1 FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 3 Dec 18, 2024 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 JOHN-MICHAEL RAY DURHAM, 10 Plaintiff, No. 2:24-CV-00401-SAB 11 v. 12 JUDGE THOMAS RICE, BOB 13 FERGUSON, PETER K. KAY, 14 MATTHEW DALEY, SERVICES ORDER DISMISSING ACTION; 15 ALTERNATIVE, FAMILY IMPACT GRANTING LEAVE TO 16 NETWORK, DCYF CPS, BERNEY AMEND 17 ELEMENTARY SCHOOL, and 18 DEPARTMENT 5 SUPERIOR 19 JUVENILE COURTS, 20 Defendants. 21 22 On November 27, 2024, Plaintiff filed the above-captioned lawsuit, ECF 23 No.1, and also filed an Application to Proceed In Forma Pauperis, ECF No. 3. 24 Plaintiff was given permission to proceed In Forma Pauperis on December 12, 25 2024. ECF No. 17. Plaintiff is representing himself in this matter. 26 In his Complaint, Plaintiff maintains that Judge Thomas Rice and the United 27 States government played primary roles in violation of Plaintiffs’ rights, while 28 Service Alternative, Family Impact Services, and the Washington State Attorney 1 General’s Office all contributed, either through their failures to intervene or their 2 involvement in a flawed process that caused further harm to Plaintiffs and their 3 children.1 The rights identified are Plaintiff’s right to due process and equal 4 protection and right to familial association. Plaintiff is seeking $1,000,000,000 in 5 damages and $500,000 in punitive damages. 6 Earlier this year, Plaintiff had filed three causes of actions that were 7 subsequently dismissed by Judge Rice, Durham v. Hopkins, et al., 2-24-CV-00299- 8 TOR, ECF No. 20; Durham v. Schmidt, 2:24-CV-00325-TOR, ECF No. 13; and 9 Durham et al. v. Department of Children, Youth, and Families, et al., 2:24-CV- 10 00340-TOR, ECF No. 28. 11 28 U.S.C. § 1915 Review 12 When an individual seeks to proceed in forma pauperis, the Court is required 13 to review the complaint and dismiss such complaint, or portions of the complaint, 14 if it is “frivolous, malicious or fails to state a claim upon which relief may be 15 granted; or . . . seeks monetary relief from a defendant who is immune from such 16 relief.” 28 U.S.C. § 1915(e)(2); Wong v. Bell, 642 F.2d 359, 361-2 (9th Cir. 1981). 17 A plaintiff’s claim is frivolous “when the facts alleged rise to the level of the 18 irrational or the wholly incredible, whether or not there are judicially noticeable 19 facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 32-33 20 (1992). 21 When reviewing a motion to dismiss for failure to state a claim upon which 22 relief can be granted, a court takes the factual allegations in the complaint as true 23 and construes them in the light most favorable to the plaintiff. Balistreri v. Pacifica 24 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). On the other hand, mere legal 25 1 The Court imposes the rule of necessity and has determined there is no conflict 26 with it continuing to hear this case. See Ignacio v. Judges, 453 F.3d 1160, 1165 27 (9th Cir. 2006). 28 1 conclusions, “are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 2 U.S. 662, 679 (2009). “Dismissal can be based on the lack of a cognizable legal 3 theory or the absence of sufficient facts alleged under a cognizable legal theory.” 4 Balistreri, 901 F.2d at 699. 5 Legal Framework 6 Section 1983 requires a claimant to prove that (1) a person acting under 7 color of state law (2) committed an act that deprived the claimant of some right, 8 privilege, or immunity protected by the Constitution or laws of the United States. 9 Leer v. Murphy, 844 F.2d 628, 632–33 (9th Cir. 1988). A person deprives another 10 “of a constitutional right, within the meaning of Section 1983, if he does an 11 affirmative act, participates in another’s affirmative acts, or omits to perform an act 12 which he is legally required to do that causes the deprivation of which [the plaintiff 13 complains].” Redman v. Cnty. of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991) 14 (en banc) (brackets in the original), abrogated in part on other grounds by Farmer 15 v. Brennan, 511 U.S. 825 (1994). 