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 is a motion to dismiss filed by defendants Elaine Van Beveren and Law Offices of Elaine Van Beveren (collectively, the "Van Beveren Defendants").*fn2
The Van Beveren Defendants move to dismiss: (1) plaintiff's federal, 42 U.S.C. § 1983 claims pursuant to Federal Rules of Civil Procedure 12(b)(6); and (2) plaintiff's remaining state law claims pursuant to Federal Rules of Civil Procedure 12(b)(1). As to the latter aspect of the Van Beveren Defendants' motion, it is more correctly characterized as a request that the court decline to exercise supplemental jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367(c), rather than a motion to dismiss for lack of subject matter jurisdiction.
The court heard the Van Beveren Defendants' motion on its law and motion calendar on July 7, 2011. Attorney Jason W. Schaff appeared on behalf of the Van Beveren Defendants. Plaintiff, who is proceeding without counsel and in forma pauperis, appeared on his own behalf. Attorney Ashley M. Wisniewski appeared on behalf of defendant County of Sacramento ("County").
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 the Van Beveren Defendants' motion to dismiss be granted in part, and that plaintiff's claims for relief brought pursuant to 42 U.S.C. § 1983 and alleged against the Van Beveren Defendants be dismissed with prejudice. The Van Beveren Defendants' request that the court decline to exercise jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367(c) is held in abeyance pending complete resolution of the screening of plaintiff's federal claims alleged against the County.
Additionally, the undersigned further screens plaintiff's claims against the County. Pursuant to the court's screening authority provided in 28 U.S.C. § 1915(e)(2)(B), plaintiff's claims for relief alleged against the County are dismissed without prejudice. Plaintiff is granted leave to file a Second Amended Complaint within 30 days after the United States District Judge assigned to this matter has resolved the portion of this disposition that consists of findings and recommendations. As a result, the undersigned denies the County's motion to quash and motion to dismiss (Dkt. No. 15) as moot and vacates the hearing presently set for August 25, 2011.
A. Plaintiff's First Amended Complaint
Plaintiff's First Amended Complaint (Dkt. No. 4) is the operative complaint.
Plaintiff's claims for relief arise from a contentious custody dispute proceeding in the Sacramento County Superior Court ("Superior Court") between plaintiff and April Berger, plaintiff's "ex-partner" and mother of the two minor daughters who are at the center of the custody dispute. (See First Am. Compl. at 2, 9.) Plaintiff, who alleges that he is physically disabled and uses a cane, is alleged to be the minor children's father. (Id. at 3, 9)
Relevant here, plaintiff alleges claims for relief against Van Beveren and the Law Offices of Elaine Van Beveren. On December 5, 2007, Van Beveren was appointed by the Superior Court to serve as counsel for the minor children. (First Am. Compl. at 9, 12-13; Order, Dec. 5, 2007, attached as Ex. A to Req. for Judicial Notice, Dkt. No. 13, Doc. No. 13-2.)*fn3
Plaintiff alleges that the Law Offices of Elaine Van Beveren "is the business entity owned by Attorney Elaine Van Beveren," but that Van Beveren "is acting as an agent and under the direction of/and or the supervision of the County of Sacramento." (First Am. Compl. at 12.)
Plaintiff's claims arise from six separately identified "incidents." The first alleged incident occurred on September 23, 2008, during a meeting between plaintiff and Van Beveren regarding the Superior Court proceedings; plaintiff's minor daughters were present. (First Am. Compl. at 2.) In short, plaintiff alleges that Van Beveren repeatedly lost her temper during the meeting, repeatedly screamed at plaintiff and his daughters in an angry and harassing tone, blocked the doorway to the conference room in an attempt to prevent plaintiff from leaving the conference room with his daughters, grabbed and twisted one or both of plaintiff's daughters' arms in a forceful manner, repeatedly pushed plaintiff in the back as plaintiff protectively stood between his daughters and Van Beveren, and threatened plaintiff with the loss of his visitation rights. (See id. at 2-3.) This behavior allegedly continued in the parking lot as plaintiff attempted to leave with his daughters. (Id. at 3.)
