-MDD Anderson v. County of San Diego et al, No. 3:2010cv00705 - Document 55 (S.D. Cal. 2011)

Court Description: ORDER granting in part and denying in part County Defendants' 29 Motion to Dismiss; granting Judith Klein's 40 Motion to Dismiss; granting Lemon Grove's 25 Motion to Dismiss. The Court Dismisses Without Prejudice all Defendants except Defendants Cornelius and Williamson. If Plaintiff wishes to file an amended complaint, he must do so within 21 days of the filing of this order. Signed by Judge Irma E. Gonzalez on 3/29/11. (All non-registered users served via U.S. Mail Service)(rlu) Corrected party name on 3/29/2011 (rlu).

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-MDD Anderson v. County of San Diego et al Doc. 55 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PERCY ANDERSON, SR., 12 CASE NO. 10-CV-705 - IEG (MDD) Plaintiff, 13 14 ORDER: (1) GRANTING IN PART AND DENYING IN PART COUNTY DEFENDANTS’ MOTION TO DISMISS vs. 15 (2) GRANTING DEFENDANT CITY OF LEMON GROVE’S MOTION TO DISMISS 16 17 25 COUNTY OF SAN DIEGO; HEALTH AND HUMAN SERVICE AGENCY; SHELLY PAULE; TONYA SLOAN; JANE SIMONE; CONNIE CAIN; RYAN MALLEY; DEBBIE REID; SYLVIA WILLIAMS; CANDACE COHEN; PAULA ROACH; KATHERINE R. BIRD; CANDI MAYES; JUDITH KLIEN; AND PERSONS AND ENTITIES UNKNOWN, CITY OF LEMON GROVE; LEMON GROVE SHERIFF’S DEPARTMENT; OFFICER SPILLMAN; OFFICER LADIEU, OFFICER ALLISTER; DETECTIVE CORNELIUS; OFFICER WEBER; OFFICER RINDER; AND PERSONS AND ENTITIES UNKNOWN, JUDY MATTHEWS, PHD., PERSONS AND ENTITIES UNKNOWN, 26 Defendants. 18 19 20 21 22 23 24 (3) GRANTING DEFENDANT JUDITH KLEIN’S MOTION TO DISMISS [Doc. Nos. 25, 29, 40] 27 28 After the San Diego Superior Court terminated Plaintiff’s parental rights, he filed suit in this Court seeking damages for constitutional violations he allegedly sustained when County Dockets.Justia.com 1 officials removed his six children from his custody. Presently before the Court are motions to 2 dismiss brought by (1) the County Defendants,1 (2) the City of Lemon Grove, and (3) Judith Klein. 3 For the reasons stated herein, the Court GRANTS IN PART and DENIES IN PART the motion 4 to dismiss brought by the County Defendants and GRANTS the motions to dismiss brought by the 5 City of Lemon Grove and Judith Klein. 6 7 BACKGROUND This action arises from injuries Plaintiff allegedly sustained when the San Diego County 8 Health and Human Services Agency (the “Agency”) removed his six children from his custody and 9 continued to detain them in the course of juvenile dependency proceedings. The Court summarizes 10 11 the allegations in the amended complaint as follows. On March 29, 2008, Plaintiff’s 16 year old sister-in-law, JR, attacked him. During the 12 incident, Plaintiff’s wife called the Sheriff’s Department, and deputies arrived at Plaintiff’s 13 residence to investigate. 14 Because there were children living in the home, the incident prompted an investigation by 15 the County of San Diego Health and Human Services Agency (the “Agency”). On April 2, 2008, 16 social worker Defendant Silvia Williamson called Plaintiff to inform him that she had contacted 17 Plaintiff’s daughter, P, at school about the incident involving JR. Plaintiff asked Williamson not to 18 speak with his children without Plaintiff present. The next day, Williamson called Plaintiff to 19 schedule a time to meet. Plaintiff reiterated his desire that Williamson not speak with his children 20 without Plaintiff present, and Williamson stated that she was no longer investigating the children 21 because they were fine and showed no signs of physical abuse. 22 On April 4, 2008, Plaintiff observed Williamson at the children’s school. That same day 23 Plaintiff received a call from a Sheriff’s deputy, Defendant Cornelius, inquiring whether he would 24 be home. About 30 minutes after the call, Williamson and Cornelius, among others, arrived at the 25 house and took Plaintiff’s children to a child welfare office. Plaintiff demanded to see a warrant 26 27 28 1 The County Defendants include: County of San Diego (erroneously sued as “Lemon Grove Sheriff’s Department” and “Health and Human Services Agency”), Cathy Allister, Connie Cain, Candace Cohen, Alton Cornelius, David Ladieu, Candi Mayes, Shelly Paule, Cliff Rinder, Paula Roach, Tanya Sloan, Jane Simone, Daryl Spillman, Jeffrey Weber, and Silvia Williamson. 