The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Presently before the court*fn1 are the following motions: (1) defendants Leslie Scott and Caroline Sheller's motion to dismiss plaintiff's claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 7); (2) defendant Leane Renee's motion to dismiss and/or specially strike plaintiff's claims against her pursuant to Federal Rule of Civil Procedure 12(b)(6) and California's anti-SLAPP*fn2 statute, Cal. Civ. Proc. Code § 425.16 (Dkt. No. 12); (3) defendant Honorable Julie A. McManus' ("Judge McManus") motion to dismiss plaintiff's claims against her pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Dkt. No. 15); and (4) defendant George A. Roberts's motion to dismiss and/or specially strike plaintiff's claims against him pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and California's antiSLAPP statute (Dkt. No. 9).*fn3
The court heard these motions on its law and motion calendar on May 19, 2011. (Dkt. No. 31.) Attorneys Carl Fessenden and Katherine L.M. Mola appeared on behalf of defendants Scott and Sheller. Attorney Jeffrey J.A. Hinrichsen appeared on behalf of defendant Renee. Deputy Attorney General Kevin W. Reager appeared on behalf of Judge McManus. Attorney Joseph F. Zellmer, III appeared on behalf of defendant Roberts. Plaintiff, who is an attorney, appeared on his own behalf.
The undersigned has considered the briefs, oral arguments, and the appropriate portions of the record in this case and, for the reasons stated below, recommends that: (1) Scott and Sheller's motion to dismiss be granted in part and that all claims against Scott and Sheller be dismissed with prejudice; (2) Renee's motion to dismiss and anti-SLAPP motion be granted in part and that all claims against Renee be dismissed with prejudice; (3) Judge McManus's motion to dismiss be granted in part and that the court either abstain from hearing plaintiff's claims against Judge McManus or, alternatively, dismiss those claims with prejudice; and (4) Roberts' motion to dismiss be granted in part, and that the court decline to exercise supplemental jurisdiction over plaintiff's claims against Roberts.
Additionally, the undersigned addresses plaintiff's fourth claim for relief, which alleges that defendant Mary Henzie violated plaintiff's constitutional rights. The undersigned is inclined to dismiss any such constitutional claim, and in this order provides plaintiff with notice of the court's intent to recommend the dismissal of plaintiff's fourth claim and an opportunity to file a written opposition to such sua sponte dismissal.
Plaintiff filed his verified complaint on March 8, 2011. (Compl., Dkt. No. 1.)
Plaintiff alleges that this court has subject matter jurisdiction over his claims pursuant to 28 U.S.C. §§ 1331, 1332, and 1343. (Id. ¶ 1.)
Underlying this action is what can be fairly characterized as contentious divorce and custody proceedings in the Nevada County Superior Court ("Superior Court"). Plaintiff alleges that he is a resident of Nevada City, California, who at all relevant times had joint legal custody of his two biological, minor children, ages ten and eleven, with defendant Mary Henzie, who is plaintiff's ex-wife and the children's biological mother. (Compl. ¶¶ 1, 7, 8, 9.) Implicated by some of plaintiff's claims is a recommendation allegedly made in the custody proceedings by "Dr. Eugene Roeder, PhD, a non-party and the duly appointed Parenting Plan Coordinator." (See id. ¶ 7.) Plaintiff alleges that on or about January 8, 2010, Dr. Roeder, who had served as the appointed Parenting Plan Coordinator for eight months, "recommended to the court that plaintiff be given 50% physical custody of the minor children as a therapeutic remedy for Parental Alienation Syndrome also referred to as Reluctance/Refusal To Visit, all of which symptoms and diagnostic indicators were exhibited by the minor children." (Id.)
