Johnson et al v. Creatura, No. 3:2011cv05057 - Document 8 (W.D. Wash. 2011)
Court Description: ORDER granting 5 Motion to Dismiss. Plaintiffs' complaint is dismissed with prejudice. The Clerk of the Court shall enter judgment in accordance with this order. Signed by Judge Fred Van Sickle.(CMG; cc to Plaintiffs via mail)
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Johnson et al v. Creatura Doc. 8 1 UNITED STATES DISTRICT COURT 2 WESTERN DISTRICT OF WASHINGTON 3 4 5 DANIEL JOHNSON AND MARY LEE JOHNSON, 6 No. C11-5057-FVS Plaintiffs, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 7 v. 8 9 10 J. RICHARD CREATURA, UNITED STATES MAGISTRATE JUDGE, Defendant. 11 12 13 THIS MATTER comes before the Court without oral argument based 14 upon the defendant’s motion to dismiss. 15 Stahman. He is represented by Kayla C. The plaintiffs are representing themselves. 16 BACKGROUND 17 On October 1, 2009, the Internal Revenue Service (“IRS”) 18 commenced an action in the United States District Court for the 19 Western District of Washington by filing a pleading that is entitled 20 “Petition for Judicial Approval of Levy Upon a Principal Residence.” 21 The IRS alleged Daniel Johnson and Mary Lee Johnson (“the Johnsons”) 22 23 had failed to pay federal income tax. The IRS sought permission to collect the allegedly unpaid tax by means of an administrative levy 24 upon the Johnsons’ residence. The case was assigned to Magistrate 25 Judge J. Richard Creatura. The Johnsons filed a responsive pleading 26 that is entitled “Objection to Petition and Motion to Dismiss.” On ORDER - 1 Dockets.Justia.com 1 November 10, 2009, Magistrate Judge Creatura held a hearing. 2 Johnsons were present. 3 provided a transcript of the hearing (which, of course, they are under 4 no obligation to do), there are indications in the parties’ papers 5 that the Johnsons reiterated their objections at the hearing and 6 demanded a jury trial. 7 8 The While the parties to this action have not Magistrate Judge Creatura denied the Johnsons’ request for a jury trial, overruled their objections, and granted the IRS’ petition. On November 13th, Magistrate Judge Creatura entered an 9 “Order Approving Levy.” The same day, Magistrate Judge Creatura 10 received a letter from Mr. Johnson. The letter bitterly criticized 11 his rulings. The Johnsons did not appeal Magistrate Judge Creatura’s 12 order. Instead, on January 20, 2011, they filed an action against him 13 pursuant to 42 U.S.C. § 1983. The seek money damages, declaratory 14 relief, and injunctive relief on the ground he deprived them of rights 15 16 17 secured by Fifth, Seventh, and Eighth Amendments to the Constitution. The Court has jurisdiction over the subject matter of the action. 18 28 U.S.C. § 1331. 19 Magistrate Judge Creatura denies he has been served properly under 20 Federal Rule of Civil Procedure 4. 21 jurisdiction. 22 federal court is without personal jurisdiction over a defendant unless 23 the defendant has been served in accordance with Fed.R.Civ.P. 4.’” 24 (quoting Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982)). 25 However, Magistrate Judge Creatura is not raising the issue of 26 personal jurisdiction at this time. ORDER - 2 Personal jurisdiction is a different matter. Thus, the Court may lack personal Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986) (“‘A Instead, he moves to dismiss the 1 Johnsons’ complaint on the ground he is immune from suit for damages. 2 His motion is governed by Federal Rule of Civil Procedure 12(b)(6). 3 See Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir.), cert. 4 denied sub nom. Wojcik v. Meek, 528 U.S. 1005, 120 S.Ct. 499, 145 5 L.Ed.2d 386 (1999). 6 7 8 RULING The Johnsons are seeking several types of relief pursuant to 42 U.S.C. § 1983. It is useful to begin with the text of § 1983. The 9 first sentence states in pertinent part: 10 11 12 13 14 15 16 17 Every person who, under color of any statute, . . . 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, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 18 (Emphasis added.) One of the things a person must be able to prove in 19 order to prevail under § 1983 is that "the conduct complained of was 20 committed by a person acting under color of state law[.]" Parratt v. 21 Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). 22 23 24 “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power 25 ‘possessed by virtue of state law and made possible only because the 26 wrongdoer is clothed with the authority of state law.’” ORDER - 3 West v. 1 Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250, 2258, 101 L.Ed.2d 40 (1988) 2 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 3 1043, 85 L.Ed. 1368 (1941)). 