject matter jurisdiction is apparent from the face of the 8 complaint.” Id. If the motion presents a facial attack, the court considers the complaint’s 9 allegations to be true, and plaintiff enjoys “safeguards akin to those applied when a Rule 12(b)(6) 10 motion is made.” Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). 11 Conversely, a factual attack, often referred to as a “speaking motion,” challenges the truth 12 of the allegations in the complaint that give rise to federal jurisdiction and the court does not 13 presume those factual allegations to be true. Thornhill, 594 F.2d at 733. Although the court may 14 consider evidence such as declarations or testimony to resolve factual disputes, id.; McCarthy v. 15 United States, 850 F.2d 558, 560 (9th Cir. 1988), genuine disputes over facts material to 16 jurisdiction must be addressed under Rule 56 standards. “[W]hen ruling on a jurisdictional 17 motion involving factual issues which also go to the merits, the trial court should employ the 18 standard applicable to a motion for summary judgment. Under this standard, the moving party 19 should prevail only if the material jurisdictional facts are not in dispute and the moving party is 20 entitled to prevail as a matter of law.” Trentacosta v. Frontier Pacific Aircraft Industries, Inc., 21 813 F.2d 1553, 1558 (9th Cir. 1987) (quotations and citations omitted) (emphasis added). 22 Here, DSS advances a facial attack, arguing that plaintiff’s allegations demonstrate the 23 absence of subject matter jurisdiction. ECF No. 13-1 at 5-6. 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 C. Discussion 2 DSS argues that the court lack subject matter jurisdiction because plaintiff only alleges 3 state law claims and the first amended complaint fails to establish diversity of the parties. ECF 4 No. 13-1 at 5-6.4 It further argues that plaintiff lacks standing to assert his claims against DSS. 5 Liberally construed, the first amended complaint purports to allege state law claims for 6 fraud, defamation, and “attempted murder.” But plaintiff does not demonstrate that the parties’ 7 citizenship is diverse, thereby failing to establish diversity jurisdiction over his claims. See 8 Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987) (plaintiff must 9 specifically allege the diverse citizenship of all parties to invoke diversity jurisdiction). Instead, 10 the first amended complaint states that plaintiff’s address is 1200 North B Street, Sacramento, 11 California. ECF No. 7 at 1. Moreover, his original complaint alleged that he is a citizen of 12 California. ECF No. 1 at 3. DSS, as an agency of the State of California, is also a California 13 citizen for purposes of diversity jurisdiction. See Moor v. Alameda County, 411 U.S. 693, 718 14 (1973) (“[F]or purposes of diversity of citizenship, political subdivisions are citizens of their 15 respective States.”). Accordingly, diversity of citizenship is absent. 16 The amended complaint also does not allege a federal claim that could support 17 supplemental jurisdiction over plaintiff’s state law claims. The only federal statute referenced in 18 the amended complaint is the Health Insurance Portability and Accountability Act of 1996 19 (“HIPPA”), which does not provide a private right of action. United States v. Streich, 560 F.3d 20 926, 935 (9th Cir. 2009). 21 Moreover, the amended complaint fails to demonstrate plaintiff has standing to assert his 22 claims against DSS. Standing is an element of subject matter jurisdiction. Warren v. Fox Family 23 Worldwide, Inc., 328 F.3d 1136, 1140 (9th Cir. 2003). The requirement that a party have 24 “standing” to bring an action is part of the case-or-controversy provision of Article III of the 25 ///// 26 4 DSS also argues that dismissal is appropriate because plaintiff’s claims are barred under 27 the Eleventh Amendment and the first amended complaint fails to state sufficient factual allegations to state a claim. ECF No. 13-1 at 6-10. Because dismissal is appropriate for lack of 28 subject matter jurisdiction, the court declines to reach the merits of these arguments. 1 Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To have standing three 2 elements must be satisfied: 3 First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized 4 and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct 5 complained of-the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] 6 independent action of some third party not before the court. Third it must be likely as opposed to merely speculative that the injury will 7 be redressed by a favorable decision. 8 Id. at 560-61 (internal citations and quotation marks omitted). 9 The first amended complaint is devoid of any allegations suggesting plaintiff sustained an 10 injury that is fairly traceable to DSS. In fact, the first amended complaint contains no allegations 11 concerning DSS. Even if the court were to assume that DSS is responsible for the acts of the 12 conservator—an assumption that is not supported by plaintiff’s allegation—any injury caused by 13 the conservator would have been sustained by plaintiff’s mother, not plaintiff.5 14 Accordingly, the first amended complaint must be dismissed for lack of subject matter 15 jurisdiction. The dismissal should be without leave to amend. See Noll v. Carlson, 809 F.2d 16 1446, 1448 (9th Cir. 1987) (while the court ordinarily would permit a pro se plaintiff to amend, 17 leave to amend should not be granted where it appears amendment would be futile); California 18 Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988) (“Valid 19 reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility.”). As 20 discussed further below, plaintiff has filed several amended complaints that also demonstrate that 21 this court lacks jurisdiction over plaintiff’s claims. 22 ///// 23 ///// 24 ///// 25

