Ogunsalu v. Office of Administrative Hearings et al

Filing 59

ORDER Granting 39 Motion to Dismiss Amended Complaint; Denying 31 Motion to Amend or Modify Judgment; Denying 28 as Moot Motion to Compel; and Denying 37 Motion for Entry of Default Judgment. Signed by Judge Gonzalo P. Curiel on 4/3/19. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CORNELIUS OLUSEYI OGUNSALU,

Case No.: 3:17-cv-01766-GPC-AGS

Plaintiff,

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v.

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OFFICE OF ADMINISTRATIVE
HEARINGS; CALIFORNIA
COMMISSION ON TEACHER
CREDENTIALING; CALIFORNIA
ATTORNEY GENERAL'S OFFICE; ANI
KINDALL; CHARA CRANE; & ADAM
BERG,

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ORDER GRANTING DEFENDANT
CHARA CRANE’S MOTION TO
DISMISS FIRST AMENDED
COMPLAINT; DENYING
PLAINTIFF’S MOTION TO AMEND
OR MODIFY JUDGMENT;
DENYING AS MOOT PLAINTIFF’S
MOTION TO COMPEL SERVICE
AND DENYING PLAINTIFF’S
MOTION FOR ENTRY OF
DEFAULT JUDGMENT

Defendants.

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[ECF Nos. 28, 31, 37, 39]

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Before the Court is Defendant Chara Crane’s motion to dismiss based on

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prosecutorial immunity which is fully briefed. ECF Nos. 39, 46, 54. Also before the

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Court is Plaintiff’s fully briefed motion to amend the Court’s judgment in its decision

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dismissing Defendants Office of Administrative Hearings, California Commission on

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Teacher Credentialing, Ani Kindall and Adam Berg. ECF Nos. 31, 41, 53. Finally,

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before the Court is Plaintiff’s motion to compel service on Crane that is not opposed,

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ECF No. 28, and motion to enter default judgment against Crane which is briefed. ECF

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No. 37, 50.

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Based upon review of the pleadings and the applicable law, and for the reasons

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discussed below, the Court GRANTS Defendant Crane’s motion to dismiss and DENIES

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Plaintiff’s motion to amend judgment, motion to compel service and motion to enter

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default judgment.

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BACKGROUND
1.

Procedural History
Ogunsalu filed his Complaint in this Court on September 1, 2017. Compl., ECF

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No. 1. Ogunsalu concurrently filed a motion to proceed in forma pauperis. ECF No. 2.

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The Court sua sponte dismissed without prejudice the Complaint for failure to state a

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claim. ECF No. 3. Ogunsalu then filed a Motion for Reconsideration of Court Order

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Dismissing Plaintiff’s Complaint. ECF No. 4. The Court denied the motion and directed

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Ogunsalu to file an amended complaint. Order, ECF No. 8.

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On July 25, 2018, Ogunsalu filed his First Amended Complaint alleging claims

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under 42 U.S.C. § 1983 and state law against Defendants Office of Administrative

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Hearings (“OAH”), California Commission on Teacher Credentialing (“CTC”),

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California Attorney General’s Office (“OAG”), Ani Kindall (“Kindall”), Chara Crane

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(“Crane”), and Adam Berg (“Berg”). FAC, ECF No. 9. Counts I-VI bring claims under

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42 U.S.C. § 1983 against all Defendants. Specifically, Counts I and IV advance claims

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for violation of due process and deprivation of property rights for depriving Ogunsalu of

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his teaching credentials by contriving false allegations. Count II brings a First

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Amendment retaliation claim. In Count III, Ogunsalu claims that Defendants conspired

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to violate his constitutional rights. Under the “stigma-plus doctrine,” Ogunsalu claims in

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Count V that Defendants defamed him. Count VI brings a claim for intentional infliction

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of emotional distress. Counts VII and VIII are state law claims for civil conspiracy and

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intentional infliction of emotional distress as to Berg, Crane, and Kindall.

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In the prayer for relief, Ogunsalu asks the Court to: 1) void the OAH order

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revoking his teaching credentials and denying his clear credential application; 2) order

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the CTC to reinstate his teaching credentials that were revoked; 3) order the CTC to grant

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his clear credential application; 4) order the California Attorney General’s Office to cease

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and desist any retaliatory actions against Ogunsalu that are related to the First Amended

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Complaint; and 5) award damages.