16 A complaint must set forth the specific facts upon which the plaintiff relies 17 in claiming the liability of each defendant. Ivey v. Bd. of Regents, 673 F.2d 266, 18 268 (9th Cir. 1982). Even a liberal interpretation of a civil rights complaint may 19 not supply essential elements of a claim that the plaintiff failed to plead. Id. To 20 establish liability pursuant to Section 1983, the plaintiff must set forth facts 21 demonstrating how each defendant caused or personally participated in causing a 22 deprivation of the plaintiff’s protected rights. Arnold v. Int’l Bus. Machines Corp., 23 637 F.2d 1350, 1355 (9th Cir. 1981); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 24 1989). 25 It is well-established that judges are absolutely immune from civil liability 26 for damages for their judicial acts. See Mullis v. U.S. Bankr. Ct. for the Dist. Of 27 Nev., 828 F.2d 1385, 1388-94 (9th Cir. 1987). “A judge will not be deprived of 28 immunity because the action he took was in error, was done maliciously, or was in 1 excess of his authority; rather, he will be subject to liability only when he has acted 2 in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356– 3 57 (1978) (quotation omitted). 4 To state a claim for violation of the Due Process Clause of the Fourteenth 5 Amendment, Plaintiff must allege 1) a protectible liberty or property interest, 2) 6 government deprivation of that interest, and 3) a denial of adequate procedural 7 protections. Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584, 588 (9th 8 Cir.1998). 9 To state a claim for violation of the Equal Protection Clause of the 10 Fourteenth Amendment, a plaintiff must allege that he was treated differently from 11 other similarly situated persons. City of Cleburne v. Cleburne Living Ctr., 473 12 U.S. 432, 439 (1985). 13 The First Amendment protects “family relationships, that presuppose ‘deep 14 attachments and commitments to the necessarily few other individuals with whom 15 one shares not only a special community of thoughts, experiences, and beliefs but 16 also distinctively personal aspects of one’s life.’” Lee v. City of Los Angeles, 250 17 F.3d 668, 685 (9th Cir. 2001). 18 Under the Eleventh Amendment, states and its agencies enjoy sovereign 19 immunity from private suits for damages in federal court. Dittman v. California, 20 191 F3d 1020, 1025 (9th Cir. 1999). 21 Analysis 22 Plaintiff’s claims asserted against Judge Rice are barred by judicial 23 immunity.
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1 FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 3 Dec 18, 2024 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 JOHN-MICHAEL RAY DURHAM, 10 Plaintiff, No. 2:24-CV-00401-SAB 11 v. 12 JUDGE THOMAS RICE, BOB 13 FERGUSON, PETER K. KAY, 14 MATTHEW DALEY, SERVICES ORDER DISMISSING ACTION; 15 ALTERNATIVE, FAMILY IMPACT GRANTING LEAVE TO 16 NETWORK, DCYF CPS, BERNEY AMEND 17 ELEMENTARY SCHOOL, and 18 DEPARTMENT 5 SUPERIOR 19 JUVENILE COURTS, 20 Defendants. 21 22 On November 27, 2024, Plaintiff filed the above-captioned lawsuit, ECF 23 No.1, and also filed an Application to Proceed In Forma Pauperis, ECF No. 3. 24 Plaintiff was given permission to proceed In Forma Pauperis on December 12, 25 2024. ECF No. 17. Plaintiff is representing himself in this matter. 26 In his Complaint, Plaintiff maintains that Judge Thomas Rice and the United 27 States government played primary roles in violation of Plaintiffs’ rights, while 28 Service Alternative, Family Impact Services, and the Washington State Attorney 1 General’s Office all contributed, either through their failures to intervene or their 2 involvement in a flawed process that caused further harm to Plaintiffs and their 3 children.1 The rights identified are Plaintiff’s right to due process and equal 4 protection and right to familial association. Plaintiff is seeking $1,000,000,000 in 5 damages and $500,000 in punitive damages. 