(PS) Powell et al. v. Department of Child Support Services et al., No. 2:2016cv01197 - Document 13 (E.D. Cal. 2016)
Court Description: FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 12/10/2016 RECOMMENDING that the 12 First Amended Complaint be dismissed without leave to amend; REFERRING this matter to Judge Troy L. Nunley; ORDERING that any objections be filed within fourteen (14) days. (Michel, G.)
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(PS) Powell et al. v. Department of Child Support Services et al. Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL POWELL, 12 13 14 15 Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS SUPERIOR COURT OF CLAIFORNIA, PLACER COUNTY, et al., Defendants. 16 17 18 No. 2:16-cv-1197 TLN GGH PROCEDURAL BACKGROUND Plaintiff, proceeding in this action pro se and in forma pauperis, has filed a first amended 19 complaint (“FAC”), ECF No. 12, after his original pleading was dismissed as legally frivolous. 20 ECF No. 3. The federal in forma pauperis statute authorizes federal courts to dismiss a case if the 21 action is legally “frivolous or malicious, fails to state a claim upon which relief may be granted, 22 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 23 1915(e)(2). 24 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 25 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227–28 (9th 26 Cir.1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 27 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 28 490 U.S. at 327. A complaint, or portion thereof, should only be dismissed for failure to state a 1 Dockets.Justia.com 1 claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set 2 of facts that would satisfy the jurisdictional requirements of this court. 3 DISCUSSION 4 Plaintiff's claims seem to arise out of contentions regarding custody of and visitation with 5 his children. He complains that the judicial officers who dealt with the dispute venued in the 6 Placer County Superior Court were biased, ignored his several recusal demands, and refused to 7 follow proper procedures for addressing those demands. He attempts to meet the jurisdiction 8 requirement by listing the following “Violation[s] of Civil Rights in the preamble to his Amended 9 Complaint: “Inequality to Parents/Bi-Racial Kids; Denial of Procedural Due Process; Dereliction 10 of Duty and Office; Allowing Circus Atmosphere; Spoliation of Evidence; Intentional 11 Negligence; Willful Misconduct; Loss of Jurisdiction, etc.” Each of these purported violations 12 were inflicted by Superior Court Judicial Officers, both Superior Court Judges and 13 Commissioners who were sitting in their official capacities during the course of the litigation in 14 which plaintiff was a party.1 15 The tenets of judicial immunity were explained to plaintiff in this court’s earlier order 16 dismissing his original Complaint with leave to amend and that judicial officers could not be sued 17 in federal courts. See Stump v. Sparkman, 435 U.S. 349, 360 (1978); Butz v. Economou, 439 18 U.S.478, 511, 512 (1978); Romano v. Bible, 169 F.3d 1182, 1185, 1186 (9th Cir. 1999), and that 19 this court could not review the determinations of state courts. ECF 3 at 3:8-22. His First 20 Amended Complaint did not acknowledge this bar, but iterated it in a slightly different format 21 than had the original Complaint. 22 Like other forms of official immunity, judicial immunity is an immunity from suit, not 23 just from ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991). Judicial 24 immunity is overcome only when a judges actions are either (1) nonjudicial in nature, i.e., not 25 taken in the judge's judicial capacity,2 Forrester v. White, 484 U.S. 219, 227–29 (1988); or (2) 26 1 27 28 He also lists the Department of Child Support Services, Placer Co., but fails to state any facts with regard to their purported culpability, along with Entities and Individual Respondents, Additional Parties to be named later. 2 As stated earlier, all of the behaviors and actions complained of by Plaintiff occurred in the 2 1 taken in the complete absence of all jurisdiction, Stump v. Sparkman, 435 U.S. 349, 356–57 2 (1991). “Allegations of malice or bad faith in the execution of the officer’s duties, such as are 3 alleged here, are insufficient to sustain the complaint when the officer possesses absolute judicial 4 immunity.” Demoran v. Witt, 781 F.2d 155, 158 (9th Cir.1985). 5 Finally, plaintiff claims that these judicial officers did not follow the state court 6 procedures regarding challenges to their impartiality and behavior on the bench. He cites no 7 authority, nor is this court aware of any, that allows a Federal District Court to oversee or control 8 the performance of State courts adherence to state law. 9 CONCLUSION 10 The court granted plaintiff leave to amend with instructions on how to amend his 11 complaint in compliance with Rule 8. Nonetheless, the FAC still fails to allege facts sufficient to 12 state a claim against any defendants. As plaintiff has had ample opportunity to correct the 13 deficiencies in his complaint, and he continues to make conclusory allegations which the court 14 previously advised plaintiff are insufficient, the court finds that any further attempt to amend 15 would be futile. Even if plaintiff were able to conform his pleading to the requirements of Rule 8, 16 the claims are barred by judicial immunity. That defect cannot be cured by amendment. Any 17 relief to which Plaintiff may be entitled must be sought within the State Court system, not in a 18 federal court. 19 20 21 CONCLUSION In accordance with the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff's first amended complaint be dismissed without leave to amend. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 24 days after being served with these findings and recommendations, Plaintiff may file written 25 objections with the court. Such a document should be captioned “Objections to Magistrate 26 Judge's Findings and Recommendations.” The plaintiff is advised that failure to file objections 27 28 courtroom while the defendant judicial officials were on the bench and acting in their judicial capacities. 3 1 within the specified time may waive the right to appeal the District Court's order. Martinez v. 2 Ylst, 951 F.2d 1153 (9th Cir.1991). 3 Dated: December 10, 2016 4 5 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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