Relevant here, plaintiff alleges claims against the following individuals: (1) Judge McManus, who is alleged to be a judge of the Superior Court and was assigned to the custody action underlying this case in or around January 2010 (see Compl. ¶¶ 4, 10); (2) Leslie Scott, who is alleged to be a supervisor with Nevada County Child Protective Services ("Nevada County CPS") (id. ¶ 15); (3) Caroline Sheller, who is alleged to be the social worker assigned to the Superior Court custody case at issue here (id.); (4) Leane Renee, who is alleged to be an attorney that was appointed in May 2008 as counsel for the two minor children at issue in the Superior Court proceedings (id. ¶ 11); (5) Mary Henzie, who is plaintiff's ex-wife and the children's mother; and (6) George A. Roberts, an attorney with whom plaintiff engaged in a physical altercation and who is alleged to have acted as a "consultant" to Henzie's attorney in connection with the plaintiff and Henzie's family law action (see id. ¶¶ 20-22). Because of the nature of plaintiff's claims and the manner in which they are pled, the following recounting of the allegations in plaintiff's complaint proceeds claim-by-claim, rather than in a strict, chronological manner.
A. Plaintiff's First Claim for Relief
Plaintiff's first claim for relief, brought pursuant to 42 U.S.C. § 1983, alleges that Judge McManus violated plaintiff's "rights to substantive due process and a familial relationship with his daughters," which are provided by the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution. (See Compl. ¶ 12.) This claim is alleged only against Judge McManus, who plaintiff has sued in her "individual and personal capacity" and who plaintiff alleges "acted in her individual capacity and outside the scope and color of any legal authority."*fn4 (Id. ¶¶ 4, 12-13.) In connection with this claim, plaintiff seeks monetary damages "in excess of $1,000,000.00," punitive damages, and declaratory relief "adjudging" that Judge McManus violated plaintiff's civil rights. (Id. ¶ 13; see also id. at p. 15.)
Specifically, plaintiff alleges that on October 18, 2010, Judge McManus "orchestrated a sham proceeding" in the family court that ultimately deprived plaintiff of contact with his daughters for an extended period of time. (See Compl. ¶¶ 12-13.) Plaintiff alleges that Judge McManus announced at the October 18, 2010 hearing that she was removing the children from the custody of both parents and ordered that plaintiff and Henzie meet with two Nevada County CPS social workers to discuss the potential placement of the children with friends or relatives instead of in foster care. (Id. ¶ 13.) Plaintiff alleges that after the meetings, Judge McManus ordered that the children be placed in foster care, but that the children were never placed in foster care. (Id.) He alleges that Judge McManus denied ever making such an order. (Id.) Plaintiff alleges that as a direct result of the "sham" proceeding, plaintiff "has been allowed absolutely no contact with the minor children to date, a period now approaching five months." (Id.)
Additionally, plaintiff alleges that at the October 18, 2010 hearing, Judge McManus informed Henzie's attorney that Henzie would be provided with an attorney qualified to act in dependency actions upon request. (Id.) Plaintiff alleges that he requested such counsel at that time. (Id.) He alleges that Judge McManus "de facto" terminated his parental rights without due process and without affording him "assistance of counsel coincident to a California Welfare and Institutions Code Section 300 et. seq. dependency action and thereby acted outside and contrary to the scope of her official capacity in depriving him of his constitutional rights."*fn5
Plaintiff also alleges a lengthy list of additional acts by Judge McManus that were "contrary to and outside the scope of her authority as a family court judge making her subject to personal liability in this action":
 destroying evidence of an email communication by plaintiff,  lying in denying several statements in the family law case,  using intimidation tactics and threats of sanctions and incarceration,  communicating outside of court hearings in her individual capacity ex parte with CPS and minors' counsel to orchestrate deprivation of plaintiff's familial rights regarding his minor daughters,  signing orders submitted by the parties that contain terms not addressed in any proceedings before the court and/or failing to completely read orders that she eventually signed. (Compl. ¶ 13.)
