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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

WESTERN DIVISION

11 YOUHANNA SAWAGED, ) Case No. 2:23-cv-05972-SVW-JDE ) 12 ) 13 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY v. ) THIS ACTION SHOULD NOT BE 14 ) DISMISSED UNDER 28 U.S.C. 15 CHILD PROTECTION DCFS ) ) § 1915(e)(2)(B)

SERVICE LOS ANGELES,

) 16 ) 17 Defendant. )

18 19 I. 20 INTRODUCTION 21 On July 24, 2023, the Court received from Youhanna Sawaged 22 (“Plaintiff”), proceeding pro se and seeking leave to proceed in forma pauperis 23 (“IFP”), an untitled civil action naming Child Protection DCFS Service Los 24 Angeles (“Defendant” or “DCFS”) as the sole defendant. Dkt. 1 25 (“Complaint”). Although the allegations in the Complaint, which, with 26 attachments, totals 73 pages, are difficult to discern, it appears Plaintiff takes 27 issue with Defendant’s detention of his children, Defendant’s initiation of state 28 court proceedings, and the decisions issued in those proceedings. This is at least 1 the third federal action Plaintiff has filed against Defendant in this Court 2 regarding the custody of his children. In January 2019, Plaintiff filed a civil 3 rights action pursuant to 42 U.S.C. § 1983, which was subsequently dismissed 4 for failure to pay the filing fee or obtain authorization to proceed IFP. See 5 Sawaged v. DFS, Case No. 2:19-cv-00148-PSG (JDE), Dkt. 9 (C.D. Cal. Feb. 6 20, 2019). In September 2020, Plaintiff filed a second complaint on a form 7 “Petition for Writ of Certiorari.” Sawaged v. Child Protection DCFS Service 8 Los Angeles, Case No. 2:20-cv-08613-PSG (JDE), Dkt. 1 (C.D. Cal.) (“Second 9 Action”). On October 7, 2020, Plaintiff’s IFP request was denied and the 10 Second Action was dismissed for failure to state a claim upon which relief can 11 be granted. Id., Dkt. 6. 12 Under 28 U.S.C. § 1915(e)(2), the Court must dismiss the Complaint if it 13 is frivolous or malicious, fails to state a claim on which relief may be granted, 14 or seeks monetary relief from a defendant who is immune from such relief. For 15 the reasons discussed below, the Court finds the instant Complaint suffers from 16 the same defects as the Second Action, rendering it subject to dismissal. 17 II. 18 STANDARD OF REVIEW 19 A complaint may be dismissed for failure to state a claim for two 20 reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a 21 cognizable legal theory. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 22 1097, 1104 (9th Cir. 2008). Pleadings by pro se plaintiffs are reviewed liberally 23 and afforded the benefit of the doubt. Erickson v. Pardus, 551 U.S. 89, 94 24 (2007) (per curiam); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) 25 (as amended). However, “a liberal interpretation of a civil rights complaint 26 may not supply essential elements of the claim that were not initially pled.” 27 Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) 28 (citation omitted). “[T]he tenet that a court must accept as true all of the 1 allegations contained in a complaint is inapplicable to legal conclusions.” 2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 3 In assessing whether a complaint states a viable claim, the Court applies 4 the same standard as it would when evaluating a motion to dismiss under 5 Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). See Rosati v. 6 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per curiam). Rule 12(b)(6), in 7 turn, is read in conjunction with Rule 8(a) of the Federal Rules of Civil 8 Procedure (“Rule 8”). Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 9 2013). Under Rule 8, a complaint must contain a “short and plain statement of 10 the claim showing that the pleader is entitled to relief.” Rule 8(a)(2). Though 11 Rule 8 does not require detailed factual allegations, at a minimum, a complaint 12 must allege enough specific facts to provide both “fair notice” of the particular 13 claim being asserted and “the grounds upon which [that claim] rests.” Bell Atl. 14 Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation omitted); see also 15 Iqbal, 556 U.S. at 678 (observing that Rule 8 standard “demands more than an 16 unadorned, the-defendant-unlawfully-harmed-me accusation”); Brazil v. U.S. 17 Dep’t of Navy, 66 F.3d 193, 199 (9th Cir. 1995) (finding that even pro se 18 pleadings “must meet some minimum threshold in providing a defendant with 19 notice of what it is that it allegedly did wrong”); Schmidt v. Herrmann, 614 20 F.2d 1221, 1224 (9th Cir. 1980) (upholding Rule 8 dismissal of “confusing, 21 distracting, ambiguous, and unintelligible pleadings”). 22 Thus, to survive screening, “a complaint must contain sufficient factual 23 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 24 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is 25 “plausible” when the facts alleged support a reasonable inference that the 26 plaintiff is entitled to relief from a specific defendant for specific misconduct. 27 Id. Allegations that are “merely consistent with” a defendant’s liability, or 28 reflect only “the mere possibility of misconduct” do not show “that the pleader 1 is entitled to relief,” and thus are insufficient to state a claim that is “plausible 2 on its face.” Id. at 678-79 (citations omitted). “Taken together, Iqbal and 3 Twombly require well-pleaded facts, not legal conclusions that ‘plausibly give 4 rise to an entitlement to relief.’ The plausibility of a pleading thus derives from 5 its well-pleaded factual allegations.” Whitaker v. Tesla Motors, Inc., 985 F.3d 6 1173, 1176 (9th Cir. 2021) (citations omitted). 7 If the Court finds that a complaint should be dismissed for failure to state 8 a claim, the Court has discretion to dismiss with or without leave to amend. 9 See Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Leave 10 to amend should be granted if it appears possible that the defects in the 11 complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; 12 see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that 13 “[a] pro se litigant must be given leave to amend his or her complaint, and 14 some notice of its deficiencies, unless it is absolutely clear that the deficiencies 15 of the complaint could not be cured by amendment”). However, if, after 16 careful consideration, it is clear that a complaint cannot be cured by 17 amendment, the Court may dismiss without leave to amend. See, e.g., Chaset 18 v. Fleer/Skybox Int’l, 300 F.3d 1083, 1088 (9th Cir. 2002) (holding that “there 19 is no need to prolong the litigation by permitting further amendment” where 20 the “basic flaw” in the pleading cannot be cured by amendment). 21 III. 22 DISCUSSION 23 A. The Complaint Fails to State a Claim 24 Having carefully reviewed the Complaint and its attachments, the Court 25 finds it fails to state a claim for several reasons. 26 First, as in the First Action, the Complaint is devoid of any claim that 27 Plaintiff’s federal constitutional or statutory rights have been violated, nor does 28 Plaintiff purport to assert jurisdiction based on diversity of citizenship; as such, 1 facially, there is no subject matter jurisdiction. Plaintiff relies exclusively on 2 various “Articles” of the American Convention on Human Rights (“ACHR”), 3 International Convention for the Protection of the Rights of All Migrant 4 Workers and Members of Their Families (“Convention on Migrant Workers”), 5 and Convention on the Rights of the Child (“CRC”). However, because none 6 of these treaties have been ratified by the United States, they provide no private 7 right of action enforceable in federal court. See Flores v. S. Peru Copper Corp., 8 414 F.3d 233, 256 (2d Cir. 2003) (“only States that have ratified a treaty are 9 legally obligated to uphold the principles embodied in that treaty”); see also 10 White v. Moore, 2022 WL 18356998, at *5 (C.D. Cal. Nov. 8, 2022) (ACHR 11 does not provide a private right of action in federal court); Howard v. 12 Maximus, Inc., 2014 WL 3859973, at *3 (D. Or. May 6, 2014) (because 13 ACHR was never ratified, federal courts could not enforce it), adopted by 2014 14 WL 3866419 (D. Or. Aug. 6, 2014); Iran Thalassemia Soc’y v. Office of 15 Foreign Assets Control, 2022 WL 9888593, at *7 (D. Or. Oct. 14, 2022) 16 (explaining that CRC has not been ratified and thus, is not a treaty of the 17 United States); Keating-Traynor v. Westside Crisis Ctr., 2006 WL 1699561, at 18 *7 (N.D. Cal. June 16, 2006) (finding CRC does not provide a private right of 19 action); Connie De La Vega, International Standards on Business and Human 20 Rights: Is Drafting a New Treaty Worth it?, 51 U.S.F.L. Rev. 431, 457-458 21 (2017) (noting the United States has not signed the Convention on Migrant 22 Workers); U.N. Treaty Collection at https://treaties.un.org (indicating that the 23 United States has not ratified the Convention on Migrant Workers). 24 Further, even interpreting the Complaint liberally as an attempt to set 25 forth a civil rights complaint, the Complaint fails to state a claim for relief. To 26 state a claim for a violation of civil rights under 42 U.S.C. § 1983 (“Section 27 1983” or “§ 1983”), a plaintiff must allege that a defendant, acting under color 28 of state law, deprived plaintiff of a right guaranteed under the U.S. 1 Constitution or a federal statute. See West v. Atkins, 487 U.S. 42, 48 (1988); 2 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Section 1983 “is not itself a 3 source of substantive rights, but a method for vindicating federal rights 4 elsewhere conferred . . . .” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). 5 A local government entity “may not be sued under § 1983 for an injury 6 inflicted solely by its employees or agents. Instead, it is when execution of a 7 government’s policy or custom, whether made by its lawmakers or by those 8 whose edicts or acts may fairly be said to represent official policy, inflicts the 9 injury that the government as an entity is responsible under § 1983.” See 10 Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 694 (1978). 