KUANG-BAO PAUL OU-YOUNG, Case No. 21-cv-07361-BLF
Plaintiff, ORDER ADDRESSING ADDITION OF v. THE UNDERSIGNED AS A DEFENDANT; DISMISSING CERTAIN COUNTY OF SANTA CLARA, et al., DEFENDANTS NAMED IN THE FIRST AMENDED COMPLAINT; AND Defendants. EXTENDING COUNTY DEFENDANTS’ DEADLINE TO RESPOND TO FIRST AMENDED COMPLAINT [Re: ECF 21, 22]
In this order, the Court: (1) addresses Plaintiff’s addition of the undersigned as a defendant in the first amended complaint (“FAC”); (2) dismisses certain defendants; and (3) extends the County Defendants’ deadline to respond to the FAC. Plaintiff Kuang-Bao Paul Ou-Young has been declared a vexatious litigant and is subject to two pre-filing review orders. As relevant here, the second pre-filing review order requires Plaintiff to “obtain leave of court before filing any complaint that alleges claims against federal judges, including United States Supreme Court justices, federal circuit judges, federal district judges, federal magistrate judges, and federal bankruptcy judges.” See ECF 26 in Case No. 19-cv- 07000-BLF. Plaintiff filed the original complaint in this action on September 22, 2021, after a judicial determination that the complaint did not assert claims against federal judges or otherwise within the scope of the applicable pre-filing review orders. See Order Authorizing Filing of Compl., ECF 1; Compl., ECF 2. On January 25, 2022, this Court dismissed all unserved defendants. See Order, ECF 17. The five defendants who had been served – the County of Santa Clara and related individuals (“County Defendants”) – filed a motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Mot. to Dismiss, ECF 19. Plaintiff responded by filing a FAC as of right, adding dozens of new claims and hundreds of new defendants. See FAC, ECF 21. Among the newly-added defendants are the undersigned and more than 100 other federal judges. See id. The FAC also reasserts claims against defendants that this Court dismissed without leave to amend for failure to effect service of process. See id. Upon the filing of the FAC, the undersigned terminated as moot the County Defendants’ motion to dismiss the original complaint. See Order Terminating Motion, ECF 23. The County Defendants filed an administrative motion to stay their deadline to respond to the FAC pending pre-filing review of the FAC. See Admin. Mot. to Stay, ECF 22. Plaintiff filed opposition to the administrative motion to stay. See Pl.’s Opp., ECF 25. Because Plaintiff has named the undersigned as a defendant in the FAC, the Court must consider whether recusal is warranted. Pursuant to 28 U.S.C. § 455, “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Section 455 enumerates several circumstances requiring recusal, including where the judge “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(b)(1). “[T]he provisions of § 455(a) & (b)(1) require recusal only if the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made during the course of the proceeding.” Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988). “[I]n the absence of a legitimate reason to recuse himself, a judge should (internal quotation marks and citation omitted). In the FAC, Plaintiff alleges that the undersigned violated Plaintiff’s civil rights by issuing a pre-filing review order and by dismissing pleadings in Plaintiff’s prior lawsuits. See FAC ¶¶ c17, c21, c25, c28, c53, c58, c59. Because Plaintiff’s claims arise from conduct and rulings made in the course of Plaintiffs’ legal proceedings, and not from any extrajudicial source, the claims do not warrant recusal of the undersigned. III. FEDERAL JUDGES AND PREVIOUSLY DISMISSED DEFENDANTS A. Federal Judges It appears that Plaintiff has attempted to end-run the applicable pre-filing review orders by amending his complaint to add federal judges only after his original complaint was approved for filing. “But plaintiff cannot render the court’s pre-filing order nugatory with such gamesmanship.” Bruzzone v. McManis, No. 18-CV-01235-PJH, 2018 WL 1730663, at *1 (N.D. Cal. Apr. 