2 1 and a court order, but Williamson refused, saying that “another social worker will be assigned to 2 the case.” That night, Williamson called Plaintiff at 11:00 p.m. and apologized, stating that the 3 removal was only temporary and part of the Agency’s procedure when there is domestic violence 4 in the home. 5 On April 9, 2008, Plaintiff attended a hearing in juvenile dependency court. There, he met 6 social worker Defendant Tanya Sloan. Plaintiff was represented at the hearing by attorney Michael 7 Powers. 8 The next day, April 10, 2008, Plaintiff learned more about the accusations against him. JR 9 had accused Plaintiff of sexual abuse. For a second time, Plaintiff tried to obtain an incident report 10 and was unsuccessful. The same day in juvenile court, Judge Campos ordered that Plaintiff’s 11 children be placed with family members or a foster home of the parents’ choosing. 12 Over the next few months in the family court proceedings, social worker Defendants Silvia 13 Williamson and Tanya Sloan submitted reports containing disturbing allegations about Plaintiff. 14 These included allegations of physical, emotional, and sexual abuse. Plaintiff maintains that 15 Williamson and Sloan fabricated most, if not all, of the allegations. 16 Plaintiff filed a complaint in this Court on April 2, 2010, and an amended complaint on 17 April 5, 2010. (Doc. Nos. 1, 2.) The County Defendants, the City of Lemon Grove, and Judith 18 Klein filed motions to dismiss. (Doc. Nos. 25, 29, 40.) Plainitff filed an opposition. (Doc. No. 19 44.) Defendants did not file replies. After taking the matter under submission, the Court 20 instructed the County Defendants to obtain records from the juvenile court proceedings and file 21 them under seal. (Doc. No. 42.) The Court received those records on March 10, 2011.2 22 23 In his amended complaint, Plaintiff asserts ten federal civil rights claims: violation of Fourth Amendment for seizing children (4th and 5th causes of action); violation of Fourth 24 2 25 26 27 28 The Court takes judicial notice of all juvenile court records submitted under seal. Rule 201 of the Federal Rules of Evidence allows the Court to take judicial notice of matters that are “capable of accurate and ready determination by resort to sources whose accuracy can not reasonably be questioned.” Materials from a proceeding in another tribunal are appropriate for judicial notice. Biggs v. Terhune, 334 F.3d 910, 916 n.3 (9th Cir. 2003), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). The Court also takes judicial notice of the California Supreme Court’s October 2009 denial of Plaintiff’s petition for review. See Cal. App. Courts, available at: http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=41&doc_id=1381013&doc_no =D054070 (last visited March 17, 2011). 3 1 Amendment for entering home to seize children (6th and 7th causes of action); violation of 2 Fourteenth Amendment due process and interference with privacy and family association for 3 removing children without a warrant (8th and 9th causes of action); violation of 42 U.S.C. § 1985 4 for conspiracy to unlawfully seize Plaintiff’s children without a warrant (10th and 11th causes of 5 action); and municipal liability (12th and 13th causes of action). Plaintiff also asserts a number of 6 state law claims. 7 8 LEGAL STANDARD A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests 9 the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. 10 Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the 11 complaint as true, and must construe them and draw all reasonable inferences from them in favor 12 of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). 13 To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, 14 rather, it must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 15 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the plaintiff 16 pleads factual content that allows the court to draw the reasonable inference that the defendant is 17 liable for the misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009) 18 (citing Twombly, 550 U.S. at 556). 19 However, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 20 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 21 action will not do.” Twombly, 550 U.S. at 555 (citation omitted). A court need not accept “legal 22 conclusions” as true. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). In spite of the deference the 23 court is bound to pay to the plaintiff’s allegations, it is not proper for the court to assume that “the 24 [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the . . . 