4 authority from state law. 5 a federal right, the person may be able to sue the judge under § 1983. 6 See, e.g., Meek, 183 F.3d at 964 (“Donald L. Meek brought a section 7 8 For example, a state judge receives his Thus, if a state judge deprives a person of 1983 action against . . . two municipal court judges alleging that his First Amendment right to campaign for public office had been violated 9 when he was constructively fired in retaliation for his seeking 10 election to a municipal court judgeship.”). Unlike a state judge, 11 Magistrate Judge Creatura does not receive his authority from state 12 law. He receives his authority from federal law. 28 U.S.C. § 631 et seq. It was pursuant to federal law, not state law, that he was 13 14 authorized to adjudicate the IRS’ petition. 26 U.S.C. § 15 16 17 6334(e)(1)(A); 26 C.F.R. 301.6334-1(d)(1),(2). Section 1983 does not provide a remedy for acts that are performed by a federal official 18 pursuant to federal law. 19 828 F.2d 1385, 1387 (9th Cir.1987). 20 is under Bivens v. Six Unknown Named Agents of Federal Bureau of 21 Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). 22 that case, the “the Supreme Court ‘recognized for the first time an 23 implied private action for damages against federal officers alleged to 24 have violated a citizen's constitutional rights.’” 25 Services Co. v. United States Forest Service, 578 F.3d 1116, 1119 (9th 26 Cir.2009) (quoting Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, ORDER - 4 Mullis v. United States Bankruptcy Court, If the Johnsons have a remedy, it In Western Radio 1 1947, 173 L.Ed.2d 868 (2009)), cert. denied, --- U.S. ----, 130 S.Ct. 2 2402, 176 L.Ed.2d 923 (2010). 3 Bivens case is, unsurprisingly, called a “Bivens action.” 4 v. Moore, 547 U.S. 250, 254 n.2, 126 S.Ct. 1695, 164 L.Ed.2d 441 5 (2006). 6 state or local officials under § 1983. 7 8 A lawsuit that is authorized by the See Hartman A Bivens action is the federal analog to an action against Id. (citation omitted). The fact the Johnsons have mistakenly requested relief pursuant to § 1983 does not necessarily mean their lawsuit must be dismissed. If they 9 can state a claim for relief under Bivens, then they will be given an 10 opportunity to amend their complaint pursuant to Federal Rule of Civil 11 Procedure 15(a).1 However, while “leave to amend a deficient 12 complaint shall be freely given when justice so requires, . . ., leave 13 may be denied if amendment of the complaint would be futile.” Gordon 14 v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir.2010). The initial 15 16 17 18 19 issue, then, is whether it would be futile for the Johnsons to assert a Bivens claim against Magistrate Judge Creatura. The Johnsons seek money damages, declaratory relief, and injunctive relief. As a general rule, “a judge is immune from suit 20 21 1 Under Bivens, a federal official may not be sued in his 22 official capacity. 23 Cir.2008). Ibrahim v. DHS, 538 F.3d 1250, 1257 (9th He may be sued only in his personal capacity. See, e.g., Kreines v. United States, 33 F.3d 1105, 1107 (9th 24 Cir.1994), cert. denied, 513 U.S. 1148, 115 S.Ct. 1096, 130 25 26 L.Ed.2d 1064 (1995). The Johnsons’ complaint does not indicate whether they are suing Magistrate Judge Creatura in his personal capacity or in his official capacity. ORDER - 5 1 for money damages.” 2 L.Ed.2d 9 (1991). 3 damages, but also he is immune from a lawsuit itself. 4 S.Ct. 286. 5 check the passions that frequently are aroused by litigation: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286, 116 Not only is the judge immune from the assessment of Id. at 11, 112 The doctrine of judicial immunity exists, in part, to Controversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings, are being constantly determined in [trial] courts, in which there is great conflict in the evidence and great doubt as to the law which should govern their decision. It is this class of cases which impose upon the judge the severest labor, and often create in his mind a painful sense of responsibility. Yet it is precisely in this class of cases that the losing party feels most keenly the decision against him, and most readily accepts anything but the soundness of the decision in explanation of the action of the judge. Just in proportion to the strength of his convictions of the correctness of his own view of the case is he apt to complain of the judgment against him, and from complaints of the judgment to pass to the ascription of improper motives to the judge. When the controversy involves questions affecting large amounts of property or relates to a matter of general public concern, or touches the interests of numerous parties, the disappointment occasioned by an adverse decision, often finds vent in imputations of this character, and from the imperfection of human nature this is hardly a subject of wonder. If civil actions could be maintained in such cases against the judge, because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away. Few persons sufficiently irritated to institute an action against a judge for his judicial acts would hesitate to ORDER - 6 1 2 ascribe any character to the acts which would be essential to the maintenance of the action. 