Freeman v. Superior Court of California, County of San Diego

Filing 4

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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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 CHANITA M. FREEMAN, Plaintiff, 14 15 16 17 18 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. 19 (2) DISMISSING COMPLAINT WITH PREJUDICE PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii); AND 21 (3) TERMINATING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AS MOOT 22 [ECF Nos. 2, 3] 20 23 24 On January 30, 2017, Plaintiff Chanita M. Freeman, proceeding pro se, 25 commenced this action against Defendant Superior Court of California, County of 26 San Diego (“Superior Court”) for violations of the Fourteenth Amendment related to 27 the custody status of Ms. Freeman’s biological son and a restraining order issued by 28 the Superior Court in December 2014 against the son’s biological father. According –1– 17cv180 1 to Ms. Freeman, she and the biological father share joint custody of their son, which 2 is memorialized in a divorce decree. 3 In December 2016, Ms. Freeman previously filed two substantially similar 4 actions on the same day in this district arising from the same nucleus of operative 5 facts in Freeman v. Superior Court of California, County of San Diego, No. 16-cv- 6 3081-DMS(WVG), and Freeman v. Francis, No. 16-cv-3082-MMA(BGS). The 7 former case, which was dismissed sua sponte without prejudice, includes the exact 8 same factual allegations against the same defendant as this case with overlapping 9 claims; the latter case, which remains open, includes substantially similar factual 10 allegations as this case, but is an action against the son’s stepmother. This action is, 11 in essence, a continuation of the former case Ms. Freeman brought against the 12 Superior Court. 13 Presently before the Court is Ms. Freeman’s motion to proceed in forma 14 pauperis (“IFP”) and a motion for appointment of counsel. (ECF Nos. 2-3.) For the 15 reasons discussed below, the Court GRANTS Ms. Freeman’s motion to proceed IFP, 16 DISMISSES WITH PREJUDICE the complaint pursuant to 28 U.S.C. § 17 1915(e)(2)(B)(ii), and TERMINATES AS MOOT Ms. Freeman’s motion for 18 appointment of counsel. 19 20 I. MOTION FOR IN FORMA PAUPERIS 21 The determination of indigency falls within the district court’s discretion. Cal. 22 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 23 506 U.S. 194 (1993) (holding that “Section 1915 typically requires the reviewing 24 court to exercise its sound discretion in determining whether the affiant has satisfied 25 the statute’s requirement of indigency”). It is well-settled that a party need not be 26 completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours 27 & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. § 28 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because –2– 17cv180 1 of his poverty pay or give security for costs . . . and still be able to provide himself 2 and dependents with the necessities of life.” Id. at 339. At the same time, however, 3 “the same even-handed care must be employed to assure that federal funds are not 4 squandered to underwrite, at public expense, . . . the remonstrances of a suitor who 5 is financially able, in whole or in material part, to pull his own oar.” Temple v. 6 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 7 District courts, therefore, tend to reject IFP applications where the applicant 8 can pay the filing fee with acceptable sacrifice to other expenses. See e.g., Stehouwer 9 v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other 10 grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that a district 11 court did not abuse its discretion in requiring a partial fee payment from a prisoner 12 who had a $14.61 monthly salary and who received $110 per month from family). 13 Moreover, “in forma pauperis status may be acquired and lost during the course of 14 litigation.” Wilson v. Dir. of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL 15 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F. Supp. at 321); see 16 also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that 17 a plaintiff who was initially permitted to proceed in forma pauperis should be 18 required to pay his $120 filing fee out of a $900 settlement). In addition, the facts as 19 to the affiant’s poverty must be stated “with some particularity, definiteness, and 20 certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 21 Having read and considered Ms. Freeman’s IFP application, the Court finds 22 that Ms. Freeman meets the requirements in 28 U.S.C. § 1915 for IFP status. Ms. 23 Freeman is an unemployed 35-year-old receiving $264.02 monthly disability income. 