United States District Court, N.D. California
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE
M. Ryu, United States Magistrate Judge
On March 24, 2017, Pro se Plaintiff Charles Kinney filed this
lawsuit naming Defendants Chief Justice Tani G.
Cantil-Sakauye, the Honorable Mariano-Florentino
Cuéllar, the Honorable Carol A. Corrigan, the
Honorable Goodwin H. Liu, the Honorable Leondra R. Kruger,
the Honorable Kathryn M. Werdegar, the Honorable Ming W. Chin
(collectively “California Supreme Court
Defendants”), former Presiding Justice Roger W. Boren
of the California Court of Appeal, Second Appellate District,
Division 2, Associate Justice Judith Ashmann-Gerst, Associate
Justice Victoria M. Chavez, and Associate Justice Brian M.
Hoffstadt (collectively “California Court of Appeal
Defendants”) (all defendants collectively referred to
as “Judicial Defendants”). [Docket No. 1.]. Mr.
Kinney also filed a motion for permission to participate in
electronic case filing. [Docket No. 6]. Mr. Kinney has now
filed a verified First Amended Complaint which contains
substantially similar allegations. See First Amended
Complaint (“FAC”) [Docket No. 7].
to his FAC, Mr. Kinney is a disbarred California attorney who
has been declared a vexatious litigant pursuant to
California's vexatious litigant statute, Cal. Code. Civ.
Pro. § 391 et seq. Mr. Kinney seeks to
challenge that statute on the grounds that it is
unconstitutionally vague on its face and as applied to him.
To that end, Mr. Kinney brings this action against the
Judicial Defendants, alleging that they deprived him of his
federal constitutional rights by issuing three adverse orders
against him as a vexatious litigant in his state court
proceedings. Those three orders are (1) an October 12, 2016
order issued by former Presiding Justice Boren requiring Mr.
Kinney to post a $175, 000.00 security as a condition to
proceeding with his state court appeal; (2) a December 12,
2016 order dismissing his state court appeal for failure to
post the $175, 000.00 security as ordered by the California
Court of Appeal Defendants; and (3) a February 22, 2017
en banc order denying Mr. Kinney's petition for
review by the California Supreme Court Defendants.
reviewed the FAC, it appears that the Judicial Defendants may
be entitled to judicial immunity. The allegations in the FAC
make clear that Mr. Kinney is suing the Judicial Defendants
for acts committed in their capacity as judges. These are
acts for which the Judicial Defendants are entitled to
absolute immunity from suit. See, e.g., Mullis v. U.S.
Bankr. Court for Dist. of Nev., 828 F.2d 1385, 1388 (9th
Cir. 1987) (“Judges are absolutely immune from civil
liability for damages for their judicial acts.”);
Ashelman v. Pope, 793 F.2d 1072, 1075, 1078 (9th
Cir. 1986) (setting forth the factors to consider when
determining whether a given action is judicial in nature
including whether “‘it is a function normally
performed by a judge, and to the expectations of the parties,
i.e., whether they dealt with the judge in his [or her]
judicial capacity, '” and explaining that judicial
immunity applies as long as “the judge's ultimate
acts are judicial actions taken within the court's
subject matter jurisdiction”) (quoting Stump v.
Sparkman, 435 U.S. 349, 362 (1978)).
Kinney attempts to plead an exception to judicial immunity by
alleging throughout the FAC that the Judicial Defendants
acted in the “complete absence of subject matter
jurisdiction.” See Mullis, 828 F.2d at 1389.
These allegations are conclusory. See, e.g., FAC,
¶ 3 (alleging that Boren “was acting in the
complete absence of all subject matter jurisdiction over
‘represented' appellant Kinney” in issuing
the October 12, 2016 order requiring Kinney to post a $175,
000.00 security); see also Jackson v. County of
Nassau, No. 15-CV-7218(SJF)(AKT), 2016 WL 1452394, at *6
(E.D.N.Y. Apr. 13, 2016), adhered to on reconsideration, No.
