McGhee v. Fridlund-Horne et al

Filing 10

ORDER - IT IS ORDERED that Plaintiff's motion (Doc. 2 ) is denied. (See document for complete details). Signed by Judge David G Campbell on 7/28/17.(SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joseph Martin McGhee, et al.,
Plaintiffs,

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ORDER

vs.

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No. CV17-8152-PCT-DGC

Judge Elaine Fridlund-Horne, et al.,

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Defendants.

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Plaintiff Joseph McGhee has filed a motion to restrain Defendant Fridlund-Horne

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from issuing certain legal rulings next week in a domestic relations case pending in

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Coconino County Superior Court. Doc. 2. The motion will be denied.

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To obtain preliminary injunctive relief such as a TRO, a plaintiff must show that

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he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the

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absence of relief, that the balance of equities tips in his favor, and that injunctive relief is

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in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The

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test includes a sliding scale. If the plaintiff shows that the balance of hardships will tip

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sharply in his favor, he need not make a strong showing of likelihood of success on the

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merits – the existence of serious questions will suffice. Alliance for Wild Rockies v.

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Cottrell, 622 F.3d 1045, 1049-53 (9th Cir. 2010).

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Plaintiff has not shown that he is likely to succeed on the merits, and he has not

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raised serious questions. Plaintiff’s claims arise out of a state court case apparently

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concerning custody and other rights with respect to Plaintiff’s son. Plaintiff brings a

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claim under 42 U.S.C. § 1983, alleging that Judge Fridlund-Horne has ignored motions

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brought by Plaintiff, violated rules of evidence, denied Plaintiff the right to cross-

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examine witnesses, and exhibited unfair and prejudicial conduct in the state court case.

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Doc. 2 at 2.

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Judges acting in their judicial capacity are protected from civil lawsuits by

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absolute immunity under both federal and Arizona law. See Mireles v. Waco, 502 U.S. 9,

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11 (1991); Acevedo v. Pima Cnty. Adult Prob. Dep’t, 690 P.2d 38, 40 (Ariz. 1984).

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“[Judicial] immunity is overcome in only two sets of circumstances. First, a judge is not

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immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s

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judicial capacity.” Mireles, 502 U.S. at 11. “Second, a judge is not immune for actions,

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though judicial in nature, taken in the complete absence of all jurisdiction.” Id. at 12.

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“[J]udicial immunity is not overcome by allegations of bad faith or malice, the existence

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of which ordinarily cannot be resolved without engaging in discovery and eventual trial.”

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Id. at 11 (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)).

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The actions at issue in this case clearly are judicial actions taken in Defendant

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Fridlund-Horne’s judicial capacity, and Plaintiff makes no claim that the judge is acting

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in the complete absence of all jurisdiction. Because Plaintiff’s claims are barred by

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judicial immunity, he is not likely to succeed on the merits and has not raised serious

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questions. The Court therefore will deny his motion for a temporary restraining order.

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IT IS ORDERED that Plaintiff’s motion (Doc. 2) is denied.

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Dated this 28th day of July, 2017.

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