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Bailey v. State of California Dep't of Justice

March 18, 2008

RUSSO BAILEY, PLAINTIFF,
v.
STATE OF CALIFORNIA DEPARTMENT OF JUSTICE; ALLEN J. PRECKEL; CITY OF EL CAJON; M. BEVAN; SAN DIEGO COUNTY; DONNIE DUMANUS; WILLIAM KOLENDER, DEFENDANTS.



The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER GRANTING JUDGE PRECKEL'S MOTION TO DISMISS; GRANTING STATE OF CALIFORNIA'S MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART CITY OF EL CAJON AND M. BEVAN'S MOTION TO DISMISS; GRANTING BONNIE DUMANIS AND WILLIAM KOLENDAR'S MOTION TO DISMISS; GRANTING LEAVE TO AMEND; DENYING MOTION FOR SANCTIONS

Judge Allan J. Preckel moves to dismiss the complaint based upon principles of absolute judicial immunity; defendant State of California Department of Justice moves to dismiss the complaint based upon Eleventh Amendment principles; defendants City of El Cajon and M. Bevan move to dismiss all claims asserted against them pursuant to Rule 12(b)(6), and defendants Bonnie Dumanis (erroneously sued as Donnie Dumanus) and Sheriff William Kolender move to dismiss the complain pursuant to Rule 12(b)(6). Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the motion of Judge Preckel is granted with prejudice; the motion of State of California Department of Justice is granted with prejudice; the motion of defendants City of El Cajon and M. Bevan is granted in part and denied in part; the motion of Bonnie Dumanis is granted with prejudice; and the motion of Sheriff Kolender is granted, subject to a further good faith allegation that P:laintiff's state court conviction has been reversed or otherwise invalidated. The court also denies Plaintiff's request for sanctions and grants 20 days leave to amend from the date of entry of this order.

BACKGROUND

On October 31, 2007 Plaintiff Russo Bailey, prosecuting this civil rights action in forma pauperis and in propria persona, filed a complaint alleging six causes of action against Defendants. On December 8, 2006 Plaintiff alleges that defendant M. Bevan and 15 unknown City of El Cajon police officers falsely arrested Plaintiff while he was parked in a public business parking lot in the City of El Cajon. (Compl. at p.3:9-12). Plaintiff alleges that M. Bevan and the 15 unknown police officers kidnaped Plaintiff, vandalized Plaintiff's car, and "illegally took plaintiff's personal property." (Compl. at p.3:19).

Plaintiff's claims against the State of California Department of Justice arise from allegations that he telephoned 911 and a California Highway Patrol employee responded to the 911 call. Plaintiff alleges that the California Highway Patrol Officer "refused to arrest the City of El Cajon Police officers as they actively vandalized Plaintiff's vehicle and the felonious kidnaping of Plaintiff by the El Cajon Police." (Compl. at p.3:15-17). He also generally alleges that defendant M. Bevan and the 15 unknown police officers "did intentionally attempt to murder Plaintiff with explosives and poison gas." (Compl. at p.3:27-28). Plaintiff also alleges that Bonnie Dumanis filed a false criminal complaint against him and that Sheriff Kolender aided Bonnie Dumanis in filing the allegedly false criminal complaint. (Compl. at p.4:15-22).

Based upon this generally described conduct, Plaintiff alleges six causes of action for (1) municipal liability under Monell; (2) false arrest, false imprisonment, and assault; (3) violation of 42 U.S.C. §1986(c); (4) excessive force; (5) violation of the Unruh Act, Cal.Civ.Code §52.1; and (6) breach of contract. Plaintiff also seeks injunctive relief to prevent Defendants from disseminating any "bad history of the Plaintiff." (Compl. at p.8:16-17)

DISCUSSION

Motion of Judge Allan Preckel

Plaintiff's claims against Judge Preckel relate to Plaintiff's May 17, 2007 guilty plea to being a felon in possession of a firearm in violation of Pen. Code §§12025(a)(1) and (b)(1), and subsequent sentence imposed by Judge Preckel. Plaintiff generally alleges that Judge Preckel conspired to deprive him of his constitutional rights and that he "falsely convicted Plaintiff Bailey of no crime.*fn1 " (Compl. at p. 4:27). The court concludes that Plaintiff's claims against Judge Preckel are barred by the doctrine of absolute judicial immunity.

The doctrine of judicial immunity is particularly broad. "Judges are immune from damage actions for judicial acts taken within the jurisdiction of their courts." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986); Mireles v. Waco, 502 U.S. 9 (1991).

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.'

Stump v . Sparkman, 435 U.S. 349, 355-56 (1978) (citations omitted). Stated another way, the doctrine insulates judges from civil liability for acts committed within their judicial jurisdiction," or "for acts within [their] judicial role," Pierson v. Ray, 386 U.S. 547, 554 (1967), or "for their judicial acts." Bradley v. Fisher, 80 U.S. (Wall.) 335, 351 (1871). Judicial immunity is overcome in only two narrow sets of circumstances.

First, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for action, though judicial in nature, ...


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