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.
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).
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.
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 ...