1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 LATAWNYA COWAN, Case No. 25-cv-2100-BAS-BJW

14 Plaintiff,

ORDER:

15 v. (1) GRANTING MOTION FOR

LEAVE TO PROCEED IN

16 UNITED STATES DEPARTMENT OF

FORMA PAUPERIS

HEALTH & HUMAN SERVICES, et al., 17 (ECF No. 2); AND Defendants. 18 (2) DISMISSING ACTION 19

WITHOUT PREJUDICE FOR

20 FAILING TO STATE A CLAIM

UNDER 28 U.S.C. § 1915

21 (ECF No. 1) 22

23 24 25 26 27

28 1 Plaintiff Latawnya Cowan is proceeding pro se, without an attorney. She filed a 2 complaint on April 22, 2025, against federal and state entities as well as named individuals. 3 (ECF No. 1.) Plaintiff seeks damages and requests a jury trial. (Id.) 4 Plaintiff filed a motion seeking leave to proceed in forma pauperis (“IFP”)—without 5 prepaying court fees or costs. (ECF No. 2.) Plaintiff originally filed her complaint and IFP 6 motion in the United States District Court for the Eastern District of California using a non- 7 prisoner form complaint. (ECF No. 1.) On August 15, 2025, the action was transferred to 8 this Court. (ECF No. 3.) 9 For the following reasons, the Court GRANTS Plaintiff’s motion to proceed IFP 10 and DISMISSES with leave to amend her complaint. 11 I. MOTION FOR LEAVE TO PROCEED IFP 12 All parties instituting any civil action, suit, or proceeding in a district court of the 13 United States, except an application for writ of habeas corpus, must pay a filing fee. See 14 28 U.S.C. § 1914. Under 28 U.S.C. § 1915, a litigant who because of indigency is unable 15 to pay the required fee or security to commence a legal action may petition the court to 16 proceed without making such payment. To satisfy the requirements of 28 U.S.C. § 1915, 17 “an affidavit [of poverty] is sufficient which states that one cannot because of his poverty 18 pay or give security for the costs . . . and still be able to provide himself and dependents 19 with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 20 (1948) (citation modified). 21 Having read and considered Plaintiff’s application, the Court finds that Plaintiff 22 meets the requirements for indigency pursuant to 28 U.S.C. § 1915. Here, Plaintiff has no 23 assets. (ECF No. 2.) Further, she takes care of dependents and receives no child support. 24 (Id.) Under these circumstances, the Court finds that requiring Plaintiff to pay the filing fee 25 would impair her ability to obtain the necessities of life. 26 Thus, the Court GRANTS Plaintiff’s request to proceed IFP. (ECF No. 2.) 27 28 1 II. SCREENING UNDER 28 U.S.C. § 1915 2 Under 28 U.S.C. § 1915(e)(2)(B), courts must sua sponte dismiss IFP complaints, or 3 any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek 4 damages from defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B). “The standard 5 for determining whether a plaintiff has failed to state a claim upon which relief can be 6 granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 7 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th 8 Cir. 2012). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 9 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 10 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 11 (2007)). 12 Plaintiff’s complaint names several Defendants: (1) the United States Department of 13 Health and Human Services (doing business as San Diego County Health and Human 14 Services); (2) the County of San Diego; as well as (3) Kimberly Giardina (the San Diego 15 HHS Director) and Julia Ramzi (a Social Worker). (ECF No. 1.) Plaintiff appears to raise 16 several causes of action, including 42 U.S.C. § 1983 and the Americans with Disabilities 17 Act (“ADA”). (Id.) For relief, Plaintiff seeks damages, specifically: 25 million dollars, 18 punitive damages, damages under California’s Unruh Act, any damages awarded by a jury, 19 and underpayment in all federal or state benefits. (Id.) She lists the following injuries in 20 her complaint: lost wages, emotional distress, loss of quality of life, inconvenience, 21 medical expenses, and loss of property. (Id.) 22 The complaint does not explicitly assert a basis for the Court’s jurisdiction. (Id.) 23 Nevertheless, by alleging that Defendants violated her rights under 42 U.S.C. § 1983, 24 Plaintiff in substance alleges federal question jurisdiction. 18 U.S.C. § 1331. The Court 25 now analyzes each cause of action. 26 A. Section 1983 27 Plaintiff’s complaint alleges violations of the First, Eighth, and Fourteenth 28 Amendments under 42 U.S.C. § 1983. For each Defendant, the Court addresses whether 1 Plaintiff can bring suit and seek relief. To the extent Plaintiff may seek relief, the Court 2 addresses whether Plaintiff has stated a claim for relief. 3 First, to the extent Plaintiff seeks to sue the United States Department of Health and 4 Human Services (doing business as San Diego County Health and Human Services), her 5 complaint fails because federal agencies cannot be sued under 42 U.S.C. § 1983. See 6 Cabrera v. Martin, 973 F.2d 735, 743 (9th Cir. 1992). Accordingly, Plaintiff’s § 1983 claim 7 against Defendant United States Department of Health and Human Services shall be 8 dismissed without leave to amend. 9 Second, to the extent Plaintiff names the County of San Diego as a Defendant, a 10 county can only be held liable under § 1983 when a custom or policy gives rise to a 11 constitutional deprivation. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 12 690 (1978). But a county cannot be sued under a theory of respondeat superior liability, 13 for example “a municipality cannot be held liable solely because it employs a tortfeasor.” 