FINDINGS AND RECOMMENDATIONS
Defendants' motions to dismiss plaintiff's first amended complaint are before the court. The motions, which were initially noticed for hearing on December 4, 2009, were re-noticed for hearing on February 19, 2010 pursuant to the court's order granting in part plaintiff's motion for continuance. (Doc. No. 59.) Plaintiff's subsequent motion for an indefinite continuance was denied, and plaintiff was granted a final extension of time to February 10, 2010 to respond to the motions. (Doc. No. 67.) On February 10, 2010, plaintiff requested a 60-day extension of time as well as reconsideration of the order denying his motion for indefinite continuance. The court denied plaintiff's request for reconsideration and motion for further extension of time, vacated the hearing set for February 19, 2010, and deemed defendants' unopposed motions submitted on the record and the briefs on file. (Doc. No. 70.)
Upon consideration of the record and the briefs on file, the undersigned now recommends that all pending motions be granted*fn1 and that plaintiff's first amended complaint be dismissed without leave to amend.
PLAINTIFF'S FIRST AMENDED COMPLAINT
At a hearing held on August 14, 2009, the court granted defendants' previous motions to dismiss. In keeping with the principle that leave to amend should be freely granted, the court also granted plaintiff's motion to amend, providing plaintiff with a final opportunity to state cognizable claims. The court advised plaintiff that each group of moving defendants had identified deficiencies in plaintiff's original complaint and that defendants' arguments were in large part well-taken. Plaintiff was directed to attempt to address the deficiencies noted by the defendants. In addition, plaintiff was provided with guidance concerning the legal standards applicable to the motions brought by the defendants and the claims plaintiff was apparently attempting to present. (Doc. No. 36.)
The caption of plaintiff's first amended complaint indicates that the pleading asserts civil rights claims under 42 U.S.C. § 1983 together with state law claims for defamation of character, intentional infliction of emotional distress, negligent infliction of emotional distress, and harassment. (Doc. No. 41.) The caption and the "Parties" section of the first amended complaint reveal that plaintiff has reduced the number of defendants in the case to fourteen. Recently, plaintiff voluntarily dismissed six of those fourteen defendants: the YMCA of Greater Sacramento, the YMCA Child Development Center, Nora Shigomoto, Kathleen Parks, Nicole Romero, and Annie Cargile. (Docs. No. 75 & 76.)
The court's records reflect that defendants Police Officer Hann and "Sacramento County, CA. Superior Courts" have not appeared in this action, and plaintiff has taken no steps to proceed against them. There is no evidence that a summons and complaint were ever served on the Sacramento County Superior Court, and the returns of service filed by plaintiff do not demonstrate that defendant Hann was served with process in accordance with Federal Rule of Civil Procedure 4. (Docs. No. 5-7.) The undersigned will recommend that the two non-appearing defendants be dismissed pursuant to Federal Rule of Civil Procedure 4(m), which provides that, absent a showing of good cause, the court must dismiss the action without prejudice against any defendant who was not served with a summons and complaint within 120 days after the complaint was filed.
