Opinion
CV-22-00009-PHX-GMS
10-31-2022
Michael Allen Robertson, Plaintiff, v. Lisa Millett, et al., Defendants.
ORDER
G. Murry Snow, Chief United States District Judge
Pending before the Court is Michael Robertson's (“Plaintiff”) Motion for Expedited Discovery (Doc. 8), Motion to Allow Second Amended Complaint Before Final Screening & Order of the Court (Doc. 9), Motion for Screening of Amended Complaint (Doc. 10) and Lodged Second Amended Complaint (Doc. 11). For the reasons below, Plaintiff's Motion for Expedited Discovery is denied. All other Motions are granted. Plaintiff's Second Amended Complaint (lodged at Doc. 11) is dismissed in part.
BACKGROUND
Plaintiff filed his Complaint alleging claims under the Americans with Disabilities Act (“ADA”) and 42 U.S.C. § 1983 against the State of Arizona, the Arizona Department of Child Safety (“DCS”), and various state employees on January 4, 2022. Plaintiff alleged that these Defendants violated his civil rights and rights under the ADA in a dependency proceeding beginning in 2018. Plaintiff simultaneously filed an Application for Leave to Proceed In Forma Pauperis. On February 8, 2022, the Court granted Plaintiff's Application but dismissed his Complaint on screening. The Court found that Defendants were immune from Plaintiff's § 1983 claims and that Plaintiff had failed to specifically identify the conduct of individual Defendants to support his ADA claims. The Court gave Plaintiff thirty days to file an amended complaint, which Plaintiff did on March 10, 2022, when he simultaneously filed a Motion for Expedited Discovery. A month later, Plaintiff filed a Motion for Leave to file another amended complaint and requested screening of that Second Amended Complaint (“SAC”), which is lodged at Doc. 11. The Court will now rule on the Motion for Leave, Motion for Expedited Discovery, and Motion for Screening.
DISCUSSION
I. Motion for Leave
Plaintiff first requests that he be granted leave to amend his Amended Complaint (Doc. 6). He has lodged a SAC at Doc. 11. Having considered Plaintiff's SAC, the Court will permit it to be filed. This is Plaintiff's second request to amend, and no Defendant has yet been served. No prejudice will result. As such, Plaintiff's SAC (lodged at Doc. 11) may be filed on the public docket.
II. Motion for Screening of Second Amended Complaint
Because the Court will permit Plaintiff to file his SAC, his Motion for Screening (Doc. 10) will be granted. The Court screens Plaintiff's SAC below.
Congress provided with respect to in forma pauperis cases that a district court “shall dismiss the case at any time if the court determines” that the “allegation of poverty is untrue” or that the “action or appeal” is “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). While much of § 1915 outlines how prisoners can file proceedings in forma pauperis, § 1915(e) applies to all in forma pauperis proceedings, not just those filed by prisoners. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). “It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim,” id., or if it is frivolous or malicious. § 1915(e)(2). If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before the dismissal of the action. See Lopez, 203 F.3d at 1127-29.
The screening standard is identical to that of Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When analyzing a complaint for failure to state a claim, “allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).
A. Section 1983
Plaintiff first alleges several violations 42 U.S. § 1983. The Court considers each in turn.
1. Suppression of Mandatory Reporters and Filing of False Pleadings
Count I is a § 1983 claim alleging that Defendants Lisa Millett and Joelle Higby violated Plaintiff's due process rights by suppressing evidence from mandatory reporter witnesses that would have supported his claim and by filing fraudulent pleadings in the underlying dependency action. (Doc. 11 at 20-21.) There is no clear requirement that exculpatory evidence must be disclosed in a dependency action. See Clarke v. Upton, No. CV-F-07-888 OWW/SMS, 2009 WL 1460815, at *18-19 (E.D. Cal. May 26, 2009). Even if there were, however, Plaintiff has failed to plead a constitutional violation. Plaintiff's main contention seems to be that Defendants Millett and Higby refused to interview witnesses that would have supported his case. But Plaintiff does not actually allege that Defendants kept this information from him or the state court. In fact, Plaintiff seems to have raised this issue with Defendants as early as February 2019, and Plaintiff alleges that his attorney in the dependency action did, in fact, inform the state court of these statements in June 2020. (Doc. 11 at 22, 25.) Plaintiff thus fails to plausibly allege that exculpatory evidence existed and was withheld from either him or the state court. See Patterson v. Miller, 451 F.Supp.3d 1125, 1153-54 (D. Ariz. 2020); Clarke, 2009 WL 1460815, at *18-19. If Plaintiff elects to amend the SAC, he must specifically identify what evidence was withheld from him and the state court, and if he is unaware, why he believes that evidence was unlawfully withheld.
