1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAMIRO PLASCENCIA OROZCO, Case No.: 21cv2112-CAB (RBB) aka Alberto Jose Del Muro, 12 aka Alberto Jose Muro-Guerrero, 13 BOP #40467-198, ORDER DISMISSING COMPLAINT WITH PREJUDICE PURSUANT TO 14 Plaintiff, 28 U.S.C. § 1915A 15 vs. 16 JUDGE JOHN HOUSTON, JUDGE 17 ALANA WONG ROBINSON, CHIEF 18 UNITED STATES ATTORNEY LAURA E. DUFFY AND ASSISTANT UNITED 19 STATES ATTORNEY MARIETTA 20 IRENE GECKOS, 21 Defendants. 22 23 Plaintiff Ramiro Plascencia Orozco, a federal prisoner confined at the Federal 24 Medical Center in Forth Worth, Texas, proceeding pro se, has filed this civil rights action 25 pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 26 U.S. 388 (1971). (ECF No. 1.) Plaintiff claims the Defendants, two judges and two 27 prosecutors, discriminated against him and abused their judicial power in his criminal case 28 which caused him to be falsely convicted and imprisoned. (Id. at 2-7.) 1 On December 28, 2021, the Court denied Plaintiff’s Motion to proceed in forma 2 pauperis after finding he had previously filed at least six civil actions as a prisoner which 3 were dismissed as frivolous, malicious, for failing to state a claim or for seeking relief from 4 Defendants immune from liability, and was therefore precluded from proceeding in forma 5 pauperis by 28 U.S.C. § 1915(g). (ECF No. 3.) On March 18, 2022, Plaintiff paid the civil 6 filing fee. (ECF No. 6.) 7 I. Screening pursuant to 28 U.S.C. § 1915A 8 A. Standard of Review 9 Because Plaintiff is a prisoner, his Complaint requires a pre-Answer screening 10 pursuant to 28 U.S.C. § 1915A. Under that statute, the Court must sua sponte dismiss a 11 prisoner’s complaint, or any portion of it, which is frivolous, malicious, fails to state a 12 claim, or seeks damages from defendants who are immune. Rhodes v. Robinson, 621 F.3d 13 1002, 1004 (9th Cir. 2010), citing 28 U.S.C. § 1915A (“The court shall review, before 14 docketing, if feasible, or in any event, as soon as practicable after docketing, a complaint 15 in a civil action in which a prisoner seeks redress from a governmental entity or officer or 16 employee of a governmental entity. On review, the court shall identify cognizable claims 17 or dismiss the complaint, or any portion of the complaint, if the complaint - (1) is frivolous, 18 malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary 19 relief from a defendant who is immune from such relief.”) 20 The standard for determining whether a prisoner has failed to state a claim upon 21 which relief can be granted under § 1915A “incorporates the familiar standard applied in 22 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” 23 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Rule 12(b)(6) requires a 24 complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief 25 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell 26 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Detailed factual allegations are not 27 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 28 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 1 B. Plaintiff’s Allegations 2 The Complaint alleges Plaintiff was falsely convicted by Defendant Judge John 3 Houston on March 30, 2015, and sentenced to 184 months in prison.1 (ECF No. 1 at 3-4.) 4 Plaintiff claims Judge Houston discriminated against him by changing Plaintiff’s name to 5 Alberto Jose Del Muro, and that his conviction was obtained in violation of double 6 jeopardy principles. (Id. at 3.) He alleges the other Defendants, Judge Alana Wong 7 Robinson, Chief United States Attorney Laura Duffy and Assistant United States Attorney 8 Marietta Irene Geckos, “violated my sovereign rights & immunities” through the use of 9 “strawman judicial power.” (Id. at 5.) Plaintiff claims the Defendants abused their power 10 during his criminal proceedings which caused him to be wrongfully convicted and 11 imprisoned. (Id. at 5-7.) He seeks monetary damages and injunctive relief. (Id. at 9.) 12 C. Analysis 13 “Judges are absolutely immune from civil liability for damages for their judicial 14 acts.” Mullis v. U.S. Bankruptcy Court for Dist. of Nevada, 828 F.2d 1385, 1388 (9th Cir. 15 1987). That immunity also applies to declaratory and injunctive relief in Bivens actions. 