1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KUANG-BAO PAUL OU-YOUNG, Case No. 21-cv-07361-BLF
9 Plaintiff, ORDER ADDRESSING ADDITION OF 10 v. THE UNDERSIGNED AS A DEFENDANT; DISMISSING CERTAIN 11 COUNTY OF SANTA CLARA, et al., DEFENDANTS NAMED IN THE FIRST AMENDED COMPLAINT; AND 12 Defendants. EXTENDING COUNTY DEFENDANTS’ DEADLINE TO 13 RESPOND TO FIRST AMENDED COMPLAINT 14 [Re: ECF 21, 22] 15
17 18 In this order, the Court: (1) addresses Plaintiff’s addition of the undersigned as a 19 defendant in the first amended complaint (“FAC”); (2) dismisses certain defendants; and 20 (3) extends the County Defendants’ deadline to respond to the FAC. 21 I. BACKGROUND 22 Plaintiff Kuang-Bao Paul Ou-Young has been declared a vexatious litigant and is subject 23 to two pre-filing review orders. As relevant here, the second pre-filing review order requires 24 Plaintiff to “obtain leave of court before filing any complaint that alleges claims against federal 25 judges, including United States Supreme Court justices, federal circuit judges, federal district 26 judges, federal magistrate judges, and federal bankruptcy judges.” See ECF 26 in Case No. 19-cv- 27 07000-BLF. 1 Plaintiff filed the original complaint in this action on September 22, 2021, after a judicial 2 determination that the complaint did not assert claims against federal judges or otherwise within 3 the scope of the applicable pre-filing review orders. See Order Authorizing Filing of Compl., ECF 4 1; Compl., ECF 2. On January 25, 2022, this Court dismissed all unserved defendants. See Order, 5 ECF 17. The five defendants who had been served – the County of Santa Clara and related 6 individuals (“County Defendants”) – filed a motion to dismiss the complaint pursuant to Federal 7 Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Mot. to Dismiss, ECF 19. Plaintiff responded 8 by filing a FAC as of right, adding dozens of new claims and hundreds of new defendants. See 9 FAC, ECF 21. Among the newly-added defendants are the undersigned and more than 100 other 10 federal judges. See id. The FAC also reasserts claims against defendants that this Court dismissed 11 without leave to amend for failure to effect service of process. See id. 12 Upon the filing of the FAC, the undersigned terminated as moot the County Defendants’ 13 motion to dismiss the original complaint. See Order Terminating Motion, ECF 23. The County 14 Defendants filed an administrative motion to stay their deadline to respond to the FAC pending 15 pre-filing review of the FAC. See Admin. Mot. to Stay, ECF 22. Plaintiff filed opposition to the 16 administrative motion to stay. See Pl.’s Opp., ECF 25. 17 II. RECUSAL IS NOT WARRANTED 18 Because Plaintiff has named the undersigned as a defendant in the FAC, the Court must 19 consider whether recusal is warranted. Pursuant to 28 U.S.C. § 455, “[a]ny justice, judge, or 20 magistrate judge of the United States shall disqualify himself in any proceeding in which his 21 impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Section 455 enumerates 22 several circumstances requiring recusal, including where the judge “has a personal bias or 23 prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the 24 proceeding.” 28 U.S.C. § 455(b)(1). “[T]he provisions of § 455(a) & (b)(1) require recusal only if 25 the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made 26 during the course of the proceeding.” Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 27 (9th Cir. 1988). “[I]n the absence of a legitimate reason to recuse himself, a judge should 1 (internal quotation marks and citation omitted). 2 In the FAC, Plaintiff alleges that the undersigned violated Plaintiff’s civil rights by issuing 3 a pre-filing review order and by dismissing pleadings in Plaintiff’s prior lawsuits. See FAC ¶¶ 4 c17, c21, c25, c28, c53, c58, c59. Because Plaintiff’s claims arise from conduct and rulings made 5 in the course of Plaintiffs’ legal proceedings, and not from any extrajudicial source, the claims do 6 not warrant recusal of the undersigned. 