The six remaining defendants, as named by plaintiff, are the Sacramento Police Department, Director Nancy Aitken, the Busy Bee Daycare Center, Judge James McFetridge, Sheriff Jeremy Jordan, and the Sacramento County Sheriff's Department. Plaintiff's first amended complaint alleges as follows with respect to these six remaining defendants. This action arises from defendants' discriminatory refusal to conduct an adequate investigation into plaintiff's concerns regarding physical abuse he believed his children were experiencing. In early December 2007, plaintiff's children informed him of numerous incidents of physical abuse of his minor son by his son's uncle and cousins. On December 22, 2007, plaintiff went to a police station in Sacramento to report physical abuse of his son. The police officer was dismissive of plaintiff's concerns, and plaintiff believed the officer was biased against him because he is a black man with bi-racial children. The officer called the mother of the children and suggested that she obtain a restraining order against plaintiff, and later such an order was entered, which resulted in bias against plaintiff in Family Court and a violation of plaintiff's right to parent his children. On February 4, 2008, plaintiff filed a complaint against the police officer in question due to his attitude. On February 11, 2008, defendant Aitken criticized plaintiff for going to the Sacramento Police Department to complain about his ex-wife's relatives. On February 12, 2008, defendant Aitken met with plaintiff and his ex-wife, brought other workers into the meeting, refused to listen to plaintiff's concerns, and criticized plaintiff as irresponsible. On February 14, 2008, defendant Aitken filed a fabricated complaint against plaintiff with the Sacramento Police Department. Plaintiff believes that his ex-wife was able to get a restraining order against him in part because of defendant Aitken's complaint. The need to constantly advocate for the safety of his children caused plaintiff to suffer stress which led to migraine headaches. Defendant Judge McFetridge knew that plaintiff had filed complaints against him due to his conduct in Family Court and formed a bias against plaintiff because of the complaints plaintiff had filed. Plaintiff believed the Sacramento County Family Court Services had a bias against black men. On February 4, 2009, while observing Judge McFetridge in open court to learn more about decisions that could be based on race, plaintiff assisted a young black father in filing a complaint against Judge McFetridge and the sheriff of Sacramento County. The next day, while again observing Judge McFetridge in open court, plaintiff was asked by defendant Jeremy Jordan to leave the courtroom to meet with him. Plaintiff felt compelled to leave the courtroom. Once outside the courtroom, defendant Jordan divulged information about plaintiff's family law file and badgered plaintiff. Judge McFetridge subsequently fabricated a statement that plaintiff had threatened him, in retaliation for plaintiff's having helped the young black father in his courtroom. Defendants McFetridge and Jordan harassed and defamed plaintiff and deprived him of his right to observe the proceedings in open court because of their bias against him for continually complaining about family court services. (First Am. Compl. ¶¶ 2 & 18-40.)
Plaintiff's first and second claims for relief allege: (1) an unconstitutional violation of plaintiff's parental rights by the Sacramento Police Department; and (2) an unconstitutional violation of plaintiff's right to observe court proceedings by defendants McFetridge and Jordan. (Id. ¶¶ 41-48.) Plaintiff's third through sixth claims allege: (3) defamation by defendants Busy Bee Daycare Center, Aitken, McFetridge, and Jordan; (4) intentional infliction of emotional distress by all defendants; (5) negligent infliction of emotional distress by all defendants; and (6) harassment by defendants McFetridge, Jordan, and the Sacramento County Sheriff's Department. (Id. ¶¶ 49-63.)
Plaintiff seeks compensatory, general, and special damages in amounts to be proven at trial, and punitive and exemplary damages against each defendant in an amount large enough to punish and deter each defendant. Plaintiff also seeks his costs of suit. (Id., Prayer for Relief at 10.)
I. Motions to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). Dismissal of the complaint, or any claim within it, "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). See Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). Thus, the court may dismiss a complaint or any claim within it as frivolous where the claim is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989). The critical inquiry is whether a claim, even if inartfully pleaded, has an arguable legal and factual basis. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin v. Murphy, 745 F.2d 1221, 1227 (9th Cir. 1984). As the Supreme Court recently explained, in order to state a claim on which relief may be granted, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In determining whether a complaint states a claim, the court accepts as true the material allegations in the complaint and construes those allegations, as well as the reasonable inferences that may be drawn from them, in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. U.S., 915 F.2d 1242, 1245 (9th Cir. 1989). For purposes of a motion to dismiss, the court also resolves doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court may disregard allegations in the complaint that are contradicted by facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). In addition, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must, at a minimum, establish the court's jurisdiction, identify the defendants, state the relief sought, and give fair notice of the claims to the defendants. See Fed. R. Civ. P. 8(a) (providing that a pleading must contain "a short and plain statement of the grounds for the court's jurisdiction," "a short and plain statement of the claim showing that the pleader is entitled to relief," and "a demand for the relief sought"). See also Jones v. ...