Opinion
No. 2:13-cv-0273 MCE AC PS
07-01-2014
DEREK TODD, Plaintiff, v. JOHN ELLIS, et al., Defendants.
ORDER AND
FINDINGS & RECOMMENDATIONS
Plaintiff, proceeding in this action pro se, previously requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This request was granted on June 18, 2013. At the same time, plaintiff's complaint was dismissed pursuant to Federal Rule of Civil Procedure 8(a)(2) for failure to provide a short and plain statement of the dispute, and plaintiff was directed to file an amended complaint no longer than 20 pages. Plaintiff has now filed a first amended complaint with hundreds of pages of exhibits and a motion for leave to amend.
The federal in forma pauperis statute authorizes federal courts to dismiss a case if the action is legally "frivolous or 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). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A. Allegations in First Amended Complaint
In the first amended complaint, plaintiff brings suit against a number of individuals associated with an ongoing state court child custody proceeding: California Judge John Ellis, attorney Elizabeth Anderson, Mediator Paul Landrum, Mediator Juanita Shoopman, Judicial Performance Stephen Rockwell, and Court Clerk Crystal Williams (Archer).
Plaintiff contends that on July 21, 2010, Judge Ellis granted an ex parte order depriving plaintiff of his custody rights to his son without holding a hearing. First Am. Compl. ("FAC") at 2. Using the ex parte court order, defendant Williams (Archer), the son's mother, picked up the child with a police escort. Id. at 3.
After plaintiff sought to have his custody rights reinstated, Judge Ellis ordered plaintiff and Williams (Archer) to attend a mediation session with defendant Landrum. FAC at 3. After the mediation, Landrum recommended that plaintiff's custody rights be terminated based on Williams (Archer)'s allegedly baseless allegations that plaintiff suffered from a mental disorder and that he abused the child. Id.
On September 21, 2010, a hearing was held before Judge Ellis. FAC at 3. Plaintiff accuses his attorney, Elizabeth Anderson, of refusing to plead for plaintiff's rights at this hearing, of having illegal communication with Judge Ellis, and of deliberately violating California law. Id. at 10-11. Following the hearing, Judge Ellis adopted Landrum's recommendation. Id. at 3. Plaintiff thereafter sought to regain custody of his son multiple times, but each time Judge Ellis denied plaintiff's requests. See id. at 4-7.
In early January 2011, after plaintiff's son ran away from the home of Williams (Archer) and returned to plaintiff, Judge Ellis ordered a second mediation session with defendant Shoopman. FAC at 4. Shoopman, like Landrum, recommended that plaintiff's custody rights be terminated, also due to allegations of a mental disorder and child abuse. Id. at 5. On March 21, 2011, Judge Ellis again deprived plaintiff of custody rights. Id. Following another request by plaintiff to have his custody rights reinstated, Judge Ellis issued a five-year restraining order against plaintiff forbidding any contact with his son. Id. Judge Ellis also denied plaintiff's December 2011 request for visitation with his son on Christmas. Id. at 7.
Prior to the child custody trial, Judge Ellis allegedly denied plaintiff's request to appear telephonically, even though he had granted similar requests before. FAC at 6. Consequently, plaintiff was not present at the trial. Id.
Plaintiff filed numerous complaints against Judge Ellis with the Commission on Judicial Performance. FAC at 12. Plaintiff accuses defendant Rockwell of conspiring with Judge Ellis and Williams (Archer) to deprive plaintiff of his rights. Id. B. Plaintiff's Claims and Relief Sought
Plaintiff brings suit for violations of multiple state laws in connection with the child custody hearings under the guise of an Equal Protection violation pursuant to the Fourteenth Amendment and a violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Plaintiff also accuses Judge Ellis of violating his due process rights by issuing an ex parte court order and by denying plaintiff's request to appear telephonically at the child custody hearing. Additionally, he accuses Judge Ellis of conspiring with Landrum, Shoopman, Anderson and Williams (Archer) to deprive plaintiff of his custody rights. Moreover, he accuses Judge Ellis of conspiring with Williams (Archer) to deny plaintiff of "his 2nd Amendment rights right to bear arms because the Plaintiff was disabled." Lastly, plaintiff accuses Judge Ellis of violating plaintiff's First Amendment right to exercise his religion when he denied plaintiff visitation with his son on Christmas in 2011. Plaintiff seeks damages and injunctive relief. C. Discussion
1. Claims Against Judge Ellis
Insofar as plaintiff seeks damages from Judge Ellis, the Court finds this defendant to be absolutely immune from liability. "Judges are immune from damage actions for judicial acts taken within the jurisdiction of their courts . . . Judicial immunity applies however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). A judge can lose his or her immunity when acting in clear absence of jurisdiction, but one must distinguish acts taken in error or acts that are performed in excess of a judge's authority (which remain absolutely immune) from those acts taken in clear absence of jurisdiction. Mireles v. Waco, 502 U.S. 9, 12-13 (1991) ("If judicial immunity means anything, it means that a judge will not be deprived of immunity because the action he took was in error . . . or was in excess of his authority.") Thus, for example, in a case where a judge actually ordered the seizure of an individual by means of excessive force, an act clearly in excess of his legal authority, he remained immune because the order was given in his capacity as a judge and not with the clear absence of jurisdiction. Id.; see also Ashelman, 793 F.2d at 1075 ("A judge lacks immunity where he acts in the clear absence of all jurisdiction . . . or performs an act that is not judicial in nature.")
