Robertson v. Millett ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Allen Robertson, No. CV-22-00009-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 Lisa Millett, et al., 13 Defendants. 14 15 16 Pending before the Court is Plaintiff Michael Robertson’s Third Amended Civil 17 Rights Complaint (Doc. 14), Motion to Allow Fourth Amended Complaint (Doc. 15), 18 lodged Fourth Amended Complaint (Doc. 16), Motion to Add Defendants and Counts to 19 Third Amended Complaint (Doc. 18), and Motion for Court Ordered MRI for Amanda and 20 Jennifer Bacolas (Doc. 20). For the following reasons, Plaintiff’s Third Amended Civil 21 Rights Complaint (Doc. 14) is granted in part and dismissed in part. The remaining 22 motions are denied. 23 BACKGROUND 24 The facts in this case are set forth in the Court’s orders (Docs. 12, 22) granting 25 Plaintiff’s Motion to Allow Second Amended Complaint Before Final Screening & Order 26 of the Court and denying Plaintiff’s Motion for Protective Order. 27 / / / 28 1 DISCUSSION 2 I. Third Amended Complaint 3 A. Background 4 On October 31, 2022, Plaintiff was granted permission to file a Third Amended 5 Complaint. (Doc. 12 at 14-15). The Order instructed Plaintiff that “[t]he Third Amended 6 Complaint shall contain all of Plaintiff’s claims, including the remaining Counts in their 7 current form and the dismissed Counts as amended. The Third Amended Complaint shall 8 not exceed 85 pages.” (Id.) The Court gave Plaintiff leave to amend Count I, Count V, 9 Count VI, Count VIII, and Count XIV. (Id. at 12 n.5.) Furthermore, “the unrevised” Count 10 II, Count III, Count IV, Count VII, Count IX, Count X, Count XI, Count XII (both claims), 11 and Count XIII must be included in the Third Amended Complaint. (Id. at 12.) “In the 12 Third Amended Complaint, Plaintiff must state what rights he believes were violated in 13 each amended count.” (Id. at 13.) On November 30, 2023, Plaintiff filed his Third 14 Amended Civil Rights Complaint (Doc. 14). 15 B. Analysis 16 Plaintiff’s Third Amended Civil Rights Complaint (Doc. 14) partially complies with 17 the Court’s October 2022 Order (Doc. 12). Count II, Count III, Count IV, Count VII, 18 Count IX, Count X, Count XI, Count XII (both claims), and Count XIII are included in the 19 Third Amended Complaint and unrevised. (Doc. 14.) 20 1. Count I 21 “Count I is a § 1983 claim alleging that Defendants Lisa Millett and Joelle Higby 22 violated Plaintiff’s due process rights by suppressing evidence from mandatory reporter 23 witnesses that would have supported his claim and by filing fraudulent pleadings in the 24 underlying dependency action.” (Doc. 14 at 18.) 25 a. Suppression of Exculpatory Evidence 26 To establish a Brady violation, the plaintiff must allege that (1) the suppressed 27 evidence was favorable either because it was exculpatory or could be used to impeach, 28 (2) the government willfully or inadvertently suppressed the evidence, and (3) prejudice 1 resulted. Strickler v. Greene, 527 U.S. 263, 281–82 (1999). “[T]he nondisclosure [must 2 be] so serious that there is a reasonable probability that the suppressed evidence would 3 have produced a different verdict.” Id. at 281. 4 “It is unclear whether Brady v. Maryland has any application to civil child 5 dependency proceedings.” Clarke v. Upton, No. CV-F-07-888OWWSMS, 2009 WL 6 1460815, at *18 (E.D. Cal. May 26, 2009). Nevertheless, assuming that Brady is 7 applicable, Plaintiff has not established prejudice. Plaintiff possessed evidence from the 8 mandatory reporter witnesses that would have supported his claim of being a fit parent. 9 (Doc. 16-1 at 17–20, 25–36, 39, 52, 63.) For example, Bob Whaley emailed Plaintiff a 10 letter, which Plaintiff forwarded to Dean O’Connor, Higby, and Millett on February 24, 11 2019, stating that Plaintiff “is an EXCELLENT father and provider.” (Id. at 52.) Plaintiff 12 was aware of, had access to, or possessed the letters that favored him, and there is nothing 13 to indicate that he was unable to present those facts during the dependency or severance 14 proceedings. Indeed, Plaintiff disclosed the evidence at the second state court severance 15 proceeding in June 2020. (Doc. 14 at 18–19.) “[W]here the defendant is aware of the 16 essential facts enabling him to take advantage of any exculpatory evidence, the 17 Government does not commit a Brady violation by not bringing the evidence to the 18 attention of the defense.” Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (quoting United 19 States v. Brown, 582 F.2d 197, 200 (2d Cir.1978)). 20 Thus, Plaintiff’s claim alleging that Defendants Millett and Higby violated 21 Plaintiff’s due process rights by suppressing evidence from mandatory reporters is 22 dismissed for failure to state a claim. 23 b. Deliberate Fabrication of Evidence 24 “To prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that 25 (1) the defendant official deliberately fabricated evidence and (2) the deliberate fabrication 26 caused the plaintiff’s deprivation of liberty.” Spencer v. Peters, 857 F.3d 789, 798 (9th 27 Cir. 2017). “The term ‘deliberate fabrication’ encompasses both statements that the official 28 knew were false and those the official would have known were false had he not recklessly 1 disregarded the truth.” Schindler v. Contra Costa Cnty., No. 21-CV-02984-JSW, 2023 WL 2 2414864, at *2 (N.D. Cal. Mar. 8, 2023). To establish causation, the plaintiff must show 3 (1) “the act was the cause in fact of the deprivation of liberty” and (2) “the act was the 4 ‘proximate cause’ . . . of the injury.” Spencer, 857 F.3d at 798. 5 Plaintiff alleges that the following documents contain false information: 6 (1) Patricia Smith’s Comprehensive Child Safety and Risk Assessment filed on 7 April 8, 2018, (Doc. 14 at 20); 8 (2) The Unit Consultation Summary dated April 10, 2020, (Id. at 25); 9 (3) The December 10, 2018 Case Plan, (Id.); 10 (4) The default severance petition, (Id. at 26); and 11 (5) Parenting plans and progress reports, (Id.) 12 Plaintiff alleges that Smith’s investigative reports and assessments falsely “cit[ed] 13 past reports of abuse that each would have justified a DCS removal of the children, had her 14 summaries been valid and true,” incorrectly contained “fraudulent statements regarding the 15 condition of Plaintiff’s home,” and fraudulently listed “13 contacts the Robertson/Bacolas 16 family had with DCS between 05/30/2008 and 11/29/2017.” (Id. at 20.) Plaintiff then 17 asserts that Defendants Millett and Higby falsely stated in the Unit Consultation Summary 18 that “[t]he abuse that has been alleged by multiple sources regarding Mr. Michael 19 Bacolas . . . is rather severe and chronic in nature.” (Id. at 25.) Additionally, on December 20 10, 2018, Defendant Millett filed three false statements in the December 2018 Case Plan: 21 (1) “Mr. Robertson’s mental health, substance abuse, parental responsibilities, domestic 22 violence and neither parent willing to protect the children,” (2) “Children have been 23 physically and emotionally abused by Mr. Robertson,” and (3) “Mr. Robertson choked and 24 threw one of the children to the floor.” (Id.) According to Plaintiff, “Defendants Millett 25 and Higby knew these pleadings were false[, and t]he subsequent filing of false pleadings 26 were therefore an intentional deprivation of Plaintiff’s rights to his own children.” (Id.) 27 Also, the default severance petition contained “fictitious accusations of paternal abuse by 28 Plaintiff.” (Id. at 26.) Moreover, the parenting plans and progress reports falsely stated 1 “[o]ngoing physical abuse and neglect, parent deliberately harmed the child, has caused 2 serious or severe injuries to child.” (Id.). 3 Accepting the allegations in the Third Amended Complaint (Doc. 14) as true, the 4 Court concludes that Plaintiff has adequately stated a claim for deliberate fabrication of 5 evidence. 6 2. Count V 7 Plaintiff contends that Defendants Millett, Higby, Alison Botta, and Eleni Vaita 8 violated Plaintiff’s civil and due process rights by refusing to participate in discovery, filing 9 false pleadings, and suppressing evidence. (Id. at 37.) 