Plaintiff also fails to specify what statements in the pleadings were false and his basis for believing that Defendants Millett and Higby knew they were false. Without such specificity, Plaintiff fails to plausibly allege that either of these Defendants intentionally filed false pleadings to deprive Plaintiff of his children. Little v. Grand Canyon Univ., 516 F.Supp.3d 958, 963 (D. Ariz. 2021) (“[L]egal conclusions couched as factual allegations are not given a presumption of truthfulness.”).
2. Claims of Misrepresentation
Plaintiff asserts several claims arguing that some Defendants submitted false pleadings to the state court in the underlying dependency action in violation of his due process rights. Such claims, if proven, are cognizable under § 1983. Beltran v. Santa Clara Cnty., 514 F.3d 906, 908 (9th Cir. 2008). The issue, then, is whether Plaintiff has adequately pleaded each claim of falsity under Rule 8. The Court considers each below.
Count II alleges that Defendants Millett, Higby, and Allison Botta suppressed Plaintiff's medical marijuana records and fraudulently argued that Plaintiff was an illegal drug user in the underlying dependency action. (Doc. 11 at 26.) Plaintiff alleges that these Defendants knew that Plaintiff was a lawful user of marijuana since 2016 but nevertheless argued to the state court in 2018 that Plaintiff abused drugs. (Doc. 11 at 27.) At this early stage, the Court finds Count II to be sufficient under Rule 8 and will not dismiss it at this time.
For the same reason, the Court will not dismiss Count IV. Count IV alleges that in March 2020, Defendants Millett, Higby, and Botta likewise misrepresented to the state court that police were called on Plaintiff during a parental aid meeting. (Doc. 11 at 34.) Plaintiff alleges that Defendants Millett and Higby were aware of the falsity of these statements in February 2019, when Plaintiff emailed them regarding these allegations. (Doc. 11 at 34.) As such, these Defendants allegedly knew that this assertion was false yet still submitted it to the state court in 2020. The Court will thus not dismiss Count IV.
Count V alleges that Defendants Millett and Higby falsely represented to the state court that Plaintiff “had not participated in the service requirements for family reunification,” when he had in fact done so in April 2018 and July 2019. (Doc. 11 at 35.) Even if such conduct occurred, however, Plaintiff does not specifically allege that either Defendant knew that Plaintiff had indeed completed some of the service requirements. Moreover, Plaintiff alleges that “[e]vidence was provided to the Juvenile Court of the Plaintiff's full participation, with only hours remaining in classes for one of the requirements.” (Doc. 11 at 35.) Thus, even if these Defendants did misrepresent Plaintiff's completion of the service requirements, any prejudice would have been cured by Plaintiff's presentation of contrary evidence. Count V is dismissed. If Plaintiff elects to amend this Count, he must specifically allege the factual basis for his assertion that these Defendants knew that Plaintiff had completed the service requirements.
Count VII alleges that Defendants Millett, Higby, and Eleni Vaita knowingly filed false reports containing the misrepresentation that Plaintiff “caused his children injuries and abuse for 10 years” in order to terminate Plaintiff's visitation rights. (Doc. 11 at 40.) Plaintiff alleges that he informed these Defendants of the falsity of their statements in August and September of 2018, but they continued to make these misrepresentations to the state court through early 2020. (Doc. 11 at 40-41.) Such allegations are sufficient to avoid dismissal at this early stage.
