Opinion
22-cv-02506-LB
05-23-2022
GEORGE JARVIS AUSTIN, Plaintiff, v. MAXINE CHESNEY, Defendant.
ORDER REASSIGNING CASE; REPORT AND RECOMMENDATION RE: ECF NOS. 2, 7, 9
LAUREL BEELER UNITED STATES MAGISTRATE JUDGE
The plaintiff, who is representing himself, filed an application to proceed in forma pauperis and sued District Judge Maxine M. Chesney for violating his constitutional rights by ruling against him in another case, Austin v. Lyft, No. 21-cv-09345-MMC, a case that is still pending. The court previously denied the IFP application because the plaintiff did not list his income or assets. In a screening order, the court also screened the complaint for minimum legal viability under 28 U.S.C. § 1915(e)(2), set out the legal standards, and identified the complaint's deficiencies: Judge Chesney has judicial immunity, and the plaintiff's recourse ultimately is to appeal her decisions, not collaterally attack them in a separate lawsuit. Moore v. Brewster, 96 F.3d 1240, 1243-44 (9th Cir. 1996); Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1394 (9th Cir. 1987). The court ordered the plaintiff to file a financial affidavit or pay the filing fee and gave him an opportunity to amend or dismiss his complaint. On May 3, 2022, he amended his complaint with largely the same allegations against Judge Chesney. On May 14, 2022, he asked for an extension of time until late June or early July to pay the filing fee because he has budget constraints.
Compl. - ECF No. 1 at 8; Appl. - ECF No. 2. Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents.
Order - ECF No. 5 (attached and incorporated herein by this reference).
Am. Compl. - ECF No. 7 at 2.
Mot. - ECF No. 9.
Mr. Austin cannot cure the complaint's deficiencies. Rather than have him expend his resources unnecessarily, the case should be dismissed on the ground of judicial immunity for the reasons set for earlier attached order.
Order - ECF No. 5.
Because not all parties have appeared or consented to magistrate-judge jurisdiction, the case must be reassigned. Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 2017). Accordingly, the court directs the clerk of court to reassign the case to a district judge and recommends that the newly assigned judge dismiss the case and deny the motion for an extension of time to pay the filing fee as moot.
Any party may serve and file specific written objections to this recommendation within fourteen days after being served with a copy. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2); N.D. Cal. Civ. L.R. 72-3. Failure to file written objections within the specified time may waive the right to appeal the district court's order.
IT IS SO ORDERED AND RECOMMENDER.