25 laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 26 Council of Carpenters, 459 U.S. 519, 526 (1983). 27 In addition, factual allegations asserted by pro se plaintiffs, “however inartfully pleaded,” 28 are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 4 1 404 U.S. 519-20 (1972). Thus, where a plaintiff appears in propria persona in a civil rights case, 2 the Court must construe the pleadings liberally and afford plaintiff any benefit of the doubt. See 3 Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir.1988). 4 Nevertheless, and in spite of the deference the court is bound to pay to any factual 5 allegations made, it is not proper for the court to assume that “the [plaintiff] can prove facts which 6 [he or she] has not alleged.” Associated General Contractors of California, Inc. v. California State 7 Council of Carpenters, 459 U.S. 519, 526 (1983). Nor must the court “accept as true allegations 8 that contradict matters properly subject to judicial notice or by exhibit” or those which are “merely 9 conclusory,” require “unwarranted deductions” or “unreasonable inferences.” Sprewell v. Golden 10 State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), amended on other grounds, 275 11 F.3d 1187 (9th Cir.2001); see also Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (court 12 need not accept as true unreasonable inferences or conclusions of law cast in the form of factual 13 allegations). 14 15 DISCUSSION I. County Defendants’ Motion to Dismiss Affirmative Defenses3 16 A 17 In their motion to dismiss, the County Defendants argue that allowing Plaintiff to proceed 18 on his claims would require the relitigation of issues that were tried and decided in the state court 19 dependency proceedings. See County Defs.’ Mot. at 7-8. Accordingly, the County Defendants 20 maintain that Plaintiff’s claims are subject to dismissal based on the Rooker-Feldman doctrine, 21 claim preclusion, and issue preclusion. Id. 22 23 1. Rooker-Feldman Doctrine Under the Rooker-Feldman doctrine, a federal district court does not have jurisdiction to 24 hear a direct appeal from a final state court judgment. See Noel v. Hall, 341 F.3d 1148, 1154 (9th 25 Cir. 2003). The Rooker-Feldman doctrine also applies to de facto appeals, as well as any issue that 26 3 27 28 In addition to the affirmative defenses that follow, County Defendants maintain they are immune from suit. See County Defs.’ Mot. at 10-11. However, because they have not specified which Defendants are immune or articulated the scope of such immunity and how it relates to Plaintiff’s causes of action or the underlying conduct relating thereto, County Defendants have failed to establish an immunity defense at this time. 5 1 is “inextricably intertwined” with the state court judgment from which the forbidden de facto 2 appeal is brought. Id. at 1158. The Court agrees with the County Defendants that Plaintiff’s 3 claims arise from the same of set of events underlying the state court dependency proceedings. 4 However, because Plaintiff does not seek relief from that judgment nor does he allege injuries 5 arising directly therefrom, the Court concludes that this case falls outside the narrow range of cases 6 the Ninth Circuit has deemed appropriate for application of the Rooker-Feldman doctrine. See 7 Noel, 341 F.3d at 1163. To the extent Plaintiff asserts a claim that “denies a legal conclusion that 8 the state court has reached,” principles of preclusion determine whether the County Defendants 9 prevail based upon the state court judgment. Id. at 1164 (quoting GASH Assocs. v. Village of 10 11 12 Rosemont, Ill., 995 F.2d 726, 728-29 (7th Cir. 1993) (Easterbrook, J.)). 2. Claim Preclusion Claim preclusion and issue preclusion are governed by state law. 28 U.S.C. § 1738; 13 Marrese v. Am. Academy of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985); Ayers v. City of 14 Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990). Claim preclusion bars a second lawsuit between 15 the same parties on the same cause of action. People v. Barragan, 83 P.3d 480, 492 (Cal. 2004). In 16 their motion to dismiss, County Defendants do not identify which of the present Defendants were 17 also parties to the first action in Superior Court. See Mycogen Corp. v. Monsanto Co., 51 P.3d 297 18 (Cal. 2002) (explaining claim preclusion applies to actions “between the same parties”). Nor do 19 the County Defendants identify which, if any, of Plaintiff’s claims could have been asserted in the 20 prior action in juvenile court. See Hulsey v. Koehler, 218 Cal. App.3d 1150, 1157 (Cal. Ct. App. 21 1990) (explaining that claim preclusion applies to “every matter which was urged, and every matter 22 which might have been urged”). Accordingly, the Court concludes that the County Defendants 23 have not established a claim preclusion defense. 