The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
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 the undersigned by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). 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.
To avoid dismissal for failure to state a claim, a 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, 555-57 (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 has 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. 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, 127 S. Ct. 2197, 2200 (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 liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (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.
Here, plaintiff alleges that defendant Juanita Shoopman, a licensed clinical social worker and the Solano County Court mediator assigned to his custody case, improperly recommended to a Solano County judge that plaintiff should have no visitation with his minor son until he was under a doctor's care and mentally stable, apparently based on the son's allegations of child abuse and the son's claims that plaintiff was mentally ill and refused to take his medication. According to plaintiff, defendant made this recommendation despite having no supportive evidence that plaintiff's son's allegations were true. Plaintiff alleges that he had no prior convictions of child abuse or domestic violence and that all Child Protective Services reports that were filed against him were unfounded. Plaintiff further claims that a licensed psychiatrist's note was previously provided to the court stating that plaintiff did not need medication or supervised visitation with his son. The state court judge subsequently adopted the mediator's recommendations during a court hearing. Plaintiff now brings this action against defendant under 42 U.S.C. § 1983, contending that defendant's mediation report was discriminatory and violated plaintiff's rights under the Equal Protection Clause of the Fourteenth Amendment and the presumption of innocence until proven guilty, as well as the Americans with Disabilities Act of 1990 ("ADA") (in particular, 42 U.S.C. § 12132). Plaintiff also requests that defendant be criminally prosecuted under 18 U.S.C. § 242.
In this case, the court need not reach the substance of plaintiff's claims, because it is readily apparent that defendant is immune from liability. It is well established that "[j]udges are immune from damage actions for judicial acts taken within the jurisdiction of their courts...Judicial immunity applies however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). A judge can lose his or her immunity when acting in clear absence of jurisdiction, but one must distinguish acts taken in error or acts that are performed in excess of a judge's authority (which remain absolutely immune) from those acts taken in clear absence of jurisdiction. Mireles v. Waco, 502 U.S. 9, 12-13 (1991) ("If judicial immunity means anything, it means that a judge will not be deprived of immunity because the action he took was in error...or was in excess of his authority.") Thus, for example, in a case where a judge actually ordered the seizure of an individual by means of excessive force, an act clearly outside of his legal authority, he remained immune because the order was given in his capacity as a judge and not with the clear absence of jurisdiction. Id.; see also Ashelman, 793 F.2d at 1075 ("A judge lacks immunity where he acts in the clear absence of jurisdiction...or performs an act that is not judicial in nature.")
"Judicial immunity is not limited to judges. All those who perform judge-like functions are immune from civil damages liability." Ryan v. Bilby, 764 F.2d 1325, 1328 n.4 (9th Cir. 1985); see also Wagshal v. Foster, 28 F.3d 1249, 1252-54 (D.C. Cir. 1994) (holding that mediator for court's alternative dispute resolution program enjoyed absolute quasi-judicial immunity to damages claims for actions taken within the scope of official duties); Putman v. State Bar of California, 2010 WL 3070435, at *7 (C.D. Cal. June 25, 2010) (noting that absolute quasi-judicial immunity is "properly extended to neutral third-parties for their conduct in performing dispute resolution services which are connected to the judicial process and involve either (1) the making of binding decisions, (2) the making of findings or recommendations to the court or (3) the arbitration, mediation, conciliation, evaluation or other similar resolution of pending disputes") (not reported in official reporter).
The Ninth Circuit has held that arbitrators acting within the scope of their authority are immune from civil suit. Sacks v. Dietrich, 663 F.3d 1065 (9th Cir. 2011). In an unpublished, but citable decision, the Ninth Circuit applied the arbitral immunity to mediators. Davenport v. Winley, 314 Fed. Appx. 982 (9th Cir. 2009) (dismissing § 1983 claim against a mediator based on immunity). There is no meaningful distinction between a mediator and an arbitrator for purposes of immunity.
The documents attached to plaintiff's complaint show that the family court judge specifically ordered plaintiff's son to be interviewed by the mediator so that the mediator could prepare a report making recommendations as to custody and visitation. (Dkt. No. 1 at 40, 85.) Thus, defendant was clearly acting pursuant to court order, and her recommendations were integrally connected with the judicial process and within the scope of her duties.*fn1 As such, in making her findings and issuing recommendations in a neutral capacity, defendant was performing functions comparable to those of a judge. Moreover, the emotional nature of a child custody dispute is certainly likely to inspire a parent-litigant who is dissatisfied with a mediator's recommendation to harass the mediator in a second forum. See Butz, 438 U.S. at 512 ("The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus."). Finally, plaintiff was free to seek relief from defendant's alleged unconstitutional conduct with the presiding state court judge or on appeal. The state judicial process thus contained adequate safeguards to provide plaintiff with any relief warranted.
Therefore, based on an evaluation of the prerequisite factors outlined by the United States Supreme Court for application of absolute quasi-judicial immunity and the above-cited case law extending such immunity to mediators, the court finds that defendant is absolutely immune from liability for the civil damages claims asserted by plaintiff.*fn2 Additionally, with respect to plaintiff's request that criminal proceedings be instituted against defendant, plaintiff has no standing to prosecute a criminal action.
Finally, plaintiff's complaint names Crystal Archer, his son's mother, as a real party in interest. To the extent plaintiff attempts to assert a claim under 42 U.S.C. § 1983 against Archer, that claim should also be dismissed, because plaintiff cannot plausibly allege that Archer is a state actor. Ball v. Rodgers, 492 F.3d 1094, 1103 (9th Cir. 2007); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) ("To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law.") (emphasis added). Furthermore, an ADA claim under 42 U.S.C. § 12132, which relates to public entity disability discrimination, is not viable against Ms. Archer.
Although the court would ordinarily grant a pro se plaintiff leave to amend, it does not appear that the above-mentioned defects can be cured by more detailed factual allegations or revision of plaintiff's claims. Accordingly, leave to amend would be futile and the action should be dismissed with ...