Free Order on Motion to Appoint Counsel - District Court of California - California

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1 2 3 4 5 6 7 8 9 10 v. UNITED STATES COURT OF APPEALS, et al., Defendants. ___________________________________/ GENE E. SMITH, SR., Plaintiff, No. C-08-1860 EMC ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS; FINDING AS MOOT PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL; AND DISMISSING COMPLAINT WITH PREJUDICE (Docket Nos. 2-3) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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Ida M. Clark has initiated this lawsuit on behalf of Plaintiff Gene E. Smith. In the complaint, the United States Court of Appeals for the Ninth Circuit, two judges on the Ninth Circuit (Richard C. Tallman and Richard R. Clifton), and three clerks for the Ninth Circuit (Caroline A. Jacobs, Cathy A. Catterson, and Gabriela Van Allen) are named as Defendants. According to the complaint, Defendants violated Mr. Smith's constitutional and statutory rights by discriminating against him on the basis of his disability and economic status. Ms. Clark, on behalf of Mr. Smith, has filed with the Court an application to proceed in forma pauperis and a request for appointment of counsel. Ms. Clark, on behalf of Mr. Smith, has consented to proceed before a magistrate judge. /// /// /// /// ///

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1 2 3 4 5 6 7 8 9 10 (3) (2)

I.

FACTUAL & PROCEDURAL BACKGROUND

As reflected in the complaint, Mr. Smith challenges actions taken by judges and clerks for the Ninth Circuit during the appeal of a case that he initiated in Nevada.1 The following actions are discussed in the complaint: (1) The judges' denial of Mr. Smith's motion for appointment of counsel (on November 16, 2007). The judges' denial of Mr. Smith's application to proceed in forma pauperis (also on November 16, 2007). The judges' denial of Mr. Smith's request for production of the reporter's transcript at the government's expense (also on November 16, 2007). (4) (5) The judges' dismissal of Mr. Smith's appeal (on January 8, 2008). Ms. Catterson and Ms. Jacobs' involvement with the court orders on November 16, 2007, and January 8, 2008. (6) Ms. Catterson and Ms. Van Allen's enforcement of the briefing schedule for the appeal for Mr. Smith but not on the opposing party (which asked for an extension of time).2 (7) The judges' failure to respond to Mr. Smith's emergency motions filed on November 26, 2007 (after the motion to proceed in forma pauperis had been denied), and request for stay of mandate and petition for en banc hearing filed on January 15, 2008. According to Mr. Smith, all of the above actions were taken by Defendants because he is disabled and poor. Based on the above allegations, Mr. Smith asserts a Bivens claim,3 claims
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Although not relevant for purposes of this case, it appears that the Nevada case involved both Mr. Smith and Ms. Clark as plaintiffs (as well as two other individuals). Mr. Smith and Ms. Clark were suing their former employer. In an order dated October 1, 2007, the Ninth Circuit tolled the briefing schedule pending disposition of the motion to proceed in forma pauperis and motion for appointment of counsel. Mr. Smith actually asserted a claim pursuant to 42 U.S.C. § 1983 rather than a Bivens claim. However, § 1983 provides relief against state actors only, not federal; for federal actors, the appropriate claim is a Bivens claim. As neither Mr. Smith nor Ms. Clark is represented by counsel, the Court shall liberally construe the § 1983 claim and interpret it as a Bivens claim. See Ting v. United States, 927 F.2d 1504, 1513 (9th Cir. 1991) (noting that a Bivens claim "is a judicially created cause of action against federal officers arising under the United States Constitution"); Panaro v. City of North Las Vegas, 432 F.3d 949, 952 n.5 (9th Cir. 2005) (stating that "[a]ctions under § 1983 and those under
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pursuant to 42 U.S.C. §§ 1985 and 1986, and claims pursuant to the Americans with Disabilities Act and Rehabilitation Act. II. A. Representation by Ms. Clark As a preliminary matter, the Court must address the issue of whether or not Ms. Clark may initiate this lawsuit on Mr. Smith's behalf. Under Federal Rule of Civil Procedure 17, a representative such as a general guardian may sue or defend on behalf of a minor or an incompetent person. See Fed. R. Civ. P. 17(c)(1). Ms. Clark represents that Mr. Smith is an incompetent person and has submitted an order from a Nevada state court pursuant to which she was appointed general guardian of Mr. Smith. In light of this evidence, the Court finds that Ms. Clark may sue on behalf of Mr. Smith, but only if she has counsel to represent her as guardian for Mr. Smith. Cf. Johns v. County of San Diego, 114 F.3d 874, 876-77 (9th Cir. 1997) (noting that "`it is not in the interest of minors or incompetents that they be represented by non-attorneys'"; thereby holding that a "guardian or parent cannot bring a lawsuit on behalf of a minor in federal court without retaining a lawyer"). Ms. Clark has requested appointment of counsel, but for the reasons discussed below the merits of the case are insubstantial and therefore the request is denied. B. In Forma Pauperis Application The Court now turns to the in forma pauperis application. When presented with an application to proceed in forma pauperis, a court must first determine if the applicant satisfies the economic eligibility requirement of 28 U.S.C. § 1915(a). See Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). Section 1915(a) does not require an applicant to demonstrate absolute destitution. See McCone v. Holiday Inn Convention Ctr., 797 F.2d 853, 854 (10th Cir. 1982) (citing Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331, 339(1948)). In the financial affidavit, Ms. Clark represents that Mr. Smith is not currently employed and that his only source of income is Social Security benefits of approximately $1,400 per month. Although he owns a home, he pays a monthly mortgage of approximately $900 and he has no other DISCUSSION

