Opinion
Case No.: 3:18-cv-00493-WQH-WVG
07-20-2018
CHRISTOPHER WAMALWA KIBUNGUCHY, Booking No. 18104725, Plaintiff, v. POLLY H. SHAMOON, Defendant.
ORDER :
Christopher Kibunguchy, currently detained at the San Diego Sheriff's Department George Bailey Detention Facility ("GBDF"), and proceeding pro se, initiated this civil action on March 5, 2018 when he filed a form "Complaint of Judicial Conduct or Disability" (ECF No. 1) against Judge Polly H. Shamoon. Kibunguchy's Complaint appeared to challenge a decision made in ongoing criminal proceedings over which Defendant San Diego Superior Court Judge Polly H. Shamoon presided. See Compl., ECF No. 1.
On April 10, 2018, the Court dismissed this action without prejudice because Kibunguchy failed to pay the filing fees required to commence a civil action by 28 U.S.C. § 1914(a), and because his Complaint failed to allege federal jurisdiction. (ECF No. 4 at 2-3). The Court granted Kibunguchy forty-five days leave in which to either pay the full fee or file a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a), and to file an Amended Complaint. Id. at 3.
Kibunguchy has since filed a Motion to Proceed IFP (ECF No. 4) as well as an Amended Complaint alleging jurisdiction pursuant to 28 U.S.C. § 1983 (ECF No. 5) (the "FAC"). I. Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in "increments" or "installments," Bruce v. Samuels, 136 S. Ct. 627, 629 (2016), regardless of whether his or her action is ultimately dismissed, 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id.
Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a "certified copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.
In support of his IFP Motion, Kibunguchy has submitted a prison certificate authorized by a San Diego County Jail Deputy. (ECF No. 6 at 6). This certificate attests that Kibunguchy carried an average monthly balance of $25, and had average monthly deposits of $25 to his account over the 6-month period immediately preceding the filing of his Motion, but had an available balance of only $1.36 on the books at the time of filing. Id. Accordingly, the Court grants Kibunguchy's Motion to Proceed IFP (ECF No. 6) and assesses his initial partial filing fee to be $5 pursuant to 28 U.S.C. § 1915(b)(1).
Kibunguchy was detained at the San Diego Central Jail when he initiated this suit and when he filed the Motion to Proceed IFP and the FAC. See Compl.at 1, ECF No. 5 at 1; ECF No. 6 at 1. He has since submitted an ex parte letter (ECF No. 8). The return address on the envelope containing the ex parte letter indicates that Kibunguchy has been transferred from the San Diego County Jail to GBDF. Id. at 7; see also http://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=gcUGVXCCuDpZEz_Rkq3SnvTzYqfjhfSMyN41lbSInAY%3d (last visited June 18, 2018). The Clerk of Court has amended the docket to reflect Kibunguchy's current address. --------
However, the Court will direct the Facility Commander of GBDF, or his designee, to collect this initial fee only if sufficient funds are available in Kibunguchy's account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) ("In no event shall a prisoner be prohibited from bringing a civil action . . . for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay . . . due to the lack of funds available to him when payment is ordered."). The remaining balance of the $350 total fee owed in this case must be collected by the agency having custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).
II. Screening Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)
A. Standard of Review
Because Kibunguchy is a prisoner proceeding IFP, the FAC requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). "The purpose of [screening] is 'to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'" Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915A and § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Federal Rule of Civil Procedure 12(b)(6) requires a complaint "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. The "mere possibility of misconduct" or "unadorned, the defendant-unlawfully-harmed me accusation[s]" fall short of meeting this plausibility standard. Id.
B. The FAC
Kibunguchy's factual claims are sparse—he alleges Judge Shamoon is "disregarding [his] innocence," because she "raised [his] bail" during an arraignment on February 5, 2018, based on a determination that he was a "danger to the community" even though he is an "innocent victim" and was arrested by a white police officer who "ha[d] no physical evidence that [he] assaulted anybody." (ECF No. 5 at 1-4). He seeks $400,500 in general and punitive damages. Id. at 8.
C. 42 U.S.C. § 1983
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 1035-36 (9th Cir. 2015).
D. Judicial Immunity
Regardless of the constitutional basis upon which Kibunguchy may intend to challenge Shamoon's bail determination, the FAC must be dismissed insofar as Kibunguchy seeks monetary damages from Shamoon, who is absolutely immune. See 28 U.S.C. § 1915(e)(2)(B)(iii); Chavez v. Robinson, 817 F.3d 1162, 1167-68 (9th Cir. 2016) (noting that § 1915(e)(2)(B)(iii) requires the court to dismiss an action "at any time" if it "seeks monetary relief from a defendant who is immune from such relief.").
Judges are absolutely immune from damage liability for acts which are judicial in nature. Forrester v. White, 484 U.S. 219, 227-229 (1988). Judicial immunity applies to actions brought under 42 U.S.C. § 1983 for acts committed within the scope of judicial duties, "even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." Stump v. Sparkman, 435 U.S. 349, 356 (1978). "[A] judge will not be deprived of immunity because the action [s]he took was in error, was done maliciously, or was in excess of h[er] authority; rather, [s]he will be subject to liability only when [s]he has acted in the clear absence of all jurisdiction." Id. at 356-37; see also Forrester, 484 U.S. at 227 (A judicial act "does not become less judicial by virtue of an allegation of malice or corruption of motive.").
