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Nemcik v. Krippendorf

United States District Court, N.D. California

November 7, 2019

TANYA NEMCIK, Plaintiff,
v.
BRIAN KRIPPENDORF, et al., Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT DOCKET NO. 11

          EDMM. CHEN-UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. DISCUSSION

         This 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 ways.

         A. First Cause of Action

         In the 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 lawyer”).

         B. Second Cause of Action

         In the 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, [1] the cause of action still fails to state a claim for relief.

         First, 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).

         Second, 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.

         C. Third Cause of Action

         In the 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 ...


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