Spiecker v. Lewis

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Brooke Spiecker, No. CV-23-08073-PCT-DLR 10 Plaintiff, ORDER 11 v. 12 Kaitlynn Lewis, et al., 13 Defendants. [15] 16 At issue is a motion filed by Defendants—all of whom are employees of Arizona’s 17 Department of Child Safety (“DCS”)—seeking under Federal Rule of Civil Procedure 18 12(b)(6) to dismiss Plaintiff’s first amended complaint (“FAC”) for failure to state a claim. 19 (Doc. 29.) The motion is fully briefed (Docs. 31, 32) and, for reasons explained below, will 20 be granted. 21 I. Background 22 Plaintiff, who is self-represented, accuses Defendants of violating her constitutional 23 rights and committing various state law torts in the course and wake of the court-ordered 24 removal of Plaintiff’s children, M.M. and C.S., from Plaintiff’s custody. (Doc. 25.) The 25 Court interpreted Plaintiff’s original complaint as asserting claims for intentional infliction 26 of emotional distress and violations of 42 U.S.C. § 1983 predicated on allegations that 27 Defendants submitted false reports about Plaintiff to the state courts in an effort to remove 28 Plaintiff’s children, failed to complete a thorough investigation before removing Plaintiff’s 1 children from her custody, failed to provide Plaintiff with notice of her custody hearings, 2 denied Plaintiff her right to make medical decisions for her children, and failed to comply 3 with state court orders. (Doc. 19.) 4 Defendants moved to dismiss Plaintiff’s original complaint (Doc. 13), and the Court 5 granted that motion (Doc. 19). The Court dismissed without leave to amend the following 6 claims: 7 • Plaintiff’s § 1983 claim based on alleged violations of her Fifth Amendment 8 rights because the Fifth Amendment “protects [a plaintiff] only against only 9 federal government action,” Fidelity Fin Corp. v. Fed. Home Loan Bank, 792 10 F.2d 1432 , 1435 (9th Cir. 1986), and none of the Defendants are federal actors; 11 • Plaintiff’s § 1983 claim predicated on an allegedly inadequate investigation 12 because the claim was an impermissible collateral attack on a state court order; 13 and 14 • Plaintiff’s § 1983 claim predicated on lack of notice of the custody hearings 15 because (1) Plaintiff’s complaint acknowledged that she received notice and 16 appeared at these hearings and (2) the claim was an impermissible collateral 17 attack on a state court order. 18 The Court dismissed the remaining claims—for intentional infliction of emotional 19 distress and those brought under § 1983 based on alleged judicial deception, failure to 20 follow court orders, and interference with Plaintiff’s right to make medical decisions for 21 her children—with leave to amend. The Court explained that any amended complaint must 22 comply with the requirements of Federal Rules of Civil Procedure 8, 10, and 11. (Doc. 19.) 23 Plaintiff thereafter filed her FAC (Doc. 25), which Defendants have again moved to 24 dismiss (Doc. 29). The FAC does not comply with Rule 8, which requires a complaint to 25 include, in relevant part, “a short and plain statement of the claim showing that the pleader 26 is entitled to relief.” Plaintiff’s original complaint was 17 pages. Despite the Court granting 27 Plaintiff permission to amend only half of her original claims, Plaintiff’s FAC is 66 28 pages—nearly quadruple the length of the original pleading. Nor does Plaintiff’s FAC 1 comply with Rule 10, which requires that a complaint “state its claims . . . in numbered 2 paragraphs, each limited as far as practicable to a single set of circumstances.” Instead, 3 Plaintiff’s FAC is a sprawling narrative, making it difficult for the Court to understand 4 which allegations pertain to which claims.1 The Court also notes that Plaintiff’s FAC 5 appears to re-assert the Fifth Amendment, inadequate investigation, and lack of notice 6 claims that the Court previously dismissed without leave to amend. The Court will not 7 address those claims in this order because they have already been dismissed and the Court 8 did not grant Plaintiff permission to amend these claims. Moreover, given the convoluted 9 nature of Plaintiff’s FAC, the Court will resolve Defendants’ latest motion to dismiss by 10 focusing on the specific arguments raised in the briefing.2 11 II. Legal Standard 12 To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient 13 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 14 Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013). “A claim has facial plausibility 15 when the pleaded factual content allows the court to draw the reasonable inference that the 16 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 17 “The plausibility standard requires more than the sheer possibility or conceivability that a 18 defendant has acted unlawfully.” Zixiang Li, 710 F.3d at 999 . Further, “the complaint must 19 provide ‘more than labels and conclusions.’” In re Rigel Pharmaceuticals, Inc. Securities 20 Litig., 697 F.3d 869, 875 (9th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 21 544, 555 (2007)). “In evaluating a Rule 12(b)(6) motion, the [C]ourt accepts the 22 complaint’s well-pleaded factual allegations as true and draws all reasonable inferences in [23] 1 In contrast, Plaintiff’s original complaint was organized into separately numbered 24 paragraphs. 