Weldon v. Kapetan et al, No. 1:2017cv01536 - Document 10 (E.D. Cal. 2018)
Court Description: ORDER ADOPTING FINDINGS and RECOMMENDATIONS in Part, and Dismissing Entire Complaint without Leave to Amend signed by Chief Judge Lawrence J. O'Neill on 05/09/2018. CASE CLOSED.(Flores, E)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 PAUL WELDON, Plaintiff, 9 10 Case No. 1:17-cv-01536-LJO-SKO ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART, AND DISMISSING ENTIRE COMPLAINT WITHOUT LEAVE TO AMEND v. 11 (Doc. 4) JONATHAN NICHOLAS KAPETAN, 12 FRESNO SUPERIOR COURT, DOES 1-100, 13 Defendants. 14 15 16 17 I. BACKGROUND On November 17, 2017, Plaintiff Paul Weldon (“Plaintiff”), proceeding pro se and in forma 18 pauperis, filed a complaint against the Fresno Superior Court and Fresno Superior Court Judge Jonathan 19 Nicholas Kapetan, alleging violations of 42 U.S.C. §§ 1983, 1985, and 1986. Doc. 1 (the “Complaint”). 20 The Complaint concerns Plaintiff’s appearance before Judge Kapetan in November 2015 for 21 arraignment on misdemeanor charges of driving under the influence (“DUI”). See generally Compl. at 222 5; Transcript of November 18, 2015 Hearing (“Tr.”) (attached to Complaint). Plaintiff appeared in 23 propria persona. Tr. at 1. While Judge Kapetan was informing Plaintiff of the charges filed against him 24 and the attendant penalties, Plaintiff stated, “Well, actually I’m here to challenge jurisdiction . . . ,” and 25 “I’ll need all the elements to the arraignment . . . .” Id. at 4. At Judge Kapetan’s direction, the courtroom 1 1 deputy handed Plaintiff a copy of the criminal complaint. Id. at 5-6. An exchange occurred in which 2 Plaintiff demanded the name of the deputy clerk who signed the criminal complaint. Id. at 6-7. Plaintiff 3 refused to enter a plea, so Judge Kapetan entered a plea of not guilty on Plaintiff’s behalf and set bond at 4 $10,000. Id. at 8. At this point, realizing he would be remanded into custody pending his next court date 5 or his ability to post bond, Plaintiff indicated his intent to consider a plea. Id. at 9. Judge Kapetan then 6 took the matter off the record, and, as Plaintiff alleges, kept Plaintiff handcuffed while a public defender 7 was summoned to the courtroom. See Compl. at ¶ 7. Later, Judge Kapetan recalled the case, Plaintiff 8 withdrew his plea, and then accepted a no contest plea. Tr. at 17-18. 9 Plaintiff claims that he was denied due process of law during the arraignment and plea because 10 Judge Kapetan did not provide him a true copy of the complaint and the name of the person who signed 11 it. Compl. at. ¶¶ 2-3. Second, Plaintiff alleges that he was falsely imprisoned when Judge Kapetan kept 12 him handcuffed for the period of time during the arraignment while a public defender was summoned to 13 the courtroom to represent Plaintiff. Id. ¶¶ 5, 7-8. Third, Plaintiff alleges that he was coerced to plead 14 guilty because he faced a Hobson’s choice between pleading guilty or remaining in custody until his 15 trial. See Id. Plaintiff’s complaint also alleges “breach of contract” in that that Judge Kapetan is in 16 “breach of trust and public contract” and has “abandon[ed] his oath of office,” by virtue of violating 17 Plaintiff’s constitutional rights and subjecting him to public ridicule, humiliation, and embarrassment. 18 Id. ¶¶ 6, 10, 14. Plaintiff appears to be asserting that this last allegation states a claim under 42 U.S.C. 19 §§ 1981, 1985 and/or 1986. Id. at Caption & ¶ 12. The Complaint seeks judgment against Judge Kapetan 20 and Fresno Superior Court, money damages and fines, and an order “remand[ing] and remov[ing] [Judge 21 Kapetan] from office pursuant to 18 U.S.C. § 1918.” Id. ¶ 14. 