Opinion
Case No. 05 CV 1159 JM (NLS).
March 7, 2006
Plaintiffs, a mother and daughter proceeding pro se, have submitted a civil rights complaint, pursuant to 42 U.S.C. § 1983, as well as under Title II of the American with Disabilities Act, 42 U.S.C. § 12101 et seq (the "ADA"), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Plaintiffs are seeking declaratory and injunctive relief. On June 17, 2005, this Court granted Plaintiffs In Forma Pauperis ("IFP") status, and dismissed the complaint without prejudice for failure to state a claim after conducting the initial screening mandated by 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiffs filed a First Amended Complaint and Second Amended Complaint, both of which were dismissed sua sponte for failure to state a claim. On February 1, 2006, Plaintiffs submitted a Third Amended Complaint.
Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)
A complaint filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent it fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). As currently pleaded, it appears that the Third Amended Complaint is still subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state claims upon which relief may be granted.
The first cause of action appears to be brought under 42 U.S.C. § 1983, and alleges violations of Plaintiffs' rights under the First, Fifth, Eighth, and Fourteenth Amendments. Section 1983 provides a remedy for deprivations of an individual's constitutional or federal statutory rights by a person acting under color of state law. 42 U.S.C. § 1983 (2005). It is not clear, though, what right has been denied to Plaintiffs. The gravamen of the complaint appears to be a hearing in state court in either 2000 or 2001. Plaintiffs allege that certain Defendants submitted false reports at this hearing, causing Plaintiffs to be separated for a period of time. However, it appears that Plaintiffs had already been separated since the 1990s.
If Plaintiffs are alleging that Defendants have carried out their investigations improperly, this allegation is not actionable under § 1983. See Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir. 2001) (en banc) (holding that there is no constitutional due process right to have an investigation of child sexual abuse carried out in a particular manner).
If Plaintiffs believe they were subject to racial discrimination during their separation, Plaintiffs have not alleged that they were deprived of a constitutional or statutory right because of their race, nor have they alleged facts to support how the racial discrimination occurred. Similarly, if Plaintiffs believe they were subject to discrimination because of their disabilities, they have not alleged that they were deprived of a constitutional or statutory right because of their disability, nor have they alleged facts to support how the discrimination occurred.
Finally, actions under § 1983 are subject to the statute of limitations applicable to personal injury claims in the state in which the alleged injury took place. See Wilson v. Garcia, 471 U.S. 261, 276 (1985). In California, the applicable statute of limitations is two years. Cal. Code Civ. Proc. § 335.1 (West Supp. 2005). Accordingly, if Plaintiffs' claim is that they were denied due process at the state court hearing in 2000 or 2001, Plaintiffs' claim is barred by the statute of limitations. If Plaintiffs are asserting their claim under a theory that their separation constitutes a "continuing wrong," Plaintiffs have not alleged how their separation is a deprivation of a constitutional or statutory right. See Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). Plaintiffs have not stated cognizable claims under the First, Fifth, or Eighth Amendments.
Plaintiffs' second cause of action is brought under 42 U.S.C. § 2000d and alleges that "defendants had assisted in the carrying on and continue to assist in the carrying on of a racially discriminatory public special children service." Third Am. Compl. ¶ 47. Plaintiffs identify themselves as African-American, and the complaint details the strained relationships between Plaintiffs and the various social workers, but there are no factual allegations that Plaintiffs were deprived of access to services or subjected to discrimination because of their race.
Similarly, the third and fourth causes of action are based on rights under the American with Disabilities Act, 42 U.S.C. § 12131 et seq. Plaintiffs have alleged that they both suffer from mental disabilities. However, there are no factual allegations that either of them suffered discrimination because of their respective disabilities.
Conclusion and Order
Accordingly, IT IS HEREBY ORDERED that the case is DISMISSED without prejudice, and Plaintiff is granted 60 days in which to submit a fourth amended complaint that states a claim within the jurisdiction of this Court. If Plaintiff chooses to file a fourth amended complaint, she must attach a copy of this order granting IFP status.
IT IS SO ORDERED.