10 a. Arizona Rule of Procedure for the Juvenile Court 44 11 “[J]uvenile proceedings are governed by the [Arizona] Rules of Procedure for [the] 12 Juvenile Court.” Matter of Yavapai Cnty., Juv. Action No. 7707, 25 Ariz. App. 397, 399, 13 543 P.2d 1154, 1156 (Ariz. Ct. App. 1975). Arizona Rule of Procedure for the Juvenile 14 Court 44(A)1 provides “[a]ll information which is not privileged shall be disclosed.” 15 Rule 44(B)(1) mandates parties to “provide to each other all documents within their 16 possession which may be subject to disclosure” within twenty-four hours before the 17 preliminary protective hearing. “Unless otherwise authorized by the court, any document 18 received by or prepared by the party thereafter shall be disclosed within five [] days of 19 receipt or preparation.” Ariz. R.P. Juv. Ct. 44(B)(1). Moreover, Rule 44(B)(2) requires a 20 party to file a disclosure statement within sixty days of the preliminary protective hearing. 21 Plaintiff alleges that “[a] fraudulent juvenile dependency petition was filed on April 22 8, 2018, in the Plaintiff’s absence.” (Doc. 14 at 9.) Defendants Millett and Higby ignored 23 Plaintiff’s discovery requests “after two severance proceedings and [twenty-seven months] 24 into the dependency.” (Id. at 36.) “Plaintiff had his parenting rights severed by default on 25 a hearing in July[] 2019.” (Id. at 11.) “Plaintiff appealed the severance to the Arizona 26 Court of Appeals, and that Court reinstated his parenting rights to his minor children in 27 1 Rule 44 was revised is July 2022 and relisted as Rule 315. To address the Plaintiff’s 28 arguments, this Order refers to the rule in effect at the time the alleged violations occurred—Rule 44 language cited here. 1 January[] 2020.” (Id.) “A second severance was filed in February[] 2020, but the 2 Defendants ignored Plaintiff’s requests for discovery until July[] 2020”—“just days before 3 the trial was to begin on the second severance.” (Id. at 36.) “Two thousand documents 4 were sent to Plaintiff’s attorney . . . in June[] 2020, with no direct reference by the state as 5 to which pieces of evidence in that dump of information would be referenced during trial.” 6 (Id.) 7 Plaintiff further asserts that the Defendants’ suppressed medical, school, and 8 counseling records. (Id.) And “[e]vidence requested by [] Plaintiff . . . between April 8, 9 2018, and August 10, 2020, was not provided in those 2,000 documents produced by 10 Defendants Joelle Higby and Eleni Vaita in July[] 2020.” (Id.) “Plaintiff alleges his 11 parenting rights were violated to prejudice the Juvenile Court to error on the side of 12 caution, and opt for the kin relative placement.” (Id. at 16). “Plaintiff further alleges the 13 bizarre testimony from his older children was not meant to be believable, but was presented 14 by the Defendants to prejudice the Juvenile Court in a second severance proceeding that 15 was non-evidentiary, to violate the Plaintiff’s parenting and civil rights.” (Id.) “Plaintiff 16 was forced to self severe his parenting rights on August 10, 2020.” (Id.) Plaintiff concludes 17 that Defendants violated his “civil and due process rights by not participating in discovery.” 18 (Id. at 37.) 19 Based on the disclosure deadlines in Rule 44(B)(2), Defendants Millett, Higby, 20 Botta, and Vaita were required to provide their disclosure statement within sixty days of 21 the preliminary protective hearing. Plaintiff does not provide the date of the preliminary 22 protective hearing, but twenty-seven months far exceeds sixty days. Nevertheless, Plaintiff 23 does not adequately allege a due process violation. “[P]rocedural due process requires that 24 a parent be given notice of the dependency proceedings and have a chance to be heard and 25 defend the case.” Brandon J. v. Dep’t of Child Safety, No. 1 CA-JV 21-0218, 2021 WL 26 6052594, at *3 (Ariz. Ct. App. Dec. 21, 2021). To prevail, Plaintiff, must show the lack 27 of notice and opportunity to prepare a defense was prejudicial. Roberto F. v. Ariz. Dep’t 28 of Econ. Sec., 232 Ariz. 45, 56, 301 P.3d 211, 222 (Ariz. Ct. App. 2013), as amended (June 1 20, 2013). 