22 On February 20, 2018, the assigned magistrate judge issued findings and recommendations 23 (“F&Rs”) that the Complaint be dismissed with prejudice and without leave to amend, in part, as to all 24 of Plaintiff’s claims against Fresno Superior Court and as to Plaintiff’s claims for declaratory relief and 25 money damages against Judge Kapetan. ECF No. 4. The assigned magistrate judge further 2 1 recommended that the Complaint be dismissed without prejudice and with leave to amend, in part, as to 2 Plaintiff’s claims for prospective injunctive relief against Judge Kapetan. Id. The F&Rs recommended 3 that Plaintiff be granted thirty (30) days leave to file an amended complaint. Id. Plaintiff was served with 4 the F&Rs by mail, and was granted twenty-one (21) days in which to file objections to the findings and 5 recommendations. Id. On March 13, 2018, Plaintiff filed objections, stating only, “Plaintiff Paul Weldon 6 . . . submits this Objection to Magistrate[] Judge’s Findings and [R]ecommendations.” ECF No. 5.1 7 On April 10, 2018, this Court issued an order indicating that it intended to dismiss the entire 8 Complaint without leave to amend, and, in an effort to give Plaintiff an opportunity to be heard on newly 9 raised issues, ordered Plaintiff to show cause (“OSC”) why the Court should not dismiss the Complaint 10 without leave to amend. ECF No. 8. Plaintiff filed a response to the OSC. ECF No. 9. In accordance 11 with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has conducted a de novo review of the 12 case. Having carefully reviewed the entire file, including Plaintiff’s objections to the F&Rs and response 13 to the OSC, the Court adopts the recommendations of the F&Rs in part and modifies and/or clarifies 14 other parts as follows. II. SCREENING STANDARD 15 The F&Rs correctly set forth the applicable screening standard. Critically, if a court determines 16 17 that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an 18 opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 19 1127-29 (9th Cir. 2000) (en banc). However, a complaint may be dismissed without leave to amend if 20 amendment will be futile. Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court 21 should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. § 22 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured 23 1 Possibly believing that the F&Rs set a deadline for the filing of an amended complaint, Plaintiff filed a first amended 24 complaint on March 21, 2018. ECF No. 6. Because the district court had yet to adopt or otherwise address the F&Rs’ 25 recommendation regarding amendment, the lodged amended complaint was stricken. ECF No. 7. Plaintiff’s response to the Court’s order to show cause, ECF No. 9, demonstrates that he continues to misunderstand the nature of the F&Rs, which were only recommendations to the district judge about whether to grant Plaintiff leave to amend. 3 1 by amendment.”)(internal quotation omitted). III. DISCUSSION 2 3 A. Claims Against Fresno Superior Court The Court agrees with the F&Rs that Defendant Fresno Superior Court must be DISMISSED 4 5 WITHOUT LEAVE TO AMEND based upon Eleventh Amendment Immunity. This defect cannot be 6 cured on amendment. 7 B. 8 9 Claims Arising Under 42 U.S.C. §§ 1981, 1985 and/or 1986. The F&Rs do not address directly Plaintiffs allegations regarding 42 U.S.C. §§ 1981, 1985 and/or 1986. Section 1981 provides: 10 (a) Statement of equal rights. 11 All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 12 13 14 (b) “Make and enforce contracts” defined 15 17 For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 18 (c) Protection against impairment 19 The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. 