Davis v. Fraser

Filing 40

ORDER Granting Motion to Dismiss Without Leave to Amend [Doc. No. 9 ]; Denying Request for Oral Argument [Doc. No. 39 ]; Denying All Other Motions as Moot [Doc. Nos. 6 and 8 ]; Closing Case. Signed by Judge Cathy Ann Bencivengo on 8/22/2017. (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GAVIN B. DAVIS,

Case No.: 3:17-cv-00708-CAB-(NLS)
Plaintiff,

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v.

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ORDER GRANTING MOTION TO
DISMISS WITHOUT LEAVE TO
AMEND [Doc. No. 9]; DENYING
REQUEST FOR ORAL ARGUMENT
[Doc. No. 39]; DENYING ALL OTHER
MOTIONS AS MOOT [Doc. Nos. 6 and
8; CLOSING CASE

JEFFREY F. FRASER,

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Defendant.

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In this action, plaintiff Gavin B. Davis (“Plaintiff”) asserts a 42 U.S.C. § 1983

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claim against the Honorable Jeffrey F. Fraser, Judge of the Superior Court of California,

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County of San Diego (“Defendant”). The Complaint challenges rulings made by Judge

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Fraser while presiding over two pending state court criminal matters in which Davis is

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the defendant. On April 28, 2017, Defendant filed a motion to dismiss the complaint

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with prejudice. [Doc. No. 9.] On July 18, 2017, Plaintiff filed a response to the motion

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to dismiss. [Doc. No. 37.] On August 2, 2017, Defendant filed a reply to the response.

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[Doc. No. 38.] On August 10, 2017, Plaintiff filed a motion for oral argument and sur-

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reply. [Doc. No. 39.] For the reasons set forth below, the motion to dismiss is

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GRANTED WITHOUT LEAVE TO AMEND and the request for oral argument is

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DENIED.

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ALLEGATIONS OF COMPLAINT

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Judge Fraser is currently presiding over two criminal law matters in the Superior

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Court in which Davis is the named defendant. [Doc. No. 1 at ¶¶ 2, 3.] On November 3,

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2016, Plaintiff “unequivocally rejected the suggestion” to have the Public Defender’s

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office represent him, and instead privately retained attorney Patrick Hennessey to

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represent him in the two underlying proceedings. [Doc. No. 3 at ¶ 7.] On January 27,

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2017, over Plaintiff’s objection, the Superior Court granted Hennessey’s request to

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withdraw as counsel of record due to a conflict. [Doc. No. 1 at ¶ 24; ECF No. 3 at ¶¶ 9-

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10.]

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After the two cases were assigned to Judge Fraser, on April 6, 2017 Davis filed a

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Motion to Waive a Conflict of Interest, seeking to have Hennessey reappointed. [Doc.

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No. 1 at ¶ 24 and Doc. No. 3.] Plaintiff’s motion was not directed at obtaining counsel in

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general, but instead expressly and specifically requested Judge Fraser to “Order”

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Hennessey “to continue in his retained capacity as counsel” in the two criminal matters.

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[Doc. No. 1 at ¶ 24; Doc. No. 3 at ¶ 44.] Judge Fraser denied Plaintiff’s motion. [Doc.

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No. 1 at ¶ 24.]

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The following day (April 7, 2017), Plaintiff filed this action. The Complaint

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alleges that in the underlying state court criminal proceedings, Judge Fraser: (1) deprived

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him of his right to counsel1; (2) prematurely heard and erroneously denied Plaintiff’s

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motion to disqualify Deputy District Attorney Leonard Trinh at a hearing on April 5,

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2017; (3) erroneously gave Plaintiff only “forty-five seconds” to speak on an issue at the

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April 5, 2017 hearing; (4) heard certain matters that had not been properly noticed; (5)

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Defendant’s Request for Judicial Notice [Doc. No. 38-1] is GRANTED. The minute orders from the
state court proceeding show Plaintiff is now represented by counsel in that proceeding. [Doc. No. 38-2
at 3.]
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improperly denied his request for a trial continuance; and (6) erroneously denied

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Plaintiff’s request to record proceedings on April 6, 2017. [Doc. No. 1 at ¶¶ 4, 13–28.]

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Plaintiff seeks relief in the form of damages and injunctive relief, including a stay of his

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two pending state criminal cases. [No. 1 at ¶¶ 40, 44.]

