The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge
ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS;
By order filed April 4, 2003, the Court denied plaintiff's application to proceed in forma pauperis and dismissed plaintiff's Complaint with leave to amend. On April 11, 2003, plaintiff filed a renewed application to proceed in forma pauperis. On April 16, 2003, plaintiff filed an Amended Complaint ("AC").
As noted in the Court's prior order, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), when a party seeks to proceed in forma pauperis, the court shall dismiss the case if the court determines that the plaintiff fails to state a claim upon which relief can be granted. A plaintiff fails to state a claim when the court lacks jurisdiction over the subject matter of the complaint. See Fed.R.Civ.P. 12(b)(1).
Plaintiff's initial complaint alleged that his spouse, defendant Lyone L. Lazzarini, engaged in acts of "marriage fraud to extort money, property from plaintiff Burt A. Garrett under false pretenses," that plaintiff "is disabled and was swindled and taken advantage of by defendant and the dishonorable Judge Austin and the dishonorable John Kennedy," that "both judges extorted plaintiff's community property without doing the right motion," and that plaintiff's "civil rights were violated under American with Disabilities Act." (See Compl. at 1.) In its prior order, the Court advised plaintiff that only plaintiff's claim under the Americans with Disabilities Act ("ADA") would vest subject matter jurisdiction in the Court, and further advised plaintiff that his complaint, stating only that plaintiff's "civil rights were violated under American with Disabilities Act," failed to allege facts sufficient to state a viable claim under the ADA.
The AC fails to cure this deficiency. Plaintiff's dispute with defendant Lazzarini centers on actions taken by Lazzarini in connection with her marriage to and subsequent divorce from plaintiff. Specifically, the AC repeats the allegation that Lazzarini engaged in acts of "marriage fraud to extort money, property from plaintiff Burt A. Garrett under false pretenses," and adds new allegations that Lazzarini unlawfully took plaintiff's personal property and colluded with judges Austin and Kennedy of the Contra Costa Superior Court during a divorce proceeding in "denying plaintiff a right to a equil (sic) split of the proceeds." Such allegations are insufficient to raise a claim under the ADA. Although plaintiff now alleges that he is disabled under the ADA, and cites to various sections of the ADA in support of his claim, (see AC at 2), none of the cited provisions affords plaintiff a cause of action under such circumstances, nor is the Court aware of any other provision of the ADA under which plaintiff can proceed. See 42 U.S.C. § 12101 et seq. As the AC alleges no other federal cause of action against Lazzarini, the Court lacks jurisdiction over plaintiff's claims against this defendant.
Nor does plaintiff's AC state a viable cause of action as to defendants Judge Austin and Judge Kennedy.*fn1 The AC alleges that Judge Austin and Judge Kennedy, in the course of making various rulings with respect to the state court divorce proceeding between plaintiff and Lazzarini, "violated plaintiff's civil rights," engaged in various "dishonorable actions," "took control by passing issues, only passing what they wanted," and "violated [plaintiffs] rights as a disabled person," and that Judge Kennedy refused plaintiff's request for a continuance while plaintiff "was in pain from hospital and with prejudice, refused my disabled right to a fair and equal split." (See AC at 1-3.) Plaintiff's AC seeks damages as to these individuals. (See AC at 3.)
It is well established that state judges "are absolutely immune from damage liability for acts performed in their official capacities," See Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986), an immunity that applies "however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." See Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985) (internal quotation omitted). Immunity is lacking only where the judge "acts in the clear absence of all jurisdiction, or performs an act that is not `judicial' in nature." See Ashelman v. Pope, 793 F.2d at 1075. Here, plaintiff does not, and cannot, allege that either Judge Austin or Judge Kennedy acted in the clear absence of jurisdiction in making rulings with respect to plaintiff's divorce proceeding, or that the judges performed acts not judicial in nature, as plaintiff is complaining of judicial decisions made during the course of his state court divorce proceeding. Consequently, plaintiff is barred from pursuing his claims for damages against Judge Austin and Judge Kennedy.*fn2
In sum, this Court lacks subject matter jurisdiction over plaintiff's claims against defendant Lazzarini and plaintiff is unable to pursue his claims against Judge Austin and Judge Kennedy. Nor is there any indication that plaintiff will be able to amend his complaint to state a viable cause of action against any of the defendants.
Accordingly, plaintiff's AC is hereby DISMISSED without prejudice to plaintiff's pursuing any state claims he may have against these defendants in state court. In light of the dismissal, plaintiff's application to proceed in forma pauperis is DENIED.
This order closes Docket No. 10.
The Clerk shall close the file.