7 III. FEDERAL JUDGES AND PREVIOUSLY DISMISSED DEFENDANTS 8 A. Federal Judges 9 It appears that Plaintiff has attempted to end-run the applicable pre-filing review orders by 10 amending his complaint to add federal judges only after his original complaint was approved for 11 filing. “But plaintiff cannot render the court’s pre-filing order nugatory with such 12 gamesmanship.” Bruzzone v. McManis, No. 18-CV-01235-PJH, 2018 WL 1730663, at *1 (N.D. 13 Cal. Apr. 10, 2018). Accordingly, this Court will screen Plaintiff’s FAC in accordance with the 14 pre-filing review orders. See id. (screening amended pleading that added a new party within the 15 scope of applicable pre-filing review order); see also Moye v. Rest. Depot, No. C 19-80004 WHA, 16 2019 WL 1454118, at *2 (N.D. Cal. Apr. 2, 2019) (screening amended pleading pursuant to pre- 17 filing review order). 18 The FAC adds claims against 108 individuals that Plaintiff identifies as federal judges, 19 implicating the pre-filing review order discussed above. See FAC ¶¶ a25-a41, a48-a130, a135- 20 a142 (identifying federal judges). The FAC fails to state a potentially cognizable claim against 21 any of those individuals. Judges generally are absolutely immune from civil suit. See Mireles v. 22 Waco, 502 U.S. 9, 9 (1991) (“[G]enerally, a judge is immune from a suit for money damages.”); 23 Atkinson-Baker & Assocs., Inc. v. Kolts, 7 F.3d 1452, 1454 (9th Cir. 1993) (“Federal judges are 24 absolutely immune from claims for declaratory and injunctive relief arising from their judicial 25 acts.”). “[J]udicial immunity is an immunity from suit, not just from ultimate assessment of 26 damages.” Mireles, 502 U.S. at 11. 27 “[J]udicial immunity is not overcome by allegations of bad faith or malice, the existence of 1 502 U.S. at 11. “[I]mmunity is overcome in only two sets of circumstances.” Id. “First, a judge 2 is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial 3 capacity.” Id. “Second, a judge is not immune for actions, though judicial in nature, taken in the 4 complete absence of all jurisdiction.” Id. 5 Plaintiff’s claims against the individuals identified as federal judges in the FAC are based 6 upon judicial acts, such as issuing or applying pre-filing review orders, dismissing Plaintiff’s 7 pleadings and lawsuits, denying his appeals, and the like. Federal judges have absolute judicial 8 immunity for those actions. Accordingly, the following individual defendants identified as federal 9 judges in the FAC are DISMISSED WITHOUT LEAVE TO AMEND: 10 Richard G. Seeborg 11 Phyllis J. Hamilton 12 Lucy H. Koh 13 Edward M. Chen 14 Beth Labson Freeman 15 William H. Orrick 16 Claudia A. Wilken 17 Yvonne Gonzalez Rogers 18 Susan Y. Illston 19 Jeffrey S. White 20 Vince G. Chhabria 21 William H. Alsup 22 James Donato 23 Virginia K. DeMarchi 24 Alex G. Tse 25 Nathanael M. Cousins 26 Laurel Beeler 27 Sarah Evans Barker 1 Ralph R. Beistline 2 George H. King 3 Anthony W. Ishii 4 Stephen M. McNamee 5 Philip S. Gutierrez 6 Brian M. Morris 7 Miranda M. Du 8 Ronald S. W. Lew 9 Stefan R. Underhill 10 Freda L. Wolfson 11 John P. Bailey 12 S. Maurice Hicks, Jr.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KUANG-BAO PAUL OU-YOUNG, Case No. 21-cv-07361-BLF
9 Plaintiff, ORDER ADDRESSING ADDITION OF 10 v. THE UNDERSIGNED AS A DEFENDANT; DISMISSING CERTAIN 11 COUNTY OF SANTA CLARA, et al., DEFENDANTS NAMED IN THE FIRST AMENDED COMPLAINT; AND 12 Defendants. EXTENDING COUNTY DEFENDANTS’ DEADLINE TO 13 RESPOND TO FIRST AMENDED COMPLAINT 14 [Re: ECF 21, 22] 15
17 18 In this order, the Court: (1) addresses Plaintiff’s addition of the undersigned as a 19 defendant in the first amended complaint (“FAC”); (2) dismisses certain defendants; and 20 (3) extends the County Defendants’ deadline to respond to the FAC. 21 I. BACKGROUND 22 Plaintiff Kuang-Bao Paul Ou-Young has been declared a vexatious litigant and is subject 23 to two pre-filing review orders. As relevant here, the second pre-filing review order requires 24 Plaintiff to “obtain leave of court before filing any complaint that alleges claims against federal 25 judges, including United States Supreme Court justices, federal circuit judges, federal district 26 judges, federal magistrate judges, and federal bankruptcy judges.” See ECF 26 in Case No. 19-cv- 27 07000-BLF. 1 Plaintiff filed the original complaint in this action on September 22, 2021, after a judicial 2 determination that the complaint did not assert claims against federal judges or otherwise within 3 the scope of the applicable pre-filing review orders. See Order Authorizing Filing of Compl., ECF 4 1; Compl., ECF 2. On January 25, 2022, this Court dismissed all unserved defendants. See Order, 5 ECF 17. The five defendants who had been served – the County of Santa