Kimner v. Davila et al
Filing
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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)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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AUDREY L. KIMNER,
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Plaintiff,
v.
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EDWARD J. DAVILA, et al.,
ORDER DENYING MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS
Re: Dkt. No. 3
Defendants.
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United States District Court
Northern District of California
Case No. 24-cv-02750-HSG
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Pending before the Court is pro se Plaintiff Audrey L. Kimner’s motion for leave to
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proceed in forma pauperis. See Dkt. No. 3.
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I.
INTRODUCTION
The Court may authorize the commencement of a civil action in forma pauperis if it is
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satisfied that the would-be litigant cannot pay the filing fees necessary to pursue the action and
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that the action states a claim on which relief may be granted. 28 U.S.C. § 1915(a)(1), (e)(2);
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Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). If the Court determines that the
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action “fails to state a claim on which relief may be granted,” it must dismiss the case. 28 U.S.C.
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§ 1915(e)(2)(B)(ii). Having reviewed Plaintiff’s application, the Court finds that she is unable to
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pay the full amount of fees, costs or give security. Escobedo, 787 F.3d at 1234 (“An affidavit in
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support of an IFP application is sufficient where it alleges that the affiant cannot pay the court
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costs and still afford the necessities of life.”). Nevertheless, the Court finds that the action is
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barred by the doctrine of judicial immunity and accordingly DENIES the motion to proceed in
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forma pauperis.
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//
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//
II.
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Section 1915(e)(2) mandates that the Court review an in forma pauperis complaint before
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directing the United States Marshal to serve the complaint. Escobedo, 787 F.3d at 1234 & n.8.
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The Court must dismiss a complaint if it fails to state a claim upon which relief can be granted.
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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
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United States District Court
Northern District of California
LEGAL STANDARD
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relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure
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12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
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2012) (citing Lopez v. Smith, 203 F.3d 1122, 1127–31 (9th Cir. 2000)). The complaint must
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include a “short and plain statement,” Fed. R. Civ. P. 8(a)(2), and “sufficient factual matter,
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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (quotation omitted). Plaintiff must provide the grounds that entitle her to relief.
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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Because Plaintiff is pro se, the Court construes the complaint liberally and affords her the
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benefit of any doubt. See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988);
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cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”). The Court is not,
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however, required to accept as true allegations that are merely conclusory, unwarranted deductions
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of fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
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Cir. 2001).
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III.
DISCUSSION
Plaintiff filed a complaint on May 8, 2024, against multiple federal judges.1 See Dkt. No.
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1 (“Compl.”). These judges appear to have presided over several earlier actions that Plaintiff filed
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in this district:
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Kimner v. Web Watchers, et al., No. 5:19-cv-06973-LHK (N.D. Cal.)
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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.
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Kimner v. Capital Title of Texas, LLC, No. 5:19-cv-07576-EJD (N.D. Cal.)
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Kimner v. Berkeley County South Carolina, No. 5:20-cv-07563-EJD (N.D. Cal.)
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Kimner v. Hann, No. 5:21-cv-06488-EJD (N.D. Cal.)
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Kimner v. Koh, et al., No. 5:21-cv-07107-EJD (N.D. Cal.)
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From what the Court can discern, in all these actions Plaintiff appears to be challenging in
United States District Court
Northern District of California
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some way (1) state court proceedings in which she lost various assets, including her home,
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vehicle, and other investments; and (2) family court proceedings in which she lost custody of her
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children and was ordered to pay child support. Plaintiff also appears to assert that her privacy was
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invaded by the use of WebWatcher software to monitor her online communications for use in the
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family court proceedings. All five of the above-captioned cases have been dismissed and are now
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closed. And in each, the judges provided detailed explanations for the dismissals. In Kimner v.
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Web Watchers, for example, both Judge Cousins and Judge Koh found that Plaintiff had failed to
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state a viable claim for relief over which the court had jurisdiction. See Web Watchers, No. 5:19-
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cv-06973-LHK (N.D. Cal.), Dkt. No. 19 at 1–3. As Judge Koh explained, Plaintiff at bottom
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“seeks appellate review of state court proceedings,” and “[t]his Court lacks jurisdiction over such
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claims.” Id. at 2.
