Giannini et al v. Rosenberg

Filing 4

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 5/17/17 recommending that 2 MOTION to PROCEED IN FORMA PAUPERIS be denied. 1 Complaint be dismissed without leave to amend and this action be dismissed. F&R referred to District Judge Troy L. Nunley. Objections to F&R due within fourteen (14) days. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC GIANNINI and JIHAD
BENSEBAHIA,

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Plaintiffs,

No. 2:16-cv-3003 TLN DB PS

FINDINGS AND RECOMMENDATIONS

v.
ROSENBERG, DAVID, individually and
in his/her official capacity as Justice of the
Superior Court of Yolo County,
Defendant.

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Plaintiffs, Eric Giannini and Jihad Bensebahia, are proceeding in this action pro se. This

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matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. §

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636(b)(1). Pending before the court is plaintiffs’ complaint and plaintiff Eric Giannini’s motion

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to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiffs

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challenge the manner in which the defendant, a Superior Court Judge, issued a ruling.

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The court is required to screen complaints brought by parties proceeding in forma

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pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

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2000) (en banc). Here, plaintiffs’ complaint is deficient. Accordingly, for the reasons stated

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below, the undersigned will recommend that plaintiff Eric Giannini’s application to proceed in

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forma pauperis be denied and plaintiffs’ complaint be dismissed without leave to amend.
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I.

Plaintiffs’ Application to Proceed In Forma Pauperis
Filing fees must be paid unless each plaintiff applies for and is granted leave to proceed in

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forma pauperis. Here, plaintiff Jihad Bensebahia has not submitted an application to proceed in

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forma pauperis.

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Plaintiff Eric Giannini’s in forma pauperis application makes the showing required by 28

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U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma

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pauperis status does not complete the inquiry required by the statute. “‘A district court may deny

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leave to proceed in forma pauperis at the outset if it appears from the face of the proposed

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complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d

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1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th

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Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th

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Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed

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IFP because it appears from the face of the amended complaint that McGee’s action is frivolous

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or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the

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District Court to examine any application for leave to proceed in forma pauperis to determine

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whether the proposed proceeding has merit and if it appears that the proceeding is without merit,

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the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).

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Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of

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poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an

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arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

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Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a

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complaint as frivolous where it is based on an indisputably meritless legal theory or where the

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factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

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To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as
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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true

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conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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The minimum requirements for a civil complaint in federal court are as follows:

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A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a demand
for judgment for the relief the pleader seeks.

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Fed. R. Civ. P. 8(a).

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II.

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Plaintiffs’ Complaint
Plaintiffs’ “bring this suit pursuant to” 42 U.S.C. § 1983. (Compl. (ECF No. 1) at 1.) The

complaint alleges:

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On 22 November 2016 Rosenberg, David individually and in
his/her official capacity as Justice of the Superior Court of Yolo,
County did act in such a way that he incorrectly applied,
disregarded the process of that application, mis-used, abused, or
disparaged the application of a tentative ruling pursuant to Local
Rule 11.4 at the Superior Court of California, County of Yolo at or
after 2:55 PM with respect to a Motion to Compel filed by the
Plaintiffs on 18 November 2016 in CV UD 16 1275 . . .

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(Id. at 2.)
However, unless the action was “taken in the complete absence of all jurisdiction,” judges

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are absolutely immune from civil liability for actions taken in their judicial capacity. Mireles v.

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Waco, 502 U.S. 9, 11-12 (1991). In this regard, “[a] judge is not deprived of immunity because

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he takes actions which are in error, are done maliciously, or are in excess of his authority.” Meek

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v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999); see also Stump v. Sparkman, 435 U.S.

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349, 355-56 (1978) (“judges of courts of superior or general jurisdiction are not liable to civil

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actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are
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alleged to have been done maliciously or corruptly.”); Wagenknecht v. U.S., 533 F.3d 412, 418

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fn.5 (6th Cir. 2008) (“A judge who acts in excess of his jurisdiction is immune from suit, whereas

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a judge who acts in a clear absence of any jurisdiction might not be immune from suit.”); Wolfe

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v. Strankman, 392 F.3d 358, 366 (9th Cir. 2004) (§ 1983 grants “judicial immunity from suit for

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injunctive relief for acts taken in a judicial capacity”).

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Accordingly, plaintiffs’ complaint should be dismissed for failure to state a claim upon

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which relief can be granted.

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III.

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Leave to Amend
The undersigned has carefully considered whether plaintiffs may amend the complaint to

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state a claim upon which relief could be granted. “Valid reasons for denying leave to amend

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include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v.

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Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n

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v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to

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amend shall be freely given, the court does not have to allow futile amendments). In light of the

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deficiencies noted above, the undersigned finds that it would be futile to grant plaintiffs leave to

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amend in this case.

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CONCLUSION

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Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff Eric Giannini’s December 23, 2016 application to proceed in forma pauperis

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(ECF No. 2) be denied;
2. Plaintiffs’ December 23, 2016 complaint (ECF No. 1) be dismissed without leave to
amend; and

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3. This action be dismissed.

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These findings and recommendations will be 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)(1). Within fourteen (14)

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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. A document containing objections should be titled “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiffs are advised that failure to file
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objections within the specified time may, under certain circumstances, waive the right to appeal

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

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Dated: May 17, 2017

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DLB:6
DB/orders/orders.pro se/giannini3003.ifp.den.f&rs

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