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Frisby v. The State of California Department of Justice

United States District Court, C.D. California

December 9, 2019

MARK R. FRISBY, Plaintiff,




         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.


         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.)


         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)).


         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 ...

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