1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 REGINNA BRIDGEMAN, No. 2:19-cv-02108 JAM AC (PS) 12 Plaintiff, 13 v. ORDER 14 SAN JOAQUIN CHILD PROTECTIVE

SERVICES,

15 Defendant. 16 17 18 Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the 19 undersigned by E.D. Cal. 302(c)(21). Plaintiff has filed a request for leave to proceed in forma 20 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915, and has submitted the affidavit required by that 21 statute. See 28 U.S.C. § 1915(a)(1). ECF No. 2. The motion to proceed IFP will therefore be 22 GRANTED. 23 I. SCREENING 24 The federal IFP statute requires federal courts to dismiss a case if the action is legally 25 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 27 Plaintiff must assist the court in determining whether or not the complaint is frivolous, by drafting 28 the complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). 1 The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules- 2 policies/current-rules-practice-procedure/federal-rules-civil-procedure. 3 Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and 4 plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this 5 court, rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled 6 to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief 7 sought. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly. 8 Fed. R. Civ. P. 8(d)(1). Forms are available to help pro se plaintiffs organize their complaint in 9 the proper way. They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), 10 Sacramento, CA 95814, or online at www.uscourts.gov/forms/pro-se-forms. 11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 13 court will (1) accept as true all of the factual allegations contained in the complaint, unless they 14 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 15 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von 16 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. 17 denied, 564 U.S. 1037 (2011). 18 The court applies the same rules of construction in determining whether the complaint 19 states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court 20 must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must 21 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 22 less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 23 (1972). However, the court need not accept as true conclusory allegations, unreasonable 24 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 25 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice 26 to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 27 556 U.S. 662, 678 (2009). 28 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to 1 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has 2 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 3 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 4 678. A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity 5 to amend, unless the complaint’s deficiencies could not be cured by amendment. See Noll v. 6 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in 7 Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc). 8 A. The Complaint 9 Plaintiff brings suit against San Juaquin Child Protective Services for violations the First 10 Amendment and the Fourteenth Amendment. ECF No. 1 at 2. Plaintiff alleges that in 2017 her 11 case was transferred to San Joaquin County and at this time she informed social worker Sue 12 Winslow that her child needed therapy, but it took a year to get that service. Id. at 3. Plaintiff 13 alleges the “case plan” included therapy for her and her daughter to do together, and that was the 14 only thing not done in the case. Id. Plaintiff demands that her daughter receive $1,000,000, that 15 her own name removed from “Allcentral Index,” and that the social workers be investigated for 16 “indictment for case plan setup to fail, falsified court reporting.” Id. at 4. 17 Plaintiff further alleges as follows. Sue Winslow should not have put in a court report that 18 plaintiff used her church for transportation. Id. at 5. Sue Winslow and Allison Ellis of the 19 Department of Child Protective Services would not serve plaintiff or give her court reports, in 20 violation of plaintiff’s due process rights. Id. at 6. Allison Ellis reported that plaintiff’s child was 21 physically endangered, even after plaintiff gave her information that the police had dropped 22 charges connected with the case. Id. at 7. Finally, Sue Winslow withheld the complete case plan 23 and kept saying that plaintiff did not finish parenting class, when in fact plaintiff was pulled out 24 of one class but did finish another. Id. at 8. 25 B. Analysis 26 Plaintiff’s complaint must be rejected because the facts alleged do not state a claim upon 27 which relief can be granted. Plaintiff’s constitutional claims, brought pursuant to 42 U.S.C. § 28 1983, are predicated on facts that do not amount to a constitutional deprivation. In order to 1 proceed pursuant to § 1983, plaintiff must plead and prove that she was deprived of a right within 2 the coverage of the statute; the facts must show that the injury suffered infringed a right 3 guaranteed by federal law or the federal Constitution. Baker v. McCollan, 443 U.S. 137, 142, 4 (1979); Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir.1986). Plaintiff’s factual 5 allegations do not support a constitutional deprivation under the First or Fourteenth Amendment, 6 or any other federally protected right of which the court is aware. 7 1. Plaintiff Does Not State a First Amendment Claim 8 The First Amendment to the Constitution holds that “Congress shall make no law 9 respecting an establishment of religion [“Establishment Clause”], or prohibiting the free exercise 10 thereof [“Free Exercise Clause”]; or abridging the freedom of speech, or of the press; or the right 11 of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 12 U.S. Const. amend. I. Plaintiff invokes the First Amendment in relation to her allegation that 13 CPS employee Sue Winslow put into a court report that plaintiff used her church for 14 transportation. ECF No. 1 at 5. 15 The first possible basis for plaintiff’s First Amendment claim, the Establishment Clause, 16 “applies not only to official condonement of a particular religion or religious belief, but also to 17 official disapproval or hostility towards religion.” Am. Family Ass’n, Inc. v. City & County of 18 San Francisco, 277 F.3d 1114, 1120-21 (9th Cir. 2002). “In Lemon v. Kurtzman, 403 U.S. 602, 19 (1971), the Supreme Court established the now widely known “Lemon test” for analyzing 20 government conduct under the Establishment Clause of the First Amendment. To survive the 21 test, the government conduct at issue must (1) have a secular purpose, (2) not have as its principal 22 or primary effect advancing or inhibiting religion and (3) not foster an excessive government 23 entanglement with religion.” Id. at 1121. Plaintiff alleges only that a CPS worker wrote down 24 the fact that plaintiff uses her church for transportation. ECF No. 1 at 5. Whether or not the 25 statement was true, it was made in a factual report for a secular purpose. Reporting this fact does 26 not advance or inhibit religion in any way, nor does it foster any entanglement between 27 government and religion. Plaintiff’s facts, as alleged, cannot support an Establishment Clause 28 claim. 