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DISCUSSION
A. Legal Standard.
On a motion to dismiss pursuant to Rule 12(b)(1), the standard to be applied varies

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according to the nature of the jurisdictional challenge. A motion to dismiss for lack of

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subject matter jurisdiction may either attack the allegations of jurisdiction contained in

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the complaint as insufficient on their face to demonstrate the existence of jurisdiction

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(“facial attack”), or may be made as a “speaking motion” attacking the existence of

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subject matter jurisdiction in fact (“factual attack”). Thornhill Publishing Co. v. General

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Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir.1979); Mortensen v. First Fed. Sav. &

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Loan Ass'n, 549 F.2d 884, 891 (3d. Cir.1977). If the motion constitutes a facial attack, the

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court must consider the factual allegations of the complaint to be true. Williamson v.

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Tucker, 645 F.2d 404, 412 (5th Cir.1981); Mortensen, 549 F.2d at 891. If the motion

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constitutes a factual attack, however, “no presumptive truthfulness attaches to plaintiff's

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allegations, and the existence of disputed material facts will not preclude the trial court

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from evaluating for itself the merits of jurisdictional claims.” Thornhill, 594 F.2d at 733

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(quoting Mortensen, 549 F.2d at 889).

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Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the

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defense that the complaint “fail[s] to state a claim upon which relief can be granted”—

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generally referred to as a motion to dismiss. The Court evaluates whether a complaint

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states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil

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Procedure 8(a)(2), which requires a “short and plain statement of the claim showing that

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the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual

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allegations,’ . . . it [does] demand . . . more than an unadorned, the defendant-unlawfully-

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harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

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

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“To survive a motion to dismiss, a complaint must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.

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(quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially

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plausible when the collective facts pled “allow . . . the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Id. There must be

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“more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely

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consistent with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id.

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(quoting Twombly, 550 U.S. at 557). The Court need not accept as true “legal

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conclusions” contained in the complaint, id., or other “allegations that are merely

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conclusory, unwarranted deductions of fact, or unreasonable inferences,” Daniels-Hall v.

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Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).

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If the court grants a motion to dismiss a complaint, it must then decide whether to

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grant leave to amend. Under Rule 15(a), when there is no “[u]ndue delay, bad faith[,]

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dilatory motive on the part of the movant,... undue prejudice to the opposing party by

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virtue of ... the amendment, [or] futility of the amendment,” leave to amend a complaint

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is to be “freely given.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222

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(1962). Generally, leave to amend is denied only if it is clear that the deficiencies of the

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complaint cannot be cured by amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460

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(9th Cir.1980).

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B. Absolute Judicial Immunity.
Defendant argues that Plaintiff’s complaint against Judge Fraser is precluded by

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the doctrine of absolute judicial immunity because all of the challenged decisions

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occurred during the course of ongoing criminal proceedings and are, therefore, judicial in

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nature. [Doc. No. 9-1 at 6.]

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Absolute judicial immunity is afforded to judges for acts performed by the judge
that relate to the judicial process. In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002), as
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amended (Sept. 6, 2002). “This immunity reflects the long-standing ‘general principle of

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the highest importance to the proper administration of justice that a judicial officer, in

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exercising the authority vested in him, shall be free to act upon his own convictions,

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without apprehension of personal consequences to himself.’ ” Olsen v. Idaho State Bd. of

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Med., 363 F.3d 916, 922 (9th Cir. 2004) (quoting Bradley v. Fisher, 13 Wall. 335, 347

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(1871)). This judicial immunity insulates judges from suits brought under section 1983.

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Olsen, 363 F.3d at 923.

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Absolute judicial immunity insulates the judge from actions for damages due to
judicial acts taken within the jurisdiction of the judge's court. Ashelman v. Pope, 793 F.2d

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1072, 1075 (9th Cir. 1986). “Judicial 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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” Id. (quoting Cleavinger v. Saxner, 474 U.S. 193 (1985)). However a judge is not

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immune where he acts in the clear absence of jurisdiction or for acts that are not judicial

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in nature. Ashelman, 793 F.2d at 1075. Judicial conduct falls within “clear absence of all

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jurisdiction,” where the judge “acted with clear lack of all subject matter jurisdiction.”

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Stone v. Baum, 409 F. Supp. 2d 1164, 1174 (D. Ariz. 2005).

