(PS) Todd v. Nunley et al, No. 2:2018cv02499 - Document 5 (E.D. Cal. 2019)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/8/2019 RECOMMENDING that the action be dismissed due to judicial immunity, that 2 Motion to Proceed IFP be denied as moot, and that Clerk of Court be directed to close this case. It is also hereby ORDERED that all pleading, discovery, and motion practice in this action are STAYED pending resolution of these findings and recommendations. Referred to Judge William B. Shubb. Objections due within 14 days after being served with these findings and recommendations. (Huang, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOBY JO TODD, 12 No. 2:18-cv-02499-WBS-KJN PS Plaintiff, 13 v. 14 ORDER AND TROY L. NUNLEY, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff Toby Jo Todd, who proceeds in this action without counsel,1 has requested leave 18 to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.) Pursuant to 28 U.S.C. 19 § 1915, the court is directed to dismiss the case at any time if it determines that the allegation of 20 poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief 21 may be granted, or seeks monetary relief against an immune defendant. For the reasons discussed below, the court concludes that defendants are immune from 22 23 plaintiff’s suit. Accordingly, the court recommends that the action be dismissed and that 24 plaintiff’s application to proceed in forma pauperis in this court be denied as moot. “Judges are immune from damage actions for judicial acts taken within the jurisdiction of 25 26 27 28 their courts. . . . Judicial immunity applies however erroneous the act may have been, and 1 This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 1 however injurious in its consequences it may have proved to the plaintiff.” Ashelman v. Pope, 2 793 F.2d 1072, 1075 (9th Cir. 1986). A judge can lose his or her immunity when acting in clear 3 absence of jurisdiction, but one must distinguish acts taken in error or acts that are performed in 4 excess of a judge’s authority (which remain absolutely immune) from those acts taken in clear 5 absence of jurisdiction. Mireles v. Waco, 502 U.S. 9, 12-13 (1991) (“If judicial immunity means 6 anything, it means that a judge will not be deprived of immunity because the action he took was 7 in error . . . or was in excess of his authority”). Thus, for example, in a case where a judge 8 actually ordered the seizure of an individual by means of excessive force, an act clearly outside of 9 his legal authority, he remained immune because the order was given in his capacity as a judge 10 and not with the clear absence of jurisdiction. Id.; see also Ashelman, 793 F.2d at 1075 (“A judge 11 lacks immunity where he acts in the clear absence of jurisdiction . . . or performs an act that is not 12 judicial in nature”). 13 Here, plaintiff seeks six million dollars in damages from defendants United States District 14 Judge Troy L. Nunley and United States Magistrate Judge Allison Claire. (ECF No. 1 at 7.) 15 According to plaintiff, she previously brought an action in federal court in the Eastern District 16 against an attorney she had been appointed in Ohio as part of child custody case. (Id. at 3.) 17 Plaintiff asserts that in this prior federal case, defendants violated her due process by denying her 18 “motion of discovery” and dismissing the case. (Id. at 3-4.) 19 Clearly, plaintiff seeks monetary relief from two federal judges for actions they took 20 within their jurisdiction—denying a motion and dismissing a case. Indeed, such actions are 21 quintessential examples of judicial acts. Therefore, defendants are immune from this suit, 22 “however erroneous the act[s] may have been.” Ashelman, 793 F.2d at 1075. Plaintiff’s proper 23 course of action to redress any erroneous rulings by defendants was to appeal those rulings to the 24 Ninth Circuit Court of Appeals. 25 Accordingly, IT IS HEREBY RECOMMENDED that: 26 1. The action be dismissed due to judicial immunity. 27 2. Plaintiff’s motion to proceed in forma pauperis in this court (ECF No. 2) be denied as 28 moot. 2 1 3. The Clerk of Court be directed to close this case. 2 In light of these recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 3 discovery, and motion practice in this action are stayed pending resolution of these findings and 4 recommendations. Other than objections to the findings and recommendations or non-frivolous 5 motions for emergency relief, the court will not entertain or respond to any pleadings or motions 6 until the findings and recommendations are resolved. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 9 days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 shall be served on all parties and filed with the court within fourteen (14) days after service of the 13 objections. The parties are advised that failure to file objections within the specified time may 14 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 15 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 16 17 IT IS SO ORDERED AND RECOMMENDED. Dated: January 8, 2019 18 19 20 21 22 23 24 25 26 27 28 3

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