United States District Court, N.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT DOCKET NO.
CHEN-UNITED STATES DISTRICT JUDGE
Tanya Nemcik, proceeding pro se, initiated this lawsuit in
September 2019. Judge Spero granted Ms. Nemcik's
application to proceed in forma pauperis (“IFP”)
but recommended that her complaint be dismissed for lack of
subject matter jurisdiction. Judge Spero also recommended
that Ms. Nemcik be given leave to amend. The Court adopted
the report and recommendation and gave Ms. Nemcik an
opportunity to file an amended complaint. Ms. Nemcik has now
done so, and, because of Ms. Nemcik's IFP status, the
Court now reviews the pleading pursuant to 28 U.S.C. §
1915(e). For the reasons discussed below, the Court concludes
that Ms. Nemcik has failed to state a claim for relief and
therefore dismisses the first amended complaint.
case, like several others filed in this District, relates to
custody proceedings in state court. See Nemcik v.
Mills, No. C-16-0322 BLJ (N.D. Cal.); Nemcik v.
Contra Costa Superior Court, No. C-16-1423 CRB (N.D.
Cal.); Nemcik v. San Mateo Police Dep't, No.
C-16-2777 JD (N.D. Cal.); Nemcik v. Fannin, No.
C-18-5120 JST (N.D. Cal.). Here, Ms. Nemcik has sued Santa
Clara County and its Department of Family &
Children's Services (“DFCS”); the City of
Palo Alto and its Police Department; and Brian Krippendorf
(the father of her children). According to Ms. Nemcik,
Defendants have violated 42 U.S.C. § 1983 in multiple
First Cause of Action
first cause of action, Ms. Nemcik's main claim is that
the County and DFCS did not adequately investigate issues
related to her children - including one child's medical
health - and suggests that there was inadequate training of
social workers. The Court dismisses this cause of action
based on failure to state a claim for relief. Ms. Nemcik has
not identified any federal right that has been violated,
which is a necessary predicate for a § 1983 claim.
See Galen v. Cty. of L.A., 468 F.3d 563, 572 (9th
Cir. 2006) (noting that “[s]ection 1983 requires
[plaintiff] to demonstrate a violation of federal law, not
state law”). There is also a question as to whether Ms.
Nemcik has standing to assert the claim; arguably, any harm
was done to her son and not to her specifically. To the
extent Ms. Nemcik claims to be bringing a claim on behalf of
her son, she does not appear to be his general guardian, nor
has she been appointed his guardian ad litem. See
Fed. R. Civ. P. 17(c) (providing that a general guardian
“may sue . . . on behalf of a minor”; also
providing that “[a] minor . . . who does not have a
duly appointed representative may sue by a next friend or by
a guardian ad litem”). And even if she had, a lawyer
would still be needed to represent her son. See Johns v.
Cty. of San Diego, 114 F.3d 874, 877 (9th Cir. 1997)
(“hold[ing] that a parent or guardian cannot bring an
action on behalf of a minor child without retaining a
Second Cause of Action
second cause of action, Ms. Nemcik asserts that both (1) the
County and DFCS and (2) Mr. Krippendorf (the father of her
children) have defamed her. Even if the Court were to assume
a federal right was at issue here,  the cause of action still
fails to state a claim for relief.
as to the County and DFCS, Ms. Nemcik claims that they
“falsely wrote reports that Plaintiff was accusing
Brian Krippendorf of sexual abuse.” FAC ¶ 30.
According to Ms. Nemcik, it was actually a third party (a
therapist named Barbara Peppin) who accused Mr. Krippendorf
of sexual abuse. See FAC ¶ 12. But based on the
Court's review of Ms. Nemcik's supporting documents,
the County or DFCS itself did not contend Ms. Nemcik
had made a claim of sexual abuse. Rather, at most, the County
or DFCS simply noted that another person had
reported abuse and that person claimed Ms. Nemcik
had implicated Mr. Krippendorf. The following is the
statement that the County or DFCS provided with respect to a
child welfare referral that had been made in September 2009:
Sexual abuse of [T.K.], and at risk, sibling abused,
regarding [C.K.], by Brian Krippendorf was evaluated out. It
was reported that Ms. Nemcik witnessed [T.K.] trying to put a
toy in [C.K.'s] “butt.” The RP
[Reporting Party] did not know who the perpetrator was, but
stated that Ms. Nemcik believed it was Mr.
Krippendorf as [T.K.] pulled down his pants and
started “playing with his penis when he saw” Mr.
Krippendorf. The RP stated that when specifically asked if
anyone touched his private area, ” [T.K.] did not say
anything; he was three at the time. The referral was
evaluated out as Ms. Nemcik had obtained “a 7 day
temporary custody” order and the incident was being
investigated by the police.
Pl.'s FAC, Ex. N at 298 (emphasis added).
as to Mr. Krippendorf, Judge Spero previously explained that
he is a private actor and thus cannot be sued for a violation
of § 1983 absent, e.g., joint action with the
state or its agents. See Docket No. 5 (R&R at
4). Here, Ms. Nemcik has not made any claim of collusion
between the County/DFCS and Mr. Krippendorf.
Third Cause of Action
third cause of action, Ms. Nemcik asserts that the City of
Palo Alto and the City Police Department have defamed her.
The Court dismisses this cause of action because, even if a
federal right at issue here, the allegations that these
defendants made false reports is entirely conclusory. Cf.
Nemcik v. San Mateo Police Department, No. C-16-2777 JD
(N.D. Cal.) (Docket No. 10) (noting Ms. Nemcik's
allegation that “a San Mateo police ...