1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEN DINCKAN, Case No.: 25-cv-2160-RSH-DDL
12 Plaintiff, ORDER: (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IFP; AND (2) 14 STEPHANIE MENDEZ, et al., DISMISSING COMPLAINT 15 Defendants. WITHOUT LEAVE TO AMEND
16 [ECF No. 2] 17 18 19 On August 21, 2025, plaintiff Ken Dinckan, proceeding pro se, commenced this 20 action and filed a motion to proceed in forma pauperis (“IFP”). ECF Nos. 1 (“Compl.”); 21 2. For the reasons below, the Court grants Plaintiff’s IFP motion and dismisses the 22 Complaint without leave to amend. 23 I. MOTION TO PROCEED IFP 24 All parties instituting a civil action, suit, or proceeding in a district court of the 25 United States, other than a petition for writ of habeas corpus, must pay a filing fee. 28 26 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee only 27 if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)(1). See Moore 28 v. Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011) (“All persons, not 1 just prisoners, may seek IFP status.”); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 2 1999). A federal court may authorize the commencement of an action without the 3 prepayment of fees if the party submits an affidavit, including a statement of assets, 4 showing an inability to pay the required filing fee. 28 U.S.C. § 1915(a). “An affidavit in 5 support of an IFP application is sufficient where it alleges that the affiant cannot pay the 6 court costs and still afford the necessities of life[.]” Escobedo v. Applebees, 787 F.3d 1226, 7 1234 (9th Cir. 2015). 8 Here, Plaintiff reports he receives $1,400 per month in social security benefits and 9 has monthly expenses totaling $2,860. ECF No. 2 at 3. In addition, Plaintiff claims he is 10 permanently disabled, unable to work, and possesses no savings or assets other than a 11 vehicle. Id. at 2. The Court concludes Plaintiff has adequately demonstrated that he is 12 unable to pay the filing fee at this time for this action. 13 II. MANDATORY SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 14 A. Standard of Review 15 A complaint filed by any person seeking to proceed IFP pursuant to 28 U.S.C. § 16 1915(a) is subject to sua sponte review and dismissal should the Court determine, inter 17 alia, that it is frivolous, malicious, or fails to state a claim upon which relief may be 18 granted. See 28 U.S.C. § 1915(e)(2)(B); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 19 2000) (“[S]ection 1915(e) applies to all in forma pauperis complaints, not just those filed 20 by prisoners.”). 21 “The standard for determining whether a plaintiff has failed to state a claim upon 22 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 23 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 24 1108, 1112 (9th Cir. 2012). That is, a complaint must “contain sufficient factual matter . . 25 . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 26 (2009) (internal quotation marks omitted). While detailed factual allegations are not 27 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 28 conclusory statements, do not suffice” to state a claim. Id. 1 B. Plaintiff’s Allegations 2 The instant case arises out of family court proceedings in the Superior Court of 3 California, County of San Diego. Plaintiff alleges the family court disregarded reports and 4 testimony, accepted false statements, and consequently ordered Plaintiff to make child 5 support payments amounting to half of Plaintiff’s income. ECF No. 1 at 1. Plaintiff 6 allegedly sought to set aside this judgment, but his motion was denied by the supervising 7 state court judge. Id. Plaintiff also separately alleges he was arrested in August 30, 2022 8 based on “fabricated” claims and that the arrest continues to be “used against [him].” Id. 9 Plaintiff asserts claims against defendants Stephanie Mendez, David Pomeranz, Soner 10 Gizer, and the Honorable Brad Weinreb for violation of his federal constitutional rights to 11 due process, equal protection, free speech, and to be free from unlawful search and seizure. 12 Id. at 2. 13 C. Analysis 14 1. Mendez, Pomeranz, Gizer 15 The Court first addresses Plaintiff’s claims against defendants Mendez, Pomeranz, 16 and Gizer. 17 Absent state action, private individuals are not subject to suit for constitutional 18 violations. See Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) 19 (“Individuals do, indeed, have a right to be free from state violations of the constitutional 20 guarantees to be secure in one’s person and home, not to be deprived of life, liberty, or 21 property without due process, and to be free from cruel and unusual punishment. 