Youhanna Sawaged v. Child Protection DCF Service Los Angeles

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