Opinion
No. C08-3903 BZ.
December 3, 2008
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND
Plaintiff Rainer J. Faerber has applied to proceed with his complaint in forma pauperis pursuant to 28 U.S.C. section 1915(a). Having reviewed his application, I find that he qualifies financially to proceed in forma pauperis. However, I also find that his complaint is deficient under § 1915(e)(2).
Under section 1915(e)(2), a court must dismiss a complaint filed in forma pauperis which, liberally construed, fails to state a claim on which relief may be granted or is frivolous. See 28 U.S.C. 1915(e)(2)(B); Marks v. Slocum, 98 F.3d 494, 495 (9th Cir. 1996) (per curiam); Franklin v. Murphy, 745 F.2d 1221, 1226-27 n. 5 (9th Cir. 1984). Having reviewed the complaint, I find that plaintiff has failed to state a claim for which relief may be granted.
Construed liberally, his complaint is that his due process rights were violated when the Solano County Superior Court issued a temporary order limiting plaintiff's visitation rights to 90 minutes per week, without giving him a hearing on his motion asserting that Mrs. Faerber had lied in her application. However, except for very limited exceptions that do not appear applicable here, state courts have exclusive jurisdiction over domestic relations issues such as divorce and child custody.Aukenbrandt v. Richards, 504 U.S. 689, 703-704 (1992). To the extent plaintiff seeks relief from the "Superior Court of California," it is an arm of the state and immune from suit under the Eleventh Amendment. Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987). To the extent that plaintiff seeks to sue a state court judge for actions taken in that judge's official capacity, that judge would also have immunity from suit. See Mireles v. Waco, 502 U.S. 9, 11 (1991);Dennis v. Sparks, 449 U.S. 24, 27 (1980); Pierson v. Ray, 386 U.S. 547, 553 (1967); Moore v. Brewster, 96 F.3d 1240, 1244 (9th Cir. 1996); Sherman v. Babbitt, 772 F.2d 1476, 1477 (9th Cir. 1985). A judge does not lose this immunity "however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." Moore, 96 F.3d at 1244 (quoting Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985)) (internal quotations omitted) accord Sherman, 772 F.2d at 1477.
The court must liberally construe a pro se complaint, giving the plaintiff the benefit of any doubt. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990);Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).
Nor does this court have jurisdiction to stay or alter a ruling of a state-court judge. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (approving dismissal of "cases brought by state court losers complaining of injuries caused by state court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments."); Worldwide Church of God v. McNair, 805 F.2d 888, 890-91 (9th Cir. 1986) (forbidding the filing of suits seeking de facto review of state-court decisions). If plaintiff is dissatisfied with a state court ruling, his remedy is to seek timely and appropriate review through the state court system.
As to defendant Barbara Faerber, plaintiff alleges that information she filed in court declarations is false. In California, statements made in a document filed in a court proceeding are absolutely privileged. Cal. Civ. Code § 47(b). Nor does it appear that the exception contained in § 47(b)(1) applies, since plaintiff appears to be the respondent in the state court. Plaintiff's remedy is to dispute Barbara Faerber's allegations in state court, not to sue in federal court. No federal claim appears to be stated against her and she is not a state actor. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured under the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48-49 (1988). See also Apao v. Bank of New York, 324 F.3d 1091, 1093 (9 Cir. 2003) ("The Fourteenth Amendment . . . shields citizens from unlawful governmental actions, but does not affect conduct by private entities.").
Because I find that plaintiff's complaint fails to state a claim upon which relief may be granted, IT IS HEREBY ORDERED as follows:
1. Plaintiff's complaint is DISMISSED, with leave to amend. If plaintiff desires to proceed with this lawsuit, he must file an amended complaint by January 5, 2009 which demonstrates that he is legally entitled to relief in federal court. The amended complaint should be a short, legible statement in plain English that clearly states the facts that form the basis for his suit against each defendant. At the very least, the amended complaint should explain whether plaintiff is pursuing an appellate remedy in state court and why he thinks this court has jurisdiction over this action. If he thinks he can sue the court or the judge, he must explain how he can avoid the immunity rules set forth above. He should explain what he thinks Ms. Faerber did that amounts to a federal claim. In amending his complaint, plaintiff may wish to consult a manual the court has adopted to assist pro se litigants in presenting their case. This manual is available in the Clerk's Office and online at www.cand.uscourts.gov. If plaintiff does not amend or otherwise comply with this Order by January 5, 2009, this case may be dismissed.
Neither plaintiff nor Ms. Faerber appeared at the case management conference held as scheduled on December 1, 2008. Ms. Faerber had filed a motion to dismiss (Docket No. 6) raising some of the arguments discussed here. In view of this ruling, IT IS ORDERED that Ms. Faerber's motion is DENIED AS MOOT and that a new case management conference will be scheduled once plaintiff files a sufficient complaint.
2. By no later than January 5, 2009, plaintiff and Ms. Faerber shall consent to or decline magistrate judge jurisdiction. The form is available online at: www.cand.uscourts.gov
3. The Clerk shall file the complaint without prepayment of fees. However, the Marshal shall not serve the complaint pending further order of the court.