ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is proceeding pro se and in forma pauperis. Two motions to dismiss came on regularly for hearing April 30, 2009. Plaintiff appeared in propria person. Defendant Thomas W. Mazzera, Esq., appeared pro se. Dana A. Suntag appeared for defendants County of San Joaquin, Christopher Holden, Ernie Schmidt and Deputy Jeff Luck. Upon review of the motions and the documents in support and opposition, upon hearing the arguments of plaintiff and counsel and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
Plaintiff father brings a civil rights suit for the willful, intentional and malicious act of illegally removing plaintiff's two minor children from his custody. (September 28, 2008 First Amended Complaint ("FAC").) Plaintiff claims their removal violated the Fourth Amendment, because it was without probable cause or a warrant, and the 14th Amendment, because it deprived him of equal protection, intruded upon his family relationships, and interfered with his parental rights. Plaintiff also includes a state law claim of negligence.
A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) dismissal can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976); Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003).
For a complaint to avoid dismissal pursuant to Rule 12(b)(6), the complaint need not contain detailed factual allegations; rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007); Weber v. Department of Veterans Affairs, 512 F.3d 1178, 1181 (9th Cir.2008). While a complaint need not plead "detailed factual allegations," the factual allegations it does include "must be enough to raise a right to relief above the speculative level." Twombly, 127 S.Ct. at 1964-65. Federal Rule of Civil Procedure 8(a)(2) requires a "showing" that the plaintiff is entitled to relief, "rather than a blanket assertion" of entitlement to relief. Id. at 1965 n.3. Legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Robertson v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). "Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001), amended by 275 F.3d 1187 (9th Cir. 2001). A Rule 12(b)(6) motion to dismiss should be granted when a plaintiff fails to nudge his or her claims "across the line from conceivable to plausible." Twombly, 127 S.Ct. at 1974. "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Washington Energy Co., 83 F.3d 1136, 1139 (9th Cir. 1996). Where the plaintiff is proceeding pro se, the allegations of the complaint must be construed liberally. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).
First, plaintiff's Fourth Amendment claim is barred as a matter of law because a parent cannot sue for an alleged violation of the Fourth Amendment on behalf of his minor children. The Fourth Amendment protects against unreasonable searches and seizures. Id. However,
[w]hile a person has standing to challenge the seizure of his or her own person, Moreno v. Baca, 400 F.3d 1152, 1166 (9th Cir.2005), a person does not have standing to vicariously assert the Fourth Amendment rights of another person. Moreland [v. Las Vegas Metro, 159 F.3d , 369.
Osborne v. County of Riverside, 385 F.Supp.2d 1048 (C.D. Cal. 2005). Plaintiff was previously informed that his allegations that his children were wrongfully removed were more appropriately raised as a challenge under the Fourteenth Amendment. (June 25, 2008 Order at 4.)*fn1 In his opposition, plaintiff has provided no authority to the contrary, arguing he should be permitted to pursue claims under the Fourth Amendment. According, plaintiff's claims under the Fourth Amendment should be denied with prejudice.
Plaintiff's state law claim of negligence must also be dismissed. Under the California Tort Claims Act, the "right to sue the sovereign" is conditioned "upon timely filing of claims and actions," and "are elements of the plaintiff's cause of action . . . and conditions precedent to the maintenance of the action." Willis v. Reddin, 418 F.2d 702 (9th Cir. 1969). Timely filing is jurisdictional and must precede the filing of the negligence action herein. County of Los Angeles v. Superior Court, 91 Cal.App.4th 1303, 1314 (2001). Government Code § 911.2(a) provides that the tort claim must be filed "not later than six months after the accrual of the cause of action." Plaintiff failed to timely file a tort claim and, in his opposition, failed to address this requirement or provide proof he filed a tort claim. Accordingly, plaintiff's negligence claim must be dismissed with prejudice. Nguyen v. Los Angeles County Harbor/UCLA Medical Center, 8 Cal.App.4th 729, 732 (1992)(Complete failure to comply with tort claim requirements bars claim.)
The court will now address the remaining Fourteenth Amendment claims. Construed liberally, plaintiff alleges two bases for his § 1983 claims. First, plaintiff alleges that defendants violated his Fourteenth Amendment right to familial association with one another when the minor children were removed without probable cause, a protective custody warrant, or exigent circumstances. Second, plaintiff claims that the continued detention of the children, for almost two years,*fn2 further violated his Fourteenth Amendment rights to familial association.
It is well-established that custodial parents have a liberty interest in the "companionship, care, custody, and management" of their children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972); see also Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153 (1981) (such right was "plain beyond the need for multiple citation"); Miller v. California Dep't of Soc. Servs., 355 F.3d 1172, 1175 (9th Cir.2004). Plaintiff's claim here is based on violation of the Fourteenth Amendment, that parents and children have a constitutional right to live together without governmental interference and will not be separated without due process of law except in emergencies. Mabe, 237 F.3d at 1107). Courts have analyzed threats to remove a child from a family under the fundamental right to familial relations, which includes the liberty interests of parents in the care, custody and management of their children. Doe v. Heck, 327 F.3d 492, 524 (7th Cir. 2003); King v. Olmsted County, 117 F .3d 1065, 1066-68 (8th Cir. 1997). The liberty interest in maintaining the family unit is guaranteed by the Fourteenth Amendment. See Heck, 117 F.3d at 523.
Defendant Mazzera contends the children were removed prior to his appointment, so he cannot be held responsible for any alleged wrongful removal, or for any due process violation that occurred prior to his appointment.
However, liberally construing plaintiff's claims, he alleges defendant Mazzera interfered with plaintiff's parental rights under the Fourteenth Amendment while Mazzera represented the minor children during their continued detention. Specifically, plaintiff contends defendant Mazzera lied to the court when he claimed the "girls are terrified" of plaintiff, resulting in the loss of at least one visitation, and that defendant Mazzera prevented plaintiff from having other visitations with his children. These specific allegations as to defendant Mazzera are sufficient to defeat defendant's motion to dismiss plaintiff's Fourteenth Amendment claim. Defendant Mazzera's motion to dismiss the Fourteenth Amendment claim should be denied, and defendant Mazzera be required to answer the FAC.
Defendants Holden and Schmidt contend that plaintiff's amended complaint fails to state a cognizable claim against them because he failed to allege they personally participated in any conduct that violated his constitutional rights. Plaintiff provides no further specific allegations as to defendant Schmidt in his opposition, stating that defendant Schmidt was one of the defendants who illegally removed his children. (Opp'n. at 6.) Plaintiff contends defendant Holden lied when he told plaintiff that the "children had read the CPS report and agreed with it." (Id. at 4.)
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
The amended complaint contains only two specific references to actions by defendant Schmidt. First, plaintiff alleges that he sent a small package to his children around Christmas 2006, which was held in defendant Schmidt's office until three weeks after Christmas. (FAC at 26.) Defendant Schmidt asked one of the children "if she wanted the package at all."
(Id.) When the minor realized it was a Christmas present, she suggested it could have been delivered earlier, defendant Schmidt responded, "Do you want the package or not?" (Id.)
Second, plaintiff states that after the jurisdiction/disposition hearing, the case was transferred internally within CPS to another department, the Reunification Department, and after a short discussion with the manager of the Reunification Department, Mr. Ernie Schmidt, it became obvious that any joint counseling or visitation with the Children was not forthcoming at all. Yet, in the report prepared by CPS for the ...