2 For example, Defendants understand Plaintiff’s allegations of judicial deception 25 to be predicated on four statements made in the juvenile dependency petition. (Doc. 29 at 6.) Plaintiff’s response brief does not refute this understanding of her claim, so the Court 26 operates on the presumption that Defendants have adequately described the factual basis for Plaintiff’s claim. The Court will not comb through each of the 66 pages of Plaintiff’s 27 narrative FAC in search of additional statements that conceivably could underpin Plaintiff’s judicial deception claim, when Plaintiff’s response brief has not directed the 28 Court to any specific allegations in her FAC beyond those identified in Defendants’ motion to dismiss or disputed Defendant’s understanding of her claim. 1 the light most favorable to the plaintiff.” Adams v. U.S. Forest Srvc., 671 F.3d 1138 , 1142– 2 43 (9th Cir. 2012). However, the Court “does not have to accept as true conclusory 3 allegations in a complaint or legal claims asserted in the form of factual allegations.” In re 4 Tracht Gut, LLC, 836 F.3d 1146, 1150 (9th Cir. 2016). A Rule 12(b)(6) motion “can be 5 based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 6 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 , 699 7 (9th Cir. 1990). 8 “[P]ro se complaints, however inartfully pleaded, are held to less stringent standards 9 than formal pleadings drafted by lawyers.” Lazarescu v. Ariz. State Univ., 230 F.R.D. 596 , 10 600 (D. Ariz. 2005). What’s more, “[i]n civil rights cases where the plaintiff appears pro 11 se, the court must construe the pleading liberally and must afford plaintiff the benefit of 12 any doubt.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621 , 623 (9th Cir. 1988). If the 13 liberally construed pleading fails to state a claim for relief, the Court “should grant leave 14 to amend even if no request to amend the pleading was made, unless the Court determines 15 that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. 16 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 17 III. Analysis 18 A. Federal Claims 19 To prevail in a § 1983 action, a plaintiff must show that (1) the acts of the defendants 20 (2) under color of state law (3) deprived her of federal rights, privileges, or immunities and 21 (4) caused her damage. Thornton v. City of St. Helens, 425 F.3d 1158 , 1163–64 (9th Cir. 22 2005). “Section 1983 is not itself a source of substantive rights, but merely provides a 23 method for vindicating federal rights elsewhere conferred.” Id. at 1164 . Defendants 24 concede that they acted under color of state law, but they contend that the FAC fails to 25 plausibly plead a deprivation of Plaintiff’s constitutional rights. The Court agrees. 26 1. Judicial Deception 27 There is “a constitutional right under the Due Process Clause of the Fourteenth 28 Amendment to be free from judicial deception and fabrication of evidence in the context 1 of civil child custody cases.” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1146 (9th 2 Cir. 2021). To allege a violation of the constitutional right to be free from judicial 3 deception, a plaintiff must plead “(1) a misrepresentation or omission (2) made deliberately 4 or with a reckless disregard for the truth, that was (3) material to the judicial decision.” Id. 5 at 1147. A judicial deception claim cannot be based on merely negligent omissions or 6 misstatements, good faith mistakes, or a defendant’s erroneous assumptions about the 7 evidence. See Ewing v. City of Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009). What’s more, 8 a judicial deception claim must meet the higher pleading standard under Federal Rule of 9 Civil Procedure 9(b), which requires that the pleading “state with particularity the 10 circumstances constituting [the] fraud.” In other words, a plaintiff must allege “the who, 11 what, when, where, and how of the misconduct charged,” including what is false or 12 misleading about a statement and why it is false. Ebeid ex rel. United States v. Lungwitz, [13] 616 F.3d 993, 998 (9th Cir. 2010). 