LAUREL BEELER, Magistrate Judge.
Pro se plaintiff Karena A. Feng has been diagnosed with a mental disorder, and at one point (when she was in a maternity recovery ward), a psychiatrist evaluated her and hospitalized her involuntarily under California and Welfare Institutions Code § 5150. Ms. Feng claims that this placement occurred so that the Department of Family and Child Services ("DFCS") could put her children up for adoption or sex trafficking. Ms. Feng sued defendants the County of Santa Clara, the City and County of San Francisco, psychiatrist Anna Piotrowski, M.D., Santa Clara social workers Mayra Alvarez and Brian Hawkinson, San Francisco social worker Amy Yim, California Superior Court Judge Amber Rosen, and Ms. Feng's court-appointed attorney Arthur Gee-Yeh Tan, alleging that the defendants are collectively engaging in a conspiracy against her and are liable to her for at least $650 million in damages.
Judge Rosen, Dr. Piotrowski, Mr. Tan, Ms. Yim, and the City and County of San Francisco move to dismiss Ms. Feng's complaint. (The Santa Clara defendants — the County, Ms. Alvarez, and Mr. Hawkinson — have not yet appeared in this case or moved to dismiss.
Construing her complaint liberally, Ms. Feng alleges the following.
Ms. Feng gave birth to a baby (her fourth child) in November 2018.
At some point between November 26 and November 28, 2018, a medical provider involuntarily placed Ms. Feng in a psychiatric ward at the Crestview Psychiatric Facility in Santa Clara.
On November 26, Dr. Piotrowski called Mayra Alvarez, a DFCS social worker, to remove Ms. Feng's children LF, KF, MF, and RSF from her home.
On November 28, 2018, Santa Clara DFCS social worker Brian Hawkinson filed an unspecified petition against Ms. Feng.
Ms. Feng does not clearly allege where Mr. Hawkinson filed his petition, but construing her complaint liberally, it appears that Mr. Hawkinson may have filed his petition before California Superior Court Judge Amber Rosen.
The petition and court proceeding appear to have resulted in Santa Clara County's placing Ms. Feng's children LF, KF, MF, and RSF initially in foster homes.
In March 2019, Mr. Hawkinson approved LF, KF, MF, and RSF to stay with the Shiangs at the Shiangs' home in San Francisco.
Ms. Feng planned to move to a "shared" living space in San Francisco.
Ms. Feng alleges that Ms. Yim concocted an "entrapment scheme" against her.
Ms. Feng alleges that Mr. Hawkinson is a DFCS "fixer" and that Ms. Yim is the DFCS "master fixer" conspiring against her.
A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief" to give the defendant "fair notice" of what the claims are and the grounds upon which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not need detailed factual allegations, but "a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a claim for relief above the speculative level[.]" Twombly, 550 U.S. at 555 (internal citations omitted).
To survive a motion to dismiss, a complaint must contain sufficient factual allegations, which when accepted as true, "`state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 557). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of `entitlement to relief.'" Id. (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 557).
"A pro se complaint must be `liberally construed,' since `a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Entler v. Gregoire, 872 F.3d 1031, 1038 (9th Cir. 2017) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
If a court dismisses a complaint, it should give leave to amend unless the "pleading could not possibly be cured by the allegation of other facts." United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1182 (9th Cir. 2016) (citations and internal quotation marks omitted). But "leave to amend may be denied when a plaintiff has demonstrated a `repeated failure to cure deficiencies by amendments previously allowed.'" Id. at 1183 (quoting Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)). "It is not an abuse of discretion to deny leave to amend when any proposed amendment would be futile." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990) (citing Klamath-Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1292-93 (9th Cir. 1983)).
Ms. Feng brings three claims: (1) a claim against the County Santa Clara, the City and County of San Francisco, Mr. Hawkinson, Ms. Alvarez, and Judge Rosen for violation of 42 U.S.C. § 1983, (2) a claim against the County of Santa Clara, the City and County of San Francisco, Dr. Piotrowski, Mr. Hawkinson, Ms. Alvarez, Ms. Yim, Judge Rosen, and Mr. Tan for violation of the Fourteenth Amendment, (3) a claim against the County of Santa Clara, the City and County of San Francisco, Dr. Piotrowski, Mr. Hawkinson, Ms. Alvarez, Ms. Yim, Judge Rosen, and Mr. Tan for violation of the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. § 1961 et seq.