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On November 15, 2018, the Court granted Defendants CTC, OAH, Kindall and

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Berg’s motion to dismiss. ECF No. 25. On December 20, 2018, the Court granted

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OAG’s motion to dismiss. ECF No. 47.

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2.

Factual Background

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a.

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During the 2013-2014 school year, Ogunsalu served as a World History and

The Parties

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Geography teacher at Bell Middle School, which is in the San Diego Unified School

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District (“SDUSD”). ECF No. 1-2 at 2. Ogunsalu had received a Preliminary Single

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Subject Teaching Credential on July 18, 2013, which was set to expire on June 1, 2016.

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Id.

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Defendant Ani Kindall is General Counsel for the CTC. FAC, ECF No. 9 at 2.

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Defendant Adam Berg is an administrative law judge with OAH. Id. at 2. Defendant

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Chara Crane is an Assistant Attorney General of the California Attorney General’s

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Office. Id. at 2. Defendants CTC, OAG, and OAH are all state agencies. Id. at 3.

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b.

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On March 12, 2014, SDUSD notified Ogunsalu of non-reelection to his teaching

Factual Allegations

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position at Bell Middle School. FAC, ECF No. 9 ¶ 44. Ogunsalu sent emails to the

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SDUSD school board and the school principal, decrying the unlawfulness and

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unconstitutionality of his non-reelection. Id. ¶¶ 48-50. On March 14, 2014, SDUSD

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police seized Ogunsalu’s laptop and classroom keys, and escorted him off campus. Id.

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In July 2014, Ogunsalu submitted his application for a Clear Single Subject

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Teaching Credential, or “clear credential.” Id. ¶ 28; ECF No. 1-2 at 2. A clear credential
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is a lifetime credential that may be issued if the holder applies and pays for a fee for

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renewal every five years and meets all professional fitness requirements. Cal. Educ.

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Code § 44251(b)(3).

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Though Ogunsalu was notified of his non-reelection in March 2014, he did not

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have a CTC hearing until February 2015. FAC ¶ 5. Ogunsalu claims that this excessive

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delay denied him procedural due process. Id. On February 18, 2015, a committee

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appointed by CTC recommended a 21-day suspension of Ogunsalu’s preliminary

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teaching credential. Id. ¶ 4. Defendant Kindall attended the hearing and questioned

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Ogunsalu regarding allegations by SDUSD of child abuse. Id. ¶ 25. Ogunsalu alleges

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that the San Diego Police Department Child Protective Services investigated the claims

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and cleared him of the allegations, and that such allegations are false. Id.

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Shortly after the February 2015 committee meeting, Ogunsalu sent an email to

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Kindall rejecting the recommendation for a 21-day suspension and claimed that the

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recommendation was motivated by racism and prejudice. Id. ¶ 40. Ogunsalu alleges that

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he exchanged contentious emails with Kindall. Id. ¶ 7. In March 2015, Ogunsalu sent

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emails to CTC officials titled, “WHO is now guilty of unprofessional conduct?” and

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“YOU KNOW EXACTLY WHAT TO DO.” Id. ¶ 41.

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Ogunsalu appealed the committee’s recommendation of a suspension to OAH. Id.

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¶ 4. In the subsequent administrative proceedings, the Office of the Attorney General and

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Crane sought revocation of Ogunsalu’s preliminary credential and denial of his then-

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pending application for a clear credential, which was far beyond the CTC’s

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recommendation of a 21-day suspension. Id. ¶¶ 4-6. Kindall, Crane, and Berg entered

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into a conspiracy to revoke Ogunsalu’s credentials and deny his clear credential

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application in retaliation for Ogunsalu’s emails. Id. ¶ 6-7, 40-41. Specifically,

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Defendants contrived false allegations that Ogunsalu committed child abuse and harassed

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students and teachers, as grounds for the revocation and denial of Ogunsalu’s credentials.

