Armstrong v. Warner

Filing 7

ORDER - 1. Plaintiff's application to proceed in forma pauperis (Doc. 2 ) is granted. 2. Plaintiff's complaint (Doc. 1 ) is dismissed with prejudice. 3. Plaintiff's motion to appoint guardian ad litem (Doc. 6 ) is denied. 4. The C ourt certifies, pursuant to 28 U.S.C. § 1915(a)(3) and the Federal Rule of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. (See document for further details). Signed by Judge David G Campbell on 7/3/17. (LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Andre William Armstrong,
Plaintiff,

10
11

ORDER

v.

12

No. CV-17-01726-PHX-DGC

Randall Warner,

13

Defendant.

14
15
16

Pro se Plaintiff Andre Armstrong has filed a complaint alleging various wrongs by

17

Maricopa County Superior Court Judge Randall Warner, including allegations that Judge

18

Warner did not abide by the Arizona Constitution, Arizona rules, and various statutes.

19

Doc. 1. Plaintiff has filed an application to proceed in forma pauperis (Doc. 2) and a

20

motion to appoint a guardian ad litem (Doc. 6). The Court will dismiss this action and

21

deny Plaintiff’s motion to appoint a guardian ad litem.

22

In IFP proceedings, a district court “shall dismiss the case at any time if the court

23

determines that . . . the action . . . fails to state a claim on which relief can be granted[.]”

24

28 U.S.C. § 1915(e)(2). Section 1915(e)(2)(B)(ii) allows a district court to dismiss a

25

claim sua sponte. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

26

Judges are absolutely immune from suits for damages for their judicial acts, except

27

when those acts are taken “in the clear absence of all jurisdiction.” Stump v. Sparkman,

28

435 U.S. 349, 356-357 (1978); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986).

1

An act is “judicial” when it is a function normally performed by a judge and the parties

2

dealt with the judge in his or her judicial capacity. Stump, 435 U.S. at 362; Crooks v.

3

Maynard, 913 F.2d 699, 700 (9th Cir. 1990).

4

regarding Defendant Warner are related to actions he performed in a judicial capacity.

5

Defendant Warner is therefore immune from suit. The Court finds that Plaintiff’s claims

6

cannot be cured by the allegation of additional facts and will therefore dismiss the

7

complaint without leave to amend. Lopez, 203 F.3d at 1127 (leave to amend should be

8

granted unless the district court “determines that the pleading could not possibly be cured

9

by the allegation of other facts”).

In this case, Plaintiff’s allegations

10

The Court will deny Plaintiff’s motion to appoint a guardian ad litem. Doc. 6. See

11

Ingram v. City of San Francisco, 2012 WL 3257805 (N.D. Cal. 2012) (declining to

12

appoint a guardian ad litem where plaintiff failed to raise meritorious claims); Perri v.

13

Obama, 2011 WL 685826, *3 (E.D.N.Y. 2011) (appointment of a guardian ad litem

14

would be futile where it appears that no guardian could save plaintiff’s claims from

15

dismissal); M.F. ex rel. Branson v. Malott, 2012 WL 1950274, *7 (S.D. Ohio 2012)

16

(appointment of a guardian ad litem would serve no useful purpose because it appears

17

that no guardian ad litem could save the complaint from dismissal); see also Mandeville

18

v. Wertheimer, 2002 WL 432689 (S.D.N.Y. 2002) (“When considering the appointment

19

of a guardian ad litem, the Court while seeking to protect a litigant’s interests, must also

20

be mindful of its obligation to avoid any potential waste of judicial resources through the

21

unnecessary appointment of a guardian ad litem.”).

22

IT IS ORDERED:

23

1.

Plaintiff’s application to proceed in forma pauperis (Doc. 2) is granted.

24

2.

Plaintiff’s complaint (Doc. 1) is dismissed with prejudice.

25

3.

Plaintiff’s motion to appoint guardian ad litem (Doc. 6) is denied.

26
27
28

-2-

1

4.

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and the Federal

2

Rule of Appellate Procedure 24(a)(3)(A), that any appeal of this decision

3

would not be taken in good faith.

4

Dated this 3rd day of July, 2017.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-