14 Id. at 691. Moreover, a county can be held liable when a failure to train or supervise 15 amounts to deliberate indifference of an individual’s rights. See City of Canton, Ohio v. 16 Harris, 489 U.S. 378, 389–90 (1989). Here, Plaintiff has not pointed to a formal policy or 17 longstanding custom that caused her alleged constitutional injuries. Nor has Plaintiff 18 pointed to a failure to train or supervise. Accordingly, Plaintiff’s § 1983 claim against 19 Defendant County of San Diego shall be dismissed with leave to amend. 20 Third, Plaintiff seeks to sue San Diego County Health and Human Services Director 21 Kimberly Giardina and Social Worker Julia Ramzi under § 1983 seemingly in their official 22 and personal capacities for damages. But one cannot sue a state official in her official 23 capacity for damages; instead, relief is limited to injunctive relief. See Will v. Michigan 24 Dep’t of State Police, 491 U.S. 58, 71 (1989). Here, Plaintiff does not seek injunctive relief. 25 Thus, claims for damages against Defendants Giardina and Ramzi in their official capacity 26 are dismissed with leave to amend to seek claims for injunctive relief. 27 Nevertheless, one can sue a state official in her personal capacity for damages. See 28 Hafer v. Melo, 502 U.S. 21, 27 (1991). To state a claim under § 1983, a plaintiff must allege 1 two elements: (1) that a right secured by the Constitution or laws of the United States was 2 violated, and (2) that the alleged violation was committed by a person acting under color 3 of law. See West v. Atkins, 487 U.S. 42, 48 (1988). Therefore, the Court next addresses 4 whether Plaintiff sufficiently alleges violations of her First, Eighth, and Fourteenth 5 Amendment rights. 6 First Amendment: Plaintiff states that when she “filed [her] state and federal 7 ADA/civil rights complaint” Defendants “retaliated by excluding [her] from family 8 visitation, preservation, cash, food, [and] medical benefits.” (ECF No. 1.) The First 9 Amendment states that the government “shall make no law […] abridging the freedom of 10 speech, or of the press; or the right of the people peaceably to assemble, and to petition the 11 Government for a redress of grievances.” U.S. Const. amend. I. The Court understands 12 Plaintiff to allege a First Amendment retaliation claim. To prevail on a First Amendment 13 retaliation claim, a plaintiff must allege that “(1) he was engaged in a constitutionally 14 protected activity, (2) the defendant’s actions would chill a person of ordinary firmness 15 from continuing to engage in the protected activity, and (3) the protected activity was a 16 substantial or motivating factor in the defendant’s conduct.” See Capp v. Cnty. of San 17 Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) (citation modified). Here, Plaintiff fails to 18 provide any further factual content sufficient to plausibly meet these pleading 19 requirements. 20 Eighth Amendment: Plaintiff has not made any allegations regarding cruel and 21 unusual punishment under the Eighth Amendment. The Eighth Amendment states that: 22 “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual 23 punishments inflicted.” U.S. Const. amend. VIII. The Court knows of no court applying 24 the Eighth Amendment outside of the prison context to facts similar to Plaintiff’s situation. 25 See, e.g., Graham v. Connor, 490 U.S. 386, 392 n.6 (1989) (stating the Eighth 26 Amendment’s prohibition of “cruel and unusual punishments” applies “after conviction 27 and sentence”). 28 1 Fourteenth Amendment: Plaintiff states that “Defendants deprive me of my parental 2 rights, food, clothing, housing, medical treatment.” (ECF No. 1.) The Fourteenth 3 Amendment provides that the State shall not “deprive any person of life, liberty or property, 4 without due process of the law; nor deny to any person within its jurisdiction the equal 5 protection of the laws.” U.S. Const. amend. XIV, § 1. The Court assumes that Plaintiff 6 alleges a due process claim.1 To establish a due process claim, a plaintiff must show 7 government deprivation of life, liberty, or property. See The Bd. of Regents of State 8 Colleges v. Roth, 408 U.S. 564, 569 (1972). Even if Plaintiff does have a valid property 9 interest in state or federal benefits, Plaintiff does not explain what process she received 10 before being deprived of her property. “Procedural due process rules are meant to protect 11 persons not from the deprivation, but from the mistaken or unjustified deprivation of life, 12 liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). 13 In conclusion, the Court finds that Plaintiff has not stated cognizable § 1983 claims 14 against Defendants Giardina and Ramzi in their personal capacities. Accordingly, the Court 15 dismisses the complaint with leave to amend. 16 B. ADA 17 Plaintiff states that she has a “congenital disability” for which she has provided 18 “medical documentation to Defendants.” (ECF No. 1.) She further alleges that Defendants 19 are “acting in concert to deny [her] public and ADA accommodations and to exclude [her] 20 from full participation and equal access to federally assisted programs.” (Id.) The Court 21 assumes Plaintiff’s claim falls under Title II of the ADA, which states: “[N]o qualified 22 individual with a disability shall, by reason of such disability, be excluded from 23 participation in or be denied the benefit of services, programs, or activities of a public 24