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Id. ¶ 9, 26. CTC also alleged that Ogunsalu failed to disclose his non-reelection when he

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submitted his application for a clear credential. Id. ¶ 29. However, Ogunsalu claims that

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he informed CTC of his non-reelection before submitting his application. Id. ¶ 30.
Crane, Kindall, and the CTC’s executive director compiled every record possible

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on Ogunsalu, and scoured every data base and records sources, in order to justify the

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false accusations against him. Id. ¶ 41. Crane and Kindall also conspired with officials

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from SDUSD and Sweetwater Union High School District to falsify records that would

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justify revoking Ogunsalu’s credential. Id. ¶¶ 42, 43. In late 2016, an OAH settlement

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conference was held. Id. ¶ 5. Crane attempted to coerce Ogunsalu to accept the 21-day

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suspension or face additional discipline. Id.

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A hearing was held before Defendant Berg on November 14 and 15, 2016. Id. ¶

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51, 52. Berg was notified that Ogunsalu had filed a petition for writ of mandate to the

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California Court of Appeals. Id. ¶ 51. Ogunsalu claims that the filing of this petition

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should have stopped the administrative hearing. Id. Ogunsalu alleges Defendants

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presented falsely contrived evidence and perjured testimony at the OAH hearing. Id. ¶

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20. Ogunsalu further alleges that Defendants conspired to have his former students make

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up allegations against him that had not been alleged when SDUSD decided to non-reelect

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him. Id. ¶ 20.

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Berg concluded that Ogunsalu harassed teachers and students at Bell Middle

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School, engaged in unprofessional conduct, and posed a significant danger of harm to

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students and staff. Id. ¶ 14. Berg further concluded that Ogunsalu’s preliminary

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credential be revoked and his clear credential application should be denied, as it was the

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only discipline that will adequately protect the public. Id.

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DISCUSSION
A.

Defendant Crane’s Motion to Dismiss

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1.

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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the

Legal Standard

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sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To

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survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
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as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547

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(2007)). A claim is facially plausible when the factual allegations permit “the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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While a plaintiff need not give “detailed factual allegations,” a plaintiff must plead

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sufficient facts that, if true, “raise a right to relief above the speculative level.” Twombly,

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550 U.S. at 545.

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In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the
truth of all factual allegations and must construe all inferences from them in the light

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most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.

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2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal

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conclusions, however, need not be taken as true merely because they are cast in the form

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of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); W.

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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2.

Analysis
a.

§ 1983 claims

Crane contends that Ogunsalu’s claims against her arise from her participation in

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the administrative proceedings against him, and she is thus absolutely immune from his §

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1983 claims. “Absolute immunity extends to agency officials when they preside over

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hearings, initiate agency adjudication, or otherwise perform functions analogous to

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judges and prosecutors.” Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999) (citing

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Butz v. Economou, 438 U.S. 478, 514-15 (1978)); see also Olsen v. Idaho State Bd. Of

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Medicine, 363 F.3d 916, 928–29 (9th Cir. 2004) (holding that a state medical board and

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its counsel are immune from liability for claims arising from judicial actions in

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disciplinary proceedings). Under the prosecutorial immunity doctrine, prosecutors are

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entitled to absolute immunity in civil rights damage lawsuits when their prosecutorial

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activities are “intimately associated with the judicial phase of the criminal process.”

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Imbler v. Pachtman, 424 U.S. 409, 430 (1976). “A prosecutor is protected by absolute
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immunity from liability for damages under § 1983 ‘when performing the traditional

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functions of an advocate.’” Genzler v. Loganbach, 410 F.3d 630, 636 (9th Cir. 2005)

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(quoting Kalina v. Fletcher, 522 U.S. 118, 131 (1997)). While a prosecutor performing

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administrative or investigative functions are only entitled to qualified immunity,

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“evaluating evidence and interviewing witnesses” in preparation for trial is governed by

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absolute immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Additionally,

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“an agency attorney who arranges for the presentation of evidence on the record in the

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course of an adjudication is absolutely immune from suits based on the introduction of

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such evidence.” Butz, 438 U.S. at 517. Ogunsalu’s claims against Crane stem from her

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participation in the administrative proceeding and her presentation of evidence in that

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proceeding. She is therefore immune from Ogunsalu’s § 1983 claims.

