Berman v. Mcmanus, 2:11-cv-000635 MCE KJN PS

• Decision Date: 31 May 2011
• Docket Number: No. 2:11-cv-000635 MCE KJN PS,2:11-cv-000635 MCE KJN PS
• Parties: STANLEY P. BERMAN, Plaintiff, v. JULIE A. MCMANUS, LEANE RENEE, MARY HENZIE, LESLIE SCOTT, CAROLINE SHELLER, CHUCK ECKERMAN, GEORGE A. ROBERTS and DOES 1-10, Defendants.
• Court: U.S. District Court — Eastern District of California

STANLEY P. BERMAN, Plaintiff,

v.JULIE A. MCMANUS, LEANE RENEE,MARY HENZIE, LESLIE SCOTT,CAROLINE SHELLER, CHUCK

ECKERMAN, GEORGE A. ROBERTS

and DOES 1-10, Defendants.

No. 2:11-cv-000635 MCE KJN PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: May 31, 2011

ORDER and FINDINGS AND RECOMMENDATIONS

Presently before the court¹ are the following motions: (1) defendants Leslie Scott and Caroline Sheller's motion to dismiss plaintiff's claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 7); (2) defendant Leane Renee's motion to dismiss and/or specially strike plaintiff's claims against her pursuant to Federal Rule of Civil Procedure 12(b)(6)and California's anti-SLAPP² statute, Cal. Civ. Proc. Code § 425.16 (Dkt. No. 12); (3) defendant Honorable Julie A. McManus' ("Judge McManus") motion to dismiss plaintiff's claims against her pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Dkt. No. 15); and (4) defendant George A. Roberts's motion to dismiss and/or specially strike plaintiff's claims against him pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and California's anti-SLAPP statute (Dkt. No. 9).³

The court heard these motions on its law and motion calendar on May 19, 2011. (Dkt. No. 31.) Attorneys Carl Fessenden and Katherine L.M. Mola appeared on behalf of defendants Scott and Sheller. Attorney Jeffrey J.A. Hinrichsen appeared on behalf of defendant Renee. Deputy Attorney General Kevin W. Reager appeared on behalf of Judge McManus. Attorney Joseph F. Zellmer, III appeared on behalf of defendant Roberts. Plaintiff, who is an attorney, appeared on his own behalf.

The undersigned has considered the briefs, oral arguments, and the appropriate portions of the record in this case and, for the reasons stated below, recommends that: (1) Scott and Sheller's motion to dismiss be granted in part and that all claims against Scott and Sheller be dismissed with prejudice; (2) Renee's motion to dismiss and anti-SLAPP motion be granted in part and that all claims against Renee be dismissed with prejudice; (3) Judge McManus's motion to dismiss be granted in part and that the court either abstain from hearing plaintiff's claims against Judge McManus or, alternatively, dismiss those claims with prejudice; and (4) Roberts' motion to dismiss be granted in part, and that the court decline to exercise supplemental jurisdiction over plaintiff's claims against Roberts.

Additionally, the undersigned addresses plaintiff's fourth claim for relief, which alleges that defendant Mary Henzie violated plaintiff's constitutional rights. The undersigned is inclined to dismiss any such constitutional claim, and in this order provides plaintiff with notice of the court's intent to recommend the dismissal of plaintiff's fourth claim and an opportunity to file a written opposition to such sua sponte dismissal.

I. BACKGROUND

Plaintiff filed his verified complaint on March 8, 2011. (Compl., Dkt. No. 1.) Plaintiff alleges that this court has subject matter jurisdiction over his claims pursuant to 28 U.S.C. §§ 1331, 1332, and 1343. (Id. ¶ 1.)

Underlying this action is what can be fairly characterized as contentious divorce and custody proceedings in the Nevada County Superior Court ("Superior Court"). Plaintiff alleges that he is a resident of Nevada City, California, who at all relevant times had joint legal custody of his two biological, minor children, ages ten and eleven, with defendant Mary Henzie, who is plaintiff's ex-wife and the children's biological mother. (Compl. ¶¶ 1, 7, 8, 9.) Implicated by some of plaintiff's claims is a recommendation allegedly made in the custody proceedings by "Dr. Eugene Roeder, PhD, a non-party and the duly appointed Parenting Plan Coordinator." (See id. ¶ 7.) Plaintiff alleges that on or about January 8, 2010, Dr. Roeder, who had served as the appointed Parenting Plan Coordinator for eight months, "recommended to the court that plaintiff be given 50% physical custody of the minor children as a therapeutic remedy for Parental Alienation Syndrome also referred to as Reluctance/Refusal To Visit, all of which symptoms and diagnostic indicators were exhibited by the minor children." (Id.)

