Freeman v. Superior Court of California, County of San Diego
Filing
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ORDER granting Plaintiff Chanita M. Freeman's 2 Motion for Leave to Proceed in forma pauperis. Court dismisses the Complaint with prejudice pursuant to 28 USC 1915(e)(2)(B)(ii)-(iii) because Ms. Freeman fails to state a claim upon which rel ief may be granted and seeks monetary relief from a defendant who is immune from such relief. Court terminates as moot Ms. Freeman's 3 Motion to Appoint Counsel. Signed by Judge Cynthia Bashant on 2/28/2017. ( All non-registered users served via U.S. Mail Service) (jah)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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CHANITA M. FREEMAN,
Plaintiff,
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Case No. 17-cv-180-BAS(JLB)
ORDER:
(1) GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO
PROCEED IN FORMA
PAUPERIS;
v.
SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN
DIEGO,
Defendant.
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(2) DISMISSING COMPLAINT
WITH PREJUDICE
PURSUANT TO 28 U.S.C. §
1915(e)(2)(B)(ii); AND
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(3) TERMINATING
PLAINTIFF’S MOTION FOR
APPOINTMENT OF
COUNSEL AS MOOT
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[ECF Nos. 2, 3]
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On January 30, 2017, Plaintiff Chanita M. Freeman, proceeding pro se,
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commenced this action against Defendant Superior Court of California, County of
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San Diego (“Superior Court”) for violations of the Fourteenth Amendment related to
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the custody status of Ms. Freeman’s biological son and a restraining order issued by
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the Superior Court in December 2014 against the son’s biological father. According
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to Ms. Freeman, she and the biological father share joint custody of their son, which
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is memorialized in a divorce decree.
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In December 2016, Ms. Freeman previously filed two substantially similar
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actions on the same day in this district arising from the same nucleus of operative
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facts in Freeman v. Superior Court of California, County of San Diego, No. 16-cv-
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3081-DMS(WVG), and Freeman v. Francis, No. 16-cv-3082-MMA(BGS). The
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former case, which was dismissed sua sponte without prejudice, includes the exact
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same factual allegations against the same defendant as this case with overlapping
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claims; the latter case, which remains open, includes substantially similar factual
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allegations as this case, but is an action against the son’s stepmother. This action is,
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in essence, a continuation of the former case Ms. Freeman brought against the
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Superior Court.
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Presently before the Court is Ms. Freeman’s motion to proceed in forma
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pauperis (“IFP”) and a motion for appointment of counsel. (ECF Nos. 2-3.) For the
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reasons discussed below, the Court GRANTS Ms. Freeman’s motion to proceed IFP,
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DISMISSES WITH PREJUDICE the complaint pursuant to 28 U.S.C. §
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1915(e)(2)(B)(ii), and TERMINATES AS MOOT Ms. Freeman’s motion for
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appointment of counsel.
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I.
MOTION FOR IN FORMA PAUPERIS
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The determination of indigency falls within the district court’s discretion. Cal.
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Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds,
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506 U.S. 194 (1993) (holding that “Section 1915 typically requires the reviewing
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court to exercise its sound discretion in determining whether the affiant has satisfied
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the statute’s requirement of indigency”). It is well-settled that a party need not be
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completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours
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& Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. §
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1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because
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of his poverty pay or give security for costs . . . and still be able to provide himself
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and dependents with the necessities of life.” Id. at 339. At the same time, however,
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“the same even-handed care must be employed to assure that federal funds are not
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squandered to underwrite, at public expense, . . . the remonstrances of a suitor who
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is financially able, in whole or in material part, to pull his own oar.” Temple v.
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Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).
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District courts, therefore, tend to reject IFP applications where the applicant
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can pay the filing fee with acceptable sacrifice to other expenses. See e.g., Stehouwer
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v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other
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grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that a district
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court did not abuse its discretion in requiring a partial fee payment from a prisoner
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who had a $14.61 monthly salary and who received $110 per month from family).
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Moreover, “in forma pauperis status may be acquired and lost during the course of
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litigation.” Wilson v. Dir. of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL
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311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F. Supp. at 321); see
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also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that
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a plaintiff who was initially permitted to proceed in forma pauperis should be
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required to pay his $120 filing fee out of a $900 settlement). In addition, the facts as
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to the affiant’s poverty must be stated “with some particularity, definiteness, and
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certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).
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Having read and considered Ms. Freeman’s IFP application, the Court finds
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that Ms. Freeman meets the requirements in 28 U.S.C. § 1915 for IFP status. Ms.
