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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 WILLIAM SARDI, ET AL., Case No. CV 20-10186-MWF (KK) 11 Plaintiff, 12 v. ORDER DISMISSING FIRST

AMENDED COMPLAINT WITH

13 DOROTHY CARFRAE, ET AL., LEAVE TO AMEND

14 Defendant(s).

15 16 17 I. 18 INTRODUCTION 19 Plaintiff William Sardi (“Sardi”), proceeding pro se, filed a First Amended 20 Complaint (“FAC”) pursuant to 42 U.S.C. §§ 1983, 1985 alleging violations of his 21 Fourteenth Amendment due process and equal protection rights. ECF Docket No. 22 (“Dkt.”) 10. For the reasons discussed below, the Court dismisses the FAC with leave 23 to amend. 24 II. 25 BACKGROUND 26 On November 4, 2020, Sardi filed the Complaint against the court-appointed 27 minor’s counsel Dorothy Carfrae, Family Court Commissioner Doreen Boxer, and 1 On December 2, 2020, Sardi filed the instant FAC against Defendants.1 Dkt. 2 10, FAC. Sardi appears to allege that as a result of custody proceedings in California 3 Family Court, he has been denied contact with his 16-year-old son M.S. for a 4 prolonged period. Id. at 1. Specifically, Sardi alleges Defendants failed to adhere to 5 the appropriate evidentiary standard in finding 6 father-son contact was considered “not in the best interest of the child” 7 (Family Code 3011a) as presented to the court at a June 24, 2020 hearing 8 by court-appointed Minor’s Counsel Dorothy Carfrae, and in a 730 9 Evaluator’s report, and as presented by the mother’s . . . legal counsel 10 Shannon Payne, and accepted by the court commissioner Doreen Boxer, 11 based upon hearsay evidence that does not meet the evidentiary standard 12 demanded by the Supreme Court case Santosky v. Kramer, Supreme 13 Court, 1982. 14 Id. at 3. Sardi states trial is scheduled for February 2, 2021 in the Family Court to 15 “air[] expert evidence, [and] serve[] as a rebuttal to the 730 Evaluator’s report” but 16 states that the trial “is a very expensive and untimely remedy available to achieve 17 adequate due process.” Id. at 6. Sardi argues this trial “does not provide timely 18 remedy to the child’s current predicament and he faces going through the holiday 19 season without physical contact with his father.” Id. at 7. 20 Sardi seeks compensatory and punitive damages against Defendants as well as 21 the following injunctive relief: (a) an order requiring all hearings, trials, and court 22 reports concerning child custody to require “clear and convincing” evidence; (b) 23 granting Sardi “immediate compensatory time with his son . . . until an evidentiary 24 hearing takes place and reaches legal conclusions based upon ‘clear and convincing’ 25 evidence”; (c) appointment of new Minor’s Counsel; and (d) an order “to vacate and 26 27 1 set aside a 730 Evaluator’s report that only met the ‘preponderance of evidence’ level 2 of proof[.]” Id. at 9–10. 3 III. 4 STANDARD OF REVIEW 5 A court has authority to dismiss a claim sua sponte and without notice “where 6 the claimant cannot possibly win relief.” Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 7 991 (9th Cir. 1987); see also Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742– 8 43 (9th Cir. 2008) (noting the court’s authority includes sua sponte dismissal of claims 9 against defendants who have not been served and defendants who have not yet 10 answered or appeared). 11 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 12 “short and plain statement of the claim showing that the pleader is entitled to relief[.]” 13 FED. R. CIV. P. 8(a)(2). In determining whether a complaint fails to state a claim for 14 screening purposes, a court applies the same pleading standard as it would when 15 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See 16 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 17 A complaint may be dismissed for failure to state a claim “where there is no 18 cognizable legal theory or an absence of sufficient facts alleged to support a 19 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007) 20 (internal quotation marks and citation omitted). In considering whether a complaint 21 states a claim, a court must accept as true all of the material factual allegations in it. 22 Hamilton v. Brown, 630 F.3d 889, 892–93 (9th Cir. 2011). The court, however, need 23 not accept as true “allegations that are merely conclusory, unwarranted deductions of 24 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 25 (9th Cir. 2008) (internal quotation marks and citation omitted). Although a complaint 26 need not include detailed factual allegations, it “must contain sufficient factual matter, 27 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 1 678 (2009)). A claim is facially plausible when it “allows the court to draw the 2 reasonable inference that the defendant is liable for the misconduct alleged.” Id. The 3 complaint “must contain sufficient allegations of underlying facts to give fair notice 4 and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 5 1202, 1216 (9th Cir. 2011). 