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Ogunsalu responds that Crane is not entitled to absolute immunity (1) because of

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the Ex parte Young, 209 U.S. 123 (1908) exception to Eleventh Amendment immunity,

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(2) because her actions were not prosecutorial in nature, and (3) because she had

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knowledge that OAH action against Crane was “unlawful and unconstitutional.” ECF

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No. 46 at 7:12-15.

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First, Ex parte Young doctrine is a narrow exception to Eleventh Amendment

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immunity which allows a plaintiff to sue official capacity defendants for an allegedly

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ongoing violation of federal law seeking “prospective declaratory and injunctive relief

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against state officers, sued in their official capacities, to enjoin an ongoing violation of

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federal law.” Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045

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(9th Cir. 2000) (citing Ex parte Young, 209 U.S. 123, 155–56 (1908)). While prosecutors

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may be sued for injunctive relief, see Ex parte Young, 209 U.S. at 155-56, prosecutors

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receive absolute immunity from suits for money damages when conducting prosecutorial

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tasks, Imbler, 424 U.S. at 423. Here, Plaintiff only seeks compensatory and punitive

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damages against Crane, not injunctive relief. FAC, ECF No. 9 at p. 21. Therefore, the

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exception in Ex parte Young does not apply, and Plaintiff’s argument is without support.

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Second, viewing the allegations in the FAC in the light most favorable to Plaintiff,

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all of Crane’s alleged actions fall within the scope of absolute immunity. Plaintiff alleges

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that Crane was assigned to his case “[m]ore than a year after Plaintiff appealed the 21-

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day suspension recommendation of the CTC Committee.” FAC, ECF No. 9, ¶ 17.

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Although the remainder of Plaintiff’s allegations against Crane regarding Plaintiff’s

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federal claims are undated, they logically must have occurred after Crane was assigned to

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Plaintiff’s case. See id. ¶ 18–21, 26, 41–43, 47, 52, 55, Ct. 1 ¶ 2, Ct. 2 ¶ 8, Ct. 3 ¶ 1–7,

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Ct. 4 ¶ 2, Ct. 5 ¶ 2, 3, 6, Ct. 6 ¶ 2, 5. In a criminal case, whether or not a criminal

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complaint has been filed is a relevant factor in determining whether a prosecutors action

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is protected by absolute immunity. Genzler, 410 F.3d at 640 (citing Kulwicki v. Dawson,

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969 F.2d 1454, 1465 (3rd Cir. 1992)). So here, the fact that Crane’s actions were taken

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well into the administrative process are relevant in showing that her actions were

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protected by absolute immunity. A majority of Plaintiff’s factual allegations are in

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support of his claim that Crane presented false allegations against him and suborned

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perjury to support those allegations. See FAC, ECF No. 9, ¶¶ 11, 14, 20, 21, 26, 41, 42,

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43, 47, 52, Ct. 3 ¶ 3, Ct 4 ¶ 2, Ct. 5 ¶ 2, 3. Soliciting false testimony from witnesses is

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protected by absolute immunity as long as the conduct was associated with a judicial

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proceeding. See Burns, 500 U.S. at 486, 490. The remainder of Plaintiff’s allegations are

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either background information, or vague statements suggesting that Crane was part of a

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conspiracy to revoke Plaintiff’s teaching credential. To the extent that these allegations

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support a claim, Crane’s actions were lawyerly functions intimately tied to the judicial

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process and she is absolutely immune. See Lacey v. Maricopa Cnty., 693 F.3d 896, 913

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(9th Cir. 2012) (absolute immunity applies to “lawyerly functions of organizing and

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analyzing evidence and law . . . presenting evidence and analysis to the courts and grand

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juries on behalf of the government, [and] internal decisions and processes that determine

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how those functions will be carried out”).

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Third, Plaintiff claims that Crane had knowledge that the OAH’s actions against
Crane were “unlawful and unconstitutional.” But even if Plaintiff’s allegations are true,
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“[judicial] immunity . . . leave[s] the genuinely wronged defendant without civil redress

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against a prosecutor whose malicious or dishonest action deprives him of liberty.”