10, 2018). Accordingly, this Court will screen Plaintiff’s FAC in accordance with the pre-filing review orders. See id. (screening amended pleading that added a new party within the scope of applicable pre-filing review order); see also Moye v. Rest. Depot, No. C 19-80004 WHA, 2019 WL 1454118, at *2 (N.D. Cal. Apr. 2, 2019) (screening amended pleading pursuant to pre- filing review order). The FAC adds claims against 108 individuals that Plaintiff identifies as federal judges, implicating the pre-filing review order discussed above. See FAC ¶¶ a25-a41, a48-a130, a135- a142 (identifying federal judges). The FAC fails to state a potentially cognizable claim against any of those individuals. Judges generally are absolutely immune from civil suit. See Mireles v. Waco, 502 U.S. 9, 9 (1991) (“[G]enerally, a judge is immune from a suit for money damages.”); Atkinson-Baker & Assocs., Inc. v. Kolts, 7 F.3d 1452, 1454 (9th Cir. 1993) (“Federal judges are absolutely immune from claims for declaratory and injunctive relief arising from their judicial acts.”). “[J]udicial immunity is an immunity from suit, not just from ultimate assessment of damages.” Mireles, 502 U.S. at 11. “[J]udicial immunity is not overcome by allegations of bad faith or malice, the existence of 502 U.S. at 11. “[I]mmunity is overcome in only two sets of circumstances.” Id. “First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity.” Id. “Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Id. Plaintiff’s claims against the individuals identified as federal judges in the FAC are based upon judicial acts, such as issuing or applying pre-filing review orders, dismissing Plaintiff’s pleadings and lawsuits, denying his appeals, and the like. Federal judges have absolute judicial immunity for those actions. Accordingly, the following individual defendants identified as federal judges in the FAC are DISMISSED WITHOUT LEAVE TO AMEND: Richard G. Seeborg Phyllis J. Hamilton Lucy H. Koh Edward M. Chen Beth Labson Freeman William H. Orrick Claudia A. Wilken Yvonne Gonzalez Rogers Susan Y. Illston Jeffrey S. White Vince G. Chhabria William H. Alsup James Donato Virginia K. DeMarchi Alex G. Tse Nathanael M. Cousins Laurel Beeler Sarah Evans Barker Ralph R. Beistline George H. King Anthony W. Ishii Stephen M. McNamee Philip S. Gutierrez Brian M. Morris Miranda M. Du Ronald S. W. Lew Stefan R. Underhill Freda L. Wolfson John P. Bailey S. Maurice Hicks, Jr. Sara E. Lioi Jon E. DeGuilio John R. Tunheim Leslie E. Kobayashi Claire V. Eagan L. Scott Coogler Beryl A. Howell Mary H. Murguia Sidney R. Thomas Mary M. Schroeder Barry G. Silverman Richard A. Paez Danielle J. Forrest Paul J. Watford Mark J. Bennett N. Randy Smith Morgan Christen Sandra S. Ikuta Michelle T. Friedland Alex Kozinski J. Cliff
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KUANG-BAO PAUL OU-YOUNG, Case No. 21-cv-07361-BLF
Plaintiff, ORDER ADDRESSING ADDITION OF v. THE UNDERSIGNED AS A DEFENDANT; DISMISSING CERTAIN COUNTY OF SANTA CLARA, et al., DEFENDANTS NAMED IN THE FIRST AMENDED COMPLAINT; AND Defendants. EXTENDING COUNTY DEFENDANTS’ DEADLINE TO RESPOND TO FIRST AMENDED COMPLAINT [Re: ECF 21, 22]
In this order, the Court: (1) addresses Plaintiff’s addition of the undersigned as a defendant in the first amended complaint (“FAC”); (2) dismisses certain defendants; and (3) extends the County Defendants’ deadline to respond to the FAC. Plaintiff Kuang-Bao Paul Ou-Young has been declared a vexatious litigant and is subject to two pre-filing review orders. As relevant here, the second pre-filing review order requires Plaintiff to “obtain leave of court before filing any complaint that alleges claims against federal judges, including United States Supreme Court justices, federal circuit judges, federal district judges, federal magistrate judges, and federal bankruptcy judges.” See ECF 26 in Case No. 19-cv- 07000-BLF. Plaintiff filed the original complaint in this action on September 22, 2021, after a judicial determination that the