The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302(21), pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.
The determination that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S.___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.
The complaint alleges that defendant attorney Anwyl and defendant judge McMaster conspired against plaintiff in a previous state court litigation by discriminating against him and depriving him of his civil rights under 42 U.S.C. §§ 1981, 1983 and 1985. By example he claims that these defendants failed to serve a summons on any defendant in the superior court case. (Compl. at 1.) The complaint also alleges that defendant McMaster wrongly dismissed plaintiff's claim in superior court with prejudice and without leave to amend, and in doing so failed to recognize the lack of service of summons. Judge McMaster also allegedly refused to reconsider this decision. (Id. at 4.) Plaintiff further alleges that defendant Anwyl committed fraud in another action pending in this court "by filing a Rule 12(b)(6) motion, alleging that  Plaintiff's claim (Case No. 2:09-CV-1058-MCE-DAD) is barred by 'Res Judicata,' knowing that  Plaintiff's action in Superior Court [was] never validly litigated." (Id. at 2.) Plaintiff also alleges violations of his First Amendment right to redress of grievances and his Fourteenth Amendment right to due process and equal protection, as well as his right to trial by jury, all as a result of the actions taken in the superior court case. (Id. at 2-3.)
42 U.S.C. §1983 is the vehicle for pursuing damages claims for federal constitutional and statutory violations against government officials. Section 1983 does not create any substantive rights. To succeed on a § 1983 damages claim, a plaintiff must demonstrate not only the deprivation of a right secured by the Constitution or laws of the United States, but that defendant acted under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250 (1988). A § 1983 claim can lie against a private party only when "he is a willful participant in joint action with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183 (1980).
In this case, plaintiff is unable to maintain a claim against attorney Anwyl under § 1983 because he is a private party who was not acting under color of state law. Describing defendant Anwyl as "an officer in the Superior Court of Sacramento County" does not transform his status into an agent of the state. Nor does a bare bones "a lawyer conspired with the judge" to harm my case sufficiently state a non-conclusory factual allegation.
Plaintiff also conclusorily alleges that his civil rights provided by 42 U.S.C. §§ 1981 and 1985 were violated. Nothing in the factual allegations of the complaint supports the conclusion that any defendants were motivated by invidious class based animus to conspire to violate plaintiffs' civil rights pursuant to 42 U.S.C. § 1985 (3). See United Bhd. of Carpenters and Joiners Local v. Scott, 463 U.S. 825, 103 S.Ct. 3352 (1983); Ramirez v. City of Reno, 925 F. Supp. 681, 689 (D.Nev. 1996). That being the case, plaintiff's 42 U.S.C. § 1981 claim fails because § 1981 likewise prohibits only intentional discrimination based on the plaintiff's race. Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1487-88 (9th Cir.1995) (injury by racially discriminatory intent necessary for § 1981). It is elementary that a claim under § 1981 arises only if defendants' actions were racially motivated and purposefully discriminatory.
As for defendant McMaster, the Supreme Court has held that judges acting within the course and scope of their judicial duties are absolutely immune from liability for damages under § 1983. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213 (1967). A judge is "subject to liability only when he has acted in the 'clear absence of all jurisdiction.'" Stump v. Sparkman, 435 U.S. 349, 356-7, 98 S.Ct. 1099, 1105 (1978), quoting Bradley v. Fisher, 13 Wall. 335, 351 (1872). The two-part test of Stump v. Sparkman determines the broad scope of judicial immunity:
[T]he factors determining whether an act by a judge is a 'judicial' one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge and to the expectation of the parties, i.e., ...