B. Plaintiff's Second Claim for Relief
Plaintiff's second claim for relief, brought pursuant to 42 U.S.C. § 1983, is alleged only against Leslie Scott, a Nevada County CPS supervisor, and Caroline Sheller, a Nevada County CPS social worker. (See Compl. ¶¶ 14-15.) Plaintiff alleges that Scott and Sheller violated plaintiff's "rights to substantive due process and a familial relationship with his daughters" provided by the Fifth and Fourteenth Amendments. (Id. ¶ 14.) He seeks monetary damages "in excess of $500,000.00 per defendant" and declaratory relief "adjudging" that Scott and Sheller violated plaintiff's civil rights. (Id.; see also id. at p. 15.)
Specifically, plaintiff alleges that beginning on December 5, 2010, he informed Scott that "he wanted to exercise his rights to visit his minor daughters the maximum amount of times as soon as possible." (Compl. ¶ 15.) He alleges that although Scott informed plaintiff that Sheller would arrange visits, he has been "stonewalled" by Sheller and "afforded absolutely no contact with his minor daughters." (Id.)
Plaintiff further alleges that his "requests to learn the identity of the therapist ostensibly assigned to reunite plaintiff with his daughters have been ignored," and that "[n]o information of any kind has been provided plaintiff regarding his daughters." (Compl. ¶ 15.) Plaintiff alleges that Sheller has stated to him that "she is taking directions from the court," but has refused to answer any of his inquiries. (Id.) He also alleges that plaintiff has not been "informed of any properly noticed court proceedings regarding the minor children subsequent to December 1, 2010." (Id.)
C. Plaintiff's Third, Fifth, and Sixth Claims for Relief Plaintiff's third, fifth, and sixth claims for relief are only alleged against Leane Renee, who was appointed by the Superior Court as minors' counsel in May 2008. (See Compl. ¶¶ 16, 18-19.) Plaintiff's third claim alleges that Renee "committed fraudulent actions in order to deprive plaintiff of his constitutional rights to a familial relationship with his daughters." (Id. ¶ 16.) Plaintiff specifically alleges that Renee effectuated this violation through the following eleven acts:
 misrepresenting to Judge Thomas Anderson in August 2008 that she was entitled to seek abridgment of plaintiff's parenting time ex parte without notice to plaintiff,  misrepresenting to the court that there existed a restraining order against plaintiff,  misrepresenting to the court that she was attending a conference on the day she had been ordered to appear for hearing on Dr. Roeder's recommendation in January 2010,
 misrepresenting to the court that the order of the court regarding parenting time did not conform to the terms ordered in open court,
 misrepresenting to the minor children that the parenting plan order signed by the court was not accurate,  falsely denying to the court that she stated that Dr. Dugan*fn6 would testify about the role of a parenting plan coordinator,  misrepresenting to the court that the minor children had made declarations submitted in support of a restraining order,
 misrepresenting to the court plaintiff's actions by editing documents provided to the court in a clearly misleading fashion,  falsely denying to the court that she had been engaged to appeal a termination of parental rights by a client that subsequently contacted plaintiff,  inserting terms limiting plaintiff's contact with his daughters into a proposed order that were not addressed in the underlying hearing,  and amassing a billing and being paid by the [Superior Court] over $50,000 at $70 per hour for work on the case that was many times more than was warranted by the circumstances of the case.
(Compl. ¶ 16.) Although not part of plaintiff's express claims against
Renee, plaintiff also alleges that Renee "attempted to prohibit
testimony by Dr. Roeder on parental alienation citing the National
Organization of Women party line that Parental Alienation cannot be
recognized in court as it is not yet listed in the DSM-IV."*fn7
(Id. ¶ 11.) Plaintiff seeks monetary damages "in excess of
$1,000,000.00" and declaratory relief "adjudging" that Renee violated
plaintiff's civil rights. (Id. ¶ 16; see also id. at p.
Plaintiff's fifth claim for relief alleges that Renee is liable for intentional infliction of emotional distress, and seeks monetary damages "in excess of $1,000,000.00." (Compl. ¶ 18.) Plaintiff alleges in his fifth claim that "Renee read to [plaintiff's] minor children the statements she submitted and attributed to them that were contained in the pleading filed seeking a restraining order against plaintiff." (Id.)
