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Derek Todd v. Judge Robert Mcelhany

November 9, 2011



Plaintiff, Derek Todd, proceeding in this action pro se, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter was referred to the undersigned in accordance with Local Rule 72-302(c)(21) and 28 U.S.C. § 636(b)(1).

Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma pauperis status does not complete the inquiry required by the statute. The court must dismiss an in forma pauperis case at any time if the allegation of poverty is found to be untrue or if it is determined that 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. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis 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). Under this standard, a court must dismiss a complaint 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; 28 U.S.C. § 1915(e).

To state a claim on which relief may be granted, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as true the material allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

The minimum requirements for a civil complaint in federal court are as follows: A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.

Fed. R. Civ. P. 8(a).

Here, plaintiff's filing is deficient in several respects. First, a civil action is commenced by filing a complaint with the court. Fed. R. Civ. P. 3. Plaintiff has not filed a complaint, but instead has submitted to the court only a document styled as a "Motion for Summary Judgment or Partial Summary Judgment." Nonetheless, the Clerk of the Court has construed plaintiff's filing as complaint. Out of an abundance of caution, the court will so as well.

In that pleading, plaintiff states that defendant, Placer County Superior Court Judge Robert McElhany, is presiding over plaintiff's family law matter in the Placer County Superior Court. Plaintiff alleges that Judge McElhany is partial, biased and prejudiced against plaintiff in violation of 28 U.S.C. § 455 and should therefore disqualify himself from presiding over the state court proceedings involving plaintiff. However, "[a]s the statutory language makes clear, [28 U.S.C. § 455] applies solely to members of the federal judiciary." United States v. International Broth. of Teamsters, 931 F. Supp. 1074, 1102 (S.D. N.Y. 1996). Placer County Superior Court Judge McElhany is presiding over plaintiff's family law action as a member of the judiciary of the State of California and is therefore not subject to the provisions of 28 U.S.C. § 455.*fn1

Moreover, it appears from reading the allegations set forth by plaintiff in his pleading that his family law case is still pending before the Placer County Superior Court. While federal courts have an obligation to exercise jurisdiction where it exists, particularly in civil rights cases, abstention may be required under the decision in Younger v. Harris, 401 U.S. 37 (1971), when there are ongoing state judicial proceedings implicating important state interests and there is adequate opportunity in the state proceedings to raise federal questions. Confederated Salish v. Simonich, 29 F.3d 1398, 1405 (9th Cir. 1994); Miofsky v. Superior Court of the State of California, 703 F.3d 332, 337-38 (9th Cir. 1983).

Here, it appears from reading plaintiff's submission that there are ongoing state judicial proceedings that implicate important state interests involving domestic relations, and the state proceedings clearly provide an adequate opportunity for plaintiff to raise any federal questions. See Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (holding that the domestic relations exception to federal subject matter jurisdiction "divests the federal courts of power to issue divorce, alimony and child custody decrees); Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987) (affirming abstention where the case raised constitutional issues but was "at its core a child custody dispute"); Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir. 1983) (finding abstention appropriate despite the presence of constitutional issues where the plaintiff sought visitation with children who were wards of the state court).

Finally, plaintiff seeks a writ of mandamus from this court pursuant to 28 U.S.C. § 1361 prohibiting Judge McElhany from continuing to preside over plaintiff's family law action. Although the federal mandamus statute provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff," 28 U.S.C. § 1361, federal district courts are without power to issue mandamus to direct state courts, state judicial officers, or other state officials in the performance of their duties. A petition for a writ of mandamus to compel a state court or official to take or refrain from some action is frivolous as a matter of law. See Demos v. U.S. District Court, 925 F.2d 1160, 1161 (9th Cir. 1991) ("We further note that this court lacks jurisdiction to issue a writ of mandamus to a state court."); Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966) ("The federal courts are without power to issue writs of mandamus to direct state courts or their judicial officers in the performance of their duties[.]"); see also Newton v. Poindexter, 578 F. Supp. 277, 279 (C.D. Cal. 1984) (§ 1361 has no application to state officers or employees); Dunlap v. Corbin, 532 F. Supp. 183, 187 (D. Ariz. 1981) (finding that the court could not issue writ of mandamus directing state agency to provide plaintiff with a trial), aff'd without opinion, 673 F.2d 1337 (9th Cir. 1982); Umbenhower v. Schwarzenneger, No. C 10-01198 JW (PR), 2010 WL 4942512, at *1 (E.D. Cal. Nov. 24, 2010). Accordingly, this court cannot grant the relief plaintiff seeks.

For all the reasons cited above, plaintiff's complaint should be dismissed for failure to state a claim upon which relief can be granted.

The undersigned has carefully considered whether plaintiff may amend his pleading to state a claim upon which relief can be granted. "Valid reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility." California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the court does not have to allow futile amendments). In light of the obvious deficiencies noted above, the court finds that it would be futile to grant plaintiff leave to amend.

Plaintiff has also filed a request to have this entire case, including a voluminous binder containing records from his state court family law proceedings, hearing transcripts, police reports, etc, filed under seal. Many of the documents contain information relating to plaintiff's minor children. Plaintiff is advised that all documents filed with the court are presumptively public.*fn2 See San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999) ("It is well-established that the fruits of pretrial discovery are, in the absence of a court order to the contrary, presumptively public."). Pursuant to Federal Rule of Civil Procedure 5.2(d), a court "may order that a filing be made under seal without redaction." However, even if a court orders an unredacted version filed under seal, it may "later unseal the filing or order the person who made the filing to file a redacted version for the public record." Id. "Historically, courts have recognized a general right to inspect and copy public records and documents, including judicial records and documents." Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quotation omitted). The Ninth Circuit has addressed the standards governing motions to seal documents, explaining that:

Two standards generally govern motions to seal documents like the one at issue here. First, a "compelling reasons" standard applies to most judicial records. See Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (holding that "[a] party seeking to seal a judicial record ... bears the burden of ... meeting the 'compelling reasons' standard"); Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135-36 (9th Cir. 2003). This standard derives from the common law right "to inspect and copy public records and documents, including judicial records and documents." Kamakana, 447 F.3d at 1178 (citation and internal quotation marks omitted). To limit this common law right of access, a party seeking to seal judicial records must show that "compelling ...

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