26 5 To the extent plaintiff seeks to assert claims on behalf of his mother, dismissal is still appropriate. Plaintiff is not an attorney and therefore is not permitted to represent the interest of 27 his mother. See Johns v. County of San Diego, 114 F.3d 874, 876 877 (9th Cir. 1997) (a non- lawyer has no authority to appear as an attorney for another, and general power of attorney does 28 not give non-lawyer right to assert the personal constitutional claims of another). 1 III. Plaintiff’s Motions to Amend the Complaint 2 After plaintiff filed his first amended his complaint, he proceeded to file four additional 3 complaints. ECF Nos. 9, 15, 22, 30.6 4 Because plaintiff had already amended his complaint as a matter of course, he may only 5 amend his complaint with defendants’ consent or leave of court. See Fed. R. Civ. P. 15(a). Rule 6 15(a)(2) provides that “[t]he court should freely give leave when justice so requires,” and the 7 Ninth Circuit has directed courts to apply this policy with “extreme liberality.” DCD Programs, 8 Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). When determining whether to grant leave to 9 amend under Rule 15(a)(2), a court should consider the following factors: (1) undue delay, (2) 10 bad faith, (3) futility of amendment, and (4) prejudice to the opposing party. Foman v. Davis, 11 371 U.S. 178, 182 (1962). Granting or denying leave to amend rests in the sound discretion of 12 the trial court and will be reversed only for abuse of discretion. Swanson v. U.S. Forest Serv., 87 13 F.3d 339, 343 (9th Cir. 1996). 14 The allegations in the proposed second, third, fourth, and fifth amended complaints are 15 limited to the medical treatment provided to plaintiff’s mother. See ECF Nos. 9, 15, 22, 30. Like 16 the first amended complaint, these complaints fail to allege that plaintiff sustained an injury 17 traceable to the actions of DSS or any other individual or entity. Consequently, these complaints 18 also fail to establish that plaintiff has standing. Accordingly, granting plaintiff leave to amend 19 would be futile, and his motion to amend should be denied. See Noll, 809 F.2d at 1448. 20 IV. Remaining Defendants 21 The remaining defendants, Mark Williams and Xavier Castro, have not appeared in this 22 action, much less moved for dismissal. Notwithstanding this fact, sua sponte dismissal of the 23 claims against these defendants for lack of subject matter jurisdiction is also appropriate. None of 24 the complaints filed in this action contain allegations demonstrating plaintiff sustained an injury 25 that can be traceable to these two defendants. Instead, the limited allegations against these 26 individuals concern the medical treatment provided to plaintiff’s mother. Accordingly, plaintiff 27 6 DSS moves to strike and/or dismiss plaintiff’s second amended complaint. ECF No. 26. 28 Because there is no basis for allowing plaintiff to amend his complaint, DSS’s motion is moot. 1 has not established standing to assert claims against Williams and Castro and they should be 2 dismissed. See Scholastic Entm’t, Inc. v. Fox Entm’t Grp., Inc., 336 F.3d 982, 985 (9th Cir. 3 2003) (court may dismiss claims sua sponte for lack of jurisdiction).7 4 V. Conclusion 5 Accordingly, it is hereby ORDERED that: 6 1. The July 30, 2019 order to show cause is discharged and no sanctions are imposed; and 7 2. Plaintiff’s motion to compel discovery (ECF No. 16) is denied as moot. 8 Further, it is hereby RECOMMENDED that: 9 1. Defendant DSS’s motion to dismiss plaintiff’s complaint (ECF No. 13) be granted and 10 all claims against defendant DSS be dismissed for lack of subject matter jurisdiction; 11 2. Plaintiff’s motions to amend his complaint (ECF Nos. 9, 15, 22, 30) be denied; 12 3. Plaintiff’s motions for injunctive relief (ECF Nos. 6, 14, 23) be denied as moot; 13 4. Plaintiff’s claims against defendant Mark Williams and Xavier Castro be sua sponte 14 dismissed for lack of subject matter jurisdiction; and 15 5. The Clerk be directed to close the case. 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)(l). Within fourteen days 18 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.” Failure to file objections 21 ///// 22 ///// 23 ///// 24 ///// 25

26 7 As noted above, plaintiff has also moved for injunctive relief (ECF Nos. 6, 14, and 23) and to compel discovery (ECF No. 16). Because this action must be dismissed for lack of subject 27 matter jurisdiction, these motions must be denied as moot. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (A party must demonstrate a likelihood of success on the 28 merits in support of the grant of preliminary injunctive relief). 1 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 | DATED: March 2, 2020. 4 tid, PDEA 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28