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Constable v. Hara

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 13, 2009

RUSSELL CLEO CONSTABLE, PLAINTIFF,
v.
KENNETH J. HARA, DEFENDANT.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF ACTION

Plaintiff Russell Cleo Constable ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed the instant civil rights complaint on January 7, 2009. For the reasons stated below, the Court recommends that Plaintiff's complaint be dismissed without leave to amend.

DISCUSSION

A. Screening Standard

Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

B. Allegations

Plaintiff sues Kenneth J. Hara, an attorney who works for Stanislaus County. Plaintiff does not allege that Mr. Hara is a district attorney, only that he is "a County employee and officer, at Stanislaus County Department of Child Support" and works at the court. The Department of Child Support Services is a division of the Stanislaus District Attorney's Office, making Mr. Hara a district attorney. He is sued in his personal capacity "for representing Lisa Constable in a matter of divorce and child custody." Complaint, at 2.

Plaintiff's allegations are based on his belief that Mr. Hara acted outside of his authority by interfering with his marriage dissolution and child custody proceedings on April 15, 2008, "under the cloak of child support." Complaint, at 6. He alleges that Mr. Hara only had authority to act on child support issues and that there were no such issues until he intervened. He explains that the child support issues were concluded on April 12, 2000, when "Stanislaus County Child Support Services and Lisa Constable walked away from all money owed in this matter." Complaint, at 3.

Plaintiff contends that Mr. Hara's interference denied him a fair hearing "by fraudulently giving third party input as if he had firsthand knowledge," and that these actions were outside the scope of his employment. Complaint, at 4. Although Mr. Hara represented that he was acting on behalf of the "case," Plaintiff believe that he was acting as an unlicensed agent for his (ex-)wife, Lisa Constable. Based on these allegations of fraud, "lying," and extortion, Plaintiff alleges causes of action under the 5th, 6th and 14th Amendments. He requests statutory damages under the Fair Debt Collection Practices Act, as well as punitive damages.

C. Analysis

1. Immunity

Plaintiff filed a similar action with the same allegations in May 2008. After giving him a chance to amend, the Court recommended that his amended complaint be dismissed without leave to amend based on (1) 11th Amendment immunity/qualified immunity; (2) lack of subject matter jurisdiction.*fn1 For the reasons explained below, the Court recommends dismissal for the same reasons.

Likely attempting to avoid the same fate, Plaintiff now sues Mr. Hara under 42 U.S.C. § 1983 in his personal capacity and tries to avoid qualified immunity by alleging, without support, that Mr. Hara acted outside the scope of his employment. The Eleventh Amendment does not bar suits seeking damages against state officials in their personal capacity. See Hafer v. Melo, 502 U.S. 21, 30 (1991); Ashker v. California Dep't of Corrections, 112 F.3d 392, 394 (9th Cir.), cert. denied, 118 S.Ct. 168 (1997); Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992). "Personal-capacity suits seek to impose personal liability upon a government official for actions [the official] takes under color of state law. See Kentucky v. Graham, 473 U.S. 159, 165 (1988).

However, Defendant Hara is entitled to qualified immunity. Government officials charged with enforcing presumably constitutional state laws are entitled to qualified immunity if it was reasonable for them to assume that they were acting legally and they acted in good faith. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). In ruling upon the issue of qualified immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the defendant's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If, and only if, a violation can be made out, the next step is to ask whether the right was clearly established. Id. The inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition . . . ." Saucier v. Katz, 533 U.S. 194, 201 (2002). "[T]he right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Saucier, 533 U.S. at 202 (citation omitted). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).

Although Plaintiff alleges that Mr. Hara acted outside the scope of his employment, there is no indication that his conduct fell outside of the type of conduct entitled to qualified immunity. Plaintiff attempts to avoid qualified immunity by vaguely alleging that Mr. Hara acted outside the scope of his employment by involving himself in a matter of divorce or child custody, but his allegations are conclusory and are insufficient to overcome qualified immunity. As explained above, qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." While Plaintiff may disagree with his involvement and/or dispute the child support arrearages, there is no indication that Mr. Hara could not raise the child support issue during the marriage/child custody proceedings. Mr. Hara was acting on behalf of the Stanislaus County Department of Child Support Services in an effort to collect past due child support payments. While Plaintiff states that he had no authority to act and takes issue with the fact that Mr. Hara was representing neither Plaintiff nor his wife, yet was allowed to interfere in a marriage and child custody proceeding "under the cloak of child support," Mr. Hara was entitled to be involved in the child support issue.

2. FDCPA

Insofar as Plaintiff attempts to bring a claim under the Fair Debt Collection Practices Act ("FDCPA"), his attempt fails. The FDCPA defines "debt" as:

. . . any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

15 U.S.C. § 1692a(5). The term is therefore limited and the FDCPA does not apply to all debts. Here, Plaintiff is attempting to use his alleged child support arrearages to obtain protection under the FDCPA. Child support obligations are not "debts" under the FDCPA. See Turner v. Cook, 362 F.3d 1219, 1227 (9th Cir. 2004) (citing Mabe v. G.C. Servs. Ltd. P'ship, 32 F.3d 86, 88 (4th Cir.1994) for the proposition that an obligation to pay child support is not a "debt" under the FDCPA because it was not incurred in exchange for consumer goods or services).

3. Subject Matter Jurisdiction

Finally, Plaintiff's claims are inextricably intertwined with California state court child support proceedings. It is well established that a federal court lacks subject matter jurisdiction to review final determinations of state courts, as well as claims "inextricably intertwined" with final state court decisions, even if such "inextricably intertwined" claims were not actually raised in the state court. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483-87, 483 n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Olson Farms, Inc. v. Barbosa, 134 F.3d 933, 937 (9th Cir.1998) (holding the "Rooker-Feldman" doctrine is jurisdictional). A federal district court is a court of original jurisdiction, and as such has no authority to review the final determinations of a state court in judicial proceedings. Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir.1986).

Plaintiff's complaint therefore fails to state a claim for which relief may be granted, and he cannot cure these deficiencies by amendment. Therefore, the Court finds that the action should be DISMISSED WITHOUT LEAVE TO AMEND.

RECOMMENDATION

Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED WITHOUT LEAVE TO AMEND.

These Findings and Recommendation are submitted to the Honorable Oliver W. Wanger pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendation, Plaintiff may file written objections with the Court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.


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