22 Individuals, however, have no right to be free from the infliction of such harm by private 23 actors.”); see also United States v. Jacobsen, 466 U.S. 109, 113 (1984) (noting the right to 24 be free from unreasonable search or seizure is “wholly inapplicable to a search or seizure, 25 even an unreasonable one, effected by a private individual not acting as an agent of the 26 Government or with the participation or knowledge of any governmental official.”) 27 (internal quotation marks omitted); United States v. Harris, 106 U.S. 629, 643 (1882) (“A 28 private person cannot make constitutions or laws, nor can he with authority construe them, 1 nor can he administer or execute them.”); Apao v. Bank of N.Y., 324 F.3d 1091, 1093 (9th 2 Cir. 2003) (noting the Fourteenth Amendment’s due process clause “shields citizens from 3 unlawful governmental actions, but does not affect conduct by private entities.”); Sliwinski 4 v. Rhodes, No. CV 25-51-H-DWM, 2025 WL 2402020, at *3 (D. Mont. Aug. 19, 2025) 5 (“A private person cannot violate the First Amendment rights of another individual, 6 because the Amendment is directed at the government[.]”). 7 Similarly, “[t]he Civil Rights Act codified in 42 U.S.C. § 1983 provides a cause of 8 action against state officials who deprive a plaintiff of her federal constitutional rights.” 9 Sinclair v. City of Seattle, 61 F.4th 674, 678 (9th Cir. 2023) (emphasis added).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEN DINCKAN, Case No.: 25-cv-2160-RSH-DDL
12 Plaintiff, ORDER: (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IFP; AND (2) 14 STEPHANIE MENDEZ, et al., DISMISSING COMPLAINT 15 Defendants. WITHOUT LEAVE TO AMEND
16 [ECF No. 2] 17 18 19 On August 21, 2025, plaintiff Ken Dinckan, proceeding pro se, commenced this 20 action and filed a motion to proceed in forma pauperis (“IFP”). ECF Nos. 1 (“Compl.”); 21 2. For the reasons below, the Court grants Plaintiff’s IFP motion and dismisses the 22 Complaint without leave to amend. 23 I. MOTION TO PROCEED IFP 24 All parties instituting a civil action, suit, or proceeding in a district court of the 25 United States, other than a petition for writ of habeas corpus, must pay a filing fee. 28 26 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee only 27 if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)(1). See Moore 28 v. Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011) (“All persons, not 1 just prisoners, may seek IFP status.”); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 2 1999). A federal court may authorize the commencement of an action without the 3 prepayment of fees if the party submits an affidavit, including a statement of assets, 4 showing an inability to pay the required filing fee. 28 U.S.C. § 1915(a). “An affidavit in 5 support of an IFP application is sufficient where it alleges that the affiant cannot pay the 6 court costs and still afford the necessities of life[.]” Escobedo v. Applebees, 787 F.3d 1226, 7 1234 (9th Cir. 2015). 8 Here, Plaintiff reports he receives $1,400 per month in social security benefits and 9 has monthly expenses totaling $2,860. ECF No. 2 at 3. In addition, Plaintiff claims he is 10 permanently disabled, unable to work, and possesses no savings or assets other than a 11 vehicle. Id. at 2. The Court concludes Plaintiff has adequately demonstrated that he is 12 unable to pay the filing fee at this time for this action. 13 II. MANDATORY SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 14 A. Standard of Review 15 A complaint filed by any person seeking to proceed IFP pursuant to 28 U.S.C. § 16 1915(a) is subject to sua sponte review and dismissal should the Court determine, inter 17 alia, that it is frivolous, malicious, or fails to state a claim upon which relief may be 18 granted. See 28 U.S.C. § 1915(e)(2)(B); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 19 2000) (“[S]ection 1915(e) applies to all in forma pauperis complaints, not just those filed 20 by prisoners.”). 21 “The standard for determining whether a plaintiff has failed to state a claim upon 22 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 23 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 24 1108, 1112 (9th Cir. 2012). That is, a complaint must “contain sufficient factual matter . . 25 . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 26 (2009) (internal quotation marks omitted). While detailed factual allegations are not 27 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 28 conclusory statements, do not suffice” to state a claim. Id. 1 B. Plaintiff’s Allegations 2 The instant case arises out of family court proceedings in the Superior Court of 3 California, County of San Diego. Plaintiff alleges the family court disregarded reports and 4 testimony, accepted false statements, and consequently ordered Plaintiff to make child 5 support payments amounting to half of Plaintiff’s income. ECF No. 1 at 1. Plaintiff 6 allegedly sought to set aside this judgment, but his motion was denied by the supervising 7 state court judge. Id. Plaintiff also separately alleges he was arrested in August 30, 2022 8 based on “fabricated” claims and that the arrest continues to be “used against [him].” Id. 9 Plaintiff asserts claims against defendants Stephanie Mendez, David Pomeranz, Soner 10 Gizer, and the Honorable Brad Weinreb for violation of his federal constitutional rights to 11 due process, equal protection, free speech, and to be free from unlawful search and seizure. 12 Id. at 2. 13 C. Analysis 14 1. Mendez, Pomeranz, Gizer 15 The Court first addresses Plaintiff’s claims against defendants Mendez, Pomeranz, 16 and Gizer. 17 Absent state action, private individuals are not subject to suit for constitutional 18 violations. See Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) 19 (“Individuals do, indeed, have a right to be free from state violations of the constitutional 20 guarantees to be secure in one’s person and home, not to be deprived of life, liberty, or 21 property without due process, and to be free from cruel and unusual punishment. 22 Individuals, however, have no right to be free from the infliction of such harm by private 23 actors.”); see also United States v. Jacobsen, 466 U.S. 109, 113 (1984) (noting the right to 24 be free from unreasonable search or seizure is “wholly inapplicable to a search or seizure, 25 even an unreasonable one, effected by a private individual not acting as an agent of the 26 Government or with the participation or knowledge of any governmental official.”) 27 (internal quotation marks omitted); United States v. Harris, 106 U.S. 629, 643 (1882) (“A 28 private person cannot make constitutions or laws, nor can he with authority construe them, 1 nor can he administer or execute them.”); Apao v. Bank of N.Y., 324 F.3d 1091, 1093 (9th 2 Cir. 2003) (noting the Fourteenth Amendment’s due process clause “shields citizens from 3 unlawful governmental actions, but does not affect conduct by private entities.”); Sliwinski 4 v. Rhodes, No. CV 25-51-H-DWM, 2025 WL 2402020, at *3 (D. Mont. Aug. 19, 2025) 5 (“A private person cannot violate the First Amendment rights of another individual, 6 because the Amendment is directed at the government[.]”). 7 Similarly, “[t]he Civil Rights Act codified in 42 U.S.C. § 1983 provides a cause of 8 action against state officials who deprive a plaintiff of her federal constitutional rights.” 9 Sinclair v. City of Seattle, 61 F.4th 674, 678 (9th Cir. 2023) (emphasis added). “To prove 10 a case under section 1983, the plaintiff must demonstrate that (1) the action occurred under 11 color of state law and (2) the action resulted in the deprivation of a constitutional right or 12 federal statutory right.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (internal 13 quotation marks omitted). 14 Here, defendants Mendez, Pomeranz, and Gizer are alleged to be attorneys in 15 Plaintiff’s underlying family court proceedings. ECF No. 1 at 1. As private attorneys not 16 alleged to have been acting under the color of state law, defendants Mendez, Pomeranz, 17 and Gizer are not subject to suit for the alleged deprivation of Plaintiff’s constitutional 18 rights (whether under § 1983 or any other legal theory). See Simmons v. Sacramento Cty. 19 Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (holding a plaintiff could not sue a 20 lawyer under § 1983 “because he is a lawyer in private practice who was not acting under 21 color of state law”); Szijarto v. Legeman, 466 F.2d 864, 864 (9th Cir. 1972) (“[A]n attorney, 22 whether retained or appointed, does not act ‘under color of’ state law.”); Rushdan v. Hale, 23 No. C02-1325TEH(PR), 2002 WL 981863, at *1 (N.D. Cal. May 7, 2002) (“Private 24 attorneys do not act under color of state law when engaged in the private practice of law.”). 25 For these reasons, Plaintiff’s claims against defendants Mendez, Pomeranz, and 26 Gizer are not viable as a matter of law. 27 /// 28 /// 1 2. Weinreb 2 The Court turns next to Plaintiff’s claims against Judge Weinreb. According to the 3 Complaint, Judge Weinreb was the supervising state court judge in Plaintiff’s underlying 4 family court proceedings. ECF No. 1 at 1. 