6 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 7 however inartfully pleaded, must be held to less stringent standards than formal 8 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889–90 (9th Cir. 2008) 9 (citation omitted). However, liberal construction should only be afforded to “a 10 plaintiff’s factual allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989), and a 11 court need not accept as true “unreasonable inferences or assume the truth of legal 12 conclusions cast in the form of factual allegations,” Ileto v. Glock Inc., 349 F.3d 1191, 13 1200 (9th Cir. 2003). 14 If a court finds the complaint should be dismissed for failure to state a claim, 15 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 16 203 F.3d 1122, 1126–30 (9th Cir. 2000). Leave to amend should be granted if it 17 appears possible the defects in the complaint could be corrected, especially if the 18 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 19 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 20 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 21 F.3d at 1107–11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). 22 IV. 23 DISCUSSION 24 A. COMMISSIONER BOXER IS IMMUNE FROM SUIT 25 1. Applicable Law 26 Judges have absolute immunity to suits for monetary damages for their judicial 27 acts. This immunity applies to state court judges in their individual capacity, under 1 Antoine v. Beyers & Anderson, Inc., 508 U.S. 429, 435 n.10 (1993) (holding that 2 judges are immune in their individual capacity); Stump v. Sparkman, 435 U.S. 349, 364 3 (1978) (holding that judges are immune in their official capacity). Moreover, 4 “immunity applies even when the judge is accused of acting maliciously and 5 corruptly[.]” Pierson v. Ray, 386 U.S. 547, 554 (1967) (“[A judge] should not have to 6 fear that unsatisfied litigants may hound him with litigation charging malice or 7 corruption.”). Absolute judicial immunity exists “however erroneous the act may 8 have been, and however injurious in its consequences it may have proved to the 9 plaintiff.” Bradley v. Fisher, 80 U.S. 335, 347 (1871); see also Mireles v. Waco, 502 10 U.S. 9, 13 (1991) (upholding absolute immunity for a judge that allegedly ordered 11 excessive force be used in arresting a suspect). 12 2. Analysis 13 Here, Sardi appears to sue Commissioner Boxer for judicial acts during child 14 custody proceedings. The FAC fails to allege facts showing that Commissioner Boxer 15 took nonjudicial actions against Sardi or that Commissioner Boxer’s judicial actions 16 were taken in complete absence of all jurisdiction. See Meek v. Cnty. of Riverside, 17 183 F.3d 962, 965 (9th Cir. 1999) (“A judge is not deprived of immunity because he 18 takes actions which are in error, are done maliciously, or are in excess of his 19 authority.”); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (“As long as the 20 judge’s ultimate acts are judicial actions taken within the court’s subject matter 21 jurisdiction, immunity applies.”). Hence, the claims against Commissioner Boxer are 22 barred by judicial immunity. See Antoine, 508 U.S. at 435 n.10; Stump, 435 U.S. at 23 364. Thus, Sardi’s claims against Commissioner Boxer must be dismissed. 