16 Id. at 1394. Although Plaintiff alleges the judge Defendants committed legal error in his 17 criminal case, “[a] judge will not be deprived of immunity because the action he took was 18 in error, was done maliciously, or was in excess of his authority; rather, he will be subject 19 to liability only where he has acted in the ‘clear absence of all jurisdiction.’” Stump v. 20 Sparkman, 435 U.S. 349, 356-57 (1978). An act is judicial when “it is a function normally 21 performed by a judge” while acting in his or her judicial capacity. Id. at 362. 22 The allegations in the Complaint against the judge Defendants involve judicial acts 23 taken in connection to Plaintiff’s criminal cases, and there are no allegations any judicial 24
25 1 The facts and circumstances of Plaintiff’s conviction and sentence and his use of aliases, 26 along with his claims of trial error, are detailed in the opinion affirming his conviction and 27 sentence. See United States v. Plascencia-Orozco, 852 F.3d 910, 914 (9th Cir. 2017) (“We seldom run into a ‘frequent flyer’ as ‘frequent’ as appellant. Over his 46-year career as an 28 1 defendant took any action in the clear absence of their jurisdiction. As such, Plaintiff is 2 unable to maintain a Bivens action against them, as challenges to his conviction and 3 sentence are appropriately made by seeking writs or filing appeals. See Mullis, 828 F.2d 4 at 1394 (“Should a federal judge or other federal official performing a judicial or quasi- 5 judicial act violate a litigant’s constitutional rights in a proceeding pending in federal court, 6 Congress has provided carefully structed procedures for taking appeals, including 7 interlocutory appeals, and for petitioning for extraordinary writs in Title 28 of the United 8 States Code.”) Plaintiff in fact utilized the appellate process and his conviction and 9 sentence were affirmed on appeal. Plascencia-Orozco, 852 F.3d at 929. Accordingly, with 10 respect to the judge Defendants, the Complaint must be dismissed pursuant to 28 U.S.C. 11
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAMIRO PLASCENCIA OROZCO, Case No.: 21cv2112-CAB (RBB) aka Alberto Jose Del Muro, 12 aka Alberto Jose Muro-Guerrero, 13 BOP #40467-198, ORDER DISMISSING COMPLAINT WITH PREJUDICE PURSUANT TO 14 Plaintiff, 28 U.S.C. § 1915A 15 vs. 16 JUDGE JOHN HOUSTON, JUDGE 17 ALANA WONG ROBINSON, CHIEF 18 UNITED STATES ATTORNEY LAURA E. DUFFY AND ASSISTANT UNITED 19 STATES ATTORNEY MARIETTA 20 IRENE GECKOS, 21 Defendants. 22 23 Plaintiff Ramiro Plascencia Orozco, a federal prisoner confined at the Federal 24 Medical Center in Forth Worth, Texas, proceeding pro se, has filed this civil rights action 25 pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 26 U.S. 388 (1971). (ECF No. 1.) Plaintiff claims the Defendants, two judges and two 27 prosecutors, discriminated against him and abused their judicial power in his criminal case 28 which caused him to be falsely convicted and imprisoned. (Id. at 2-7.) 1 On December 28, 2021, the Court denied Plaintiff’s Motion to proceed in forma 2 pauperis after finding he had previously filed at least six civil actions as a prisoner which 3 were dismissed as frivolous, malicious, for failing to state a claim or for seeking relief from 4 Defendants immune from liability, and was therefore precluded from proceeding in forma 5 pauperis by 28 U.S.C. § 1915(g). (ECF No. 3.) On March 18, 2022, Plaintiff paid the civil 6 filing fee. (ECF No. 6.) 7 I. Screening pursuant to 28 U.S.C. § 1915A 8 A. Standard of Review 9 Because Plaintiff is a prisoner, his Complaint requires a pre-Answer screening 10 pursuant to 28 U.S.C. § 1915A. Under that statute, the Court must sua sponte dismiss a 11 prisoner’s complaint, or any portion of it, which is frivolous, malicious, fails to state a 12 claim, or seeks damages from defendants who are immune. Rhodes v. Robinson, 621 F.3d 13 1002, 1004 (9th Cir. 2010), citing 28 U.S.C. § 1915A (“The court shall review, before 14 docketing, if feasible, or in any event, as soon as practicable after docketing, a complaint 15 in a civil action in which a prisoner seeks redress from a governmental entity or officer or 16 employee of a governmental entity. On review, the court shall identify cognizable claims 17 or dismiss the complaint, or any portion of the complaint, if the complaint - (1) is frivolous, 18 malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary 19 relief from a defendant who is immune from such relief.”) 