16 20 21 42 U.S.C. § 1981. This provision prohibits private individuals as well as state actors from discriminating 22 against an individual on the basis of his or her race with respect to that individual’s right “to sue, be 23 parties, give evidence, and to the full and equal benefit of all laws ...” See General Bldg. Contractors 24 Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982). “Section 1981 cannot be construed as a general 25 proscription of racial discrimination . . . for it expressly prohibits discrimination only in the making and 4 1 enforcement of contracts.” Patterson v. McLean Credit Union, 491 U.S. 164, 176 (1989) (emphasis 2 added); see also Georgia v. Rachel, 384 U.S. 780, 791 (1966) (“The legislative history of the 1866 Act 3 clearly indicates that Congress intended to protect a limited category of rights”): In this respect, [Section 1981] prohibits discrimination that infects the legal process in ways that prevent one from enforcing contract rights, by reason of his or her race, and this is so whether this discrimination is attributed to a statute or simply to existing practices. It also covers wholly private efforts to impede access to the courts or obstruct nonjudicial methods of adjudicating disputes about the force of binding obligations, as well as discrimination by private entities, such as labor unions, in enforcing the terms of a contract. 4 5 6 7 8 Patterson, 491 U.S. at 177. As mentioned in the Court’s previous order, section 1981 is simply not 9 relevant to any claim Plaintiff raises in this case. 10 11 42 U.S.C. § 1985 is likewise not relevant to Plaintiff’s factual allegations. That provision applies to conspiracies by “two or more persons” to interfere with civil rights. Plaintiff does not allege claims 12 based on action by anyone other than Judge Kapetan, so does not allege a conspiracy, let alone one that 13 would trigger the other requirements of Section 1985. 14 Finally, 42 U.S.C. § 1986 provides a cause of action against any person having knowledge of a 15 conspiracy prohibited by Section 1985. Plaintiff has alleged no Section 1985 conspiracy, so Section 16 1986 is inapplicable as well. See Abeytia v. Fresno Police Dep't, No. 1:08-CV-01528OWWGSA, 2009 17 WL 1674568, at *6 (E.D. Cal. June 12, 2009) (Section 1986 claim dependent on Section 1985 claim) 18 Plaintiff has offered no argument to suggest that he has alleged (or can allege) any non-futile 19 claim under 42 U.S.C. §§ 1981, 1985 and/or 1986. Therefore, any such claims are DISMISSED 20 WITHOUT LEAVE TO AMEND. 21 C. Section 1983 Claims for Money Damages against Judge Kapetan 22 The Court agrees with the F&Rs that any remaining claims pursuant to 42 U.S.C. § 1983 for 23 money damages against Defendant Judge Jonathan Nicholas Kapetan must be DISMISSED WITHOUT 24 LEAVE TO AMEND based upon Heck v. Humphrey, 512 U.S. 477 (1994). As the F&Rs explained, any 25 5 1 action that would call into question the lawfulness of a plaintiff’s conviction or confinement is not 2 cognizable outside the context of a habeas corpus claim. See Harvey v. Waldron, 210 F.3d 1008, 1013 3 (9th Cir. 2000), overruled in part on other grounds by Wallace v. Kato, 549 U.S. 384, 393-94 (2007); 4 Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996). Here, a money judgment in Plaintiff’s favor on his 5 claim that his no-contest plea to the DUI was not voluntary and intelligent would obviously call the DUI 6 conviction into question. Likewise, a judgment in Plaintiff’s favor on his due process claim regarding 7 Judge Kapetan’s purported failure to provide Plaintiff with the criminal complaint and to identify the 8 person who signed it, if true, would also implicate the validity of his conviction. See, e.g., Vonne Ray v. 9 Warner, No. SA CV 15-01242-JLS (DFM), 2015 WL 5444491, *2-3 (C.D. Cal. Sept. 14, 2015) (finding 10 due process claim of failure to give notice barred by Heck because it would call into question the 11 lawfulness of plaintiff’s conviction). Finally, Plaintiff’s claim that he was falsely imprisoned by Judge 12 Kapetan during his arraignment, if found true, would implicate the validity of his conviction, as the DUI 13 charge was the basis for the handcuffing. See Cabrera v. City of Huntington Park, 159 F.3d 374, 380 14 (9th Cir. 1998). 