Ehringer v. Newman, et al.

Filing 5

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/27/17 ORDERING that Plaintiff's 2 request for leave to proceed in form pauperis is GRANTED. It is RECOMMENDED that plaintiff's complaint be dismiss ed without leave to amend and the Clerk be directed to close this case. Matter referred to District Judge Troy L. Nunley. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ORION S. EHRINGER, 12 13 14 15 16 No. 2:16-cv-2074-TLN-EFB PS Plaintiff, v. ORDER GRANTING IFP AND RECOMMENDATION OF DISMISSAL MAGISTRATE JUDGE KENDALL J. NEWMAN, MAGISTRATE JUDGE ALLISON CLAIRE, AND U.S. DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, 17 Defendants. 18 19 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 20 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF Nos. 2, 3 at 21 9. Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 22 Determining that plaintiff may proceed in forma pauperis does not complete the required 23 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 24 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 25 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 26 below, plaintiff’s complaint fails to state a claim and must be dismissed. 27 28 1 This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 1 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint’s allegations are 9 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 10 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 11 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 12 In reviewing a complaint under this standard, the court must accept as true the allegations 13 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), 14 construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the 15 plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy 16 the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) 17 requires a complaint to include “a short and plain statement of the claim showing that the pleader 18 is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds 19 upon which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 20 Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only 21 those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 22 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, 23 confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction 24 requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a 25 “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be 26 authorized by a federal statute that both regulates a specific subject matter and confers federal 27 jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity 28 jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the 2 1 matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World 2 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction 3 of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of 4 subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys 5 Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 6 The complaint purports to assert claims against Magistrate Judges Newman and Claire for 7 their handing of two cases plaintiff previously filed in this court.2 ECF No. 1. In essence, 8 plaintiff contends that Judge Newman wrongfully recommended dismissal of his habeas petition 9 in Ehringer v. California, 2:15-cv-1329-MCE-KJN, and that Judge Claire wrongfully 10 recommended dismissal of plaintiff’s civil complaint in Ehringer v. California, 2:15-cv-985- 11 KJM-AC. See generally ECF No. 1. Both judges are entitled to absolute judicial immunity and 12 plaintiff’s claims must be dismissed. 13 “Judges are absolutely immune from damage actions for judicial acts taken within the 14 jurisdiction of their courts . . . . A judge loses absolute immunity only when [the judge] acts in the 15 clear absence of all jurisdiction or performs an act that is not judicial in nature.” Schucker v. 16 Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (per curiam). The complaint plainly shows that 17 the acts for which plaintiff sues were performed by Judges Newman and Claire within their 18 jurisdiction as judges assigned to plaintiff’s cases. Plaintiff’s allegations indicate that the actions 19 of Judges Newman and Claire were judicial in nature, and they are therefore entitled to judicial 20 immunity. Accordingly, plaintiff’s complaint fails to state a claim upon which relief can be 21 granted. Moreover, because it is clear from the allegations of the current complaint these claims 22 23 24 25 26 27 28 2 The complaint’s caption also lists the United States District Court for Eastern District of California as a Defendant, but the complaint does not contain any specific allegations against the court. Thus, to the extent plaintiff intended to assert separate claims against the court, he has failed to do so. Further, if it was plaintiff’s intention to assert claims against the court, including all of its judges, the undersigned would not be required to recuse himself from this case under the “rule of necessity.” See Ignacio v. Judges of U.S. Court of Appeals for Ninth Circuit, 453 F.3d 1160, 1163-1165 (9th Cir. 2006) (finding that under the rule of necessity—which allows a normally disqualified judge to hear a case that could not otherwise be heard—a three-member panel was not required to recuse where plaintiff indiscriminately sued all judges of the Ninth Circuit). 3 1 are barred by absolute immunity, leave to amend would be futile. See Noll v. Carlson, 809 F.2d 2 1446, 1448 (9th Cir. 1987) (while the court ordinarily would permit a pro se plaintiff to amend, 3 leave to amend should not be granted where it appears amendment would be futile). Therefore, 4 the dismissal should be without leave to amend. 5 6 7 8 Accordingly, it is hereby ORDERED that Plaintiff’s request for leave to proceed in form pauperis (ECF Nos. 2) is granted. Further, it is RECOMMENDED that plaintiff’s complaint be dismissed without leave to amend and the Clerk be directed to close this case. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 14 within the specified time may waive the right to appeal the District Court’s order. Turner v. 15 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 DATED: April 27, 2017. 17 18 19 20 21 22 23 24 25 26 27 28 4

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