Opinion
No. C 02-2893
October 21, 2002
JUDGMENT
The entire action has been dismissed, without leave to amend in this Court. Accordingly, judgment is entered in favor of defendants and against plaintiff
ORDER GRANTING STATE DEFENDANTS' MOTION TO DISMISS; GRANTING COUNTY DEFENDANTS' MOTION TO DISMISS; and DENYING PLAINTIFF'S MOTION FOR DE NOVO REVIEW OF PRIOR ORDER AND PLEADINGS.On October 4, 2002, this Court heard arguments on: (1) State defendant's Motion to Dismiss; (2) County defendants' Motion to Dismiss; and (3) Plaintiff's Motion for De Novo Review of All Pleadings Submitted and of the Order Filed on February 11, 2002 by Judge Ronald M. Whyte and Plaintiff's Objection to That order Filed on March 4, 2002.
BACKGROUND
A. Factual History
Prior to April 1999, Charles H. Wittman (hereinafter, "Wittman") was living with Kelly Lynn Mah (hereinafter "Mah") and Mah's four children, Daniel Chambers (age 15), Jason Chambers (age 14), Megan Buckholtz (age 13), and India Mah (age 4) (hereinafter known collectively as "the Mah children"), at Wittman's home. In April 1999, Megan accused her brother, Jason, of sexually molesting her. Santa Clara Social Services subsequently removed the three oldest Mah children from Wittman's home. Juvenile dependency hearings were filed in Santa Clara County Juvenile Court. Kathleen Dudley was assigned as a social worker for the case.
Neither the moving papers nor the complaint addresses the outcome of the molestation claim.
Dudley, as per her duties as a county social worker, submitted several reports to the juvenile court concerning the Mah children and Wittman's interaction with them. As part of these dependency hearings, Wittman's application for de facto parent status was denied by the court. Complaint at 25:23-26:11. See also Order Granting Defendants' Motions to Dismiss and Denying Plaintiffs' Motions to Dismiss (hereinafter, "Judge Whyte's Order") at 3:21-22. The state juvenile court denied Wittman standing in the dependency hearings for the Mah children. Complaint at 13:4-11.
On January 18, 2000, Wittman's application for a foster care license was denied based on allegations of violations of the False Claims Act, allegations of lack of care and supervision of children, and failure to submit fingerprints, health screening tests and T.B. tests for all adults living at Wittman's residence. See Plaintiffs Notice of Motion and Motion for De Novo Review of All Pleadings Submitted and of the Order Filed on February 11, 2002 by Judge Ronald M. Whyte and Plaintiffs Objection to That order Filed on March 4, 2002 (hereinafter, "Motion for de novo Review") at Exhibit 6:1.
On July 28, 2000, another social worker assigned to the Mah children's case, Barbara Eddy, sent Mah a letter stating that she did not believe that Wittman was an appropriate role model for the Mah children, particularly because of the accusation that he had committed fraud in his application for a foster care license. Id. at Exhibit 5:1 The letter further advised Mah that the Santa Clara County Department of Social Services would not reunify Mah with her children if Wittman would be living in the same home as Mah and the children. Id.
These events surrounding the dependency hearings of the Mah children form the basis for Wittman's claim of deprivation of his First Amendment right of freedom of association with the Mah children. Wittman alleges that Dudley contrived a false story in one of her reports to the juvenile court about inappropriate sexual comments and actions Wittman made during a Christmas visit. Complaint 22:2-5. Wittman alleges that Dudley did this in order to have the court terminate his visitation rights with Mah's two daughters. Complaint at 21:25. Wittman testified against Dudley in a California Department of Social Services hearing. Complaint at 22:9-10. Wittman alleges Dudley and others formed a conspiracy to deny him his civil rights as retribution for Wittman's actions. Complaint at 22:11-12.
The exact disposition of this hearing is unknown, but according to Wittman, the hearing board "chose to look the other way." Complaint at 22:13-18.
