United States District Court, N.D. California
SECTION 1915 REVIEW AND ORDER DENYING MOTION TO EXPEDITE
JOSEPH C. SPERO, Magistrate Judge.
Plaintiff Michael Geary Wilson brings this pro se action against the Florida Department of Revenue ("FDOR"), the California Health and Human Services Agency ("CHHS"), the County of Contra Costa ("Contra Costa"), four Contra Costa employees in their official and individual capacities, and John Does 1-45. On November 10, 2014 he filed a First Amended Complaint, which is now the operative complaint in the action. Having previously granted Plaintiff's Application to Proceed in Forma Pauperis, the Court now considers whether Plaintiff's Complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B), which requires dismissal of an in forma pauperis complaint that is (1) frivolous or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. See Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). Plaintiff has consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Court dismisses Plaintiff's complaint in part with leave to amend. The Case Management Conference set for January 23, 2015 at 2:00 p.m. is vacated.
II. THE AMENDED COMPLAINT
In the First Amended Complaint ("FAC"), Plaintiff asserts claims relating to efforts to collect child support payments from him by FDOR and CHHS after his parental rights were allegedly terminated by a Florida Court on June 13, 2011. He also asserts claims based on allegations that he was prevented from entering the office of Contra Costa's Department of Child Support Services ("DCSS") on August 19, 2014 and has been excluded from that office since that date. Plaintiff's factual allegations are as follows.
Plaintiff alleges that on June 13, 2011, a Florida court ("the Florida Court") entered a Termination of Parental Rights order ("Florida Order") against Plaintiff as to his only child, "G.C.W., " who is a minor. FAC ¶ 8. The Florida Order is attached to the FAC as an exhibit and reflects that a Florida Superior Court modified its previous parenting plan to give Plaintiff's former wife "sole parental responsibility for the parties' minor child" and to prohibit time-sharing of any kind by Plaintiff with the minor child "until further order of the Court." Id., Appendix A. Plaintiff further alleges that on October 24, 2011, a California court ("the California Court") issued an order ("California Order") confirming the enforceability of the Florida Order. Id. ¶ 19. That order also is attached to the FAC and reflects that on October 24, 2011, the Superior Court for the County of Alameda issued a Minute Order denying Plaintiff's petition to enforce an out-of-state custody determination. Id., Appendix A. The court stated that Plaintiff had provided a July 13, 2009 hearing disposition form rather than an actual custody order, and that a 2009 custody order had been modified by the Florida Order discussed above. Id.
Plaintiff contends his obligation to provide child support ended when the Florida Court modified the custody order for his minor child giving all parental responsibilities to his former wife. Id., ¶ 20. He further alleges that "[s]ince about April 2012, Defendant FDOR, by and through its unidentified employees and agents, has stolen thousands and thousands of dollars from PLAINTIFF, committed mail and/or wire fraud against him, defamed him and intentionally interfered in his business relationships under the pretext of collecting child support payments, which were not and are not due from PLAINTIFF." Id. ¶ 21. In particular, he alleges that Defendants FDOR through "unidentified employees and agents" interfered with his contractual relationship with his former employer, Kaiser Foundation Health Plan, Inc. ("Kaiser") by attempting to collect child support payments. Id. ¶¶ 21-24. He further alleges that FDOR, CHHS, and Contra Costa, through their employees and agents, including Defendants Dippel, Linnel and Self, interfered with his contractual relationship with Bank of America by causing an "Order to Withhold" to be placed on two bank accounts held by Plaintiff with Bank of America. Id. ¶ 28.
Plaintiff alleges that "[o]n or about July 21, 2014, in a face-to-face conversation that was on the record, Defendant LINNELL expressed her and Defendant SELF'S mutual understanding to PLAINTIFF that none of his parental rights regarding G.C.W. survived after June 13, 2011 when the Florida TPR order was entered." Id. ¶ 26. He further alleges that "[o]n or about August 7, 2014, Defendant LINNELL reconfirmed in writing the aforementioned understanding regarding the Florida TPR order." Id. ¶ 29. Plaintiff also alleges that "certain employees of Defendant FDOR" knew about Plaintiff's relationship with Kaiser, id. ¶ 23, and that certain employees of CHHS and Contra Costa, including Defendants Dippel, Linnel and Self, knew or should have known of Plaintiff's contractual relationship with Bank of America. Id. ¶ 27.
