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Ulf Carllson v. Peter J. Mcbrien

December 19, 2010

ULF CARLLSON, PLAINTIFF,
v.
PETER J. MCBRIEN,
DEFENDANT.



FINDINGS AND RECOMMENDATIONS

Plaintiff is proceeding pro se with claims under 42 U.S.C. § 1983 and state tort law. Defendant has filed a motion to dismiss for failure to state a claim on which relief could be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). The court heard the motion on December 8, 2010. Plaintiff appeared pro se; Franklin Gumpert appeared as counsel for defendant.

I. Allegations of the Complaint

Plaintiff was an employee with the California Department of General Services (DGS) when his wife filed for divorce in Sacramento County Superior Court in April 2004. See Complaint ¶ 8. Defendant was the Superior Court judge who presided over the case. Id. During the divorce proceedings, plaintiff testified about a loan he had received as part of a personal business transaction. Id. ¶ 13. Defendant then ordered plaintiff, over plaintiff's counsel's objections, to produce all of the conflict of interest disclosure forms plaintiff had filed with his employer. Id. Plaintiff had not disclosed the loan or personal business transaction in those forms.

The complaint alleges that in September 2006, defendant, still presiding over plaintiff's divorce proceedings, secretly contacted general counsel for DGS and communicated to her and others "that Plaintiff had failed to properly disclose a business transaction in the Conflict of Interest Forms, and this omission could constitute a criminal offense." Id. ¶ 16. Shortly thereafter, says plaintiff, DGS took disciplinary action against Plaintiff resulting in the termination of Plaintiff's employment with DGS, where Plaintiff's annual salary had been approximately $78,000. DGS took this action against Plaintiff due to his failure to disclose the business relationship described above in the Conflict of Interest Forms. The fact that defamatory information regarding Plaintiff on this issue had been communicated to DGS was not disclosed to Plaintiff. Id. ¶ 18.

Plaintiff avers he first discovered defendant communicated with DGS on January 5, 2010, when the California Commission on Judicial Performance issued its "severe public censure" of defendant's conduct in the divorce case. Id. ¶¶ 22-23. Plaintiff filed this action on April 1, 2010, alleging that "[d]efendant's actions were malicious, made with the intent of harming and injuring Plaintiff, and were completely unrelated to any legitimate judicial function." Id. ¶ 35. Plaintiff seeks damages for violation of his civil rights under the Civil Rights Act, 42 U.S.C. § 1983, and for libel under California state law. He also seeks a declaratory judgment pursuant to 28 U.S.C. § 2201 and attorney's fees under 42 U.S.C. § 1988.

II. Motion to Dismiss

As grounds for dismissal under Federal Rule of Civil Procedure 12(b)(6), defendant alleges: (1) Eleventh Amendment immunity with respect to the federal claims; (2) judicial immunity with respect to the federal claims; (3) the federal claims are barred by the statute of limitations; (4) no federal claim for mere damage to reputation is cognizable; (5) there s no justiciable controversy for a declaratory judgment; (6) there can be no independent claim for post-judgment attorney's fees under 42 U.S.C. § 1988; (7) the state law cause of action is barred by judicial immunity and because the statements were not false; and (8) the court should decline to exercise supplemental jurisdiction over the state law claim.

A. Legal Standard Under Rule 12(b)(6)

Rule 12(b)(6) allows a defendant to move for dismissal on the basis that the complaint fails to state a claim upon which relief can be granted. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "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." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

B. Eleventh Amendment Immunity and Declaratory Relief The Eleventh Amendment erects a general bar against federal lawsuits brought against a state or state office or agency. Papasan v. Allain, 478 U.S. 265, 276 (1986). However, suits against a state official, including, in some circumstances, a state judge, are an exception.

"[T]he Eleventh Amendment does not erect a barrier against suits to impose individual and personal liability on state officials under § 1983." Hafer v. Melo, 502 U.S. 21, 30-31 (1991). The Supreme Court has also recognized claims against a municipal employee in his official capacity, but a judgment in such a case imposes liability on the municipality. Brandon v. Holt, 469 U.S. 464, 472 (1985). A municipality is not liable under the Civil Rights Act simply because the agency or municipality employed a person who violated a plaintiff's constitutional rights. Monell v. New York City Dept. Of Social Services, 436 U.S. 658, 694 (1978). The basis for any such claim of "official liability" must be a showing that a governmental policy or custom was "the moving force" behind the constitutional violation. City of Oklahoma City v. Tuttle, 471 U.S. 808, 820 (1985).

Plaintiff does not allege defendant conducted himself according to a policy or custom of the Sacramento County Superior Court. To the extent plaintiff can recover damages from defendant under section 1983, then, it can only be against defendant in his individual capacity as a state official. Any claim against defendant in his official capacity should be dismissed.

Plaintiff's claim for declaratory relief should also be dismissed. A federal court is not empowered to issue retrospective declaratory relief with respect to allegedly unconstitutional conduct that has ended. National Audubon Society, Inc. v. Davis, 307 F.3d 835, 847-48 (9th Cir. ...


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