Wittman alleges that the conspiracy began around May 1999 and continues through to the present. Complaint at 19:18-20. Wittman states that, as part of this conspiracy, several individual defendants, pursuant to the policies, patterns and practices of their government employers, knowingly made and submitted reports containing false statements about Wittman to the juvenile court. Complaint at 6, 8-19, 26. Wittman argues that these defendants could not have acted without the knowledge and authority of their supervisors, and therefore he alleges that the supervisors were part of the conspiracy. Wittman contends that the July 28, 2000 letter, sent by defendant Eddy, contained several factual mistakes and false statements about Wittman's character. Wittman further contends that this letter was in furtherance of the conspiracy to deny his civil rights. Complaint 19:9-14. Wittman also states that County Counsel is responsible for reviewing all documents submitted to the juvenile court by county social workers and and further alleges that County Counsel had knowledge that the statements in reports submitted to the court were false. Complaint at 24:12-21. Wittman contends that the fact that the attorneys for County Counsel allowed these documents to be submitted to the court demonstrates that they too acted in conspiracy to deny him his civil rights.
Wittman alleges that he sent letters complaining about the county agency and the actions of its employees to the California Department of Social Services and specifically to the department's director, Rita Saenz. Complaint at 29:15-18. Sometime in January 2001, Wittman alleges he received an anonymous delivery of an internal California Department of Social Services Memorandum that purportedly contained evidence of one social workers' admission that Wittman's rights had been violated. Complaint at 27:5-7. Wittman argues that because that California Department of Social Services did not act in response to his letters, this is proof that the agency and its officials conspired to violate his civil rights. Complaint at 11:14-23 12:9.
Wittman submitted a copy of this memo as Exhibit 5:2: in his motion for de novo review of Judge Whyte's February 11, 2002 order.
Wittman also contends the reasons listed for denial of his foster license are untrue. Complaint at 25:24-26. Wittman filed for an administrative hearing to appeal the denial. Complaint at 26:1-2. Prior to the hearing, however, an agreement was reached in which Wittman withdrew his foster home application and the agency agreed not to pursue any legal action against Wittman for filing a fraudulent application. Id. at 26:3-4. Wittman further alleges that subsequently these false statements were submitted to the juvenile court as part of the conspiracy to deny him his right of association with the Mah children. Id. at 26:7-11.
Wittman claims that defendants Judge Edwards and Commissioner McCarthy of the juvenile court also conspired to violate his civil rights. Wittman contends these court officials knowingly acted on false information when they denied him de facto parent status and standing to appear in the dependency proceedings. Complaint at 16:20-22 and 17:11-23.
Wittman claims that he brought the alleged unlawful action conducted by these various state and county employees to the attention of the Santa Clara County Board of Supervisors through two letters to Supervisor Gage. 1.4. at 24:22-26 30:3-6. Wittman alleges that the Board of Supervisors did nothing to remedy his allegations of violations of his civil rights. Complaint at 31:23-32:2. Wittman further alleges that the Board of Supervisors, through their non-action, are also part of the conspiracy. Id. at 20:2-14 and 24:22-26.
B. Procedural History
On October 30, 2001, Wittman filed a complaint (hereinafter "Complaint") against twenty-nine state and local government employees and agencies. Wittman alleges five separate causes of action: (1) against all defendants for violation of his civil rights under 42 U.S.C. § 1983, 1985 and 1987; (2) against all defendants for intentional inflection of emotional distress; (3) against all defendants for negligent infliction of emotional distress and physical harm; (4) against defendants Department of Social Services and California Department of Social Services for declaratory and injunctive relief for violation of Wittman's constitutional rights; and (5) against defendants Rita Saenz, California Department of Social Services, the County of Santa Clara, County of Santa Clara Board of Supervisors, each Board of Supervisors member individually, Will Lightborne, Yolanda Rinaldo and Leroy Martin, individually and in their official capacity, for violations of Wittman's civil rights. Wittman seeks to enjoin defendants from working in their respective capacities and more than three hundred and fifty million dollars ($350,000,000.00) in compensatory and punitive damages.
See Complaint at 35:8-65:5.
Chief Magistrate Judge Patricia Trumbull was originally assigned to the case. On November 16, 2001, an order was entered reassigning the case to Judge James Ware. On December 5, 2001, Judge Ware recused himself pursuant to a request by Wittman. The case was reassigned to Judge Ronald M. Whyte.
On February 11, 2002, Judge Whyte granted a motion to dismiss with regards to defendants Santa Clara County Board of Supervisors, Santa Clara Social Services, Judge Len P. Edwards and Kristime McCarthy. The dismissal was without leave to amend. Judge Whyte's Order at 10:2-4.
