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12 Plaintiff, ORDER (1) GRANTING MOTION 13 v. TO PROCEED IFP AND (2) DISMISSING COMPLAINT UNDER 42 U.S.C. § 1915(e)(2)(B) COUNTY OF SAN DIEGO, HON. 15 MICHAEL S. GROCH PRESIDING; (ECF Nos. 1, 2) FOURTH DISTRICT, DIV. ONE, HON. 17 JUSTICE JUDITH MCCONNELL, 18 PRESIDING; COURT REPORTERS BOARD OF CALIFORNIA; JENNIFER 19 ESQUIVEL, AS THE OFFICIAL 20 COURT REPORTER; AND DOES 1-20, 21 Defendants. 22 23 Presently before the Court is Plaintiff Burk N. Ashford’s Complaint (“Compl.,” ECF 24 No. 1) and Motion to Proceed in forma pauperis (“IFP Mot.,” ECF No. 2.) For the reasons 25 set forth below, Plaintiff’s Motion to Proceed IFP is GRANTED and Plaintiff’s Complaint 26 is DISMISSED WITHOUT PREJUDICE. 27 / / / 28 / / / 1 I. Factual Background 2 Plaintiff filed a state court case that went to trial. (See Compl. at 2.) Plaintiff alleges 3 due process violations throughout the trial. (See id.) Plaintiff then filed an appeal and 4 requested a free trial transcript. (See id.) Plaintiff’s request for a free transcript was denied. 5 (See id. at 3.) Plaintiff claims his right to due process under the Fifth and Fourteenth 6 Amendments was violated by the withholding of the court reporter’s trial transcript. (See 7 id. at 4.) Plaintiff alleges that the “with-holding of the reporter’s trial transcript is in fact 8 . . . the taking of property” and “may also be classified as Elder Abuse.” (See id.) 9 Plaintiff sues the following Defendants: 1) California Superior Court of County of 10 San Diego, Hon. Michael S. Groch Presiding, 2) California Court of Appeal, Fourth 11 District, Div. One, Hon. Justice Judith McConnell, Presiding, 3) the Court Reporters Board 12 of California, and 4) Jennifer Esquivel, as the Official Court Reporter. (See generally id.) 13 Plaintiff requests that his state court case be reinstated and he be granted “receipt of his 14 Report’s Trial Transcript.” (Id. at 5.) Alternatively, Plaintiff requests monetary damages 15 totaling $4,030,000. (See id.) 16 II. Motion to Proceed IFP 17 All parties instituting any civil action, suit, or proceeding in a district court of the 18 United States, except an application for writ of habeas corpus, must pay a filing fee of 19 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 20 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 21 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 22 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A plaintiff seeking IFP status must allege 23 poverty “with some particularity, definiteness and certainty.” Escobedo v. Applebees, 787 24 F.3d 1226, 1234 (9th Cir. 2015) (citing United States v. McQuade, 647 F.2d 938, 940 (9th 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to 28 1 Cir. 1981)). “An affidavit in support of an IFP application is sufficient where it alleges 2 that the affiant cannot pay the court costs and still afford the necessities of life.” Id. While 3 the IFP statute does not itself define what constitutes insufficient assets, a party need not 4 “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 5 U.S. 331, 339 (1948). 6 Here, Plaintiff represents that he has $230.86 in cash or a bank account, and he 7 receives $1,347 per month, with $985 in monthly expenses. (See IFP Mot. at 2–3.) Further, 8 Plaintiff submits a record that his bank account balance was $30.86 on January 30, 2026. 9 (See id. at 4.) Because Plaintiff’s income and expenses only leave him with an excess of 10 $362 a month, the Court is persuaded that Plaintiff cannot pay the court costs and still 11 afford the necessities of life. Accordingly, the Court GRANTS Plaintiff’s Motion to 12 Proceed IFP. 13 III. Screening of the Complaint Pursuant to 42 U.S.C. § 1915(e)(2)(B) 14 A. Legal Standard 15 The Court must screen all IFP complaints before service on defendants to ensure that 16 they are not frivolous or malicious, that they state a claim on which relief may be granted, 17 and that they do not seek monetary relief against an immune defendant. 28 U.S.C. 18 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding 19 that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). A 20 “frivolous” complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 21 490 U.S. 319, 325 (1989). A complaint is also “frivolous” if it “fails to establish subject 22 matter jurisdiction or standing.” L.R. v. Mueller, No. 23-CV-03421-PHK, 2025 WL 23 1635505, at *2 (N.D. Cal. June 9, 2025). 24 “The standard for determining whether a plaintiff has failed to state a claim upon 25 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 26 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 27 1108, 1112 (9th Cir. 2012). To survive screening, all complaints must include a “short and 28 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 1 8(a)(2). A complaint “must contain sufficient factual matter, accepted as true, to ‘state a 2 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 3 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially 4 plausible “when the plaintiff pleads factual content that allows the court to draw the 5 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 6 U.S. at 678.2 7 B. Analysis 8 1. The Eleventh Amendment 9 Plaintiff sues all Defendants “in their Official Capacity and not personally.” (Compl. 10 at 1.) The Eleventh Amendment prohibits federal courts from hearing suits brought against 11 a nonconsenting state or arm of the state. See Munoz v. Super. Ct. of Los Angeles Cnty., 12 91 F.4th 977, 980 (9th Cir. 2024).
