(PS) Conerly et al v. Yap et al, No. 2:2021cv01132 - Document 4 (E.D. Cal. 2021)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 7/26/2021 GRANTING 2 Motion to Proceed IFP, DISMISSING 1 Complaint with leave to amend, and GRANTING Plaintiff 30 days from the date of service of this order to file an amended complaint. It is RECOMMENDING that 3 Ex Parte Application for an order granting sole legal and physical custody of minor daughter be denied. Referred to District Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Huang, H)
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(PS) Conerly et al v. Yap et al Doc. 4 Case 2:21-cv-01132-TLN-CKD Document 4 Filed 07/26/21 Page 1 of 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARINA CONERLEY, et al., 12 Plaintiffs, 13 14 No. 2:21-cv-1132-TLN-CKD PS FINDINGS AND RECOMMENDATIONS v. JULIE G. YAP, ET AL., 15 Defendants. 16 (ECF No. 3) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 17 18 Plaintiff proceeds pro se in this action, which is referred to the undersigned by Local Rule 19 302(c)(21) pursuant to 28 U.S.C. § 636. Plaintiff’s complaint is before the court for screening. In 20 addition, plaintiff has filed an ex parte application for an emergency order granting her sole legal 21 and physical custody of her minor daughter. (ECF No. 3.) Plaintiff requests to proceed in forma pauperis. (ECF No. 2.) Plaintiff’s application makes 22 23 24 25 the showing required by 28 U.S.C. § 1915. The request will be granted. I. SCREENING REQUIREMENT Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis 26 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to state a 27 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is 28 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 1 Dockets.Justia.com Case 2:21-cv-01132-TLN-CKD Document 4 Filed 07/26/21 Page 2 of 7 1 (2000). In performing this screening, the court liberally construes a pro se plaintiff’s pleadings. 2 See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). 3 II. 4 ALLEGATIONS IN THE COMPLAINT Plaintiff’s complaint names the Sacramento County Superior Court of California, Judge 5 Julie Yap, who is a superior court judge, the Forever Friends Early Learning Center, LLC, and 6 two individual non-state actors. Plaintiff alleges Judge Yap presided over her family law case on 7 May 28, 2021 in a manner that was unfair to plaintiff, and favorable to defendant Sherif R. 8 Tarpin, who is apparently the father of plaintiff’s minor daughter. Judge Yap’s written order was 9 biased “in favor of Filipino;” and gave custody of plaintiff’s minor daughter to Tarpin’s girlfriend 10 while Tarpin was engaged in drug use, sale, guns, gangs and women. At some point, plaintiff’s 11 daughter became ill after which Tarpin failed to treat her or take her to the hospital. 12 Plaintiff alleges defendant Krystal Barlatt, who is apparently associated with the Forever 13 Friends Learning Center, LLC, “joined in on June 16, 2021” and stated to plaintiff that she and 14 her school require parents to sign a Covid-19 Release of Liability waiver form. Plaintiff did not 15 sign the form. 16 As a result of defendants’ actions, plaintiff alleges she has suffered physical and mental 17 harm, unspecified property damage, damage to her reputation, and unspecified violent acts to 18 plaintiff and her daughter. Plaintiff seeks a court order to defendants to cease their “wrongful acts 19 upon plaintiff” and an award of $800,000,000.00 in damages. Plaintiff also seeks a court order 20 that would allow plaintiff to subpoena information to prove defendant’s involvement with the 21 wrongful acts and wrongful conduct alleged. 22 23 III. PLEADING STANDARDS A complaint must contain “a short and plain statement of the claim showing that the 24 pleader is entitled to relief....” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 25 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 26 conclusory statements, do not suffice[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 27 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While factual allegations are accepted as 28 true, legal conclusions are not. Iqbal, 556 U.S. at 678. Courts “are not required to indulge 2 Case 2:21-cv-01132-TLN-CKD Document 4 Filed 07/26/21 Page 3 of 7 1 unwarranted inferences[.]” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 2 (internal quotation marks and citation omitted). 3 Pro se litigants are entitled to have their pleadings liberally construed and to have any 4 doubt resolved in their favor, Eldridge, 832 F.2d at 1137, but a plaintiff’s claims must be facially 5 plausible to survive screening. Facial plausibility for a claim requires sufficient factual detail to 6 allow the court to reasonably infer that a named defendant is liable for the misconduct alleged. 7 Iqbal, 556 U.S. at 678. 8 9 10 IV. THE COMPLAINT DOES NOT STATE A CLAIM A. Eleventh Amendment Immunity and Judicial Immunity Plaintiff purports to bring claims for damages against the Sacramento County Superior 11 Court and Judge Yap. Judge Yap is the judge who presided over plaintiff’s family law case. 12 Under the facts alleged, both the superior court and the judge are immune from suit. 13 “The Eleventh Amendment bars suits for money damages in federal court against a state, 14 its agencies, and state officials acting in their official capacities[.]” Aholelei v. Dep’t of Pub. 15 Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Because the superior court is an agency of the state, 16 suits against the court or its employees in their official capacity for monetary damages are barred 17 by the Eleventh Amendment. See Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 18 F.2d 1103, 1110 (9th Cir. 1987); Simmons v. Sacramento County Superior Court, 318 F.3d 1156 19 (9th Cir. 2003). Accordingly, plaintiff cannot proceed on any claims against the Sacramento 20 County Superior Court. 