United States District Court, C.D. California
MARK R. FRISBY, Plaintiff,
v.
THE STATE OF CALIFORNIA DEPARTMENT OF JUSTICE, Defendant.
MEMORANDUM DECISION AND ORDER DISMISSING FIRST
AMENDED COMPLAINT WITH LEAVE TO AMEND
MARIA
A. AUDERO, UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
On July
8, 2019, Plaintiff Mark. R. Frisby (“Plaintiff”),
proceeding pro se, filed a Complaint alleging
violations of his civil rights pursuant to 42 U.S.C. §
1983 (“Section 1983”). (Compl., ECF No. 1.) On
August 7, 2019, the Court dismissed the Complaint with leave
to amend. (Order Dismiss Compl., ECF No. 8) Plaintiff filed a
First Amended Complaint (“FAC”) on October 25,
2019. (FAC, ECF No. 12.) The Court has screened the FAC as
prescribed by 28 U.S.C. § 1915A and 28 U.S.C. §
1915(e)(2)(B). For the reasons stated below, the FAC is
DISMISSED WITH LEAVE TO AMEND. Plaintiff is
ORDERED to, within thirty days after the
date of this Order, either: (1) file a Second Amended
Complaint (“SAC”), or (2) advise the Court that
Plaintiff does not intend to file a SAC.
II.
PLAINTIFF'S ALLEGATIONS AND CLAIMS[1]
The FAC
is filed against the following defendants: (1) Dr. Jack
Rothberg, psychologist at Los Angeles County Jail; (2)
“Dr./Mr. Ruiz, ” psychologist at Los Angeles
County Jail; (3) L. Smith, officer at San Bernardino County
Jail; (4) Lloyd, guard at San Bernardino County Jail; and (5)
Judge Leslie Swain, Los Angeles Superior Court (each, a
“Defendant, ” and collectively,
“Defendants”). (FAC 3-4.)[2]Each Defendant is sued in his
or her official capacity. (Id.)
At Los
Angeles County Jail, Defendant Ruiz made multiple threats of
rape and genital mutilation to Plaintiff and denied him
clothing and hygiene products. (Id. at 5.) Defendant
Rothberg performed medical malpractice by misdiagnosing
Plaintiff with multiple mental disorders, resulting in
defamation, prolonged interrogation, and denial of
Plaintiff's right to trial. (Id. at 7.)
At San
Bernardino County Jail, Defendants Smith and Lloyd kept
Plaintiff in extended isolation for over 100 days.
(Id. at 7-8.) Defendant Smith acted to deliberately
deny Plaintiff the minimal civilized measures by locking him
in a cell without letting him out for exercise or a shower
for over 100 days. (Id. at 8.) During such period,
Defendant Lloyd denied Plaintiff the right to speak with an
attorney and the right to access legal materials for the
purpose of making forward-looking motions, including a
“P.C. § 1381” demand for trial, a
“P.C. § 1382” motion to dismiss, motion for
new pre-trial evidentiary hearing since Plaintiff's
Feretta rights were revoked, motion to dismiss
attempted murder charges due to lack of evidence, motion to
reduce bail, and motion for appointment of counsel.
(Id. at 6.)
Defendant
Swain denied Plaintiff the right to represent himself,
ordered Plaintiff to be returned to the same custody where
reported abuse was taking place, and ordered Plaintiff to be
placed on medication. (Id. at 7.)
The
aforementioned Defendants in conjunction with unknown members
of law enforcement conspired to torture Plaintiff for almost
two years in an effort to obtain a confession. (Id.)
Based
on these allegations, Plaintiff asserts four claims: (1)
First Amendment; (2) First Amendment access-to-courts; (3)
Fifth Amendment and Miranda v. Arizona, 384 U.S. 436
(1966) (“Miranda”); and (4) Eighth
Amendment. (Id. at 5-8). Plaintiff seeks $400, 000
in monetary compensation. (Id. at 9.)
III.
LEGAL STANDARD
Federal
courts must conduct a preliminary screening of any case in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity (28 U.S.C.
§ 1915A), or in which a plaintiff proceeds in forma
pauperis (28 U.S.C. § 1915(e)(2)(B)). The court
must identify cognizable claims and dismiss any complaint, or
any portion thereof, that is: (1) frivolous or malicious, (2)
fails to state a claim upon which relief may be granted, or
(3) seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).
When
screening a complaint to determine whether it fails to state
a claim upon which relief can be granted, courts apply the
Federal Rule of Civil Procedure 12(b)(6) (“Rule
12(b)(6)”) standard. See Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (applying the Rule
12(b)(6) standard to 28 U.S.C. § Section 1915A);
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012) (applying the Rule 12(b)(6) standard to 28 U.S.C.
