1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 TONY LAMAR CARD, Case No. 3:24-cv-5932-BHS 7 Plaintiff, v. 8 REPORT AND RECOMMENDATION DAVID W. CHRISTEL, 9 Defendant. Noted for December 24, 2024 10
11 The District Court has referred Plaintiff Tony Lamar Card’s pending Application to 12 Proceed In Forma Pauperis (“IFP”) and proposed complaint to this Magistrate Judge 13 under Amended General Order 12-24. On November 7, 2024, Plaintiff filed a proposed 14 civil complaint and an application to proceed in forma pauperis (“IFP”). See Dkts. 1; 1-1. 15 In determining whether IFP should be granted, the Court has reviewed the 16 proposed complaint and recommends the Court dismiss because Plaintiff has failed to 17 state a claim upon which relief can be granted. The Court should not grant leave to 18 amend. The Court recommends therefore this case should be dismissed with prejudice 19 and the Application to Proceed IFP (Dkt. 1) should be denied. 20 DISCUSSION 21 The Court has analyzed the proposed complaint. Because Plaintiff filed this 22 complaint pro se, the Court has construed the pleadings liberally and has afforded 23 24 1 Plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep’t, 839 2 F.2d 621, 623 (9th Cir.1988). 3 In his proposed complaint, Plaintiff names Judge David W. Christel as the sole 4 defendant. Dkt. 1-1. Plaintiff asserts he has been deprived of federal rights, that Judge
5 Christel violated a statute regarding impersonating a federal judge, and that Judge 6 Christel sent documents not signed in judicial capacity or providing a court seal. Dkt. 1- 7 1, at 3, 5. 8 The district court may permit indigent litigants to proceed IFP upon completion of 9 a proper affidavit of indigency. See 28 U.S.C. § 1915(a). But the Court must subject 10 each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening 11 and order the sua sponte dismissal of any case that is “frivolous or malicious,” “fails to 12 state a claim on which relief may be granted,” or “seeks monetary relief against a 13 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 14 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. §
15 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 16 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” 17 the court to sua sponte dismiss an IFP complaint that fails to state a claim). 18 An IFP complaint is frivolous if “it ha[s] no arguable substance in law or fact.” 19 Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citing Rizzo v. 20 Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin v. Murphy, 745 F.2d 21 1221, 1228 (9th Cir. 1984). Furthermore, a federal court may dismiss a case sua sponte 22 under Fed. R. Civ. P. 12 (b)(6) when the plaintiff has not stated a claim upon which 23 relief maybe granted. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th
24 1 Cir.1987) (“A trial court may dismiss a claim sua sponte under Fed. R. Civ. P. 12 (b)(6). 2 Such a dismissal may be made without notice where the claimant cannot possibly win 3 relief.”); see also Mallard v. United States Dist. Court, 490 U.S. 296, 307-08 (1989) 4 (noting there is little doubt a federal court would have the power to dismiss an
5 unfounded complaint sua sponte, even in absence of an express statutory provision). 6 “Anglo– American common law has long recognized judicial immunity, a 7 sweeping form of immunity for acts performed by judges that relate to the judicial 8 process.” In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002)(internal quotations omitted). 9 “Absolute immunity fails to attach to judicial officers only when they act clearly and 10 completely outside the scope of their jurisdiction.” Demoran v. Witt, 781 F.2d 155, 158 11 (9th Cir. 1985)(internal citations omitted). 12 Plaintiff appears to allege Judge Christel, in a different case, signed a document 13 that was not signed or mailed in “judicial capacity” or with the court seal. Dkt. 1-1 at 3, 5. 14 On the face of the complaint, allegations of this complaint relate to the judicial process,
15 and therefore absolute judicial immunity would apply. See Olson v. Idaho State Board of 16 Medicine, 363 F.3d 916 (9th Cir. 2004) (noting that judges are entitled to absolute 17 immunity for actions taken within their jurisdiction). 18 Moreover, Plaintiff fails to allege any facts that support his conclusion that Judge 19 Christel’s signature was not legally binding and resulted in a violation of his rights. See 20 Dkt. 1-1. In any event, “[a]llegations of malice or bad faith in the execution of the 21 officer’s duties are insufficient to sustain the complaint when the officer possesses 22 absolute judicial immunity.” Demoran, 781 F.2d at 158. This case has no arguable basis 23
24 1 in law or fact. Therefore, the proposed complaint should be dismissed because it lacks 2 merit and fails to state a claim. 3 Unless it is absolutely clear that no amendment can cure the defect, a pro se 4 litigant has a right to notice of the complaint’s deficiencies and an opportunity to amend
5 before dismissal of the action. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 6 1995). In this case, the complaint on its face shows that absolute judicial immunity 7 would apply; any attempt by Plaintiff to amend the proposed complaint would therefore 8 be futile. The Court should dismiss the complaint, and not give Plaintiff leave to amend 9 his proposed complaint. 10 Further, a district court may deny leave to proceed IFP at the start if it appears 11 from the face of the proposed complaint that the action is frivolous or without merit. 12 Minetti v. Port of Seattle, 152 F.3d 1113 (9th Cir. 1998); Tripati v. First Nat’l Bank & 13 Trust, 821 F. 2d 1368, 1370 (9th Cir. 1987). Based on the above analysis of the 14 deficiencies in the proposed complaint, the Court recommends denying Plaintiff’s
15 Application to Proceed IFP (Dkt. 1). 16 If Plaintiff appeals an order entered in this case and/or appeals dismissal of this 17 case, IFP status should be denied by this Court, without prejudice to Plaintiff to file with 18 the Ninth Circuit U.S. Court of Appeals an application to proceed IFP. 19 CONCLUSION 20 For the above stated reasons, the undersigned recommends Plaintiff’s 21 Application to Proceed IFP (Dkt.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 TONY LAMAR CARD, Case No. 3:24-cv-5932-BHS 7 Plaintiff, v. 8 REPORT AND RECOMMENDATION DAVID W. CHRISTEL, 9 Defendant. Noted for December 24, 2024 10
11 The District Court has referred Plaintiff Tony Lamar Card’s pending Application to 12 Proceed In Forma Pauperis (“IFP”) and proposed complaint to this Magistrate Judge 13 under Amended General Order 12-24. On November 7, 2024, Plaintiff filed a proposed 14 civil complaint and an application to proceed in forma pauperis (“IFP”). See Dkts. 1; 1-1. 15 In determining whether IFP should be granted, the Court has reviewed the 16 proposed complaint and recommends the Court dismiss because Plaintiff has failed to 17 state a claim upon which relief can be granted. The Court should not grant leave to 18 amend. The Court recommends therefore this case should be dismissed with prejudice 19 and the Application to Proceed IFP (Dkt. 1) should be denied. 20 DISCUSSION 21 The Court has analyzed the proposed complaint. Because Plaintiff filed this 22 complaint pro se, the Court has construed the pleadings liberally and has afforded 23 24 1 Plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep’t, 839 2 F.2d 621, 623 (9th Cir.1988). 3 In his proposed complaint, Plaintiff names Judge David W. Christel as the sole 4 defendant. Dkt. 1-1. Plaintiff asserts he has been deprived of federal rights, that Judge
5 Christel violated a statute regarding impersonating a federal judge, and that Judge 6 Christel sent documents not signed in judicial capacity or providing a court seal. Dkt. 1- 7 1, at 3, 5. 8 The district court may permit indigent litigants to proceed IFP upon completion of 9 a proper affidavit of indigency. See 28 U.S.C. § 1915(a). But the Court must subject 10 each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening 11 and order the sua sponte dismissal of any case that is “frivolous or malicious,” “fails to 12 state a claim on which relief may be granted,” or “seeks monetary relief against a 13 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 14 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. §
15 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 16 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” 17 the court to sua sponte dismiss an IFP complaint that fails to state a claim). 18 An IFP complaint is frivolous if “it ha[s] no arguable substance in law or fact.” 19 Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citing Rizzo v. 20 Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin v. Murphy, 745 F.2d 21 1221, 1228 (9th Cir. 1984). Furthermore, a federal court may dismiss a case sua sponte 22 under Fed. R. Civ. P. 12 (b)(6) when the plaintiff has not stated a claim upon which 23 relief maybe granted. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th
