PHYLLIS J. HAMILTON, United States District Judge.
Before the court is the motion of plaintiff Joe L. Caetano for an order allowing him to proceed in forma pauperis. The court has reviewed the complaint and finds that it must be dismissed under 28 U.S.C. § 1915.
INTRODUCTION
Pro se plaintiff Joe E. Caetano filed this action individually and on behalf of his unidentified minor children and the "Caetano Family," alleging violations of his civil and constitutional rights in connection with court proceedings involving child custody and visitation, and also asserting numerous state law claims, including civil conspiracy, intentional and negligent infliction of emotional distress, "frustration of visitation and custody," and "induced systematic parental alienation." Plaintiff alleges that the defendants conspired to, among other things, sever the relationship between plaintiff and his children by denying him custody and visitation rights. Plaintiff also alleges that defendants placed his children in the custody of "known sexual predators." He seeks damages and declaratory and injunctive relief.
Defendants are the County of Santa Clara, California ("the County"); the Santa Clara County Board of Supervisors ("the Board of Supervisors"); five Santa Clara County Supervisors (James Beall, Donald Gage, Blanca Alvarado, Pete McHugh, S. Joseph Simitian); five judges or commissioners of the California Superior Court, County of Santa Clara (Jamie Jacobs-May, James Stewart, Paul Bernal, Richard Turrone, and Leonard Edwards); the District Attorney of Santa Clara County (George Kennedy), and two deputy District Attorneys (Jerry Nadler and Robert Masterson); the Sheriff of Santa Clara County (Leslie Packer); three attorneys involved in the child custody and visitation proceedings (Michael Schwerin, Elizabeth Shivell, and John Padilla); a psychologist employed by the Santa Clara County Department of Social Services (Leslie Packer); plaintiff's ex-wife and the mother of his children (Judy Lopez); Judy Lopez's husband (Gregorio Lopez); and two other individuals (Antonio Bettencourt, and Cecilia Bettencourt).
The court has carefully reviewed the complaint, and finds that it constitutes an impermissible attempt to collaterally attack the state court custody proceedings. In addition, the claims alleged against the judges and commissioners, the District Attorney, the deputy District Attorneys, and the evaluating psychologist must be dismissed because those defendants are immune from suit. The claims against the County, and against the Sheriff and the members of the Board of Supervisors (County actors) must be dismissed because the Superior Court is an arm of the State of California, not the County, and plaintiff alleges no claims against the County that are not connected with the child custody and visitation rulings by the Superior Court. The constitutional claims alleged against the four private individuals and the three attorneys must be dismissed because those defendants are not state actors. Finally, having dismissed the federal claims against the four individuals and the three attorneys, the court has discretion to dismiss any supplemental state law claims.
DISCUSSION
A. Legal Standard
The court may authorize a plaintiff to file an action in federal court without prepayment of fees or security if the plaintiff submits an affidavit showing that he or she is unable to pay such fees or give security therefor. 28 U.S.C. § 1915 (a). When a complaint is filed in forma pauperis, it must be dismissed prior to service of process if it is frivolous or malicious, fails to state a claim, or seeks monetary damages from defendants who are immune from suit. See 28 U.S.C. § 1915 (e)(2); see also Franklin v. Murphy, 745 F.2d 1221, 1226-27 (9th Cir. 1984). When a complaint is dismissed under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (dismissal of complaint as frivolous).
A complaint is frivolous for purposes of § 1915(e) if it lacks any arguable basis in fact or in law. Neitzke v. Williams, 490 U.S. 319, 328-30 (1989). A complaint lacks an arguable basis in law only if controlling authority requires a finding that the facts alleged fail to establish an arguable legal claim. Guti v. INS, 908 F.2d 495, 496 (9th Cir. 1990). While the facts alleged in the complaint should generally be accepted as true for purposes of entering judgment on the pleadings, clearly baseless factual contentions may be dismissed as frivolous under § 1915. Denton v. Hernandez, 504 U.S. 25, 32 (1992).
B. Analysis
1. Claims Brought on Behalf of Plaintiff's Children and the "Caetano Family" Plaintiff brings the action on his own behalf and also on behalf of his children and a separate entity, the Caetano Family. Generally, plaintiffs do not have standing to bring claims based on the rights of third parties. Warth v. Seldin, 422 U.S. 490, 499 (1975). Under Federal Rule of Civil Procedure 17(c), when a minor has a representative, such as a general guardian or other like fiduciary, the representative may sue or defend on behalf of the minor. A minor who does not have a duly appointed representative may sue by next friend or by a guardian ad litem, who must be appointed by the court. In this case, it appears from the allegations in the complaint that plaintiff does not have physical or legal custody of the children (and may not even have visitation rights), and would therefore not be an appropriate guardian ad litem.
Moreover, plaintiff cannot sue in propria persona on behalf of his children or the Caetano Family. A nonattorney has no authority to appear on behalf of others. 28 U.S.C. § 1654. Therefore, a nonattorney parent of a minor must be represented by counsel in suing on behalf of the child. Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997); Osei-Afriyie v. Medical Coll. of Pennsylvania, 937 F.2d 876, 882-83 (3d Cir. 1991). Accordingly, all claims alleged on behalf of plaintiffs' children or the Caetano Family must be dismissed.
2. Claims Against Defendants Who Are Immune From Suit
A number of the defendants named in the amended complaint must be dismissed because they are immune from suit. Under 28 U.S.C. § 1915 (e)(2), the court is required to dismiss any case brought in forma pauperis if the court determines, among other things, that the action seeks monetary relief from a defendant who is immune from such relief.
a. The judges
The Supreme Court has conclusively granted absolute immunity to judges from damage liability for acts of a judicial nature. Forrester v. White, 484 U.S. 219, 227-229 (1988); see also Stump v. Sparkman, 435 U.S. 349, 355-57 (1978); Pierson v. Ray, 386 U.S. 547, 553-55 (1967). Judicial immunity applies to actions brought under 42 U.S.C. § 1983 for acts committed within the scope of judicial duties, "even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." Stump, 435 U.S. at 356. "[A] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction." Id. at 356-37; see also Forrester, 484 U.S. at 227 (a judicial act "does not become less judicial by virtue of an allegation of malice or corruption of motive"); Mireless v. Waco, 502 U.S. 9, 12 (1991). In this case, Judges Jacobs-May, Stewart, Bernal, Turrone, and Edwards are immune from suit for damages because the claims against each are based on acts performed in his/her capacity as a judge presiding over the custody proceedings involving plaintiffs' children.
To the extent that plaintiff seeks injunctive relief with regard to judicial rulings, the Anti-Injunction Act bars federal courts from enjoining proceedings in state court "except as authorized by Act of Congress or where necessary in aid of its jurisdiction. . . ." 22 U.S.C. § 2283. Moreover, a losing party in a state court proceeding is barred from seeking review of the judgment in a federal district court by claiming that the state court judgment violated loser's federal constitutional rights which were "inextricably intertwined" in the state court proceedings. Puerto Rico Aqueduct Sewer Auth. v. Metcalf Eddy, Inc., 506 U.S. 139, 146 (1993).
b. The prosecutors and the court psychologist
Absolute immunity from liability has been accorded state employees responsible for the prosecution of child neglect and delinquency petitions, as well as psychologists and psychiatrists who provide information and findings for use in such proceedings by the Department of Social Services. Babcock v. Tyler, 884 F.2d 497, 501-02 (1989), cert. denied, 493 U.S. 1072 (1990). "Such persons are accorded absolute immunity because their participation in the court proceedings is an integral part of the judicial process." Id. at 502. In this case, plaintiff alleges that defendant psychologist Leslie Packer, Ph.D., conducted an evaluation of plaintiff in September 1997 relating to custody and visitation issues, and that Packer's evaluation was instrumental in "sever[ing] the relationship of the plaintiff with his children." Because Packer's evaluation was used by the Santa Clara County Superior Court in the proceedings to determine custody of plaintiffs' children, Packer is immune from liability.