3 Bradley v. Fisher, 13 Wall. 335, 348-49, 20 L.Ed. 646 (1872). 4 Allowing a disappointed and angry litigant to bring a lawsuit against 5 the judge would undermine the proper administration of justice: 6 7 8 9 10 11 For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. 12 Id. at 347, 20 L.Ed. 646. Consequently, the necessity of judicial 13 immunity has long been recognized in Anglo-Saxon jurisprudence. Id. 14 at 347-49, 20 L.Ed. 646. Nevertheless, the Supreme Court has placed 15 16 17 two significant limitations upon judicial immunity. “First, a judge is not immune from liability for nonjudicial actions, i.e., actions 18 not taken in the judge's judicial capacity. 19 not immune for actions, though judicial in nature, taken in the 20 complete absence of all jurisdiction.” 21 S.Ct. 286 (citations omitted). 22 least one of the preceding exceptions may apply, then the doctrine of 23 judicial immunity bars their claim for money damages. 24 . . . Second, a judge is Mireles, 502 U.S. at 11, 112 Unless the Johnsons can demonstrate at The applicability of the first exception turns upon the nature of 25 the acts of which the Johnsons complain. 26 nature? Were they “judicial” in ORDER - 7 “‘[W]hether an act by a judge is a ‘judicial’ one relate[s] 1 to the nature of the act itself, i.e., whether it is a function 2 normally performed by a judge, and to the expectations of the parties, 3 i.e., whether they dealt with the judge in his judicial capacity.’” 4 502 U.S. at 12, 112 S.Ct. 286 (quoting Stump v. Sparkman, 435 U.S. 5 349, 362, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)). 6 appeared before Magistrate Judge Creatura for a hearing on their 7 8 When the Johnsons objections to the IRS’ petition, they understood they were seeking relief from him in his capacity as a judicial officer. During the 9 course of the hearing, he considered their objections to the petition 10 and their request for a jury trial. In the end, not only did he 11 decide their demand for a jury trial was unwarranted, but also he 12 decided their objections lacked merit and the IRS was entitled to the 13 relief it requested. Decisions like these are decisions a judge makes 14 in his judicial capacity. The Johnsons acknowledge as much. In their 15 16 17 response to Magistrate Judge Creatura’s motion to dismiss, they forthrightly concede, “The defendant’s actions were clearly judicial 18 in nature.” 19 concession confirms that which is plain. 20 apply. 21 (Rebuttal to Motion to Dismiss at 1.) The Johnson’s The first exception does not The applicability of the second exception turns upon the 22 existence of jurisdiction. 23 jurisdiction over the subject matter of the IRS’ petition? 24 v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 25 (1978), the Supreme Court explained the term “jurisdiction” is 26 construed broadly in this context: ORDER - 8 Did Magistrate Judge Creatura have In Stump 1 2 3 4 5 6 Because some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, the scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction. 7 8 9 (Internal punctuation and citation omitted.) The Johnsons do not argue Magistrate Judge Creatura “acted in the clear absence of all 10 jurisdiction,” nor could they credibly make such an argument. 11 Congress has authorized magistrate judges to review and, when 12 appropriate, grant petitions such as the one the IRS filed. 13 § 6334(e)(1)(A) (“A principal residence shall not be exempt from levy 14 if a judge or magistrate of a district court of the United States 15 approves (in writing) the levy of such residence.”). 16 the second exception does not apply. 17 26 U.S.C. Consequently, The Johnsons seem to acknowledge neither exception to the 18 doctrine of judicial immunity applies. 19 Court to withhold immunity from Magistrate Judge Creatura. 20 him immunity, they argue, would be unjust because it would shield him 21 from accountability for violating their constitutional rights. 22 Nevertheless, the urge the Granting Although the Johnsons’ argument may be heartfelt, it is misguided. 