2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Antonio Castaneda, Case No. 2:23-cv-00060-JAD-DJA 6 Plaintiff, 7 Order v. 8 David Barker, 9 Defendant. 10 11 12 Plaintiff is proceeding pro se under 28 U.S.C. § 1915 and has requested authority to 13 proceed in forma pauperis. (ECF No. 1). Plaintiff also submitted a complaint. (ECF No. 1-1). 14 Because the Court finds that Plaintiff has demonstrated an inability to prepay fees and costs, it 15 grants Plaintiff’s application to proceed in forma pauperis. However, because the Court finds 16 that Plaintiff has sued an immune defendant, it dismisses Plaintiff’s complaint without prejudice. 17 I. In forma pauperis application. 18 Plaintiff has filed the application required by § 1915(a). (ECF No. 1). Plaintiff has shown 19 an inability to prepay fees and costs or to give security for them. Although Plaintiff’s financial 20 certificate demonstrates that his balance as of December 1, 2022 was $1,250.56, months have 21 passed since then and Plaintiff explains that he owes $12,049.00 in restitution and $32,000.00 in 22 student loans. Accordingly, the request to proceed in forma pauperis will be granted pursuant to 23 28 U.S.C. § 1915(a). The Court will now review Plaintiff’s complaint. 24 II. Screening standard. 25 Upon granting an application to proceed in forma pauperis, courts additionally screen the 26 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 27 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 1 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend 2 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 3 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 4 F.3d 1103, 1106 (9th Cir. 1995). 5 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 6 complaint for failure to state a claim upon which relief can be granted. Review under Rule 7 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 8 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of 9 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 10 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 11 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 12 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 13 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 14 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 15 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 16 allegations, do not suffice. Id. at 678. Secondly, where the claims in the complaint have not 17 crossed the line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 18 U.S. at 570. Allegations of a pro se complaint are held to less stringent standards than formal 19 pleadings drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding 20 that liberal construction of pro se pleadings is required after Twombly and Iqbal). 21 III. Screening the complaint. 22 Plaintiff sues the Honorable Judge David Barker (ret.) for violating Plaintiff’s due process 23 rights and equal protection rights. (ECF No. 1-1 at 3-4). Plaintiff alleges that Judge Barker 24 retired in January of 2022 but nonetheless continued to decide motions in Plaintiff’s state-court 25 criminal case after his retirement. (Id. at 2). Plaintiff alleges that Judge Barker made his rulings 26 without authority because he was not a judge when he made them. (Id.). 27 A. The Court dismisses Plaintiff’s complaint under the judicial immunity doctrine. 1 2 “Absolute immunity is generally accorded to judges…functioning in their official 3 capacities.” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). “This immunity 4 reflects the long-standing general principle of the highest importance to the proper administration 5 of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon 6 his own convictions, without apprehension of personal consequences to himself.” Id. (internal 7 quotations omitted). Judicial immunity applies to claims arising under § 1983. See Agnew v. 8 Moody, 330 F.2d 868, 870 (9th Cir. 1964). 9 Judicial immunity is subject to certain limitations: “[j]udges are not immune from suit 10 where (1) their actions do not constitute a judicial act, and (2) they have acted in the ‘clear 11 absence of all jurisdiction.’” Wilson v. Ayers, No. 2:07-cv-01283-LRH-LRL, 2009 WL 1940102, 12 at *2 (D. Nev. July 7, 2009) (citing Stump v. Sparkman, 435 U.S. 349, 356–57 (1978)). “To 13 determine if a given action is judicial...courts focus on whether (1) the precise act is a normal 14 judicial function; (2) the events occurred in the judge’s chambers; (3) the controversy centered 15 around a case then pending before the judge; and (4) the events at issue arose directly and 16 immediately out of a confrontation with the judge in his or her official capacity.” Ashelman v. 17 Pope, 793 F.2d 1072, 1075-76 (9th Cir. 1986). “To determine if the judge acted with jurisdiction, 18 courts focus on whether the judge was acting clearly beyond the scope of subject matter 19 jurisdiction in contrast to personal jurisdiction.” Id. at 1076. Judges have been found to retain 20 immunity even when their actions are malicious or in excess of jurisdiction. See Stump, 435 U.S. 21 at 356. 22 “The question of whether a judge acted in excess of his authority in making a judicial 23 ruling is a distinct issue from the question of whether a judge acted in the clear absence of 24 jurisdiction.” Roth v. Fourth Judicial Dist., No. No. 1:19-cv-00200-DCN, 2019 WL 4670812, at 25 *3 (D. Idaho Sept. 24, 2019). “Even if a judge exceeds his authority in making a judicial ruling in 26 a particular case, that judge is immune if the case is properly before him.” Id. (citing Mireles v. 27 Waco, 502 U.S. 9, 13 (1991)).