Here, the actions plaintiff complains of are clearly judicial acts. Furthermore, even assuming arguendo that this defendant somehow erred or acted in excess of his authority, he did not act in clear absence of jurisdiction when he issued an ex parte order or denied plaintiff's request to appear telephonically at a trial. Accordingly, Judge Ellis is immune from liability for damages.
As to plaintiff's claim for injunctive relief, the Court finds that it would be inappropriate for a federal court to interfere in this family law matter, which plaintiff states remains ongoing and active in state court. See e.g., Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987) (no abuse of discretion in district court's abstention from hearing § 1983 claims arising from a child custody dispute pending in state court); Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir. 1983) (upholding abstention by district court in dispute involving father's visitation rights).
2. Claims Against Mediators
Turning next to plaintiff's claims against Landrum and Shoopman, "[j]udicial immunity is not limited to judges. All those who perform judge-like functions are immune from civil damages liability." Ryan v. Bilby, 764 F.2d 1325, 1328 n.4 (9th Cir. 1985); see also Wagshal v. Foster, 28 F.3d 1249, 1252-54 (D.C. Cir. 1994) (holding that mediator for court's alternative dispute resolution program enjoyed absolute quasi-judicial immunity to damages claims for actions taken within the scope of official duties); Putman v. State Bar of California, 2010 WL 3070435, at *7 (C.D. Cal. June 25, 2010) (noting that absolute quasi-judicial immunity is "properly extended to neutral third-parties for their conduct in performing dispute resolution services which are connected to the judicial process and involve either (1) the making of binding decisions, (2) the making of findings or recommendations to the court or (3) the arbitration, mediation, conciliation, evaluation or other similar resolution of pending disputes") (not reported in official reporter).
The Ninth Circuit has held that arbitrators acting within the scope of their authority are immune from civil suit. Sacks v. Dietrich, 663 F.3d 1065 (9th Cir. 2011). In an unpublished, but citable decision, the Ninth Circuit applied the arbitral immunity to mediators. Davenport v. Winley, 314 Fed. Appx. 982 (9th Cir. 2009) (dismissing § 1983 claim against a mediator based on immunity). There is no meaningful distinction between a mediator and an arbitrator for purposes of immunity.
In the first amended complaint, plaintiff claims that Landrum and Shoopman acted as mediators in order to prepare a report making a recommendation regarding custody and visitation. These defendants were clearly acting pursuant to a court order, and their recommendations were integrally connected with the judicial process and within the scope of their duties. Thus, plaintiff's claims against Landrum and Shoopman must also be dismissed.
Plaintiff has previously attempted to bring suit against these two defendants based on the same set of facts. See Todd v. Shoopman et al., 2:12-cv-1768-JAM-GGH; Todd v. Landrum et al., 2:12-cv-1770-LKK-KJN. The magistrate judges in the earlier cases both recommended dismissal of plaintiff's complaints with prejudice based on the same grounds that the Court finds dismissal warranted here. In both actions, the magistrate judges' recommendations were adopted in full and judgment entered accordingly.
3. Claims Against "Judicial Performance" Stephen Rockwell
Plaintiff's allegations against Stephen Rockwell are too factually sparse to state a claim. Other than accusing Rockwell in a conclusory fashion of conspiring with other defendants to violate plaintiff's rights, plaintiff has proffered no facts that would support a claim.
4. Claims Against Elizabeth Anderson
Plaintiff's claims against Elizabeth Anderson also fail. Generally, he accuses this defendant of refusing to plead for plaintiff's rights at a hearing, of having illegal communication with Judge Ellis, and of deliberately violating California law. Without more, these bare allegations do not state a claim.
5. Claims Against Crystal Williams (Archer)
Finally, plaintiff's first amended complaint names Crystal Williams (Archer), his son's mother, as a real party in interest. To the extent plaintiff attempts to assert a claim under 42 U.S.C. § 1983 against Williams (Archer), that claim should also be dismissed because plaintiff cannot plausibly allege that Williams (Archer) is a state actor. Ball v. Rodgers, 492 F.3d 1094, 1103 (9th Cir. 2007); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) ("To state a claim under § 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.") (emphasis added). Furthermore, an ADA claim under 42 U.S.C. § 12132, which relates to public entity disability discrimination, is not viable against Williams (Archer).
Based on the foregoing, the Court finds that plaintiff's first amended complaint must be dismissed. The Court also notes that this pleading appears to be one of several frivolous complaints that plaintiff has filed in this court. See Todd v. Canby, 2:13-cv-1018 GEB AC (examining plaintiff's filings in the Eastern District of California since 2011). Recently, plaintiff was declared a vexatious litigant in this district. See id., ECF No. 5. In light of plaintiff's allegations in the instant case, as well as his history of filing frivolous actions containing many of the same allegations and his status as a vexatious litigant, the Court will recommend that this action be dismissed without leave to amend pursuant to 28 U.S.C. § 1915(e)(2). Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (While the court ordinarily would permit a pro se plaintiff to amend, leave to amend should not be granted where it appears amendment would be futile).
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to amend the pleading (ECF No. 9) is denied; and
IT IS HEREBY RECOMMENDED that this action be dismissed without leave to amend.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE