JAMES D. HASS, Plaintiff,
SACRAMENTO COUNTY DEPARTMENT OF SUPPORT SERVICES, SACRAMENTO COUNTY SHERIFF SCOTT JONES, ATTORNEY SEAN GJERDE, AND DOES 1 through X, inclusive, Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
JOHN A. MENDEZ, District Judge.
This matter is before the Court on Defendants County of Sacramento ("Defendant County") and Sacramento County Sheriff Scott Jones' ("Defendant Jones") (collectively "Defendants") Motion to Dismiss (Doc. ##4, 8) Plaintiff James Hass' ("Plaintiff") Complaint (Doc. #1) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion ("Opposition") (Doc. #6). Defendants have filed a reply (Doc. #14). For the following reasons, Defendants' motion is GRANTED.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
On May 1, 2009, Plaintiff alleges he met with "legal counsel on staff" at the Sacramento County Department of Child Support Services ("DCSS") regarding his court-ordered child support payments. Compl. ¶ 9. Plaintiff had been ordered to pay monthly child support for his son in the amount of $3, 200 with an additional $2, 000 for arrearages accruing on unpaid support and $720 for the opposing party's attorney fees. Compl. ¶¶ 8, 10. After meeting with Plaintiff, DCSS allegedly determined that Plaintiff lacked the ability to pay this amount, and "acted as legal counsel of record for Plaintiff" by filing a motion to modify Plaintiff's child support payments. Compl. ¶¶ 9, 11.
At the hearing to modify child support payments in July 2009, the family court ordered Plaintiff to file a new Financial Income and Expense Declaration and continued the matter to October 22, 2009. Compl. ¶ 12. Plaintiff alleges that DCSS failed to "advise Plaintiff of this Court Order" or "me[e]t or confer or assist Plaintiff with the preparation and/or the filing of a new Declaration for the October 22, 2009 hearing." Compl. ¶¶ 14-15. After Plaintiff failed to file the required documents, and neither DCSS nor Plaintiff appeared at the hearing on October 22, 2009, the motion to modify payments was removed from the court calendar. Compl. ¶ 16. Child support continued to accrue at the established level and, as of December 2010, was in excess of $110, 000. Compl. ¶ 17.
On December 30, 2009, Plaintiff retained Attorney Sean Gjerde ("Defendant Gjerde") to file a Petition in bankruptcy court on his behalf. Compl. ¶ 19. This Petition was dismissed and re-filed on numerous occasions, and Defendant Gjerde's representation of Plaintiff is the subject matter of Plaintiff's third through seventh causes of action. However, as Defendants' Motion to Dismiss only addresses Plaintiff's first and second causes of action, the facts of Defendant Gjerde's representation are not relevant and are not summarized here.
In February 2010, DCSS filed a contempt petition against Plaintiff, alleging that Plaintiff willfully failed to pay child support. Compl. ¶ 24. Plaintiff retained Defendant Gjerde to represent him in the family law matter. Compl. ¶ 25. On December 8, 2010, Plaintiff was arraigned on the contempt matter and trial was set for February 7, 2011. Compl. ¶ 34. Plaintiff did not appear for trial, although Defendant Gjerde did appear. Compl. ¶¶ 35, 42. As a result of Plaintiff's non-appearance on February 7, 2011, the court ordered that Plaintiff be incarcerated in the Sacramento County Jail for 55 days. Compl. ¶ 42.
The following day, on February 8, 2011, Plaintiff appeared in court because he mistakenly believed that trial was set for that date. Compl. ¶ 47. Plaintiff was immediately taken into custody, and was booked into the Sacramento County Main Jail. Id . Plaintiff alleges that he was "compelled to live under oppressive conditions which violated his civil rights." Compl. ¶ 49. Plaintiff alleges that he was housed in a unit "typically used to house gang members, repeat felons, those accused of serious felony crimes, suicidal inmates, and those being processed." Compl. ¶ 62. Plaintiff further alleges that he was only permitted to shower twice during his incarceration and was required to remain in his cell at all times, with the exception of four "recreation" occasions. Compl. ¶¶ 64-65. He had no television or radio privileges and "shared his windowless cell with bags of garbage... and sometimes another inmate." Compl. ¶ 66. Plaintiff alleges that he was incarcerated under "inhumane conditions" that "fell below the standard of care for inmates according to [Defendant Jones'] published statement of standards." Compl. ¶¶ 77-78. Plaintiff states that, during his incarceration, he "filed a Petition for a Writ of Habeas Corpus" and "presented a Request for a Stay of sentence pending resolution of his Habeas Petition, " but was never heard on these requests. Compl. ¶¶ 68, 69, 73. On March 5, 2011, Plaintiff was released from custody. Compl. ¶ 74.
On March 7, 2012, Plaintiff filed the Complaint (Doc. #1) in Sacramento County Superior Court. The case was susequently removed to this Court by Defendants on August 22, 2013. Plaintiff's Complaint includes the following causes of action: (1) Malpractice against Defendant County (erroneously sued as Department of Child Support Services); (2) "Negligence and Violation of Civil Rights" against Defendant Jones; (3) Malpractice against Defendant Gjerde for his representation of Plaintiff in the family law matter; (4) Malpractice against Defendant Gjerde for failure to keep his client advised; (5) Malpractice against Defendant Gjerde for the Plaintiff's loss of $70, 000 from Home Depot; (6) Malpractice against Defendant Gjerde for Plaintiff's loss of business, personal assets, and home; and (7) "Fraud and Deceit/False Promise" against Defendant Gjerde.
This Court has original jurisdiction under 28 U.S.C. § 1331 because Plaintiff has asserted a claim for relief under 42 U.S.C. § 1983 for violation of his civil rights under the Eighth Amendment of the United States Constitution.
A. Legal Standard
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). To survive a motion to dismiss a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 556 U.S. 662, 570 (2007). In considering a motion to dismiss, a district court must accept all the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer , 468 U.S. 183 (1984); Cruz v. Beto , 405 U.S. 319, 322 (1972). "First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must sufficiently allege underlying facts to give fair notice and enable the opposing party to defend itself effectively." Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 , 182 L.Ed.2d 882 (U.S. 2012). "Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Id . Assertions that are mere "legal conclusions" are therefore not entitled to the presumption of truth. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Dismissal is appropriate when a plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department , 901 F.2d 696, 699 (9th Cir. 1990).
Upon granting a motion to dismiss for failure to state a claim, a court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear... that the complaint could not be saved by ...