24 B. THE FAC FAILS TO STATE A CLAIM AGAINST DEFENDANTS 25 CARFRAE OR PAYNE 26 1. Applicable Law 27 A plaintiff seeking to state a claim for civil rights violations under Section 1983 1 United States, and must show that the alleged deprivation was committed by a person 2 acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “[P]rivate 3 lawyers appointed to serve as counsel for . . . children or parents in child custody 4 proceedings are not operating under color of law for purposes of a [Section] 1983 5 action when they are performing a lawyer’s traditional functions as counsel in court 6 proceedings.” Deluz v. The Law Office of Frederick S. Cohen, No. CIV S-10-0809, 7 2011 WL 677914, at *4–5 (E.D. Cal. Feb. 17, 2011) (citing Kirtley v. Rainey, 326 F.3d 8 1088, 1093–96 (9th Cir. 2003)) (holding private attorney appointed to represent 9 plaintiff’s children in child custody proceedings was not acting under color of state 10 law in his role as advocate for the children). In addition, the Ninth Circuit has 11 “repeatedly held that a privately-retained attorney does not act under color of state 12 law for purposes of actions brought under the Civil Rights Act.” Briley v. State of 13 Cal., 564 F.2d 849, 855 (9th Cir. 1977). 14 2. Analysis 15 Here, defendant Carfrae was appointed to represent Sardi’s son M.S. in child 16 custody proceedings. FAC at 8. In her role as advocate for M.S. she did not act 17 under color of state law. See Deluz, 2011 WL 677914, at *4–5. In addition, 18 defendant Payne appears to be a private attorney hired to represent the M.S.’s 19 mother.2 Accordingly, in her role as counsel for M.S.’s mother, she did not act under 20 color of state law. See Briley, 564 F.2d at 855. 21 Thus, Sardi’s claims against defendants Carfrae and Payne must be dismissed. 22 /// 23 /// 24

25 2 Moreover, to the extent defendant Payne “is also an agent of the court, writes orders and summaries for the court and reports and helps to enforce court orders,” 26 her actions as an “agent of the court” would appear to be integral to the judicial process making defendant Payne immune from suit. See e.g., In re Castillo, 297 F.3d 27 940, 952 (9th Cir. 2002) (extending quasi-judicial immunity to court clerks and other 1 C. YOUNGER ABSTENTION IS REQUIRED TO THE EXTENT 2 SARDI SEEKS TO VACATE STATE COURT CHILD CUSTODY 3 ORDERS 4 1. Applicable Law 5 Principles of comity and federalism require federal courts to abstain from 6 interfering with pending state court proceedings. See Younger v. Harris, 401 U.S. 37, 7 43–45 (1971). Absent “extraordinary circumstances,” the Ninth Circuit has held 8 abstention is appropriate when: (1) there is “an ongoing state judicial proceeding”; (2) 9 the proceeding “implicate[s] important state interests”; (3) there is “an adequate 10 opportunity in the state proceedings to raise constitutional challenges”; and (4) the 11 requested relief “seek[s] to enjoin” or has “the practical effect of enjoining” the 12 ongoing state judicial proceeding. Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 13 2018) (citing ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 14 (9th Cir. 2014)). 15 2. Analysis 16 First, Sardi admits the state proceedings are ongoing and trial is scheduled for 17 February 2, 2021. FAC at 6–7. 18 Second, important state interests are implicated by the ongoing child custody 19 proceedings. H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000). 20 “Family relations are a traditional area of state concern.” Moore v. Sims, 442 U.S. 21 415, 435 (1979); see also Morrow v. Winslow, 94 F.3d 1386, 1397 (10th Cir. 1996). In 22 addition, a state has a vital interest in protecting “the authority of the judicial system, 23 so that its orders and judgments are not rendered nugatory.” Juidice v. Vail, 430 U.S. 24 327, 336 n. 12 (1977). This is a particularly appropriate admonition in the field of 25 domestic relations, over which federal courts have no general jurisdiction, see 26 Ankenbrandt v. Richards, 504 U.S. 689, 697–701 (1992), and in which the state courts 27 have a special expertise and experience, see Hisquierdo v. Hisquierdo, 439 U.S. 572, 1 Third, Sardi has an adequate state forum in which to pursue their federal 2 claims. H.C. ex rel. Gordon, 203 F.3d at 613. In addition to the ongoing state 3 proceedings, Sardi may appeal through the state courts after final judgment. Id. 4 Fourth, Sardi seeks wholesale federal intervention into an ongoing state 5 domestic dispute, vacation of existing interlocutory orders, and a federal injunction 6 directing the future course of the state litigation. FAC at 9–10. The requested relief, 7 therefore, seeks to enjoin ongoing state judicial proceedings. This is not the proper 8 business of the federal judiciary. H.C. ex rel. Gordon, 203 F.3d at 613–14. 9 Ultimately, the instant action is precisely the type of case suited to Younger 10 abstention. Id. at 613 (citing Mann v. Conlin, 22 F.3d 100, 106 (6th Cir.1994) 11 (holding that Younger abstention was appropriate in Section 1983 action alleging that 12 a state court judge violated plaintiff's due process rights in custody battle)). 