20 The standard for determining whether a prisoner has failed to state a claim upon 21 which relief can be granted under § 1915A “incorporates the familiar standard applied in 22 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” 23 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Rule 12(b)(6) requires a 24 complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief 25 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell 26 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Detailed factual allegations are not 27 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 28 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 1 B. Plaintiff’s Allegations 2 The Complaint alleges Plaintiff was falsely convicted by Defendant Judge John 3 Houston on March 30, 2015, and sentenced to 184 months in prison.1 (ECF No. 1 at 3-4.) 4 Plaintiff claims Judge Houston discriminated against him by changing Plaintiff’s name to 5 Alberto Jose Del Muro, and that his conviction was obtained in violation of double 6 jeopardy principles. (Id. at 3.) He alleges the other Defendants, Judge Alana Wong 7 Robinson, Chief United States Attorney Laura Duffy and Assistant United States Attorney 8 Marietta Irene Geckos, “violated my sovereign rights & immunities” through the use of 9 “strawman judicial power.” (Id. at 5.) Plaintiff claims the Defendants abused their power 10 during his criminal proceedings which caused him to be wrongfully convicted and 11 imprisoned. (Id. at 5-7.) He seeks monetary damages and injunctive relief. (Id. at 9.) 12 C. Analysis 13 “Judges are absolutely immune from civil liability for damages for their judicial 14 acts.” Mullis v. U.S. Bankruptcy Court for Dist. of Nevada, 828 F.2d 1385, 1388 (9th Cir. 15 1987). That immunity also applies to declaratory and injunctive relief in Bivens actions. 16 Id. at 1394. Although Plaintiff alleges the judge Defendants committed legal error in his 17 criminal case, “[a] judge will not be deprived of immunity because the action he took was 18 in error, was done maliciously, or was in excess of his authority; rather, he will be subject 19 to liability only where he has acted in the ‘clear absence of all jurisdiction.’” Stump v. 20 Sparkman, 435 U.S. 349, 356-57 (1978). An act is judicial when “it is a function normally 21 performed by a judge” while acting in his or her judicial capacity. Id. at 362. 22 The allegations in the Complaint against the judge Defendants involve judicial acts 23 taken in connection to Plaintiff’s criminal cases, and there are no allegations any judicial 24
25 1 The facts and circumstances of Plaintiff’s conviction and sentence and his use of aliases, 26 along with his claims of trial error, are detailed in the opinion affirming his conviction and 27 sentence. See United States v. Plascencia-Orozco, 852 F.3d 910, 914 (9th Cir. 2017) (“We seldom run into a ‘frequent flyer’ as ‘frequent’ as appellant. Over his 46-year career as an 28 1 defendant took any action in the clear absence of their jurisdiction. As such, Plaintiff is 2 unable to maintain a Bivens action against them, as challenges to his conviction and 3 sentence are appropriately made by seeking writs or filing appeals. See Mullis, 828 F.2d 4 at 1394 (“Should a federal judge or other federal official performing a judicial or quasi- 5 judicial act violate a litigant’s constitutional rights in a proceeding pending in federal court, 6 Congress has provided carefully structed procedures for taking appeals, including 7 interlocutory appeals, and for petitioning for extraordinary writs in Title 28 of the United 8 States Code.”) Plaintiff in fact utilized the appellate process and his conviction and 9 sentence were affirmed on appeal. Plascencia-Orozco, 852 F.3d at 929. Accordingly, with 10 respect to the