On May 23, 2002, after allegations by Wittman of a conflict of interest, Judge Whyte issued an order recusing himself (hereinafter, "Recusal Order"). Wittman's motion to vacate Judge Whyte's Order was denied. The case was reassigned to Judge Jeremy Fogel. On May 29, 2002, on request by Wittman, Judge Fogel issued an Order of Recusal. The case was reassigned to the undersigned district judge.
On June 28, 2002, Wittman filed his Motion for de novo review. On August 30, 2002, defendants California Department of Social Services, Director Rita Saenz (hereinafter "Saenz"), Larry Bolton, DeSayles Owen, Nancy Stone, Jack Wright, Greta Gross and Peter Castillo (hereinafter known collectively as "State defendants") brought a motion to dismiss plaintiffs complaint under Federal Rules of Civil Procedure (hereinafter, "Rule(s)") 12(b)(1) and 12(b)(6) (hereinafter "State defendants' Motion"). On August 30, 2002, defendants County Counsel, Ann Miller Ravel, Karen Heggie, James T. Beall, Donald F. Gage, Blanca Alvarado, Pete McHugh, Liz Kniss, Department of Social Services, Yolanda Rinaldo, Will Lightbourne, Leroy Martin, Jean Platner, Linda Castaldi, Suzanne Jarrouj, Patricia Guesick, Kathleen Dudley and Barbara Eddy (hereinafter known collectively as "County defendants") also filed a motion to dismiss plaintiffs complaint under Rules 12(b)(1) and 12(b)(6) (hereinafter "County defendants' Motion"). On September 18, 2002, Wittman filed his responses to both State defendants' and County defendants' motions (hereinafter, "Response to State" and "Response to County"). On September 24, 2002, County defendants filed a reply. On September 26, 2002, State Defendants filed their reply. All three motions are currently before the Court.
On November 11, 2001, a motion to dismiss was filed by County defendants. On December 12, 2001, County defendants filed another motion to dismiss. On December 21, 2001, County defendants filed a third motion to dismiss. In Judge Whyte's Order it is unclear whether he denied County defendants' motion to dismiss or simply did not consider it. There is no mention of County defendants in the disposition of the order. In light of this ambiguity, the Court will examine the motion as if it had not been previously considered.
Wittman's motion was filed five days after the twenty-one day deadline set forth in Civil Local Rule 7-3(a). Since Wittman has filed this case in pro se the Court will consider the motion.
LEGAL STANDARD
"It is a fundamental principle that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded." Owen Equipment Erection Co. v. Kroger, 437 U.S. 365, 374, (1978). Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge a federal court's jurisdiction over the subject matter of the complaint. Fed.R.Civ.P. 12(b)(1) (Westlaw 2002). Accordingly, the burden rests on the party asserting federal subject matter jurisdiction to prove its existence. California ex rel. Younger v. Andrus, 608 F.2d 1247, 1249 (9th Cir. 1979). A complaint will be dismissed if, looking at the complaint as a whole, it appears to lack federal jurisdiction either "facially" or "factually." Thornhill Publishing Co., Inc. v. General Tel. Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When the complaint is challenged for lack of subject matter jurisdiction on its face, all material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Indus. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The Court, however, need not "assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012 (1984).
In answering this question, the Court must assume that the plaintiffs allegations are true and must draw all reasonable inferences in the plaintiffs favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the Court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).
If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).
DISCUSSION
A. Wittman's Pro Se Status
There appears to be some lingering question regarding Wittman's pro se status. See County defendants' Motion at 11:23-12:5. Wittman's complaint asserts that he brings the suit on behalf of himself and as a representative of Mah and the Mah children. "While a non-attorney may appear pro se on his own behalf, he has no authority to appear as an attorney for others." Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997), quoting C.E. Pope Equity Trust v. The United States, 818 F.2d 696, 697 (9th Cir. 1987) (internal quotations omitted). Since Wittman is representing himself in pro se, he cannot represent Mah or the Mah children. Therefore, the Court will only consider allegations concerning Wittman himself.
Wittman concedes this point in subsequent filings. See Plaintiff's Objection 3:20-22.