24 (IFP Mot. ¶¶ 1-2, 11.) Though Ms. Freeman indicates that she owns a home and a 25 vehicle, she has no money in her checking account and lists no other liquid assets. 26 (Id. ¶¶ 4-5.) In contrast, Ms. Freeman’s expenses amount to almost $2,300 per month. 27 (Id. ¶ 8.) Ms. Freeman’s expenses and debt are clearly greater than her current sources 28 of income. Consequently, the Court finds that requiring Ms. Freeman to pay the court –3– 17cv180 1 filing fee would impair her ability to obtain the necessities of life. See Adkins, 335 2 U.S. at 339. 3 In light of the foregoing, the Court GRANTS Ms. Freeman’s application for 4 leave to proceed in forma pauperis. (ECF No. 2.) However, if it appears at any time 5 in the future that Ms. Freeman’s financial picture has improved for any reason, the 6 Court will direct Ms. Freeman to pay the filing fee to the Clerk of the Court. This 7 includes any recovery Ms. Freeman may realize from this suit or others, and 8 any assistance Ms. Freeman may receive from family or the government. 9 10 II. SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 11 Notwithstanding payment of any filing fee or portion thereof, a complaint filed 12 by any person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is 13 subject to a mandatory and sua sponte review and dismissal by the court to the extent 14 it is “frivolous, malicious, fails to state a claim upon which relief may be granted, or 15 . . . seeks monetary relief against a defendant who is immune from such relief[.]” 16 Lopez v. Smith, 203 F.3d 1122, 1141 n.6 (9th Cir. 2000) (en banc); see also 28 U.S.C. 17 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) 18 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 19 Section 1915(e)(2) mandates that the court reviewing a complaint filed pursuant to 20 the IFP provisions of § 1915 make and rule on its own motion to dismiss before 21 directing that the complaint be served by the U.S. Marshal pursuant to Federal Rule 22 of Civil Procedure 4(c)(3). Lopez, 203 F.3d at 1127 (“[S]ection 1915(e) not only 23 permits, but requires a district court to dismiss an in forma pauperis complaint that 24 fails to state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 25 1998) (noting the “the language of § 1915(e)(2)(B)(ii) parallels the language of 26 Federal Rule of Civil Procedure 12(b)(6)”). 27 // 28 // –4– 17cv180 1 As currently pled, Ms. Freeman’s complaint is subject to sua sponte dismissal 2 under 28 U.S.C. § 1915(e)(2)(B)(ii). Framed as violations of the Fourteenth 3 Amendment, which the Court construes as civil-rights claims asserted under 42 4 U.S.C. § 1983, Ms. Freeman alleges the following wrongful conduct: (1) the Superior 5 Court’s failed to contact Ms. Freeman about her son following the issuance of the 6 temporary restraining order and “aided Mrs. Francis [the stepmother] in keeping him 7 from me, despite her admitting that she was not his biological mother and his 8 biological father was incarcerated”; and (2) the Superior Court “continu[ed] to aid 9 Mrs. Francis” and failed to release the son to Ms. Freeman even after “the county 10 discover[ed] there was a divorce decree between myself and my son’s father.” 11 Having reviewed Ms. Freeman’s constitutional claims against the Superior Court, the 12 Court finds that the claims are barred by absolute judicial immunity and the Eleventh 13 Amendment. 14 15 A. Judicial Immunity 16 Judges are absolutely immune from suit pursuant to 42 U.S.C. § 1983 arising 17 from judicial acts taken within the jurisdiction of their courts. See Mireles v. Waco, 18 502 U.S. 9, 11-12 (1991) (“judicial immunity is not overcome by allegations of bad 19 faith or malice”); Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). A judge does not 20 lose absolute immunity merely because the action he or she took was in error, was 21 done maliciously, or was in excess of his or her authority. See Stump, 435 U.S. at 22 356. “A judge loses absolute immunity only when he [or she] acts in the clear absence 23 of all jurisdiction or performs an act that is not judicial in nature.” Schucker v. 24 Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (citing Stump, 435 U.S. at 356-57 & 25 n.7). 26 // 27 // 28 // –5– 17cv180 1 A judicial action is taken in the “clear absence” of jurisdiction only when 2 judicial officers “rule on matters belonging to categories which the law has expressly 3 placed beyond their purview.” O’Neil v. City of Lake Oswego, 642 F.2d 367, 369-70 4 (9th Cir. 1981) (discussing the distinction between actions taken “in clear absence of 5 all jurisdiction” and those taken merely “in excess of jurisdiction”). “Jurisdiction 6 should be broadly construed to effectuate the policies supporting immunity.” 