DONALD C. ASHMANSKAS, Magistrate Judge:
Plaintiff Reginald Delaney ("Plaintiff"), is appearing pro se on behalf of himself and his minor children, Arthur and Princess Delaney (the "Children"), in this civil rights action. In his complaint, Plaintiff alleges the defendants violated his and his children's rights under the "Fourteenth Amendment's privileges and immunities, equal protection and due process clauses" during the custody proceedings in which the court awarded custody of the Children to their mother, Kimberly Jones ("Defendant Jones"). Each of the defendants have filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6).
The caption of the complaint reads: "REGINALD DELANEY, personally and in his capacity as Next Friend for Arthur and Princess Delaney, his children."
LEGAL STANDARD
Courts grant motions to dismiss under Rule 12(b)(6) only if "it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Gibson v. United States, 781 F.2d 1334, 1347 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). The review is limited to the complaint, and all allegations of material fact are taken as true and viewed in the light most favorable to the non-moving party. Cassettari v. County of Nevada, 824 F.2d 735, 737 (9th Cir. 1987).
In civil rights cases involving a plaintiff proceeding pro se, this court construes the pleadings liberally and affords the plaintiff the benefit of any doubt. McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). However, a liberal interpretation of the complaint may not supply essential elements of the claim not initially pled. Pena v. Gardner, 976 F.2d 469 (9th Cir. 1992).
Before dismissing a pro se civil rights complaint for failure to state a claim, this court supplies the plaintiff with a statement of the complaint's deficiencies. McGuckin, 974 F.2d at 1055; Karim-Panahi, 839 F.2d at 623-24; Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se litigant will be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint can not be cured by amendment. Karim-Panahi, 839 F.2d at 623; Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987).
PRELIMINARY PROCEDURAL ISSUE
As noted above, Plaintiff has filed this pro se action on his own behalf and "as next friend" for the Children. No one disputes that Plaintiff is able to serve as "next friend" for the Children or that Plaintiff is able to appear pro se on his on behalf in this action. However, a nonattorney's right to represent himself is personal and may not be extended to allow him to appear as an attorney on behalf of others. The Ninth Circuit has held that an individual acting on behalf another in filing a lawsuit must retain legal counsel to represent him in his representative capacity. Johns v. County of San Diego, 114 F.3d 874 (9th Cir. 1997). While Plaintiff may act as next friend for the Children and include them in this lawsuit, he must retain legal counsel to protect the interests of the Children. The Children should be dismissed from this action with leave to refile after Plaintiff has retained legal counsel to protect their interests.
Plaintiff argues that this court should deny the motions of the State Defendants and Defendant Pamela Smith for failure to comply with Local Rule 7.1. The court notes that the compliance certificates include inconsistencies and that the motions do not comply with the specifics of Local Rule 7.1. Nevertheless, it is evident that the purpose behind, and the general requirements of, Rule 7.1 have been met. These defendants contacted Plaintiff prior to filing their motions in an attempt to resolve the issues in dispute and that attempt was unsuccessful. Plaintiff's argument that the court should deny the motions of these defendants for failure to comply with Rule 7.1 is rejected.
The State Defendants include Judge Merri Souther-Wyatt, the Oregon State Office for Services to Children and Families ("SOSCF"); Ramona Foley, Current Director of SOSCF; Kay Dean Toran, Past Director of SOSCF; Paul Drews, Regional Director of SOSCF; Joanne Fletcher, Mary Baker, Roger Carnegie, and Anani Chandler, all employees of SOSCF; and Oregon's Commission on Judicial Fitness
Taken literally, Local Rule 7.1 would allow the court to deny Plaintiff's motions to amend the complaint, which were presented in the body of his opposition briefs and did not include a certificate of compliance. The court is more concerned that the parties have attempted to resolve the issues presented in the motions before filing the motions and any evidence that this was attempted will go far toward meeting the requirements of Local Rule 7.1.
Plaintiff asks the court to sanction Defendant Smith's counsel for misrepresenting in the certificate of compliance that Gerald Itkin conferred with Plaintiff when co-counsel Susan Duniway was the one who contacted Plaintiff and executed the certificate over Gerald Itkin's signature. As noted above, the heart of Local Rule 7.1 was met by counsel's certificate. Plaintiff does not assert that he was not conferred with as noted in the certificate, only that the person who contacted was not the one named in the certificate. Plaintiff has not alleged, and is unable to allege, that he was damaged by the action in any way. The court recommends denying Plaintiff's motion for sanctions.