21 In addition, absolute judicial immunity is afforded to judges for acts performed that relate 22 to the judicial process. In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002). This immunity reflects a 23 long-standing principal for the proper administration of justice that a judicial officer, in exercising 24 the authority vested, shall be free to act without apprehension of personal consequences. Olsen v. 25 Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). “Judicial immunity applies ‘however 26 erroneous the act may have been, and however injurious in its consequences it may have proved 27 to the plaintiff.’” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (quoting Cleavinger v. 28 Saxner, 474 U.S. 193 (1985)). 3 Case 2:21-cv-01132-TLN-CKD Document 4 Filed 07/26/21 Page 4 of 7 1 2 Judge Yap is entitled to absolute judicial immunity from damages for findings made in the case. Plaintiff cannot state a claim against Judge Yap on these facts. 3 B. Conspiracy 4 Plaintiff alleges defendants, as state officials, together with Tarpin and Barlatt, who are 5 non-state officials, acted together to deprive plaintiff and her daughter of their constitutional 6 rights. Since both the superior court and the judge are immune from suit, however, plaintiff has 7 not alleged any state actors and fails to state a civil conspiracy claim against only non-state actors. 8 A plaintiff may bring an action under 42 U.S.C. § 1983 to redress violations of her “rights, 9 privileges, or immunities secured by the Constitution and [federal] laws” by a person or entity, 10 including a municipality, acting under the color of state law. 42 U.S.C. § 1983; Monell v. Dep’t 11 of Social Servs., 436 U.S. 658, 690-95 (1978). Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 12 (9th Cir. 2004). To state a claim under 42 U.S.C. § 1983, a plaintiff must show (1) the defendant 13 committed the alleged conduct while acting under color of state law; and (2) the plaintiff was 14 deprived of a constitutional right as a result of the defendant’s conduct. Balistreri v. Pacifica 15 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 16 Thus, by definition, claims under section 1983 must involve a state actor acting under 17 color of state law. While private individuals can also be sued under section 1983 if they conspire 18 with state actors to violate the plaintiff's civil rights, see Melara v. Kennedy, 541 F.2d 802, 804- 19 05 (9th Cir.1976), plaintiff has not named any state actors who are proper defendants and has not 20 alleged sufficient facts to support a conspiracy claim. 21 “To establish liability for a conspiracy in a [42 U.S.C.] § 1983 case, a plaintiff must 22 demonstrate the existence of an agreement or meeting of the minds to violate constitutional 23 rights.” Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (citation omitted). In 24 order to state a claim for relief, a plaintiff must state specific facts to support the existence of the 25 claimed conspiracy.” Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (citation 26 omitted). The allegations must show that an actual deprivation of constitutional rights resulted 27 from the alleged conspiracy. Woodrum v. Woodward County, Okl., 866 F.2d 1121, 1126 (9th Cir. 28 1989). Here, plaintiff’s vague allegations are insufficient to state a cognizable conspiracy claim. 4 Case 2:21-cv-01132-TLN-CKD Document 4 Filed 07/26/21 Page 5 of 7 1 See Karim-Panahi v. L.A. Police Dep’t., 839 F.2d 621, 626 (9th Cir. 1988) (holding a mere 2 allegation of conspiracy, without factual specificity, is insufficient to state a claim). 3 C. Failure to Comply with Rule 8 4 In order to give fair notice of the claims and the grounds on which they rest, a plaintiff 5 must allege with at least some degree of particularity overt acts by specific defendants which 6 support the claims. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Plaintiff’s vague 7 allegations do not satisfy the requisite standard. The complaint does not plead adequate facts to 8 support any cause of action. Although plaintiff states the basis for jurisdiction is 28 U.S.C. § 9 1343, and cites the First, Fourth, Fifth and Fourteenth Amendments, along with the Civil Rights 10 Act of 1964 and 18 U.S.C. § 241, the court is unable to discern what causes of action plaintiff 11 intends to bring aside from a civil conspiracy which cannot proceed on the facts alleged for the 12 reasons already discussed. Thus, the complaint fails to allege a “plain statement of the claim” in a 13 “simple, concise, and direct” manner. Fed. R. Civ. P. 8(a)(2) & (d)(1). 14 D. Ex Parte Application for Emergency Order 15 On July 13, 2021, plaintiff filed an ex parte application for an emergency order granting 16 plaintiff sole legal and physical custody of her minor daughter. This court lacks jurisdiction to 17 grant the requested relief. 