B. Wittman's Claims Against State Defendants
1. Wittman's Claims of Violation of His Civil Rights
At the core of Wittman's case is his claim of deprivation of his associational rights with the Mah children. In his claims for relief 1, 4, and 5, Wittman alleges that all defendants have violated his civil rights, presumably, under 42 U.S.C. § 1983, 1985 and 1987. Response to State at 2:3-5, 8-9. Since Wittman is pro se, the Court will liberally construe all of his claims for relief.
Under 42 U.S.C. § 1983 there is "a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. See Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870 (1989). To state a claim under Section 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated; and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48, 1085.Ct. 2250, 2254-55 (1988).
Wittman also alleges that State defendants conspired to deprive him of his civil rights in violation of 42 U.S.C. § 1985. Complaint at 16:16-17. A claim for relief under 42 U.S.C. § 1985 (3) requires a plaintiff to allege (1) a conspiracy (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, and (3) an act in furtherance of the conspiracy (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. United Brotherhood of Carpenters and Joiners of Am., Local 610. AFL-CIO v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 3356 (1983). The Supreme Court has also construed Section 1985(3) to require the plaintiff to show that the deprivation of the right was motivated by some racial or other class-based invidious animus. Griffin v. Breckenrdge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798 (1971).
Similarly to Section 1983, Section 1985 provides "no substantive right in itself it merely provides a remedy for [a] violation" of designated rights. Great. Am. Fed. Sav. Loan Assen v. Novotny, 422 U.S. 366, 372 (1979). Wittman alleges that State defendants violated his First Amendment right of freedom of association. Response to State at 8:23-26. The courts have long recognized a parent's right of freedom of association with his or her children. Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir. 2001). "It is well established that a parent has a fundamental liberty interest in the companionship and society of his or her child and that the states interference with that liberty interest . . . is remediable under 42 U.S.C. § 1983." Id. quotingKelson v. City of Springfield, 767 F.2d 651 (9th Cir. 1985). Wittman, however, does not have legal status as a parent of the Mah children. He is neither the biological father of the Mah children nor has he been granted de facto parent status. Response to County 14:11-12. See also Judge Whyte's Order at 3:20-21. Wittman's request for application for a foster care license was also denied. Complaint at 25:24-26.
Therefore, Wittman does not have a constitutionally guaranteed right of freedom of association with the Mah children.
Wittman argues that while he is not a parent of the Mah children and therefore does not have the parent's right of freedom of association, he nonetheless has a constitutionally guaranteed right of freedom of general association with whomever he chooses. Response to State at 4:16-18. Contrary to Wittman's position, the Supreme Court has determined that there is no First Amendment right of freedom of association. City of Dallas v. Stranglin, 490 U.S. 19, 24-25, 109 S.Ct. 1591, 1594 (1989). Rather, in certain circumstances, freedom of association is implicit in other constitutional rights. Id.
This has given rise to a few distinct categories of cases in which the Court has found that freedom of association is embraced by the Constitution. One such category of cases deals with rights that are considered fundamental to the concept of liberty. The Court in Roberts v. United States Jaycees, 468 U.S. 609, 620, 104 S.Ct. 3244, 3250 (1984), placed particular emphasis on the fact that this category of rights is often found in the creation and sustenance of a family. However, the cases cited by the Court in Roberts for this proposition deal with the rights of a married spouse or a parent, either biological or foster, seeking redress from government intrusion; the Court does not cite any case that extends this right to unrelated adults and children, nor does the Roberts Court extend the right in this way. Accordingly, for the purposes of 42 U.S.C. § 1983 and 1985, Wittman does not have a recognized right of freedom of association with the Mah children.
The other category, not applicable in this case, deals with freedom of association to participate in First Amendment activities such as freedom of speech or to assemble to redress grievances against the government.
Wittman further claims that his constitutional right of association with the Mah children is guaranteed by the First Amendment. As evidence for this assertion he cites a state court order granting him visitation rights. Response to State at 12:10-15. However, a state court's order granting visitation rights does not confer on an individual a federal constitutional right of association.
Wittman has failed to allege any violation of a right that is secured by the Constitution or laws of the United States. Therefore, his claims of a violation of his right of freedom to association under 42 U.S.C. § 1983 and 1985 must be dismissed for failure to state a claim upon which relief can be granted. This leaves only Wittman's assertion that his civil rights were violated under 42 U.S.C. § 1987.