15-CV-7218(SJF)(AKT), 2016 WL 3093897 (E.D.N.Y. June 1, 2016)
(explaining that a plaintiff's “conclusory
allegations” were insufficient to overcome a judicial
defendant's absolute judicial immunity).
the allegations in the complaint do not support the
conclusory statement that the Judicial Defendants acted in
the “clear lack of all subject matter
jurisdiction.” For example, Mr. Kinney alleges that the
California Court of Appeal Defendants acted in
“complete absence of all subject matter
jurisdiction” in dismissing his appeal for failure to
pay the $175, 000.00 security because they “knew and
understood” that California law did not permit a court
to order a represented party to post a security. See
FAC, ¶ 6; see also FAC, ¶ 8 (similar
allegations for California Supreme Court Defendants). Such an
allegation does not establish that the Defendants acted in
the absence of subject matter jurisdiction. Rather, the
allegation illustrates that the Mr. Kinney is complaining
about judicial acts taken by the Judicial Defendants with
which he takes issue and claims are in error. Judicial acts,
even when made in error, do not deprive judicial officers of
immunity. See Meek v. County of Riverside, 183 F.3d
962, 965 (9th Cir.1999) (explaining that “[a] judge is
not deprived of immunity because he takes actions which are
in error, are done maliciously, or are in excess of his
while not entirely clear, it appears that Mr. Kinney may be
attempting to re-litigate issues already raised and decided
in his state court proceedings, including the issue of
whether California law authorizes the imposition of security
against a “‘represented' appellant and/or
against a non-party, non-joined business partner.”
See FAC, ¶ 8; see also FAC,
¶¶ 9-46 (listing alleged errors of law in his state
court appeal). If so, Mr. Kinney may be precluded from doing
so under the doctrine of collateral estoppel. See White
v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012)
(“In determining the preclusive effect of . . . a state
court judgment, [federal courts] follow the state's rules
of preclusion.”); see also Mycogen Corp. v.
Monsanto Co., 28 Cal.4th 888, 896, 51 P.3d 297, 301
(2002) (“Collateral estoppel, or issue preclusion,
‘precludes relitigation of issues argued and decided in
prior proceedings.'”) (quoting Lucido v.
Superior Court, 51 Cal.3d 335, 341, 795 P.2d 1223, 1225
while not clear, it appears that Mr. Kinney may be arguing
that he suffered harm as a result of the three state court
orders and that he seeks relief from those state court
orders. For example, Mr. Kinney complains that he
“suffered and will continue to suffer irreparable
harm” including, but not limited to, the deprivation of
his federal rights, as a result of the three state court
orders “[u]nless the conduct of the defendants, and
each of them, is restrained, prohibited and/or
reversed.” FAC, ¶ 68. To the extent that the
gravamen of Mr. Kinney's action is to enjoin and/or
reverse the three state court orders, Mr. Kinney's action
may be a “de facto appeal” of the state court
judgment subject to dismissal for lack of jurisdiction under
the Rooker-Feldman doctrine. See Kougasian v.
TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004)
(explaining that the “Rooker-Feldman
[doctrine] prohibits a federal district court from exercising
subject matter jurisdiction over a suit that is a de facto
appeal from a state court judgment.”); Noel v.
Hall, 341 F.3d 1148, 1163-64 (9th Cir. 2003) (explaining
what constitutes a “forbidden de facto appeal”
and clarifying that “[i]f a federal plaintiff asserts
as a legal wrong an allegedly erroneous decision by a state
court, and seeks relief from a state court judgment based on
that decision, Rooker-Feldman bars subject matter
jurisdiction in federal district court”).
light of the above, the court ORDERS Mr. Kinney to show cause
in writing by July 7, 2017 and explain why this case should
not be dismissed on the basis of judicial immunity,
collateral estoppel, and the Rooker-Feldman
doctrine. Failure to respond by July 7, 2017 may result in
dismissal of this action for failure to comply with the
court's order. The court will rule on Mr. Kinney's
request to participate in electronic filing after Mr. Kinney