Finally, Plaintiff filed an affidavit in support of default against Defendant Jones. Defendant Jones answered the complaint two days later. In light of Plaintiff's failure to file a motion to accompany his affidavit and Defendant Jone's appearance shortly after the affidavit was filed and before the court acted on the affidavit, the court finds that Plaintiff is not entitled to a default order against Defendant Jones.
DISCUSSION
The State Defendants assert that Plaintiff is asking this court to impose damages on state agencies, officials and employees because the court did not find in his favor in a state child custody dispute. The State Defendants characterize this action as a request for review of the judgment of the state court and argue that this action is barred by the Rooker/Feldman doctrine.
The Rooker/Feldman doctrine teaches that a federal district court lacks jurisdiction to engage in appellate review of a state court judgment, even though the judgment may erroneously decide constitutional or federal law issues. "If the constitutional claims presented to a United States District Court are inextricably intertwined" with the merits of a judgment rendered in a state court proceeding, "then the District Court is in essence being called upon to review the state court decision. This the District Court may not do." District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 fn. 16 (1983). The United States Supreme Court is the only federal court with such power. Rooker v. Fidelity Trust Co. 263 U.S. 413, 416 (1923).
In Texaco, Inc. v. Pennzoil Co., 481 U.S. 1, 25 (1987), the United States Supreme Court explained that a claim is:
inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of that state-court judgment.
The Ninth Circuit compared the "inextricably intertwined" language of the Rooker/Feldman doctrine with the fully-litigated requirement of the res judicata doctrine in Robinson v. Ariyoshi, 753 F.2d 1468, 1472 (9th Cir. 1985) vacated on other grounds, 477 U.S. 902 (1986).
[t]he crux of the question is whether there has already been actual consideration of a decision on the issue presented. If consideration and decision have been accomplished, action in federal court is an impermissible "appeal" from the state court decision. If no consideration has been given, or any decision on the matter is ambiguous, it is unlikely that the issue presented to the state high court and to the federal court are so "inextricably intertwined" that the federal court cannon take jurisdiction.
The only issue before the state circuit court in the underlying state action was who would make a better parent for the Children. While it is evident that Plaintiff disagrees with the decision of the state court, he does not seek to overturn the decision in this action. This is distinguishable from all of the cases cited by the State Defendants where the plaintiff sought to enjoin the enforcement of the state court decision or to declare the state court decision unconstitutional and, therefore, invalid. Here, Plaintiff alleges only that his civil rights were violated by the manner in which the child custody hearing was conducted and seeks money damages for such constitutional claims. The record before the court indicates that the constitutional claims alleged in this complaint were not presented to, and not addressed by, the state courts. Accordingly, it appears on the surface that this action is not "inextricably intertwined" with the state court proceedings and that the Rooker/Feldman doctrine does not apply in this instance. However, a careful review of the specific allegations against a few defendants proves otherwise.
Plaintiff alleges that Judge Merri Souther-Wyatt, who presided over the state child-custody case, violated his civil rights by: vacating a order authorizing court-appointed counsel for the Children; ignoring evidence that Defendant Jones abused drugs and alcohol and physically and sexually abused the Children; ignoring evidence that Defendant Jones assaulted him with a car in the presence of the Children; terminating Plaintiff's parental right to review and consult with the Children's doctors; ordering Plaintiff to return his son to Defendant Jones; ordering Plaintiff to cease from reporting abuse to the Children by Defendant Jones to the authorities; notifying the Portland police department when Plaintiff reported another incident of abuse; refusing to allow Plaintiff to present evidence at a final hearing; and terminating all Plaintiff's parental rights to the Children while maintaining the obligation to pay child support.
Any consideration by this court with regard to Plaintiff's claims that Judge Souther-Wyatt erred or violated Plaintiff's constitutional rights by issuing these orders and rulings would require this court to consider the evidence presented to Judge Souther-Wyatt and would call into question her ultimate decision in the child custody dispute. These issues are inextricably intertwined with the underlying state court action and this court lacks subject matter jurisdiction to address them under the Rooker/Feldman doctrine.
