Caldwell v. Downs et al

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 12/14/18 ORDERING that 7 First Amended Complaint cannot be served as drafted and GRANTING plaintiff 30 days from the date of this order to file a second amended complaint that names defendants who are amenable to suit. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEAH CALDWELL,

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No. 2:17-cv-01250 KJM AC

Plaintiff,
v.

ORDER

DORIS L. DOWNS and WENDY L.
SHOOB,
Defendants.

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Plaintiff is proceeding in this action pro se. The action was accordingly referred to the

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undersigned for pretrial matters by E.D. Cal. R. (“Local Rule”) 302(c)(21). Plaintiff is

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proceeding in forma pauperis. ECF No. 4.
I.

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Procedural Background

On June 20, 2017, the court dismissed the complaint on screening because it named

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defendants who are immune from suit, and granted plaintiff 30 days to file an amended

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complaint. ECF No. 4. Plaintiff was cautioned that failure to do so could lead to a

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recommendation that the action be dismissed. On July 19, 2017, plaintiff filed an amended

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complaint. ECF No. 5.

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Plaintiff’s proposed amended complaint again names two Georgia superior court judges as
defendants. Id. at 3. As discussed in this court’s prior order, a judicial defendant is absolutely
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immune from suits seeking monetary damages for acts taken in their judicial capacity. Mireles v.

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Waco, 502 U.S. 9 (1991). In interpreting judicial immunity, [the Ninth Circuit has] distinguished

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between acts “in excess of jurisdiction” and acts “in the clear absence of jurisdiction” by looking

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to the subject-matter jurisdiction of the judge: “[a] clear absence of all jurisdiction means a clear

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lack of all subject matter jurisdiction.” Miller v. Davis, 521 F.3d 1142, 1147 (9th Cir. 2008).

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Plaintiff’s allegations that Judge Downs issued a bench warrant for her arrest and that Judge

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Schoob signed and finalized a custody agreement do not demonstrate that the Judges acted in

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clear absence of all jurisdiction such that judicial immunity would not apply. Id.

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On July 25, 2017, the undersigned issued findings and recommendations recommending

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this case be dismissed because it is brought against immune defendants. ECF No. 6. On August

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14, 2017, plaintiff filed objections. ECF No. 7. The objections alleged that defendant Downs and

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attorney Leah J. Zammit, driving Zammit’s white Mercedes SUC, located and followed plaintiff’s

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vehicle, “stalking” her for several miles and “acting as self-appointed vigilantes trailing and

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cornering plaintiff and her children on the streets of Atlanta.” Id. at 4. On August 23, 2018, the

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district judge in this case, in light of new information added in plaintiff’s objections, declined to

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adopt the findings and recommendations and referred the matter back to the magistrate judge for

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further consideration. ECF No. 8.

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II.

Analysis

A. Standard
The federal IFP statute requires federal courts to dismiss a case if the action is legally

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

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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Plaintiff must assist the court in determining whether the complaint is frivolous or not, by drafting

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the complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”).

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Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and plain

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statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this court,

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rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled to

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relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief sought.
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Fed. R. Civ. P. (“Rule”) 8(a). Plaintiff’s claims must be set forth simply, concisely and directly.

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Rule 8(d)(1).

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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 plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von

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Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert.

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denied, 564 U.S. 1037 (2011).

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The court applies the same rules of construction in determining whether the complaint

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states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court

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must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must

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construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a

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less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520

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(1972). However, the court need not accept as true conclusory allegations, unreasonable

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inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618,

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624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice

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to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009).

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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.” Twombly, 550 U.S. at 570. “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

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

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

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in

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Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc).

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B. The Amended Complaint

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As discussed in the initial recommendation that plaintiff’s first amended complaint be

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dismissed (ECF No. 7), the amended complaint as drafted does not allege sufficient facts to

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demonstrate that the defendants are not subject to judicial immunity. Though plaintiff alleged

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additional facts in her objection, she must incorporate those facts into a complaint. As it stands,

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plaintiff’s first amended complaint cannot survive screening.

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Plaintiff’s complaint also fails to meet the standard of Fed. R. Civ. P. 8(a) and fails to state

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a claim under Fed. R. Civ. P. 12(b)(6). First, plaintiff does not allege any particular constitutional

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violation or specify the causal nexus between defendants’ actions and a particular constitutional

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violation; she merely alleges that her suit is brought pursuant to 42 U.S.C. § 1983. ECF No. 5 at

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2. To state a cognizable claim under Section 1983, plaintiff must allege a connection or link

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between the challenged conduct of a specific defendant and plaintiff’s alleged constitutional

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deprivation. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode,

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423 U.S. 362 (1976). “A person ‘subjects' another to the deprivation of a constitutional right,

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within the meaning of [S]ection 1983, if he does an affirmative act, participates in another's

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affirmative acts or omits to perform an act which he is legally required to do that causes the

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deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978).

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The court cannot tell from plaintiff’s first amended complaint what particular action defendants

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took that deprived plaintiff of a particular constitutional right.

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The court notes that if plaintiff were to simply add the new allegations included in her

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objections to an amended complaint, the amended complaint would still not be sufficient.

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Plaintiff’s additional allegations, including that defendant Downs followed her in a car and then

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ordered plaintiff arrested, do not clearly demonstrate constitutional violations without additional

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supporting facts. ECF No. 7 at 4. Further, plaintiff makes no additional allegations against

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defendant Shoob, who does not appear to have taken action outside her role as a judicial officer.

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In order to survive screening, plaintiff must clarify what actions defendants took against her,

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acting outside of their roles as judicial officers, which violated specific constitutional protections.

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III.

Conclusion

In light of the foregoing, it is hereby ordered that plaintiff’s first amended complaint (ECF

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No. 7) cannot be served as drafted. Plaintiff shall have 30 days from the date of this order to file

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a second amended complaint that names defendants who are amenable to suit, and which

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complies with the instructions given above. If plaintiff fails to timely comply with this order, the

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undersigned may recommend that this action be dismissed.

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IT IS SO ORDERED.

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DATED: December 14, 2018

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