6 Earlier this year, Plaintiff had filed three causes of actions that were 7 subsequently dismissed by Judge Rice, Durham v. Hopkins, et al., 2-24-CV-00299- 8 TOR, ECF No. 20; Durham v. Schmidt, 2:24-CV-00325-TOR, ECF No. 13; and 9 Durham et al. v. Department of Children, Youth, and Families, et al., 2:24-CV- 10 00340-TOR, ECF No. 28. 11 28 U.S.C. § 1915 Review 12 When an individual seeks to proceed in forma pauperis, the Court is required 13 to review the complaint and dismiss such complaint, or portions of the complaint, 14 if it is “frivolous, malicious or fails to state a claim upon which relief may be 15 granted; or . . . seeks monetary relief from a defendant who is immune from such 16 relief.” 28 U.S.C. § 1915(e)(2); Wong v. Bell, 642 F.2d 359, 361-2 (9th Cir. 1981). 17 A plaintiff’s claim is frivolous “when the facts alleged rise to the level of the 18 irrational or the wholly incredible, whether or not there are judicially noticeable 19 facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 32-33 20 (1992). 21 When reviewing a motion to dismiss for failure to state a claim upon which 22 relief can be granted, a court takes the factual allegations in the complaint as true 23 and construes them in the light most favorable to the plaintiff. Balistreri v. Pacifica 24 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). On the other hand, mere legal 25 1 The Court imposes the rule of necessity and has determined there is no conflict 26 with it continuing to hear this case. See Ignacio v. Judges, 453 F.3d 1160, 1165 27 (9th Cir. 2006). 28 1 conclusions, “are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 2 U.S. 662, 679 (2009). “Dismissal can be based on the lack of a cognizable legal 3 theory or the absence of sufficient facts alleged under a cognizable legal theory.” 4 Balistreri, 901 F.2d at 699. 5 Legal Framework 6 Section 1983 requires a claimant to prove that (1) a person acting under 7 color of state law (2) committed an act that deprived the claimant of some right, 8 privilege, or immunity protected by the Constitution or laws of the United States. 9 Leer v. Murphy, 844 F.2d 628, 632–33 (9th Cir. 1988). A person deprives another 10 “of a constitutional right, within the meaning of Section 1983, if he does an 11 affirmative act, participates in another’s affirmative acts, or omits to perform an act 12 which he is legally required to do that causes the deprivation of which [the plaintiff 13 complains].” Redman v. Cnty. of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991) 14 (en banc) (brackets in the original), abrogated in part on other grounds by Farmer 15 v. Brennan, 511 U.S. 825 (1994). 16 A complaint must set forth the specific facts upon which the plaintiff relies 17 in claiming the liability of each defendant. Ivey v. Bd. of Regents, 673 F.2d 266, 18 268 (9th Cir. 1982). Even a liberal interpretation of a civil rights complaint may 19 not supply essential elements of a claim that the plaintiff failed to plead. Id. To 20 establish liability pursuant to Section 1983, the plaintiff must set forth facts 21 demonstrating how each defendant caused or personally participated in causing a 22 deprivation of the plaintiff’s protected rights. Arnold v. Int’l Bus. Machines Corp., 23 637 F.2d 1350, 1355 (9th Cir. 1981); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 24 1989). 25 It is well-established that judges are absolutely immune from civil liability 26 for damages for their judicial acts. See Mullis v. U.S. Bankr. Ct. for the Dist. Of 27 Nev., 828 F.2d 1385, 1388-94 (9th Cir. 1987). “A judge will not be deprived of 28 immunity because the action he took was in error, was done maliciously, or was in 1 excess of his authority; rather, he will be subject to liability only when he has acted 2 in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356– 3 57 (1978) (quotation omitted). 4 To state a claim for violation of the Due Process Clause of the Fourteenth 5 Amendment, Plaintiff must allege 1) a protectible liberty or property interest, 2) 6 government deprivation of that interest, and 3) a denial of adequate procedural 7 protections. Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584, 588 (9th 8 Cir.1998). 9 To state a claim for violation of the Equal Protection Clause of the 10 Fourteenth Amendment, a plaintiff must allege that he was treated differently from 11 other similarly situated persons. City of Cleburne v. Cleburne Living Ctr., 473 12 U.S. 432, 439 (1985). 13 The First Amendment protects “family relationships, that presuppose ‘deep 14 attachments and commitments to the necessarily few other individuals with whom 15 one shares not only a special community of thoughts, experiences, and beliefs but 16 also distinctively personal aspects of one’s life.’” Lee v. City of Los Angeles, 250 17 F.3d 668, 685 (9th Cir. 2001). 18 Under the Eleventh Amendment, states and its agencies enjoy sovereign 19 immunity from private suits for damages in federal court. Dittman v. California, 20 191 F3d 1020, 1025 (9th Cir. 1999). 21 Analysis 22 Plaintiff’s claims asserted against Judge Rice are barred by judicial 23 immunity. Also, Plaintiff has not alleged sufficient facts to state a claim against the 24 remaining Defendants for violations of his constitutional rights. First, it is unclear 25 what claims Plaintiff is bringing against the various Defendants. Second, the 26 Eleventh Amendment bars Plaintiff’s claims asserted against the state agencies. 27 Third, Plaintiff has not alleged how he has been treated differently from other 28 similarly situated persons. Because Plaintiff has not alleged sufficient facts to state 1 a claim upon which relief may be granted, the Court dismisses Plaintiff’s 2 Complaint. 3 Opportunity to Amend 4 Unless it is absolutely clear that amendment would be futile, a pro se 5 litigant must be given the opportunity to amend his complaint to correct any 6 deficiencies. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2002). Therefore, 7 Plaintiff is granted leave to file an Amended Complaint that contains allegations 8 sufficient to establish federal jurisdiction. Plaintiff is cautioned that if he fails to 9 file an Amended Complaint within 30 days as directed, the Court will dismiss the 10 action and close the file. 11 Pending Motions 12 Plaintiff has filed additional motions in this case. The Court will not 13 consider any additional motions filed in this case and instead will deny them. If 14 Plaintiff files an Amended Complaint, he may refile the motions, if needed. 15 Motion for Electronic Case Filing Authorization 16 Plaintiff seeks permission to file electronically in ECF. Good cause exists to 17 grant the motion. 18 Accordingly, IT IS HEREBY ORDERED: 19 1. Plaintiff’s Complaint, ECF No. 1, is DISMISSED, without prejudice. 20 2. Plaintiff is granted leave to file an Amended Complaint. Plaintiff is 21 directed to file his Amended Complaint within thirty (30) days from the date of 22 this Order. Failure to do so will result in the dismissal of this action. 23 3. Plaintiff’s Motion for Continuance, Extension of Time, and Judicial 24 Reassignment of Chief Justice Thomas O. Rice, ECF No. 4, is DENIED, as moot. 25 4. Plaintiff’s Subpoena Request, ECF No. 10, is DENIED. 26 5. Plaintiff’s Request to Conduct Electronic Reporting, ECF No. 11, is 27 DENIED. 28 6. Plaintiff’s Motion for Reconsideration, ECF No. 15, is DENIED. 1 7. Plaintiff's Motion for Electronic Case Filing Authorization, ECF No. 5, 1s GRANTED. 3 a. Plaintiff may contact the Clerk’s Office at (509) 458-3400 if he wishes to schedule e-filing training. 5 b. Plaintiff may file electronic documents in the above-captioned cause only. c. The Clerk’s Office will terminate Plaintiff's ECF Registration 8 should an attorney subsequently file a Notice of Appearance on Plaintiff's 9 behalf. 10 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter Order, provide copies to Plaintiff and counsel and set a case management deadline accordingly. 13 DATED this 18th day of December 2024. 14 15 16 17 . 18 foe £ 74 , das. 19 Stanley A. Bastian 20 Chief United States District Judge 21 22 23 24 25 26 27 28