Opinion
Civil No. 01-1117-ST
August 21, 2001
FINDINGS AND RECOMMENDATION
Plaintiff, appearing pro se, brings this action to remove or recuse defendant Myer Avedovech, a state court judge, in a matter pending in state court. Plaintiff alleges that defendant "knew, or should have known (as established by BEND "OREGON DISTRICT COURT" case file number B53631698) that he lacked standing to adjudicate said case number B5361698; do [sic] to his (Avedovech's) personal and financial interest in damaging Hart. Plaintiff established by recusal notices to Avedovech, date June 6, 2001, and June 22, 2001, that recusal is mandatory."
Pursuant to an Order entered by the court on this date, plaintiff was granted leave to proceed in forma pauperis. However, for the reasons set forth below, plaintiff's Complaint should be dismissed for lack of jurisdiction and failure to state a claim upon which relief may be granted.
DISCUSSION
I. Subject Matter Jurisdiction
Before proceeding with any action regarding this case, this court must first determine whether it has jurisdiction. Under Federal Rule of Civil Procedure 12(h), the court is required to dismiss an action "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter." The jurisdictional statute is strictly construed. See Lang v. Windsor Mount Joy Mut. Ins. Co., 487 F. Supp. 1303 (E.D. Pa), aff'd, 636 F.2d 1209 (3rd Cir 1980); Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 702 (1st Cir 1979) (citations omitted); Herzog v. Herzog, 333 F. Supp. 477 (W.D. Pa 1971).
Federal courts are courts of limited jurisdiction and cannot hear every dispute presented by litigants. Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir 1989). A federal district court is empowered to hear only those cases which are within the judicial power conferred by the United States Constitution and those which fall within the area of jurisdiction granted by Congress. Richardson v. United States, 943 F.2d 1107, 1112-13 (9th Cir 1991), cert denied, 503 U.S. 936 (1992). Original jurisdiction must be based either on diversity of citizenship, involving suits involving more than $75,000 between citizens of different states, 28 U.S.C. § 1332, or on a claim involving the Constitution, laws, or treaties of the United States, 28 U.S.C. § 1331.
To establish diversity jurisdiction, plaintiff must allege that he resides in the State of Oregon, that defendant resides in another state, and that plaintiff seeks damages of more than $75,000. It does not appear that plaintiff can obtain diversity jurisdiction in this case, given that all of the acts occurred in the State of Oregon by Oregon citizens.
Plaintiff indicated on the cover sheet to the Complaint that jurisdiction for this claim is based on federal question jurisdiction. To invoke federal question jurisdiction, plaintiff must plead that defendant has violated some constitutional or statutory provision. Yet plaintiff alleges no such violation. In fact, it appears that he seeks to have this court overturn an adverse ruling by a state court judge who refuses to recuse himself. A United States District Court has no authority to review final judgments of a state court in judicial proceedings. Schroll v. Plunkett, 760 F. Supp. 1378, 1382 (D Or 1990), citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). Review of such judgments may be had only in the United States Supreme Court after exhausting state appellate review. Feldman at 482; 28 U.S.C. § 1257.
II. Judicial Immunity
It is well settled that judges are absolutely immune from liability for damages caused by judicial acts performed in their judicial capacity. Mireles v. Waco, 502 U.S. 9, 11 (1991); Forrester v. White, 484 U.S. 219, 225-26 (1987); Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). "A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority." Stump, 435 U.S. at 356-57; Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir), cert denied, 488 U.S. 995 (1988). A judge lacks immunity only when performing an act that is not "judicial" in nature or when acting "in the clear absence of all jurisdiction." Stump, 435 U.S. at 356-57; Schucker, 846 F.2d at 1204. Plaintiff's allegations against defendant clearly involve acts which were "judicial" in nature. Accordingly, plaintiff fails to state a claim against defendant upon which relief may be granted.
RECOMMENDATION
Based on the foregoing, plaintiff's Complaint should be DISMISSED for lack of jurisdiction and failure to state a claim. Because it is absolutely clear that the deficiencies of the Complaint cannot be cured by amendment, the dismissal should be WITH PREJUDICE.
SCHEDULING ORDER
Objections to the Findings and Recommendation, if any, are due September 10, 2001. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.