judge Defendants, the Complaint must be dismissed pursuant to 28 U.S.C. 11 § 1915A because it fails to state a claim upon which relief may be granted, seeks monetary 12 relief from Defendants who are immune from such relief, and is legally frivolous. Iqbal, 13 556 U.S. at 678; Neitzke v. Williams, 490 U.S. 319, 325 (1989) (a complaint is frivolous 14 within the meaning of § 1915 “where it lacks an arguable basis either in law or fact.”); see 15 also e.g. Mainez v. Gore, No. 17-cv1359-JAH (JLB), 2017 WL 4005269, at *5 (S.D. Cal. 16 Sept. 11, 2017) (finding § 1983 claims for monetary damages against judge based on 17 allegations regarding sentencing and presiding over criminal proceedings subject to sua 18 sponte dismissal as frivolous pursuant to 28 U.S.C. § 1915A(b)). 19 Prosecutors are also entitled to absolute immunity where the claimed violations are 20 based on their activities as legal advocates in criminal proceedings. Van de Kamp v. 21 Goldstein, 555 U.S. 335, 341-44 (2009), citing Imbler v. Pachtman, 424 U.S. 409, 430 22 (1976) (holding that where prosecutors’ “activities were intimately associated with the 23 judicial phase of the criminal process, . . . the reasons for absolute immunity apply with 24 full force.”); see also Genzler v. Longanbach, 410 F.3d 630, 636-37 (9th Cir. 2005) 25 (absolute prosecutorial immunity extends to “traditional functions of an advocate.”); 26 Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986) (holding that when a prosecutor 27 acts within her authority “‘in initiating a prosecution and in presenting the state’s case,’ 28 absolute immunity applies.”), quoting Imbler, 424 U.S. at 431. There are no allegations in 1 the Complaint that the prosecutor defendants took any action outside their role as advocates 2 in Plaintiff’s criminal case. Thus, with respect to the prosecutor defendants, the Complaint 3 fails to state a claim upon which relief may be granted, seeks monetary relief from 4 defendants who are immune from such relief, and is legally frivolous. Iqbal, 556 U.S. at 5 678; Neitzke, 490 U.S. at 325; Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989) 6 (finding claim against prosecutors with clear immunity legally frivolous within the 7 meaning of § 1915), superseded by statute on other grounds as stated in Lopez v. Smith, 8 203 F.3d 1122, 1130 (9th Cir. 2000). 9 Accordingly, the Court sua sponte dismisses the Complaint pursuant to 28 U.S.C. 10 § 1915A based on a failure to state a claim upon which relief may be granted, for seeking 11 monetary relief from defendants immune from such relief, and as legally frivolous. See 28 12 U.S.C. § 1915A(b)(1)-(2) (“On review, the court shall identify cognizable claims or 13 dismiss the complaint, or any portion of the complaint, if the complaint - (1) is frivolous, 14 malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary 15 relief from a defendant who is immune from such relief.”) 16 D. Leave to Amend 17 Because it is absolutely clear Plaintiff cannot amend his Complaint to sufficiently 18 allege a claim against any Defendant, the Complaint is dismissed with prejudice and 19 without leave to amend. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A 20 district court should not dismiss a pro se complaint without leave to amend unless ‘it is 21 absolutely clear that the deficiencies of the complaint could not be cured by amendment.’”), 22 quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012); Schmier v. U.S. Court of 23 Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing futility of 24 amendment as a proper basis for dismissal without leave to amend). 25 II. Conclusion and Orders 26 Good cause appearing, the Court DISMISSES Plaintiff’s Complaint pursuant to 28 27 U.S.C. § 1915A(b) for failing to state a claim upon which relief may be granted, for seeking 28 monetary relief from defendants immune from such relief, and as legally frivolous. The 1 || dismissal is with prejudice and without leave to amend. The Clerk of Court shall enter 2 || judgment accordingly and close the file. 3 IT IS SO ORDERED. 4 Dated: March 28, 2022 ©; Z 5 Hon. Cathy Ann Bencivengo 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 □□