14 Plaintiff’s FAC fails to state a judicial deception claim because Plaintiff has not 15 alleged facts plausibly showing that Defendants made deliberate or reckless misstatements 16 or omissions to the juvenile court. Plaintiff alleges that Defendants falsely represented to 17 the juvenile court that there was sufficient probable cause to order the removal of Plaintiff’s 18 children. (Doc. 25 at 15.) This statement is nonactionable because it reflects Defendants’ 19 assumptions and opinions about the strength of the evidence. Plaintiff alleges that 20 Defendants falsely stated that the family had no one immediately available to assist in 21 managing safety threats. (Id. at 17.) But the FAC fails to allege that there was, in fact, 22 family available to assist. And even if there were, the FAC fails to allege that Defendants 23 made this misrepresentation deliberately or recklessly, as opposed to negligently or in good 24 faith. Plaintiff alleges that Defendants falsely stated Plaintiff was selling and using drugs 25 out of the home. (Id. at 16.) But, again, she fails to allege facts plausibly showing that this 26 statement, if inaccurate, was made deliberately or recklessly, rather than negligently or in 27 good faith. Indeed, M.M. had twice tested positive for methamphetamine and Defendants 28 had received a report stating that methamphetamine was discovered in the home. (Doc. 25 1 at 11, 31; Doc. 25-1 at 18.) Finally, Plaintiff alleges that Defendants falsely stated M.M. 2 has a history of suicidal ideations. (Doc. 25 at 20.) Yet the FAC acknowledges that M.M. 3 had made such an attempt in the past. (Id.) The FAC therefore fails to plausibly allege this 4 statement was false. 5 Rather than allege with particularity how each of Defendants’ statements were 6 deliberately or recklessly false, Plaintiff appears to quarrel with the thoroughness of 7 Defendants’ investigation and the reasonableness of the conclusions they drew from the 8 evidence. But, as noted, the Court did not permit amendment on an inadequate 9 investigation theory, and a judicial deception claim cannot be based on a defendant’s 10 erroneous assumptions about the evidence. This claim will be dismissed, but with leave to 11 amend because it is possible Plaintiff can cure these problems through the allegation of 12 more specific facts. 13 2. Right to Make Medical Decisions for Children 14 “The right to family association includes the right of parents to make important 15 medical decisions for their children, and of children to have those decisions made by their 16 parents rather than the state.” Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 2000). Here, 17 however, Plaintiff fails to allege a plausible violation of such right. The FAC mentions a 18 recommendation for testosterone therapy for M.M. but goes on to acknowledge that 19 Plaintiff received notice of that recommendation and acted on it by successfully petitioning 20 the juvenile court against the performance of such a procedure. (Id.) The FAC does not 21 plausibly allege that Plaintiff was deprived of her right to make this medical decision. The 22 FAC also alludes to “a minor surgical procedure to remove a mole from M.M.,” but offers 23 no details about whether this was another recommendation or a completed procedure, what 24 medical decision(s) were ultimately made, and by whom, making it impossible to ascertain 25 whether Plaintiff was deprived of her rights. This claim will be dismissed, but with leave 26 to amend. 27 3. Religious Rights 28 Parents have a constitutionally protected interest in guiding the religious upbringing 1 of their children. See Wisconsin v. Yoder, 406 U.S. 205, 213-24 (1972). The FAC states 2 that Plaintiff and her children are Jewish, and conclusorily alleges that Defendants “placed 3 unjustified restrictions on the children’s ability to practice their Jewish faith.” (Doc. 25 at 4 21.) But the FAC fails to explain what these restrictions were and how they were placed 5 upon Plaintiff’s children. This claim will be dismissed with leave to amend. 6 4. Perjury 7 The FAC appears to bring a claim against Defendants for perjury in violation of 18 8 U.S.C. § 1621 . But § 1621 is a “federal criminal statute” that “does not give rise to civil 9 liability.” Howard v. Paye, 188 F.Supp.3d 496, 499 (E.D. Pa. 2016). This claim will be 10 dismissed without leave to amend. 