Count VIII alleges that Defendants Higby and Vaita knowingly presented false information to the state court regarding “Plaintiff's SMI adult children.” (Doc. 11 at 43.) Plaintiff mainly alleges that Defendants used the testimony of Plaintiff's children from his first marriage in support of the severance petition, even though this testimony was false. (Doc. 11 at 43.) However, although this testimony is alleged to have contradicted the witnesses' prior testimony, that does not mean the testimony is necessarily false, or that Defendants knew that the testimony was false. Again, Plaintiff alleges that these Defendants knew the testimony was false without specific factual allegations to support this assertion. Such conclusory allegations are not given the presumption of truthfulness. Count VIII is dismissed. If Plaintiff elects to amend this Count, he must allege sufficient facts that demonstrate not only that the abuse allegations were false, but also that these Defendants knew they were false; the mere fact that the testimony contradicted prior testimony is insufficient to plead knowledge.
To the extent Plaintiff attempts to allege that these Defendants are liable because they failed to prosecute these witnesses for false testimony and Amanda Bacolas for filing a false report, Plaintiff's claim is likewise dismissed. Graven v. Arizona, No. CV-16-01249-PHX-GMS, 2016 WL 5251454, at *2 (D. Ariz. Sept. 22, 2016) (“[I]t is axiomatic that ‘criminal prosecutors may claim absolute immunity from damages liability for actions “intimately associated with the judicial phase of the criminal process,” such as the prosecutor's initiation of a prosecution and presentation of the state's case.'” (quoting Torres v. Goddard, 793 F.3d 1046, 1051 (9th Cir. 2015))); Beltran, 514 F.3d at 908 (applying the rule to social workers who exercise “quasi-prosecutorial decisions to institute court dependency proceedings”).
3. Discovery Violations
Count III alleges that Defendants Millett, Higby, Botta, and Vaita refused to disclose certain exculpatory documents in the underlying dependency proceeding in violation of Plaintiff's due process rights. (Doc. 11 at 28.) As indicated above, there is no clear requirement that exculpatory evidence must be disclosed in a dependency action. See Clarke, 2009 WL 1460815, at *18-19. However, assuming such a right exists, Plaintiff has sufficiently stated a claim at this preliminary juncture. Hardwick v. Cnty. of Orange, 844 F.3d 1112, 1115-16 (9th Cir. 2017) (holding that defendants were not entitled to absolute immunity for, among other things, the “repeated suppression of exculpatory evidence”). The test for a due process violation based on the government's failure to disclose exculpatory evidence is as follows: a party “must demonstrate that[] (1) the evidence at issue is favorable, either because it is exculpatory or because it is impeaching; (2) such evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice resulted.” Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006). “Evidence is deemed prejudicial, or material, only if it undermines confidence in the outcome of the trial.” Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002). Here, Plaintiff alleges that these Defendants suppressed various pieces of evidence, including Plaintiff's completion of DCS's Family Preservation Program and “vetting . . . as a fit, safe, and suitable parent of his minor children.” (Doc. 11 at 32.) Assuming this allegation is true, Plaintiff has adequately alleged that these documents were favorable to Plaintiff, were withheld, and could reasonably have affected the outcome of the dependency proceeding. The Court declines to dismiss Count III at this time.
Unlike Count I, Plaintiff does not allege that he was already in possession of such documents.