Although mentioned only once in his original complaint, in his Response to State Wittman alleges a violation of his civil rights under 42 U.S.C. § 1987. Response to State at 2:8-9. Section 1987 states in pertinent part,
"[U.S.] attorneys, marshals, [and] magistrate judges appointed by the district courts, with power to arrest, imprison, or bail offenders, are authorized and required to institute prosecutions against all persons violating any of the provisions of section 1990 of this title or of sections 5506 to 5516 and 5518 to 5532 of the Revised Statutes . . .42 U.S.C. § 1987 (Westlaw 2002). Given the language of Section 1987, none of the State defendants qualify as prosecutors, marshals or judges under the scope of the statute. Therefore, Wittman cannot bring a cause of action for State defendants' failure to act under this statute. His claims against State defendants for violation of his civil rights must be dismissed.
2. Wittman's Claim of Intentional Infliction of Emotional Distress
Wittman alleges a cause of action for intentional infliction of emotional distress against all defendants. A claim for intentional infliction of emotional distress requires: 1) outrageous conduct by the defendants; 2) intent to cause or reckless disregard of the probability of causing emotional distress; 3) severe emotional suffering; and 4) actual and proximate causation of the emotional distress. Agarwal v. Johnson, 25 Cal.3d 932, 946 (Cal. 1979) (citation and internal quotation marks omitted). Furthermore, to be considered outrageous, the conduct "must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." Cervantez v. J.C. Penney Company. Inc., 24 Cal.3d 579, 593 (1979).
Wittman fails to offer any factual allegations, other than conclusory statements, that State defendants' conduct was outrageous or that they acted with intent or reckless disregard to cause him emotional distress.See Complaint at 54:10-56:21. Additionally, Wittman's claim of intentional infliction of emotional distress stems from his allegations that State defendants deprived him of his civil rights in violation of Sections 1983, 1985, and 1987. Complaint at 54:12-55:6. As stated above, Wittman does not have a generalized right of freedom of association; therefore, he cannot premise a claim for intentional infliction of emotional distress for deprivation of that non-existent right. Wittman's claim of intentional infliction of emotional distress must therefore be dismissed for failure to state a claim upon which relief could be granted.
3. Wittman's Claim of Negligent Infliction of Emotional Distress and Physical Harm
Wittman also alleges that State defendants actions constituted negligent infliction of emotional distress and physical harm. "It is well settled that one test for determining the issue of negligence is whether a person of ordinary prudence should have foreseen or anticipated that someone might be injured by his action or non-action." Mosely v. Arden Farms Co., 26 Cal.2d 213, 216 (1945). Put another way, negligence is a failure to do an act which is necessary for the assistance of another and which the actor is under a duty to do. Id.
Wittman has failed to present factual allegations that State defendants owed him any duty. See Complaint at 57:3-7. The existence of a duty is an essential element of any negligence claim. Wittman's failure to allege what duty, if any, is owed to him by State defendants is fatal to his claim.
In addition to lack of the requisite factual allegation, Wittman faces another barrier to bringing a claim of negligent infliction of emotional distress claim for acts stemming from alleged violations under 42 U.S.C. § 1983, 1985, and 1987. The Supreme Court, in County of Sacramento v. Lewis, 523 U.S. 833, 848-49, 118 S.Ct. 1708, 1718 (1998), found that the Fourteenth Amendment does not "guarantee due care on the part of state officials," and that "[n]egligent infliction of harm is categorically beneath the threshold of constitutional due process." Under Lewis, Wittman cannot claim that a deprivation of his civil rights resulted in the negligent infliction of emotional distress. While this may be a cause of action under state law, the Supreme Court has barred such a claim from being brought under federal law. Therefore, his claim of negligent infliction of emotional distress and physical harm must fail.
4. Immunity for State Defendants
In addition to arguing that Wittman has failed to state a claim, State defendants also contend that Wittman cannot prevail in this action because, under the Eleventh Amendment, State defendants enjoy immunity from suits stemming from their official actions. State defendants' Motion to Dismiss at 9:20-21. The principle that a state is immune from suit by one of its citizens has been recognized for more than one hundred years.See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504 (1890) The "arm of the state" doctrine has extended this immunity to state agencies and state agents.