complaint did not assert claims against federal judges or otherwise within the scope of the applicable pre-filing review orders. See Order Authorizing Filing of Compl., ECF 1; Compl., ECF 2. On January 25, 2022, this Court dismissed all unserved defendants. See Order, ECF 17. The five defendants who had been served – the County of Santa Clara and related individuals (“County Defendants”) – filed a motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Mot. to Dismiss, ECF 19. Plaintiff responded by filing a FAC as of right, adding dozens of new claims and hundreds of new defendants. See FAC, ECF 21. Among the newly-added defendants are the undersigned and more than 100 other federal judges. See id. The FAC also reasserts claims against defendants that this Court dismissed without leave to amend for failure to effect service of process. See id. Upon the filing of the FAC, the undersigned terminated as moot the County Defendants’ motion to dismiss the original complaint. See Order Terminating Motion, ECF 23. The County Defendants filed an administrative motion to stay their deadline to respond to the FAC pending pre-filing review of the FAC. See Admin. Mot. to Stay, ECF 22. Plaintiff filed opposition to the administrative motion to stay. See Pl.’s Opp., ECF 25. Because Plaintiff has named the undersigned as a defendant in the FAC, the Court must consider whether recusal is warranted. Pursuant to 28 U.S.C. § 455, “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Section 455 enumerates several circumstances requiring recusal, including where the judge “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(b)(1). “[T]he provisions of § 455(a) & (b)(1) require recusal only if the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made during the course of the proceeding.” Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988). “[I]n the absence of a legitimate reason to recuse himself, a judge should (internal quotation marks and citation omitted). In the FAC, Plaintiff alleges that the undersigned violated Plaintiff’s civil rights by issuing a pre-filing review order and by dismissing pleadings in Plaintiff’s prior lawsuits. See FAC ¶¶ c17, c21, c25, c28, c53, c58, c59. Because Plaintiff’s claims arise from conduct and rulings made in the course of Plaintiffs’ legal proceedings, and not from any extrajudicial source, the claims do not warrant recusal of the undersigned. III. FEDERAL JUDGES AND PREVIOUSLY DISMISSED DEFENDANTS A. Federal Judges It appears that Plaintiff has attempted to end-run the applicable pre-filing review orders by amending his complaint to add federal judges only after his original complaint was approved for filing. “But plaintiff cannot render the court’s pre-filing order nugatory with such gamesmanship.” Bruzzone v. McManis, No. 18-CV-01235-PJH, 2018 WL 1730663, at *1 (N.D. Cal. Apr. 10, 2018). Accordingly, this Court will screen Plaintiff’s FAC in accordance with the pre-filing review orders. See id. (screening amended pleading that added a new party within the scope of applicable pre-filing review order); see also Moye v. Rest. Depot, No. C 19-80004 WHA, 2019 WL 1454118, at *2 (N.D. Cal. Apr. 2, 2019) (screening amended pleading pursuant to pre- filing review order). The FAC adds claims against 108 individuals that Plaintiff identifies as federal judges, implicating the pre-filing review order discussed above. See FAC ¶¶ a25-a41, a48-a130, a135- a142 (identifying federal judges). The FAC fails to state a potentially cognizable claim against any of those individuals. Judges generally are absolutely immune from civil suit. See Mireles v. Waco, 502 U.S. 9, 9 (1991) (“[G]enerally, a judge is immune from a suit for money damages.”); Atkinson-Baker & Assocs., Inc. v. Kolts, 7 F.3d 1452, 1454 (9th Cir. 1993) (“Federal judges are absolutely immune from claims for declaratory and injunctive relief arising from their judicial acts.”). “[J]udicial immunity is an immunity from suit, not just from ultimate assessment of damages.” Mireles, 502 