4. Malicious Prosecution
Count VI alleges that Defendants Higby and Vaita maliciously prosecuted dependency proceedings against Plaintiff in order to avoid civil liability after the Arizona Court of Appeals reinstated Plaintiff's parental rights in January 2020. (Doc. 11 at 36-37.) In the Ninth Circuit, “the general rule is that a claim of malicious prosecution is not cognizable under 42 U.S.C. § 1983 if process is available within the state judicial system to provide a remedy.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). “However, ‘an exception exists to the general rule when a malicious prosecution is conducted with the intent to deprive a person of equal protection of the laws or is otherwise intended to subject a person to a denial of constitutional rights.'” Id. (quoting Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1987)). “Federal courts rely on state common law for elements of malicious prosecution.” Mills v. City of Covina, 921 F.3d 1161, 1169 (9th Cir. 2019); see also Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). In Arizona, malicious prosecution claims in which the underlying proceeding is civil are brought under the common-law tort of wrongful institution of civil proceedings. Chalpin v. Snyder, 220 Ariz. 413, 419 n.5, 207 P.3d 666, 672 n.5 (Ct. App. 2008). To state such a claim, the plaintiff must show that the defendant “(1) instituted a civil action which was (2) motivated by malice, (3) begun [or maintained] without probable cause, (4) terminated in plaintiff's favor and (5) damaged plaintiff.” Id.
Even assuming that Plaintiff's malicious prosecution claim properly falls within § 1983, he fails to allege that the action was terminated in his favor. He instead alleges that he self-severed his parental rights on August 10, 2020 to avoid them “being severed by the Juvenile Court, based on Defendants['] inflammatory, false, and non-evidentiary pleadings.” (Doc. 11 at 19.) As such, Count VI fails to state a claim for malicious prosecution under § 1983 and is thus dismissed. If Plaintiff elects to amend this Count, he must allege that the civil action was terminated in his favor and maintained without probable cause.
B. Americans with Disabilities Act Claims
Plaintiff next alleges various claims against Defendants for violations of the ADA. (Doc. 11 at 54.) A state may be sued under Title II of the ADA. 42 U.S.C. § 12202; see Miller v. Ceres Unified Sch. Dist., 141 F.Supp.3d 1038, 1043 (E.D. Cal. 2015) (collecting cases). To state a claim under Title II,
Although Plaintiff purports to bring “these cla[i]ms” against “officials who acted in their individual capacity, (Doc. 11 at 5), “individual defendants may not be sued in their individual capacities under Title II of the ADA . . . .” Becker v. Oregon, 170 F.Supp.2d 1061, 1066 (D. Or. 2001). Because the Court must construe pro se pleadings liberally, Draper v. Rosario, 836 F.3d 1072, 1080 (9th Cir. 2016), the Court construes the ADA claims to have been brought against the individual defendants in their official capacities. Moreover, some of these claims seem to conflate § 1983 with the ADA. Such conflation is not permissible; Plaintiff's sole remedy for disability discrimination lies with the ADA. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). As such, the Court considers each claim first under the ADA, and if not sufficient, again under § 1983.
a plaintiff must show: (1) he is a “qualified individual with a disability”; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (emphasis omitted) (quoting 42 U.S.C. § 12132).
1. Failure to Train
Count IX alleges that Defendant Mike Faust violated Plaintiff's ADA rights by failing to train DCS employees on ADA accommodations. (Doc. 11 at 50-51.) Although the Ninth Circuit has not explicitly recognized a failure to train claim under the ADA, district courts have found such claims to be cognizable. Reed v. Nelson, No. 2:20-CV-0512-DMC-P, 2021 WL 2417655, at *3-4 (E.D. Cal. June 14, 2021); Est. of Jackson v. City of Modesto, No. 1:21-CV-0415 AWI EPG, 2021 WL 4819604, at *11-12 (E.D. Cal. Oct. 14, 2021). In such cases, the Court applies the Monell framework to ADA failure to train claims: “(1) the existing training program is inadequate in relation to the tasks the particular officers must perform; (2) the failure to train amounts to deliberate indifference to the rights of persons with whom the [employees] came into contact; and (3) the inadequacy of the training actually caused the deprivation of the alleged constitutional right.” Hollandsworth v. City & Cnty. of Honolulu, 440 F.Supp.3d 1163, 1181 (D. Haw. 2020) (citing Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989)); see Reed, 2021 WL 2417655, at *3-4; Est. of Jackson, 2021 WL 4819604, at *11-12. Even so, however, supervisory personnel are generally not liable under § 1983 for the actions of their employees. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, “[a] supervisory official may be held liable under § 1983 only ‘if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.'” Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018) (quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). “[T]he claim that a supervisory official knew of unconstitutional conditions and ‘culpable actions of his subordinates' but failed to act amounts to ‘acquiescence in the unconstitutional conduct of his subordinates' and is ‘sufficient to state a claim of supervisory liability'” under § 1983. Id. (quoting Starr, 652 F.3d at 1208).
