1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TANYA NEMCIK, Case No. 19-cv-05667-EMC

8 Plaintiff, ORDER DISMISSING FIRST 9 v. AMENDED COMPLAINT

10 BRIAN KRIPPENDORF, et al., Docket No. 11 11 Defendants.

12 13 14 Plaintiff Tanya Nemcik, proceeding pro se, initiated this lawsuit in September 2019. Judge 15 Spero granted Ms. Nemcik’s application to proceed in forma pauperis (“IFP”) but recommended 16 that her complaint be dismissed for lack of subject matter jurisdiction. Judge Spero also 17 recommended that Ms. Nemcik be given leave to amend. The Court adopted the report and 18 recommendation and gave Ms. Nemcik an opportunity to file an amended complaint. Ms. Nemcik 19 has now done so, and, because of Ms. Nemcik’s IFP status, the Court now reviews the pleading 20 pursuant to

(e). For the reasons discussed below, the Court concludes that Ms. 21 Nemcik has failed to state a claim for relief and therefore dismisses the first amended complaint. 22 I. DISCUSSION 23 This case, like several others filed in this District, relates to custody proceedings in state 24 court. See Nemcik v. Mills, No. C-16-0322 BLJ (N.D. Cal.); Nemcik v. Contra Costa Superior 25 Court, No. C-16-1423 CRB (N.D. Cal.); Nemcik v. San Mateo Police Dep’t, No. C-16-2777 JD 26 (N.D. Cal.); Nemcik v. Fannin, No. C-18-5120 JST (N.D. Cal.). Here, Ms. Nemcik has sued Santa 27 Clara County and its Department of Family & Children’s Services (“DFCS”); the City of Palo 1 Ms. Nemcik, Defendants have violated

in multiple ways. 2 A. First Cause of Action 3 In the first cause of action, Ms. Nemcik’s main claim is that the County and DFCS did not 4 adequately investigate issues related to her children – including one child’s medical health – and 5 suggests that there was inadequate training of social workers. The Court dismisses this cause of 6 action based on failure to state a claim for relief. Ms. Nemcik has not identified any federal right 7 that has been violated, which is a necessary predicate for a § 1983 claim. See Galen v. Cty. of 8 L.A.,

, 572 (9th Cir. 2006) (noting that “[s]ection 1983 requires [plaintiff] to 9 demonstrate a violation of federal law, not state law”). There is also a question as to whether Ms. 10 Nemcik has standing to assert the claim; arguably, any harm was done to her son and not to her 11 specifically. To the extent Ms. Nemcik claims to be bringing a claim on behalf of her son, she 12 does not appear to be his general guardian, nor has she been appointed his guardian ad litem. See 13 Fed. R. Civ. P. 17(c) (providing that a general guardian “may sue . . . on behalf of a minor”; also 14 providing that “[a] minor . . . who does not have a duly appointed representative may sue by a next 15 friend or by a guardian ad litem”). And even if she had, a lawyer would still be needed to 16 represent her son. See Johns v. Cty. of San Diego,

, 877 (9th Cir. 1997) (“hold[ing] 17 that a parent or guardian cannot bring an action on behalf of a minor child without retaining a 18 lawyer”). 19 B. Second Cause of Action 20 In the second cause of action, Ms. Nemcik asserts that both (1) the County and DFCS and 21 (2) Mr. Krippendorf (the father of her children) have defamed her. Even if the Court were to 22 assume a federal right was at issue here,1 the cause of action still fails to state a claim for relief. 23

24 1 See Wenger v. Monroe,

(9th Cir. 2002) (stating that “injury to reputation standing alone does not violate the Due Process Clause of the Fourteenth Amendment” because 25 “one’s interest in reputation standing alone is neither liberty nor property guaranteed against state deprivation without due process of law”; “[r]ather, due process protections apply only if a plaintiff 26 is subjected to stigma plus; i.e., if the state makes a charge against [a plaintiff] that might seriously damage his standing and associations in the community, and 1) the accuracy of the charge is 27 contested, 2) there is some public disclosure of the charge, and 3) it is made in connection with the 1 First, as to the County and DFCS, Ms. Nemcik claims that they “falsely wrote reports that 2 Plaintiff was accusing Brian Krippendorf of sexual abuse.” FAC ¶ 30. According to Ms. Nemcik, 3 it was actually a third party (a therapist named Barbara Peppin) who accused Mr. Krippendorf of 4 sexual abuse. See FAC ¶ 12. But based on the Court’s review of Ms. Nemcik’s supporting 5 documents, the County or DFCS itself did not contend Ms. Nemcik had made a claim of sexual 6 abuse. Rather, at most, the County or DFCS simply noted that another person had reported abuse 7 and that person claimed Ms. Nemcik had implicated Mr. Krippendorf. The following is the 8 statement that the County or DFCS provided with respect to a child welfare referral that had been 9 made in September 2009:

