Ebenezer Howe, IV v. John Roberts, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 10, 2023
• Docket: 22-35349
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EBENEZER K. HOWE IV; ROBERT No. 22-35349 McNEIL; MICHAEL ELLIS, D.C. No. 1:21-cv-00175-BLW Plaintiffs-Appellants,

v. MEMORANDUM* JOHN G. ROBERTS, Jr., Chief Justice, U.S. Supreme Court; MILAN D. SMITH, Jr., Judge, U.S. Court of Appeals for the 9th Circuit; BRIDGET S. BADE, Judge, U.S. Court of Appeals for the 9th Circuit; MICHELLE T. FRIEDLAND, Judge, U.S. Court of Appeals for the 9th Circuit; MARY H. MURGUIA, Chief Judge, U.S. Court of Appeals for the 9th Circuit; SRIKANTH SRINIVASON, “Sri”,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding

Submitted June 26, 2023**

Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Ebenezer K. Howe, IV, Robert McNeil, and Michael Ellis appeal pro se

from the district court’s judgment dismissing their action under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

alleging denial of access to the courts. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo the district court’s dismissal on the basis of judicial

immunity, Meek v. Cnty. of Riverside, 183 F.3d 962, 965 (9th Cir. 1999), and for

an abuse of discretion its dismissal for failure to comply with a court order, In re

Fillbach, 223 F.3d 1089, 1090-91 (9th Cir. 2000). We affirm.

The district court did not abuse its discretion by dismissing the claims

brought by McNeil and Ellis because the complaint was within the scope of the

pre-filing order and appellants failed to comply with its requirements. See In re

Fillbach, 223 F.3d at 1090-91 (recognizing district courts’ inherent power to file

restrictive pre-filing orders, as well as their discretion to dismiss a complaint made

in an attempt to evade such an order).

The district court properly dismissed the claims brought by Howe because

defendants, all of whom are federal judges, are entitled to judicial immunity. See

Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001) (recognizing that

judges are generally immune from suit for money damages, and describing factors

relevant to whether an act is judicial in nature and therefore subject to judicial

immunity); Atkinson-Baker & Assocs., Inc. v. Kolts, 7 F.3d 1452, 1454 (9th Cir.

2 22-35349 1993) (recognizing that federal judges are absolutely immune from claims for

declaratory and injunctive relief arising from their judicial acts). A party may

challenge prior rulings only via appeal, not by suing the judges. In re Thomas,

508 F.3d 1225, 1227 (9th Cir. 2007).

All pending motions are denied.

AFFIRMED.

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