United States District Court, N.D. California, San Jose Division
September 27, 2005.
CLIVE FRANK BOUSTRED, ET AL., Plaintiffs,
COUNTY OF SANTA CRUZ, ET AL., Defendants.
The opinion of the court was delivered by: JEREMY FOGEL, District Judge
ORDER (1) GRANTING MOTIONS TO DISMISS CLAIMS ON BEHALF OF BOUSTRED
WITH LEAVE TO AMEND AND (2) GRANTING MOTIONS TO DISMISS CLAIMS ON
BEHALF OF OTHERS WITHOUT LEAVE TO AMEND AND WITHOUT
Plaintiff Clive Boustred ("Boustred") has filed a pro se
complaint on behalf of himself, his two minor sons (RCF,
elsewhere referred to as RCB, and WFB), and two corporations
owned by Boustred (InfoTelesys, Inc. Nevada and Get IT Real, Inc.
Nevada). The complaint is sixty-three pages in length and includes numerous specific and general
allegations. Boustred filed the complaint pursuant to
42 U.S.C. § 1983. He alleges that his Second, Fourth, Eighth, Ninth, Tenth,
and Eleventh Amendment rights have been violated, and he also
makes reference to the First, Fifth, Seventh, and Fourteenth
Amendments. In addition, he has listed twenty-one specific claims
for relief, labeled as follows: attempted murder, kidnap, hostage
taking, conspiracy to commit murder, obstruction of justice,
fraud, acceding to fraud, malicious prosecution, libel, slander,
trespass, nuisance, acting without subject matter jurisdiction,
child abuse and endangerment, assault, battery, false arrest,
false imprisonment, unlawful search, unlawful seizure, and grand
theft auto. He also claims that the alleged events have ruined
his businesses. He claims millions of dollars of damages,
itemized for specific harms. He requests an opportunity to
conduct depositions so that he can identify claims against
Boustred has alleged all of his claims against all of the named
defendants. These include the County of Santa Cruz, County of
Placer, County of Marin, State of California, their
representatives, and twenty-six individuals. The individual
defendants include: Anamaria Boustred, Steffan Tichatschke,
Gregor Smith, Robert Frandeen, Vicki Parry (attorney for Anamaria
Boustred), Paul Meltzer (former attorney for Clive Boustred),
eight employees of the Santa Cruz Sheriff's department, three
Santa Cruz Superior Court Judges, a Placer County Superior Court
Commissioner, two employees of the Santa Cruz District Attorney's
office, the Placer County District Attorney, two employees of the
Santa Cruz Child Protective Services office, one employee of the
Santa Cruz Woman's Crisis Center, and California Attorney General
Bill Lockyer. Genworth Financial is not listed in the initial
list of defendants.
The following is a brief summary of Boustred's complicated
allegations, with additional emphasis on allegations relating to
the four moving defendants. Because Boustred is proceeding pro
se, his claims understandably are not set forth with the clarity
one would expect from an attorney. Apparently, the marriage
between Boustred and his wife, Anamaria Boustred, has been or is
in the process of being dissolved. There appears to be
significant and painful conflict over the custody of the
Boustreds' two minor children, RCF/RCB and WFB. Anamaria Boustred
is or has been engaged in a romantic relationship with Stefan
Boustred alleges in his opposition to the instant motions that
in February 2003, in response to actions by Vicki J. Parry, an
attorney representing Anamaria Boustred, a court voided an order
that prohibited Tichatschke from contact with the two minor
children. Boustred alleges that Anamaria Boustred and
Tichatschke, enabled by the voiding of this order, created a
"dangerous situation" by leaving WFB, then 3 years old, in the
middle of a ski run. Boustred alleges that when he came to get
his son, Tichatschke attempted to start a fight with him.
Boustred then took both of his sons to Santa Cruz.
Boustred states in his opposition papers that on the following
day, March 10, 2003, he went to Santa Cruz Superior Court, where
he filed for a temporary restraining order "prohibiting his
ex-wife from causing dangerous situations for the children and
making false police calls." Boustred believes that Anamaria
Boustred and Tichatschke were trying to frame him and creating a
false record in preparation for the dissolution proceedings. He
alleges in his complaint that when he and his two sons returned
home, they were met by Santa Cruz County sheriffs, who "lay in
wait for and ambushed Petitioners on their private property and
shot at Petitioners from a point blank range of five to seven
feet." He alleges that was held in his garage, handcuffed, and
then detained in a police car. Boustred alleges that the police
kidnapped his sons. Boustred states that he was then falsely
accused of assaulting an officer and taken to jail.
