Lucero et al v. City of San Diego et al

Filing 15

ORDER granting #11 Motion to Dismiss. Signed by District Judge Robert S. Huie on 11/18/2022. (All non-registered users served via U.S. Mail Service)(alns) (jms).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ESTEVAN R. LUCERO, et al.;

Case No.: 22-CV-1045-RSH-NLS
Plaintiffs,

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v.

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CITY OF SAN DIEGO, et al.,

ORDER GRANTING DEFENDANT
JUDGE POLLY SHAMOON’S
MOTION TO DISMISS

Defendants.

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[ECF No. 11]

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This Order addresses Defendant Judge Polly Shamoon’s motion to dismiss

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Plaintiff’s Complaint (the “Motion”). ECF No. 11. Plaintiff, a former attorney proceeding

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pro se in this matter, did not file an opposition. As explained below, the Court grants the

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Motion.

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I.

BACKGROUND

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Plaintiff alleges in his Amended Complaint that he began practicing law in 2014.

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ECF No. 5 ¶ 33. On October 22, 2018, Plaintiff was arrested after driving to his ex-spouse’s

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home and damaging her property. Id. ¶ 45. In March 2019, Plaintiff was charged with ten

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felony counts and pled guilty to one count of felony stalking of his ex-wife. Id. ¶¶ 46, 69.

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Judge Shamoon presided over Plaintiff’s criminal proceedings and remanded him into
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custody in July 2019. Id. ¶¶ 61, 65. Plaintiff was released in January 2020. Id. ¶ 84. Plaintiff

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was disbarred after a State Bar trial on April 27, 2022. Id. ¶¶ 78, 94.

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The Complaint alleges that the City of San Diego, San Diego County, the State Bar

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of California, two rehabilitation facilities, and various subdivisions, agencies, officers, and

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employees, as well as judicial officers including Judge Shamoon, conspired to dismantle

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Plaintiff’s law practice, frame him for various felonies, cause him to lose his law license,

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and interfere with his personal and professional relationships. Plaintiff alleges that

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Defendants launched this scheme in retaliation for his work on civil rights and criminal

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defense matters. Id. ¶ 34.

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With regard to Judge Shamoon, Plaintiff claims that she pressured Plaintiff’s defense

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attorney to resign, id. ¶ 50, unlawfully required Plaintiff to execute a preliminary hearing

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waiver, id. ¶ 53, ordered him to cease practicing law without proper jurisdiction, id. ¶ 60,

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improperly struck a probation report, id. ¶ 56, took a pending restitution hearing off

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calendar to conceal testimony, id. ¶ 73, forced Plaintiff to agree to a probation violation,

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id. ¶ 83, and kept him in custody to ensure his noncompliance with State Bar rules, id. ¶

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84. Plaintiff also alleges that Judge Shamoon used her judicial office to interfere with his

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State Bar disciplinary proceedings and ensure his disbarment. Id. ¶¶ 62-66, 68, 72, 76, 82.

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Plaintiff filed his initial complaint on July 18, 2022, ECF No. 1, and his Amended

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Complaint on July 27, 2022, ECF No. 5. He brings two claims pursuant to 42 U.S.C. §§

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1983 and 1985. ECF No. 5 ¶¶ 106-114. Plaintiff seeks money damages. Id. ¶¶ 108, 114.

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Judge Shamoon filed the Motion on September 26, 2022, seeking dismissal on the

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basis of (1) judicial immunity, (2) the Eleventh Amendment, (3) Heck v. Humphrey, (4)

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the Rooker-Feldman doctrine, (5) Younger abstention, and (6) the Complaint’s failure to

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otherwise state a claim. ECF No. 11. After missing the deadline to file an opposition brief,

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Plaintiff filed an ex parte motion seeking, inter alia, an extension of time to respond to the

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Motion to November 10, 2022. ECF No. 12. The Court granted Plaintiff’s request. ECF

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No. 13 at 3. Plaintiff never filed an opposition.

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//
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II.

DISCUSSION

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Plaintiff’s claims against Judge Shamoon are barred by judicial immunity.

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“[J]udges of courts of superior or general jurisdiction are not liable to civil actions for their

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judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have

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been done maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 349, 355–56 (1978).

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This immunity is overcome in only two sets of circumstances. Mireles v. Waco, 502 U.S.

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9, 11 (1991). “First, a judge is not immune from liability for nonjudicial actions, i.e.,

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actions not taken in the judge’s judicial capacity. Second, a judge is not immune for actions,

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though judicial in nature, taken in the complete absence of all jurisdiction.” Id. at 11-12

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(internal citations omitted). “[W]hether an act by a judge is a ‘judicial’ one relate[s] to the

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nature of the act itself, i.e., whether it is a function normally performed by a judge, and to

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the expectations of the parties, i.e., whether they dealt with the judge in his judicial

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capacity.” Stump, 435 U.S. at 360. A complete absence of all jurisdiction means a clear

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lack of subject matter jurisdiction. Miller v. Davis, 521 F.3d 1142, 1147 (9th Cir. 2008).

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The conduct attributed specifically to Judge Shamoon in the Complaint stems from her

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judicial acts, with no indication that she was acting in the complete absence of jurisdiction.

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Plaintiff’s claims against Judge Shamoon are also barred by the Eleventh

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Amendment. Simmons v. Sacramento Cnty. Super. Ct., 318 F.3d 1156, 1161 (9th Cir. 2003)

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(“Plaintiff cannot state a claim against the Sacramento County Superior Court (or its

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employees), because such suits are barred by the Eleventh Amendment.”); Greater L.A.

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Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir.1987) (holding that state

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courts are arms of the state for Eleventh Amendment purposes). 1

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Plaintiff also fails to allege particular facts supporting his conclusory allegations of
a conspiracy. See Travaglia v. Johnston, 42 F.3d 1402 (9th Cir. 1994) (“[I]n order to
survive a motion to dismiss an action for failure to state a claim pursuant to Rule 12(b)(6),
a plaintiff alleging a conspiracy must allege specific facts to support the existence of the
alleged conspiracy.”); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (affirming
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Finally, Plaintiff’s failure to oppose the Motion operates as consent to the relief

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requested. If a party fails to file opposition papers, “that failure may constitute a consent to

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the granting of a motion or other request for ruling by the Court.” CivLR 7.1.f.3.c. See

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also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming grant of an unopposed

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motion to dismiss under local rule by deeming a pro se litigant’s failure to oppose as

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consent to grant the motion). Plaintiff missed both the original deadline and his requested

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extended deadline to file an opposition.

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Judge Shamoon’s Motion argues that dismissal should be with prejudice, because

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Plaintiff cannot cure the defects in his Amended Complaint. Given the grounds for

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dismissal herein, the Court agrees that amendment would be futile, and leave to amend is

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denied. See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010).

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III.

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CONCLUSION
Accordingly, the Motion is GRANTED. Plaintiff’s claims as to Defendant Judge

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Shamoon are DISMISSED with prejudice.

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IT IS SO ORDERED.

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Dated: November 18, 2022

____________________
Hon. Robert S. Huie
United States District Judge

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dismissal of Section 1983 and 1985 claims because plaintiff’s conclusory allegations of
conspiracy were not supported by material facts).
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