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Imbler, 424 U.S. at 427; Broam v. Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003) (a

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“prosecutor is entitled to the protection of absolute immunity whether or not he or she

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violated the civil plaintiff's constitutional rights”). Whether or not Crane’s actions were

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illegal or unconstitutional is not salient. Because her actions were intimately tied to the

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judicial process, Crane is entitled to absolute immunity. Therefore, the Court GRANTS

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Defendant Crane’s motion to dismiss the § 1983 causes of action.

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b.

State Law Claims

Crane also moves to dismiss Ogunsalu’s state law claims against her. Crane

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contends that Government Code section 821.6 bars liability for these claims. Section

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821.6 provides, “[a] public employee is not liable for injury caused by his instituting or

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prosecuting any judicial or administrative proceeding within the scope of his

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employment, even if he acts maliciously and without probable cause.” Cal. Gov’t Code

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§ 821.6. This “immunity statute is given an ‘expansive interpretation’ in order to best

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further the rationale of the immunity, that is to allow the free exercise of the prosecutor’s

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discretion and protect public officers from harassment in the performance of their duties.”

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Ingram v. Flippo, 74 Cal. App. 4th 1280, 1292 (1999) (citation omitted). “Section 821.6

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is not limited to conduct occurring during formal proceedings. It also extends to actions

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taken in preparation for formal proceedings. Because investigation is an essential step

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toward the institution of formal proceedings, it is also cloaked with immunity.” Javor v.

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Taggart, 98 Cal. App. 4th 795, 808 (2002) (citation and quotation marks omitted).

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Ogansalu argues that Sullivan v. Cnty. of Los Angeles, which “confin[es] [section

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821.6’s] reach to malicious prosecution actions,” renders section 821.6 inapplicable to his

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claims. 12 Cal.3d 710, 721 (1974). In that case, the court decided “that the Legislature

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intended the section to protect public employees from liability only for malicious

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prosecution and not for false imprisonment.” Id. at 719 (emphasis in original). Although

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the California Courts of Appeals have interpreted the rule more expansively, a court
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“must determine what meaning the state’s highest court would give the statute in

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question.” Goldman v. Standard Ins. Co., 341 F.3d 1023, 1026 (9th Cir. 2003). The

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Ninth Circuit believes that “the California Supreme Court would adhere to Sullivan even

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though California Courts of Appeal have strayed from it.” Garmon v. Cnty. of Los

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Angeles, 828 F.3d 837, 847 (9th Cir. 2016).

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In Garmon, the plaintiff alleged state law violations of Article I, § 13, of the

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California Constitution which prohibits unreasonable searches and seizures, and

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California Civil Code § 51 which bars discrimination based on sex, race, color, religion,

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ancestry, national origin or disability. Garmon v Cnty of Los Angeles, No. CV 10-6609-

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SJO(PJW), 2011 WL 6257150, at *1 (C.D. Cal. Oct. 18, 2011). The plaintiff alleged that

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“defendants violated her constitutional rights when they obtained and used her medical

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records in connection with the prosecution of her son.” Id. at *5. The Ninth Circuit

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stated it must follow the California Supreme Court’s application of § 821.6 as held in

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Sullivan and reversed the district court’s dismissal of state law claims because they were

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not malicious prosecution claims. Garmon, 828 F.3d at 847. This included a claim

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where the Ninth Circuit held that the prosecutor was entitled to absolute immunity for

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issuing a subpoena duces tecum for the § 1983 claims but not the state law claims under §

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821.6. Id. at 844.

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Because the Court is bound by the Ninth Circuit ruling in Garmon, the Court

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concludes that Crane is not immune for the state law causes of action of civil conspiracy

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and intentional infliction of emotional distress as they are not claims for malicious

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prosecution. The Court DENIES Defendant’s motion based on state law immunity under

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§ 821.6.

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In addition, Defendant argues the FAC should be dismissed because Plaintiff failed

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to plead compliance with the Government Tort Claims Act (GTCA), codified under

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California Government Code §§ 900 et. seq. Wood v. Riverside Gen. Hosp., 25 Cal. App.