5 Under the doctrine of judicial immunity, “[j]udges are immune from damage actions 6 for judicial acts taken within the jurisdiction of their courts.” Ashelman v. Pope, 793 F.2d 7 1072, 1075 (9th Cir. 1986); see Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th 8 Cir. 2004) (“Absolute immunity is generally accorded to judges . . . functioning in their 9 official capacities.”). “To determine whether an act is judicial, [the Court] consider[s] these 10 factors: whether (1) the precise act is a normal judicial function; (2) the events occurred in 11 the judge’s chambers; (3) the controversy centered around a case then pending before the 12 judge; and (4) the events at issue arose directly and immediately out of a confrontation with 13 the judge in his or her official capacity.” Lund v. Cowan, 5 F.4th 964, 971 (9th Cir. 2021) 14 (internal quotation marks omitted). 15 Here, Plaintiff’s claim against Judge Weinreb, arising from Judge Weinreb’s 16 decision not to set aside Plaintiff’s child support judgment, is clearly barred by judicial 17 immunity. See Mindiola v. Arizona, No. 24-1842, 2025 WL 1983952, at *1 (9th Cir. July 18 17, 2025) (district court properly dismissed with prejudice plaintiff’s claims against state 19 court judge arising from her decisions “regarding discovery, custody, spousal support, and 20 child support as barred by judicial immunity.”); see e.g., Cephus v. Jud. Council of 21 California, No. 2:24-CV-10959-VBF (SK), 2025 WL 2414888, at *1 (C.D. Cal. June 16, 22 2025), report and recommendation adopted, No. 2:24-CV-10959-VBF (SK), 2025 WL 23 2410519 (C.D. Cal. Aug. 18, 2025) (“Presiding over child custody proceedings is nothing 24 if not judicial action to which absolute judicial immunity attaches.”); Bey v. Los Angeles 25 Cnty., No. 221CV07878CASKES, 2021 WL 6775903, at *1 (C.D. Cal. Oct. 8, 2021) (“To 26 the extent [plaintiff] is suing [the Superior Court Judge[over her child support or custody 27 rulings, she has absolute judicial immunity for such acts.”) (internal citation omitted). 28 /// 1 For these reasons, Plaintiff’s claims against Judge Weinreb are also not viable as a 2 matter of law. 3 3. Subject Matter Jurisdiction 4 The Court is also not persuaded it possesses subject matter jurisdiction over this 5 case. Although Plaintiff purports to assert federal constitutional claims, fundamentally, this 6 case arises from Plaintiff’s disagreement with the state court’s child support judgment. See 7 ECF No. 1 at 2 (requesting injunctive relief preventing the enforcement of the state court’s 8 child support order). 9 Under the Rooker-Feldman doctrine: 10 If the constitutional claims presented to a United States district court 11 are inextricably intertwined with the state court’s denial in a judicial proceeding of a particular plaintiff's application [for relief], then the 12 district court is in essence being called upon to review the state-court 13 decision. This the district court may not do. 14 D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 n.16 (1983); Bianchi v. Rylaarsdam, 15 334 F.3d 895, 898 (9th Cir. 2003) (“Rooker-Feldman is a powerful doctrine that prevents 16 federal courts from second-guessing state court decisions by barring the lower federal 17 courts from hearing de facto appeals from state-court judgment.”). 18 Under Rooker-Feldman, the Court does not have jurisdiction to review the state 19 court’s decision on Plaintiff’s child support payments. See Peterson v. Sacramento Dep’t 20 of Child Support Servs., No. 2:24-CV-2759-DAD-JDP (PS), 2025 WL 2143070, at *2 21 (E.D. Cal. July 29, 2025) (“This court does not have jurisdiction to review the state court 22 decision on child support payments.”); Davis v. Booth, No. 19-CV-01538-AJB-MSB, 2019 23 WL 5295060, at *2 (S.D. Cal. Oct. 18, 2019) (“[U]nder the Rooker-Feldman doctrine, 24 federal district courts are barred from reviewing state court decisions regarding 25 proceedings in family court.”); Nemcik v. Mills, No. 16-CV-00322-BLF, 2016 WL 26 4364917, at *6 (N.D. Cal. Aug. 16, 2016) (“The law does not allow a federal court to 27 review the child support orders created by a state court.”). 28 /// 1 4, Leave to Amend 2 Under Ninth Circuit precedent, “[a] district court should not dismiss a pro se 3 ||complaint without leave to amend unless it is absolutely clear that the deficiencies of the 4 ||complaint could not be cured by amendment.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 5 Cir. 2015). Here, however, Plaintiff cannot cure the legal flaws in his Complaint by 6 || pleading additional facts. “Because any amendment would be futile, there is no need to 7 || prolong the litigation by permitting further amendment.” Chaset v. Fleer/Skybox Int’l, 300 8 1083, 1088 (9th Cir. 2002). 9 D. Conclusion 10 For the reasons stated above, the Court GRANTS Plaintiff's IFP application, but 11 || DISMISSES Plaintiff's Complaint without leave to amend. The Clerk of Court is directed 12 || to close the case. 13 IT IS SO ORDERED. 14 || Dated: September 25, 2025 ‘ 15 Jekut C [ove 16 Hon. Robert S. Huie United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28