The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff, proceeding without counsel, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.*fn1 Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma pauperis (Dkt. No. 2) is granted. 28 U.S.C. § 1915(a).
The federal in forma pauperis statute authorizes federal courts to dismiss a case if the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
In this action, which was filed on September 20, 2012, plaintiff declares he suffers from a "mental disability." (Dkt. No. 1 at 3.) In search of this documentation, the court has examined its docket and takes judicial notice of the proceedings in United States of America v. Ingram, 2:10-cr-0014 MCE (E.D. Cal.). In that criminal proceeding, plaintiff was declared legally incompetent and unrestorable based on mental health issues.*fn2 (See Case No. 2:10-cr-0014 MCE, Dkt. Nos. 32, 39-40.)
In this action, plaintiff is neither represented by counsel nor has a guardian ad litem been appointed. Pursuant to Federal Rule of Civil Procedure 17(c), an incompetent person must proceed either through a guardian or like fiduciary for his or her own "protect[ion]." An incompetent person can only proceed in federal court if represented by counsel. See OseiAfriyie v. Med. College of Penn., 937 F.2d 876, 883 (3d Cir. 1991) ("It goes without saying that it is not in the interest of minors or incompetents that they be represented by non-attorneys") (citation omitted), quoted approvingly in Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (holding that "a parent or guardian cannot bring an action on behalf of a minor child without retaining a lawyer"); see also William W. Schwarzer et al., Cal. Practice Guide: Fed. Civ. Proc. Before Trial § 7:41 (The Rutter Group 2011) ("A non-attorney parent or guardian cannot bring a lawsuit or defend an action in federal court on behalf of a minor or incompetent without retaining a lawyer") (citations omitted). Thus, plaintiff's continuation of this action without any form of representation is improper.
B. Failure to State a Claim
The court further finds that plaintiff has failed to state a claim. A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
Here, plaintiff's complaint is premised on allegations that the defendants, which include the City of Sacramento, the United States District Court for the Eastern District of California, and Magistrate Judge Edmund Brennan, discriminated against plaintiff and violated his constitutional rights when they denied his application to proceed in forma pauperis and his motion to appoint counsel in an unspecified case filed in this district. Plaintiff also makes a number of incomprehensible claims against these same defendants. The court finds no constitutional violation on the facts alleged.
Moreover, plaintiff's claim against Magistrate Judge Edmund Brennan fails as a matter of law because judges are entitled to absolute immunity for acts within their judicial capacity. Mireles v. Waco, 502 U.S. 9 (1991) (per curiam) ("[G]enerally, a judge is immune from a suit for money damages."); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999) ( "It is well settled that judges are generally immune from civil liability under section 1983."); Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988). This is an immunity from suit, "not just from ultimate assessment of damages." Mireles, 502 U.S. at 11. "Although unfairness and injustice to a litigant may result on occasion, 'it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.'" Mireles, 502 U.S. at 10 (citation omitted); Meek, 183 F.3d at 965 ("The rationale for granting judges immunity from liability for even intentional and malicious conduct while acting in their judicial capacity is that judges should be free to make controversial decisions and act upon their convictions without fear of personal liability."). The actions plaintiff complains of were taken in the course of defendant Judge Brennan's official judicial duties. As such, plaintiff may not maintain an action as to him. Furthermore, "judicial immunity is not overcome by allegations of bad faith or malice." Mireles, 502 U.S. at 11. Thus, any allegations of malice are inapposite. Finally, in only two circumstances is a judge not immune from liability: (1) for non-judicial actions; and (2) for actions, though judicial in nature, taken in complete absence of all jurisdiction. Id. at 11-12; Schucker, 846 F.2d at 1204. Neither of these circumstances is present here.
Further, plaintiff's claims against the United States District Court Eastern District of California and the City of Sacramento fail for failure to allege any allegations as to them.
Plaintiff's complaint is therefore dismissed. Because plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief, the court determines that amendment would be futile. Accordingly, the ...