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Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens").

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assets of substance. Mr. Smith's monthly expenses, including his mortgage, total approximately $1,300. Although a close call, given the totality of the circumstances, the Court grants Mr. Smith's application to proceed in forma pauperis. B. Complaint Title 28 U.S.C. § 1915(e)(2) requires a court to dismiss any case in which a litigant seeks leave to proceed in forma pauperis if the court determines that the action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). The instant case implicates both the second and third factors. 1. Bivens Claim and Related §§ 1985 and 1986 Claims a. Immunity from Damages

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The Bivens claim and the related §§ 1985 and 1986 claims are dismissed to the extent Mr. Smith seeks monetary relief because Defendants have immunity from damages. i. Judges

Mr. Smith sues two judges on the Ninth Circuit, namely, Judges Tallman and Clifton. The judges are entitled to absolute judicial immunity. See Branson v. Nott, 62 F.3d 287, 290 n.1 (9th Cir. 1995) (confirming that federal judges may be protected from Bivens claims under the doctrine of judicial immunity); cf. Dennis v. Sparks, 449 U.S. 24, 27 (1980) (stating that "this Court has consistently adhered to the rule that `judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities'"). There is no doubt that the judges' actions that are being challenged by Mr. Smith ­ essentially, issuing orders and dismissing the appeal ­ are judicial acts and therefore protected. See Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001) (explaining that "absolute judicial immunity does not apply to non-judicial acts, i.e. the administrative, legislative, and executive functions that judges may on occasion be assigned to perform" but that "[r]uling on a motion is a normal judicial function"). Furthermore, if sued in their official capacities, the judges are also entitled to sovereign immunity. See Consejo De Desarrollo Economico De Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007) ("`[A] Bivens action can be maintained against a defendant in his or her

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individual capacity only, and not in his or her official capacity.' This is because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity."). ii. Clerks

Mr. Smith sues three clerks who work for the Ninth Circuit, i.e., Ms. Jacobs, Ms. Catterson, and Ms. Van Allen. As above, Mr. Smith's complaint does not make clear whether the clerks are being sued in their official or individual capacities. Like the judges, the clerks, if sued in their official capacities, are immune from suit. See Consejo De Desarrollo Economico De Mexicali, 482 F.3d at 1173. If sued in their individual capacities, the clerks have absolute quasi-judicial immunity. First, the actions by the clerks that are being challenged by Mr. Smith ­ i.e., assisting the Ninth Circuit in issuing its orders and enforcing a briefing schedule against Mr. Smith but not the opposing party ­ are really actions of the judges. Thus, the clerks are entitled to immunity. See Rodriguez v. Weprin, 116 F.3d 62, 66(2d Cir. 1997) ("The appellant claims these court clerks wrongfully denied his motion to expand the record on appeal. As to this claim, it appears that the Appellate Division judges, and not the named clerks, are responsible for denying Rodriguez access to records. Accordingly, these clerks are entitled to immunity for their alleged refusal of appellant's document request."). Second, even if the actions were in fact those of the clerks, those actions were presumably taken pursuant to the direction of the judges, and so the clerks would still be entitled to immunity. See id. at 67 ("Even `when functions that are more administrative in character have been undertaken pursuant to the explicit direction of a judicial officer, . . . that officer's immunity is also available to the subordinate.'"); Dellenbach v. Letsinger, 889 F.2d 755, 763 (7th Cir. 1989) ("We conclude on the facts before us that the court personnel are entitled to absolute quasi-judicial immunity for their alleged acts . . . pursuant to the judge's instructions.").4
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Under Ninth Circuit case law, clerks have also been extended immunity in additional circumstances. See In re Castillo, 297 F.3d 940, 952 (9th Cir. 2002) ("We have extended absolute judicial immunity . . . to court clerks and other nonjudicial officers for purely administrative acts -- acts which taken out of context would appear ministerial, but when viewed in context are actually a part of the judicial function."); see also Wilson v. Kelkhoff, 86 F.3d 1438, 1444 (7th Cir. 1996) ("[M]inisterial acts unrelated to the [judicial] function immunity is intended to protect are not covered by absolute

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iii.