Under the arm of the state doctrine, "a state agent or agency is immune from suit under the Eleventh Amendment because the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials or state entities are nominal defendants." Durning v. Citibank. N.A., 950 F.2d 1419, 1422 (9th Cir. 1991), citing Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350 (1945). Furthermore, the Supreme Court held in Edelman v. Jordan. 415 U.S. 651, 663, 94 S.Ct. 1347, 1355-56 (1974), that the Eleventh Amendment precludes federal courts from adjudicating suits by private parties against states and state entities where a judgment from the plaintiff would have to be satisfied out of public funds from the state treasury. California Department of Social Services and all individual State defendants, sued in their official capacity, fall under Eleventh Amendment immunity.
Wittman argues that Saenz, the director of California Department of Social Services, should be held liable both individually and in her official capacity. All factual allegations presented in this case demonstrate that any alleged liability by Saenz occurred within the scope of her duties. As such she acted as a state agent and is entitled to Eleventh Amendment immunity.
Wittman argues that Eleventh Amendment immunity does not apply to injunctive relief. Response to State at 17:19-21. Wittman is correct, but as stated above, he has failed to state a claim demonstrating that his constitutional rights were violated. While Eleventh Amendment immunity would not apply to the claim for injunctive relief, the issue is moot since the claim has been dismissed on other grounds.
Finally, with regard to State defendants' claim of immunity, Wittman cites Sutter v. Artist. 503 U.S. 347 (1992), as authority showing that State defendants, by simply accepting federal funding, have waived Eleventh Amendment immunity. Response to State at 3:7-10 and 19:13-15. Wittman's argument that State defendants have waived Eleventh Amendment immunity is not compelling; in fact, Sutter v. Artist appears to stand for the opposite proposition. See Sutter, 503 U.S. at 363.
The doctrine of Eleventh Amendment immunity for state agencies and their agents is well established. There is no evidence before the Court that State defendants waived Eleventh Amendment immunity. Therefore, even if Wittman had successfully stated a claim upon which relief could be granted, State defendants would be immune and could not be sued in federal court.
5. Wittman's State Law Claim Raised in Response to State Defendants' Motion
In his Response to the State defendants, Wittman alleges that State defendants are liable under California Government Code § 1504. Response to State at 2:23-24 and 7:18-8:16. Wittman does not present this allegation in his original complaint and it is not clear if Wittman intended to bring this state law claim as part of the current suit. If this was his intention, then the claim was brought improperly in violation of Federal Rules of Civil Procedure 15(a) and 15(c) and the Court will not consider it at this time. To the extent that Wittman proposes that the Court adjudicate any additional liability under California Government Code § 1507, the claim is dismissed, without prejudice.
C. Wittman's Claims Against County Defendants
1. Wittman's Claims of Violation of His Civil Rights, Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress and Physical Harm.
For the purpose of this order the Court hereby adopts and incorporates Judge Whyte's order granting County defendants' Motion to Dismiss. Further, the Court interprets Judge Whyte's Order to grant dismissal only to defendants the Santa Clara County Board of Supervisors, the Santa Clara County Department of Social Services, Len P. Edwards and Kristine McCarthy.
Wittman alleges that County defendants violated his constitutional rights under 42 U.S.C. § 1983, 1985 and 1987. As discussed above, Sections 1983 and 1985 do not themselves confer any rights, but are merely remedies for deprivation of federal rights. The right that Wittman alleges was violated, the right to general association, is not recognized as a right under the Constitution. City of Dallas, 490 U.S. at 24-25, 109 S.Ct. at 1594 (1989). Therefore, Wittman's claim for relief against County defendants fails because he has not stated a claim for which relief can be granted.
In Wittman's response to County defendants' motion, he alleges that County defendants also violated his civil rights under 42 U.S.C. § 1987. Response to County at 9:18-19. As with the State defendants, County defendants are not prosecutors, judges or marshals. Therefore they do not do not fall under the scope of the statute and cannot be sued for not acting under it.
For the same reasons as applied to the State defendants, Wittman's claim against County defendants for intentional infliction of emotional distress must be dismissed for failure to state a claim for which relief can be granted. This claim, at its core, is based on a violation of a general right of association, a right that is not recognized under the Constitution. If the right is not recognized, then County defendants cannot be held liable for intentional infliction of emotional distress stemming from not adhering to the right.