Relevant here, plaintiff alleges claims against the following individuals: (1) Judge McManus, who is alleged to be a judge of the Superior Court and was assigned to the custody action underlying this case in or around January 2010 (see Compl. ¶¶ 4, 10); (2) Leslie Scott, who is alleged to be a supervisor with Nevada County Child Protective Services ("Nevada County CPS") (id. ¶ 15); (3) Caroline Sheller, who is alleged to be the social worker assigned tothe Superior Court custody case at issue here (id.); (4) Leane Renee, who is alleged to be an attorney that was appointed in May 2008 as counsel for the two minor children at issue in the Superior Court proceedings (id. ¶ 11); (5) Mary Henzie, who is plaintiff's ex-wife and the children's mother; and (6) George A. Roberts, an attorney with whom plaintiff engaged in a physical altercation and who is alleged to have acted as a "consultant" to Henzie's attorney in connection with the plaintiff and Henzie's family law action (see id. ¶¶ 20-22). Because of the nature of plaintiff's claims and the manner in which they are pled, the following recounting of the allegations in plaintiff's complaint proceeds claim-by-claim, rather than in a strict, chronological manner.

A. Plaintiff's First Claim for Relief

Plaintiff's first claim for relief, brought pursuant to 42 U.S.C. § 1983, alleges that Judge McManus violated plaintiff's "rights to substantive due process and a familial relationship with his daughters," which are provided by the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution. (See Compl. ¶ 12.) This claim is alleged only against Judge McManus, who plaintiff has sued in her "individual and personal capacity" and who plaintiff alleges "acted in her individual capacity and outside the scope and color of any legal authority."⁴ (Id. ¶¶ 4, 12-13.) In connection with this claim, plaintiff seeks monetary damages "in excess of $1,000,000.00," punitive damages, and declaratory relief "adjudging" that Judge McManus violated plaintiff's civil rights. (Id. ¶ 13; see also id. at p. 15.)

Specifically, plaintiff alleges that on October 18, 2010, Judge McManus "orchestrated a sham proceeding" in the family court that ultimately deprived plaintiff of contact with his daughters for an extended period of time. (See Compl. ¶¶ 12-13.) Plaintiff alleges that Judge McManus announced at the October 18, 2010 hearing that she was removing the childrenfrom the custody of both parents and ordered that plaintiff and Henzie meet with two Nevada County CPS social workers to discuss the potential placement of the children with friends or relatives instead of in foster care. (Id. ¶ 13.) Plaintiff alleges that after the meetings, Judge McManus ordered that the children be placed in foster care, but that the children were never placed in foster care. (Id.) He alleges that Judge McManus denied ever making such an order. (Id.) Plaintiff alleges that as a direct result of the "sham" proceeding, plaintiff "has been allowed absolutely no contact with the minor children to date, a period now approaching five months." (Id.)

Additionally, plaintiff alleges that at the October 18, 2010 hearing, Judge McManus informed Henzie's attorney that Henzie would be provided with an attorney qualified to act in dependency actions upon request. (Id.) Plaintiff alleges that he requested such counsel at that time. (Id.) He alleges that Judge McManus "de facto" terminated his parental rights without due process and without affording him "assistance of counsel coincident to a California Welfare and Institutions Code Section 300 et. seq. dependency action and thereby acted outside and contrary to the scope of her official capacity in depriving him of his constitutional rights."⁵ (Id.)

Plaintiff also alleges a lengthy list of additional acts by Judge McManus that were "contrary to and outside the scope of her authority as a family court judge making her subject to personal liability in this action":

[1] destroying evidence of an email communication by plaintiff, [2] lying in denying several statements in the family law case, [3] using intimidation tactics and threats of sanctions and incarceration, [4] communicating outside of court hearings in her individual capacity ex parte with CPS and minors' counsel to orchestrate deprivation of plaintiff's familial rights regarding his minor daughters, [5] signing orders submitted by the parties that contain terms not addressed in any proceedings before the court and/orfailing to completely read orders that she eventually signed.

(Compl. ¶ 13.)

B. Plaintiff's Second Claim for Relief

Plaintiff's second claim for relief, brought pursuant to 42 U.S.C. § 1983, is alleged only against Leslie Scott, a Nevada County CPS supervisor, and Caroline Sheller, a Nevada County CPS social worker. (See Compl. ¶¶ 14-15.) Plaintiff alleges that Scott and Sheller violated plaintiff's "rights to substantive due process and a familial relationship with his daughters" provided by the Fifth and Fourteenth Amendments. (Id. ¶ 14.) He seeks monetary damages "in excess of $500,000.00 per defendant" and declaratory relief "adjudging" that Scott and Sheller violated plaintiff's civil rights. (Id.; see also id. at p. 15.)

Specifically, plaintiff alleges that beginning on December 5, 2010, he informed Scott that "he wanted to exercise his rights to visit his minor daughters the maximum amount of times as soon as possible." (Compl. ¶ 15.) He alleges that although Scott informed plaintiff that Sheller would arrange visits, he has been "stonewalled" by Sheller and "afforded absolutely no contact with his minor daughters." (Id.)

Plaintiff further alleges that his "requests to learn the identity of the therapist...