Boustred believes that lawyers, judges, prosecutors, and county
officials are engaged in a conspiracy against him in order to
cover up the attempted murder of himself and his children by the
police. He alleges that he has been maliciously prosecuted on
more than one occasion, was not given access to an attorney, that
evidence favorable to him was improperly excluded, that documents
were kept from him while he was in jail, and that bail was set
much higher than was allowed.
Boustred also alleges that his rights with respect to his
children have been violated. He states that "Santa Cruz Superior
Court judges in complete and utter violation of my constitutional
rights continue to hold my children hostage." He alleges that
Tichatschke should not have access to his children, that a legal representative has been appointed
for his children in violation of his rights, and that this
attorney has said libelous things about Boustred regarding
Boustred's parenting capabilities.
Boustred also alleges in his opposition papers that Anamaria
Boustred stole from his office a life insurance policy renewal
notice. He claims that Anamaria Boustred renewed a million-dollar
life insurance policy on Boustred's life naming herself as the
beneficiary. Boustred believes that this life-insurance policy
further motivates the conspiracy against him. He alleges that
Genworth Financial refuses to cancel the life insurance policy
and that the continued existence of the policy puts his life in
Finally, Boustred alleges that the Santa Cruz Superior Court
refuses to file his pleas and motions, has not allowed him to
conduct depositions, and has improperly sanctioned him.
Four defendants have filed motions to dismiss and motions for a
more definitive statement. These defendants are (1) Paul Meltzer
("Meltzer"), who represented Boustred in criminal proceedings
before the Santa Cruz Superior Court, (2) Vicki Parry ("Parry"),
representing Anamaria Boustred in an ongoing family law
proceeding before the Santa Cruz Superior Court, (3) Angelica
Glass ("Glass"), an employee of Santa Cruz Child Protective
Services, and (4) Genworth Financial, the insurance company that
issued the life insurance policy for Boustred. Defendants move to
dismiss on two grounds. First, they assert that the complaint
should be dismissed pursuant to the requirement of Federal Rule
of Civil Procedure 8(a) that a complaint contain "a short and
plain statement of the claim showing that the pleader is entitled
to relief." Second, they assert that it should be dismissed for
"failure to state a claim upon which relief can be granted"
pursuant to Federal Rule of Civil Procedure 12(b)(6). Three of
the defendants also request that claims brought by plaintiffs
RCF/RCB, WFB, InfoTelesys, Inc. and Get It Real should be
dismissed because these plaintiffs lack capacity to sue.
Additionally, all four moving defendants have filed motions for a
more definitive statement pursuant to Federal Rule of Civil
Procedure Rule 12(e). Boustred opposes the motions to dismiss and
requests an extension of time to respond, prepare his case, and
obtain counsel. II. LEGAL STANDARD
"A court may dismiss a complaint only if it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations." Hishon v. King &
Spaulding, 467 U.S. 69, 73 (1984); see also Argabright v.
United States, 35 F.3d 472, 474 (9th Cir. 1994). For purposes of
a motion to dismiss, the plaintiff's allegations are taken as
true, and the Court must construe the complaint in the light most
favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411,
421 (1969); Argabright, 35 F.3d at 474. The pleading of a pro
se litigant is held to a less stringent standard than a pleading
drafted by an attorney, and is to be afforded the benefit of any
doubt. Haines v. Kerner, 404 U.S. 519, 520 (1972);
Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621,
623 (9th Cir. 1988). Further, a pro se litigant must be given
leave to amend unless it is absolutely clear that the
deficiencies of the complaint could not be cured by amendment.
Lucas v. Department of Corrections, 66 F.3d 245, 248 (9th Cir.
The Court has considered Boustred's allegations in the light
most favorable to him. As presently framed, Boustred's complaint
fails to state a claim upon which relief may be granted against
moving defendants Meltzer, Parry, Glass, and Genworth Financial.
Boustred makes sweeping conclusory allegations against all
defendants without making specific allegations against any of the
four moving defendants. Although Boustred offers several specific
allegations against these defendants in his opposition to the
instant motions, these allegations were not included in
Boustred's complaint. Moreover, it is not at all clear that the
allegations made by Boustred in his opposition papers would be
sufficient to survive a motion to dismiss even if they were
properly pled. For example, even in his opposition papers
Boustred does not identify the specific claims against each
defendant. Accordingly, the Court will grant the motions to
dismiss with leave to amend so that Boustred may set forth the
claims that he brings on his own behalf with greater
particularity. The Court also will grant the motions to dismiss the claims
brought on behalf of plaintiffs RCF/RCB, WFB, InfoTelesys, Inc.