7 Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986) (en banc). An act is judicial 8 in nature when it involves “a function normally performed by a judge.” See Stump, 9 435 U.S. at 362. 10 Ms. Freeman asserts Fourteenth Amendment violations against the Superior 11 Court, and more specifically, the Honorable Patricia Guerrero for two actions: (1) 12 failing to contact Ms. Freeman about her son when her son’s custody status was at 13 issue; and (2) failing to release the son to Ms. Freeman despite being informed about 14 the divorce decree, which establishes a joint-custody arrangement between Ms. 15 Freeman and the father. However, even if the Court assumes, for the sake of 16 argument, that the Superior Court’s actions were in error, the Superior Court is 17 absolutely immune from liability. See Mireles, 502 U.S. at 11-12. 18 There are no facts presented to the Court suggesting that the Superior Court 19 “act[ed] in the clear absence of all jurisdiction or perform[ed] an act that is not 20 judicial in nature.” See Schucker, 846 F.2d at 1204. Rather, the circumstances 21 described suggest that the Superior Court—more specifically, the Family Law 22 Branch—acted within the scope of its jurisdiction when it made a custody 23 determination regarding Ms. Freeman’s son. See O’Neil, 642 F.2d at 369 (noting that 24 even a “grave procedural error” by a judge “does not pierce the cloak of immunity”). 25 The circumstances described also suggest that the Superior Court performed acts 26 judicial in nature when it issued an order regarding the custody status of Ms. 27 Freeman’s son. See Stump, 435 U.S. at 362. 28 // –6– 17cv180 1 In sum, Ms. Freeman’s complaint wholly fails to allege facts demonstrating 2 that the Superior Court “act[ed] in the clear absence of all jurisdiction or perform[ed] 3 an act that is not judicial in nature.” See Schucker, 846 F.2d at 1204. Therefore, Ms. 4 Freeman’s constitutional claims against the Superior Court are barred by absolute 5 judicial immunity. See Mireles, 502 U.S. at 11-12. 6 7 B. Eleventh Amendment 8 To the extent that a plaintiff is purporting to state any claims against the 9 Superior Court arising from the actions of its judicial officials, such claims are barred 10 by the Eleventh Amendment because a Superior Court is treated as a state agency for 11 purposes of 42 U.S.C. § 1983 litigation. Simmons v. Sacramento Cnty. Superior 12 Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (“Plaintiff cannot state a claim against 13 the Sacramento County Superior Court . . . because such suits are barred by the 14 Eleventh Amendment.”); Greater Los Angeles Council on Deafness, Inc. v. Zolin, 15 812 F.2d 1103, 1110 (9th Cir. 1987) (holding that state courts are arms of the state 16 for Eleventh Amendment purposes). The Eleventh Amendment bars federal 17 jurisdiction over suits by individuals against a State and its instrumentalities, unless 18 either the State consents to waive its sovereign immunity or Congress abrogates it. 19 Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). 20 To overcome this Eleventh Amendment bar, the State’s consent or Congress’ 21 intent must be “unequivocally expressed.” Pennhurst, 465 U.S. at 99. While 22 California has consented to be sued in its own courts pursuant to the California Tort 23 Claims Act, such consent does not constitute consent to suit in federal court. See BV 24 Eng’g v. Univ. of Cal., Los Angeles, 858 F.2d 1394, 1396 (9th Cir. 1988); see also 25 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) (holding that Art. III, 26 § 5 of the California Constitution does not constitute a waiver of California’s 27 Eleventh Amendment immunity). Furthermore, Congress has not repealed state 28 sovereign immunity against suits brought under 42 U.S.C. § 1983. Therefore, Ms. –7– 17cv180 1 Freeman is also barred by the Eleventh Amendment from raising any federal civil- 2 rights claims against the Superior Court. 3 4 III. CONCLUSION & ORDER 5 In light of the foregoing, the Court GRANTS Ms. Freeman’s motion to 6 proceed IFP (ECF No. 2), and DISMISSES WITH PREJUDICE the complaint 7 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii) because Ms. Freeman fails to state a 8 claim upon which relief may be granted and “seeks monetary relief against a 9 defendant who is immune from such relief[.]” See Cervantes v. Countrywide Home 10 Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (“[A] district court may dismiss 11 without leave where . . . amendment would be futile.”); Lopez, 203 F.3d at 1141 n.6. 12 The Court also TERMINATES AS MOOT Ms. Freeman’s motion for appointment 13 of counsel (ECF No. 3). 14 IT IS SO ORDERED. 15 16 DATED: February 28, 2017 17 18 19 20 21 22 23 24 25 26 27 28 –8– 17cv180

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