Similarly, Plaintiff alleges that Defendant Smith, the family counselor that evaluated Plaintiff, Defendant Jones and the Children at the request of the court, downplayed Defendant Jones' "sexual activity with her toddler son" and her "ongoing drug and alcohol prove and abuse of the children" and recommended to the court continued custody by Defendant Jones. This report and recommendation was at the core of the child custody hearings. Any objection to the contents of the report and recommendation should have been presented to and considered by the court at the time of the hearing. The court requested the report and recommendation and almost certainly relied on it in making her custody determination. Consideration of the report and recommendation by this court would raise issues about the propriety of the state courts ultimate decision. Again, this court is barred from this consideration by the Rooker/Feldman doctrine.
The court acknowledges that Defendant Smith's counsel did not make this argument on her behalf. However, the court is obligated, sua sponte, to determine that it has jurisdiction over an action prior to proceeding. Accordingly, the court has applied the Rooker/Feldman analysis to all claims and defendants named in this action.
The other State Defendants are alleged to have aided and abetted the court in awarding custody of the Children to Defendant Jones and terminating Plaintiff's parental rights. Based on these allegations, it is unclear exactly what Plaintiff is complaining about. If Plaintiff contends that the State Defendants appeared at the hearing and presented evidence to the judge, such claims would be barred by the Rooker/Feldman doctrine. To the extent Plaintiff can allege other "unconstitutional" conduct that these defendants engaged in separate and apart from the custody proceeding, it is likely that these claims would not be barred by the doctrine. For example, Plaintiff alleges that the SOSCF defendants "failed to prevent my children's abuse they have suffered from Defendant Jones" and that defendant Toran "personally received letters from me concerning by children's abuse at Dean's Barber Shop." These allegations are sufficiently independent of the child custody proceedings to fall outside of the Rooker/Feldman doctrine and lay properly within this court's subject matter jurisdiction.
Plaintiff names as defendants Bradley Leachman, Laura Schantz, and Gevurtz, Menashe, Larson Howe, P.C., and James Cromar and Cromar Reynolds ("Legal Counsel"), the attorneys and law firms that represented both Plaintiff and Defendant Jones, respectively, in the custody matter. All claims based on allegations that Legal Counsel breached Plaintiff's constitutional rights during the proceeding or aided and abetted the trial court in terminating Plaintiff's parental rights is barred by the Rooker/Feldman doctrine. In light of the allegations indicating that Legal Counsel's involvement with Plaintiff is limited solely to the custody proceedings, Plaintiff has failed to state any claim against Legal Counsel that survives the application of the doctrine.
Additionally, the court finds that Plaintiff is unable to state a claim for relief under 42 U.S.C. § 1983 against Legal Counsel. 42 U.S.C. § 1983 provides, in pertinent part, that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
"To state a cause of action under § 1983 it is essential that the defendant has acted under color of state law." Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308, 312 (9th Cir. 1974) (citing Adickes v. S. H. Kress Co., 398 U.S. 144, 188 (1970) (Brennan, J., concurring opinion)). Attorneys are not considered "state actors" while representing a client in state court. Koenig v. Snead, 757 F. Supp. 41 (D.Or. 1991). However, an attorny may be subject to liability under section 1983 if it can be established that the attorney has conspired with state officials to violate an individual's civil rights. Dennis v. Sparks, 449 U.S. 24, 27-9 (1980). Here, any allegation against Legal Counsel for action unrelated to the child custody dispute would necessarily lack allegations of a conspiracy with state officials. Legal Counsel's only involvement with state officials was related to the child custody proceedings and this court lacks jurisdiction over these issues. Legal Counsel is entitled to dismissal with prejudice.
In summarizing the discussion of Plaintiff's claims under the Rooker/Feldman doctrine, a careful review establishes that the bulk of Plaintiff's allegations are "inextricably intertwined" with the underlying state court custody proceedings. Even assuming that Plaintiff's complaints are valid and everyone involved in the child custody proceeding was conspiring against him, the appropriate avenue for such complaints was through a direct appeal of the final judgment to the state court of appeals. This court has no jurisdiction over what is, in fact, an appeal of the substance of the state custody decision framed as a federal civil rights complaint. All claims and allegations relating to the child custody proceedings should be dismissed with prejudice as Plaintiff is unable to successfully amend these claims. These include all claims presently asserted against Judge Souther-Wyatt, Defendant Smith, and Legal Counsel and those claims asserted against the SOSCF Defendants that relate to the custody proceedings.
