Portnov v. Grewal

Filing 14

ORDER DENYING 12 MOTION TO REINSTATE DISMISSED CASE AND 13 MOTION TO REOPEN JUDGMENT. Signed by Judge Beth Labson Freeman on 12/12/2016. (blflc4S, COURT STAFF) (Filed on 12/12/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ABRAHAM PORTNOV,

Case No. 16-cv-05598-BLF

Plaintiff,
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v.
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PAUL S. GREWAL,
Defendant.

ORDER DENYING MOTION TO
REINSTATE AND MOTION TO
REOPEN JUDGMENT
[Re: ECF 12, 13]

United States District Court
Northern District of California

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Plaintiff Abraham Portnov filed this suit to challenge the conduct of Defendant Judge Paul

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S. Grewal when Judge Grewal was a judge in this District. ECF 2. The Court denied Plaintiff’s

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application to proceed in forma pauperis and dismissed the case entirely because Judge Grewal is

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immune from damage liability for acts performed in his official capacity. E.g., Ashelman v. Pope,

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793 F.2d 1072, 1075 (9th Cir.1986); ECF 10. Plaintiff has now filed a motion to reinstate the

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dismissed case and a motion to reopen judgment. ECF 12, 13. In his motions, Plaintiff argues

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that the Court has neglected to take into account Plaintiff’s diversity jurisdiction and that he is

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permitted to sue federal judges under special conditions. Mot. 1, ECF 12.

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First, the Court must identify the proper procedural rule under which Plaintiff has

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submitted these papers before evaluating Plaintiff’s motions. Plaintiff represented that he is

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moving to reopen judgment under Fed. R. Civ. Proc. 60, and alternatively, as a motion for

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reconsideration under Local Civil Rule 7-9(a). ECF 13. Plaintiff is not seeking to correct

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judgment to “reflect the actual intentions and necessary implications” of the Court’s prior order.

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Harman v. Harper, 7 F.3d 1455, 1457 (9th Cir. 1993). Rather, Plaintiff argues that he should be

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allowed to sue Judge Grewal, contrary to the ruling made by the Court. Accordingly, Rule 60

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would not be the proper rule for Plaintiff’s motion. Garamendi v. Henin, 683 F.3d 1069, 1078

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(9th Cir. 2012) (holding that “Rule 60(a)’s touchstone is fidelity to the intent behind the original

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judgment”). Local Civil Rule 7-9(a) is also not applicable here because Rule 7-9(a) only applies

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to pre-judgment motions for reconsideration. E.g., Sepehry-Fard v. Countrywide Home Loans,

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Inc., No. 13-05769-BLF, 2014 WL 3821544, at *1 (N.D. Cal. Aug. 4, 2014).

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Given Plaintiff is proceeding pro se, the Court shall liberally construe Plaintiff’s motion

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and treat it as a timely filed motion to alter or amend judgment under Rule 59(e). Erickson v.

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Pardus, 551 U.S. 89, 94 (2007). Fed. R. Civ. Proc. 59(e) would be the proper procedural rule for

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Plaintiff to challenge the Court’s final judgment and the Court will now turn to Plaintiff’s

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arguments in his motions.
A motion “under Rule 59(e) should not be granted, absent highly unusual circumstances,

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United States District Court
Northern District of California

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unless the district court is presented with newly discovered evidence, committed clear error, or if

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there is an intervening change in the controlling law.” McDowell v. Calderon, 197 F.3d 1253,

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1254 (9th Cir. 1999) (internal quotation and citation omitted). “A motion for reconsideration

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‘may not be used to raise arguments or present evidence for the first time when they could

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reasonably have been raised earlier in the litigation.’” Marlyn Nutraceuticals, Inc. v. Mucos

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Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.2009) (quoting Kona Enters., Inc. v. Estate of

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Bishop, 229 F.3d 877, 890 (9th Cir.2000)).

