ORDER AND FINDINGS & RECOMMENDATIONS
Pending before the court are plaintiff's objections to the undersigned's recommendation that this action be dismissed for want of jurisdiction. Upon review of the objections, the court will vacate its November 14, 2011 findings and recommendations and, instead, issue the following recommendation for dismissal.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
This action arises out of a custody dispute in Solano County whereby plaintiff lost legal and physical custody of his minor son. Plaintiff asserts that the family law judge assigned to his case in the Solano County Superior Court, Judge John Ellis, was prejudiced and biased against plaintiff. Plaintiff argues that as a result of Judge Ellis's alleged prejudice and bias, plaintiff suffered violations of the following rights: right to freedom of speech, right to a jury trial, right to a presumption of innocence, right to due process, right to be present at a trial, right to a fair trial, right to be heard and right to privacy.
Prior to filing this suit, plaintiff filed a motion to disqualify Judge Ellis in the Solano County Superior Court pursuant to California Code of Civil Procedure § 170.1(a)(6)(A)(iii) based on the latter's alleged violations of plaintiff's statutory and constitutional rights. See Compl. at 5, ¶ 8. Judge Ellis denied this motion on June 6, 2011. Id. On June 24, 2011, plaintiff filed a second motion to disqualify Judge Ellis. Id. at 6, ¶ 10. This second motion was decided by a superior court judge from another county. Id. Apparently in receipt of a denial of his motion, plaintiff filed a writ of mandate asking the California Court of Appeal to disqualify Judge Ellis. Id. ¶ 11. The California Court of Appeal denied this motion. Id. Plaintiff filed a petition for review with the California Supreme Court, which ultimately denied review. Id. ¶ 12.
On October 3, 2011, plaintiff initiated this action and concurrently filed a motion to proceed in forma pauperis. In the complaint, plaintiff asserts this court has appellate jurisdiction pursuant to 28 U.S.C. § 1331 and § 1651. He seeks relief in the form of recusal of defendant pursuant to 28 U.S.C. § 455(a)(b)(1), reversal of defendant's judicial orders in the family law case and, lastly, return of legal and physical custody of the minor to plaintiff.
On November 14, 2011, the undersigned issued an order and findings and recommendations granting plaintiff's request to proceed in forma pauperis and recommending dismissal pursuant to the domestic relations exception as set forth in Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992). On November 22, 2011, plaintiff filed objections. For the reasons set forth in those objections, the court will vacate its findings and recommendations.
In the November 14, 2011 findings and recommendations, dismissal was recommended for lack of jurisdiction. Specifically, the undersigned held that 28 U.S.C. § 455(a)(b)(1) does not apply to state court judges, the federal court does not sit as an appellate court over state courts and, finally, the court should decline jurisdiction of the family law matter pursuant to the domestic relations exception. In his opposition, plaintiff argues that Ankenbrandt is limited to cases brought under the diversity jurisdiction statute, not those brought under the federal question statute. See Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th Cir. 2008). Because this action is brought pursuant to 28 U.S.C. § 1331, plaintiff is correct in noting that the domestic relations is inapplicable. Thus, to the extent dismissal was recommended based on the domestic relations exception, that doctrine does not apply to this action. Regardless, for the following reasons, the court finds dismissal is warranted.
In this case, plaintiff contends jurisdiction is proper pursuant to 28 U.S.C. § 1331 and § 1651. Plaintiff argues that writ relief is necessary to disqualify Judge Ellis, to overturn the current visitation order and to grant plaintiff legal and physical custody of his son.
As to plaintiff's first request for relief, namely, that the court recuse Judge Ellis pursuant to 28 U.S.C. § 455, the court finds that Section 455 may not be used to disqualify a state court judge. As discussed in the November 14, 2011 findings and recommendations, Section 455(a) provides that "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Section 455(b) then requires that judges covered by section 455(a) disqualify themselves in certain specific situations. By its own terms, Section 455 applies to judges "of the United States." These judges "include judges of the courts of appeals, district courts, Court of International Trade and any court created by Act of Congress, the judges of which are entitled to hold office during good behavior." 28 U.S.C. § 451. A California state judge is not a judge "of the United States." Rather, a California state judge is a judge of a court created by the California Constitution. See Cal. Const. art. 6. Thus, Section 455 may not be used to disqualify Judge Ellis.
Next, insofar as plaintiff seeks appellate review of the state courts' denial of plaintiff's motion to disqualify Judge Ellis, this court does not sit as an appellate court over the state courts. See Worldwide Church of God v. McNair, 805 F.2d 888 (9th Cir. 1986). As the Ninth Circuit held in Worldwide, Federal district courts may exercise only original jurisdiction; they may not exercise appellate jurisdiction over state court decisions. This rule arises from the interplay of two jurisdictional statutes: 28 U.S.C. § 1331, which grants district courts original jurisdiction over "civil actions arising under" federal law, and 28 U.S.C. § 1257, which grants the Supreme Court the right to review "final judgments ... rendered by the highest court of a State." This rule applies even when the state court judgment is not made by the highest state court, and when the challenge to the state court's actions involves federal constitutional issues.
Dubinka v. Judges of the Superior Court, 23 F.3d 218, 221 (9th Cir. 1994). Thus, this matter must be dismissed absent original jurisdiction.
Finally, even assuming the court has original jurisdiction over plaintiff's claims, dismissal is recommended here under the abstention doctrine derived from the matter of Younger v. Harris, 401 U.S. 37 (1971). Abstention under Younger, through which a federal court seeks to avoid interference with state court proceedings, "is a jurisprudential doctrine rooted in overlapping principles of equity, comity, and federalism." San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1091-92 (9th Cir. 2008) (footnote omitted). A federal court "must abstain under Younger if four requirements are met:
(1) a state-initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the federal plaintiff is not barred from litigating federal constitutional issues in the state proceeding; and (4) the federal court action would enjoin the proceeding or have the practical effect of doing so, i.e., would interfere with the state proceeding in a way that Younger disapproves." Id. at 1092 (citing Gilbertson v. Albright, 381 F.3d 965, 978 (9th Cir. 2004) (en banc)). Younger abstention applies not only where a federal action would interfere with a state criminal proceeding, but also "to federal cases that would interfere with state civil cases and state administrative proceedings." Id. (citing Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619, 627 (1986)). Abstention under Younger is the "exception rather ...