Here, Kibunguchy contends that Shamoon violated unidentified constitutional rights during his February 2018 arraignment and bail review hearing. (ECF No. 5 at 2-4). Despite Kibunguchy's claims that Shamoon did so improperly by "disregarding [his] innocence," id. at 2, criminal bail review proceedings are clearly matters over which a trial judge has subject matter jurisdiction. Therefore, Kibunguchy's claims for money damages against Shamoon must be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) and § 1915A(b)(2) based on her absolute immunity. See Pattillo v. White, 890 F.2d 420 at *1 (9th Cir. 1989) (unpub.) (affirming dismissal of § 1983 claims against judge for decisions made during bail proceedings on grounds of absolute judicial immunity).
E. Younger Abstention
Finally, while "judicial immunity is not a bar to prospective injunctive relief," Pulliam v. Allen, 466 U.S. 522, 541-42 (1984), to the extent Kibunguchy seeks to challenge the validity of his ongoing criminal proceedings in S.D. Superior Court Criminal Case No. CD275346, see ECF No. 5 at 2-3, relief is not available under 42 U.S.C. § 1983.
Absent extraordinary circumstances, federal courts may not interfere with ongoing state criminal proceedings. See Younger v. Harris, 401 U.S. 37, 43-54 (1971); Sprint Communications, Inc. v. Jacobs, 571 U.S. 69, 77 (2013). A court may consider sua sponte whether Younger abstention should be invoked at any point in the litigation. H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000). Abstention is proper regardless of whether the applicant seeks declaratory relief, injunctive relief, or damages. See Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986) ("When a state criminal prosecution has begun, the Younger rule directly bars a declaratory judgment action" as well as a section 1983 action for declaratory relief and damages "where such an action would have a substantially disruptive effect upon ongoing state criminal proceedings."); Gilbertson v. Albright, 381 F.3d 965, 984 (9th Cir. 2004) (en banc) (Younger abstention applies to actions for damages as it does to declaratory and injunctive relief).
Kibunguchy alleges, and the exhibits attached to his most recent letter show, that his criminal proceedings were "ongoing" at the time he filed suit, and that they remain pending in San Diego Superior Court. See ECF No. 5 at 1-3; ECF No. 8 at 2-4. In fact, under Younger, state proceedings are deemed ongoing until appellate review is completed. See Gilbertson, 381 F.3d at 969 n.4 (citation omitted); Huffman v. Pursue, 420 U.S. 592, 608 (1975) ("[A] necessary concomitant of Younger is that a party . . . must exhaust his state appellate remedies before seeking relief in the District Court.").
There is no question that Kibunguchy's criminal proceedings implicate important state interests including "[the] state's interest in enforcing orders and judgments of its courts." Sprint, 134 S. Ct. 593-94; ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014). Specifically, Kibunguchy challenges Shamoon's February 5, 2018 decision to "raise [his] bail" during arraignment, (ECF No. 5 at 1-3), and his subsequent letter also seeks to "raise constitutional questions" related to a felony minute order subsequently issued suspending those proceedings for purposes of conducting a mental competency examination pursuant to Cal. Penal Code § 1368, (ECF No. 8 at 2).
Finally, Kibunguchy's right to be free of excessive bail or his right to challenge competency proceedings are the types of claims the state courts afford an adequate opportunity to raise on direct appeal, or via a state writ of mandate. See, e.g., San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1095 (9th Cir. 2008); Clark v. Lassen Cnty. Justice Court, 967 F.2d 585 at *1 (9th Cir. 1992) (sua sponte dismissing federal civil action challenging state court's bail determinations as frivolous pursuant to 28 U.S.C. § 1915(d) [currently codified at 28 U.S.C. § 1915(e)(2)(B)(i)] as barred by Younger); Maldonado v. Shafter-Wasco N. Div., No. 1:12-CV-01586-LJO, 2012 WL 5425514, at *1 (E.D. Cal. Nov. 6, 2012) (sua sponte dismissing § 1983 claims that plaintiff "did not consent to a section 1368 competency hearing" pursuant to 28 U.S.C. § 1915A & 28 U.S.C. § 1915(e)(2) and declining to convert complaint to habeas petition because state criminal proceeding were still ongoing and subject to Younger abstention).
Accordingly, Younger abstention is required here. ReadyLink, 754 F.3d at 759; Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972) ("[O]nly in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction . . . until after the jury comes in, judgment has been appealed from and the case concluded in the state courts.")
For these additional reasons, the Court denies Kibunguchy further leave to amend as futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir.1996) (denial of a leave to amend is not an abuse of discretion where further amendment would be futile); Davis v. Mendes, No. 13-CV-1817 BEN RBB, 2014 WL 1744137, at *3 (S.D. Cal. Apr. 30, 2014) (denying leave to amend as futile when prisoner's § 1983 claims were subject to dismissal under § 1915(e)(2) and § 1915A based on absolute prosecutorial immunity and abstention under Younger).
III. Conclusion and Orders
Accordingly, the Court:
1. GRANTS Kibunguchy's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 6).
2. ORDERS the Facility Commander of GBDF, or his designee, to collect from Kibunguchy's trust account the $5 initial filing fee, if those funds are available at the time this Order is executed, and forward whatever balance remains of the full $350 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding month's income to the Clerk of the Court each time the amount in Kibunguchy's account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
3. DIRECTS the Clerk of the Court to serve a copy of this Order on the Facility Commander, George F. Bailey Detention Facility, 446 Alta Road, Suite 5300, San Diego, California 92158.
4. DISMISSES this civil action sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b) for failing to state a claim upon which § 1983 relief can be granted and for seeking damages from a defendant who is absolutely immune.
5. CERTIFIES that an IFP appeal in this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and
6. DIRECTS the Clerk of Court to close the file.
IT IS SO ORDERED. Dated: July 20, 2018
/s/_________
Hon. William Q. Hayes
United States District Court