Similarly, Wittman's claim for negligent infliction of emotional distress and physical harm must also fail. This negligence claim is based on actions, or non-actions, taken by County defendants to allegedly deprive him of his civil right under 42 U.S.C. § 1983, 1985 and 1987. But as the court found in Lewis, liability for negligently inflicted harm by a county and its employees is "categorically beneath the threshold" of what federal courts may consider. Lewis, 523 U.S. at 849, 118 S.Ct at 1718.
2. Immunity for County Employees
County defendants also assert that the complaint must be dismissed because County defendants enjoy immunity. Since County defendants vary in their respective positions and responsibilities, the Court will categorize them for the purpose of analyzing whether or not they are immune from Wittman's complaint. County defendants will be separated into three groups: the first group is comprised of defendants Guesick, Dudley, Eddy, Planter Castaldi and Jarrouj, referred to collectively as County Social Workers; defendants Ravel and Heggie will comprise the second group and will hereafter be referred to as County Counsel; the final group of County defendants will be referred to as County Board Members and includes defendants Beall, Gage Alvarado, McHugh, and Kniss.
While not all County defendants qualify for Eleventh Amendment immunity, it should be noted that the issue of immunity will not be outcome determinative in this case; the Court has already found that Wittman has failed to state a claim for which relief can be granted.
Social workers enjoy absolute immunity from damages when performing quasi-judicial actions and when performing "quasi-prosecutorial" functions. See Coverdell v. Dep't of Social Health Services, 834 F.2d 758, 764-765 (9th Cir. 1987). See also Meyers v. Contra Costa County Dep't of Social Services, 812 F.2d 1154, 1156-57 (9th Cir. 1987). This includes preparing affidavits that will be submitted to a court.Burns v. County of King, 883 F.2d 819 (9th Cir. 1989). Wittman argues that social workers are only entitled to immunity when they are involved in the "investigatory or instituting phase" of a dependency case. Complaint at 25:11-13. However, Caldwell v. LeFaver, 928 F.2d 331 (9th Cir. 1991) is to the contrary. Where social workers are not acting under the supervision of a court only qualified immunity may be claimed. See Cadwell, 928 F.2d at 333. Under the facts alleged, the Court finds that the social workers could be considered to be performing quasi-judicial actions and therefore entitled to absolute immunity. However, the Court will also analyze whether their actions would fall under qualified immunity.
A court considering a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right, then proceed to determine if the right was "clearly established." See Wilson v. Layne, 119 S.Ct. 1692, 1694 (1999). If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. Id. On the other hand, if a violation could be made out on the allegations, the next sequential step is to ask whether the right was clearly established. Id. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. Id. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id.
As the Court has noted above, there is no general, constitutional right of freedom of association. Therefore, no further inquiry is required. Given the factual allegations presented by Wittman, it appears that defendants Guesick, Dudley and Eddy, acting as social workers in the course of their duties, have, at the minimum, qualified immunity.
County Social Workers also argue that supervisors Platner, Castaldi and Jarrouj cannot be held vicariously liable for actions taken by Guesick, Dudley and Eddy. This assertion is correct. To the extent that Wittman seeks to hold Platner, Castaldi, and Jarrouj liable simply because they hold a supervisory position over Guesick, Dudley and Eddy, Taylor v. List, 880 F.2d 1040 (9th Cir. 1989), provides some guidance. The court in Taylor states, "Liability arises only upon a showing of personal participation by the defendant. A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Id. at 1045.
County defendants also argue that County Counsel is entitled to absolute immunity for their actions. Wittman claims that County Counsel is subject to liability because they review and approve all documents submitted to the courts by social workers. The Court of Appeals for the Second Circuit in Walden v. Wishengrad, 745 F.2d 149, 152 (1984), held that an attorney working for a county agency is entitled to absolute immunity for actions arising out of the performance of his or her duties. The Court further emphasized that an government attorney working in the realm of social services, "must be allowed to perform [his or her] duties free from fear of potential lawsuits by individuals allegedly harmed by her actions." Id. Several courts in Ninth Circuit have embraced this logic and the Court finds it applicable here as well. County Counsel, acting in the scope of their duties as related to juvenile dependency proceedings, are entitled to absolute immunity.