Plaintiff alleges that "[o]n or about August 19, 2014, PLAINTIFF attempted to lawfully exercise his constitutionally protected rights to access 50 Douglas Drive, Suite 100, in Martinez, California, which is a public area of a public building, during regular business hours, in order to observe, gather information about, scrutinize and criticize certain governmental activities occurring there, and petition Defendant CONTRA COSTA'S DCSS for redress of grievances. In retaliation for and as a prior restraint of engaging in those protected activities, Defendant CARDENAS blocked PLAINTIFF'S access to that public area of that public building. According to other DCSS employees' responses to PLAINTIFF'S repeated inquiries thereafter, Defendant DIPPEL ratified the foregoing actions by Defendant CARDENAS. As a direct result, the Defendants have kept PLAINTIFF from accessing Defendant CONTRA COSTA'S DCSS office for any of the foregoing lawful purposes ever since on or about August 19, 2014." Id. ¶ 31.
Plaintiff alleges that CHHS and Contra Costa, by and through its employees, including Defendants Dippel, Linnel and Self, have refused his "multiple demands, the most recent of which occurred on November 3, 2014, to immediately correct his balance, stop their collection efforts against him, release their unlawful withholding of his money and remove him from their child support case(s) regarding G.C.W." Id. ¶33.
Plaintiff alleges that on November 4, 2014, G.C.W.s "alienating mother" "caused a message to be sent from the email address for G.C.W. that PLAINTIFF created in early 2009." Id. ¶ 34. The message, in redacted form, is attached to the FAC as Appendix B. The message is addressed to "daddy" and states, inter alia, "I love you so much and hope to see you VERY VERY VERY VERY VERY VERY VERY soon!!!!!!!!!!!!!!!!!!!!!" Id., Appendix B. Plaintiff alleges that G.C.W.'s mother "was either impersonating or using G.C.W. in a blatant attempt to manufacture a further fraudulent basis for the Defendants' wrongdoing that has benefitted her at G.C.W.'S and PLAINTIFF'S expense." Id. ¶ 34.
Plaintiff alleges that Defendants' actions have caused him to "experience symptoms associated with his disabilities, " id. ¶ 38, and that Defendants were aware of his disabilities. Id. ¶¶ 39-41. According to Plaintiff,
He was shocked that the Defendants abused him as they did. As a direct result of the Defendants' misconduct on or about July 21, 2014 and thereafter, PLAINTIFF has suffered emotional distress; he has been preoccupied with the denial of his rights. He has been upset and had trouble sleeping. His health has deteriorated. PLAINTIFF knew he had not violated the law, but he worried that some false charge and/or a conviction on his record would prevent him from vindicating his rights and resuming his career as a leader in his field.
Id. ¶ 32.
Plaintiff alleges that "[o]n information and belief, employees and/or associates of Defendants CHHS and CONTRA COSTA, including Defendants DIPPEL, LINNELL, SELF, knew of PLAINTIFF'S disabilities before July 21, 2014." Id. ¶ 42. He further alleges that "Defendants conspired to chill, frustrate, deny and/or retaliate against PLAINTIFF'S exercise of his rights to protect himself from fraud, extortion, speak and gather information about governmental activities free from prior restraint and viewpoint and/or other discrimination, petition the government for redress of grievances, due process and equal protection under law." Id. ¶ 43.
Plaintiff further alleges that the " Monell Defendants had policies and/or customs of indifference to misconduct by their employees by failing to properly investigate complaints of misconduct and to discipline them." Id. ¶ 47. According to Plaintiff, the " Monell Defendants also had policies and/or customs of tolerating a code of silence'" and had customs of "making it difficult for citizens to file complaints about the conduct of its employees, " "breaching the confidentiality of citizens' confidential complaints[, ]" "enabling retaliation against and intimidation of citizens who file complaints[, ]" and "performing negligent and/or sham investigations of citizens' complaints." Id. ¶¶ 48-49.