Unsatisfied with this conclusion and the dismissal of her cases, Plaintiff sued Judge
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Cousins and Judge Koh, arguing that they failed to adequately protect her rights. See Koh, No.
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5:21-cv-07107-EJD (N.D. Cal.), Dkt. No. 1. Judge DeMarchi and Judge Davila then concluded
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that Plaintiff’s claims in Koh were barred by the doctrine of judicial immunity. See id. at Dkt.
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Nos. 7, 10. Plaintiff now contends that by failing to hold hearings and ultimately dismissing her
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claims in these cases, all four judges have caused her and her family harm in the amount of
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approximately $200 million. See, e.g., Compl. at 5–13.2 Plaintiff suggests that the judges
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“colluded,” “conspired,” and “discriminated” against her when adjudicating her cases. Although
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Plaintiff suggests that the judges were biased, she offers no meaningful support for these
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For ease of reference, the Court refers to the PDF pages rather than the document’s internal
pagination unless otherwise noted.
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contentions. At bottom, Plaintiff believes the merits of her cases should have been addressed in
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federal court. The Court understands, and respects, that Plaintiff disagrees with the dismissal of
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her cases. But even construing the complaint liberally, and affording Plaintiff the benefit of the
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doubt, her claims—like those in Koh—are barred by the doctrine of judicial immunity.
United States District Court
Northern District of California
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Judges are absolutely immune from civil liability for acts performed in their judicial
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capacities. See Moore v. Brewster, 96 F.3d 1240, 1243–44 (9th Cir. 1996); Ryan v. Bilby, 764
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F.2d 1325, 1328 & n.4 (9th Cir. 1985) (holding that magistrate judges, as judicial officers, are also
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covered by the judicial immunity doctrine). A plaintiff’s ability to overcome this immunity is
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limited. “A judge will not be deprived of immunity because the action he [or she] took was in
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error, was done maliciously, or was in excess of his [or her] authority . . . .” Stump v. Sparkman,
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435 U.S. 349, 356–57 (1978). Rather, “[t]his immunity applies ‘however erroneous the act may
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have been, and however injurious in its consequences it may have proved to the plaintiff.’”
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Moore, 96 F.3d at 1244 (quoting Cleavinger v. Saxner, 474 U.S. 193, 199–200 (1985)).
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A plaintiff may only overcome judicial immunity if the judge acts outside his or her
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judicial capacity or acts in the “complete absence of all jurisdiction.” See Mireles v. Waco, 502
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U.S. 9, 11–12 (1991). “[W]hether an act by a judge is a ‘judicial’ one relate[s] to the nature of the
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act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of
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the parties, i.e., whether they dealt with the judge in his judicial capacity.” Id. at 12 (quoting
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Stump, 435 U.S. at 362); see also Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001),
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as amended on denial of reh’g (Oct. 11, 2001) (identifying factors relevant to the determination of
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whether an act is judicial in nature).
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Here, Plaintiff has not plausibly alleged that any of the four judges’ disputed actions were
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taken in the clear absence of all jurisdiction or were not judicial in nature. To the contrary, in her
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complaint Plaintiff acknowledges that they were acting in their “Judicial Capacity” in presiding
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over and ultimately dismissing her prior cases. See Compl. at 5. Plaintiff’s claims are clearly
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barred by the judges’ broad judicial immunity, and Plaintiff’s complaint therefore “lacks a
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cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v.
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Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
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CONCLUSION
Accordingly, the Court DENIES Plaintiff’s motion to proceed in forma pauperis. Dkt.
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No. 3. Given the nature of Plaintiff’s claims, the Court further finds that granting leave to amend
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would be futile. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“Leave to amend
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should be granted unless the pleading could not possibly be cured by the allegation of other facts,
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and should be granted more liberally to pro se plaintiffs.”) (quotation omitted). The Court
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therefore DISMISSES the complaint without leave to amend. The Clerk is directed to enter
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judgment in favor of Defendants and to close the case. Plaintiff is cautioned that she may not seek
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to evade this Court’s orders—or those of any other court—by simply filing a new case. However,
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United States District Court
Northern District of California
IV.
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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
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