15 To the extent any of Plaintiff’s claims are not precluded by Heck, the Court also agrees that, 16 alternatively, the doctrine of judicial immunity requires dismissal of any claims against Judge Kapetan 17 for money damages. See Mireles v. Waco, 502 U.S. 9, 10-12 (1991) (per curiam) (the only exceptions to 18 judicial immunity from damages actions are if the actions were not taken in the judge’s judicial capacity 19 or if there is a complete absence of jurisdiction). The claims in this case all involve actions taken by 20 Judge Kapetan in his judicial capacity and there is no non-frivolous allegation that Judge Kapetan acted 21 in the absence of jurisdiction. Plaintiff points out that his Complaint alleges Judge Kapetan only 22 “acquires jurisdiction upon and only upon a BONA FIED [sic] ACCUSATORY INSTRUMENT.” ECF 23 No. 9 at 2. Plaintiff misapprehends the “absence of all jurisdiction” exception. In Stump v. Sparkman, 24 435 U.S. 349, 357 (1978), the Supreme Court provided an example of when a judge might be found to 25 have acted in the absence of all jurisdiction: 6 [I[f a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. 1 2 3 4 Accordingly, Plaintiff’s complaint that he was not presented with an appropriate charging instrument, 5 even if true, does not demonstrate a clear lack of all jurisdiction. See Gutierrez v. Atkins, No. 2:13-CV6 00245-RCJ, 2013 WL 1789594, at *2 (D. Nev. Apr. 25, 2013) (applying Stump to reject argument that 7 judge’s failure to provide charging instrument amounted to action in absence of all jurisdiction). 8 In conclusion, any claims for monetary damages against Judge Kapetan are DISMISSED 9 WITHOUT LEAVE TO AMEND because amendment would be futile. 10 D. Section 1983 Claims for Injunctive Relief Against Judge Kapetan 11 The Court departs from the F&Rs with respect to its application of judicial immunity to 12 Plaintiff’s claims for injunctive relief. As to injunctive relief, in 1996, Congress amended Section 1983 13 to prohibit the grant of injunctive relief against judges for acts or omissions taken in their judicial 14 capacities unless a declaratory decree was violated or declaratory relief was unavailable. 42 U.S.C. 15 § 1983 (2012); see Federal Courts Improvement Act of 1996 (“FCIA”), Pub. L. No. 104-317, 110 Stat. 16 3847, 3853 (Oct. 19, 1996) (“[I]n any action brought against a judicial officer for an act or omission 17 taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree 18 was violated or declaratory relief was unavailable.”). 19 The phrase “declaratory relief” in the current version of § 1983 refers to the ability of a litigant to 20 “appeal[ ] the judge’s order.” Owens v. Cowan, No. CV1703674FMOJDE, 2018 WL 1002313, at *11 21 (C.D. Cal. Jan. 17, 2018), report and recommendation approved, No. CV1703674FMOJDE, 2018 WL 22 1009268 (C.D. Cal. Feb. 16, 2018) (citing numerous cases). The state appellate system afforded Plaintiff 23 an opportunity to appeal the voluntariness of his no contest plea on such grounds. See Cal. Penal Code § 24 1237.5. Therefore, declaratory relief, as that term is used in § 1983, was available, whether or not 25 7 1 Plaintiff took advantage of the opportunity provided by state appellate procedure. See Sutton v. Nevada, 2 No. 3:17-CV-00357 MMD VPC, 2018 WL 1081709, at *4 (D. Nev. Jan. 24, 2018), report and 3 recommendation adopted, No. 3:17-CV-00357-MMD-VPC, 2018 WL 1077281 (D. Nev. Feb. 27, 2018) 4 (citing Kampfer v. Scullin, 989 F. Supp. 194, 201 (N.D.N.Y. 1997) (denying plaintiffs’ claim against 5 judge for injunctive relief because they “could have sought declaratory relief but failed to do so”)). 