Smith, et al v. Ashworth

Filing 9

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 01/04/16 ORDERING that 5 , 6 , 7 plaintiffs' Motions to Proceed IFP are GRANTED; plaintiff Smith's 4 Second Motion to Proceed IFP is DENIED as moot as her 2 initial Motion was granted and RECOMMENDING that plaintiffs' complaint be dismissed with prejudice; referred to Judge Kimberly J. Mueller; Objections to these F&Rs due within 21 days. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOLENE SMITH, et al.,

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No. 2:15-cv-2333 KJM AC (PS)

Plaintiffs,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

VICKI ASHWORTH,
Defendant.

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Plaintiffs, proceeding in this action pro se, have requested authority pursuant to 28 U.S.C.

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§ 1915 to proceed in forma pauperis (“IFP”). This proceeding was referred to this court by E.D.

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Cal. R. 302(c)(21).

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All plaintiffs have now submitted the affidavits required by § 1915(a) showing their

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inability to prepay fees and costs or give security for them. ECF Nos. 2, 5, 6, 7. Accordingly,

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their requests to proceed in forma pauperis will be granted.

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I. SCREENING STANDARD
Granting IFP status does end the court’s inquiry. The federal IFP statute requires federal

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courts to dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon

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which relief may be granted, or seeks monetary relief from a defendant who is immune from such

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relief. 28 U.S.C. § 1915(e)(2).

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Plaintiffs must assist the court in making this determination by drafting their complaint so

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that it contains a “short and plain statement” of the basis for federal jurisdiction (that is, the

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reason the case is filed in this court, rather than in a state court), as well as a short and plain

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statement showing that plaintiffs are entitled to relief (that is, who harmed the plaintiffs, and in

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what way). Plaintiffs’ claims must be set forth simply, concisely and directly. See “Rule 8” of

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the Federal Rules of Civil Procedure (Fed. R. Civ. P. 8). The Federal Rules of Civil Procedure

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are available online at www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-

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rules-civil-procedure. Forms are also available to help pro se plaintiffs organize their complaint

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in the proper way. They are available online at www.uscourts.gov/forms/pro-se-forms.

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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). In reviewing a complaint under this standard, the

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court will (1) accept as true all of the factual allegations contained in the complaint, unless they

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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

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plaintiff, and (3) resolve all doubts in the plaintiffs’ favor. See Neitzke, 490 U.S. at 327;

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Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at

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Pasadena, 592 F.3d 954, 960 (9th Cir. 2010); Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010).

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However, the court need not accept the truth of legal conclusions that are phrased as

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factual allegations, or allegations that contradict matters properly subject to judicial notice. See

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Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187 (2001).

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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may

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only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support

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of his claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.

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2014). A pro se litigant is entitled to notice of the deficiencies in the complaint and an

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opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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II. THE COMPLAINT

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The complaint is written on what appears to be a form, entitled “United States

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Constitution Citation / Criminal Complaint / Affidavit and Brief of Information,” and purports to

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be filed in “The United States Supreme Court / For The District of (State) California / In the

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County of El Dorado.” Complaint (ECF No. 1) at 1. The caption indicates that plaintiffs are four

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named individuals, Jolene Smith, Linda Herman and two other individuals who (based upon

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language in the complaint) appear to be minors alleged to have been abused. The caption

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indicates that plaintiffs are suing one individual, defendant Vicki Ashworth.

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The complaint alleges that defendant denied plaintiffs the due process of law in taking

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“my” (apparently plaintiff Jolene Smith’s) son away, and placing him in the hands of an abuser.

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Complaint at 2. The complaint does not directly identify who the defendant is, or how she was in

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a position to deny plaintiffs’ due process rights. However, it appears from the complaint and

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attached documents that the defendant is a judge. The “Ledger” portion of the complaint refers to

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constitutional violations “by Judge(s) who are Lien debtor(s).” In addition, the Cover Sheet to the

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complaint indicates that a “Related Case” was presided over by “Judge Vicki Ashworth, Docket

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Number PFS20100188.” ECF No. 1-1 at 1. The court takes judicial notice that there is no judge

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by that name in the federal judiciary (see http://www.fjc.gov/public/home.nsf/hisj), but that a

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judge by that name serves as a State of California Superior Court Judge in El Dorado County (see

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http://www.eldoradocourt.org/generalinfo/judicial-assignments.html).

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The complaint seeks relief for the defendant’s actions as a judge taken in her courtroom.

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Specifically, the allegations against defendant are that she “knew that the reason you told in court

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was a lie,” that defendant had “evidence that I provided,” that defendant “swore an oath to protect

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babies and families and the people and their rights,” and that defendant “failed in what you have

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done . . ..” Complaint at 2. Plaintiffs apparently seek damages of $43,961,940. See Complaint

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at 7.

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III. ANALYSIS
The complaint alleges that a state court judge, acting in her judicial capacity, deprived
plaintiffs of their federal constitutional right to due process by taking a child away, and turning
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him over to an abuser. State court judges are absolutely immune from suit in federal court where,

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as here, they are sued for their judicial actions. Stump v. Sparkman, 435 U.S. 349, 356-57

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(1978). Because the only defendant named in this damages lawsuit is absolutely immune from

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this lawsuit, it should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).

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For the reasons stated above, IT IS HEREBY ORDERED that:

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1. Plaintiffs’ applications to proceed IFP (ECF Nos. 5, 6, 7) are GRANTED,

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2. Plaintiff Jolene Smith’s second application to proceed IFP (ECF No. 4), is DENIED as

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moot, as her initial application (ECF No. 2) has already been granted.
Furthermore, IT IS HEREBY RECOMMENDED that plaintiffs’ complaint be

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DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii), as it seeks monetary relief

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against a defendant who is absolutely immune from such relief.

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

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)

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days after being served with these findings and recommendations, plaintiffs may file written

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objections with the court. Such document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Local Rule 304(d). Plaintiffs are advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: January 4, 2016

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