Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Edward Howard Wiley v. Dep't of Children & Family Services

February 7, 2013

EDWARD HOWARD WILEY,
PLAINTIFF,
v.
DEP'T OF CHILDREN & FAMILY SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Proceedings

Plaintiff, proceeding pro se and in forma pauperis, filed a civil rights complaint for damages against the Los Angeles County Department of Children and Family Services (the "County"). The County filed a motion to dismiss the complaint for failure to state a claim and on immunity grounds. Plaintiff filed opposition to the motion, and the County filed a reply.

For the reasons described below, the complaint is dismissed with leave to amend for failure to state a claim. Plaintiff has three options:

(1) Plaintiff may continue this action in this court by filing a "First Amended Complaint" within twenty-one (21) days of the date of this order. No extension of time will be granted absent a showing of good cause supported by a declaration under penalty of perjury. Any amended complaint should attempt to correct the defects described below.

(2) Plaintiff may file a "Notice of Intent Not to Amend Complaint" within twenty-one (21) days of the date of this order. The timely filing of a notice of intent not to amend will be construed as an indication that plaintiff wishes to challenge dismissal of the complaint by seeking review of this order in the Ninth Circuit Court of Appeals. If the court receives timely written notice of plaintiff's intent not to file an amended complaint, this action will be dismissed with prejudice for failure to state a claim, and plaintiff will be free to appeal the order of dismissal. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-1066 (9th Cir. 2004); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

(3) Plaintiff may do nothing in response to this order. If plaintiff does not respond to this order by filing either a timely amended complaint or a timely notice of intent not to amend, plaintiff will be deemed to have consented to the dismissal of this action with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and failure to comply with this order. See Edwards, 356 F.3d at 1063-1066.

Plaintiff's allegations Plaintiff alleges as follows. On June 9, 2009, a County social worker visited him and told him of allegations of "general abuse, child neglect and child abuse" against him. [Complaint 3]. Plaintiff met with that social worker and four others on June 6, 2009. At the conclusion of the meeting, it was determined that the allegations were "unfounded"; nonetheless, plaintiff's children were removed from his home and placed with a "caretaker." Plaintiff was required to continue to provide for his children while they were the caretaker's custody. [Complaint 3].

On June 8, 2009, the social worker ordered plaintiff to take a drug test before 5 p.m., but did not give plaintiff the test center's address or send the test center the required paperwork, so plaintiff did not take the test. The social worker told plaintiff the missed test would be considered "dirty," but after plaintiff contacted a supervisor, the drug test was rescheduled for June 12, 2009. Plaintiff took the test, which was negative. [Complaint 3-4].

On June 15, 2009, plaintiff received a summons to appear in children's court for the "unfounded" abuse and neglect allegations. On June 30, 2009, after several court appearances, the court ordered plaintiff's children returned to him, but the children were not returned to him. [Complaint 5].

On August 8, 2009, the social worker called plaintiff and ordered him to take another drug test before 5 p.m. Plaintiff complied. [Complaint 5].

Plaintiff received a summons to appear in court again on August 15, 2009 based on allegations that his drug test was positive. [Complaint 5]. When plaintiff appeared in court, he found that the drug test results paperwork was a blank piece of paper. Plaintiff demanded that the court make the social worker produce a copy of the alleged positive test results and argued that the blank form should not be admitted as evidence against him, but the referee ruled against him and found sufficient cause to continue to hold plaintiff's children as wards of the court. [Complaint 5].

Plaintiff does not allege any facts occurring after August 15, 2009. Nonetheless, he alleges that he has been subjected to discrimination on account of his "gender as a father" between June 8, 2009 and November 2011. [Complaint 1].

Liberally construed, the complaint's seven "causes of action" assert the following claims: (1) gender discrimination, in violation of 42 U.S.C. § 2000e and California law [Complaint 2-3]; (2) conspiracy to discriminate against plaintiff on the basis of his race and gender, in violation of 42 U.S.C. § 1983 [Complaint 3-6]; (3) professional negligence under California law [Complaint 6-7]; (4) negligent infliction of emotional distress under California law [Complaint 7-8]; (5) racial and gender discrimination, in violation of 42 U.S.C. § 1981 and California law [Complaint 7-8, 9-10]; and (6) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.