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Freeman is an unemployed 35-year-old receiving $264.02 monthly disability income.
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(IFP Mot. ¶¶ 1-2, 11.) Though Ms. Freeman indicates that she owns a home and a
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vehicle, she has no money in her checking account and lists no other liquid assets.
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(Id. ¶¶ 4-5.) In contrast, Ms. Freeman’s expenses amount to almost $2,300 per month.
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(Id. ¶ 8.) Ms. Freeman’s expenses and debt are clearly greater than her current sources
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of income. Consequently, the Court finds that requiring Ms. Freeman to pay the court
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filing fee would impair her ability to obtain the necessities of life. See Adkins, 335
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U.S. at 339.
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In light of the foregoing, the Court GRANTS Ms. Freeman’s application for
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leave to proceed in forma pauperis. (ECF No. 2.) However, if it appears at any time
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in the future that Ms. Freeman’s financial picture has improved for any reason, the
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Court will direct Ms. Freeman to pay the filing fee to the Clerk of the Court. This
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includes any recovery Ms. Freeman may realize from this suit or others, and
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any assistance Ms. Freeman may receive from family or the government.
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II.
SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)
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Notwithstanding payment of any filing fee or portion thereof, a complaint filed
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by any person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is
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subject to a mandatory and sua sponte review and dismissal by the court to the extent
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it is “frivolous, malicious, fails to state a claim upon which relief may be granted, or
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. . . seeks monetary relief against a defendant who is immune from such relief[.]”
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Lopez v. Smith, 203 F.3d 1122, 1141 n.6 (9th Cir. 2000) (en banc); see also 28 U.S.C.
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§ 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam)
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(“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”).
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Section 1915(e)(2) mandates that the court reviewing a complaint filed pursuant to
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the IFP provisions of § 1915 make and rule on its own motion to dismiss before
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directing that the complaint be served by the U.S. Marshal pursuant to Federal Rule
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of Civil Procedure 4(c)(3). Lopez, 203 F.3d at 1127 (“[S]ection 1915(e) not only
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permits, but requires a district court to dismiss an in forma pauperis complaint that
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fails to state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
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1998) (noting the “the language of § 1915(e)(2)(B)(ii) parallels the language of
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Federal Rule of Civil Procedure 12(b)(6)”).
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//
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//
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As currently pled, Ms. Freeman’s complaint is subject to sua sponte dismissal
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under 28 U.S.C. § 1915(e)(2)(B)(ii). Framed as violations of the Fourteenth
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Amendment, which the Court construes as civil-rights claims asserted under 42
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U.S.C. § 1983, Ms. Freeman alleges the following wrongful conduct: (1) the Superior
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Court’s failed to contact Ms. Freeman about her son following the issuance of the
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temporary restraining order and “aided Mrs. Francis [the stepmother] in keeping him
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from me, despite her admitting that she was not his biological mother and his
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biological father was incarcerated”; and (2) the Superior Court “continu[ed] to aid
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Mrs. Francis” and failed to release the son to Ms. Freeman even after “the county
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discover[ed] there was a divorce decree between myself and my son’s father.”
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Having reviewed Ms. Freeman’s constitutional claims against the Superior Court, the
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Court finds that the claims are barred by absolute judicial immunity and the Eleventh
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Amendment.
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A.
Judicial Immunity
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Judges are absolutely immune from suit pursuant to 42 U.S.C. § 1983 arising
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from judicial acts taken within the jurisdiction of their courts. See Mireles v. Waco,
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502 U.S. 9, 11-12 (1991) (“judicial immunity is not overcome by allegations of bad
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faith or malice”); Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). A judge does not
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lose absolute immunity merely because the action he or she took was in error, was
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done maliciously, or was in excess of his or her authority. See Stump, 435 U.S. at
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356. “A judge loses absolute immunity only when he [or she] acts in the clear absence
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of all jurisdiction or performs an act that is not judicial in nature.” Schucker v.
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Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (citing Stump, 435 U.S. at 356-57 &
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n.7).
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A judicial action is taken in the “clear absence” of jurisdiction only when
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judicial officers “rule on matters belonging to categories which the law has expressly
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placed beyond their purview.” O’Neil v. City of Lake Oswego, 642 F.2d 367, 369-70
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(9th Cir. 1981) (discussing the distinction between actions taken “in clear absence of
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all jurisdiction” and those taken merely “in excess of jurisdiction”). “Jurisdiction
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should be broadly construed to effectuate the policies supporting immunity.”