Prosecutors are absolutely immune from liability under 42 U.S.C. § 1983 when engaged in initiating a prosecution or presenting the state's case. Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986) (en banc). "If the government attorney is performing acts "intimately assciated with the judicial phase" of the litigation, that attorney is entitled to absolute immunity from damage liability. Dillman v. Peterson, 1993 WL 226104, *5 (N.D. Cal. June 21, 1993) (citing Flood v. Harrington, 532 F.2d 1248, 1251 (9th Cir. 1976)). Consequently, prosecutors are absolutely immune from civil suits alleging wrongdoing with regard to post-litigation as well as pre-litigation handling of a case. Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984), cert. denied, 469 U.S. 1127 (1985); see also Milstein v. Cooley, 257 F.3d 1004, 1008-10 (9th Cir. 2001). Therefore, defendant District Attorney George Kennedy and defendant deputy District Attorneys Jerry Nadler and Robert Masterson are immune from suit in connection with any claims relating to the prosecution of proceedings involving plaintiff's children.
2. Validity of Federal Claims
a. Section 1983 claims
Title 42 U.S.C. § 1983 a cause of action for the `deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990). To state a claim under § 1983, a plaintiff must allege two essential elements: 1) that a right secured by the Constitution or laws of the United States was violated, and 2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff must assert the violation of a federal "right," not merely the violation of federal "law." Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989).
Plaintiff's § 1983 claims fail because he does not allege a viable claim against any person who was acting under color of state law, but who is not immune from suit. As discussed above, the judges, prosecutors, and court psychologist are immune from suit because the actions plaintiff complained of were taken in the course of their official responsibilities in connection with the child custody proceedings. Plaintiff fails to state a claim against the County, the members of the Board of Supervisors, or the Sheriff because the actions he complains of all relate to the judicial proceedings involving plaintiffs children, and the County and its elected officials do not control the operation of the Superior Court. Plaintiff cannot state a claim against the private attorneys because they are not state actors. See Franklin v. State of Oregon. State Welf. Div., 662 F.2d 1337, 1345 (9th Cir. 1981), aff'd in part, rev'd in part on other grounds, 745 F.2d 1221 (9th Cir. 1984) (retained and court-appointed counsel do not act under color of state law). Similarly, the private individual defendants (Judy Lopez, Gregorio Lopez, Antonio Bettencourt, and Cecilia Bettencourt) cannot be considered state actors.
Plaintiff appears to concede in the complaint that the defendant judges are immune from suit, but asserts that state judges can be found criminally liable under 18 U.S.C. §§ 241 and 242, which he refers to as "the criminal analog of 1983/1985/1987." However, §§ 241 and 242, which proscribe conspiracy against the rights of citizens and deprivation of rights under color of law, provide no basis for civil liability. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); see also Polk County v. Dodson, 454 U.S. 312, 320-21 n. 9 (1981).
b. Section 1985 claims
Plaintiff asserts a claim under § 1985, but does not allege any facts in support of that claim. He alleges only that he brings the action under § 1985 "for conspiring to intimidate a class of persons from seeking federal judicial relief." Section 1985(2) contains two clauses, one pertaining to access to the federal courts, and one concerning access to "state or territorial" courts. The court interprets plaintiffs claim as falling under the first of these clauses.
Conspiracy to obstruct justice in federal courts occurs when "[t]wo or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein. . . ." 42 U.S.C. § 1985 (2). A plaintiff need not show that he is a member of a protected class in order to recover under subsection (2). Kush v. Rutledge, 460 U.S. 719, 726-27 (1983). Thus, to state a claim under § 1985(2), plaintiff must allege facts showing 1) a conspiracy 2) to deter him from attending or testifying in a federal court, which 3) results in injury to him. See David v. United States, 820 F.2d 1038, 1040 n. 3 (9th Cir. 1987). Plaintiff alleges no facts indicating that defendants' actions have deterred him from attending court or from testifying freely in any pending matter. Accordingly, the § 1985 claim must be dismissed for failure to state a claim.