2 First, any issues that occurred in the first severance hearing were corrected by the 3 Arizona Court of Appeals when the court reinstated Plaintiff’s parenting rights. (Doc. 14 4 at 11–12.) Second, Plaintiff does not allege that he was not given notice of the proceedings 5 or the grounds for which Defendants sought to terminate his parental rights. To the 6 contrary, “Plaintiff threatened civil litigation consistently against” Defendants because he 7 believed the Defendants’ findings, reports, and pleadings were false. (Id. at 10.) Plaintiff 8 specifically states that Defendants moved for the termination of his parental rights because 9 Plaintiff “abused and caused injury to his children for 10 years.” (Id. at 12) (internal 10 quotation marks omitted). Third, Plaintiff makes only conclusory allegations of prejudice. 11 He does not state how either the late disclosure or lack of disclosure prejudiced him. 12 Instead, Plaintiff argues that he “was forced to self severe his parenting rights on August[] 13 10, 2020, in lieu of his rights being severed . . . based on the Defendants inflammatory, 14 false, and non-evidentiary pleadings.” (Id. at 16–17.) Finally, when Defendants refused 15 to adhere to the deadlines set forth in Rule 44(B), Plaintiff’s proper course was to seek 16 sanctions under Arizona Rule 44(G). There is no suggestion that Plaintiff did so. 17 Thus, Plaintiff has not sufficiently alleged that Defendants’ non-compliance with 18 the juvenile court’s discovery rules prejudiced Plaintiff. 19 b. Suppression of Exculpatory Evidence 20 The standard to establish a Brady violation is discussed in Part B(1)(a) of this Order. 21 Plaintiff alleges that Defendants suppressed his children’s medical records, school records, 22 and counseling records, as well as the “original participation records of [Plaintiff’s] 23 involvement in family preservation programs in 2016 and 2017, and the original DCS 24 reports . . . presented in the dependency by investigator Patricia Smith.” (Doc. 14 at 36.) 25 Moreover, “Defendants had the fulfillment of service requirements by Plaintiff in their 26 possession.” (Id. at 37.) Plaintiff fails to explain how the alleged suppressed evidence is 27 exculpatory or could be used to impeach. Moreover, as it relates to Plaintiff’s involvement 28 in preservation programs, Plaintiff could have introduced contrary evidence to cure any 1 prejudice. 2 Count V suppression of the evidence claim is dismissed. 3 c. Deliberate Fabrication of Evidence 4 The requirements to prevail on a § 1983 claim of deliberate fabrication is outlined 5 in Part (B)(1)(b) of this Order. Because Plaintiff asserts that the Defendants were not aware 6 that he completed any reunification services until July 2019—the same month as the first 7 severance proceeding—and that this information was presented by Plaintiff’s attorney to 8 the juvenile court at the second severance proceeding in February 2020, Plaintiff has failed 9 to allege that the Defendants deliberately fabricated the evidence. See (Id. at 37.) 10 Count V deliberate fabrication of evidence claim is dismissed. 11 3. Count VI 12 Count VI alleges that Defendants Higby and Vaita maliciously prosecuted 13 dependency proceedings against Plaintiff to avoid civil liability after the Arizona Court of 14 Appeals reinstated Plaintiff’s parental rights in January 2020. (Id. at 37, 39.) “Federal 15 courts rely on state common law for elements of malicious prosecution.” Mills v. City of 16 Covina, 921 F.3d 1161, 1169 (9th Cir. 2019). In Arizona, malicious prosecution claims in 17 which the underlying proceeding is civil are brought under the common-law tort of 18 wrongful institution of civil proceedings. Chalpin v. Snyder, 220 Ariz. 413, 418–19 n.5, 19 207 P.3d 666, 671–72 n.5 (Ariz. Ct. App. 2008). The civil tort of malicious prosecution 20 includes five elements. Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 416, 21 758 P.2d 1313, 1318 (1988). “Plaintiff must prove defendant (1) instituted a civil action 22 which was (2) motivated by malice, (3) begun without probable cause, (4) terminated in 23 plaintiff’s favor and (5) damaged plaintiff.” 157 Ariz. at 417, 758 P.2d at 1319. 24 In the Court’s October 2022 Order (Doc. 12), the Court instructed Plaintiff that he 25 “must allege that the civil action was terminated in his favor and maintained without 26 probable cause” to sustain a malicious prosecution claim. (Doc. 12 at 8.) Here, Plaintiff 27 makes a conclusory statement that “Plaintiff’s parenting rights were terminated in 28 Plaintiff’s favor while he was under duress, Plaintiff self-severed his parenting rights on 1 August 10, 2020.” (Doc. 14 at 39.) Plaintiff voluntarily severing his parental rights is not 2 a favorable termination. Moreover, Plaintiff does not allege that either severance action 3 was initiated without probable cause. 4 Plaintiff fails to state a claim for malicious prosecution under § 1983. This claim is 5 thus dismissed. 6 4. Count VIII 7 a. Deliberate Fabrication of Evidence 8 The requirements to prevail on a § 1983 claim of deliberate fabrication is outlined 9 in Part (B)(1)(b) of this Order. In the Court’s October 2022 Order (Doc. 12), the Court 10 explained that if Plaintiff amends Count VIII’s deliberate fabrication of evidence claim, 11 Plaintiff “must allege sufficient facts that demonstrate not only that the abuse allegations 12 were false, but also that these Defendants knew they were false; the mere fact that the 13 testimony contradicted prior testimony is insufficient to plead knowledge.” (Doc. 12 at 6.) 14 Here, Plaintiff alleges that “the testimony of these SMI witnesses were not only 15 contradictory, but knowingly false by DCS and the community.” (Doc. 14 at 46.) 16 Additionally, “Defendant Jennifer Willcutt provided a false narrative, that was placed in 17 the 2020 forensic interview narratives of Jennifer and Amanda Bacolas, that became 18 evidence for the [c]ourt.” (Id. at 47.) The statements are: 19 (1) “It is believed the father may have molested the boys because it was reported 20 the father molested another child of his, Kalee [Kalin Wynne]. Kaylee is 21 now an adult however, reportedly when it happened, he had claimed it was 22 someone else and forced her to lie about it ans [sic] say it was another guy 23 [Phillip Menting]. When she turned 18, she told the truth about it.” (Id.) 24 (alterations in original); 25 (2) “Kaylee [Kalin Wynne] is reportedly the only child who claimed her father 26 sexually abused her.” (Id.) (alteration in original); 27 (3) “Jennifer found out that there were prior accusations made by the boys while 28 living at a foster home in the city of Maricopa.” (Id. at 48); 1 (4) “These accusations made were made at the end of April [2018]. There was 2 a forensic interview and a police report.” (Id.) (alteration in original); 3 (5) “He has reportedly made several innuendos in front of the boys according to 4 Amanda who was a witness to that.” (Id.); 5 (6) “Amanda believes Michael [Robertson] molested the two boys because their 6 actions are very similar to her older brother’s actions who was molested by 7 Michael.” (Id.) (alteration in original); 8 (7) “It is certain Michael did something to the boys.” (Id. at 49); 9 (8) “Boys were waiting on forensic interviews due to allegations made by [minor 10 son] in February[] 2020 of sexual abuse.” (Id.) (first alteration in original); 11 and 12 (9) “The boys stated they do not feel safe around their parents.” (Id. at 50.) 