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1 2 3 4 5 6 7 10 11 BURK N. ASHFORD, Case No.: 26-CV-1032 TWR (MSB)
12 Plaintiff, ORDER (1) GRANTING MOTION 13 v. TO PROCEED IFP AND (2) DISMISSING COMPLAINT UNDER 42 U.S.C. § 1915(e)(2)(B) COUNTY OF SAN DIEGO, HON. 15 MICHAEL S. GROCH PRESIDING; (ECF Nos. 1, 2) FOURTH DISTRICT, DIV. ONE, HON. 17 JUSTICE JUDITH MCCONNELL, 18 PRESIDING; COURT REPORTERS BOARD OF CALIFORNIA; JENNIFER 19 ESQUIVEL, AS THE OFFICIAL 20 COURT REPORTER; AND DOES 1-20, 21 Defendants. 22 23 Presently before the Court is Plaintiff Burk N. Ashford’s Complaint (“Compl.,” ECF 24 No. 1) and Motion to Proceed in forma pauperis (“IFP Mot.,” ECF No. 2.) For the reasons 25 set forth below, Plaintiff’s Motion to Proceed IFP is GRANTED and Plaintiff’s Complaint 26 is DISMISSED WITHOUT PREJUDICE. 27 / / / 28 / / / 1 I. Factual Background 2 Plaintiff filed a state court case that went to trial. (See Compl. at 2.) Plaintiff alleges 3 due process violations throughout the trial. (See id.) Plaintiff then filed an appeal and 4 requested a free trial transcript. (See id.) Plaintiff’s request for a free transcript was denied. 5 (See id. at 3.) Plaintiff claims his right to due process under the Fifth and Fourteenth 6 Amendments was violated by the withholding of the court reporter’s trial transcript. (See 7 id. at 4.) Plaintiff alleges that the “with-holding of the reporter’s trial transcript is in fact 8 . . . the taking of property” and “may also be classified as Elder Abuse.” (See id.) 9 Plaintiff sues the following Defendants: 1) California Superior Court of County of 10 San Diego, Hon. Michael S. Groch Presiding, 2) California Court of Appeal, Fourth 11 District, Div. One, Hon. Justice Judith McConnell, Presiding, 3) the Court Reporters Board 12 of California, and 4) Jennifer Esquivel, as the Official Court Reporter. (See generally id.) 13 Plaintiff requests that his state court case be reinstated and he be granted “receipt of his 14 Report’s Trial Transcript.” (Id. at 5.) Alternatively, Plaintiff requests monetary damages 15 totaling $4,030,000. (See id.) 16 II. Motion to Proceed IFP 17 All parties instituting any civil action, suit, or proceeding in a district court of the 18 United States, except an application for writ of habeas corpus, must pay a filing fee of 19 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 20 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 21 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 22 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A plaintiff seeking IFP status must allege 23 poverty “with some particularity, definiteness and certainty.” Escobedo v. Applebees, 787 24 F.3d 1226, 1234 (9th Cir. 2015) (citing United States v. McQuade, 647 F.2d 938, 940 (9th 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to 28 1 Cir. 1981)). “An affidavit in support of an IFP application is sufficient where it alleges 2 that the affiant cannot pay the court costs and still afford the necessities of life.” Id. While 3 the IFP statute does not itself define what constitutes insufficient assets, a party need not 4 “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 5 U.S. 331, 339 (1948). 6 Here, Plaintiff represents that he has $230.86 in cash or a bank account, and he 7 receives $1,347 per month, with $985 in monthly expenses. (See IFP Mot. at 2–3.) Further, 8 Plaintiff submits a record that his bank account balance was $30.86 on January 30, 2026. 9 (See id. at 4.) Because Plaintiff’s income and expenses only leave him with an excess of 10 $362 a month, the Court is persuaded that Plaintiff cannot pay the court costs and still 11 afford the necessities of life. Accordingly, the Court GRANTS Plaintiff’s Motion to 12 Proceed IFP. 13 III. Screening of the Complaint Pursuant to 42 U.S.C. § 1915(e)(2)(B) 14 A. Legal Standard 15 The Court must screen all IFP complaints before service on defendants to ensure that 16 they are not frivolous or malicious, that they state a claim on which relief may be granted, 17 and that they do not seek monetary relief against an immune defendant. 28 U.S.C. 18 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding 19 that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). A 20 “frivolous” complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 21 490 U.S. 319, 325 (1989). A complaint is also “frivolous” if it “fails to establish subject 22 matter jurisdiction or standing.” L.R. v. Mueller, No. 23-CV-03421-PHK, 2025 WL 23 1635505, at *2 (N.D. Cal. June 9, 2025). 24 “The standard for determining whether a plaintiff has failed to state a claim upon 25 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 26 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 27 1108, 1112 (9th Cir. 2012). To survive screening, all complaints must include a “short and 28 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 1 8(a)(2). A complaint “must contain sufficient factual matter, accepted as true, to ‘state a 2 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 3 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially 4 plausible “when the plaintiff pleads factual content that allows the court to draw the 5 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 6 U.S. at 678.2 7 B. Analysis 8 1. The Eleventh Amendment 9 Plaintiff sues all Defendants “in their Official Capacity and not personally.” (Compl. 