Opinion
Civil No. 00-35-AS
April 27, 2001
FINDINGS AND RECOMMENDATION
Plaintiff Reginald Delaney filed this civil rights action on January 6, 2000. All of the defendants moved to dismiss the complaint on a number of grounds. In response, Delaney asked for leave to amend the complaint to cure any deficiencies.
In a Findings and Recommendation filed April 24, 2000, this court granted defendants' motions to dismiss based on the Rooker-Feldman doctrine. Specifically, the court found that all of the allegations in the complaint related to the defendants' conduct with regard to a state child custody proceeding and that the court lacked subject matter jurisdiction over Delaney's complaint. In light of Delaney's pro se status, the court granted Delaney's motion to amend the complaint "to allege claims against Judge Souther-Wyatt, the SOSCF employees in their individual capacities and Defendant Smith that are unrelated to the child custody matter."
The Findings and Recommendation were adopted on September 20, 2000, by the Honorable Ancer L. Haggerty.
Presently before the court are Delaney's amended complaint (the "Complaint") alleging claims against Judge Souther-Wyatt, Pamela Smith and the SOSCF employees, Kay Toran, JoAnne Fletcher, Mary Baker, Roger Carnegie, and Anani Chandler. Defendant Smith moves to dismiss the complaint and the remaining defendants seek summary judgment.
The court advised Delaney of his obligations in responding to a summary judgment motion by order filed March 16, 2001.
PRELIMINARY PROCEDURAL MATTER
Once again, Delaney has filed this pro se action on his own behalf and "as next friend" for his minor children, Arthur and Princess Delaney (the "Children"). Once again, no one disputes that Plaintiff is able to serve as "next friend" for the Children or that Plaintiff is able to appear pro se on his own behalf in this action. However, as the court explained previously, a non-attorney's right to represent himself is personal and may not be extended to allow him to appear as an attorney on behalf of others. The Ninth Circuit has held that an individual acting on behalf another in filing a lawsuit must retain legal counsel to represent him in his representative capacity. Johns v. County of San Diego, 114 F.3d 874 (9th Cir. 1997) (emphasis added). The Children, and any claims brought for damages suffered by them, should be dismissed from this action.LEGAL STANDARD
Motion to Dismiss
Courts grant motions to dismiss under Rule 12(b)(6) only if "it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Gibson v. United States, 781 F.2d 1334, 1347 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). The review is limited to the complaint, and all allegations of material fact are taken as true and viewed in the light most favorable to the non-moving party. Cassettari v. County of Nevada, 824 F.2d 735, 737 (9th Cir. 1987).
In civil rights cases involving a plaintiff proceeding pro se, this court construes the pleadings liberally and affords the plaintiff the benefit of any doubt. McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). However, a liberal interpretation of the complaint may not supply essential elements of the claim not initially pled. Pena v. Gardner, 976 F.2d 469 (9th Cir. 1992).
Before dismissing a pro se civil rights complaint for failure to state a claim, this court supplies the plaintiff with a statement of the complaint's deficiencies. McGuckin, 974 F.2d at 1055; Karim-Panahi, 839 F.2d at 623-24; Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987).
A pro se litigant will be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint can not be cured by amendment. Karim-Panahi, 839 F.2d at 623; Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987).
Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure allows the granting of summary judgment:
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). "[T]he requirement is that there be no genuine issue of material fact." Anthes v. Transworld Systems, Inc., 765 F. Supp. 162, 165 (Del. 1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) (emphasis in original).
The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is absent. Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the onus is on the nonmovant to establish that there is a genuine issue of material fact. Id. at 324. In order to meet this burden, the nonmovant "may not rest upon the mere allegations or denials of [its] pleadings," but must instead "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324.