"The Rooker-Feldman doctrine instructs that federal district courts are without jurisdiction to hear direct appeals from the judgments of state courts." Cooper v. Ramos, 704 F.3d 772, 777 (9th Cir. 2012). "The doctrine bars a district court from exercising jurisdiction not only over an action explicitly styled as a direct appeal, but also over the `de facto equivalent' of such an appeal." Id. (citing Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003)). "`It is a forbidden de facto appeal under Rooker-Feldman when the plaintiff in federal district court complains of a legal wrong allegedly committed by the state court, and seeks relief from the judgment of that court.'" Id. at 778 (quoting Noel, 341 F.3d at 1163). "A federal district court dealing with a suit that is, in part, a forbidden de facto appeal from a judicial decision of a state court must refuse to hear the forbidden appeal." Noel, 341 F.3d at 1158. "As part of that refusal, it must also refuse to decide any issue raised in the suit that is `inextricably intertwined' with an issue resolved by the state court in its judicial decision." Id. "[A] federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it." Cooper, 704 F.3d at 779 (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring)).
Ms. Feng's claims against Judge Rosen are, at most, that Judge Rosen applied incorrect evidentiary standards in a state-court proceeding and thereby deprived her of due process.
Ms. Feng argues that the Rooker-Feldman doctrine does not apply because she is seeking money damages against Judge Rosen.
"It is well established that state judges are entitled to absolute immunity for their judicial acts." Swift v. California, 384 F.3d 1184, 1188 (9th Cir. 2004) (citing Pierson v. Ray, 386 U.S. 547, 553-54 (1967)). Absolute judicial immunity extends to suits against a judge with respect to judicial acts even when a plaintiff purports to name the judge as a defendant in her personal or individual (as opposed to official) capacity. Cf. Romano v. Bible, 169 F.3d 1182, 1185-86 (9th Cir. 1999) (holding that quasi-judicial defendants named "in their personal capacities" nonetheless were entitled to absolute judicial immunity because "[t]he Supreme Court has adopted a `functional approach' to determine whether an officer is entitled to absolute immunity. This approach looks to the nature of the function performed . . . .") (emphasis in original). Ms. Feng's claims that Judge Rosen applied incorrect evidentiary standards and deprived her of due process are claims against Judge Rosen for judicial acts and thus are barred by absolute judicial immunity.
Ms. Feng argues that Judge Rosen "had no jurisdiction at all" and thus judicial immunity does not apply.
The court dismisses Ms. Feng's claims against Judge Rosen as barred by the Rooker-Feldman doctrine and judicial immunity. Because these issues cannot be cured through additional pleading, this dismissal is with prejudice. Cf. Cooper, 704 F.3d at 785 (affirming dismissal without leave to amend because amendment would have been futile).
42 U.S.C. § 1983 allows individuals to sue government officials who violate their civil rights while acting "under color of any statute, ordinance, regulation, custom, or usage, of any State." "The `under color of state law' requirement is an essential element of a § 1983 case, and it is the plaintiff's burden to establish this element." Gatpandan v. Wilmington Sav. Fund Soc'y FSB, No. 17-cv-04001-LB, 2017 WL 5751208, at *2 (N.D. Cal. Nov. 28, 2017) (some internal quotation marks omitted) (quoting Duenas v. Freitas, No. C 13-0836 SBA, 2013 WL 3298249, at *5 (N.D. Cal. June 28, 2013)). "`Purely private conduct, no matter how wrongful, is not covered under § 1983.'" Id. (quoting Duenas, 2013 WL 3298249, at *5). Similarly, a claim under the Fourteenth Amendment requires an allegation of "state action." Manda v. Albin, No. 5:19-cv-01947-EJD, 2019 WL 6311380, at *9 (N.D. Cal. Nov. 25, 2019). "Where, as here, deprivations of rights under the Fourteenth Amendment are alleged, these two requirements" — Section 1983's "under color of state law" requirement and the Fourteenth Amendment's "state action" requirement — "converge." Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 924 n.5 (9th Cir. 2011) (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 n.8 (1999)).
Ms. Feng does not allege that Dr. Piotrowski or Mr. Tan are state actors or acted under color of state law. Cf. Mueller v. Auker, 700 F.3d 1180, 1191-92 (9th Cir. 2012) (private medical provider that reported possible child neglect to Child Protective Services under a state reporting statute did not become a state actor by doing so); Miranda v. Clark Cty., 319 F.3d 465, 468 (9th Cir. 2003) (en banc) (court-appointed attorney that is employed and paid by a public agency is not a state actor when he is appointed by the court to represent a client). Ms. Feng's opposition to Dr. Piotrowski's motion to dismiss does not cognizably respond to Dr. Piotrowski's argument that she is not a state actor,
In order for a defendant to be liable for depriving a plaintiff of her constitutional rights, "there must be a showing of personal participation in the alleged rights deprivation[.]" Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (citing cases). Ms. Feng argues that she was deprived of her procedural and substantive due-process rights with respect to the removal of her children from her custody.
