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Marie Parlante v. Savanna Cazares

July 2, 2012

MARIE PARLANTE, PLAINTIFF,
v.
SAVANNA CAZARES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

This action against numerous defendants, originally filed on October 13, 2011, was referred to the undersigned by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has paid the filing fee and is proceeding in this action pro se.

On May 9, 2012, defendant Theresa Ravandi filed a motion to dismiss plaintiff's first amended complaint, noticed for hearing on June 7, 2012. (Dkt. No. 27.) On May 11, 2012, defendants Savanna Cazares and Elizabeth Wright filed a motion to dismiss, motion to strike, and motion for misjoinder of parties, noticed for hearing on June 14, 2012. (Dkt. No. 28.) Plaintiff failed to file oppositions or statements of non-opposition to these motions as required by E.D. Cal. L.R. 230(c). By order dated June 1, 2012, the court vacated the hearings on these motions in light of plaintiff's failure to file oppositions. (Dkt. No. 31.)

Although the court liberally construes the pleadings of pro se litigants, they are required to adhere to the rules of court. Failure to obey local rules may not only result in dismissal of the action, but "no party will be entitled to be heard in opposition to a motion at oral arguments if opposition has not been timely filed by that party." E.D. Cal. L.R. 230(c). More broadly, failure to comply with the Local Rules "may be grounds for imposition . . . of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." E.D. Cal. L.R. 110; see also E.D. Cal. L.R. 183 (requiring compliance with the Local and Federal Rules by pro se litigants).

"Failure to follow a district court's local rules is a proper ground for dismissal." Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The court should consider: (1) the public's interest in expeditious resolution of litigation, (2) the court's need to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy favoring disposition of cases on their merits, and (5) the availability of less drastic sanctions. Similar considerations authorize dismissal of an action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). Link v. Wabash R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991).

The court has considered the factors set forth in Ghazali. "[T]he key factors are prejudice and availability of lesser sanctions." Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990). Defendants are clearly prejudiced by the requirement of defending an abandoned case, and this court is put in the untenable position of expending limited judicial resources to decide such a case on the merits. The public's interest in expeditious resolution of litigation, the court's need to manage its docket, and the unsuitability of a less drastic sanction where plaintiff has failed to prosecute her case, direct that the action be dismissed.

Moreover, the court has reviewed the substance of defendants' motions and finds that they have merit. Plaintiff's allegations in this action are vague and confusing, but appear to relate to a custody dispute regarding her biological grandson. Plaintiff claims to have obtained approval for an interstate compact for the placement of children ("ICPC")*fn1 in regard to her grandson. She broadly alleges some type of fraud and conspiracy by defendants Savanna Cazares, Elizabeth Wright, Theresa Ravandi, Anders Tyslan, and Joan Tyslan that eventually led to the termination of her son's parental rights. She also claims that her attorney, defendant Michael Borkowski, improperly represented plaintiff's interests in the juvenile court proceedings, thereby preventing her from obtaining custody of her grandson. Plaintiff seeks damages, fees, and costs in excess of $5,000,000.00, primarily by virtue of her permanent inability to associate with her grandson. She also requests that this court conduct a de novo review of the underlying custody case, which plaintiff contends was appealed to the California appellate courts and the United States Supreme Court.

In its previous order dismissing plaintiff's original complaint with leave to amend, the court, in light of plaintiff's pro se status, specifically outlined the applicable law regarding fraud and conspiracy claims, including the necessary elements to plead these claims, the heightened pleading requirements that apply to fraud claims, etc. (See Dkt. No. 16 at 4-6.) The court made clear that plaintiff must provide sufficient facts explaining the roles of the various defendants in the alleged fraud and/or conspiracy. However, plaintiff's first amended complaint evinces little effort to cure the prior deficiencies.*fn2

Plaintiff alleges that "Defendant Savanna Cazares and Theresa Ravandi, is [sic] employee of County of Sacramento Social Services Agency Department of Family & Children Services Child Protective Services, and Elizabeth Wright is Offic [sic] of the County Counsel. Anders Tyslan, Joan Tyslan is the minor Ryuichi Parlante's foster parents." (Dkt. No. 26 at 2.) Plaintiff then goes on to allege certain "nefarious" practices by the District Attorney's Office, the County of Sacramento, and Child Protective Services, vaguely and at times incomprehensibly alleging involvement by the named defendants as follows:

According to the association with the faster [sic] parents;

ANDERS TYSLAN, JOAN TYSLAN under the influence, zealous representation involving conspiracy of Sacrament [sic] Social Service Agency within the bounds of the law for the minors they represent, as is required of any attorney practicing law in the State of California. Instead of providing independent and zealous representation of minors, and justification of unification services, the social worker counsel, ELIZABETH WRIGHT, which was appointed for the defendants, Sacrament [sic] social worker service employee, SAVANNA CAZARES and THERESA RAVANDI in the juvenile proceedings which she is appointed [sic], such as the juvinel [sic] proceedings involving the Parlante family herein, operate as indistinct and undifferntiated [sic] advocates of the position of COUNTY COUNSEL and Sacramento Department of child profective [sic] services agency 1) do not independently investigate the facts and circumstances that have brought the children into or within the juvenile dependency system as required under the lawful conditions of their statutory appointment (Welfare & Institutions Code Section 317) 2.) do not obtain and inform the court of the wishes of children who wish to be returned to their parents, or relatives, 3.) rutinely [sic] accept appointment at the initial detention hearing and "submit" on the allegations of fact submitted by COUNTY and/or Department of Child Protective Service Agency without having so much as met their young clients, much less actually spoken to them to ascertain version of the events alleged by COUNTY and Department of Child Protective Service. 4.) if ever, actually speak to the parents, and the relatives including the grandmother whom allegation have been brought [sic] as part of the independent investifation [sic] they are supposed to perform pursuant to W & IC 317(c).

(Dkt. No. 26 at 3-4.) Plaintiff fails to articulate how any of these generalized, vague, and conclusory allegations regarding institutional deficiencies amount to fraud or a conspiracy among the named defendants. Additionally, in the "original portion" of the first amended complaint, plaintiff repeats verbatim the same paragraph from the original complaint, which the court previously held was conclusory, devoid of necessary supporting factual allegations, and thus insufficient to state a claim for conspiracy or fraud:

On information and belief Defendants Savanna Cazares, Elizabeth Wright, Theresa Ravandi, Anders Tyslan, Joan Tyslan and Does 1 to 30 have committed civil conspiracy on the part of Plaintiff and her biological grandson by promising that the child (grandson) would be well cared for while in fact the child was dumped into social services the very next day after judgment was obtained in favor of defendants from the Sacramento Superior Court acting as the juvenile court. All defendants mentioned in this paragraph at one time or another during the underlying case in Sacramento have falsely represented facts in sworn statements which is against the public policy in the State of California. (Dkt. No. 26 at 7.) The first amended complaint added a few further scattered allegations regarding individual defendants:

The documents filed by Anders Tyslan and Joan Tyslan requesting removal of the child showed the use of the past tense in describing the behavior of the child which indicates there were problems with the child and the Tyslans ...


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