23 Suing a judge for money damages is not the proper mechanism for 24 challenging the correctness of his rulings. Rather, the proper 25 mechanism is an appeal. Congress has long recognized federal judges 26 occasionally make mistakes. ORDER - 9 As a result, “Congress has provided 1 carefully structured procedures for taking appeals, including 2 interlocutory appeals, and for petitioning for extraordinary writs in 3 Title 28 of the United States Code. 4 litigant . . . receives full federal court review of allegations of 5 deprivations of federal constitutional rights by federal judicial 6 officers acting under color of federal law.” 7 8 1394. Through these procedures, a Mullis, 828 F.2d at It appears the Johnsons could have appealed, which would have given them an opportunity to challenge the correctness of Magistrate 9 Judge Creatura’s rulings. See, e.g., United States v. Pragasam, No. 10 06-56691, 2007 WL 1731107 (9th Cir. June 15, 2007). However, there is 11 no indication the Johnsons appealed. Having waived appellate review 12 of Magistrate Judge Creatura's rulings, the Johnsons cannot reasonably 13 complain that granting him immunity will unjustly deprive them of an 14 opportunity to seek judicial redress for their grievances.2 15 16 17 18 19 20 21 22 23 24 25 26 2 Other litigants may be in a better position to claim injustice. As the Supreme Court has recognized, the doctrine of judicial immunity will, on occasion, deny a litigant any remedy for allegedly unconstitutional conduct on the part of a judge. See, e.g., Mireles, 502 U.S. 10, 112 S.Ct. 286. The fact the doctrine of judicial immunity produces a harsh outcome in certain cases does not mean the doctrine is unjust. In assessing the doctrine, at least two interests must be balanced. On the one hand, it is important to provide redress for constitutional violations. On the other hand, it is important to maintain an independent judiciary. The Supreme Court has weighed the competing interests and concluded justice is best served by granting immunity to judges subject to the two exceptions that were discussed above. ORDER - 10 Id. at 9, 112 S.Ct. 286. 1 One question remains. Besides money damages, the Johnsons seek 2 an order restoring their former residence to them free of 3 encumbrances, and they seek a permanent injunction barring the IRS 4 from seeking to seize their residence by means of an administrative 5 levy. 6 judicial immunity? 7 8 9 10 11 12 13 14 15 Are these types of relief also precluded by the doctrine of The Ninth Circuit answered this question in Mullis v. United States Bankruptcy Court, supra: [W]hen a person who is alleged to have caused a deprivation of constitutional rights while acting under color of federal law can successfully assert judicial or quasi-judicial immunity from damages, that immunity also will bar declaratory and injunctive relief. The judicial or quasijudicial immunity available to federal officers is not limited to immunity from damages, but extends to actions for declaratory, injunctive and other equitable relief. 828 F.2d at 1394. In view of this holding, the Johnsons remaining requests for relief are also barred. 16 SUMMARY 17 The Johnsons have filed suit against Magistrate Judge Creatura 18 under 42 U.S.C. § 1983. They allege he violated the Constitution 19 during November of 2009 by authorizing the IRS to collect allegedly 20 unpaid federal income tax by means of an administrative levy upon 21 their residence. The Johnsons are not entitled to relief under § 1983 22 23 24 because Magistrate Judge Creatura did not act under color of state law; he acted under color of federal law. If the Johnsons have a 25 remedy, it is under Bivens v. Six Unknown Named Agents of Federal 26 Bureau of Narcotics, supra. ORDER - 11 However, it would be futile to offer them 1 an opportunity to file an amended complaint seeking relief under 2 Bivens because any type of relief they could request would be barred 3 by the doctrine of judicial immunity. 4 Johnsons may assert against Magistrate Judge Creatura for which relief 5 may be granted, their complaint must be dismissed with prejudice 6 pursuant to Rule 12(b)(6). 7 8 Since there is no claim the IT IS HEREBY ORDERED: 1. The defendant’s motion to dismiss (Ct. Rec. 5) is granted. 9 The plaintiffs’ complaint is dismissed with prejudice. 10 2. The Clerk of the Court shall enter judgment in accordance with 11 this order. 12 IT IS SO ORDERED. The Clerk of the Court is hereby directed to 13 enter this order, furnish copies to the plaintiffs and to counsel for 14 the defendant, and close the case. 15 16 DATED this 17 7th day of April, 2011. s/Fred Van Sickle Fred Van Sickle Senior United States District Judge 18 19 20 21 22 23 24 25 26 ORDER - 12
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