In addition to pleading an underlying violation of a constitutional right, to plead a constitutional claim against a government entity like the City and County of San Francisco, Ms. Feng must plead that it maintained a policy or custom that resulted that violation. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). Liability against a government entity starts from the premise that there is no respondeat superior liability under 42 U.S.C. § 1983, i.e., no entity is liable simply because it employs a person who has violated a plaintiff's rights. See, e.g., Monell, 436 U.S. at 691; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). To plead a claim against a government entity, a plaintiff must show that (1) she possessed a constitutional right and was deprived of that right, (2) the government entity had a policy, (3) the policy amounts to deliberate indifference to her constitutional rights, and (4) the policy was the moving force behind the constitutional violation. Plumeau v. Sch. Dist. #40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997).
"To state a civil RICO claim, plaintiffs must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (5) causing injury to plaintiffs' `business or property.'" Ove v. Gwinn, 264 F.3d 817, 825 (9th Cir. 2001) (citing 18 U.S.C. § 1964(c)). "Civil rights violations and injury to reputation do not fall within the statutory definition of `racketeering activity'" and thus "fail[] to state a claim under RICO." Bowen v. Oistead, 125 F.3d 800, 806 (9th Cir. 1997). Additionally, "RICO does not provide a cause of action for all types of injury to property interests, but only for injuries resulting in `concrete financial loss.'" Diaz v. Gates, 420 F.3d 897, 898 (9th Cir. 2005) (en banc) (per curiam) (citing Oscar v. Univ. Students Co-Operative Ass'n, 965 F.2d 783, 785 (9th Cir. 1992) (en banc)). "Without a harm to a specific business or property interest — a categorical inquiry typically determined by reference to state law — there is no injury to business or property within the meaning of RICO." Id. at 900. Ms. Feng has not pleaded injury to her business or property resulting in "concrete financial loss." Cf. Ybarra-Johnson v. Arizona, No. CV-14-00171-PHX-GMS, 2014 WL 5843358, at *1, *5 (D. Ariz. Nov. 12, 2014) (dismissing RICO claim by mother and grandmother regarding termination of mother's parental rights to her children because "Plaintiffs have not alleged a crucial element of a RICO claim, that they suffered concrete financial loss to their `business or property.' Rather, Plaintiffs allege only personal injuries. Any emotional distress or damage to Plaintiffs' family relationships caused by Defendants' actions does not qualify as an injury to business or property under RICO.") (citing Diaz, 420 F.3d at 899-900). The court dismisses Ms. Feng's RICO claims against Dr. Piotrowski, Mr. Tan, Ms. Yim, and the City and County of San Francisco for failure to state a claim.
The court grants the pending motions to dismiss.
The court dismisses Ms. Feng's claims against Judge Rosen with prejudice.
The court dismisses Ms. Feng's claims against Dr. Piotrowski, Mr. Tan, Ms. Yim, and the City and County of San Francisco without prejudice, i.e., the court extends Ms. Feng an opportunity to file an amended complaint. Ms. Feng must file an amended complaint that addresses the deficiencies the court identified in this order within 21 days (i.e., by January 16, 2020). If she does not do so, the court will dismiss her claims against Dr. Piotrowski, Mr. Tan, Ms. Yim, and the City and County with prejudice.
A defendant's specially appearing to oppose entry of default does not waive any defenses, including 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 not properly served with the summons or complaint, despite their specially appearing in the lawsuit to contest service).
Similarly, a defendant's consenting to magistrate-judge jurisdiction does not waive any defenses, 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 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. 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 consents unduly frustrated).
Ms. Feng purported to re-serve Mr. Hawkinson and Ms. Alvarez on December 19, 2019. Proof of Service — ECF No. 40. The Santa Clara defendants have not (yet) appeared in response to this renewed purported service.
In sum, all parties — even those who have not otherwise generally appeared — have consented to 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).
Citations refer to material in the Electronic Case File ("ECF"); pinpoint citations are to the ECF-generated page numbers at the top of documents.