An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. On the other hand, if after the court has drawn all reasonable inferences in favor of the nonmoving party, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
DISCUSSION
Smith's Motion to Dismiss
In the Complaint, Delaney alleges that Smith, who was previously identified as an evaluator and mediator for the state court's family services division, has a duty as a mental health professional to report child abuse and that she failed to report allegations of such abuse against the Children. Any duty Smith had to report allegations of child abuse was for the benefit of the Children and any rights violated as a result of Smith's failure to report belong solely to the Children. If Delaney intended to allege that, as a result of Smith's actions, the court or other officials did not have all of the relevant information before them during the pendency of the custody over the Children, such allegations would be barred the Rooker-Feldman doctrine. Delaney is unable to state a viable claim against Smith for violation of his own civil rights.
Remaining Defendants' Motion for Summary Judgment
Delaney alleges that Judge Souther-Wyatt violated his civil rights when she caused the Portland Police Bureau to arrest Delaney on charges of filing a false report. Judge Souther-Wyatt issued an Order for Temporary Custody of the Children to Kimberly Jones, the Children's mother, on December 18, 1997. In that order, Judge Souther-Wyatt conditioned Delaney's visitation with the Children, in part, on Delaney's making no additional reports of abuse. Judge Souther-Wyatt included the same condition in the Judgment of Custody filed on March 16, 1998. Any information received or passed on by Judge Souther-Wyatt regarding Delaney's reports of abuse against the Children are inextricably linked to the state child custody dispute and are barred by the Rooker-Feldman doctrine.
Even assuming this court has jurisdiction over the claim against Judge Souther-Wyatt, it is clear from the evidence presented that Judge Souther-Wyatt did not initiate the false report charges filed against Delaney. The record reveals that Delaney reported possible sex abuse to his son by Jones to the Portland Police Bureau. The case was assigned to Detective Sergeant Kelly Scott who, after investigating the report, contacted Judge Souther-Wyatt. Judge Souther-Wyatt "confirmed that she had ordered Delaney not to make contact with police or SCF or any of the hospitals as he had been abusing the system."
Delaney argues that this report is inadmissible hearsay and asks the court to strike it from the record. The court finds that the police report is admissible under the public records and reports exception to the hearsay rule and denies Delaney's motion.
Delaney contacted the police himself. Judge Souther-Wyatt merely confirmed the terms of the child custody order. Delaney is unable to establish that Judge Souther-Wyatt was in any way responsible for the filing of the false arrest charges.
Finally, Delaney alleges that:
Fletcher, Baker, Carnegie and Chandler, violated my civil rights by failing to prevent my children's abuse they have suffered from their mother and has therefore aided and abetted in that abuse. Further, these defendants aided in preventing their move to safety and happiness in their father's home, and because of this have caused me considerable emotional distress and interfered with my right to freely exercise my liberty as a father.
Delaney includes some specific allegations that defendant Fletcher investigated an attack against Princess, stood up Delaney for an appointment, brought Delaney an astrology chart and told Delaney that Arthur refused to go back to his mother after a CARES evaluation. As these allegations relate to the general allegations of failure to protect the Children, the court will not address them separately.
and that:
Defendant Toran * * * personally received letters from me concerning my children's abuse at Dean's Barber Shop. It was her duty to prevent their future abuse from that moment on.
As with Smith, any allegations that these defendants failed to respond to allegations of child abuse or failed to prevent future child abuse state violations of the Children's civil rights. Delaney may not pursue these claims on behalf of the Children without being represented by counsel. These allegations must be dismissed.
Delaney also alleges that these defendants aided in preventing the Children's move to safety and happiness in their father's home. These defendants assisted the court in granting Jones legal and physical custody of the Children. The allegations clearly raise issues addressed in the state custody proceeding and are barred by the Rooker-Feldman doctrine.
Despite direction from the court and an opportunity to amend his complaint to state new claims, Delaney has merely restated the allegations of his initial complaint. All of the allegations relate to the Children's abuse, which Delaney may not pursue in the absence of legal counsel, or to the child custody dispute, which this court lacks jurisdiction to address. It is evident that Delaney is unable to state a viable claim before this court based on these facts. Accordingly, the Complaint should be dismissed with prejudice.
CONCLUSION
Smith's motion (71) to dismiss and the remaining defendants' motion (75) for summary judgment should be GRANTED and the Complaint should be dismissed with prejudice.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due May 14, 2001. If no objections are filed, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than May 29, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.