Plaintiff asserts the following claims in his FAC:
Claim One: Violations of 42 U.S.C. § 1983, against all Individual Defendants based on alleged violation of Plaintiffs "rights to freedom of speech (e.g., protections against viewpoint discrimination, protection of gathering and recording information about government activities, etc.) and to petition the government for redress of grievances under the First Amendment to the United States Constitution, to freedom from threatened arrest, seizure and search without probable cause under the Fourth Amendment to the United States Constitution, to freedom from deprivation of liberty and property without due process of law, including such deprivation by means of threatened false arrest, under the Fifth Amendment to the United States Constitution as applied under the Fourteenth Amendment, and his fundamental liberty interest in the care, custody, and management of his child, which is protected by the Fourteenth Amendment." Id. ¶ 60. Plaintiff also alleges as part of this claim that: Defendants "perpetrated crimes against PLAINTIFF under 18 U.S.C. § 241: CONSPIRACY AGAINST RIGHTS; 18 U.S.C. § 242: DEPRIVATION OF RIGHTS UNDER COLOR OF LAW; 18 U.S.C. § 371: ONSPIRACY; 18 U.S.C. § 1503(A): OBSTRUCTION OF JUSTICE; 18 U.S.C. § 1512: TAMPERING WITH A WITNESS, VICTIM, OR AN INFORMANT; 18 U.S.C. § 1513: RETALIATING AGAINST A WITNESS OR VICTIM; and 18 U.S.C. § 2(A): AIDING AND ABETTING. They also committed civil wrongdoing against PLAINTIFF under 42 U.S.C. § 12132: DISCRIMINATION and other provisions of the Americans with Disabilities Act (ADA) as amended." Id.
Claim Two: Violations of Bane Act, Cal. Civ. Code § 52.1, against all Individual Defendants, based on allegation that Defendants "interfere[ed] with and/or attempt[ed] to interfere with PLAINTIFF'S exercise and enjoyment of his rights as secured by the United States Constitution, California Constitution and common law and statutory rights, including protection from discrimination on the basis of his disabilities or economic status and protection from the following state crimes: CPC § 518, EXTORTION; CPC § 136.1(b)(1); CPC §§ 136.1(c)(1), 136.1(c)(2)AND/OR 137(b) or (c): INFLUENCING, INTIMIDATING OR THREATENING A WITNESS, VICTIM, OR AN INFORMANT; CPC § 182(a)(1), (2) & (5): CONSPIRACY." Id. ¶ 64.
Claim Three: Violations of Unruh Civil Rights Act, Cal. Civ. Code §§ 51, 52, against all Individual Defendants, based on allegation that "the Individual Defendants "interfere[ed] with and or attempt[ed] to interfere with PLAINTIFF'S exercise and enjoyment of his rights as secured by the United States Constitution, California Constitution and common law and statutory rights, including protection from discrimination on the basis of his disabilities or economic status and protection from the following state crimes: CPC § 518, EXTORTION; CPC § 136.1(b)(1); CPC §§ 136.1(c)(1), 136.1(c)(2)AND/OR 137(b) or (c): INFLUENCING, INTIMIDATING OR THREATENING A WITNESS, VICTIM, OR AN INFORMANT; CPC § 182(a)(1), (2) & (5): CONSPIRACY." Id. ¶ 68.
Claim Four: Intentional Infliction of Emotional Distress, against all Individual Defendants, based on allegation that Defendants engaged in outrageous acts or omissions intentionally or in reckless disregard of the probability of causing Plaintiff emotional distress. Id. ¶¶ 70-74.
Claim Five: Intentional Interference with Contractual Relations - Kaiser, against all Individual Defendants Employed By Defendant FDOR.
Claim Six: Intentional Interference with Contractual Relations - Bank of America, against all Individual Defendants Employed By Defendants CHHS and CONTRA COSTA.
Claim Seven: Fraud, against all individual Defendants Individual Defendants based on allegations that they and their agents "have knowingly misrepresented, omitted, and/or concealed material facts in their reports, investigations and representations before and/or on behalf of California courts, and in their communications to PLAINTIFF." Id., ¶ 85. According to Plaintiff, "[t]hese false representations are detailed throughout this Complaint and include falsified reports, the true authorship of them, the denial of any improper contact with each other, the supposed independence and neutrality of Defendants and their reports, investigations and representations, and the fraudulent endorsements of those reports, investigations and representations." Id. Plaintiff further alleges that Defendants "made these misrepresentations and/or omissions in their reports, sham investigations and representations to California courts with the intent of obtaining favorable rulings and/or actions from them, enabling the Monell Defendants employees to harass, intimidate and otherwise harm PLAINTIFF and his interests, and to propagate false and defamatory information about PLAINTIFF to court staff, other employees of the Monell Defendants, private individuals and corporations in contractual relationships with PLAINTIFF and members of the public." Id. ¶ 87.
Claim Eight: Defamation, against all Individual Defendants.
Claim Nine: Negligence, against all Individual Defendants
Claim Ten: Trespass to Chattels, against all Defendants, based on allegations that they have interfered with Plaintiff's use of his property and harmed his good ...