11 B. State Law Tort Claims 12 1. Intentional Infliction of Emotional Distress 13 A claim for intentional infliction of emotional distress requires: (1) the defendant 14 engage extreme and outrageous conduct; (2) the defendant either intend to cause emotional 15 distress or recklessly disregard the near certainty that such distress will result from his 16 conduct; and (3) severe emotional distress occur because of the defendant’s actions. Ford 17 v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 1987). Plaintiff does not allege sufficient facts for 18 any of the three required elements. The allegations in the FAC—namely, that Plaintiff’s 19 children were removed from her custody pursuant to a court order after an investigation 20 that Plaintiff believes could have been more thorough—does not plausibly rise to the level 21 of extreme and outrageous. Nor does the FAC allege that Defendants undertook their 22 investigation or petitioned for the removal of her children with the intent to cause her 23 emotional distress or in reckless disregard of the near certainty that she would feel such 24 distress. What’s more, “[i]t appears the Arizona Supreme Court has never found severe 25 emotional distress in the absence of physical harm,” Unknown Party v. Ariz. Bd. of Regents, 26 No. CV-18-01623-PHX-DWL, 2019 WL 7282027 , at *16 (D. Ariz. Dec. 27, 2019), and 27 the FAC does not allege that Plaintiff’s emotional distress manifested itself physically. This 28 claim will be dismissed with leave to amend. 1 2. Malicious Prosecution 2 “The elements of malicious prosecution include (1) the institution of a proceeding, 3 (2) actuated by malice, (3) without probable cause by the defendant in this action, (4) which 4 terminated in the plaintiff's favor, and (5) caused him damages” Bird v. Rothman, 627 P.2d 5 1097, 1100 (Ariz. Ct. App. 1981). Plaintiff’s malicious prosecution claim necessarily fails 6 because the juvenile court proceeding did not resolve in her favor. This claim is dismissed 7 without leave to amend. 8 3. Defamation 9 “In an ordinary defamation action between private individuals, a speaker may be 10 liable for damages if a falsehood is published that injures the plaintiff's reputation.” Rogers 11 v. Mroz, 502 P.3d 986, 990 (Ariz. 2022). The FAC alleges that Defendant Powell defamed 12 Plaintiff during a team decision meeting when she told her that she had evidence Plaintiff 13 had violated a safety plan and court orders. (Doc. 25-1 at 11.) Although Plaintiff disagrees 14 that she was in violation, the FAC fails to allege facts plausibly showing that Defendant 15 Powell had not received evidence indicative of such violations, nor does the FAC allege 16 damage to Plaintiff’s reputation. This claim will be dismissed, but with leave to amend. 17 4. Invasion of Privacy 18 “One who intentionally intrudes, physically or otherwise, upon the solitude or 19 seclusion of another or his private affairs or concerns, is subject to liability to the other for 20 invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” 21 Hart v. Seven Resorts Inc., 947 P.2d 846, 853 (Ariz. Ct. App. 1997) (quoting Restatement 22 (Second) of Torts § 652B)). Aside form listing “invasion of privacy” in the introduction of 23 her FAC (Doc. 25 at 7), Plaintiff fails to plead facts to support this claim. It will be 24 dismissed, but with leave to amend. 25 5. Abuse of Process 26 “The elements of an abuse-of-process claim are (1) a willful act in the use of judicial 27 process; (2) for an ulterior purpose not proper in the regular conduct of the proceedings.” 28 Crackel v. Allstate Ins. Co., 92 P.3d 882, 887 (Ariz. Ct. App. 2004) (internal quotations and citation omitted). The Court understands this claim to be based on the juvenile 2 || dependency proceedings. Although Plaintiff disagrees with the outcome of the proceedings 3|| and believes Defendants’ investigation was flawed, she has not plausibly alleged that 4|| Defendants petitioned the juvenile court for an ulterior and improper purpose. This claim 5 || will be dismissed, but with leave to amend. 6 IT IS ORDERED that Defendants’ motion to dismiss (Doc. 29) is GRANTED as explained herein. 8 IT IS FURTHER ORDERED that, by no later than April 30, 2025, Plaintiff may 9|| file a second amended complaint if she believes she can cure the defects identified in this order.? Any amended complaint must comply with Federal Rules of Civil Procedure 8—11. 11 || To facilitate compliance with Rule 8, the Court imposes a 20-page limit on any second 12 || amended complaint Plaintiff might choose to file. See Gjovik v. Apple Inc., No. 23-cv13} 04597-EMC, 2024 WL 5049090 , at *1 (N.D. Cal. Nov. 20, 2024) (“It is not uncommon || for courts to impose page limits, even for pleadings.”). If Plaintiff does not file a second 15 || amended complaint within the timeframe specified herein, the Clerk of the Court is directed 16 || to terminate this case without further order. 17 Dated this 31st day of March, 2025. [19] 20 {Z, 21 _- {UO 22 Sout United States District Judge [26] > The Court recognizes that Defendants have raised qualified and absolute immunity defenses, but it is difficult for the Court to assess whether Defendants are entitled to any immunities when the factual basis for Plaintiff's claims remains so nebulous. The Court 28] will reserve judgment on these immunity arguments until it has a better understanding of the factual basis for Plaintiffs claims. -9-