Todd v. Ellis et al

Filing 12

ORDER and FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 7/1/2014 DENYING 9 Motion to Amend the Pleadings; RECOMMENDING that this action be dismissed without leave to amend; REFERRING this matter to Chief Judge Morrison C. England, Jr.; ORDERING that any objections be filed within fourteen days. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEREK TODD,

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No. 2:13-cv-0273 MCE AC PS
Plaintiff,

v.

ORDER AND

JOHN ELLIS, et al.,

FINDINGS & RECOMMENDATIONS

Defendants.

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Plaintiff, proceeding in this action pro se, previously requested authority pursuant to 28

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U.S.C. § 1915 to proceed in forma pauperis. This request was granted on June 18, 2013. At the

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same time, plaintiff’s complaint was dismissed pursuant to Federal Rule of Civil Procedure

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8(a)(2) for failure to provide a short and plain statement of the dispute, and plaintiff was directed

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to file an amended complaint no longer than 20 pages. Plaintiff has now filed a first amended

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complaint with hundreds of pages of exhibits and a motion for leave to amend.

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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A.

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Allegations in First Amended Complaint
In the first amended complaint, plaintiff brings suit against a number of individuals

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associated with an ongoing state court child custody proceeding: California Judge John Ellis,

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attorney Elizabeth Anderson, Mediator Paul Landrum, Mediator Juanita Shoopman, Judicial

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Performance Stephen Rockwell, and Court Clerk Crystal Williams (Archer).

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Plaintiff contends that on July 21, 2010, Judge Ellis granted an ex parte order depriving

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plaintiff of his custody rights to his son without holding a hearing. First Am. Compl. (“FAC”) at

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2. Using the ex parte court order, defendant Williams (Archer), the son’s mother, picked up the

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child with a police escort. Id. at 3.

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After plaintiff sought to have his custody rights reinstated, Judge Ellis ordered plaintiff

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and Williams (Archer) to attend a mediation session with defendant Landrum. FAC at 3. After

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the mediation, Landrum recommended that plaintiff’s custody rights be terminated based on

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Williams (Archer)’s allegedly baseless allegations that plaintiff suffered from a mental disorder

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and that he abused the child. Id.

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On September 21, 2010, a hearing was held before Judge Ellis. FAC at 3. Plaintiff

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accuses his attorney, Elizabeth Anderson, of refusing to plead for plaintiff’s rights at this hearing,

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of having illegal communication with Judge Ellis, and of deliberately violating California law.
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Id. at 10-11. Following the hearing, Judge Ellis adopted Landrum’s recommendation. Id. at 3.

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Plaintiff thereafter sought to regain custody of his son multiple times, but each time Judge Ellis

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denied plaintiff’s requests. See id. at 4-7.

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In early January 2011, after plaintiff’s son ran away from the home of Williams (Archer)

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and returned to plaintiff, Judge Ellis ordered a second mediation session with defendant

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Shoopman. FAC at 4. Shoopman, like Landrum, recommended that plaintiff’s custody rights be

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terminated, also due to allegations of a mental disorder and child abuse. Id. at 5. On March 21,

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2011, Judge Ellis again deprived plaintiff of custody rights. Id. Following another request by

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plaintiff to have his custody rights reinstated, Judge Ellis issued a five-year restraining order

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against plaintiff forbidding any contact with his son. Id. Judge Ellis also denied plaintiff’s

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December 2011 request for visitation with his son on Christmas. Id. at 7.

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Prior to the child custody trial, Judge Ellis allegedly denied plaintiff’s request to appear

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telephonically, even though he had granted similar requests before. FAC at 6. Consequently,

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plaintiff was not present at the trial. Id.

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Plaintiff filed numerous complaints against Judge Ellis with the Commission on Judicial

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Performance. FAC at 12. Plaintiff accuses defendant Rockwell of conspiring with Judge Ellis

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and Williams (Archer) to deprive plaintiff of his rights. Id.

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B.