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4th 1113, 1119 (1994) (“The timely filing of a claim [under the GTCA] is an essential

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element of a cause of action against a public entity and failure to allege compliance with
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the claims statute renders the complaint subject to general demurrer”). “Under the

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Government Claims Act, no person may sue a public entity or public employee for

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‘money or damages’ unless a timely written claim has been presented to and denied by

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the public entity.” Calderon v. United States, Case No. 17cv40-BAM, 2018 WL

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5906064, at *3 (E.D. Cal. Nov. 9, 2018) (citing Cal. Gov’t Code § 945.4; Curtis T. v.

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County of Los Angeles, 123 Cal. App. 4th 1405 (2004)). The failure to timely file a claim

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with the public entity bars suit against the entity. State of California v. Superior Ct., 32

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Cal. 4th 1234, 1237 (2004). Therefore, if “a civil complaint does not affirmatively allege

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compliance with the claim presentation requirements, or allege facts showing that

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applicability of recognized exception or excuse for noncompliance, it must be

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dismissed.” Martinez v. Englert, No. 10cv1569-AWI-DLB PC, 2012 WL 3689818, at *7

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(E.D. Cal. Aug. 24, 2012). Plaintiff argues that emails sent to Crane and the other

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defendants provided the defendants with notice that he intended to file a lawsuit against

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them. Sending emails does not constitute compliance with the provisions of the GTCA.

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The statute requires that a claim be made with the Department of General Services. Cal.

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Gov’t Code § 915(b). Because the FAC does not plead compliance with the GTCA, the

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Court GRANTS Defendant’s motion to dismiss.

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c.

Leave to Amend

Crane asserts that leave to amend should not be granted. “Pro se plaintiffs should

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be given an opportunity to amend their complaints to overcome any deficiencies unless it

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clearly appears the deficiency cannot be overcome by amendment.” Ashelman v. Pope,

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793 F.2d 1072, 1078 (9th Cir. 1986) (en banc). Ogunsalu’s § 1983 claims against Crane

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arise from actions for which she is entitled to prosecutorial immunity. It is clear that any

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amendment to Ogunsalu’s pleading would not overcome this immunity as to the federal

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causes of action. Accordingly, the Court dismisses with prejudice Ogunsalu’s claims

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against Crane on the § 1983 claims.

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d.

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Supplemental Jurisdiction

Under 28 U.S.C. § 1367(c), a district court may decline to exercise supplemental

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jurisdiction over state law claims if the “district court has dismissed all claims over which

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it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “[I]n the usual case in which all

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federal-law claims are eliminated before trial, the balance of factors to be considered

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under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and

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comity—will point toward declining to exercise jurisdiction over the remaining state-law

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claims.” Sanford v. Memberworks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (citation

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omitted).

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Here, the federal causes of action have been dismissed with prejudice and the case

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is still in its early stages as no answers have been filed. There is no compelling reason to

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exercise supplemental jurisdiction over the state law claims. Accordingly, the Court

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declines to exercise supplemental jurisdiction over the state law claims as to Crane and

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dismisses the FAC. See Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (upholding

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district court's refusal to exercise supplemental jurisdiction over state claims after

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dismissing federal claims, including dismissal of § 1983 claim for failure to state a

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claim); San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 478 (9th Cir.

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1998) (district court did not abuse its discretion by failing to provide explanation when it

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declined jurisdiction under § 1367(c)).

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B.

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Plaintiff’s Motion for Reconsideration
Plaintiff also moves for reconsideration of the Court’s order dismissing defendants

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CTC, OAH, Berg and Kindall. ECF Nos. 25, 31. A motion for reconsideration, under

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Rule 59(e), is “appropriate if the district court (1) is presented with newly discovered

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evidence; (2) committed clear error or the initial decision was manifestly unjust, or (3) if

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there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cnty,

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Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also Ybarra v. McDaniel, 656

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F.3d 984, 998 (9th Cir. 2011). “[R]econsideration of a judgment after its entry is an

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extraordinary remedy which should be used sparingly.” McDowell v. Calderon, 197 F.3d
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1253, 1255 n. 1 (9th Cir. 1999) (quoting 11 Charles Alan Wright, Arthur R. Miller &

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Mary Kay Kane, Federal Practice and Procedure § 2810.1 (2d ed. 1995)). Rule 59(e)

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“may not be used to relitigate old matters, or to raise arguments or present evidence that

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could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554

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U.S. 471, 485 n. 5 (2008) (citation omitted).
Plaintiff’s motion for reconsideration amounts to an attempt to relitigate the

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Court’s decision. Plaintiff argues that the decision contained clear error, but fails to

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identify that error, instead arguing the already decided issue of whether Berg and Kindall

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acted outside their jurisdiction.