Ninth Circuit

It is well established that the United States is entitled to sovereign immunity from any claim for damages unless immunity has been explicitly waived by Congress. See Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1088 (9th Cir. 2007) ("Unless [the plaintiff] satisfies the burden of establishing that its action [against the United States] falls within an unequivocally expressed waiver of sovereign immunity by Congress, it must be dismissed."). This immunity extends to federal agencies. See Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997) ("The doctrine of sovereign immunity applies to federal agencies and to federal employees acting within their official capacities."); Gilbert v. Da Grossa, 756 F.2d 1455, 1460 n.6 (9th Cir. 1985) ("A claim for damages against a federal agency is barred by sovereign immunity unless Congress has consented to suit."). Congress has not explicitly waived the immunity of the United States and its agencies with respect to Bivens claims, see FDIC v. Meyer, 510 U.S. 471, 486 (1994) (holding that federal agencies, such as the FDIC, were immune from Bivens actions alleging a violation of constitutional rights); nor with respect to §§ 1985 and 1986 claims. See Roum v. Bush, 461 F. Supp. 2d 40, 46 (D.D.C. 2006) (stating that "§ 1985 does not waive the federal government's sovereign immunity"); Unimex, Inc. v. United States Dep't of Housing & Urban Dev., 594 F.2d 1060, 1061 (5th Cir. 1979) (stating that "[t]he direct claims against HUD are barred by sovereign immunity because the United States has not consented to suit under the civil rights statutes" at issue, which included § 1986). Furthermore, inasmuch as the Ninth Circuit is sued for actions taken by its judges, judicial immunity should apply as well. Accordingly, the claims for damages pursuant to Bivens and §§ 1985 and 1986 must be dismissed.

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immunity. . . . [But] judicial acts that are part of the judicial function are [not] excluded from absolute immunity because they could be characterized as nondiscretionary or even ministerial."). See, e.g., In re Castillo, 297 F.3d at 952-53 (concluding that the scheduling and noticing of a hearing is a discretionary function deserving of protection); Moore v. Brewster, 96 F.3d 1240, 1244 (9th Cir. 1996) (noting that, "[e]ven if, as [plaintiff] alleges, [the clerk of the court] deceived [plaintiff] regarding the status of the bond and improperly conducted hearings to assess costs, all in coordination with Judge Brewster, such acts would fall within [the clerk's] quasi-judicial duties and are thus protected by absolute immunity"); Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir. 1987) (holding that, where a clerk files or refuses to file a document with the court, he is entitled to quasi-judicial immunity for his actions, provided the acts complained of are within the clerk's jurisdiction).

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b.

Failure to State a Claim

Even if Defendants were not immune from damages, the Bivens claim and related §§ 1985 and 1986 claims would still be dismissed on the basis of failure to state a claim. Recently, the Supreme Court has explained that a complaint "does not need detailed factual allegations" but that "a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964- 65 (2007). More specifically, there must be "plausible grounds" to support a claim for relief. Id. at 1965. In the instant case, there are not any plausible grounds to support Mr. Smith's claim that Defendants discriminated against him because of his disability and economic status. There is nothing in the complaint, for example, to suggest that Defendants treated Mr. Smith differently from similarly situated litigants on the basis of his disability or economic status. Compare Boykin v. Keycorp, No. 05-2158-cv, 2008 U.S. App. LEXIS 6401, at *38-39 (2d Cir. Mar. 2008) (concluding that plaintiff's complaint -- which stated that she was an African American female, described defendant's actions with respect to her loan application, and alleged that she was treated differently from similarly situated loan applicants because of her race, sex, and the location of the property in a predominantly African American neighborhood -- indicated the possibility of discrimination and thus presented a plausible claim of disparate treatment). Mr. Smith's claim of discrimination is purely speculative. 2. ADA and Rehabilitation Act

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Mr. Smith has also failed to state a claim for relief under the ADA and Rehabilitation Act and therefore these claims are dismissed as well. Like the Bivens claim and §§ 1985 and 1986 claims, these claims are purely speculative. Even if not speculative, Mr. Smith appears not to state a claim for relief at this juncture because the statutes he cites do not provide for relief against the United States, its agencies, and its employees. See Cellular Phone Taskforce v. F.C.C., 217 F.3d 72, 73 (2d Cir. 2000) (holding that Title II of the ADA, which provides that "[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in . . . the