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Plaintiff’s Claims and Relief Sought
Plaintiff brings suit for violations of multiple state laws in connection with the child

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custody hearings under the guise of an Equal Protection violation pursuant to the Fourteenth

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Amendment and a violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

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Plaintiff also accuses Judge Ellis of violating his due process rights by issuing an ex parte court

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order and by denying plaintiff’s request to appear telephonically at the child custody hearing.

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Additionally, he accuses Judge Ellis of conspiring with Landrum, Shoopman, Anderson and

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Williams (Archer) to deprive plaintiff of his custody rights. Moreover, he accuses Judge Ellis of

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conspiring with Williams (Archer) to deny plaintiff of “his 2nd Amendment rights right to bear

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arms because the Plaintiff was disabled.” Lastly, plaintiff accuses Judge Ellis of violating

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plaintiff’s First Amendment right to exercise his religion when he denied plaintiff visitation with
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his son on Christmas in 2011. Plaintiff seeks damages and injunctive relief.

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C.

Discussion

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Insofar as plaintiff seeks damages from Judge Ellis, the Court finds this defendant to be

Claims Against Judge Ellis

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absolutely immune from liability. “Judges are immune from damage actions for judicial acts

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taken within the jurisdiction of their courts . . . Judicial immunity applies however erroneous the

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act may have been, and however injurious in its consequences it may have proved to the

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plaintiff.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). A judge can lose his or her

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immunity when acting in clear absence of jurisdiction, but one must distinguish acts taken in error

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or acts that are performed in excess of a judge’s authority (which remain absolutely immune)

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from those acts taken in clear absence of jurisdiction. Mireles v. Waco, 502 U.S. 9, 12-13 (1991)

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(“If judicial immunity means anything, it means that a judge will not be deprived of immunity

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because the action he took was in error . . . or was in excess of his authority.”) Thus, for example,

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in a case where a judge actually ordered the seizure of an individual by means of excessive force,

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an act clearly in excess of his legal authority, he remained immune because the order was given in

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his capacity as a judge and not with the clear absence of jurisdiction. Id.; see also Ashelman, 793

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F.2d at 1075 (“A judge lacks immunity where he acts in the clear absence of all jurisdiction . . . or

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performs an act that is not judicial in nature.”)

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Here, the actions plaintiff complains of are clearly judicial acts. Furthermore, even

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assuming arguendo that this defendant somehow erred or acted in excess of his authority, he did

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not act in clear absence of jurisdiction when he issued an ex parte order or denied plaintiff’s

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request to appear telephonically at a trial. Accordingly, Judge Ellis is immune from liability for

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damages.

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As to plaintiff’s claim for injunctive relief, the Court finds that it would be inappropriate

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for a federal court to interfere in this family law matter, which plaintiff states remains ongoing

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and active in state court. See e.g., Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987) (no abuse

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of discretion in district court’s abstention from hearing § 1983 claims arising from a child custody

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dispute pending in state court); Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir. 1983) (upholding
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abstention by district court in dispute involving father’s visitation rights).

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Turning next to plaintiff’s claims against Landrum and Shoopman, “[j]udicial immunity is

Claims Against Mediators

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not limited to judges. All those who perform judge-like functions are immune from civil

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damages liability.” Ryan v. Bilby, 764 F.2d 1325, 1328 n.4 (9th Cir. 1985); see also Wagshal v.

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Foster, 28 F.3d 1249, 1252-54 (D.C. Cir. 1994) (holding that mediator for court’s alternative

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dispute resolution program enjoyed absolute quasi-judicial immunity to damages claims for

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actions taken within the scope of official duties); Putman v. State Bar of California, 2010 WL

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3070435, at *7 (C.D. Cal. June 25, 2010) (noting that absolute quasi-judicial immunity is

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“properly extended to neutral third-parties for their conduct in performing dispute resolution

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services which are connected to the judicial process and involve either (1) the making of binding

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decisions, (2) the making of findings or recommendations to the court or (3) the arbitration,

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mediation, conciliation, evaluation or other similar resolution of pending disputes”) (not reported

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in official reporter).

