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Weldon v. Kapetan

United States District Court, E.D. California

May 9, 2018

PAUL WELDON, Plaintiff,



         I. BACKGROUND

         On November 17, 2017, Plaintiff Paul Weldon (“Plaintiff”), proceeding pro se and in forma pauperis, filed a complaint against the Fresno Superior Court and Fresno Superior Court Judge Jonathan Nicholas Kapetan, alleging violations of 42 U.S.C. §§ 1983, 1985, and 1986. Doc. 1 (the “Complaint”).

         The Complaint concerns Plaintiff's appearance before Judge Kapetan in November 2015 for arraignment on misdemeanor charges of driving under the influence (“DUI”). See generally Compl. at 2-5; Transcript of November 18, 2015 Hearing (“Tr.”) (attached to Complaint). Plaintiff appeared in propria persona. Tr. at 1. While Judge Kapetan was informing Plaintiff of the charges filed against him and the attendant penalties, Plaintiff stated, “Well, actually I'm here to challenge jurisdiction . . ., ” and “I'll need all the elements to the arraignment . . . .” Id. at 4. At Judge Kapetan's direction, the courtroom deputy handed Plaintiff a copy of the criminal complaint. Id. at 5-6. An exchange occurred in which Plaintiff demanded the name of the deputy clerk who signed the criminal complaint. Id. at 6-7. Plaintiff refused to enter a plea, so Judge Kapetan entered a plea of not guilty on Plaintiff's behalf and set bond at $10, 000. Id. at 8. At this point, realizing he would be remanded into custody pending his next court date or his ability to post bond, Plaintiff indicated his intent to consider a plea. Id. at 9. Judge Kapetan then took the matter off the record, and, as Plaintiff alleges, kept Plaintiff handcuffed while a public defender was summoned to the courtroom. See Compl. at ¶ 7. Later, Judge Kapetan recalled the case, Plaintiff withdrew his plea, and then accepted a no contest plea. Tr. at 17-18.

         Plaintiff claims that he was denied due process of law during the arraignment and plea because Judge Kapetan did not provide him a true copy of the complaint and the name of the person who signed it. Compl. at. ¶¶ 2-3. Second, Plaintiff alleges that he was falsely imprisoned when Judge Kapetan kept him handcuffed for the period of time during the arraignment while a public defender was summoned to the courtroom to represent Plaintiff. Id. ¶¶ 5, 7-8. Third, Plaintiff alleges that he was coerced to plead guilty because he faced a Hobson's choice between pleading guilty or remaining in custody until his trial. See Id. Plaintiff's complaint also alleges “breach of contract” in that that Judge Kapetan is in “breach of trust and public contract” and has “abandon[ed] his oath of office, ” by virtue of violating Plaintiff's constitutional rights and subjecting him to public ridicule, humiliation, and embarrassment. Id. ¶¶ 6, 10, 14. Plaintiff appears to be asserting that this last allegation states a claim under 42 U.S.C. §§ 1981, 1985 and/or 1986. Id. at Caption & ¶ 12. The Complaint seeks judgment against Judge Kapetan and Fresno Superior Court, money damages and fines, and an order “remand[ing] and remov[ing] [Judge Kapetan] from office pursuant to 18 U.S.C. § 1918.” Id. ¶ 14.

         On February 20, 2018, the assigned magistrate judge issued findings and recommendations (“F&Rs”) that the Complaint be dismissed with prejudice and without leave to amend, in part, as to all of Plaintiff's claims against Fresno Superior Court and as to Plaintiff's claims for declaratory relief and money damages against Judge Kapetan. ECF No. 4. The assigned magistrate judge further recommended that the Complaint be dismissed without prejudice and with leave to amend, in part, as to Plaintiff's claims for prospective injunctive relief against Judge Kapetan. Id. The F&Rs recommended that Plaintiff be granted thirty (30) days leave to file an amended complaint. Id. Plaintiff was served with the F&Rs by mail, and was granted twenty-one (21) days in which to file objections to the findings and recommendations. Id. On March 13, 2018, Plaintiff filed objections, stating only, “Plaintiff Paul Weldon . . . submits this Objection to Magistrate[] Judge's Findings and [R]ecommendations.” ECF No. 5.[1]On April 10, 2018, this Court issued an order indicating that it intended to dismiss the entire Complaint without leave to amend, and, in an effort to give Plaintiff an opportunity to be heard on newly raised issues, ordered Plaintiff to show cause (“OSC”) why the Court should not dismiss the Complaint without leave to amend. ECF No. 8. Plaintiff filed a response to the OSC. ECF No. 9. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has conducted a de novo review of the case. Having carefully reviewed the entire file, including Plaintiff's objections to the F&Rs and response to the OSC, the Court adopts the recommendations of the F&Rs in part and modifies and/or clarifies other parts as follows.


         The F&Rs correctly set forth the applicable screening standard. Critically, if a court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). However, a complaint may be dismissed without leave to amend if amendment will be futile. Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”)(internal quotation omitted).


         A. Claims Against Fresno Superior Court

         The Court agrees with the F&Rs that Defendant Fresno Superior Court must be DISMISSED WITHOUT LEAVE TO AMEND based upon Eleventh Amendment Immunity. This defect cannot be cured on amendment.

         B. Claims Arising Under 42 U.S.C. §§ 1981, 1985 and/or 1986.

         The F&Rs do not address directly Plaintiffs allegations regarding 42 U.S.C. §§ 1981, 1985 ...

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