The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
ORDER and RECOMMENDATIONS
Previously pending on this court's law and motion calendar for March 26, 2009, was a motion to dismiss, filed November 20, 2008, by defendants Superior Court of California, County of Sacramento, Hight, Ullman, Burger-Plavin, Medari, and Sarimento (Judicial Defendants); and a motion for summary judgment, filed February 11, 2009, by defendants County of Sacramento, Velasco, Deane, and Contreras (Sacramento County Employees). Also pending before the court is defendants' motion to quash subpoenas, filed March 12, 2009. Plaintiff appeared in pro se.*fn1 The Judicial Defendants were represented by William Krabbenhoft.
Jeri Pappone appeared on behalf of the Sacramento County Employees. Having reviewed the motions and heard oral argument, the court now issues the following findings and recommendations.
On May 5, 2008, plaintiff filed the underlying complaint in this action against numerous defendants, all of whom are alleged to have been involved in plaintiff's family law trial on January 19, 2007 regarding custody and visitation issues in regard to her daughter and the purported father, defendant Pablo Lawlor. Pablo's mother is defendant Maria Velasco whom plaintiff alleges kidnaped her daughter and committed perjury in family court proceedings. Many of the defendants are judicial or county employees involved in her case.
Plaintiff's claims are for violation of civil rights (42 U.S.C. § 1981), conspiracy to interfere with civil rights (42 U.S.C. § 1985), "neglect to prevent interference with civil rights" (42 U.S.C. § 1986), kidnaping, forgery, perjury, malfeasance, fraud, defamation, and violation of due process. Plaintiff seeks damages and injunctive relief, including being reunited with her child.
Legal Standard for Motion to Dismiss
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,, 129 S.Ct. 1937, 1949 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
Although defendants raise numerous additional grounds for dismissal, the court will not reach them as it finds a lack of federal jurisdiction. The grounds raised in the County Defendants' motion for ...