Finally, the Court will address whether or not the individual board members are immune from Wittman's complaint. It is well established that local legislators are entitled to absolute immunity from civil liability for their legislative functions. See Bogan v. Scott-Harris, 523 U.S. 44, 46 (1998). Although legislators have absolute immunity from suits based on their legislative acts, not all governmental acts by a legislator or legislature are legislative in nature. See Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580 (9th Cir. 1984), cert. denied, 471 U.S. 1054 (1985).
Acts that are administrative or executive in nature receive less than absolute protection. See Bateson v. Geisse, 857 F.2d 1300, 1304 (9th Cir. 1988): "[A]n act which applies generally to the community is a legislative one, while an act directed at one or a few individuals is an executive one." From the facts set forth in Wittman's complaint, the alleged actions on the part of the individual board members are executive. As stated above, the test for qualified immunity has two parts. Since the Court finds that the right of which Wittman claims he was deprived is not a right recognized by the Constitution, it need not examine the second part of the test. The Board Members are entitled to qualified immunity for their actions as related to the allegations set forth in Wittman's complaint. Wittman also makes a claim for injunctive relief. Again, Wittman is correct that Eleventh Amendment immunity does not typically apply in cases where injunctive relief is sought. However, the issue of injunctive relief is moot.
3. Wittman's State Law Claim Raised in Response to County Defendants' Motion
Wittman's claim under California Government Code § 1504 was brought improperly against State defendants under Rules 15(a) and (b). The same legal reasoning applies to Wittman's claim against County defendants. To the extent that Wittman brings a claim under the aforementioned code against County defendants, it is dismissed without prejudice.
D. Wittman's Motion for de novo Review of All Pleadings and Judge Whyte's Order
Wittman filed a motion requesting de novo review of all pleadings submitted and specifically of Judge Whyte's Order dismissing certain defendants. Wittman relies on Rohrbach v. ATT Naussau Metals Corp., 91S F. Supp. 712 (M.D. Pa, 1996) as authority for the proposition that the Court should conduct a de novo review of Judge Whyte's Order. However, that case is easily distinguished. The judge in Rohrbach was disqualified because of a violation of 28 U.S.C. § 455(a). 28 U.S.C. § 455(a) states, in pertinent part, any judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a) (Westlaw 2002). Judge Whyte's recusal was not based on the belief that someone might reasonably question his impartiality, but rather it was to avoid even the appearance of impropriety. See Recusal Order at 1:24.
In Wittman's motion, he makes reference to "[the] False Claims Act part of this suit" and asserts that it should be submitted by the Court to the U.S. Attorney General. Motion for de novo Review at 7:15-17. The Court has no duty to submit any material to the U.S. Attorney General. If Wittman wishes to initiate a suit under the False Claims Act, as a private person, then he must serve the complaint on the U.S. Attorney General. 28 U.S.C. § 3730(b) (Westlaw 2002). To the extent that Wittman intended to bring a cause of action under the False Claims Act against any defendant, it was not plead properly and the Court will not consider it at this time. The claim therefore is dismissed, without prejudice.
There is no basis to reasonably question Judge Whyte's impartiality in this case. There appears to be no basis at all except for the coincidence that Judge Whyte's wife works for the Court Appointed Special Advocacy program (hereinafter "CASA"), that Judge Whyte and CASA contributed money to the same charity in 2000, and that Wittman asserts that he may, at some time in the future, either join CASA as a defendant or call an unnamed CASA employee as a witness. As Judge Whyte states in his order, his wife had no involvement in any of the events that gave rise to Wittman's claim and had no involvement at CASA with Wittman, Mah, or the Mah children. Recusal Order at 1:22-25.
Given the evidence presented, there is no reason to conclude that Judge Whyte's order was biased or inappropriate. Therefore Wittman's Motion for de novo Review is DENIED.
CONCLUSION
For the foregoing reasons, State defendants' motion to dismiss Wittman's complaint is GRANTED. [Docket #125] County Defendant's motion to dismiss Wittman's complaint is GRANTED. [Docket #123] The Court sees no factual basis under which Wittman's complaint could succeed against these defendants. Therefore, the defendants' motions to dismiss are granted without leave to amend. Plaintiffs Motion for review de novo of all Pleading is DENIED. [Docket #117].