Unpublished Disposition, 865 F.2d 264 (9th Cir. 1988)
Annotate this CaseHarry W. GATTS, Plaintiff-Appellant,v.CONTRA COSTA COUNTY, et al., Defendants-Appellees.
No. 86-1829.
United States Court of Appeals, Ninth Circuit.
Submitted* Nov. 14, 1988.Decided Dec. 12, 1988.
Before GOODWIN, SNEED and HUG, Circuit Judges.
MEMORANDUM**
The district court dismissed Gatts' action under 42 U.S.C. §§ 1983 and 1985 (1982) for failure to state a claim. We affirm.
FACTS AND PROCEEDINGS BELOW
Gatts, appearing pro se, filed an action against the Contra Costa County District Attorney's Office, the Contra Costa Superior Court, the Contra Costa Public Defender's Office, the Contra Costa County Child Protective Services, the Concord Police Department, and the Pittsburg Police Department. He claimed that these entities conspired to deprive him of the "love and affection" of his two sons in violation of Secs. 1983 and 1985. Gatts has two sons by a marriage to Hilda Gatts (Banales). Hilda was awarded custody of the boys. Gatts pleaded guilty to two charges of child molestation.
Gatts' complaint alleges "a number of specific acts allegedly committed in furtherance of this conspiracy, including failing to properly investigate and prosecute Hilda Gatts for child molestation; questioning and arresting plaintiff and his daughter for child molestation; attempting to 'brain wash' plaintiff's two sons; and refusing to obey a court order allowing the plaintiff to visit his two sons." Memorandum and Order at 1.
The district court granted defendants'1 motion to dismiss under Fed. R. Civ. P. 12(b) (6). The court dismissed all of the Sec. 1985 allegations because the plaintiff failed to allege any form of class-based discrimination. Memorandum and Order at 3-4. The district court also ruled that all of the governmental entities were immune from suit under Sec. 1983. Memorandum and Order at 4-9.
JURISDICTION
The district court had jurisdiction under 28 U.S.C. § 1331. This court can review its decision under 28 U.S.C. § 1291.
STANDARD OF REVIEW
This court reviews a dismissal for failure to state a claim de novo. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984).
DISCUSSION
" [A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). A court should be particularly reluctant to grant a motion to dismiss in a civil rights case when the plaintiff appears pro se. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc).
Because Gatts' complaint does not allege any federal involvement, his Sec. 1985 claim must be based on either the second clause of Sec. 1985(2) or the first clause of Sec. 1985(3). This court has held that a complaint under these clauses must contain an allegation of racial animus or class-based discrimination in order to state a cause of action. Bretz, 773 F.2d at 1028-30. Gatts has alleged neither and there is nothing in his complaint that can be construed to satisfy this requirement. The district court correctly dismissed Gatts' Sec. 1985 allegations.
The district court dismissed Gatts' suit on the grounds that all of the entities he sued were immune from liability. We do not need to reach this question. Instead, we find Gatts' complaint defective in another respect.
Gatts alleges that the Contra Costa Superior Court conspired to deprive him of his children, presumably by granting custody to his wife. Suits against states and their agencies are barred by the eleventh amendment. Shaw v. California Dep't of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir. 1986). The superior court is a state agency and therefore cannot be sued. Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987).
The other entities sued by Gatts, the Contra Costa County District Attorney's Office, Public Defender's Office, and Child Protective Services, are county agencies. The Pittsburgh and Concord Police Departments are subdivisions of those respective municipalities.
Municipalities and counties can be sued under Sec. 1983. However, these entities may not be liable under a theory of respondeat superior. A municipality or county cannot be liable for the acts of its individual employees unless the employee is following a government policy or custom. Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681 (9th Cir. 1984). There are no allegations in the plaintiff's complaint that can be construed to satisfy this requirement.
The judgment of the trial court is AFFIRMED.
The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Defendant Hilda Gatts did not join this motion to dismiss. However, the district court ruled that the complaint failed to state a cause of action against her because there were no allegations that she was acting under color of state law. The court also noted that Gatts failed to serve Hilda as required by Fed. R. Civ. P. 4(j). Memorandum and Order at 10-11
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