13 Plaintiff first asserts that Defendants Higby and Vaita knew statements one, two, 14 and nine were false “based on Plaintiff’s DCS involvement with the rape of Kalin Wynne 15 in 2009,” which showed that Phillip Menting was found guilty of the alleged abuse. (Id.) 16 Next, Plaintiff argues that Defendant Willcutt knew statement three was false because 17 “[t]he minor children were never given forensic interviews[] until March 25, 2020.” (Id. 18 at 48.) Statement five is also allegedly untrue because “Amanda Bacolas was estranged 19 and not privy to any relationship prior to the dependency.” (Id.) Finally, the Defendants 20 allegedly knew statements six, seven, and eight were incorrect because (1) “no evidence of 21 any abuse against children has even been produced, either against Plaintiff’s adult or minor 22 children, and these false accusations surfaced upon execution of this fraudulent scheme to 23 adopt Plaintiff’s minor children by DCS and Amanda Bacolas in 2020,” (Id. at 48–49), 24 (2) “Both minor children denied any such abuse ever occurred, nor did they ever report any 25 such abuse,” (Id. at 49), and (3) Jennifer Willcutt contradicted herself in one report by 26 writing, “There were no disclosures made by the boys at that time.” (Id.) 27 Such allegations are sufficient to avoid dismissal at this early stage. 28 1 b. Violation of Arizona Rule of Procedure for the Juvenile 2 Court 44 3 The standard for a due process violation for failure to comply with Rule 44 is 4 outlined in Part (B)(2)(a) of this Order. 5 Plaintiff argues twenty-seven months “after the dependency was filed in Juvenile 6 Court on April 8, 2018, Defendant Eleni Vaita finally participated in Discovery with the 7 Initial Disclosure Statement on July 22, 2020, twenty days before the trail [sic] was 8 scheduled to begin to sever Plaintiff’s parenting rights.” (Id. at 43.) “Defendants . . . 9 suppressed[] and refused to share with Counsel for Plaintiff . . . evidence showing the father 10 to be a fit, competent, and credible parent.” (Id. at 43–45 (listing eighteen documents).) 11 “Adequate notice is a fundamental element of due process.” Roberto F., 232 Ariz. 12 at 55, 301 P.3d at 221. Plaintiff does not sufficiently allege a due process violation because 13 he fails to assert that he was not given notice of the proceedings or the grounds for which 14 the Defendants were seeking to terminate his parental rights. As stated above, Plaintiff 15 knew Defendants moved for the termination of his parental rights was because Plaintiff 16 allegedly “abused and caused injury’ to his children for 10 years.” (Doc. 14 at 12) (internal 17 quotation marks omitted). Furthermore, “discovery decisions are left within the sound 18 discretion of the juvenile court because there is no constitutional guarantee to discovery; 19 discovery is simply a matter of legislative grace and judicial procedure.” Jessica C. v. 20 Dep’t of Child Safety, No. 1 CA-JV 13-0315, 2014 WL 3610899, at *6 (Ariz. Ct. App. July 21 15, 2014). When a party does not adhere to the deadlines set forth in Rule 44(B), the proper 22 remedy is to seek sanctions under Rule 44(G). 23 Thus, Count VIII violation of the discovery rules claim is dismissed. 24 5. Count XIV 25 In the Court’s October 2022 Order (Doc. 12), the Court dismissed Count XIV 26 because Plaintiff did not sufficiently plead a violation under Section 504 of the 27 Rehabilitation Act. (Doc. 12 at 12.) Although, the Court granted Plaintiff leave to amend 28 Count XIV, (Id. at 12, 14), he neglected to do so. No changes were made from Plaintiff’s 1 Second Amended Complaint (Doc. 13). Thus, Count XIV is dismissed for the same 2 reasons listed in the Court’s October 2022 Order (Doc. 12). 3 II. Motion to Amend the Third Amended Complaint 4 The Court denies Plaintiff’s Motion to Allow Fourth Amended Complaint 5 (Doc. 15), lodged Fourth Amended Complaint (Doc. 16), and Motion to Add Defendants 6 and Counts to Third Amended Complaint (Doc. 18). Plaintiff’s lodged Fourth Amended 7 Complaint (Doc. 16) does not comply with the Court’s October 2022 Order (Doc. 12). 8 First, the lodged Fourth Amended Complaint (Doc. 16) is 119 pages, which exceeds the 9 eighty-five page limit set by the Court. See (Doc. 12 at 14.) Second, Count II, Count III, 10 Count IV, Count VII, Count IX, Count X, Count XI, and Count XIII from the Second 11 Amended Complaint (Doc. 13) were revised against the Court’s Order. Third, Plaintiff 12 attempts to reassert claims the Court has already denied. To the extent Plaintiff wishes to 13 consolidate the instant case with Robertson v. Millett, et al., Case No. 2:22-CV-01983- 14 GMS, he should file the proper motion pursuant to the Federal Rules of Civil 15 Procedure 42(a). 