1 An individual may also bring a First Amendment § 1983 case under the Free Exercise 2 Clause. In very general terms, there may be a Free Exercise violation if a government action 3 “substantially burdens” a religious practice. Am. Family Ass’n, Inc., 277 F.3d at 1124. The 4 alleged government action here, making a factual note in a case file, does not burden the exercise 5 of religion at all. ECF No. 1 at 5. Thus, plaintiff does not state a claim upon which relief can be 6 granted. 7 2. Plaintiff Does Not State a Due Process Claim 8 Plaintiff’s Fourteenth Amendment claim, which is also listed a Fifth Amendment claim, 9 ECF No. 6 at 8, alleges her due process rights were violated because she was not served with 10 court reports or was served under another name. ECF No. 1 at 6. “Procedural due process 11 imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or 12 ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth 13 Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). It is established in the Ninth 14 Circuit that “parents with even fewer [than full] custody rights . . . —parents with no legal or 15 physical custody, but merely visitation rights—have “a liberty interest in the companionship, 16 care, custody, and management of their children[.]” James v. Rowlands, 606 F.3d 646, 651 (9th 17 Cir. 2010)(internal quotations omitted). While a due process claim may be available here, 18 plaintiff’s complaint does not provide the court with enough facts to determine whether one 19 exists. For example, plaintiff does not tell the court what type of custody she has, exactly what 20 orders/court documents she was not served with, or how she was harmed by the alleged failure of 21 service. ECF No. 1 at 6. For this reason, plaintiff’s due process claim fails. 22 3. Other Claims 23 Plaintiff’s complaint references claims for “false court reporting” and “case plan set up to 24 fail.” ECF No. 1 at 7-8. These are not cognizable claims under any theory of which the court is 25 aware. To the extent plaintiff is attempting to bring criminal charges, initiate a criminal 26 investigation, or make a civil claim based on a criminal statute (see “indictment” language at ECF 27 No. 1 at 4), she cannot do so. “Criminal proceedings, unlike private civil proceedings, are public 28 acts initiated and controlled by the Executive Branch.” Clinton v. Jones, 520 U.S. 681, 718 1 (1997). Accordingly, criminal law provides no basis for civil liability. Aldabe v. Aldabe, 616 2 F.2d 1089, 1092 (9th Cir. 1980). Plaintiff does not state any claim upon which relief can be 3 granted in her reference to “false court reporting” or “case plan set up to fail.” 4 II. AMENDING THE COMPLAINT 5 Because the complaint does not state a claim, it will not be served. However, plaintiff will 6 be provided the opportunity to amend her complaint. 7 If plaintiff chooses to amend, the amended complaint must allege facts establishing the 8 existence of federal jurisdiction. In addition, it must contain a short and plain statement of 9 plaintiff’s claims. The allegations of the complaint must be set forth in sequentially numbered 10 paragraphs, with each paragraph number being one greater than the one before, each paragraph 11 having its own number, and no paragraph number being repeated anywhere in the complaint. 12 Each paragraph should be limited “to a single set of circumstances” where possible. Rule 10(b). 13 As noted above, forms are available to help plaintiffs organize their complaint in the proper way. 14 They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 15 95814, or online at www.uscourts.gov/forms/pro-se-forms. 16 Plaintiff must avoid excessive repetition of the same allegations. Plaintiff must avoid 17 narrative and storytelling. That is, the complaint should not include every detail of what 18 happened, nor recount the details of conversations (unless necessary to establish the claim), nor 19 give a running account of plaintiff’s hopes and thoughts. Rather, the amended complaint should 20 contain only those facts needed to show how the defendant legally wronged the plaintiff. 21 The amended complaint must not force the court and the defendants to guess at what is 22 being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) 23 (affirming dismissal of a complaint where the district court was “literally guessing as to what 24 facts support the legal claims being asserted against certain defendants”). The amended 25 complaint must not require the court to spend its time “preparing the ‘short and plain statement’ 26 which Rule 8 obligated plaintiffs to submit.” Id. at 1180. The amended complaint must not 27 require the court and defendants to prepare lengthy outlines “to determine who is being sued for 28 what.” Id. at 1179. 1 Also, the amended complaint must not refer to a prior pleading in order to make plaintiff’s 2 amended complaint complete. An amended complaint must be complete in itself without 3 reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended 4 complaint supersedes the original complaint. See Pacific Bell Tel. Co. v. Linkline 5 Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (“[n]ormally, an amended complaint 6 supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice & 7 Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an 8 original complaint, each claim and the involvement of each defendant must be sufficiently 9 alleged. 10 III. PRO SE PLAINTIFF’S SUMMARY 11 It is not clear that this case can proceed in federal court. The facts in your complaint do 12 not support a claim under the First Amendment because it does not appear that the defendant 13 interfered with your religious practices. Your due process claim does not have enough facts 14 supporting it. The court cannot tell what court orders or documents were not served on you, or 15 how you were harmed by not being served. 16 You are being given 30 days to submit an amended complaint that provides enough facts 17 to support your claims. If you submit an amended complaint, it needs to explain in simple terms 18 what laws or legal rights of yours were violated, by whom and how, and how those violations 19 impacted you. Without this information, your case cannot go forward. If you do not submit an 20 amended complaint by the deadline, the undersigned will recommend that the case be dismissed. 21 IV. CONCLUSION 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is GRANTED; 24 //// 25 //// 26 //// 27 //// 28 /// 1 2. Plaintiff shall have 30 days from the date of this order to file an amended complaint that 2 complies with the instructions given above. If plaintiff fails to timely comply with this 3 order, the undersigned may recommend that this action be dismissed. 4 | DATED: November 1, 2019 ~ 5 Chtten— Lhane

ALLISON CLAIRE

6 UNITED 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