§ 1915(e)(2)(B)(ii)). “Dismissal under Rule
12(b)(6) is appropriate only where the complaint lacks a
cognizable legal theory or sufficient facts to support a
cognizable legal theory.” Hartmann v. Cal.
Dep't of Corr. & Rehab., 707 F.3d 1114,
1122 (9th Cir. 2013) (quoting Mendiondo v. Centinela
Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)).
Rule
12(b)(6) is read in conjunction with Federal Rule of Civil
Procedure 8(a) (“Rule 8”), “which requires
not only ‘fair notice of the nature of the claim, but
also grounds on which the claim rests.'” See Li
v. Kerry, 710 F.3d 995, 998 (9th Cir. 2013) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3
(2007)). In reviewing a motion to dismiss, the court will
accept the plaintiff's factual allegations as true and
view them in the light most favorable to the plaintiff.
Park v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017).
Although “detailed factual allegations” are not
required, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “Conclusory allegations of law . . . are
insufficient to defeat a motion to dismiss.”
Park, 851 F.3d at 918 (alteration in original)
(quoting Lee v. City of Los Angeles, 250 F.3d 668,
679 (9th Cir. 2001)). Rather, a complaint must “contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 663. “If there are two alternative explanations, one
advanced by defendant and the other advanced by plaintiff,
both of which are plausible, plaintiff's complaint
survives a motion to dismiss under Rule 12(b)(6).”
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
“Plaintiff's complaint may be dismissed only when
defendant's plausible alternative explanation is so
convincing that plaintiff's explanation is
implausible.” Id.
Where a
plaintiff is pro se, particularly in civil rights
cases, courts should construe pleadings liberally and afford
the plaintiff any benefit of the doubt. Wilhelm v.
Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012).
“[B]efore dismissing a pro se complaint the district
court must provide the litigant with notice of the
deficiencies in his complaint in order to ensure that the
litigant uses the opportunity to amend effectively.”
Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)
(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261
(9th Cir. 1992)). A court should grant a pro se
plaintiff leave to amend a defective complaint “unless
it is absolutely clear that the deficiencies of the complaint
could not be cured by amendment.” Akhtar, 698
F.3d at 1212 (quoting Shucker v. Rockwood, 846 F.2d
1202, 1203-04 (9th Cir. 1988) (per curiam)).
IV.
DISCUSSION
A.
Judicial Immunity Bars the Claims Against Defendant
Swain.
Section
1983 “was not intended to abolish the doctrine of
judicial immunity.” Ashelman v. Pope, 793 F.2d
1072, 1075 (9th Cir. 1986). “Judges are absolutely
immune from civil liability for damages for their judicial
acts.” Mullis v. U.S. Bankr. Court for Dist. of
Nev., 828 F.2d 1385, 1388 (9th Cir. 1987). An act is
judicial in nature if “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 judicial
capacity.” Ashelman, 793 F.2d at 1075 (quoting
Stump v. Sparkman, 435 U.S. 349, 362 (1978)). A
“judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in
excess of his authority . . . .” Sadoski v.
Mosley, 435 F.3d 1076, 1079 (9th Cir. 2006) (quoting
Stump, 435 U.S. at 356). A judge will be stripped of
absolute judicial immunity only where he or she “acts
in the clear absence of all jurisdiction.”
Sadoski, 435 F.3d at 1079 (quoting Stump,
435 U.S. at 356-57) (quotation marks omitted).
Here,
the FAC alleges that Defendant Swain denied Plaintiff his
right to represent himself, ordered Plaintiff to be returned
to the same custody where reported abuse was taking place,
and ordered Plaintiff to be placed on medication. (FAC 7.)
The issuance of orders is “beyond dispute” a
judicial act for which Defendant Swain is entitled to
absolute immunity. See, e.g., Kinney v. Cantil-
Sakauye, No. 17-cv-01607-DMR, 2017 U.S. Dist. LEXIS
215439, at *13 (N.D. Cal. Aug. 21, 2017) (finding that state
court judges are absolutely immune with respect to issuance
of adverse orders). In addition, there are no allegations to
suggest that Defendant Swain was acting in the “clear
absence of all jurisdiction, ” such that judicial
immunity would not apply. See Ashelman, 793 F.2d at
1075-76 (“To determine if the judge acted with
jurisdiction, courts focus on whether the judge was acting
clearly beyond the scope of subject matter jurisdiction in
contrast to personal jurisdiction.”)
For
these reasons, judicial immunity protects Defendant Swain
from damages liability. If Plaintiff files an amended
complaint with damages claims against Defendant Swain for her
...