16 Accordingly, Plaintiff’s Motion to Allow Fourth Amended Complaint (Doc. 15), 17 lodged Fourth Amended Complaint (Doc. 16), and Motion to Add Defendants and Counts 18 to Third Amended Complaint (Doc. 18) are denied. 19 III. Motion for Court Ordered MRI for Amanda and Jennifer Bacolas (Doc. 20) 20 Plaintiff moves the Court to order a magnetic resonance imaging (MRI) “on the 21 brains of Amanda and Jennifer Bacolas, to determine the severity of their [Narcissistic 22 Personality Disorder] and causation of their bizarre and proven false accusations against 23 Plaintiff’s person and character, in the violations of his parenting and civil rights.” (Doc. 24 20 at 2.) Amanda and Jennifer Bacolas’ mental condition is not “in controversy,” and 25 Plaintiff has not shown “good cause.” See Fed. R. Civ. P. 35(a). Moreover, Plaintiff cannot 26 bring a § 1983 claim against his older children for their testimony in the dependency 27 proceedings. See Clarke, 2009 WL 1460815, at *19 (“To the extent that the Fifth Amended 28 Complaint alleges claims against Defendants for presenting false or perjured testimony 1 during the child dependency hearings, Briscoe v. LaHue, 460 U.S. 325, 326 [] (1983), holds 2 that a witness has absolute immunity from liability for civil damages under Section 1983 3 for giving perjured testimony at trial.”). 4 Plaintiff’s request is dismissed without prejudice. 5 IV. Leave to Amend 6 Allegations in a pro se complaint are held to “less stringent standards than 7 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Pro se 8 complaints must be liberally construed and afforded the benefit of any doubt. Hebbe v. 9 Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Pro se plaintiffs, however, “are not relieved 10 of their obligation to plead a plausible claim for relief.” Ogden v. CDI Corp., No. 11 CV 20-01490 PHX CDB, 2020 WL 6947696, at *2 (D. Ariz. Aug. 18, 2020). They are 12 “expected to abide by the rules of the court in which [they] litigate.” Carter v. Comm’r, 13 784 F.2d 1006, 1008 (9th Cir. 1986). Thus, dismissal without leave to amend is proper 14 when the complaint cannot be saved by any amendment. Manzarek v. St. Paul Fire & 15 Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 16 Count I’s suppression of exculpatory evidence claim, Count V, Count VI, Count 17 VIII’s discovery violation claim, and Count XIV of Plaintiff’s Third Amended Complaint 18 (Doc. 14) fail to cure the pleading deficiencies identified in the Court’s October 2022 Order 19 (Doc. 12). First, Plaintiff was aware of or had access to evidence that he claims favored 20 him. (Doc. 14 at 18–19, 37.) Because Plaintiff possessed exculpatory evidence, he cannot 21 sufficiently plead a Brady violation. Second, the facts alleged by Plaintiff show that he 22 had adequate notice of the proceedings or the grounds for which the Defendants were 23 seeking to terminate his parental rights. Plaintiff knew why Defendants moved for the 24 termination of his parental rights and was aware of all proceedings. (Id. at 10, 12.) Thus, 25 any discovery violations do not rise to the level of a procedural due process violation. The 26 proper remedy was to seek sanctions under Rule 44(G). Third, Plaintiff fails to provide 27 facts that would establish knowledge on behalf of the Defendants and prejudice towards 28 the Plaintiff, which the Court explained is necessary to adequately plead Count V’s 1 deliberate fabrication of evidence claim. (Doc. 12 at 5.) Rather, Plaintiff alleged facts that 2 Defendants were not aware of any falsehoods until presented with contradictory evidence 3 that Plaintiff possessed. (Doc. 14 at 37.) Fourth, Count VI’s alleged facts are conclusory. 4 Fifth, Plaintiff did not amend Count XIV after given an opportunity to do so. Accordingly, 5 granting Plaintiff any additional leave to amend his dismissed claims would be futile. 