Opinion
22-cv-02506-LB
05-02-2022
GEORGE JARVIS AUSTIN, Plaintiff, v. MAXINE CHESNEY, Defendant.
SCREENING ORDER
Re: ECF Nos. 1, 2
LAUREL BEELER, UNITED STATES MAGISTRATE JUDGE
The plaintiff, who is representing himself filed in forma pauperis, sued District Judge Maxine M. Chesney for violating his constitutional rights by ruling against him. He filed an application to proceed in forma pauperis that did not list his income or assets. The plaintiff must list his assets in order to proceed in forma pauperis. Also, Judge Chesney has absolute judicial immunity. Because the IFP application is a prerequisite to the case's proceeding further, the court issues this screening order to give the plaintiff notice of the deficiencies in his lawsuit and an opportunity to cure them by May 24, 2022.
Compl. - ECF No. 1 at 8. Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents.
IFP Appl. - ECF No. 2.
STATEMENT
In his IFP application, the plaintiff said that he had income and assets, but he answered, “not disclosed” to the questions asking for the dollar amounts. In an earlier case, he similarly did not provide financial information to support his IFP application, despite being given an opportunity to do so. In this case, he claims that Judge Chesney violated his substantive and procedural due-process rights by ruling against him.
Id.
Order; R. & R., No. 22-cv-00360-LB - ECF No. 19.
See, e.g., Compl. - ECF No. 1 at 8.
ANALYSIS
1. IFP Affidavit
Federal law requires a party initiating a civil lawsuit in federal court to pay a $350 filing fee, 28 U.S.C. § 1914(a), plus a $50 administrative fee, District Court Miscellaneous Fee Schedule (Sept. 1, 2018), available at http://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule (issued pursuant to 28 U.S.C. § 1914(b)), for a total of $400.
“Under 28 U.S.C. § 1915, a district court may authorize the commencement of a civil action IFP if it is satisfied that the plaintiff cannot pay the filing fees necessary to pursue the action.” La Douer v. U.C.S.F., No. 15-cv-02214-MEJ, 2015 WL 4323665, at *2 (N.D. Cal. July 15, 2015) (citing 28 U.S.C. § 1915(a)(1)). “The policy for allowing a plaintiff to proceed IFP is to protect litigants from abandoning ‘what may be a meritorious claim in order to spare himself complete destitution.'” Id. (quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 340 (1948)). “However, ‘court permission to proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis status does not violate the applicant's right to due process.'” Id. (cleaned up) (quoting Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)).
“To determine IFP eligibility, an applicant must ‘submit an affidavit that includes a statement of all assets' showing that the applicant ‘is unable to pay such fees or give security therefor.'” Id. (cleaned up) (quoting 28 U.S.C. § 1915(a)(1)). “To satisfy this requirement, ‘an affidavit of poverty is sufficient which states that one cannot because of his or her poverty pay or give security for costs and still be able to provide himself and dependents with the necessities of life.'” Id. (cleaned up) (quoting Adkins, 335 U.S. at 339). “The Ninth Circuit has held that a plaintiff seeking IFP status must allege poverty ‘with some particularity, definiteness and certainty.'” Id. (cleaned up) (quoting Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015)). “The Court has discretion to make a factual inquiry into an IFP applicant's financial status and to deny the application where the applicant is unable or unwilling to verify his or her poverty.” Id. (citing United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)). Courts have denied IFP status where plaintiffs have provided incomplete information about their financial status or failed to clearly disclose their income and assets. See id. at *2-3 (citing cases).
As discussed in the Statement, the plaintiff's IFP application does not disclose his income or assets. He also did not complete the financial information in another case, suggesting that his approach is purposeful. To proceed with this litigation, by May 24, 2022, the plaintiff must submit a complete IFP application or pay the $400 filing fee. He also may dismiss his case without prejudice by filing a one-page notice of dismissal.
2. Screening of IFP Complaints
Even if the plaintiff qualified to proceed in forma pauperis, his complaint is frivolous because he cannot sue a federal judge on the ground that he disagrees with her decisions.
