United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART,
AND DISMISSING ENTIRE COMPLAINT WITHOUT LEAVE TO AMEND (DOC.
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE
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 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.
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.
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.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.
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
Claims Against Fresno Superior Court
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
Claims Arising Under 42 U.S.C. §§ 1981, 1985
F&Rs do not address directly Plaintiffs allegations
regarding 42 U.S.C. §§ 1981, 1985 ...