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Relying on Pulliam v. Allen, 466 U.S. 522 (1984), Plaintiff additionally argues that

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the Court erroneously dismissed his claims for injunctive relief as to Berg because those

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claims were not barred by absolute immunity. While judges are absolutely immune from

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civil liability for damages for acts performed in their judicial capacity, Romano, 169 F.3d

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at 1186, in Pulliam, the U.S. Supreme Court held that judicial immunity does not bar

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claims for injunctive relief in § 1983 actions. Pulliam v. Allen, 466 U.S. 522, 541-42

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(1984) (“[w]e conclude that judicial immunity is not a bar to prospective injunctive relief

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against a judicial officer acting in her judicial capacity.”); see also Ashelman, 793 F.2d at

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1075. Section 1983 now provides, “in any action brought against a judicial officer for an

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act or omission taken in such officer's judicial capacity, injunctive relief shall not be

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granted unless a declaratory decree was violated or declaratory relief was unavailable.”1

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42 U.S.C. § 1983. Here, Plaintiff does not assert any claims in violation of a declaratory

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decree or that declaratory relief was not available. Therefore, the Court DENIES

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Plaintiff’s motion for reconsideration.

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In 1996, Congress amended § 1983 to abrogate the holding in Pulliam. Haas v. Wisconsin, 109 F.
App'x 107, 114 (7th Cir. 2004) (“This amendment was intended to overrule the Supreme Court's
decision in [Pulliam ].”); Yellen v. Hara, Civil No. 15-300 JMS-KSC, 2015 WL 4877805, at *6 (D.
Haw. Aug. 13, 2015) (“Congress responded to Pulliam in 1996 by amended § 1983 to abrogate its
holding”).
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C.

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Plaintiff’s Motion to Compel Service
On November 19, 2018, Plaintiff filed a Motion to Compel Service on Defendant

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Chara Crane. ECF No. 28. No response was filed. In his motion, Plaintiffs seeks the

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Court to direct Crane to accept the properly served complaint and summons by the U.S.

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Marshals. Crane has not disputed the service on her, and in fact, filed a motion to dismiss

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Plaintiff’s FAC. Thus, the Court DENIES Plaintiff’s motion as moot.

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D.

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Plaintiff’s Motion for Entry of Default Judgment
On December 4, 2018 Plaintiff filed his Motion for Entry of Default Final

Judgment Against Defendant Chara Crane. ECF No. 37. Crane filed a response on
December 21, 2018. ECF No. 50.
Rule 55 requires a “two-step process”: a plaintiff must first seek a clerk’s entry of

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default, and then once that is entered, a plaintiff may file a motion for the entry of default

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judgment. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (“Eitel apparently

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fails to understand the two-step process required by Rule 55.”); Symantec Corp. v. Global

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Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (noting that Rules 55(a) and (b) provide a

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two-step process for obtaining a default judgment); see also Norman v. Small, No.

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09cv2235 WQH, 2010 WL 5173683, at *2 (S.D. Cal. Dec. 14, 2010) (unpublished)

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(denying plaintiff's motion for default judgment because the clerk had not yet entered a

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default). Here, no entry of default has been filed. Thus, Plaintiff’s motion for default

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judgment is procedurally improper and the Court DENIES the motion for entry of default

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judgment.

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CONCLUSION

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For the reasons expressed above, the Court GRANTS Defendant Crane’s motion

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to dismiss and Plaintiff Cornelius Oluseyi Ogunsalu’s § 1983 claims against Defendant

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Chara Crane are DISMISSED WITH PREJUDICE. The Court also DISMISSES the

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state law claims and also DECLINES to exercise supplemental jurisdiction over them.

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In addition, the Court also DENIES Plaintiff’s Motion to Alter or Amend the Judgment,

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Motion to Compel Service and Motion for Entry of Default Judgment.

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IT IS SO ORDERED.
Dated: April 3, 2019

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