A complaint filed by a person proceeding in forma pauperis under 28 U.S.C. § 1915(a) is subject to a mandatory, sua sponte review and dismissal by the court if it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Under § 1915(e)(2), a court reviewing an in forma pauperis complaint must rule on its own motion to dismiss before directing the United States Marshals to serve the complaint under Federal Rule of Civil Procedure 4(c)(2). Lopez, 203 F.3d at 1126-27. “The language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6).” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).
“Frivolousness” under § 1915(e) and failure to state a claim under Rule 12(b)(6) are distinct concepts.
“A complaint . . . is frivolous where it lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). The definition of frivolousness “embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke, 490 U.S. at 325. When determining whether to dismiss a complaint as “frivolous” under 28 U.S.C. § 1915(e)(2)(B)(i), the court has “the unusual power to pierce the veil of the complaint's factual allegations, ” meaning that the court “is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations.” Denton, 504 U.S. at 32. Frivolous claims include “claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.” Id. “An in forma pauperis complaint may not be dismissed . . . simply because the court finds the plaintiff's allegations unlikely.” Id. at 33. But “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. Frivolous litigation “is not limited to cases in which a legal claim is entirely without merit.... [A] person with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that are grossly exaggerated or totally false.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1060-61 (9th Cir. 2007).
Under Rule 12(b)(6) and § 1915(e)(2)(B), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a complaint include a “short and plain statement” showing the plaintiff is entitled to relief. “To survive a motion to dismiss, a complaint must 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) (cleaned up); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint need not contain “detailed factual allegations, ” but the plaintiff must “provide the grounds of his entitlement to ORDER - No. 22-cv-02506-LB relief, ” which “requires more than labels and conclusions”; a mere “formulaic recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 555 (cleaned up).
In determining whether to dismiss a complaint under Rule 12(b)(6), the court is ordinarily limited to the face of the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Factual allegations in the complaint must be taken as true and reasonable inferences drawn from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court cannot assume, however, that “the [plaintiff] can prove facts that [he or she] has not alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). “Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
Federal courts must construe pro se complaints liberally. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A pro se plaintiff need only provide defendants with fair notice of his claims and the grounds upon which they rest. Hearns, 413 F.3d at 1043. He need not plead specific legal theories so long as sufficient factual averments show that he may be entitled to some relief. Id. at 1041.
When dismissing a case for failure to state a claim, the Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez, 203 F.3d at 1130 (cleaned up).
Here, the lawsuit is frivolous: the judge has judicial immunity, and the plaintiff's recourse is to appeal the decision, not collaterally attack it. Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996); Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1394 (9th Cir. 1987). The court elaborates on the standard so that the plaintiff has the benefit of the full legal context.
A federal judge is absolutely immune from civil liability for acts performed in her judicial capacity and, unlike the judicial immunity available to state judges sued under § 1983, a federal judge's immunity is not limited to immunity from damages and instead is immune in actions for declaratory, injunctive, and other equitable relief. Moore, 96 F.3d at 1243; Mullis, 828 F.2d at 1394 (applying judicial-immunity doctrine to Bivens action). This is because - assuming that a federal judge violates a litigant's constitutional rights in a proceeding pending in federal court - Congress has provided carefully structured procedures for taking appeals and for petitioning for extraordinary writs in Title 28 of the United States Code. Moore, 96 F.3d at 1243. Absolute immunity “is not reserved solely for judges, but extends to nonjudicial officers for all claims relating to the exercise of judicial functions.” Burton v. Infinity Cap. Mgmt., 862 F.3d 740, 747 (9th Cir. 2017) (cleaned up).
Here, the plaintiff challenges Judge Chesney's orders in his case. Judicial immunity applies, and any remedy lies on appeal.
CONCLUSION
The plaintiff must file an amended IFP application or pay the $400 filing fee by May 24, 2022. Also by May 24, 2022, he may, if he chooses, file an amended complaint or a one-page notice of dismissal that will operate as a dismissal without prejudice. If he does not do any of these things, the court will recommend dismissal of the lawsuit.
IT IS SO ORDERED.