Plaintiff also asserts a claim under 42 U.S.C. § 1987, which provides that United States attorneys, marshals and deputy marshals, United States Magistrate Judges, and "every other officer who is especially empowered by the President," are authorized and required to institute prosecutions against all persons violating 42 U.S.C. § 1990 or certain specified sections of Title 18 of the United States Code. Section 1987 does not provide for a private right of action. Nor does it divest United States Attorneys of their normal prosecutorial discretion with regard to the crimes specified. See Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 380-81 (2nd Cir. 1973). Moreover, plaintiff points to no statutory language that even arguably creates any duty on the part of state or county officials to bring such prosecutions. See id. at 382. Accordingly, plaintiff cannot state a claim under § 1987.
CONCLUSION
Stripped of its excess verbiage, the complaint essentially alleges that the Superior Court of the State of California deprived plaintiff of the custody of his children by awarding custody to his ex-wife, the mother of those children. The remainder of the complaint is replete with vague and conclusory allegations of a massive conspiracy by judges, legislators, attorneys, and a court psychologist to place plaintiffs children in proximity to a "sexual predator" (rather than in plaintiffs custody) and to cover up that conspiracy. These claims are essentially "nothing more than an impermissible collateral attack on prior state court decisions," Branson v. Nott, 62 F.3d 287, 291-92 (9th Cir. 1995), cert. denied, 516 U.S. 1009 (1995), and lie outside this court's subject matter jurisdiction. It is irrelevant whether federal constitutional issues are at stake. Id. at 291. Federal courts are not courts of appeal from state decisions. District of Columbia Court of Appeals v. Feldman, 460 U.S. appellate tribunals to review errors allegedly committed by state courts. Mackay v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987).
Further, the Supreme Court has held that federal courts do not have jurisdiction over cases involving divorce, alimony, or child custody. Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992); see also Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir. 1983) (federal courts lack jurisdiction over local matters such as child custody disputes). In California, parents in child custody or dependency proceedings can appeal or otherwise challenge the legality of the proceeding itself. See, e.g., Cal. Civil Code § 238, Cal. Weif. Inst. Code §§ 395, 800. Parents can seek custody orders in the California Superior Court that has jurisdiction over the child, can seek agency review, and can file a suit in state court. Mazur v. Shelton, 637 F. Supp. 330, 335-36 (N.D. Cal. 1986). If plaintiff is dissatisfied with the outcome of the custody proceedings involving his children, his remedy, if any, lies in state court.
In addition, once a state court takes jurisdiction over a child and enters a custody order, the court retains jurisdiction over subsequent custody issues. Thus, to the extent that 26 state proceedings regarding plaintiffs children may be ongoing, and plaintiff seeks to enjoin such proceedings, principles of abstention govern the case. See H.C. v. Koppel, 203 F.3d 27 610, 612-13 (9th Cir. 2000) (citing Younger v. Harris, 401 U.S. 37 (1971)). Younger abstention is required if the state proceedings are 1) ongoing, 2) implicate important state interests, and 3) provide the plaintiff an adequate opportunity to litigate federal claims. H.C., 203 F.3d at 613 (citations omitted). All three requirements are satisfied in this case.
The court is strongly of the opinion that repleading will not cure the deficiencies in the complaint. When it is absolutely clear that the deficiencies in a complaint cannot be overcome by amendment, the court need not provide an opportunity to amend. Cook Perkiss Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). Accordingly, the federal claims are DISMISSED with PREJUDICE. Having dismissed the federal claims, the court exercises its discretion to dismiss the supplemental state law claims. See 28 U.S.C. § 1367 (c)(3); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).
The clerk is ordered to close the file.
IT IS SO ORDERED.