U.S. at 11. “[J]udicial immunity is not overcome by allegations of bad faith or malice, the existence of 502 U.S. at 11. “[I]mmunity is overcome in only two sets of circumstances.” Id. “First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity.” Id. “Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Id. Plaintiff’s claims against the individuals identified as federal judges in the FAC are based upon judicial acts, such as issuing or applying pre-filing review orders, dismissing Plaintiff’s pleadings and lawsuits, denying his appeals, and the like. Federal judges have absolute judicial immunity for those actions. Accordingly, the following individual defendants identified as federal judges in the FAC are DISMISSED WITHOUT LEAVE TO AMEND: Richard G. Seeborg Phyllis J. Hamilton Lucy H. Koh Edward M. Chen Beth Labson Freeman William H. Orrick Claudia A. Wilken Yvonne Gonzalez Rogers Susan Y. Illston Jeffrey S. White Vince G. Chhabria William H. Alsup James Donato Virginia K. DeMarchi Alex G. Tse Nathanael M. Cousins Laurel Beeler Sarah Evans Barker Ralph R. Beistline George H. King Anthony W. Ishii Stephen M. McNamee Philip S. Gutierrez Brian M. Morris Miranda M. Du Ronald S. W. Lew Stefan R. Underhill Freda L. Wolfson John P. Bailey S. Maurice Hicks, Jr. Sara E. Lioi Jon E. DeGuilio John R. Tunheim Leslie E. Kobayashi Claire V. Eagan L. Scott Coogler Beryl A. Howell Mary H. Murguia Sidney R. Thomas Mary M. Schroeder Barry G. Silverman Richard A. Paez Danielle J. Forrest Paul J. Watford Mark J. Bennett N. Randy Smith Morgan Christen Sandra S. Ikuta Michelle T. Friedland Alex Kozinski J. Clifford Wallace Richard C. Tallman Richard R. Clifton Alfred T. Goodwin Dorothy W. Nelson William C. Canby, Jr. Diarmuid F. O’Scannlain Edward Leavy Stephen Trott Ferdinand F. Fernandez Andrew J. Kleinfeld Michael Daly Hawkins Wallace Tashima Susan P. Graber M. Margaret McKeown Kim McLane Wardlaw William A. Fletcher Ronald M. Gould Marsha S. Berzon Johnnie B. Rawlinson Jay S. Bybee Consuelo M. Callahan Milan D. Smith, Jr. Jacqueline H. Nguyen Andrew D. Hurwitz John B. Owens Ryan D. Nelson Eric D. Miller Bridget S. Bade Daniel P. Collins Kenneth Kiyul Lee Daniel A. Bress Patrick J. Bumatay Jeffrey R. Howard Debra A. Livingston Michael A. Chagares Roger L. Gregory Priscilla R. Owen Jeffrey S. Sutton Diane S. Sykes Lavenski R. Smith Timothy M. Tymkovich William H. Pryor, Jr. Srikanth Srinivasan Kimberly A. Moore Pasco M. Bowman J. Harvie Wilkinson III John G. Roberts, Jr. Anthony M. Kennedy Stephen G. Breyer Ruth Bader Ginsburg1 Samuel A. Alito, Jr. Sonia Sotomayor Elena Kagan B. Previously Dismissed Defendants The FAC reasserts claims against defendants that the Court has dismissed from this suit for failure to effect service of process. Plaintiff did not obtain leave of court to reassert claims against those defendants, who once again are dismissed. The following defendants are DISMISSED WITHOUT LEAVE TO AMEND: John Chase Jeanette Tonini Karl Sandoval Karan Dhadialla Jose Martinez On March 3, 2022, the County Defendants filed an administrative motion to stay their deadline to respond to the FAC pending pre-filing review of the FAC. See Admin. Mot. to Stay, ECF 22. Plaintiff filed opposition to the administrative motion to stay. See Pl.’s Opp., ECF 25. The administrative motion is MOOT in light of the Court’s screening of the FAC herein. The County Defendants’ deadline to respond to the FAC is EXTENDED to March 28, 2022, which is fourteen days after the issuance of this order. 1 The Court observes that Justice Ruth Bader Ginsberg is deceased. 2 Federal Rule of Civil Procedure 4(m) requires service of the summons and complaint on 3 all parties within 90 days after the complaint is filed. Plaintiff shall comply with Rule 4(m). 4 Failure to do so will result in dismissal of all unserved defendants without further notice by the 5 Court. 6 7 Dated: March 15, 2022 8 nicen) BETH LABSON FREEMAN 9 United States District Judge 10 11 12
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