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services, programs, or activities of a public entity, or be subjected to discrimination by any such entity," 42 U.S.C. § 12132, is not applicable to the federal government because public entity is defined in § 12131(1) as a state or local government); 29 U.S.C. § 794 (providing that "[n]o otherwise qualified individual with a disability . . . shall, solely be reason or her or his disability, shall be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance" and defining program or activity as the operations of, e.g., a state or local government, an educational institution, and certain private organizations). See Lane v. Pena, 518 U.S. 187 (1996) (no waiver of sovereign immunity of federal government under § 504(a)). Finally, even if the statutes could provide a claim, judicial immunity and quasi-judicial immunity would protect the individual defendants. Cf. Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001) (holding that state trial judge was entitled to judicial immunity against accommodation claims brought by hearing impaired litigant). 3. Injunctive Relief

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Finally, to the extent Mr. Smith seeks the injunctive relief of having Defendants removed from the positions that they hold, that relief is not available to him. First, there is no authority by which a federal judge may be removed from office except as provided for the Constitution -- i.e., by impeachment. See U.S. Const., art. II, § 4 ("The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."); U.S. Const., art. III, § 1 ("The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."); see also Bergen v. Edenfield, 701 F.2d 906, 908 (11th Cir. 1983) ("The only mechanism for removal of a federal judge provided in the Constitution is the impeachment process."). Although Mr. Smith has also requested that the clerks be removed from their positions, as noted above, the actions taken by the clerks that are being challenged by Mr. Smith are in substance actions taken by the judges. Second, even if the Court did the authority to remove the judges from office, before it could do so it would have to, in effect, overrule the orders that the judges issued. That is not the role of

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this Court. Cf. Mullis, 828 F.2d at 1392-93 ("To allow a district court to grant injunctive relief against a bankruptcy court or the district court in the underlying bankruptcy case would be to permit, in effect, a `horizontal appeal' from one district court to another or even a `reverse review' of a ruling of the court of appeals by a district court. Such collateral attacks on the judgments, orders, decrees or decisions of federal courts are improper."). The Court takes note that, in Mullis, the Ninth Circuit refused to "carve out an exception to judicial immunity to permit declaratory and injunctive relief against federal judicial officers" because "[s]hould a federal judge or other federal official performing a judicial or quasi-judicial act violate a litigant's constitutional rights in a proceeding pending in federal court, Congress has provided carefully structured procedures for taking appeals, including interlocutory appeals, and for petitioning for extraordinary writs." Id. at 1394 (emphasis omitted). C. Petition for Representation For the reasons stated above, the Court concludes that dismissal of the complaint is appropriate. Because the Court is dismissing the case, Mr. Smith's request for appointment of counsel is moot. /// /// /// /// /// /// /// /// /// /// /// /// ///

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1 2 3 4 5 6 7 8 9 10 IT IS SO ORDERED.

III.

CONCLUSION

For the foregoing reasons, the Court grants the application to proceed in forma pauperis but dismisses the complaint without prejudice.5 Although it is difficult to conceive a way in which Mr. Smith may bring suit in this Court against the Ninth Circuit, its judges, or its officers for the actions complained of, in view of Mr. Smith's pro se status, Plaintiff is given leave to file an amended complaint within thirty (30) days of the date of this order. This order disposes of Docket Nos. 2 and 3.

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For the Northern District of California

Dated: May 15, 2008 EDWARD M. CHEN United States Magistrate Judge

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Although a magistrate judge does not have jurisdiction over an action unless all parties have consented, this Court does not require the consent of Defendant in order to properly dismiss this action because Defendant has not been served and, as a result, is not a party. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (holding that magistrate judge had jurisdiction to dismiss prison inmate's action under 42 U.S.C. § 1983 as frivolous without consent of defendants because defendants had not been served yet and therefore were not parties); see also United States v. Real Property, 135 F.3d 1312, 1317 (9th Cir. 1998) (holding that magistrate judge had jurisdiction to enter default judgment in in rem forfeiture action even though property owner had not consented because 28 U.S.C. § 636(c)(1) only requires the consent of the parties and the property owner, having failed to comply with applicable filing requirements, was not a party).
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1 2 3 4 5 6 7 8 9 10 v. CERTIFICATE OF SERVICE 11
For the Northern District of California

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

GENE E. SMITH, SR., Plaintiff,

No. C-08-1860 EMC

United States District Court

UNITED STATES COURT OF APPEALS, et al., Defendants. ___________________________________/

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By: /s/ Leni Doyle Deputy Clerk Dated: May 15, 2008 RICHARD W. WIEKING, CLERK I, the undersigned, hereby certify that I am an employee in the U.S. District Court, Northern District of California. On the below date, I served a true and correct copy of the attached, by placing said copy/copies in a postage-paid envelope addressed to the person(s) listed below, by depositing said envelope in the U.S. Mail; or by placing said copy/copies into an inter-office delivery receptacle located in the Office of the Clerk. Gene E. Smith 614 Gilday Ct N. Las Vegas, NV 89030