6 Because declaratory relief (i.e., the ability to appeal) was available to Plaintiff, injunctive relief under 7 § 1983 against Judge Kapetan for actions taken in his judicial capacity is not available, since the 8 exceptions to the statutory bar against injunctive relief do not apply. The Court cannot envision any fact 9 pattern in which Plaintiff could overcome Section 1983’s statutory bar against injunctive relief against 10 Judge Kapetan, and Plaintiff offers no argument to the contrary. Therefore, any such claim is 11 DISMISSED WITHOUT LEAVE TO AMEND because amendment would be futile. 12 E. Section 1983 Claims for Declaratory Relief Against Judge Kapetan 13 To the extent Plaintiff seeks declaratory relief at all in his Complaint, any claim for retrospective 14 declaratory relief (i.e., a declaration that Plaintiff’s no-contest plea to DUI was not voluntary and 15 intelligent, that Judge Kapetan violated Plaintiffs’ due process rights by failing to provide Plaintiff with 16 the criminal complaint and failing to identify the person who signed it, and/or that Plaintiff was falsely 17 imprisoned by Judge Kapetan during his arraignment) is barred by Heck for the same reason(s) a money 18 judgment on those subjects would be barred by Heck: such a judgment would call into question the 19 validity of his conviction, as discussed above. 20 A Section § 1983 Claim for prospective (i.e., forward-looking) declaratory relief is theoretically 21 possible. Heck does not bar claims for prospective declaratory relief. See Rose v. California, 356 F. 22 App’x 975 (9th Cir. 2009) (internal citations omitted). Likewise, neither the doctrine of judicial 23 immunity nor Section 1983’s immunity language specifically precludes claims for prospective 24 declaratory relief. See Yellen v. Hara, No. CIV. 15-00300 JMS, 2015 WL 4877805, at *5 (D. Haw. Aug. 25 13, 2015); Ray v. Judicial Corrs. Servs., Inc., 2014 WL 5090723, at *4 (N.D. Ala. Oct. 9, 2014) 8 1 (“Notwithstanding § 1983’s clarity regarding injunctive relief, that statute fails to address the availability 2 of prospective declaratory relief to defeat judicial immunity”). 3 Nonetheless, prospective declaratory relief requests are those that seek to resolve “prospective” 4 (i.e., anticipated or future) disputes and “should not be sought to correct past wrongs where other 5 remedies exist.” Kim v. City of Belmont, Case No. 17-cv-02563-JST, 2018 WL 500269, at *14 (N.D. 6 Cal. Jan. 22, 2018); see, e.g., Wilkinson v. Dotson, 544 U.S. 74, 80 (2005) 80 (inmates sought injunction 7 and declaration against state parole procedures, not specific parole determinations). Here, the facts 8 alleged in the Complaint all relate to specific judicial actions and determinations regarding the 9 lawfulness of Judge Kapetan’s actions with regard to Plaintiff’s DUI case. The Court does not see how 10 there is any way Plaintiff can amend his complaint to take advantage of the narrow exception to judicial 11 immunity for prospective declaratory relief. Plaintiff offers no argument to the contrary in his response 12 to the OSC. Accordingly, any declaratory relief claim against Judge Kapetan is DISMISSED 13 WITHOUT LEAVE TO AMEND because amendment would be futile. IV. CONCLUSION 14 15 For the reasons set forth above, Plaintiffs Complaint is dismissed without leave to amend. The 16 Clerk of Court is directed to CLOSE THIS CASE. 17 18 IT IS SO ORDERED. 19 Dated: /s/ Lawrence J. O’Neill _____ May 9, 2018 UNITED STATES CHIEF DISTRICT JUDGE 20 21 22 23 24 25 9
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