and Get It Real without leave to amend. As a non-attorney,
Boustred may represent himself, but not his children or his
businesses. The law requires that a "non-attorney parent must be
represented by counsel in bringing an action on behalf of his or
her child." Johns v. County of San Diego, 114 F.3d 874, 876
(9th Cir. 1997); see also Civil Local Rule 3-9(a). Similarly,
"a corporation may appear in the federal courts only through
licensed counsel." Rowland v. California Men's Colony,
506 U.S. 194, 202 (1993); see also Civil Local Rule 3-9(b). The Court
will grant the motion to dismiss without prejudice, thereby
allowing these parties to file their claims if they obtain the
assistance of counsel.
The following legal authorities may be helpful to Boustred.
First, and most importantly, a complaint must state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6). A
complaint may be dismissed for failure to state a claim upon
which relief can be granted for one of two reasons: (1) lack of a
cognizable legal theory or (2) insufficient facts under a
cognizable legal theory. See Conley v. Gibson, 355 U.S. 41,
45-46 (1957); Robertson v. Dean Witter Reynolds, Inc.,
749 F.2d 530, 533-34 (9th Cir. 1984). Each claim brought by a plaintiff
must be based on existing, identifiable law. A plaintiff must
also allege enough facts to support each specific claim against
each defendant to make it is possible, assuming all alleged facts
to be true, for the Court could find in favor of the plaintiff.
Second, a complaint must include a "a short and plain statement
of the claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a). A complaint must provide "fair notice of
the nature of claim and the facts which underlie the claim."
Grid Systems Corp. v. Texas Instruments Inc.,
771 F. Supp. 1033, 1037 (N.D. Cal., 1991). It must be clear from the complaint
which specific claims are being brought against which defendants.
Each claim against each defendant must be clearly alleged in
order to give the defendant fair notice. It is not sufficient to
allege numerous claims against numerous defendants when each
claim is not being brought against all of the defendants.
Third, parties to a case may "obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any party." Fed.R.Civ.P.
26(b)(1). Although this is a liberal standard, "it is not so
liberal as to allow a party `to roam in shadow zones of relevancy
and to explore matter which does not presently appear germane on
the theory that it might conceivably become so'" Food Lion, Inc.
v. United Food and Commercial Workers Intern. Union,
AFL-CIO-CLC, 103 F.3d 1007, 1013, 322 (C.A.D.C., 1997) (internal
citations omitted). Thus, should the present litigation
ultimately proceed, Boustred only will be able to obtain
discovery that is clearly germane to identifiable claims.
Finally, the Court advises Boustred that the employees of the
Santa Cruz Child Protective Services, including Angelica Glass,
may be entitled to absolute or qualified immunity from suit.
"State actors, including social workers, who perform functions
that are `critical to the judicial process itself' are entitled
to absolute immunity." Doe v. Lebbos, 348 F.3d 820, 825 (9th
Cir., 2003) (internal citations omitted). When a state actor is
entitled to absolute immunity, that state actor is entirely
immune from suit. When a social worker performs functions other
than "those functions historically recognized as absolutely
immune at common law, qualified and only qualified immunity
exists." Id. However, qualified immunity is "an entitlement not
to stand trial or face the other burdens of litigation."
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). A determination
as to a state actor's entitlement to qualified immunity involves
a two-pronged inquiry. First, do the facts alleged, viewed in the
light most favorable to the plaintiff, demonstrate that the
defendant's conduct violated a constitutional right? Saucier v.
Katz, 533 U.S. 194, 201 (2001); Sorrels v. McKee,
290 F.3d 965, 969 (9th Cir. 2002). This first prong mirrors the
substantive summary judgment inquiry on the merits of the
constitutional claim. Sorrels, 290 F.3d at 969. Second, if the
plaintiff has alleged a deprivation of a constitutional right,
was that right clearly established? Saucier, 533 U.S. at 201;
Sorrels, 290 F.3d at 969. "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." Saucier,
533 U.S. at 202. IV. ORDER
Good cause therefore appearing, IT IS HEREBY ORDERED that the
instant motions to dismiss the claims Boustred brings on his own
behalf are GRANTED WITH LEAVE TO AMEND. Boustred shall file any
amended complaint within ninety (90) days after service of this
IT IS FURTHER ORDERED that the instant motions to dismiss
claims brought by Boustred on behalf of plaintiffs RCF/RCB, WFB,
InfoTelesys, Inc. and Get It Real are GRANTED WITHOUT LEAVE TO
AMEND AND WITHOUT PREJUDICE.
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