Kimner v. Davila et al

Filing 8

ORDER DENYING #3 MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS. ***Civil Case Terminated.*** Signed by Judge Haywood S. Gilliam, Jr. on 6/5/2024. (ndr, COURT STAFF) (Filed on 6/5/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

AUDREY L. KIMNER,

8

Plaintiff,
v.

9
10

EDWARD J. DAVILA, et al.,

ORDER DENYING MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS
Re: Dkt. No. 3

Defendants.

11

United States District Court
Northern District of California

Case No. 24-cv-02750-HSG

12
Pending before the Court is pro se Plaintiff Audrey L. Kimner’s motion for leave to

13
14

proceed in forma pauperis. See Dkt. No. 3.

15

I.

INTRODUCTION
The Court may authorize the commencement of a civil action in forma pauperis if it is

16
17

satisfied that the would-be litigant cannot pay the filing fees necessary to pursue the action and

18

that the action states a claim on which relief may be granted. 28 U.S.C. § 1915(a)(1), (e)(2);

19

Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). If the Court determines that the

20

action “fails to state a claim on which relief may be granted,” it must dismiss the case. 28 U.S.C.

21

§ 1915(e)(2)(B)(ii). Having reviewed Plaintiff’s application, the Court finds that she is unable to

22

pay the full amount of fees, costs or give security. Escobedo, 787 F.3d at 1234 (“An affidavit in

23

support of an IFP application is sufficient where it alleges that the affiant cannot pay the court

24

costs and still afford the necessities of life.”). Nevertheless, the Court finds that the action is

25

barred by the doctrine of judicial immunity and accordingly DENIES the motion to proceed in

26

forma pauperis.

27

//

28

//

II.

1

Section 1915(e)(2) mandates that the Court review an in forma pauperis complaint before

2
3

directing the United States Marshal to serve the complaint. Escobedo, 787 F.3d at 1234 & n.8.

4

The Court must dismiss a complaint if it fails to state a claim upon which relief can be granted.

5

Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
“The standard for determining whether a plaintiff has failed to state a claim upon which

6

United States District Court
Northern District of California

LEGAL STANDARD

7

relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure

8

12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.

9

2012) (citing Lopez v. Smith, 203 F.3d 1122, 1127–31 (9th Cir. 2000)). The complaint must

10

include a “short and plain statement,” Fed. R. Civ. P. 8(a)(2), and “sufficient factual matter,

11

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

12

662, 678 (2009) (quotation omitted). Plaintiff must provide the grounds that entitle her to relief.

13

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

14

Because Plaintiff is pro se, the Court construes the complaint liberally and affords her the

15

benefit of any doubt. See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988);

16

cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”). The Court is not,

17

however, required to accept as true allegations that are merely conclusory, unwarranted deductions

18

of fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th

19

Cir. 2001).

20

III.

DISCUSSION
Plaintiff filed a complaint on May 8, 2024, against multiple federal judges.1 See Dkt. No.

21
22

1 (“Compl.”). These judges appear to have presided over several earlier actions that Plaintiff filed

23

in this district:

24
-

25

Kimner v. Web Watchers, et al., No. 5:19-cv-06973-LHK (N.D. Cal.)

26
27
28

1

The complaint names United States Court of Appeals Judge Lucy H. Koh; United States District
Court Judge Edward J. Davila; and United States Magistrate Judges Nathanael Cousins and
Virginia K. DeMarchi.
2

1

-

Kimner v. Capital Title of Texas, LLC, No. 5:19-cv-07576-EJD (N.D. Cal.)

2

-

Kimner v. Berkeley County South Carolina, No. 5:20-cv-07563-EJD (N.D. Cal.)

3

-

Kimner v. Hann, No. 5:21-cv-06488-EJD (N.D. Cal.)

4

-

Kimner v. Koh, et al., No. 5:21-cv-07107-EJD (N.D. Cal.)

5
From what the Court can discern, in all these actions Plaintiff appears to be challenging in

United States District Court
Northern District of California

6
7

some way (1) state court proceedings in which she lost various assets, including her home,

8

vehicle, and other investments; and (2) family court proceedings in which she lost custody of her

9

children and was ordered to pay child support. Plaintiff also appears to assert that her privacy was

10

invaded by the use of WebWatcher software to monitor her online communications for use in the

11

family court proceedings. All five of the above-captioned cases have been dismissed and are now

12

closed. And in each, the judges provided detailed explanations for the dismissals. In Kimner v.