The defendants that have survived, at least to some degree, the court's recommendation with regard to the Rooker/Feldman doctrine are the SOSCF defendants, Oregon's Commission on Judicial Fitness and Defendant Jones. The court will now address the additional arguments asserted on behalf of each of these defendants.
The SOSCF defendants argue that they are not proper parties to a Section 1983 action in federal court and should be dismissed. The court agrees.
The State Offices for Services to Children and Families is not a proper party to a claim under 42 U.S.C. § 1983. The same is partially true with respect to the SOSCF employees, all of whom have been sued in their "official capacities." The Eleventh Amendment prevents suits by citizens of a state against the state in federal court. Welch v. State Dept. of Highways, 483 U.S. 468 (1987). A lawsuit against an individual in his "official capacity" is simply another way of suing the entity itself. Brandon v. Holt, 469 U.S. 464 (1985). Moreover, neither the state nor its officers in their official capacities are "persons" within the context of Section 1983 claims, and therefore cannot be sued under that statute. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Since no action lies against a state agency or individuals in their official capacities, the SOSCF and the SOSCF defendants sued in their official capacities should be dismissed.
Plaintiffs have also sued the SOSCF employees in their personal capacities. The above basis for dismissal does not act to dismiss these defendants in their individual capacities. See Hafer v. Melo, 502 U.S. 21 (1991). However, the complaint before the court does not allege any conduct by any SOSCF employee other than what they would perform in their official capacity. Accordingly, the complaint does not state a claim against these defendants in their "personal" or individual capacity and these defendants should be dismissed. The dismissal of the SOSCF employees should be without prejudice and with leave to Plaintiff to file an amended complaint subject to the additional restrictions set forth below.
In the complaint, Plaintiff appears to allege that the SOSCF employees failed to properly respond to his complaints of physical and sexual abuse against the Children by Defendant Jones. The court must determine whether Plaintiff has stated, or is able to state, a claim for relief under 42 U.S.C. § 1983 based on these allegations and the protection afforded Plaintiff under the Fourteenth Amendment.
Plaintiff alleges violations of the Fourteenth Amendment's "privileges and immunities, equal protection and due process clauses." The Privileges and Immunities Clause of the Fourteenth Amendment provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . ." U.S. Const. Amend. XIV, § 1. The Privileges and Immunities Clause of the Fourteenth Amendment should not be confused with the Privileges and Immunities Clause of Art. IV, § 2 of the United States Constitution, which pertains to discrimination between citizens in interstate commerce. In contrast, the Privileges and Immunities Clause of the Fourteenth Amendment narrowly applies to privileges and immunities of federal citizenship such as the right of citizens to vote in federal elections, the right to enter public lands, and to petition Congress.
The SOSCF employee's conduct toward Plaintiff did not violate any of the federal privileges and immunities guarantees within the scope of the Privileges and Immunities Clause of the Fourteenth Amendment. Therefore, Plaintiff does not, and can not, state a valid constitutional deprivation for purposes of his § 1983 claim on the basis of any violation of the Privileges and Immunities Clause of the Fourteenth Amendment.
The Fourteenth Amendment's Equal Protection Clause guarantees that similar individuals will be dealt with in a similar manner by the government. In order to state a claim for equal protection, Plaintiff must allege that he is a member of a disfavored group and that he was denied equal treatment as a result of his membership in that group. Heckler v. Mathews, 465 U.S. 728, 740 (1984).
Plaintiff has not alleged in his complaint that he was treated differently by the SOSFC as a result of his membership in a disfavored group. Accordingly, Plaintiff has not alleged a valid claim under the Equal Protection Clause of the Fourteenth Amendment.
In his opposition memorandum, Plaintiff indicates that he is African American. He also states that he believes certain defendants acted under the premise that males are dangerous to women and should not be allowed to raise their children. Based on this additional information, Plaintiff may be able to amend his complaint to allege a violation of his right to equal protection if he can allege that he was treated differently by the SOSFC employees as a result of his race or sex. In order to state a claim for equal protection, Plaintiff must allege that he was a member of a disfavored group and that he was denied equal treatment as a result of his membership in that group. Heckler v. Mathews, 465 U.S. 728, 740 (1984). Additionally, to succeed on a Section 1983 equal protection claim based on a suspect classification, Plaintiff must show that the SOSFC employees acted with an invidious discriminatory purpose. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). Finally, to meet the requirements discussed above, Plaintiff must allege that the SOSCF employees acted individually, or outside their authority.