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Antonio Castaneda, Case No. 2:23-cv-00060-JAD-DJA 6 Plaintiff, 7 Order v. 8 David Barker, 9 Defendant. 10 11 12 Plaintiff is proceeding pro se under 28 U.S.C. § 1915 and has requested authority to 13 proceed in forma pauperis. (ECF No. 1). Plaintiff also submitted a complaint. (ECF No. 1-1). 14 Because the Court finds that Plaintiff has demonstrated an inability to prepay fees and costs, it 15 grants Plaintiff’s application to proceed in forma pauperis. However, because the Court finds 16 that Plaintiff has sued an immune defendant, it dismisses Plaintiff’s complaint without prejudice. 17 I. In forma pauperis application. 18 Plaintiff has filed the application required by § 1915(a). (ECF No. 1). Plaintiff has shown 19 an inability to prepay fees and costs or to give security for them. Although Plaintiff’s financial 20 certificate demonstrates that his balance as of December 1, 2022 was $1,250.56, months have 21 passed since then and Plaintiff explains that he owes $12,049.00 in restitution and $32,000.00 in 22 student loans. Accordingly, the request to proceed in forma pauperis will be granted pursuant to 23 28 U.S.C. § 1915(a). The Court will now review Plaintiff’s complaint. 24 II. Screening standard. 25 Upon granting an application to proceed in forma pauperis, courts additionally screen the 26 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 27 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 1 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend 2 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 3 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 4 F.3d 1103, 1106 (9th Cir. 1995). 5 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 6 complaint for failure to state a claim upon which relief can be granted. Review under Rule 7 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 8 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of 9 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 10 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 11 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 12 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 13 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 14 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 15 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 16 allegations, do not suffice. Id. at 678. Secondly, where the claims in the complaint have not 17 crossed the line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 18 U.S. at 570. Allegations of a pro se complaint are held to less stringent standards than formal 19 pleadings drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding 20 that liberal construction of pro se pleadings is required after Twombly and Iqbal). 21 III. Screening the complaint. 22 Plaintiff sues the Honorable Judge David Barker (ret.) for violating Plaintiff’s due process 23 rights and equal protection rights. (ECF No. 1-1 at 3-4). Plaintiff alleges that Judge Barker 24 retired in January of 2022 but nonetheless continued to decide motions in Plaintiff’s state-court 25 criminal case after his retirement. (Id. at 2). Plaintiff alleges that Judge Barker made his rulings 26 without authority because he was not a judge when he made them. (Id.). 27 A. The Court dismisses Plaintiff’s complaint under the judicial immunity doctrine. 1 2 “Absolute immunity is generally accorded to judges…functioning in their official 3 capacities.” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). “This immunity 4 reflects the long-standing general principle of the highest importance to the proper administration 5 of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon 6 his own convictions, without apprehension of personal consequences to himself.” Id. (internal 7 quotations omitted). Judicial immunity applies to claims arising under § 1983. See Agnew v. 8 Moody, 330 F.2d 868, 870 (9th Cir. 1964). 9 Judicial immunity is subject to certain limitations: “[j]udges are not immune from suit 10 where (1) their actions do not constitute a judicial act, and (2) they have acted in the ‘clear 11 absence of all jurisdiction.’” Wilson v. Ayers, No. 2:07-cv-01283-LRH-LRL, 2009 WL 1940102, 12 at *2 (D. Nev. July 7, 2009) (citing Stump v. Sparkman, 435 U.S. 349, 356–57 (1978)). “To 13 determine if a given action is judicial...courts focus on whether (1) the precise act is a normal 14 judicial function; (2) the events occurred in the judge’s chambers; (3) the controversy centered 15 around a case then pending before the judge; and (4) the events at issue arose directly and 16 immediately out of a confrontation with the judge in his or her official capacity.” Ashelman v. 17 Pope, 793 F.2d 1072, 1075-76 (9th Cir. 1986). “To determine if the judge acted with jurisdiction, 18 courts focus on whether the judge was acting clearly beyond the scope of subject matter 19 jurisdiction in contrast to personal jurisdiction.” Id. at 1076. Judges have been found to retain 20 immunity even when their actions are malicious or in excess of jurisdiction. See Stump, 435 U.S. 21 at 356. 