25 1 Plaintiff seemingly does not claim that she was being discriminated against because of her 26 membership in a protected group or class; in other words, she does not raise an Equal Protection argument under the Fourteenth Amendment. Plaintiff further raises the issue of her parental rights and family 27 visitation. To the extent Plaintiff challenges a state court determination regarding child custody, the district court tends to abstain from interference with the state court judgment given the domestic relations 28 1 entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The Court 2 addresses the standard for a Title II ADA claim and then discusses from whom Plaintiff 3 may seek relief. 4 To state an ADA Title II claim for disability discrimination, the plaintiff must allege: 5 “(1) the plaintiff is an individual with a disability, (2) the plaintiff is otherwise qualified to 6 participate in or receive the benefit of some public entity’s services, programs, or activities, 7 (3) the plaintiff was either excluded from participation in or denied the benefits of the 8 public entity’s services, programs, or activities, or was otherwise discriminated against by 9 the public entity, and (4) such exclusion, denial of benefits, or discrimination was by reason 10 of the plaintiff’s disability.” Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). Here, 11 Plaintiff has not alleged sufficient facts about her disability, what benefit she believes she 12 is qualified to receive, nor how she has allegedly faced discrimination. 13 Plaintiff may seek damages under the ADA from the county, but she cannot sue 14 individuals for damages. See Duvall v. County of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 15 2001). Moreover, to recover damages, a plaintiff must allege that the defendant 16 intentionally discriminated against her. See id. at 1138–39. One can establish intentional 17 discrimination through deliberate indifference, which “requires both knowledge that a 18 harm to a federally protected right is substantially likely, and a failure to act upon that . . . 19 likelihood.” Id. at 1139. Here, Plaintiff has not alleged any facts to plausibly suggest 20 deliberate indifference or intentional discrimination to warrant damages. Therefore, 21 Plaintiff’s ADA claim is dismissed with leave to amend. 22 C. Other Statutory Claims 23 Plaintiff mentions the “UCCJEA” (assumedly the Uniform Child Custody 24 Jurisdiction and Enforcement Act) and the “ICWA” (assumedly the Indian Child Welfare 25 Act) as causes of action. Plaintiff provides no supporting allegations for these grounds of 26 relief for the Court to assess. Thus, the Court dismisses these claims with leave to amend. 27 28 1 CONCLUSION 2 For the foregoing reasons, the Court GRANTS Plaintiff's motion to proceed in 3 || forma pauperis. (ECF No. 2.) The Court DISMISSES Plaintiff's complaint pursuant to 28 4 ||U.S.C. § 1915(e)(2)(B)(Gi) for failing to state a claim and GRANTS Plaintiff leave to 5 |}amend. In short, Plaintiff must amend her complaint because she either cannot sue certain 6 || Defendants, or she did not sufficiently allege claims against certain Defendants. Plaintiff 7 || has leave to provide additional facts and specify which claims are asserted against which 8 || Defendants. Plaintiff must file her amended complaint on or before December 8, 2025. 9 || This amended complaint should be complete in itself. See Royal Canin U. S. A., Inc. v. 10 || Wullschleger, 604 U.S. 22, 30 (2025). Plaintiff is warned that a failure to file a first 11 ||amended complaint by December 8, 2025, will result in the Court dismissing this 12 || action without prejudice. 13 IT IS SO ORDERED. 14 15 || DATED: October 9, 2025 (yatta Bahar □□ 16 H n. Cynthia Bashant, Chief Judge United States District Court 17 18 19 20 21 22 23 24 25 26 27 28 _Q_