United States District Court, D. Arizona
G. Campbell, United States District Judge.
Plaintiff Joseph Montes filed a complaint against Defendants
Lora Fernandez, Brenda Spence, and Deena Steinmetz, alleging
deprivations of his Fourth and Fourteenth Amendment rights.
Doc. 1. Fernandez has filed a motion to dismiss the complaint
under Rule 12(b)(6). Doc. 28. Plaintiff responded (Doc. 32),
and Defendant did not reply. No party requests oral argument.
The Court will grant the motion.
purposes of this motion, Plaintiff's factual allegations
are accepted as true. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). On April 29, 2017, Fernandez, a private
citizen, filed a false complaint with the Arizona Department
of Child Safety (“DCS”) regarding Plaintiff's
treatment of his three minor children. Doc. 1 at 2. As a
result of this complaint, DCS employee Spence authorized the
removal of the three children from Plaintiff's custody.
Id. On May 2, 2017, DCS employee Steinmetz removed
the children from their schools and took them into DCS
custody. Id. At a subsequent court hearing, a
commissioner granted DCS temporary custody of Plaintiff's
seeks $5 million in damages for alleged violations of his
Fourth and Fourteenth Amendment rights. Id. at 3.
successful motion to dismiss under Rule 12(b)(6) must show
either that the complaint lacks a cognizable legal theory or
fails to allege facts sufficient to support its theory.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss as
long as it contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim has facial plausibility when
“the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).
“The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. The Ninth Circuit has
directed district courts to “‘construe [pro se]
pleadings liberally and . . . afford [pro se parties] the
benefit of any doubt.'” Byrd v. Phx. Police
Dep't, 885 F.3d 639, 642 (9th Cir. 2018) (quoting
Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.
1985) (en banc)).
Court interprets Plaintiff's complaint as a 42 U.S.C.
§ 1983 action alleging violations of his Fourth and
Fourteenth Amendment rights. See Doc. 32 (arguing
§ 1983 standards). Fernandez contends that the complaint
against her must be dismissed because a § 1983 claim
cannot be brought against a private citizen. Doc. 28 at 1-2.
1983 is a vehicle by which plaintiffs can bring federal
constitutional and statutory challenges to actions by state
and local officials.” Naffe v. Frey, 789 F.3d
1030, 1035 (9th Cir. 2015) (internal quotation marks
omitted). To state a claim under § 1983, a plaintiff
must allege two elements: (1) the violation of a right
secured by the Constitution or laws of the United States, (2)
by a person acting under the color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988). Dismissal of a §
1983 claim “is proper if the complaint is devoid of
factual allegations that give rise to a plausible inference
of either element.” Naffe, 789 F.3d at 1036.
person acts under color of state law if she exercises
“power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the
authority of state law.” West, 487 U.S. at 49
(internal quotation marks omitted). This requirement
generally limits § 1983 suits to claims against public
officials. To establish that a private individual like
Fernandez acted under color of state law, a plaintiff must
show that the individual “conspired or acted jointly
with state actors” to deprive the plaintiff of his
constitutional rights. Radcliffe v. Rainbow Const.
Co., 254 F.3d 772, 783 (9th Cir. 2001) (citing
United Steelworkers v. Phelps Dodge Corp., 865 F.2d
1539, 1540 (9th Cir. 1989)). “A mere allegation of
conspiracy without factual specificity is
insufficient.” Karim-Panahi v. L.A. Police
Dep't, 839 F.2d 621, 626 (9th Cir. 1988). Plaintiff
must plead evidence of “‘an agreement or meeting
of the minds to violate constitutional rights.'”
Radcliffe, 254 F.3d at 783 (quoting Phelps
Dodge, 865 F.2d at 1540-41).
complaint contains a single allegation about Fernandez:
“On April 29, 2017, Lora Morales Fernandez, made false
allegations to the Department of Child Safety hotline, which
led to the involuntary removal of my three children . . .
from their schools.” Doc. 1 at 2. The complaint does
not allege that Fernandez conspired or acted jointly with
state actors to deprive the plaintiff of his constitutional
rights. Radcliffe, 254 F.3d at 783. The Court
accordingly will dismiss the complaint against
response does not cure this deficiency. He offers a
conclusory assertion that Fernandez conspired with DCS
employees, but the Court must limit its review to the
well-pled allegations in the complaint. Van Buskirk v.
Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.
2002) (“Ordinarily, a court may look only at the face
of the complaint to decide a motion to dismiss.”).