United States District Court, D. Montana, Great Falls Division
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF MAGISTRATE JUDGE
Brian Morris United States District Court Judge
Plaintiff Nikita Woods filed an amended complaint in this matter on April 20, 2015. (Doc. 13). Woods’ claims arise from the termination of her parental rights to her son in 2013. Id. Woods alleges that defendants Montana Department of Child and Family Services, Ike Jessee, Sarah Grotbo, Mary Jo Jeffries, Susan Day, Jill Miller, Mary Gettel, and Lorre Clark (collectively “Defendants”) acted together to improperly remove Woods’ son from her custody based on an unauthorized DNA test. Id. Woods proceeds in forma pauperis. (Doc. 4).
Defendant Ike Jessee is a caseworker at the Montana Department of Child and Family Services. (Doc. 14 at 3). Defendant Sara Grotbo is a caseworker at the Department and she also serves as a social worker at the Benefis Sletten Cancer Institute. Id. Defendant Mary Jo Jeffries is a clinical psychologist. Id. Defendant Susan Day is a psychologist. Id. Defendant Mary Gettel is a CASA-CAN volunteer. Id. Defendant Jill Miller is a caseworker with the Department. Id. Defendant Lori Clark is a supervisor at the Department. Id. Skylynn Bird is Wood’s sister-in-law. Id. at 4.
II. JUDGE JOHNSTON’S FINDINGS AND RECOMMENDATIONS
United States Magistrate Judge John Johnston entered Findings and Recommendations in this matter on May 27, 2015. (Doc. 14). Judge Johnston permitted Wood to proceed with her slander, equal protection, and due process claims against defendants Jessee Grotbo, Jill Miller, Mary Gettel, and Lorre Clark. Id. at 2. Judge Judge Johnston authorized service of Wood’s amended complaint and summons on these defendants. Id. at 13.
Judge Johnston recommends that this Court dismiss Woods’ claims that are based on the violation of her son’s, her mother’s, and James Dean Bird’s personal rights. Id. Judge Johnston also recommends that this Court dismiss Woods’ claims against Skylynn Bird, Mary Jo Jeffries, and Susan Day due the fact that Wood failed to allege that these defendants acted under color of state law. Id. Judge Johnston further recommends that this Court dismiss Woods’ claims against the Montana Department of Child and Family Services as the claims are barred by sovereign immunity pursuant to the Eleventh Amendment. Id. at 13-14.
Woods timely filed objections. (Doc. 15). The Court will review de novo the portions of Judge Johnston’s Findings and Recommendations to which Woods objects. 28 U.S.C. § 636(b)(1). The Court will review for clear error the remainder of Judge Johnston’s Findings and Recommendations. McDonnell Douglas Corp. v. Commodore Bus. Mach. Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
A. Woods’ claims based on the Personal Rights of her Son, Mother and James Dean Bird
Woods objects to Judge Johnston’s recommendation that her claims based on the Defendants’ violation of her son’s, mother’s, and James Dean Bird’s personal rights should be dismissed with prejudice. (Doc. 15 at 1).
Woods alleges in her amended complaint that the Defendants deprived her son of his Fourth Amendment protections against unreasonable searches and seizures. Woods lacks standing to assert claims based on her son’s Fourth Amendment rights. Moreland v. Las Vegas Metro. Police Dep’t., 159 F.3d 365, 369 (9th Cir. 1998) (a person does not have standing to vicariously assert the Fourth Amendment rights of another person). The excessive force exception does not apply to this case. Moreland, 159 F.3d at 369.
Woods also alleges that the Defendants violated her mother’s and Mr. Bird’s personal rights. Woods also lacks standing to assert claims based on her mother’s and James Dean Bird’s personal rights. Johns v .Co. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (constitutional claims are ...