22 “The question of whether a judge acted in excess of his authority in making a judicial 23 ruling is a distinct issue from the question of whether a judge acted in the clear absence of 24 jurisdiction.” Roth v. Fourth Judicial Dist., No. No. 1:19-cv-00200-DCN, 2019 WL 4670812, at 25 *3 (D. Idaho Sept. 24, 2019). “Even if a judge exceeds his authority in making a judicial ruling in 26 a particular case, that judge is immune if the case is properly before him.” Id. (citing Mireles v. 27 Waco, 502 U.S. 9, 13 (1991)). The difference between acting in the absence of jurisdiction and [I]f a probate judge, with jurisdiction over only wills and estates, 1 should try a criminal case, he would be acting in the clear absence 2 of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should 3 convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. 4 5 Stump, 435 U.S. at 357 n.7. 6 Here, Judge Barker is entitled to absolute immunity because he was functioning in his 7 official capacity. Plaintiff’s allegations describe Judge Barker taking judicial action by ruling on 8 motions in Plaintiff’s criminal case. And, although Plaintiff alleges that Judge Barker “made 9 these rulings…without judicial or jurisdictional authority,” Article 6, Section 19, Subsection 10 (1)(c) of the Nevada Constitution authorizes the type of rulings in Plaintiff’s allegations. That 11 provision states that “[t]he chief justice may…[r]ecall to active service any retired justice or judge 12 of the court system who consents to such recall and who has not been removed or retired for 13 cause or defeated for retention in office, and may assign him to appropriate temporary duty within 14 the court system.” NEV. CONST. art. VI, § 19(1)(c). 15 It appears from Plaintiff’s allegations that Judge Barker was presiding over Plaintiff’s 16 criminal case before Judge Barker retired. Authorized to serve as a judge even after retirement 17 under the Nevada Constitution, Judge Barker would not have been acting in the clear absence of 18 jurisdiction when he ruled on Plaintiff’s motions. And absent allegations that Judge Barker was 19 acting outside the scope or in the absence of this authority, the Court does not find that Plaintiff 20 has alleged cognizable claims against Judge Barker. It thus dismisses Plaintiff’s complaint. 21 However, because Plaintiff could potentially amend his complaint to allege that Judge Barker 22 acted outside the scope or in the absence of authority, the Court grants Plaintiff leave to amend. 23 24 25 26 /// 27 /// 1 IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma 2 pauperis (ECF No. 1) is granted. Plaintiff will not be required to pay an initial installment fee. 3 Nevertheless, the full filing fee will still be due, pursuant to 28 U.S.C. § 1915, as amended by the 4 Prison Litigation Reform Act. The movant herein is permitted to maintain this action to 5 conclusion without the necessity of prepayment of fees or costs or the giving of security therefor. 6 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the 7 Prison Litigation Reform Act, the Wyoming Correctional Facility will forward payments from the 8 account of Antonio Castaneda, Inmate No. 1208412, to the Clerk of the United States District 9 Court, District of Nevada, 20% of the preceding month’s deposits (in months that the account 10 exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk of Court is 11 kindly directed to send a copy of this order to the Finance Division of the Clerk’s Office. The 12 Clerk of Court is also kindly directed to send a copy of this order to the attention of Chief of 13 Inmate Services for the Nevada Department of Corrections at P.O. Box 7011, Carson City, 14 NV 89702. 15 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise 16 unsuccessful, the full filing fee will still be due, pursuant to 28 U.S.C. § 1915, as amended by the 17 Prison Litigation Reform Act. 18 IT IS FURTHER ORDERED that Plaintiff’s complaint is dismissed without prejudice 19 and with leave to amend. 20 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to file Plaintiff’s 21 complaint (ECF No. 1-1) on the docket but shall not issue summons. 22 IT IS FURTHER ORDERED that Plaintiff will have until June 5, 2023 to file an 23 amended complaint to the extent he believes he can correct the noted deficiencies. If Plaintiff 24 chooses to amend the complaint, Plaintiff is informed that the Court cannot refer to a prior 25 pleading (i.e., the original complaint) to make the amended complaint complete. This is because, 26 generally, an amended complaint supersedes the original complaint. Local Rule 15-1(a) requires 27 that an amended complaint be complete without reference to any prior pleading. Once a plaintiff 1 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 2 of each Defendant must be sufficiently alleged. 3 IT IS FURTHER ORDERED that if Plaintiff fails to file an amended complaint on or 4 before June 5, 2023 the Court shall recommend dismissal. 5 6 DATED: May 5, 2023 7 DANIEL J. ALBREGTS 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27