11 “[A] Monell claim must consist of more than mere ‘formulaic recitations of the 12 existence of unlawful policies, conducts, or habits.’” Bedford v. City of 13 Hayward, 2012 WL 4901434, at *12 (N.D. Cal. Oct. 15, 2012) (quoting 14 Warner v. Cty. of San Diego, 2011 WL 662993, at *4 (S.D. Cal. Feb. 14, 15 2011)); see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of 16 a cause of action, supported by mere conclusory statements, do not suffice.”); 17 Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (“The existence of a 18 policy, without more, is insufficient to trigger local government liability under 19 section 1983.”); Spiller v. City of Texas City, Police Dep’t, 130 F.3d 162, 167 20 (5th Cir. 1997) (“The description of a policy or custom and its relationship to 21 the underlying constitutional violation . . . cannot be conclusory; it must 22 contain specific facts.”). “Monell allegations must be [pled] with specificity as 23 required under Twombly and Iqbal.” Galindo v. City of San Mateo, 2016 WL 24 7116927, at *5 (N.D. Cal. Dec. 7, 2016). Here, even were the Complaint to 25 have alleged a violation of a federal constitutional or statutory right, as the sole 26 defendant is DCFS, a local government entity, the only basis upon which 27 liability may be affixed is under a Monell theory. However, the Complaint is 28 devoid of any claim of any policy, custom, or practice by the DCFS that 1 caused any constitutional or federal statutory violation. Thus, as DCFS is the 2 only named defendant, the Complaint fails to state a claim for the foregoing 3 reason as well. 4 Additionally, under the Rooker-Feldman doctrine, a federal district 5 court may not exercise subject-matter jurisdiction over a de facto appeal from a 6 state court judgment. Noel v. Hall, 341 F.3d 1148, 1154, 1156 (9th Cir. 2003) 7 (citing Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals 8 v. Feldman, 460 U.S. 462 (1983)). Congress, in 28 U.S.C. § 1257, vests the 9 United States Supreme Court, not the lower federal courts, with appellate 10 jurisdiction over state court judgments. Lance v. Dennis, 546 U.S. 459, 463 11 (2006) (per curiam). “Review of such judgments may be had only in [the 12 Supreme] Court.” Feldman, 460 U.S. at 482. In determining whether an action 13 functions as a de facto appeal, courts “pay close attention to the relief sought 14 by the federal-court plaintiff.” Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th 15 Cir. 2003) (citation omitted). “Rooker-Feldman bars any suit that seeks to 16 disrupt or ‘undo’ a prior state-court judgment, regardless of whether the state- 17 court proceeding afforded the federal-court plaintiff a full and fair opportunity 18 to litigate [his] claims.” Id. at 901 (citation and footnote omitted). “Simply put, 19 ‘the United States District Court, as a court of original jurisdiction, has no 20 authority to review the final determinations of a state court in judicial 21 proceedings.’” Id. at 898 (citation omitted). Here, Plaintiff directly challenges 22 the state court proceedings, repeatedly contending the decisions issued in those 23 proceedings were arbitrary, invalid, and void; and seeks an order to obtain 24 custody of his children. See, e.g., Complaint at 15, 17, 19, 21, 23-24, 26-30, 37- 25 38. Thus, by the Complaint, Plaintiff, in seeking to challenge the prior state 26 court decisions and obtain custody of his children, is asserting a de facto 27 appeal of those state court determinations. Such attempts are barred by the 28 Rooker-Feldman doctrine. 1 B. Leave to Amend Is Not Warranted 2 The Complaint suffers from the same defects previously identified in the 3 Second Action. Despite notice of these defects, Plaintiff has failed to correct 4 any of the defects in the instant action. It is apparent that the foregoing 5 deficiencies are not the result of inartful pleading but are instead the result of 6 legal deficiencies that cannot be cured by further amendment. Thus, it appears 7 leave to amend is not warranted. See, e.g., Fid. Fin. Corp. v. Fed. Home Loan 8 Bank of S.F., 792 F.2d 1432, 1438 (9th Cir. 1986) (“The district court’s 9 discretion to deny leave to amend is particularly broad where the court has 10 already given the plaintiff an opportunity to amend his complaint.”); Ismail v. 11 Cty. of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (“[A] district 12 court’s discretion over amendments is especially broad where the court has 13 already given a plaintiff one or more opportunities to amend his complaint.” 14 (quoting DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 15 1987))). 16 IV. 17 CONCLUSION AND ORDER 18 As Plaintiff seeks leave to proceed IFP in connection with this civil 19 action, the case is subject to sua sponte dismissal because it fails to state a 20 claim upon which relief can be granted. Further, it appears the legal 21 deficiencies identified above cannot be cured by further amendment. 22 Accordingly, Plaintiff is ORDERED TO SHOW CAUSE why this action 23 should not be dismissed under 28 U.S.C. § 1915(e)(2) for failure to state a 24 claim on which relief may be granted. Within twenty-eight (28) days of this 25 Order, Plaintiff shall file a written response setting forth any legal or factual 26 basis why this action should not be dismissed under 28 U.S.C. § 1915(e)(2). In 27 the alternative, Plaintiff may avoid dismissal by paying the full filing fee within 28 this deadline. 1 The Court warns Plaintiff that failure to timely respond as directed in 2 ||this Order may result in the dismissal of this action for the foregoing 3 ||reasons, failure to prosecute, and/or failure to comply with a court order.

5 Dated: July 28, 2023

N D. EARLY

6 nited States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28