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The Ninth Circuit has held that arbitrators acting within the scope of their authority are

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immune from civil suit. Sacks v. Dietrich, 663 F.3d 1065 (9th Cir. 2011). In an unpublished, but

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citable decision, the Ninth Circuit applied the arbitral immunity to mediators. Davenport v.

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Winley, 314 Fed. Appx. 982 (9th Cir. 2009) (dismissing § 1983 claim against a mediator based

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on immunity). There is no meaningful distinction between a mediator and an arbitrator for

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purposes of immunity.

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In the first amended complaint, plaintiff claims that Landrum and Shoopman acted as

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mediators in order to prepare a report making a recommendation regarding custody and visitation.

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These defendants were clearly acting pursuant to a court order, and their recommendations were

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integrally connected with the judicial process and within the scope of their duties. Thus,

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plaintiff’s claims against Landrum and Shoopman1 must also be dismissed.

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Plaintiff has previously attempted to bring suit against these two defendants based on the same
set of facts. See Todd v. Shoopman et al., 2:12-cv-1768-JAM-GGH; Todd v. Landrum et al.,
2:12-cv-1770-LKK-KJN. The magistrate judges in the earlier cases both recommended dismissal
(continued…)
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Plaintiff’s allegations against Stephen Rockwell are too factually sparse to state a claim.

Claims Against “Judicial Performance” Stephen Rockwell

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Other than accusing Rockwell in a conclusory fashion of conspiring with other defendants to

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violate plaintiff’s rights, plaintiff has proffered no facts that would support a claim.

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Plaintiff’s claims against Elizabeth Anderson also fail. Generally, he accuses this

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defendant of refusing to plead for plaintiff’s rights at a hearing, of having illegal communication

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with Judge Ellis, and of deliberately violating California law. Without more, these bare

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allegations do not state a claim.

Claims Against Elizabeth Anderson

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Finally, plaintiff’s first amended complaint names Crystal Williams (Archer), his son’s

Claims Against Crystal Williams (Archer)

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mother, as a real party in interest. To the extent plaintiff attempts to assert a claim under 42

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U.S.C. § 1983 against Williams (Archer), that claim should also be dismissed because plaintiff

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cannot plausibly allege that Williams (Archer) is a state actor. Ball v. Rodgers, 492 F.3d 1094,

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1103 (9th Cir. 2007); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (“To

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state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured

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by the Constitution or laws of the United States was violated, and (2) that the alleged violation

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was committed by a person acting under the color of State law.”) (emphasis added). Furthermore,

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an ADA claim under 42 U.S.C. § 12132, which relates to public entity disability discrimination,

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is not viable against Williams (Archer).

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Based on the foregoing, the Court finds that plaintiff’s first amended complaint must be

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dismissed. The Court also notes that this pleading appears to be one of several frivolous

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complaints that plaintiff has filed in this court. See Todd v. Canby, 2:13-cv-1018 GEB AC

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(examining plaintiff’s filings in the Eastern District of California since 2011). Recently, plaintiff

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was declared a vexatious litigant in this district. See id., ECF No. 5. In light of plaintiff’s

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of plaintiff’s complaints with prejudice based on the same grounds that the Court finds dismissal
warranted here. In both actions, the magistrate judges’ recommendations were adopted in full
and judgment entered accordingly.

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allegations in the instant case, as well as his history of filing frivolous actions containing many of

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the same allegations and his status as a vexatious litigant, the Court will recommend that this

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action be dismissed without leave to amend pursuant to 28 U.S.C. § 1915(e)(2). Noll v. Carlson,

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809 F.2d 1446, 1448 (9th Cir. 1987) (While the court ordinarily would permit a pro se plaintiff to

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amend, leave to amend should not be granted where it appears amendment would be futile).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to amend the pleading
(ECF No. 9) is denied; and

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IT IS HEREBY RECOMMENDED that this action be dismissed without leave to amend.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: July 1, 2014

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