24 25 3. Issue Preclusion Issue preclusion, or collateral estoppel, precludes the relitigation of issues that were 26 actually tried and litigated in prior proceedings. Lucido v. Superior Court, 795 P.2d 1223, 1225 27 (Cal. 1990). The doctrine applies if threshold requirements are met: (1) the issue to be precluded 28 must be identical to that decided in the prior proceeding, (2) the issue must have been actually 6 1 litigated at that time, (3) the issue must have been necessarily decided, (4) the decision in the prior 2 proceeding must be final and on the merits, and (5) the party against whom preclusion is sought 3 must be in privity with the party to the former proceeding.” People v. Garcia, 141 P.2d 197, 201 4 (Cal. 2006). 5 6 a. Initial Removal of Plaintiff’s Children Plaintiff alleges that on April 4, 2008, Defendants Cornelius and Williamson, along with 7 other unidentified individuals, entered Plaintiff’s home and removed the children from his custody 8 without consent and without a warrant. The County Defendants submitted under seal juvenile 9 records indicating that, at the April 9-10, 2008 detention hearing, the Agency presented the 10 juvenile court with evidence supporting the lawfulness of the initial removal. However, the 11 records do not establish that the lawfulness of the initial removal was “actually litigated.” Nor was 12 that issue essential to the court’s ruling that continued detention of the children was necessary. See 13 Cal. Welf. & Inst. Code §§ 315, 319. Therefore, the issue was not “necessarily decided.” See 14 Ortega v. Clark, 2011 WL 836436, at *10 (E.D. Cal. Mar. 3, 2011) (“The determination of whether 15 an issue was necessarily decided turns on whether the issue of fact or law was actually litigated and 16 determined by a valid and final judgment and is essential to that judgment.”) (emphasis added). 17 Accordingly, the County Defendants have not established an issue preclusion defense as to the 18 initial removal of the children. 19 20 b. Continued Detention of Plaintiff’s Children Plaintiff also disputes the lawfulness of the continued detention of his children. However, 21 the juvenile records establish the juvenile court and the California Court of Appeal conclusively 22 determined the Agency was justified in its continued detention of the children. Following the 23 April 9-10, 2008 detention hearing, and following a contested adjudication that concluded on 24 October 30, 2008, the juvenile court concluded that continued detention of the children was 25 necessary, and that there was no reasonable means to protect the children’s health without 26 removing them from Plaintiff’s custody. The court found the social workers and the children to be 27 credible, and the court did not find Plaintiff to be credible. On appeal of the juvenile court’s 28 findings and orders, Plaintiff argued that the juvenile court erred when it removed the children 7 1 from his custody. The California Court of Appeal disagreed, concluding that Plaintiff’s argument 2 was “meritless” and contradicted by “overwhelming evidence.” The Supreme Court of California 3 denied Plaintiff’s petition for review in October 2009. Because the state court proceedings 4 conclusively decided the lawfulness of the continued detention of Plaintiff’s children, Plaintiff is 5 precluded from relitigating those issues in this Court. The Court DISMISSES WITH 6 PREJUDICE Plaintiff’s claims to the extent he disputes the lawfulness of the continued detention 7 of his children. 8 B. 9 Section 1983 creates a cause of action against any person who, acting under color of state 10 law, deprives a person of his or her constitutional rights. See 42 U.S.C. § 1983. Plaintiff alleges 11 that on April 4, 2008, Defendants Cornelius and Williamson, along with other unidentified 12 individuals, removed his children from his custody without his consent and without a warrant. 13 14 Section 1983 Claims 1. Fourth Amendment Claims4 The seizure of Plaintiff’s children does not implicate Plaintiff’s Fourth Amendment rights. 