18 Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger, 19 437 U.S. 365, 374 (1978). A court’s jurisdiction to resolve a case on its merits requires a showing 20 that the plaintiff has both subject matter and personal jurisdiction. Ruhrgas AG v. Marathon Oil 21 Co., 526 U.S. 574, 577 (1999). “A federal court is presumed to lack jurisdiction in a particular 22 case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the 23 Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). 24 Federal district courts do not have appellate jurisdiction over state courts. See, e.g., 25 Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 26 482–86 (1983); Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003). This principle is 27 known as the Rooker–Feldman doctrine, and it provides that federal courts lack jurisdiction to 28 exercise appellate review over final state court judgments. Id.; see also Exxon Mobil Corp. v. 5 Case 2:21-cv-01132-TLN-CKD Document 4 Filed 07/26/21 Page 6 of 7 1 Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005). In general, the Rooker–Feldman doctrine 2 prevents “a party losing in state court... from seeking what in substance would be appellate 3 review of the state judgment in a United States district court.” Henrichs v. Valley View Dev., 474 4 F.3d 609, 611 (9th Cir. 2009) (internal citation omitted). Stated differently, the doctrine bars a 5 party who loses in state court from filing an action in federal court complaining of injuries caused 6 by state-court judgments and asking the federal court to review and reject those judgments. 7 Additionally, the “domestic relations exception” prevents federal courts from exercising 8 jurisdiction in child custody matters. Ankenbrandt v. Richards, 504 U.S. 689 (1992); see also 9 Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir. 1983) (per curiam). The subject matter of 10 domestic relations and particularly child custody problems is generally considered a state law 11 matter. See Id. Federal abstention is appropriate in such cases based on: (1) the strong state 12 interest in domestic relations matters, (2) the state courts’ superior competence in settling family 13 disputes, and (3) the possibility of incompatible federal and state court decisions since the state 14 exercises ongoing judicial supervision. Peterson, 708 F.2d at 466 (citing Moore v. Sims, 442 U.S. 15 415 (1979)). Abstention is proper even if the case is premised on alleged federal constitutional 16 violations. Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987). “If the constitutional claims in the 17 case have independent merit, the state courts are competent to hear them.” Id. Plaintiff’s claims in the complaint and in the ex parte application arise out of a child 18 19 custody dispute. This court has no authority to overturn the family court’s decisions and award 20 plaintiff custody. Such claims are barred by the Rooker–Feldman doctrine and the domestic 21 relations exception to federal subject matter jurisdiction. 22 23 V. CONCLUSION The complaint must be dismissed. It appears plaintiff may not be able to state a valid 24 claim for relief premised on the events described in the complaint. Out of caution, however, the 25 court will grant leave to file an amended complaint. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 26 (9th Cir. 1995) (“Unless it is absolutely clear that no amendment can cure the defect . . . a pro se 27 litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to 28 dismissal of the action.”). 6 Case 2:21-cv-01132-TLN-CKD Document 4 Filed 07/26/21 Page 7 of 7 1 If plaintiff elects to file an amended complaint, it shall be clearly captioned “First 2 Amended Complaint” and shall cure the deficiencies identified herein. Local Rule 220 requires 3 that an amended complaint be complete in itself without reference to any prior pleading. In any 4 amended complaint, as in an original complaint, each claim and the involvement of each 5 defendant must be sufficiently alleged. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). If 6 plaintiff is unable or unwilling to cure the complaint’s deficiencies, then plaintiff may file a 7 notice of voluntary dismissal. 8 In accordance with the above, IT IS ORDERED: 9 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted; 10 2. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend; and 11 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 12 complaint that complies with the requirements of the Federal Rules of Civil Procedure and the 13 Local Rules of Practice; the amended complaint must bear the docket number assigned this case 14 and must be labeled “First Amended Complaint”; failure to file an amended complaint in 15 accordance with this order will result in a recommendation that this action be dismissed. 16 17 In addition, IT IS RECOMMENDED that plaintiff’s ex parte application for an order granting her sole legal and physical custody of her minor daughter (ECF No. 3) be denied. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, plaintiff may file written objections 21 with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 23 failure to file objections within the specified time may waive the right to appeal the District 24 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 Dated: July 26, 2021 26 27 8.Conerley.21cv1132.screen _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 28 7
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