10 at 1.) The Eleventh Amendment prohibits federal courts from hearing suits brought against 11 a nonconsenting state or arm of the state. See Munoz v. Super. Ct. of Los Angeles Cnty., 12 91 F.4th 977, 980 (9th Cir. 2024). Accordingly, Plaintiff’s claims against the California 13 Superior Court, County of San Diego and the California Court of Appeal, Fourth District, 14 Division One, are barred by the Eleventh Amendment because state courts are arms of the 15 state. See id. (“[T]he Superior Court of the State of California has sovereign immunity as 16 an arm of the state.”) Similarly, Plaintiff’s claims against Justice Michael S. Groch and 17 Justice Judith McConnell are barred by the Eleventh Amendment because “state court 18 judges cannot be sued in federal court in their judicial capacity under the Eleventh 19 Amendment.” Id. at 981. Further, the Eleventh Amendment bars suit against Jennifer 20 Esquivel, as the official court reporter. See Simmons v. Sacramento Cnty. Superior Court, 21 318 F.3d 1156, 1161 (9th Cir. 2003) (“Plaintiff cannot state a claim against the Sacramento 22 County Superior Court (or its employees), because such suits are barred by the Eleventh 23 Amendment.”). Thus, Plaintiff’s claims are barred by the Eleventh Amendment and 24 25
26 2 While Plaintiff includes Does 1-20 and the Court Reporters Board of California in the caption of the Complaint, Plaintiff does not make any allegations relating to Does 1-20 and the only allegations 27 against the Court Reporters Board of California are that a representative became silent to Plaintiff’s inquires. (See Compl. at 3.) To the extent Plaintiff’s claims are directed at these entities, they are subject 28 1 subject to dismissal under § 1915(e)(2)(B)(iii) because Plaintiff seeks monetary relief 2 against defendants who are immune from such relief. 3 2. Rooker-Feldman Doctrine 4 Further, to the extent Plaintiff’s seeks injunctive relief, his claims are barred by the 5 Rooker-Feldman doctrine. The Rooker-Feldman doctrine provides that “a losing party in 6 state court is barred from seeking what in substance would be appellate review of the state 7 judgment in a United States District Court, based on the losing party’s claim that the state 8 judgment itself violates the loser’s federal rights.” Doe v. Mann, 415 F.3d 1038, 1041 (9th 9 Cir. 2005) (quoting Johnson v. De Grandy, 512 U.S. 997, 1005–06 (1994)). Here, Plaintiff 10 requests that his state case be “reinstated,” and he be “granted receipt of his Reporter’s 11 Trial Transcript.” (Compl. at 5.) Plaintiff is in effect asking for this Court to overturn 12 orders made by state court judges and thus his claim is barred by the Rooker-Feldman 13 doctrine. See Cooper v. Ramos, 704 F.3d 772, 781 (9th Cir. 2012) (finding that when the 14 plaintiff asserted legal error by the state court and requested relief from the state court 15 judgment, the plaintiff’s claim was barred by Rooker-Feldman and it was immaterial that 16 the claim was framed as a constitutional challenge); see also Arellano v. Lamborn, No. 17 3:19-CV-02360-JAH-LL, 2020 WL 376148, at *4 (S.D. Cal. Jan. 23, 2020) (“Because 18 Plaintiff appears to seek this Court’s assistance in overturning orders made by state court 19 judges, his claims are inextricably intertwined with the state court proceedings, and are 20 barred by the Rooker-Feldman doctrine.”). Thus, to the extent that Plaintiff sues 21 Defendants for injunctive relief, his suit is subject to dismissal under § 1915(e)(2)(B)(i) 22 because the Court lacks subject matter jurisdiction. 23 III. Conclusion 24 For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Proceed IFP 25 and DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint under § 1915(e)(2)(B). 26 Plaintiff may file an Amended Complaint within 60 days leave from the date of this Order 27 which cures the deficiencies noted. Plaintiff’s Amended Complaint must be complete by 28 itself without reference to the original pleading. Defendants not named and any claim not 1 |/re-alleged in the amended complaint will be considered waived. See S.D. Cal. Civ. L.R. 2 || 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 3 || 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 4 || F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are 5 ||not re-alleged in an amended pleading may be “considered waived if not repled”). J 6 || Plaintiff fails to file an Amended Complaint within 60 days, the Court will enter a final 7 || Order dismissing this civil action pursuant to 28 U.S.C. § 1915(e)(2)(B) and failure to 8 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 9 || F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity 10 |/to fix his complaint, a district court may convert the dismissal of the complaint into 11 dismissal of the entire action.”). 13 ||Dated: March 19, 2026 —— (2 15 Honorable Todd W. Robinson 6 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28