Bird v. Kellison
Filing
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ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/5/2017 GRANTING 2 Plaintiff's Motion to Proceed IFP; Plaintiff's complaint names only an immune defendant, and upon finding that amendment would be futile, the undersigned RECOMMENDS this case be dismissed; Referred to Judge John A. Mendez; Objections due within 21 days after being served with these F & R's. (Reader, L)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DONALD M. BIRD,
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No. 2:17-cv-2016 JAM AC
Plaintiff,
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
CRAIG M. KELLISON,
Defendant.
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Plaintiff is proceeding in this action pro se, and this case was accordingly referred to the
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undersigned by Local Rule 302(c)(21). Plaintiff has filed a request for leave to proceed in forma
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pauperis (“IFP”), and has submitted the affidavit required by that statute. See 28 U.S.C.
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§ 1915(a)(1). The motion to proceed IFP will therefore be GRANTED. The complaint, however,
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must be DISMISSED because it names only immune defendants.
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I. Screening
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 or not the complaint is frivolous, 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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The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules1
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policies/current-rules-practice-procedure/federal-rules-civil-procedure.
Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and
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plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this
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court, rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled
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to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief
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sought. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly.
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Fed. R. Civ. P. 8(d)(1). Forms are available to help pro se plaintiffs organize their complaint in
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the proper way. They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200),
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Sacramento, CA 95814, or 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 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
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).
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A. The Complaint
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Plaintiff’s complaint is essentially a letter making derogatory remarks about U.S.
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Magistrate Judge Craig M. Kellison. ECF No. 1. The compliant names no other defendants,
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makes no factual allegations, and asserts no cause of action. Id. Plaintiff’s complaint seems to be
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based on Judge Kellison’s actions while presiding over lawsuits to which plaintiff was a party.
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Id.
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B. Analysis
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Judicial immunity bars plaintiff’s complaint. Federal judges are absolutely immune from
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suit where, as here, they are sued for their judicial actions. Mireles v. Waco, 502 U.S. 9, 11–12
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(1991) (per curiam) (citing Forrester v. White, 484 U.S. 219, 227–229 (1988) and Stump v.
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Sparkman, 435 U.S. 349, 356–57 (1978)); Lonneker Farms, Inc. v. Klobucher, 804 F.2d 1096,
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1097 (9th Cir.1986) (federal judge enjoys absolute judicial immunity when sued for actions that
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“were judicial in nature and were not done in clear absence of all jurisdiction”).
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Because the only defendant named in this lawsuit is absolutely immune from suit, the
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complaint is frivolous as a matter of law, fails to state a claim upon which relief can be granted,
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and should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii). Based on the statements
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made in the complaint, the undersigned determines that amendment would be futile.
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III. Conclusion
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Accordingly, IT IS HEREBY ORDERED that: Plaintiff’s request to proceed in forma
pauperis (ECF No. 2) is GRANTED.
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Plaintiff’s complaint names only an immune defendant, and upon finding that amendment
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would be futile, the undersigned recommends this case be DISMISSED.
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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)(1). Within twenty one days
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after being served with these findings and recommendations, plaintiff may file written objections
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with the court. Id.; see also Local Rule 304(b). Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Local Rule 304(d). Failure
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to file objections within the specified time may waive the right to appeal the District Court’s
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order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153,
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1156-57 (9th Cir. 1991).
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IT IS SO ORDERED.
DATED: October 5, 2017
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