13

Web Watchers, for example, both Judge Cousins and Judge Koh found that Plaintiff had failed to

14

state a viable claim for relief over which the court had jurisdiction. See Web Watchers, No. 5:19-

15

cv-06973-LHK (N.D. Cal.), Dkt. No. 19 at 1–3. As Judge Koh explained, Plaintiff at bottom

16

“seeks appellate review of state court proceedings,” and “[t]his Court lacks jurisdiction over such

17

claims.” Id. at 2.
Unsatisfied with this conclusion and the dismissal of her cases, Plaintiff sued Judge

18
19

Cousins and Judge Koh, arguing that they failed to adequately protect her rights. See Koh, No.

20

5:21-cv-07107-EJD (N.D. Cal.), Dkt. No. 1. Judge DeMarchi and Judge Davila then concluded

21

that Plaintiff’s claims in Koh were barred by the doctrine of judicial immunity. See id. at Dkt.

22

Nos. 7, 10. Plaintiff now contends that by failing to hold hearings and ultimately dismissing her

23

claims in these cases, all four judges have caused her and her family harm in the amount of

24

approximately $200 million. See, e.g., Compl. at 5–13.2 Plaintiff suggests that the judges

25

“colluded,” “conspired,” and “discriminated” against her when adjudicating her cases. Although

26

Plaintiff suggests that the judges were biased, she offers no meaningful support for these

27
28

For ease of reference, the Court refers to the PDF pages rather than the document’s internal
pagination unless otherwise noted.
3
2

1

contentions. At bottom, Plaintiff believes the merits of her cases should have been addressed in

2

federal court. The Court understands, and respects, that Plaintiff disagrees with the dismissal of

3

her cases. But even construing the complaint liberally, and affording Plaintiff the benefit of the

4

doubt, her claims—like those in Koh—are barred by the doctrine of judicial immunity.

United States District Court
Northern District of California

5

Judges are absolutely immune from civil liability for acts performed in their judicial

6

capacities. See Moore v. Brewster, 96 F.3d 1240, 1243–44 (9th Cir. 1996); Ryan v. Bilby, 764

7

F.2d 1325, 1328 & n.4 (9th Cir. 1985) (holding that magistrate judges, as judicial officers, are also

8

covered by the judicial immunity doctrine). A plaintiff’s ability to overcome this immunity is

9

limited. “A judge will not be deprived of immunity because the action he [or she] took was in

10

error, was done maliciously, or was in excess of his [or her] authority . . . .” Stump v. Sparkman,

11

435 U.S. 349, 356–57 (1978). Rather, “[t]his immunity applies ‘however erroneous the act may

12

have been, and however injurious in its consequences it may have proved to the plaintiff.’”

13

Moore, 96 F.3d at 1244 (quoting Cleavinger v. Saxner, 474 U.S. 193, 199–200 (1985)).

14

A plaintiff may only overcome judicial immunity if the judge acts outside his or her

15

judicial capacity or acts in the “complete absence of all jurisdiction.” See Mireles v. Waco, 502

16

U.S. 9, 11–12 (1991). “[W]hether an act by a judge is a ‘judicial’ one relate[s] to the nature of the

17

act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of

18

the parties, i.e., whether they dealt with the judge in his judicial capacity.” Id. at 12 (quoting

19

Stump, 435 U.S. at 362); see also Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001),

20

as amended on denial of reh’g (Oct. 11, 2001) (identifying factors relevant to the determination of

21

whether an act is judicial in nature).

22

Here, Plaintiff has not plausibly alleged that any of the four judges’ disputed actions were

23

taken in the clear absence of all jurisdiction or were not judicial in nature. To the contrary, in her

24

complaint Plaintiff acknowledges that they were acting in their “Judicial Capacity” in presiding

25

over and ultimately dismissing her prior cases. See Compl. at 5. Plaintiff’s claims are clearly

26

barred by the judges’ broad judicial immunity, and Plaintiff’s complaint therefore “lacks a

27

cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v.

28

Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
4

1
2

CONCLUSION
Accordingly, the Court DENIES Plaintiff’s motion to proceed in forma pauperis. Dkt.

3

No. 3. Given the nature of Plaintiff’s claims, the Court further finds that granting leave to amend

4

would be futile. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“Leave to amend

5

should be granted unless the pleading could not possibly be cured by the allegation of other facts,

6

and should be granted more liberally to pro se plaintiffs.”) (quotation omitted). The Court

7

therefore DISMISSES the complaint without leave to amend. The Clerk is directed to enter

8

judgment in favor of Defendants and to close the case. Plaintiff is cautioned that she may not seek

9

to evade this Court’s orders—or those of any other court—by simply filing a new case. However,

10
11
United States District Court
Northern District of California

IV.

12
13
14

to the extent Plaintiff disagrees with this order, she should file an appeal to the Ninth Circuit.
IT IS SO ORDERED.
Dated: 6/5/2024
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
5