United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is proceeding in this action pro se. This matter was
accordingly referred to the undersigned by E.D. Cal.
302(c)(21). Plaintiff has filed a request for leave to
proceed in forma pauperis (“IFP”), and has
submitted the affidavit required by that statute.
See 28 U.S.C. § 1915(a)(1). The motion to
proceed IFP will therefore be granted.
IFP status does not end the court's inquiry. The federal
IFP statute requires 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).
must assist the court in determining whether the complaint is
frivolous or not, by drafting the complaint so that it
complies with the Federal Rules of Civil Procedure
(“Fed. R. Civ.P.”). The Federal Rules of Civil
Procedure are available online at
Under the Federal Rules of Civil Procedure, the complaint
must contain (1) a “short and plain statement” of
the basis for federal jurisdiction (that is, the reason the
case is filed in this court, rather than in a state court),
(2) a short and plain statement showing that plaintiff is
entitled to relief (that is, who harmed the plaintiff, and in
what way), and (3) a demand for the relief sought.
Fed.R.Civ.P. (“Rule”) 8(a). Plaintiff's
claims must be set forth simply, concisely and directly. Rule
8(d)(1). Forms are available to help pro se plaintiffs
organize their complaint in the proper way. They are
available at the Clerk's Office, 501 I Street, 4th Floor
(Rm. 4-200), Sacramento, CA 95814, or online at
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). In reviewing a complaint under this
standard, the court will (1) accept as true all of the
factual allegations contained in the complaint, unless they
are clearly baseless or fanciful, (2) construe those
allegations in the light most favorable to the plaintiff, and
(3) resolve all doubts in the plaintiff's favor. See
Neitzke, 490 U.S. at 327; Erickson v. Pardus,
551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum
of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010),
cert. denied, 564 U.S. 1037 (2011); Hebbe v.
Pliler, 627 F.3d 338, 340 (9th Cir. 2010). However, the
court need not accept as true, legal conclusions cast in the
form of factual allegations, or allegations that contradict
matters properly subject to judicial notice. See Western
Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.
1981); Sprewell v. Golden State Warriors, 266 F.3d
979, 988 (9th Cir.), as amended, 275 F.3d 1187
pleadings are held to a less stringent standard than those
drafted by lawyers. Haines v. Kerner, 404 U.S. 519,
520 (1972). Pro se complaints are construed liberally and may
only be dismissed if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief. Nordstrom v.
Ryan, 762 F.3d 903, 908 (9th Cir. 2014). A pro se
litigant is entitled to notice of the deficiencies in the
complaint and an opportunity to amend, unless the
complaint's deficiencies could not be cured by amendment.
See Noll v. Carlson, 809 F.2d 1446, 1448
(9th Cir. 1987).
brings suit against two superior court judges from the
Superior Court of Fulton County in Atlanta, Georgia. ECF No.
1 at 2. Under “Basis for Jurisdiction” she
writes, “Federal Question: 42 USCA 1983 Civil Action
for Deprivation of Rights[;] Judicial Immunity does not
extend to civil rights actions under this code in seeking
prospective injunctive relief against the judicial acts of
state court judges. Federal Question 28 USCS 1331 and 28 USCS
1343 Civil Rights and Elective Franchise.” Plaintiff
alleges that in July of 2003, divorce proceedings were
initiated by the father of her two children. Id. at
3. In fall of 2004, defendant Judge Doris Downs “wrote
a letter or decree recusing herself and her influence from
the plaintiff's divorce case.” Id. The
case was then “recused by Judge Melvin Westmoreland and
transferred into the court of defendant [Judge] Wendy
Shoob.” Id. The divorce was settled in
February of 2005 and shared custody of the children was
awarded. Id. Plaintiff alleges that in April 2005
defendant Shoob called for an emergency hearing, and issued
an illegal gag order unlawfully restricting plaintiff's
rights. Id. Defendant Shoob scheduled a follow-up
hearing on June 17, 2005. Id. Due to a medical
emergency, plaintiff informed the court that she would not be
able to attend. Id. Plaintiff states that defendant
Shoob was also unable to attend, and instead defendant Downs,
“in violation of her earlier decree, unlawfully assumed
the position of judge replacing defendant Wendy Shoob.
Defendant Doris Downs issued an unlawful, hand-written bench
warrant ordering plaintiff's arrest.” Id.
Defendant Downs also gave full custody of the children in
question to their father. Id. at 4. Plaintiff was
remanded to Fulton County Jail, where she remained for
several days without charge, and was ultimately released
without charge. Id. Plaintiff seeks judgment against
Judge Shoob and Judge Downs for “damages of funds
diverted to plaintiff due to unlawful actions, ”
attorney's fees, costs of suit, and such other relief as
may be just. Id.
brings claims against judicial officers that are immune from
suit unless they acted clearly without jurisdiction, but does
not provide sufficient facts about the underlying action for
this court to make a determination as to whether plaintiff
can state a claim against the judicially immune defendants.
general rule, when the plaintiff seeks monetary relief
against a state court judge, judicial immunity bars the suit.
In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002),
as amended (Sept. 6, 2002). In Pulliam v. Allen, the
Supreme Court held that judicial immunity did not encompass
claims for prospective relief and attorneys' fees against
a judge in her judicial capacity. 466 U.S. 522, 541 (1984).
This is apparently the precedent on which the plaintiff
relies. However, “Pulliam has been partially
abrogated by statute: In 1996, Congress enacted the Federal
Courts Improvement Act, Pub.L. No. 104-317, 110 Stat. 3847
(1996), which amended § 1983 to provide that
‘injunctive relief shall not be granted” in an
action brought against ‘a judicial officer for an act
or omission taken in such officer's judicial capacity ...
unless a declaratory decree was violated or declaratory
relief was unavailable.'” Gonzales-Quezada v.
Hayden, No. C09-1469-JCC, 2010 WL 101323, at *2 (W.D.
Wash. Jan. 7, 2010). Neither exception seems to apply based
on the limited facts plaintiff alleges.
case, plaintiff does not seek prospective relief. Prospective
relief refers to preventing something from happening in the
future; here, plaintiff seeks an award of financial damages
based on past actions that the defendants took in their
judicial capacity. ECF No. 1 at 4. A judicial defendant is
absolutely immune from suits seeking monetary damages for
acts performed in his or her judicial capacity. Mireles
v. Waco, 502 U.S. 9 (1991). Only actions taken in
“the complete absence of all jurisdiction” or
falling outside of a judge's judicial duties may subject
a judge to liability. Id. at 11-12. “In
determining judicial immunity, [the Ninth Circuit has]
distinguished between acts “in excess of
jurisdiction” and acts “in the clear absence of
jurisdiction” by looking to the subject-matter
jurisdiction of the judge: “[a] clear absence of all
jurisdiction means a clear lack of all subject matter