United States District Court, N.D. California
ORDER GRANTING IFP APPLICATION, DISMISSING AMENDED
COMPLAINT, AND DENYING MOTIONS FOR APPOINTMENT OF COUNSEL RE:
DKT. NOS. 6, 8, 11, 12
ILLSTON UNITED STATES DISTRICT JUDGE
Melissa Barnett is representing herself pro se. The
Court previously denied plaintiff's application to
proceed in forma pauperis (IFP) as incomplete, denied the
motion for appointment of counsel, and dismissed the
complaint with leave to amend. Dkt. No. 5. Plaintiff has now
filed an amended application to proceed IFP, two amended
motions for appointment of counsel, and an Amended Complaint.
Dkt. Nos. 6, 8, 11, 12.
reviewed plaintiff's amended IFP application, the Court
determines that plaintiff has met the standard for proceeding
IFP and GRANTS the application. See Dkt. No. 6.
However, the Court further finds that the Amended Complaint
fails to state a claim for which relief can be granted. For
the reasons stated below, the Court DISMISSES the Amended
Complaint without leave to amend and DENIES plaintiff's
motions to appoint counsel.
purposes of reviewing the sufficiency of plaintiff's
Amended Complaint, the Court treats all of the allegations in
the Amended Complaint as true. The events that led to this
lawsuit largely arise from plaintiff's dissolution
proceedings against her ex-husband, John Heflebower, and the
discrimination plaintiff alleged she experienced in the court
proceedings that followed.Heflebower was emotionally, financially,
sexually, and physically abusive to plaintiff. Dkt. No. 12,
Amended Complaint (“AC”) at 25. Heflebower was
also emotionally abusive to plaintiff's
filed for dissolution in 2005. Id. Judge Francisca
Tisher of Napa County Superior Court awarded partial custody
to Heflebower. Id. In 2006, plaintiff filed for
a restraining order, which Judge Michael Williams denied.
Id. Not long after, “stay away orders which
applied to both parties” were issued. Id. at
25-26. In 2006, the divorce was finalized, but Heflebower
“continue[d] to use the court to harm Barnett . . .,
filing frivolous and fraudulent claims, each time gaining
more time with [their] child, getting contempt charges[, ]
etc.” Id. at 26. Plaintiff had at least three
different attorneys through these proceedings: James Jones,
Anne Holland, and Kathleen Smith. See Id. at 26-27.
In or around 2009, Judge Mark Boesnecker awarded Heflebower
full custody, after a hearing in which plaintiff was not
allowed to cross-examine minor's counsel Ann Laning.
Id. at 27. Plaintiff had visitation rights every
other weekend. Id. She filed for reconsideration and
Judge Diane Price refused her request. Id. In April
2010, plaintiff was put on supervised visitation until the
next court hearing in October 2010. Id. at 27-28. At
some point after October 2010 the Family Court ordered no
contact between plaintiff and the child. Id. at 28.
“[T]his order has continued through 2017.”
Id. Plaintiff has “tried returning to court
several times with the same outcome.” Id.
the no-contact order, Heflebower was still
“allowing” contact between plaintiff and the
child. Id. In 2014, “S” accidentally ate
a marijuana candy bar from the father's freezer.
Id. Plaintiff took “S” to the emergency
room for treatment. The doctor called Child Protective
Services “and spoke with mother in a disparaging way
both infront of the child and staff.” Id.
Following this incident, the father
“‘allowed' minor plaintiff to return to
mother[']s home.” Id. The following week,
he filed a kidnapping report. When plaintiff voluntarily went
to the St. Helena Police Department to speak with them, she
“was detained and assaulted by Police officer Biden and
Police Chief Ruben.” Id. The District
Attorney's office “pressed charges against both
Heflebower and Barnett, offering a plea deal to Heflebower
that included filing a Domestic Violence Restraining
Order.” Id. When plaintiff, unaware of the
filing, violated the order, she was charged with five counts.
Id. The Public Defender's office “was
disparaging and failed to protect her rights[, ] acting both
unethically and unprofessionally.” Id.
September 22, 2017, plaintiff filed this lawsuit against
twenty-four defendants, seeking relief under (1) Titles II
and III of the Americans with Disabilities Act
(“ADA”) and (2) Section 504 of the Rehabilitation
Act. Dkt. No. 1. Reviewing the complaint under 28 U.S.C.
§ 1915(e), the Court dismissed the complaint with leave
to amend and instructed plaintiff to “describe[e] what
events plaintiff is challenging as unlawful, when the events
occurred, and which defendants are alleged to have committed
the acts.” Dkt. No. 5 at 5. The Court also cautioned
that some of the defendants may be immune from liability.
Id. at 3. The Court denied plaintiff's motion
for appointment of counsel without prejudice. Id. at
filed a partial amended complaint on October 23, 2017, and
requested an extension of time to complete her amendment. The
Court granted plaintiff's motion for an extension of time
and plaintiff filed the Amended Complaint, which is now the
operative complaint in this case, on November 27, 2017. Dkt.
Nos. 10, 11. The sixty page Amended Complaint adds a third
claim for relief for “Sex Discrimination Violations of
State Constitution.” AC at 50. Plaintiff seeks damages
in excess of $17 million each for her and for “S,
” civil penalties, declaratory and injunctive relief.
Id. at 58-59. Plaintiff sues thirty-one defendants:
Attorney General Xavier Becerra, Chief Justice of the
California Supreme Court Tani Cantil-Sakauye, six judges or
commissioners of Napa County Superior Court, the Napa County
District Attorney, the Napa County Public Defender, the Napa
County Department of Health and Human Services, St. Helena
Hospital, the St. Helena Police Department, the St. Helena
Unified School District, the Napa County Bar Association,
Napa Emergency Women's Services, Cope Family Services,
independent mental health provider Doris Pick, six attorneys,
Woodland Star Charter School, Merrill Lynch, Napa Legal Aid
Services, Family Court Services, Association of Family and
Conciliation Courts (AFCC), AFCC California Chapter, and
Senator Kamala Harris. AC at 1-2, 10-19.
has also filed an amended IFP application and two amended
motions to appoint counsel. Dkt. Nos. 6, 8, 12.
statute that authorizes courts to allow lawsuits to proceed
without prepayment of the filing fees also requires the Court
to “dismiss the case at any time if the court
determines that - . . . the action or appeal - (i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). For purposes of 28 U.S.C. § 1915,
a frivolous claim is one that lacks an arguable basis in
either law or fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). To state a claim for relief, the complaint
must contain “a short and plain statement showing that
the pleader is entitled to relief[.]” Fed.R.Civ.P.
8(a)(2). The plaintiff must allege “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
Ninth Circuit, courts “construe pro se filings
liberally when evaluating them under Iqbal. While
the standard is higher, our ‘obligation' remains,
‘where the petition is pro se, particularly in
civil rights cases, to construe the pleadings liberally and
to afford the petitioner the benefit of any
doubt.'” Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010) (quoting Bretz v. Kelman, 773,
F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc)). However, a
court will not “supply essential elements of the claim
that were not initially pled.” Ivey v. Bd. of
Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th
Cir. 1982). The district court must provide the pro
se plaintiff notice of the deficiencies of his or her
complaint prior to ...