Here, Plaintiff alleges that he sent two emails to Defendant Faust to inform him that his employees violated Plaintiff's ADA rights. (Doc. 11 at 51.) He also alleges that his attorney sent Defendant Faust a similar notice through certified mail. (Doc. 11 at 51.) As alleged, Defendant Faust did not respond to any of these correspondences. (Doc. 11 at 51.) Moreover, Plaintiff alleges that if DCS employees had been properly trained in the ADA, his injuries would not have occurred. (Doc. 11 at 52.) These allegations are sufficient to plead, at this early juncture, that Defendant Faust knew of his employees' failure to comply with the ADA but failed to act to correct these violations. The Court will not dismiss Count IX.
2. Discrimination and Failure to Accommodate
Count X alleges that Defendants Millett and Higby ignored Plaintiff's requests for accommodations in violation of the ADA. (Doc. 11 at 54-55.) Plaintiff alleges that he has a severe mental illness and was “acutely symptomatic of his disability” at the time he made his requests. (Doc. 11 at 57.) He also alleges that he missed an important hearing in the underlying dependency proceeding specifically because his requests for accommodations were ignored. (Doc. 11 at 57.) He has thus plausibly alleged that these Defendants violated the ADA. The Court will not dismiss Count X at this time.
Count XI alleges that Defendant Botta instituted the severance petition because of Plaintiff's disability rather than his ability to be a good parent. (Doc. 11 at 58.) He alleges that Defendant Botta made discriminatory remarks in the severance petition, including that people with bipolar disorder are unfit to parent. (Doc. 11 at 60.) He also alleges that Defendant Botta made such remarks even though Plaintiff had repeatedly been vetted and found to be a “competent and caring” parent. (Doc. 11 at 60.) Such facts are sufficient, at this stage, to state a claim that Defendant Botta “otherwise discriminated” against Plaintiff “by reason of his disability.” Weinreich, 114 F.3d at 978. Count XI remains.
Count XII alleges that Defendant Millett's filing of false reports regarding Plaintiff's compliance with DCS's service requirements deprived him of DCS's services by reason of his disability. (Doc. 11 at 62.) In short, he alleges that due to a technical issue of which Defendant Millet was aware as early as March 2019, one of Plaintiff's prescribed medications was not showing up on his drug screens. (Doc. 11 at 61-62.) Despite her awareness, Defendant Millett nevertheless represented to the state court that Plaintiff was not taking his medication in July 2019. (Doc. 11 at 63.) It is unclear whether this claim is brought under the ADA or § 1983: Plaintiff both contends that the false pleadings were discrimination “by reason of his disability” and violations of his “14th Amendment due process rights.” (Doc. 11 at 61.) The Court does not believe that Count XII sufficiently states a claim under the ADA; Plaintiff has failed to allege that Defendant Millett made these false representations because she was motivated by some type of discriminatory animus against Plaintiff's disability. However, the Court finds Count XII to be sufficient under § 1983. Plaintiff alleges that Plaintiff's doctor informed Defendant Millett why Plaintiff's drug screen was defective, and that Defendant Millett acknowledged that the drug screen was “no longer an issue.” (Doc. 11 at 63.) Thus, any subsequent statement to the contrary would have been made knowing that it was false. The Court will not dismiss Count XII to the extent it states a claim under § 1983.