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To determine if an act is judicial in nature, the court considers whether (1) the

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precise act is a normal judicial function; (2) the events occurred in the judge's chambers;

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(3) the controversy centered around a case then pending before the judge; and (4) the

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events at issue arose directly and immediately out of a confrontation with the judge in his

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or her official capacity. Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001), as

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amended on denial of reh'g (Oct. 11, 2001) (quoting Meek v. County of Riverside, 183

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F.3d 962, 967 (9th Cir. 1999)).

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Here, all of Judge Fraser’s challenged actions were judicial in nature. In his

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opposition, Plaintiff concedes that the Defendant’s actions were all “in his line of duty

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presiding over SCD266332 and SCD267655 in which Plaintiff is a defendant. . . .” [Doc.

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NO. 37 at 10, ¶21.] Plaintiff then argues that “the actions of Defendant Jeffrey [Fraser]

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are so unconscionable against the most basic federal rights enshrined in the U.S.
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Constitution and its Amendments, as to be actionable and piercing the concept of

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immunity.” Id. However, Plaintiff provides no authority for his argument that a judge’s

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conduct can somehow “pierce” absolute judicial immunity.

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Finally, Plaintiff also argues that judicial immunity does not apply to claims for

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declaratory and injunctive relief. [Doc. No. 37 at 11, ¶27.] However, there is no request

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for declaratory relief in the Complaint, and it is not clear what, if any, injunctive relief

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Plaintiff may be seeking. Moreover, Section 1983 expressly provides that injunctive

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relief is not available against a judicial officer unless a declaratory decree was violated or

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declaratory relief was unavailable. 42 U.S.C. §1983. Plaintiff has made no such

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allegation. Instead, he merely argues in his opposition, without authority, that such a

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limitation on the availability of injunctive relief against a judge is “manifestly

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Unconstitutional in nature.” [Doc. No. 37 at 12, ¶28.] This argument is without merit.

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Accordingly, because the Complaint does not set forth any facts to show that an

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exception to judicial immunity applies, and Plaintiff has not set forth any additional facts

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in his opposition to make such a showing, the complaint is barred by the doctrine of

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absolute judicial immunity.

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C. Eleventh Amendment Immunity.
Defendant argues this action is also barred by Eleventh Amendment immunity,

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which bars suits against a state or an arm of the state; and judges are considered arms of

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the state. [Doc. No. 9-1 at 7.]

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The Eleventh Amendment generally bars suits against a state or an arm of the state

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under principles of sovereign immunity. Franceschi v. Schwartz, 57 F.3d 828, 831 (9th

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Cir. 1995). The Eleventh Amendment has been construed as a grant of sovereign

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immunity to states against suits in federal court and is in the nature of a jurisdictional bar.

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See Alabama v. Pugh, 438 U.S. 781, 782 n.1 (1978); see also Riggle v. California,

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577 F.2d 579, 581-82 (9th Cir. 1978). A judicial officer of the California Superior Court

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acting in his official capacity is also entitled to Eleventh Amendment immunity. Simmons

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v. Sacramento County Superior Court, 318 F.3d 1156,1161 (9th Cir.2003); Austin v. State
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Indus. Insur. Sys., 939 F.2d 676, 677 (9th Cir.1991). Here, Judge Fraser is a judicial

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officer, and all of the challenged actions were undertaken in his official capacity.

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Therefore, the complaint is barred by Eleventh Amendment Immunity.

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Plaintiff argues that, under Ex Parte Young, 209 U.S. 123 (1908), Eleventh

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Amendment immunity does not apply to suits for injunctive relief against state officials

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who are violating federal law. [Doc. No. 37 at 18, ¶41.] However, as set forth above,

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Plaintiff has not alleged a viable claim for injunctive relief under Section 1983 because

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he has not alleged that a declaratory decree was violated or that declaratory relief was

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unavailable. In addition, the Ex Parte Young exception is limited to ongoing and

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continuing violations of federal law; it does not apply to claims premised on past

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conduct. Papasan v. Allain, 478 U.S. 265, 277-78 (1986). Here, Plaintiff’s allegations

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against Judge Fraser are directed at decisions he has already made. Therefore, the Ex

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Parte Young exception does not apply, and Plaintiff’s claims are barred by Eleventh

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Amendment immunity.

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D. Younger Abstention.

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Defendant argues the complaint is also barred by the Younger abstention doctrine

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because it involves ongoing state criminal proceedings and Plaintiff is free to present any

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challenged violations of his constitutional rights to the California Court of Appeal. [Doc.

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No. 9-1 at 9-10.]