13 Accordingly, Younger abstention is appropriate and Sardi’s claims for injunctive relief 14 are subject to dismissal. 15 V. 16 LEAVE TO FILE A SECOND AMENDED COMPLAINT 17 For the foregoing reasons, the FAC is subject to dismissal. As the Court is 18 unable to determine whether amendment would be futile, leave to amend is granted. 19 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is 20 advised that the Court’s determination herein that the allegations in the FAC are 21 insufficient to state a particular claim should not be seen as dispositive of that claim. 22 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 23 matter in his pleading, accepted as true, to state a claim to relief that is viable on its 24 face, Plaintiff is not required to omit any claim in order to pursue this action. 25 However, if Plaintiff asserts a claim in his Second Amended Complaint that has been 26 found to be deficient without addressing the claim’s deficiencies, then the Court, 27 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned 1 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with 2 the district judge as provided in the Local Rules Governing Duties of Magistrate 3 Judges. 4 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 5 service date of this Order, Plaintiff choose one of the following three options: 6 1. Plaintiff may file a Second Amended Complaint to attempt to cure the 7 deficiencies discussed above. 8 If Plaintiff chooses to file a Second Amended Complaint, he must clearly 9 designate on the face of the document that it is the “Second Amended Complaint,” it 10 must bear the docket number assigned to this case, and it must be retyped or 11 rewritten in its entirety. Plaintiff shall not include new defendants or allegations that 12 are not reasonably related to the claims asserted in the FAC. In addition, the Second 13 Amended Complaint must be complete without reference to the FAC, Complaint, or 14 any other pleading, attachment, or document. 15 An amended complaint supersedes the preceding complaint. Ferdik v. 16 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat 17 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff 18 leave to amend as to all his claims raised here, any claim raised in a preceding 19 complaint is waived if it is not raised again in the Second Amended Complaint. 20 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). 21 The Court advises Plaintiff that it generally will not be well-disposed toward 22 another dismissal with leave to amend if Plaintiff files a Second Amended Complaint 23 that continues to include claims on which relief cannot be granted. “[A] district 24 court’s discretion over amendments is especially broad where the court has already 25 given a plaintiff one or more opportunities to amend his complaint.” Ismail v. Cty. of 26 Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (internal quotation marks and 27 citation omitted); see also Ferdik, 963 F.2d at 1261. Thus, if Plaintiff files a Second 1 Second Amended Complaint will be dismissed without leave to amend and 2 with prejudice. 3 2. Alternatively, Plaintiff may file a notice with the Court that he intends to 4 stand on the allegations in his FAC. If Plaintiff chooses to stand on the FAC despite 5 the deficiencies in the claims identified above, then the Court will submit a 6 recommendation to the assigned district judge that the action be dismissed with 7 prejudice for failure to state a claim, subject to Plaintiff’s right at that time to file 8 Objections with the district judge as provided in the Local Rules Governing Duties of 9 Magistrate Judges. 10 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, 11 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to 12 mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff 13 to use if he chooses to voluntarily dismiss the action. 14 Plaintiff is explicitly cautioned that failure to timely respond to this 15 Order will result in this action being dismissed with prejudice for failure to 16 state a claim, or for failure to prosecute and/or obey Court orders pursuant to 17 Federal Rule of Civil Procedure 41(b). 18 19 Dated: December 7, 2020

20 HONORABLE KENLY KIYA KATO United States Magistrate Judge 21 22 23 24 25 26 27