15 See P.C. Connecticut Dept. of Children and Families, 662 F. Supp.2d 218, 232 (D. Conn. 2009) 16 (holding that seizure of children did not implicate the Fourth Amendment rights of the children’s 17 parents) (citing cases). Meanwhile, Plaintiff cannot bring claims on behalf of his children while 18 acting in pro per. See Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (holding 19 that a guardian or parent cannot bring a lawsuit on behalf of a minor child without retaining a 20 lawyer). Even if Plaintiff were represented by counsel, he would lack standing to pursue Fourth 21 Amendment claims on behalf of his children. Compare Am. Compl. ¶ 18 (alleging County 22 Defendants seized children, not Plaintiff), with Osborne v. County of Riverside, 385 F. Supp.2d 23 1048, 1052 (C.D. Cal. 2005) (“a person does not have standing to vicariously assert the Fourth 24 Amendment rights of another person.”) (citing Moreland v. Las Vegas Metro. Police Dept., 159 25 F.3d 365, 369 (9th Cir. 1998). Accordingly, the Court DISMISSES WITH PREJUDICE 26 Plaintiff’s Fourth Amendment claims. 27 28 4 Plaintiff uses the term “unreasonable search and seizure,” but aside from scattered conclusory references, Plaintiff does not allege the officers or social workers searched his home. 8 1 2. 2 Fourteenth Amendment Claims The Fourteenth Amendment protects the right to familial association and guarantees that 3 parents cannot be separated from their children without due process of law, except in emergencies. 4 Mabe v. San Bernardino County Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001). 5 Government officials may not remove children from their parents’ custody unless they have 6 “reasonable cause to believe that the child is likely to experience serious bodily harm in the time 7 that would be required to obtain a warrant.” Rogers v. County of San Joaquin, 487 F.3d 1288, 8 1294 (9th Cir. 2007); see also Cal. Welf. & Inst. Code § 305(a) (requiring that a peace officer have 9 “reasonable cause” for believing a minor is in imminent danger of abuse to take the minor into 10 temporary custody without a warrant). 11 Plaintiff has alleged facts giving rise to a claim that Defendants Cornelius and Williamson 12 violated his Fourteenth Amendment rights when they removed the children from his custody 13 without a warrant. The Court DENIES the County Defendants’ motion to dismiss Plaintiff’s 14 Fourteenth Amendment claims as they relate to Defendants Cornelius and Williamson. However, 15 because Plaintiff’s amended complaint does not contain allegations against any other individuals, 16 the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s Fourteenth Amendment claims 17 against all other individual County Defendants. 18 C. 19 Plaintiff has also asserted two causes of action under 42 U.S.C. § 1985. Section 1985 Section 1985 Claims 20 “proscribes conspiracies to interfere with civil rights.” Sanchez v. City of Santa Ana, 936 F.2d 21 1027, 1039 (9th Cir.1990). Liability under Section 1985 is premised on a finding of some racial or 22 other class-based discriminatory animus behind defendants’ actions. See Griffen v. Breckenridge, 23 403 U.S. 88, 102 (1971) (“The language requiring intent to deprive of equal protection . . . means 24 that there must be some racial, or perhaps otherwise class-based invidiously discriminatory animus 25 behind the conspirators’ action.”). Plaintiff must allege specific “facts to support the allegation 26 that defendants conspired together” and “[a] mere allegation of conspiracy without factual 27 specificity is insufficient.” Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 28 1988). 9 1 Plaintiff alleges a conspiracy “motivated by invidious discrimination against Plaintiff on 2 the basis of their perceived sexual orientation, as evidenced by comments in reports about incest, 3 rape, [and] swinger relationships.” Am. Compl. ¶ 159. However, aside from conclusory 4 allegations that Defendants violated his rights under § 1985, Plaintiff’s amended complaint does 5 not contain any facts supporting an allegation of conspiracy based upon animus. See Am. Compl. 6 ¶¶ 156-70. The Court therefore DISMISSES WITHOUT PREJUDICE Plaintiff’s § 1985 7 claims. 