10 Sexual abuse of [T.K.], and at risk, sibling abused, regarding [C.K.], by Brian Krippendorf was evaluated out. It was reported that Ms. 11 Nemcik witnessed [T.K.] trying to put a toy in [C.K.’s] “butt.” The RP [Reporting Party] did not know who the perpetrator was, 12 but stated that Ms. Nemcik believed it was Mr. Krippendorf as [T.K.] pulled down his pants and started “playing with his penis 13 when he saw” Mr. Krippendorf. The RP stated that when specifically asked if anyone touched his private area,” [T.K.] did not 14 say anything; he was three at the time. The referral was evaluated out as Ms. Nemcik had obtained “a 7 day temporary custody” order 15 and the incident was being investigated by the police. 16 Pl.’s FAC, Ex. N at 298 (emphasis added). 17 Second, as to Mr. Krippendorf, Judge Spero previously explained that he is a private actor 18 and thus cannot be sued for a violation of § 1983 absent, e.g., joint action with the state or its 19 agents. See Docket No. 5 (R&R at 4). Here, Ms. Nemcik has not made any claim of collusion 20 between the County/DFCS and Mr. Krippendorf. 21 C. Third Cause of Action 22 In the third cause of action, Ms. Nemcik asserts that the City of Palo Alto and the City 23 Police Department have defamed her. The Court dismisses this cause of action because, even if a 24 federal right at issue here, the allegations that these defendants made false reports is entirely 25 conclusory. Cf. Nemcik v. San Mateo Police Department, No. C-16-2777 JD (N.D. Cal.) (Docket 26 No. 10) (noting Ms. Nemcik’s allegation that “a San Mateo police investigator wrote a false report 27 in 2009, but the complaint provides no factual allegations at all in support of that statement”). 1 D. Fourth Cause of Action 2 In the fourth cause of action, Ms. Nemcik asserts that all Defendants “have colluded and 3 conspired to interfere with [her] right of due process and constitutional right of companionship 4 and society with her children,” as well as her “right to provide care and custody to her children.” 5 FAC ¶ 46. The claim seems to be predicated on “false reports that [were] submitted to the 6 Superior Court,” which impacted the court’s custody decisions. FAC ¶ 47. The Court dismisses 7 this cause of action for failure to state a claim for relief. As discussed above, the claim of false 8 reports is either not substantiated by Ms. Nemcik’s own submissions or is entirely conclusory in 9 nature. Moreover, even if they had been, Ms. Nemcik’s allegation that there was a conspiracy 10 involving the County, the police, and Mr. Krippendorf are entirely conclusory. 11 E. Fifth Cause of Action 12 In the fifth cause of action, Ms. Nemcik essentially claims that all Defendants have 13 fabricated evidence and that the superior court relied on the fabricated evidence in making its 14 custody-related decisions. Ms. Nemcik asserts that at least some reports that contained false 15 information were submitted to the superior court confidentially but were withheld from her – and 16 she “still has been denied access.” FAC ¶ 52. The Court concludes that this claim, like those 17 above, also fails to state a claim for relief. As stated above, the claim of false reports is either not 18 substantiated by Ms. Nemcik’s own submissions or is entirely conclusory in nature. Ms. 19 Nemcik’s suggestion that a report withheld from her must necessarily contain false information or 20 else it would not have been withheld, see FAC ¶ 53, is entirely speculative. 21 F. Sixth Cause of Action 22 In the sixth cause of action, Ms. Nemcik claims that there has been an abuse of process 23 because of the false reports. See FAC ¶ 64. Ms. Nemcik also claims that there was a conspiracy 24 between Mr. Krippendorf and the superior court adjudicating the custody and related issues 25 because orders were issued without any hearing and notification to her. See FAC ¶ 63. The Court 26 dismisses this cause of action for failure to state a claim for relief. As stated above, the claim that 27 false reports were made are not supported by specific plausible allegations. See Levitt v. Yelp! 1 Ashcroft v. Iqbal,

(2009), and Bell Atlantic Corp. v. Twombly,

(2007), 2 || aplaintiffs “factual allegations [in the complaint] ‘must. . . suggest that the claim has at least a 3 plausible chance of success’”). As for the alleged conspiracy between Mr. Krippendorf and the 4 superior court, there are no factual allegations to support that conclusory claim. 5 G. Seventh Cause of Action 6 In the seventh cause of action, Ms. Nemcik asserts a claim for intentional infliction of 7 || emotional distress against all Defendants. Intentional infliction of emotional distress, however, is 8 a state claim, not a § 1983 claim. To the extent Ms. Nemcik has brought a state claim, the Court 9 || declines supplemental jurisdiction. See

(c) (providing that a court “may decline 10 || to exercise supplemental jurisdiction” if it “has dismissed all claims over which it has original 11 || jurisdiction”). To the extent Ms. Nemcik purports to be bringing a § 1983 claim, it is, in effect, 12 || based on the claims discussed above. 13 I. CONCLUSION 14 For the foregoing reasons, the Court dismisses the first amended complaint. The only 3 15 issue remaining is whether Ms. Nemcik should be given leave to file a second amended complaint. 16 || The Court declines to give Ms. Nemcik leave. Having filed multiple cases in this District, Ms. 3 17 Nemcik is well aware that a conclusory claim of wrongdoing can lead to dismissal. 18 Accordingly, the Clerk of the Court shall enter a final judgment in accordance with the 19 above and close the file in this case. 20 21 IT IS SO ORDERED. 22 23 Dated: November 7, 2019 24 <4 ED M. CHEN 26 United States District Judge 27 28