The second incident occurred on September 24, 2008, during a hearing in the Superior Court. (See First Am. Compl. at 4.) Plaintiff alleges that Van Beveren lied and perjured herself in open court regarding the confrontation that had occurred the day before. (Id.) Plaintiff alleges that in retaliation for plaintiff's complaint to the Superior Court about the prior altercation, and in an effort to violate plaintiff's rights of due process and familial association, Van Beveren successfully made recommendations that severely restricted or eliminated plaintiff's access to his daughters. (See id. at 5.) Plaintiff alleges that as a result of Van Beveren's recommendations, plaintiff lost his joint custody and visitation time, full custody was awarded to Berger, and plaintiff was forced to undergo a court-ordered psychological evaluation, among other things. (See id.)
The third "incident" concerns plaintiff's allegation that Van Beveren repeatedly failed to comply with a "Court Ordered Directive," which required Van Beveren to speak with the "Rabbi of Plaintiff's synagogue [regarding] holidays, religious issues, education, etc. pertaining to Plaintiff's daughters."*fn4 (First Am. Compl. at 6 (emphasis omitted).) Plaintiff alleges that Van Beveren's "inattention to the above court directive, led to Plaintiff's daughters attending less than 50% of their overall religious education instruction," which "was of great concern to Plaintiff" and was disruptive to plaintiff's daughters. (Id.)
In regards to the fourth "incident," plaintiff alleges that April Berger had not granted plaintiff all of the visitation time to which plaintiff was entitled. (See First Am. Compl. at 7.) Plaintiff alleges that he brought this fact to Van Beveren's attention, but Van Beveren never pursued the matter despite making a representation to the contrary. (See id.)
Underlying the fifth incident is an allegation that one of plaintiff's daughters was "violently assaulted by a playmate" in or around February 2008. (First Am. Compl. at 7.) Plaintiff alleges that he informed Van Beveren about the assault, but Van Beveren initially "did nothing about it," and then only "dealt with it very minimally and unrealistically" about five months after plaintiff "pushed the issue" with Van Beveren. (See id. at 7-8 (quotation marks omitted).) Plaintiff alleges that he "believes that . . . Van Beveren retaliated against [him] for reporting these issues to his attorney and the court." (Id. at 8.)
As to the sixth incident, plaintiff alleges that on March 9, 2009, the Superior Court granted Berger's and Van Beveren's requests to terminate plaintiff's supervised visitation with his daughters. (First Am. Compl. at 8.) Plaintiff alleges that as a result of Van Beveren's "criminal behaviors and violations, legal manipulations and misdirections," among other things, he has not seen his daughters in over 22 months. (Id.)
It is not entirely clear what specific claims plaintiff intended to allege because his claims are in large part buried throughout his pleading, with very few headings to guide the reader. However, the First Amended Complaint reflects that plaintiff alleges that the Van Beveren Defendants violated plaintiff's rights provided by the First and Fourteenth Amendments to the United States Constitution. (See First Am. Compl. at 8, 10, 14, 15.) These allegations implicate 42 U.S.C. § 1983. Plaintiff also alleges myriad claims under California law, including claims for civil assault, civil battery, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, fraud, abuse of process, "and more." (See id. at 8; see also id. at 13-15.)
Plaintiff filed his complaint and an application to proceed in forma pauperis on September 21, 2010. (Dkt. Nos. 1, 2.) Plaintiff's original complaint named Van Beveren and the Law Offices of Elaine Van Beveren as the only defendants. The court granted plaintiff's application to proceed in forma pauperis and screened plaintiff's complaint pursuant to 28 U.S.C. § 1915. (Order, Dec. 2, 2010, Dkt. No. 3.) The court dismissed plaintiff's complaint without prejudice and granted plaintiff leave to file an amended complaint. (Id. at 9.)
On January 14, 2011, plaintiff filed a timely First Amended Complaint, which named the Van Beveren Defendants and added the County as a defendant. The First Amended Complaint does not allege any acts, policies, customs, or practices attributable to the County that give rise to plaintiff's claims.
On February 10, 2011, the court ordered service of plaintiff's First Amended Complaint on the Van Beveren Defendants through the United States Marshal's office. (Order, Feb. 10, 2011, Dkt. No. 5.) The court did not order service on the County. Despite this limited service-related order, the Clerk of Court issued a summons for the County on February 15, 2011. (Summons in a Civil Case, Dkt. No. 8.) Although it is unclear why a summons was issued as to the County, that summons was issued in error.
On May 12, 2011, plaintiff filed executed summonses for the Van Beveren Defendants and the County. (Dkt. No. 10, 11.) These executed summonses reflect that plaintiff apparently effectuated service of process of the First Amended Complaint and the summonses ...