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Generally, the Supreme Court's decision in Younger and its progeny direct federal

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courts to abstain from granting injunctive or declaratory relief that would interfere with

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pending state judicial proceedings. Younger v. Harris, 401 U.S. 37, 40–41, 91 S.Ct. 746

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27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 27 L.Ed.2d

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688 (1971) (holding that “where an injunction would be impermissible under these

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principles, declaratory relief should ordinarily be denied as well”). The Younger doctrine

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“reflects a strong policy against federal intervention in state judicial processes in the

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absence of great and immediate injury to the federal plaintiff.” Moore v. Sims, 442 U.S.

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415, 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). When federal courts disrupt a state
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court's opportunity to “intelligently mediate federal constitutional concerns and state

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interests” and interject themselves into such disputes, “they prevent the informed

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evolution of state policy by state tribunals.” Moore, 442 U.S. at 429–30, 99 S.Ct. 2371.

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Therefore, in the absence of “extraordinary circumstances,” abstention in favor of

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state judicial proceedings is required if the state proceedings (1) are ongoing, (2)

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implicate important state interests, and (3) provide the plaintiff an adequate opportunity

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to litigate federal claims. See Middlesex County Ethics Comm. v. Garden State Bar Ass'n,

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457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); see San Jose Silicon Valley

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Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1092

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(9th Cir.2008) (noting that where these standards are met, a district court “may not

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exercise jurisdiction” and that “there is no discretion in the district courts to do

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otherwise”). “Where Younger abstention is appropriate, a district court cannot refuse to

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abstain, retain jurisdiction over the action, and render a decision on the merits after the

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state proceedings have ended. To the contrary, Younger abstention requires dismissal of

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the federal action.” Beltran v. State of Cal., 871 F.2d 777, 782 (9th Cir.1988) (emphasis

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in original).

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Here, all three prongs of the Younger abstention doctrine are met because

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Plaintiff’s claims all involve decisions made in state criminal proceedings and those

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proceedings are: (1) ongoing; (2) involve important state interests; and (3) provide

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Plaintiff the opportunity to litigate federal claims. Middlesex, 457 U.S. at 432. Plaintiff

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concedes that the state court proceedings are ongoing. [Doc. No. 37 at 21, ¶48.]

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Therefore, the first prong is met. Plaintiff argues, however, that the second prong is not

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met because the criminal charges are false, “vindictively charged,” and because the

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California Attorney General has not “render[ed] its position” on whether the San Diego

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District Attorney should be disqualified from prosecuting the charges against Plaintiff.

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[Doc. No. 37 at 21, ¶48(b).] Again, Plaintiff cites no authority for his position. Clearly,

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ongoing criminal proceedings against Plaintiff implicate an important state interest.

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Spirit Communications, Inc. v. Jacobs, 134 S.Ct. 584, 588(2013). Therefore, the second

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Younger abstention prong is met.

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As to the third prong, Plaintiff does not provide any facts to suggest that the state

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court system does not have procedures in place for Plaintiff to adequately litigate his

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federal claims. Therefore, the third prong is met.

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Finally, Plaintiff’s argument that Younger is so narrow as to be unconstitutional”

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[Doc. No. 37 at 19, ¶45] is again without citation to authority. Accordingly, Plaintiff’s

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arguments are without merit and the complaint is barred by the Younger abstention

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doctrine.

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E. Leave to Amend.

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In his opposition, Plaintiff argues that he would like leave to amend to add a claim for

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“judicial incompetence.” [Doc. No. 37 at 6, ¶7.] However, Plaintiff does not cite to any

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authority to suggest that such a claim exists. Moreover, even if it did exist, it would be

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barred for the same reasons as the other claims as set forth above. Given that amendment

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to include such a claim would be futile, Broughton, 622 F.2d at 460, leave to amend is

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denied.

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CONCLUSION

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For the reasons set forth above, this action is barred by the doctrines of judicial

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immunity, Eleventh Amendment immunity, and Younger abstention. Moreover, Plaintiff

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cannot cure these defects by way of amendment. Therefore, the motion to dismiss the

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complaint [Doc. No. 9] is GRANTED WITHOUT LEAVE TO AMEND. Plaintiff’s

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request for oral argument [Doc. No. 39] is DENIED. All other pending motions [Doc.

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Nos. 6 and 8] are DENIED AS MOOT. The Clerk of the Court shall CLOSE the case.

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Dated: August 22, 2017

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