24 1 Cir.1987) (“A trial court may dismiss a claim sua sponte under Fed. R. Civ. P. 12 (b)(6). 2 Such a dismissal may be made without notice where the claimant cannot possibly win 3 relief.”); see also Mallard v. United States Dist. Court, 490 U.S. 296, 307-08 (1989) 4 (noting there is little doubt a federal court would have the power to dismiss an
5 unfounded complaint sua sponte, even in absence of an express statutory provision). 6 “Anglo– American common law has long recognized judicial immunity, a 7 sweeping form of immunity for acts performed by judges that relate to the judicial 8 process.” In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002)(internal quotations omitted). 9 “Absolute immunity fails to attach to judicial officers only when they act clearly and 10 completely outside the scope of their jurisdiction.” Demoran v. Witt, 781 F.2d 155, 158 11 (9th Cir. 1985)(internal citations omitted). 12 Plaintiff appears to allege Judge Christel, in a different case, signed a document 13 that was not signed or mailed in “judicial capacity” or with the court seal. Dkt. 1-1 at 3, 5. 14 On the face of the complaint, allegations of this complaint relate to the judicial process,
15 and therefore absolute judicial immunity would apply. See Olson v. Idaho State Board of 16 Medicine, 363 F.3d 916 (9th Cir. 2004) (noting that judges are entitled to absolute 17 immunity for actions taken within their jurisdiction). 18 Moreover, Plaintiff fails to allege any facts that support his conclusion that Judge 19 Christel’s signature was not legally binding and resulted in a violation of his rights. See 20 Dkt. 1-1. In any event, “[a]llegations of malice or bad faith in the execution of the 21 officer’s duties are insufficient to sustain the complaint when the officer possesses 22 absolute judicial immunity.” Demoran, 781 F.2d at 158. This case has no arguable basis 23
24 1 in law or fact. Therefore, the proposed complaint should be dismissed because it lacks 2 merit and fails to state a claim. 3 Unless it is absolutely clear that no amendment can cure the defect, a pro se 4 litigant has a right to notice of the complaint’s deficiencies and an opportunity to amend
5 before dismissal of the action. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 6 1995). In this case, the complaint on its face shows that absolute judicial immunity 7 would apply; any attempt by Plaintiff to amend the proposed complaint would therefore 8 be futile. The Court should dismiss the complaint, and not give Plaintiff leave to amend 9 his proposed complaint. 10 Further, a district court may deny leave to proceed IFP at the start if it appears 11 from the face of the proposed complaint that the action is frivolous or without merit. 12 Minetti v. Port of Seattle, 152 F.3d 1113 (9th Cir. 1998); Tripati v. First Nat’l Bank & 13 Trust, 821 F. 2d 1368, 1370 (9th Cir. 1987). Based on the above analysis of the 14 deficiencies in the proposed complaint, the Court recommends denying Plaintiff’s
15 Application to Proceed IFP (Dkt. 1). 16 If Plaintiff appeals an order entered in this case and/or appeals dismissal of this 17 case, IFP status should be denied by this Court, without prejudice to Plaintiff to file with 18 the Ninth Circuit U.S. Court of Appeals an application to proceed IFP. 19 CONCLUSION 20 For the above stated reasons, the undersigned recommends Plaintiff’s 21 Application to Proceed IFP (Dkt. 1) should be denied, this case should be dismissed 22 with prejudice as frivolous and for failure to state a claim. Any IFP status on appeal 23
24 1 should be denied without prejudice to Plaintiff to file with the Ninth Circuit U.S. Court of 2 Appeals an application to proceed IFP. 3 Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall 4 have fourteen (14) days from service of this report to file written objections. See also
5 Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for 6 purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can 7 result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 8 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations 9 omitted). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the Clerk is 10 directed to set the matter for consideration on December 24, 2024, as noted in the 11 caption. 12 13 Dated this 9th day of December, 2024. 14
15 A 16 Theresa L. Fricke 17 United States Magistrate Judge
18 19 20 21 22 23 24