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Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986) (en banc). An act is judicial
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in nature when it involves “a function normally performed by a judge.” See Stump,
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435 U.S. at 362.
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Ms. Freeman asserts Fourteenth Amendment violations against the Superior
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Court, and more specifically, the Honorable Patricia Guerrero for two actions: (1)
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failing to contact Ms. Freeman about her son when her son’s custody status was at
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issue; and (2) failing to release the son to Ms. Freeman despite being informed about
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the divorce decree, which establishes a joint-custody arrangement between Ms.
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Freeman and the father. However, even if the Court assumes, for the sake of
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argument, that the Superior Court’s actions were in error, the Superior Court is
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absolutely immune from liability. See Mireles, 502 U.S. at 11-12.
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There are no facts presented to the Court suggesting that the Superior Court
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“act[ed] in the clear absence of all jurisdiction or perform[ed] an act that is not
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judicial in nature.” See Schucker, 846 F.2d at 1204. Rather, the circumstances
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described suggest that the Superior Court—more specifically, the Family Law
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Branch—acted within the scope of its jurisdiction when it made a custody
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determination regarding Ms. Freeman’s son. See O’Neil, 642 F.2d at 369 (noting that
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even a “grave procedural error” by a judge “does not pierce the cloak of immunity”).
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The circumstances described also suggest that the Superior Court performed acts
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judicial in nature when it issued an order regarding the custody status of Ms.
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Freeman’s son. See Stump, 435 U.S. at 362.
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In sum, Ms. Freeman’s complaint wholly fails to allege facts demonstrating
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that the Superior Court “act[ed] in the clear absence of all jurisdiction or perform[ed]
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an act that is not judicial in nature.” See Schucker, 846 F.2d at 1204. Therefore, Ms.
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Freeman’s constitutional claims against the Superior Court are barred by absolute
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judicial immunity. See Mireles, 502 U.S. at 11-12.
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B.
Eleventh Amendment
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To the extent that a plaintiff is purporting to state any claims against the
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Superior Court arising from the actions of its judicial officials, such claims are barred
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by the Eleventh Amendment because a Superior Court is treated as a state agency for
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purposes of 42 U.S.C. § 1983 litigation. Simmons v. Sacramento Cnty. Superior
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Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (“Plaintiff cannot state a claim against
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the Sacramento County Superior Court . . . because such suits are barred by the
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Eleventh Amendment.”); Greater Los Angeles Council on Deafness, Inc. v. Zolin,
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812 F.2d 1103, 1110 (9th Cir. 1987) (holding that state courts are arms of the state
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for Eleventh Amendment purposes). The Eleventh Amendment bars federal
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jurisdiction over suits by individuals against a State and its instrumentalities, unless
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either the State consents to waive its sovereign immunity or Congress abrogates it.
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Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984).
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To overcome this Eleventh Amendment bar, the State’s consent or Congress’
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intent must be “unequivocally expressed.” Pennhurst, 465 U.S. at 99. While
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California has consented to be sued in its own courts pursuant to the California Tort
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Claims Act, such consent does not constitute consent to suit in federal court. See BV
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Eng’g v. Univ. of Cal., Los Angeles, 858 F.2d 1394, 1396 (9th Cir. 1988); see also
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Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) (holding that Art. III,
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§ 5 of the California Constitution does not constitute a waiver of California’s
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Eleventh Amendment immunity). Furthermore, Congress has not repealed state
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sovereign immunity against suits brought under 42 U.S.C. § 1983. Therefore, Ms.
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Freeman is also barred by the Eleventh Amendment from raising any federal civil-
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rights claims against the Superior Court.
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III.
CONCLUSION & ORDER
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In light of the foregoing, the Court GRANTS Ms. Freeman’s motion to
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proceed IFP (ECF No. 2), and DISMISSES WITH PREJUDICE the complaint
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pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii) because Ms. Freeman fails to state a
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claim upon which relief may be granted and “seeks monetary relief against a
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defendant who is immune from such relief[.]” See Cervantes v. Countrywide Home
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Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (“[A] district court may dismiss
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without leave where . . . amendment would be futile.”); Lopez, 203 F.3d at 1141 n.6.
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The Court also TERMINATES AS MOOT Ms. Freeman’s motion for appointment
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of counsel (ECF No. 3).
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IT IS SO ORDERED.
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DATED: February 28, 2017
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