Plaintiff's sixth claim for relief alleges that Renee is liable for negligent infliction of emotional distress, and seeks monetary damages "in excess of $1,000,000.00." (Compl. ¶ 19.) As with plaintiff's fifth claim, plaintiff's sixth claim alleges that "Renee read to [plaintiff's] minor children the statements she submitted and attributed to them that were contained in the pleading filed seeking a restraining order against plaintiff." (Id.)
D. Plaintiff's Fourth Claim for Relief
Plaintiff's fourth claim, alleged only against Henzie, is for "fraud in depriving plaintiff of his rights to a familial relationship." (Compl. at p. 11.) Specifically, plaintiff alleges that Henzie "fraudulently deprived him of his constitutional right to a familial relationship with his daughters by making false accusations of spousal abuse against plaintiff to his minor daughters and to Dr. Dugan, the court appointed evaluator incident to a supplemental custody evaluation conducted in March 2009." (Id. ¶ 17; see also id. ¶ 9 (alleging "false accusations of spousal abuse leveled by Defendant Mary Henzie").) Plaintiff seeks damages "in excess of $1,000,000.00" and declaratory relief "adjudging" that Henzie violated plaintiff's civil rights. (Id. ¶ 17; see also id. at p. 15.)
E. Plaintiff's Seventh and Eighth Claims for Relief Plaintiff's seventh and eighth claims for relief are alleged only against George A.
Roberts. Both claims arise from a physical altercation that allegedly took place between plaintiff and Roberts, which is largely unrelated to the Superior Court custody case. However, plaintiff alleges that Roberts was a "consultant" to Henzie's attorney in the divorce proceedings (Compl. ¶ 22), and judicially noticeable documents discussed below refer to the fact that Roberts testified as an expert witness in plaintiff's and Henzie's family law proceedings.
Plaintiff's seventh claim alleges that Roberts assaulted and battered plaintiff and seeks damages "in excess of $50,000.00." (Compl. ¶ 20.) Plaintiff alleges that "on July 20, 2010 Defendant George A. Roberts committed assault and battery against [plaintiff] by striking plaintiff in the face and jumping him and forcefully holding him down for approximately one minute." (Id.)
Plaintiff's eighth claim for relief alleges that Roberts slandered plaintiff on two occasions and seeks "in excess of $1,000,000.00" in monetary damages. (See Compl. ¶ 21.) First, plaintiff alleges that on August 23, 2010, Roberts filed a false declaration in a United States Bankruptcy Court that accused "plaintiff of punching [Roberts] in the area of his pacemaker and thereby injuring him and causing him to seek medical treatment." (Id.) Second, plaintiff alleges that "Roberts further slandered plaintiff by falsely stating that [plaintiff] punched him to Jeffrey Guyton,*fn8 Charles Eckerman, and Leane Renee as well as to other persons presently unknown to plaintiff." (Id.) Plaintiff alleges damage to his reputation and that "the false allegations were used against him in connection with his custody litigation regarding his minor daughters." (Id.)
F. Plaintiff's Ninth Claim for Relief
Plaintiff's ninth claim for relief is a claim for "conspiracy to slander" and is alleged against Roberts, Renee, Eckerman, and Henzie. (Compl. ¶ 22.) Plaintiff seeks "in excess of $1,000,000.00 per defendant." (Id.) Plaintiff alleges that Roberts "acted as a consultant to Defendant Chuck Eckerman in connection with advising Defendant Eckerman in his capacity as attorney of record for Defendant Henzie in her family law action." (Id.) Plaintiff alleges that following the July 20, 2010 altercation between plaintiff and Roberts, Roberts falsely informed Eckerman that plaintiff had assaulted and injured him. (Id.) Plaintiff further alleges that Eckerman "passed the slanderous accusation" to Henzie and Renee, and that Henzie and Renee later "passed the slanderous accusation to Lynette Weiss, the therapist treating the minor children for effects of parental alienation syndrome." (Id.)
