Wood v. Contra Costa County

Opinion

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 ANDREA WOOD, et al., Case No. 21-cv-00611-MMC

8 Plaintiffs, ORDER GRANTING DEFENDANT CAREY'S MOTION TO DISMISS; 9 v. DISMISSING ALL CLAIMS AGAINST CAREY; DISMISSING TP'S CLAIMS 10 COUNTY OF COSTA COUNTY, et al., AGAINST ALL REMAINING DEFENDANTS; VACATING HEARING Defendants. 11

12 Before the Court is defendant Mary P. Carey's ("Carey") Motion, filed February 19, 13 2021, "to Dismiss Plaintiff's Operative Pleading."1 Plaintiff Andrea Wood ("Wood"), who 14 proceeds pro se, has filed opposition, to which Carey has replied. Having read and 15 considered the papers filed in support of and in opposition to the motion, the Court 16 deems the matter appropriate for determination on the parties’ respective written 17 submissions, VACATES the hearing scheduled for May 21, 2021, and hereby rules as 18 follows. 19 In the operative complaint, titled "Amended First Draft, in Second Statute of 20 Limitations (2019-2021)," which pleading the Court construes as plaintiffs' First Amended 21 Complaint ("FAC"), plaintiffs Wood and "TP" assert claims under 42 U.S.C. § 1983 22 against twelve defendants, including Carey. Plaintiffs' claims arise from their allegations 23 that the County of Contra Costa improperly removed from Wood's custody her three 24 minor children, TP, HP, and KP, and that a state court, during the course of subsequent 25 child dependency proceedings, would not return HP and KP to Wood and, instead, 26

27 1 The Motion includes a request that plaintiff be declared a vexatious litigant, which 1 placed them in foster care.2 With respect to defendant Carey, who represented Wood 2 during a portion of the child dependency proceedings, plaintiffs base their § 1983 claims 3 on the following allegations: (1) Wood gave Carey "evidence by hand and by email," but 4 Carey "blocked this evidence from being admitted" (see FAC ¶ 12; see also FAC ¶ 16.F 5 (alleging Carey "blocked photo evidence that was helpful to Wood's case")); and (2) 6 Carey "requested on [the] record" that the state court "block visitation between Wood and 7 her children" (see FAC ¶ 12). 8 Carey argues the claims asserted against her are subject to dismissal. As set 9 forth below, the Court agrees. 10 First, as Carey points out, and Wood acknowledges in her opposition, TP is a 11 minor. As a minor, TP may not appear in court without counsel, see Johns v. County of 12 San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (holding "guardian or parent cannot bring a 13 lawsuit on behalf of a minor in federal court without retaining a lawyer"), and, as TP does 14 not have counsel, his claims against Carey will be dismissed, without prejudice to TP's 15 asserting those claims, if he wishes to do so, upon retaining counsel or after he reaches 16 the age of majority, see id. at 878 (dismissing without prejudice claims asserted on behalf 17 of minor who lacked counsel). Additionally, as the above-referenced deficiency is 18 applicable to TP's claims against all other defendants, his claims against them likewise 19 are subject to dismissal. See Silverton v. Dep't of Treasury, 644 F.2d 1341, 1345 (9th 20 Cir. 1981) (holding, where motion to dismiss complaint is granted as to moving 21 defendant, court may dismiss complaint as asserted against non-moving defendants “in a 22 position similar to that of moving defendant[ ]”). 23 Second, Wood's claims against Carey, all of which, as noted, are brought under 24 § 1983, are subject to dismissal for failure to state a cognizable claim. Specifically, a 25 claim under § 1983 requires a showing that the defendant "acted under color of state 26 law," and "an attorney, whether retained or appointed, does not act under color of state 27 1 law." See Szijarto v. Legeman, 466 F.2d 864, 864 (9th Cir. 1972) (internal quotation and 2 || citation omitted) (affirming dismissal of § 1983 claim, where plaintiff based claim on 3 || allegation his retained attorney "failed to render him reasonable assistance during a state 4 || criminal trial"); see also Whealton v. Riverside County Public Defenders Office, 2008 WL 5 || 2156725, *1, *3 (C.D. Cal. May 18, 2008) (dismissing § 1983 claim based on allegation 6 || attorney appointed by state court in child dependency proceeding "failed to properly 7 represent [plaintiffs] during the dependency hearing"). 8 Accordingly, the motion to dismiss will be granted. 9 CONCLUSION 10 For the reasons stated, Carey's motion to dismiss is hereby GRANTED, as 11 follows: 12 1. TP's claims against all defendants are hereby DISMISSED without prejudice.

2 13 2. Wood's claims against Carey are hereby DISMISSED for failure to state a

44 || claim. O IT IS SO ORDERED.

17 || Dated: May 17, 2021 . MAXINE M. CHESNEY 18 United States District Judge 19 20 21 22 23 24 25 26 27 28