Thomas v. Correa

Filing 10

ORDER dismissing case with prejudice. Signed by Judge Edward M. Chen on 7/10/2009. (emclc1, COURT STAFF) (Filed on 7/10/2009)

1 2 3 4 5 6 7 8 9 10 v. AIDA CORREA, Defendant. ___________________________________/ RANDY L. THOMAS, Plaintiff, ORDER DISMISSING CASE WITH PREJUDICE No. C-09-1487 EMC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

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Previously, the Court issued an order in which it dismissed, without prejudice, the abovereferenced case for lack of subject matter jurisdiction. The Court gave Plaintiff Randy L. Thomas an opportunity to file an amended notice of removal, which he has now done. See Docket Nos. 8-9. Mr. Thomas has also filed, on behalf of himself as well as his minor son, a document titled "Petition for Writ of Habeas Corpus." See Docket No. 7. For the reasons discussed below, the Court dismisses the case a second time, this time with prejudice. I. A. Amended Notice of Removal The Court has reviewed Mr. Thomas's amended notice of removal and finds that, for the reasons stated in its prior order, see Docket No. 6 (order, filed on 6/1/2009), this Court has no subject matter jurisdiction over the state court case which Mr. Thomas seeks to remove -- i.e., he is not the defendant in the state court case and therefore has no right to remove; the state court complaint on its face does not present a federal question; the requirements of § 1443 removal have not been met; and removal to this Court (as opposed to the federal court in North Carolina) is DISCUSSION

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improper. The state court case is therefore remanded to the North Carolina state court in which the action was originally filed. B. Petition for Writ of Habeas Corpus Although the Court does not have jurisdiction over the state court case, Mr. Thomas has, as noted above, now filed an independent federal action on his behalf and on the behalf of his minor son. Assuming, without deciding, that Mr. Thomas may bring this action on behalf of his son as well as himself, see Fed. R. Civ. P. 17(c) (providing that (1) a general guardian or like fiduciary may sue on behalf of a minor and (2) a minor without a duly appointed representative may sue by a next friend or by a guardian ad litem), the Court does not find a basis for a habeas petition. Federal habeas corpus has never been available to challenge parental rights or child custody.1 See Lehman v. Lycoming County Children's Servs., 458 U.S. 502, 511 (1982). To the extent Mr. Thomas is bringing a claim for damages pursuant to 42 U.S.C. § 1983, he is no better off. Although Aida Correa is named as the defendant, the complaint reflects that Mr. Thomas does not take issue with her actions per se but rather with the actions of the state court judge (Christy T. Mann) who adjudicated the custody matter regarding Mr. Thomas's son. To the extent Judge Mann is being sued in her official capacity for damages, she has sovereign immunity from suit. See Hirsh v. Justices of the Supreme Court, 67 F.3d 708, 715 (9th Cir. 1995) (explaining that state's sovereign immunity "extends to . . . individual defendants acting in their official capacities"). To the extent she is being sued in her individual capacity for damages, she has absolute judicial immunity from suit. See Dennis v. Sparks, 449 U.S. 24, 27 (1980) (stating that "this Court has consistently adhered to the rule that `judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities'"). There is no doubt that the judges' actions that are being challenged by Mr. Thomas are judicial acts and therefore protected. See Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001) (explaining that "absolute judicial immunity does not apply to non-judicial acts, i.e. the administrative, legislative, Title 28 U.S.C. § 1915(e)(2) requires a court to dismiss any case in which a litigant seeks leave to proceed in forma pauperis if the court determines that the action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2).
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For the Northern District of California

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and executive functions that judges may on occasion be assigned to perform" but that "[r]uling on a motion is a normal judicial function"). Finally, to the extent Judge Mann is being sued for injunctive relief, and not any damages, § 1983 provides that, "in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. § 1983; see also Wolfe v. Strankman, 392 F.3d 358, 366 (9th Cir. 2004) (noting that § 1983 "contemplates judicial immunity from suit for injunctive relief for acts taken in a judicial capacity"). That is not the case here.2 II. CONCLUSION

For the foregoing reasons, the Court hereby remands the state court action to the state court in which the action was originally filed. The Court also dismisses with prejudice the independent federal action filed by Mr. Thomas on his and his son's behalf. The Clerk of the Court is directed to enter judgment in accordance with this order and close the file in this case.

United States District Court

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For the Northern District of California

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IT IS SO ORDERED.

Dated: July 10, 2009 _________________________ EDWARD M. CHEN United States Magistrate Judge

Although the Court does not dismiss on this basis, another problem for Mr. Thomas is whether there is personal jurisdiction over Judge Mann. "For a court to exercise personal jurisdiction over a nonresident defendant [such as Judge Mann], that defendant must have at least minimum contacts with the relevant forum [here, California] such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice." Boschetto v. Hansing, 539 F.3d 1011, 1015-16 (9th Cir. 2008).

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1 2 3 4 5 6 7 8 9 10 RANDY L. THOMAS, Plaintiff, v. CORREA et al, Defendant.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV09-01487 EMC CERTIFICATE OF SERVICE

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 10, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

United States District Court

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For the Northern District of California

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Randy L. Thomas 5906 Barrington Drive Charlotte, NC 28215

Dated: July 10, 2009

Richard W. Wieking, Clerk By: Betty Lee, Deputy Clerk

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