A. Motion to Dismiss For Lack of Federal Subject Matter Jurisdiction A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) or 12(h)(3) challenges the court's subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that "may not grant relief absent a constitutional or valid statutory grant of jurisdiction," and "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (citations and quotation marks omitted); see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."). When ruling on a motion to dismiss for lack of subject matter jurisdiction, the court takes the allegations in the complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). However, the court is not restricted to the face of the pleadings and "may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) ("A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence."). "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Cmtys. for a Better Env't., 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), abrogated on other grounds by Hertz Corp v. Friend, 130 S. Ct. 1181 (2010); see also Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009) ("In support of a motion to dismiss under Rule 12(b)(1), the moving party may submit 'affidavits or any other evidence properly before the court . . . . It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." (citation omitted, modification in original)).
B. Motion to Dismiss For Failure to State A Claim On Which Relief Can Be Granted A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009), cert. denied, 130 S. Ct. 1053 (2010). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).
The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give the plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that "pro se pleadings are liberally construed, particularly where civil rights claims are involved"). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Additionally, under the "incorporation by reference" doctrine, a court may also review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted and modification in original).*fn9
C. Anti-SLAPP Special Motion to Strike, Cal. Civ. Proc. Code § 425.16 Two of the motions before the court have been brought, in part, pursuant to
California's anti-SLAPP statute, California Code of Civil Procedure § 425.16. The Ninth Circuit Court of Appeals has summarized the purpose and general mechanics of California's anti-SLAPP statute as follows:
The anti-SLAPP statute establishes a procedure to expose and dismiss meritless and harassing claims that seek to chill the exercise of petitioning or free speech rights in connection with a public issue. Analysis of an anti-SLAPP motion to strike involves a two-step process. First, the defendant must show that the cause of action arises from any "act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue. . . ." Cal. Code Civ. P. § 425.16(b)(1).
If the court determines that the defendant has met this burden, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the merits. To establish a probability of prevailing, the plaintiff must show that "the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."
Kearny v. Foley & Lardner, LLP, 590 F.3d 638, 648 (9th Cir. 2009) (footnote and citations omitted); accord Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 839-40 (9th Cir. 2001); Jarrow Formulas, Inc., 31 Cal. 4th at 733, 74 P.3d at 740. "The [anti-SLAPP] statute is to be 'construed broadly.'" Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010) (citing Cal. Civ. Proc. Code § 425.16(a), Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003)).
Generally, a party may bring an anti-SLAPP special motion to strike in federal court. Thomas v. Fry's Elecs., Inc., 400 F. 3d 1206, 1206 (9th Cir. 2005) (per curiam); Vess, 317 F.3d at 1109. But such a motion has limited reach. A party may seek to specially strike state law claims brought in federal court on the basis of the court's diversity subject matter jurisdiction and state law claims that are supplemental to federal claims in a federal question jurisdiction matter. See Hilton v. Hallmark Cards, 599 F.3d 894, 900 n.2 (9th Cir. 2010) (stating that "we have long held that the anti-SLAPP statute applies to state law claims that federal courts hear pursuant to their diversity jurisdiction") (citing United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 970-73 (9th Cir. 1999)); Globetrotter Software, Inc. v. Elan Computer Group, Inc., 63 F. Supp. 2d 1127, 1130 (N.D. Cal. 1999) ("[I]t appears that under the Erie analysis set forth in Lockheed the anti-SLAPP statute may be applied to state law claims which, as in this case, are asserted pendent to federal question claims."). However, a party may not use an anti-SLAPP special motion to strike to seek the dismissal of claims based on federal law, such as claims brought pursuant to 42 U.S.C. § 1983. See Hilton, 599 F.3d at 901 (stating that "a federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims"); accord Restaino v. Bah (In re Bah), 321 B.R. 41, 46 (B.A.P. 9th Cir. 2005) (holding that the anti-SLAPP statute does not apply to ...