Plaintiff erroneously lists two claims under the heading “Count XII.” The second Count XII beginning at Docket #11 at 65 alleges that Defendant Millett made false representations to the state court regarding Plaintiff's psychiatric records in 2018 and 2019. (Doc. 11 at 65.) Plaintiff contends that Defendant Millett falsely represented to the state court that Plaintiff had missed appointments with his psychiatrist and was thus not participating in his treatment plan. (Doc. 11 at 68.) Again, it is unclear whether this claim is brought under the ADA or § 1983: Plaintiff both states that Defendant Millet violated the “14[th] Amendment” and discriminated against “Plaintiff by reason of his disability.” (Doc. 11 at 67-68.) Again, however, Plaintiff's claim is more properly cast as one under § 1983 because Plaintiff has failed to allege that Defendant Millet made such false representations by reason of his disability as opposed to other, unrelated reasons. Count XII survives under § 1983 because Plaintiff alleges that Defendant Millett was aware that her representation was false: She had had access to Plaintiff's thirty years of psychiatric records since April 2018, and those records demonstrated that any missed appointments were consistently rescheduled and attended. (Doc. 11 at 67-68.) Thus, any subsequent statements to the contrary, as alleged, would have been knowing falsehoods. The Court will not dismiss Count XII.
Count XIII alleges that Defendant Millett knowingly submitted a false psychological evaluation to the state court in December 2018. (Doc. 11 at 69.) Plaintiff again appears to bring this claim under both the ADA and § 1983. However, because Plaintiff has stated a claim under the ADA, that is his sole remedy. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). The Court does not dismiss Count XIII because Plaintiff alleges that he was entitled to a reliable psychological examination, the psychological examination he was given contained material errors-including incorrectly stating that he was not a business owner or homeowner-and that such errors deprived the examination of its reliability. (Doc. 11 at 69-70.) Plaintiff also alleges that such deprivation was by reason of his disability because Defendant Millett argued to the state court that Plaintiff's disability made him delusional and that such delusions made him unfit to be a parent. (Doc. 11 at 72-73.) Count XIII may be served.
Count XIV alleges that Defendants Millett, Higby, and Botta's refusal to interview witnesses in support of Plaintiff's case violated his rights under Section 504 of the Rehabilitation Act. (Doc. 11 at 75.) However, Plaintiff does not allege that these Defendants were under any obligation to conduct these interviews, nor does he plausibly allege that their failure to do so amounted to his “exclu[sion] from the participation in . . . any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). He also makes no plausible allegation that any wrongdoing was “solely” by reason of disability. Count XIV is dismissed.
There is “no significant difference” between Section 504 of the Rehabilitation Act and Title II of the ADA, nor do they require separate analyses. Vinson, 288 F.3d at 1152 n.7. However, the Rehabilitation Act does impose a stricter causal standard, requiring a plaintiff to show the denial of services was “‘solely by reason of' disability,” rather than just “by reason of' disability. K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1099 (9th Cir. 2013).
C. Leave to Amend
Plaintiff will be given an opportunity, if he so chooses, to amend his SAC as to the dismissed Counts only. The Third Amended Complaint must only contain the unrevised and undismissed Counts as noted above, and the amended Counts as listed in footnote 5. In the Third Amended Complaint, Plaintiff must state what rights he believes were violated in each amended count. Fed.R.Civ.P. 8(a)(2). If Plaintiff elects to file a Third Amended Complaint, Plaintiff should take care to address any deficiencies listed in this Order to ensure that each claim meets the requirements of Rule 8(a)(2) and (d)(1) of the Federal Rules of Civil Procedure. Plaintiff is not permitted to amend claims that the Court has deemed sufficient at this time, although they should still be included, unaltered, in the Third Amended Complaint. The failure to comply with these instructions may result in the Third Amended Complaint being stricken from the record.
The dismissed claims are Count I, Count V, Count VI, Count VIII, and Count XIV.