8 D. 9 A local government may be held liable under Section 1983 only if the plaintiff can 10 demonstrate that the government’s official policy or custom was the “moving force” responsible 11 for infliction of her injuries. Monell v. Department of Social Services of City of New York, 436 12 U.S. 658, 694 (1978). In this case, Plaintiff’s allegations pertain exclusively to the initial and 13 continued removal of his children by County officials. See generally Am. Compl. “A plaintiff 14 cannot demonstrate the existence of a municipal policy or custom based solely on a single 15 occurrence of unconstitutional action by a non-policymaking employee.” McDade v. West, 223 16 F.3d 1135, 1141 (9th Cir.2000). The Court is not bound to accept Plaintiff’s unsupported legal 17 conclusions as true. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Accordingly, the Court 18 DISMISSES WITHOUT PREJUDICE Plaintiff’s Monell claims. Monell Claims 19 E. 20 Plaintiff has asserted a number of state law claims. Under the California Tort Claims Act State Law Claims 21 (CTCA), a plaintiff may not maintain an action for damages against a public entity or a public 22 employee unless he timely files a notice of tort claim. Cal. Gov’t Code §§ 905, 911.2, 945.4 & 23 950.2; Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir.1995) (“The 24 California Tort Claims Act requires, as a condition precedent to suit against a public entity, the 25 timely presentation of a written claim and the rejection of the claim in whole or in part.”). A 26 plaintiff’s failure to allege compliance with the presentation requirement of the CTCA results in 27 dismissal of the state law claim. Because Plaintiff has not alleged that he complied with the CTCA 28 prior to initiating this action, see generally Am. Compl., the Court DISMISSES WITHOUT 10 1 PREJUDICE Plaintiff’s state law claims. 2 II. 3 Defendant Judith Klein’s Motion to Dismiss Defendant Klein filed a motion to dismiss, and she also filed a Notice of Joinder to the 4 County Defendants’ motion to dismiss. (Doc. No. 38.) Because Klein is referenced only in 5 Plaintiff’s nineteenth cause of action for injunctive relief, and because the Court has already 6 dismissed that cause of action, the Court need not address Klein’s separate motion to dismiss. The 7 Court DISMISSES WITHOUT PREJUDICE Judith Klein from this action. 8 III. 9 Defendant City of Lemon Grove’s Motion to Dismiss The City of Lemon Grove (“the City”) acknowledges Plaintiff’s allegations regarding the 10 “Lemon Grove Sheriff’s Department” and asserts that, while there is a Sheriff’s Department 11 substation in Lemon Grove, the Sheriff’s Department is a County entity. See Def.’ City’s Mot. at 12 2. The City contends it does not maintain its own police department or police agency. Id. The 13 Court grants the City’s request for judicial notice of a public record indicating that the Sheriff’s 14 Department substation in Lemon Grove is a County entity. See Def. City’s Request for Judicial 15 Notice, Ex. A. Because Plaintiff’s complaint does not contain any allegations against the City, 16 (other than those based on the incorrect notion that the Sheriff’s Department is a City entity), the 17 Court DISMISSES WITH PREJUDICE Plaintiff’s claims against the City. 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 11 1 CONCLUSION 2 The Court GRANTS IN PART and DENIES IN PART the County Defendants’ motion to 3 dismiss. The Court GRANTS Defendant City of Lemon Grove’s motion to dismiss and Defendant 4 Judith Klein’s motion to dismiss. 5 6 In accordance with the foregoing, the Court DISMISSES WITH PREJUDICE the following claims: 7 - Plaintiff’s fourth, fifth, sixth, and seventh causes of action. 8 - Plaintiff’s eighth, and ninth causes of action, except as they relate to the initial 9 removal of the children. 10 11 The Court DENIES the County Defendants’ motion to dismiss Plaintiff’s eighth and ninth causes of action as they relate to the initial removal of the children. 12 The Court DISMISSES WITHOUT PREJUDICE the following claims: 13 - 14 fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth causes of action. 15 16 Plaintiff’s first, second, third, tenth, eleventh, twelfth, thirteenth, fourteenth, The Court DISMISSES WITHOUT PREJUDICE all Defendants except Defendants Cornelius and Williamson. 17 If Plaintiff wishes to file an amended complaint, he must do so within 21 days of the filing 18 of this order. The amended complaint should only make the revisions discussed above, should be a 19 complete document without reference to any prior pleading, and should not add any new causes of 20 action. 21 22 IT IS SO ORDERED. DATED: March 29, 2011 23 24 IRMA E. GONZALEZ, Chief Judge United States District Court 25 26 27 28 12

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