To present a valid claim for violation of his procedural or substantive due process rights, Plaintiff must allege the deprivation of a liberty or property interest protected by the United States Constitution. Wedges/Ledges of California, Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir 1994). The Ninth Circuit recognizes a constitutional interest in familial companionship and society giving rise to a liberty interest. Morrison v. Jones, 607 F.2d 1269, 1275 (9th Cir. 1979), cert. denied, 445 U.S. 962 (1980); see also Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987) (parents have a constitutionally protected liberty interest in continued association with their children). Unlawful interference with this relationship can give rise to a procedural or substantive due process claim.
Whether the alleged interference with a liberty interest involves a substantive as opposed to a procedural violation depends on whether the interference was for "purpose of oppression" rather than for the purpose of furthering a legitimate state interest. Id. at 1419. Mere negligence or lack of due care by state officials does not trigger due process protection and, therefore, does not state a claim for a constitutional tort. Daniels v. Williams, 474 U.S. 327, 330-32 (1986); Stone v. Agnos, 960 F.2d 893, 895 (9th Cir. 1992).
Here, Plaintiff's sole allegations are that the SOSCF employees failed to prevent his children's abuse by their mother. Plaintiff has not alleged that he was deprived of their companionship as a result of SOSCF employee's failure to act. To the contrary, it appears that he retained his ability to visit the Children until Judge Souther-Wyatt terminated his custody and visitation rights. Additionally, he has failed to allege that SOSCF employee's failure to act intentional. Plaintiff has failed to state a valid claim for violation of his due process rights.
Plaintiff names Oregon's Commission on Judicial Fitness (the "Commission") as a party to this action and identities it as a division of the Oregon Judicial Department charged with investigating and disciplining judicial misconduct. No other allegations are made against the Commission. As with the SOSCF, the Commission is an agency of the State and is not subject to suit under 42 U.S.C. § 1983 and should be dismissed with prejudice.
Plaintiff's allegations against Defendant Jones call into question her ability as a mother. Plaintiff alleges that she violated Plaintiff's civil rights by "abusing our children and preventing their peace, safety, happiness, which I am able and willing to provide them." Additionally, Plaintiff lists a few specific instances in which Defendant Jones allegedly injured the Children. Defendant Jones was not acting under color of state law in mothering the Children. Plaintiff has failed to, and is clearly unable to, state a claim for relief under 28 U.S.C. § 1983 against Defendant Jones separate from her involvement in the child custody matter. She is entitled to be dismissed from this action with prejudice.
CONCLUSION
This court lacks subject matter jurisdiction under the Rooker/Feldman doctrine over all claims related to defendants' conduct with regard to the underlying child custody proceeding. Accordingly, Plaintiff's existing claims against Judge Souther-Wyatt, Defendant Smith, the SOSCF Defendants and Legal Counsel should be dismissed with prejudice. Plaintiff should be given leave to amend his claims against Judge Souther-Wyatt, Defendant Smith and the SOSCF employees to allege conduct unrelated to the child custody proceedings. The SOSCF, the Commission, Legal Counsel and Defendant Jones are entitled to dismissal with prejudice.
Based on this ruling, State Defendants motion (#3) to dismiss should be GRANTED and Legal Counsels' motions (#5 and #22) to dismiss and Defendant Smith's motion (#31) to dismiss should be DENIED as moot in light of the court's finding that it presently lacks subject matter jurisdiction over the claims asserted against these parties. Defendant Jones motion (#21) to dismiss should be GRANTED.
Plaintiff's motions (#29 and $45) to amend his claims against the State Defendants and Defendant Smith should be GRANTED. Plaintiff may amend his complaint to allege claims against Judge Souther-Wyatt, the SOSCF employees in their individual capacities and Defendant Smith that are unrelated to the child custody matter. Such complaint should be filed within 30 days of the adoption, if any, of this Findings and Recommendation by an Article III Judge. The dismissal of SOSCF, the Commission, Legal Counsel and Defendant Jones, should be with prejudice.
Plaintiff's motion for sanctions should be DENIED. The Children should be dismissed from this action with leave to refile after Plaintiff has retained legal counsel to protect their interests. Plaintiff's request, by affidavit, for a default order against Defendant Jones should be DENIED.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due May 8, 2000. If no objections are filed, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than May 22, 2000. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.