Opinion
22-cv-154-CAB-BLM
02-14-2022
ROBERT JAMES DUDASH; YESHUA IS DIOS DUDASH; LOGOS ELYON DUDASH, Plaintiffs, v. MARIAN F. GASTON, et al., Defendants.
ORDER:
1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS [DOC. NO. 2]; AND
2) DISMISSING CIVIL ACTION PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(III).
Hon. Cathy Ann Bencivengo, United States District Judge
Plaintiffs Robert James Dudash, Yeshua Is Dios Dudash, and Logos Elyon Dudash, all non-prisoners, filed this civil action against a host of defendants, including Judge Marian F. Gaston, Judge Gary M. Bubis, various Child Protective Services (“CPS”) employees, and Polinsky Children's Center, among others. [Doc. No. 1.] Plaintiffs did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the time of filing; instead, they filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). [Doc. No. 2.]
I. Motion to Proceed IFP
Generally, all parties instituting a civil action in this court must pay a filing fee. See 28 U.S.C. § 1914(a); CivLR 4.5(a). However, under 28 U.S.C. § 1915(a), the court may authorize the commencement, prosecution or defense of any suit without payment of fees if the plaintiff submits an affidavit, including a statement of all his or her assets, showing that he or she is unable to pay filing fees or costs. “An affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “[A] plaintiff seeking IFP status must allege poverty with some particularity, definiteness and certainty.” Id. (internal quotation marks omitted). The granting or denial of leave to proceed IFP in civil cases is within the sound discretion of the district court. Venerable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations omitted).
Here, Plaintiffs have failed to properly complete the application to proceed in district court without prepaying fees or costs. [Doc. No. 2.] The application is devoid of any information regarding Mr. Dudash's employment history, cash, assets, debts, dependents, or average expenses, and therefore lacks the “particularity, definiteness and certainty” required to support a request to proceed IFP. See Escobedo, 787 F.3d at 1234. Accordingly, Plaintiff's Motion to Proceed IFP is DENIED without prejudice, subject to refiling a completed application.
II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B)
Notwithstanding the Court's denial of Plaintiffs' Motion to Proceed IFP, the Court also analyzes the sufficiency of Plaintiffs' complaint under 28 U.S.C § 1915. A complaint filed by any person seeking to proceed IFP pursuant to 28 U.S.C. § 1915(a) is subject to sua sponte dismissal if it is “frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against 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) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); see also Chavez v. Robinson, 817 F.3d 1162, 1167-68 (9th Cir. 2016) (noting that § 1915(e)(2)(B) “mandates dismissal-even if dismissal comes before the defendants are served”). Congress enacted this safeguard because “a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
Here, Plaintiffs bring suit against two judges of the Superior Court of San Diego County-Judge Marian F. Gaston and Judge Gary M. Bubis-among other defendants. [Doc. No. 1.] However, “[j]udges and those performing judge-like functions are absolutely immune from damage liability for acts performed in their official capacities.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc); see also Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008); Partington v. Gedan, 961 F.2d 852, 860 n.8 (9th Cir. 1992); Houghton v. Osborne, 834 F.2d 745, 750 (9th Cir. 1987). Section 1983 also prohibits the grant of injunctive relief against any judicial officer acting in her or his official capacity, “unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. Plaintiffs do not specify the form of relief they seek. However, Plaintiffs do not state that any declaratory decree has been violated or that declaratory relief is unavailable, nor do they plead any facts specifically relating to the two judicial Defendants named. Plaintiffs therefore have not demonstrated that an exception to judicial immunity applies for Judge Gaston or Judge Bubis. See Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (per curiam) (“A judge loses absolute immunity only when [the judge] acts in the clear absence of all jurisdiction or performs an act that is not judicial in nature.”).
Because Plaintiffs seek relief against two judicial defendants who are immune from such relief, their complaint must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
III. Conclusion
For the foregoing reasons, it is hereby ORDERED as follows:
1. Plaintiffs' Motion to Proceed IFP [Doc. No. 2] is DENIED without prejudice, subject to refiling a completed application;
2. The complaint [Doc. No. 1] is DISMISSED without prejudice, subject to refiling without the two judicial officers named as Defendants.
It is SO ORDERED.