If Plaintiff elects not to file a Third Amended Complaint, he must properly serve the SAC. This paragraph applies only if Plaintiff elects not to file a Third Amended Complaint. Plaintiff must serve a copy of the Summons, the SAC, and this Order on each Defendant. The person who serves Defendants with the Summons, Complaint, and this Order is required, according to the rules, to file an affidavit with the Court that proves that Defendants were served in compliance with this Order. This is the way that the Court knows that Defendants have been served. Therefore, Plaintiff must be sure that, prior to thirty days from the date of this Order, whoever serves the Summons, Complaint, and this Order on each Defendant files an affidavit with this Court demonstrating that they accomplished proper service.
IF PLAINTIFF FILES NEITHER A THIRD AMENDED COMPLAINT NOR THE AFFIDAVIT OF SERVICE DESCRIBED ABOVE WITHIN THIRTY DAYS FROM THE DATE OF THIS ORDER, DEFENDANTS WILL BE DISMISSED WITHOUT PREJUDICE FROM THE LAWSUIT. THIS CONSTITUTES PLAINTIFF'S NOTICE UNDER RULE 4(m).
III. Motion for Expedited Discovery
Plaintiff next asks for expedited discovery because many relevant documents are under seal by the state courts and because Plaintiff wishes to seek a preliminary injunction to reinstate his parental rights. (Doc. 8.) “Rule 26(d) of the Federal Rules of Civil Procedure generally provides that formal discovery will not commence until after the parties have conferred as required by Rule 26(f).” Am. LegalNet, Inc. v. Davis, 673 F.Supp.2d 1063, 1066 (C.D. Cal. 2009) (footnote omitted). “However, courts may permit expedited discovery before the Rule 26(f) conference upon a showing of good cause.” Id.
Plaintiff has failed to establish good cause for expedited discovery. None of the Defendants have yet been served, and thus no Answer has been filed. The Court will not order expedited discovery without input from all parties. Plaintiff's Motion is denied.
CONCLUSION
Plaintiff's Counts I, V, VI, VIII, and XIV are dismissed with leave to amend. If Plaintiff elects to file a Third Amended Complaint, all Counts must still be included, but only Counts I, V, VI, VIII, and XIV may be amended. If Plaintiff decides not to file a Third Amended Complaint within thirty days, a copy of this Order shall be served, along with a copy of the Second Amended Complaint (lodged at Doc. 11) and summonses. In such circumstances, Defendants need only respond to the claims that have not been dismissed.
IT IS HEREBY ORDERED that Plaintiff's Motion for Expedited Discovery (Doc. 8) is DENIED.
IT IS FURTHER ORDERED that Plaintiff's Motion to Allow Second Amended Complaint Before Final Screening & Order of the Court (Doc. 9) is GRANTED.
IT IS FURTHER ORDERED directing the Clerk of Court to file Plaintiff's Second Amended Complaint (lodged at Doc. 11) on the public docket.
IT IS FURTHER ORDERED that Plaintiff's Motion for Screening of Amended Complaint (Doc. 10) is GRANTED. Counts I, V, VIII, VI, and XIV are dismissed with leave to file a Third Amended Complaint WITHIN 30 DAYS. The Third Amended Complaint shall contain all of Plaintiff's claims, including the remaining Counts in their current form and the dismissed Counts as amended. The Third Amended Complaint shall not exceed 85 pages.
IT IS FURTHER ORDERED that if Plaintiff elects to file a Third Amended Complaint, the Complaint may not be served until and unless the Court screens the Third Amended Complaint pursuant to 18 U.S.C. § 1915(e)(2).
IT IS FURTHER ORDERED that if Plaintiff elects not to file a Third Amended Complaint WITHIN 30 DAYS of the date of this Order, Plaintiff shall be responsible for service by waiver or service of the Summons, Second Amended Complaint (lodged at Doc. 11), and this Order. Defendants need only file an Answer in response to the undismissed claims.
IT IS FURTHER ORDERED directing the Clerk of Court that if Plaintiff files neither a Third Amended Complaint nor the required Affidavits of Service WITHIN 30 DAYS from the date of this Order, the Clerk shall terminate any or all Defendants in this matter, without further notice, that have not been served.