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Todd v. Canby

United States District Court, Ninth Circuit

November 7, 2013

DEREK TODD, Plaintiff,
v.
U.S. JUDGE WILLIAM CANBY, et al., Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Plaintiff, proceeding pro se, filed this action on May 22, 2013 together with a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to the undersigned by Local Rule 72-302(c)(21).

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 will be granted. 28 U.S.C. § 1915(a).

A. Screening of Plaintiff's Complaint

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).

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 facutal contentions are clearly baseless. Neitzke , 490 U.S. at 327.

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).

In his complaint, plaintiff alleges that on January 23, 2013, defendants William Canby and Richard Clifton, both circuit judges on the United States Court of Appeals for the Ninth Circuit, denied plaintiff's motion to proceed in forma pauperis on appeal, on grounds that the appeal was legally frivolous. Plaintiff contends that defendants could not properly have made such a determination before plaintiff had filed his opening brief. According to plaintiff, defendants stated that they would hear plaintiff's appeal if he paid the filing fee. However, plaintiff asserts that he is indigent as a result of a disability and cannot afford the filing fee. Plaintiff claims that defendants' decision violated his right to be heard and his right to due process under the Fourteenth Amendment to the United States Constitution, and also violated the Americans with Disabilities Act. As such, plaintiff purports to assert claims under 42 U.S.C. §§ 1981, 1983, 2000b & 12132, for which he seeks damages. See generally ECF No. 1.

In this case, the court need not reach the substance of plaintiff's claims because it is readily apparent that defendants are absolutely immune from liability. "Judges 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 in excess 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 all jurisdiction... or performs an act that is not judicial in nature.")

Here, the order denying plaintiff's motion to proceed in forma pauperis on appeal was clearly a judicial act, because defendants issued the order in their capacity as the assigned circuit judges in an appeal before the Ninth Circuit Court of Appeals. Furthermore, even assuming arguendo that defendants somehow erred or acted in excess of their authority, defendants did not act in clear absence of jurisdiction when they issued an order in a case pending before them. Accordingly, defendants are immune from liability for damages.

Therefore, plaintiff's complaint must be dismissed. Furthermore, because plaintiff is unable to cure the defects of his claims against defendants by further amendment, the undersigned finds that granting leave to amend would be futile and recommends that dismissal be with prejudice. See Cahill v. Liberty Mut. Ins. Co. , 80 F.3d 336, 339 (9th Cir. 1996).

B. Vexatious Litigant

1. Overview of Plaintiff's Court Filings in the Eastern District of California

Since 2011 and as of the date of these findings and recommendations, plaintiff has filed approximately 25 civil rights actions in this court, of which 16 have already been dismissed.[1] While this court lacks the time and resources to extensively review each of these cases, plaintiff's laws suits all target various persons directly or indirectly invovled in custody proceedings concerning plaintiff's son and daughter that are pending in the state courts. As another magistrate judge of this court has observed, it appears that plaintiff is "attempting to use the federal courts for the nefarious purpose of harassing the state ...


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