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Here, Plaintiff’s basis for amending this Court’s judgment appears to be his “diversity

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citizenship status.” Mot. to Reinstate (“Mot”) 1. Plaintiff argues that his “diversity jurisdiction”

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allows him to sue “federal judges upon special conditions.” Id. Plaintiff alleges that Judge

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Grewal did not perform his duty “normally” but “illogically” and with “bias.” Id. However, even

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assuming Plaintiff’s assertion that there is diversity jurisdiction, Plaintiff’s complaint still must be

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dismissed. As noted in the order dismissing this case, all of the actions Plaintiff complains about

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were taken by Judge Grewal in his role as a judge, presiding over Plaintiff’s prior case in United

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States District Court. Compl. 1. In such a case, “[j]udicial immunity applies however erroneous

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the act may have been, and however injurious in its consequences it may have proved to the

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plaintiff.” Ashelman, 793 F.2d at 1075; Sadorski v. Mosley, 435 F.3d 1076, 1079 n.2 (9th Cir.

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2006) (mistake alone is not sufficient to deprive a judge of absolute immunity). Plaintiff’s
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argument for “diversity jurisdiction” does not alter the fact that the doctrine of judicial immunity

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bars his claims. Davis v. Passman, 442 U.S. 228, 239 n.18 (1979) (noting “jurisdiction” refers to

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whether the courts have the power to hear a case while “cause of action” pertains to whether the

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plaintiff may invoke the power of the courts).

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The Court briefly addresses other potential legal theories Plaintiff has raised, to the extent

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comprehensible. Plaintiff also contends that the Eleventh Amendment of the Constitution and the

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doctrine of state sovereign immunity permit him to sue Judge Grewal. Mot. 2, 4. Plaintiff’s legal

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theory under the Eleventh Amendment is unclear and there is no authority stating that the Eleventh

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Amendment or the doctrine of state sovereign immunity abrogates judicial immunity here. Hibbs
v. Dep’t of Human Res., 273 F.3d 844, 850 (9th Cir. 2001) (discussing when Congress can

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United States District Court
Northern District of California

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abrogate state sovereign immunity but not judicial immunity). Plaintiff mentions 28 U.S.C.

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section 455 but that statute pertains to whether a judge should be recused from a case and does not

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provide an exception to judicial immunity. Mot. 2. Plaintiff further cites Forrester v. White,

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which concerns a plaintiff who filed a discrimination suit against a judge in relation to the judge’s

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administrative duties, such as supervising court employees and overseeing the efficient operation

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of a court, and not based on judicial acts. 484 U.S. 219, 229 (1988); Mot. 2. In contrast, the basis

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for Plaintiff’s complaint here stems solely from Judge Grewal’s conduct presiding over Plaintiff’s

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prior case, including statements made in his order. Compl. Because such conduct relates to

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Judge Grewal’s judicial duty, Forrester does not apply to this case. See also Order Dismissing

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Case, ECF 10. Plaintiff also cites to cases pertaining to standard of review on appeal and

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misstates the law on other cases, none of which demonstrate that the judgment entered was clear

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error. Mot. 3; e.g., Ashelman, 793 F.2d at 1078-79 (overruling Rankin v. Howard, 633 F.2d 844,

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849 (9th Cir. 1980), and holding that the allegations of “conspiracy between judge and prosecutor

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to predetermine the outcome of a judicial proceeding are insufficient to overcome those

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immunities”).

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In sum, the Court dismissed Plaintiff’s case because judicial immunity bars his claims and

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Plaintiff has identified no newly discovered evidence, clear error, or intervening change in law to

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justify overturning this Court’s dismissal of Plaintiff’s case. Fed. R. Civ. Proc. 59(e).
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Accordingly, the Court DENIES Plaintiff’s motion to alter or amend judgment under Fed. R. Civ.

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Proc. 59(e).

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IT IS SO ORDERED.

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Dated: December 12, 2016
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BETH LABSON FREEMAN
United States District Judge

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United States District Court
Northern District of California

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