6 Because no meritorious legal arguments were advanced in the claims above, and it 7 is clear that Plaintiff is unable to state a plausible claim for relief, Count I’s suppression of 8 exculpatory evidence claim (Doc. 14 at 18-20, ¶¶ 8–19; 21-25, ¶¶29–41), Count V, Count 9 VI (Doc. 14 at 35-39), Count VIII’s discovery violation claim (Doc. 14 at 42-46, ¶¶ 77-81), 10 and Count XIV of Plaintiff’s Third Amended Complaint (Doc. 14 at 74-75) are dismissed 11 with prejudice. See Carter v. Hampson, 599 F. App’x 308, 308–09 (9th Cir. 2015) (“The 12 district court did not abuse its discretion by denying leave to amend the complaint because 13 amendment would have been futile.”); Treppel v. Biovail Corp., No. 03 CIV. 3002 (PKL), 14 2005 WL 2086339, at *12 (S.D.N.Y. Aug. 30, 2005) (“[T]he Court finds that leave to 15 amend would be futile because plaintiff has already had two bites at the apple and they 16 have proven fruitless.”). 17 CONCLUSION 18 Count I’s suppression of exculpatory evidence claim (Doc. 14 at 18-20, ¶¶ 8–19; 19 21-25, ¶¶29–41), Count V, Count VI, Count VIII’s discovery violation claim (Doc. 14 at 20 42-46, ¶¶ 77-81), and Count XIV of Plaintiff’s Third Amended Complaint are denied. 21 These claims are dismissed without leave to amend. 22 Plaintiff must serve a copy of the Summons, the Third Amended Complaint 23 (Doc. 14), and this Order on each Defendant. The person who serves Defendants with the 24 Summons, Complaint, and this Order is required, according to the rules, to file an affidavit 25 with the Court that proves that Defendants were served in compliance with this Order. This 26 is the way that the Court knows that Defendants have been served. Therefore, Plaintiff 27 must be sure that, prior to thirty days from the date of this Order, whoever serves the 28 Summons, Complaint, and this Order on each Defendant files an affidavit with this Court 1 demonstrating that they accomplished proper service. 2 IF PLAINTIFF DOES NOT FILE THE AFFIDAVIT OF SERVICE 3 DESCRIBED ABOVE WITHIN THIRTY DAYS FROM THE DATE OF THIS 4 ORDER, DEFENDANTS WILL BE DISMISSED WITHOUT PREJUDICE FROM 5 THE LAWSUIT. THIS CONSTITUTES PLAINTIFF’S NOTICE UNDER RULE 6 4(m). 7 Accordingly, 8 IT IS ORDERED that Plaintiff’s Third Amended Complaint (Doc. 14) is 9 GRANTED IN PART AND DISMISSED IN PART. Count I’s suppression of 10 exculpatory evidence claim (Doc. 14 at 18-20, ¶¶ 8–19; 21-25, ¶¶29–41), Count V, Count 11 VI, Count VIII’s discovery violation claim (Doc. 14 at 42-46, ¶¶ 77-81), and Count XIV 12 are dismissed with prejudice. 13 IT IS FURTHER ORDERED that Plaintiff shall be responsible for service by 14 waiver or service of the Summons, Third Amended Complaint (Doc. 14), and this Order. 15 Defendants need only file an Answer in response to the undismissed claims—Count I’s 16 deliberate fabrication of evidence (Doc. 14 at 20-21, ¶¶ 20–28; 25-26, ¶¶ 42–49), Count II, 17 Count III, Count IV, Count VII, Count VIII’s deliberate fabrication of evidence (Doc. 14 18 at 46-48, ¶¶ 82–95, 49-51, ¶¶ 405-412), Count IX, Count X, Count XI, Count XII (both 19 claims), and Count XIII. 20 IT IS FURTHER ORDERED that Plaintiff’s Motion to Allow Fourth Amended 21 Complaint (Doc. 15) is DISMISSED with prejudice. 22 IT IS FURTHER ORDERED that Plaintiff’s Motion to Add Defendants and 23 Counts to Third Amended Complaint (Doc. 18), and Motion for Court Ordered MRI for 24 Amanda and Jennifer Bacolas (Doc. 20) is DIMISSED without prejudice. 25 IT IS FURTHER ORDERED that Plaintiff’s lodged Fourth Amended Complaint 26 (Doc. 16) should be STRICKEN from the record in this matter. 27 IT IS THEREFORE ORDERED directing the Clerk of Court that if Plaintiff fails 28 to file the required Affidavits of Service WITHIN THIRTY DAYS from the date of this || Order, the Clerk shall terminate any or all Defendants in this matter, without further notice, that have not been served. 3 Dated this 28th day of December, 2023. Wars ) 5 A Whacrsay Fotos 6 Chief United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16-