Clara and related 6 individuals (“County Defendants”) – filed a motion to dismiss the complaint pursuant to Federal 7 Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Mot. to Dismiss, ECF 19. Plaintiff responded 8 by filing a FAC as of right, adding dozens of new claims and hundreds of new defendants. See 9 FAC, ECF 21. Among the newly-added defendants are the undersigned and more than 100 other 10 federal judges. See id. The FAC also reasserts claims against defendants that this Court dismissed 11 without leave to amend for failure to effect service of process. See id. 12 Upon the filing of the FAC, the undersigned terminated as moot the County Defendants’ 13 motion to dismiss the original complaint. See Order Terminating Motion, ECF 23. The County 14 Defendants filed an administrative motion to stay their deadline to respond to the FAC pending 15 pre-filing review of the FAC. See Admin. Mot. to Stay, ECF 22. Plaintiff filed opposition to the 16 administrative motion to stay. See Pl.’s Opp., ECF 25. 17 II. RECUSAL IS NOT WARRANTED 18 Because Plaintiff has named the undersigned as a defendant in the FAC, the Court must 19 consider whether recusal is warranted. Pursuant to 28 U.S.C. § 455, “[a]ny justice, judge, or 20 magistrate judge of the United States shall disqualify himself in any proceeding in which his 21 impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Section 455 enumerates 22 several circumstances requiring recusal, including where the judge “has a personal bias or 23 prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the 24 proceeding.” 28 U.S.C. § 455(b)(1). “[T]he provisions of § 455(a) & (b)(1) require recusal only if 25 the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made 26 during the course of the proceeding.” Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 27 (9th Cir. 1988). “[I]n the absence of a legitimate reason to recuse himself, a judge should 1 (internal quotation marks and citation omitted). 2 In the FAC, Plaintiff alleges that the undersigned violated Plaintiff’s civil rights by issuing 3 a pre-filing review order and by dismissing pleadings in Plaintiff’s prior lawsuits. See FAC ¶¶ 4 c17, c21, c25, c28, c53, c58, c59. Because Plaintiff’s claims arise from conduct and rulings made 5 in the course of Plaintiffs’ legal proceedings, and not from any extrajudicial source, the claims do 6 not warrant recusal of the undersigned. 7 III. FEDERAL JUDGES AND PREVIOUSLY DISMISSED DEFENDANTS 8 A. Federal Judges 9 It appears that Plaintiff has attempted to end-run the applicable pre-filing review orders by 10 amending his complaint to add federal judges only after his original complaint was approved for 11 filing. “But plaintiff cannot render the court’s pre-filing order nugatory with such 12 gamesmanship.” Bruzzone v. McManis, No. 18-CV-01235-PJH, 2018 WL 1730663, at *1 (N.D. 13 Cal. Apr. 10, 2018). Accordingly, this Court will screen Plaintiff’s FAC in accordance with the 14 pre-filing review orders. See id. (screening amended pleading that added a new party within the 15 scope of applicable pre-filing review order); see also Moye v. Rest. Depot, No. C 19-80004 WHA, 16 2019 WL 1454118, at *2 (N.D. Cal. Apr. 2, 2019) (screening amended pleading pursuant to pre- 17 filing review order). 18 The FAC adds claims against 108 individuals that Plaintiff identifies as federal judges, 19 implicating the pre-filing review order discussed above. See FAC ¶¶ a25-a41, a48-a130, a135- 20 a142 (identifying federal judges). The FAC fails to state a potentially cognizable claim against 21 any of those individuals. Judges generally are absolutely immune from civil suit. See Mireles v. 22 Waco, 502 U.S. 9, 9 (1991) (“[G]enerally, a judge is immune from a suit for money damages.”); 23 Atkinson-Baker & Assocs., Inc. v. Kolts, 7 F.3d 1452, 1454 (9th Cir. 1993) (“Federal judges are 24 absolutely immune from claims for declaratory and injunctive relief arising from their judicial 25 acts.”). “[J]udicial immunity is an immunity from suit, not just from ultimate assessment of 26 damages.” Mireles, 502 U.S. at 11. 27 “[J]udicial immunity is not overcome by allegations of bad faith or malice, the existence of 1 502 U.S. at 11. “[I]mmunity is overcome in only two sets of circumstances.” Id. “First, a judge 2 is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial 3 capacity.” Id. “Second, a judge is not immune for actions, though judicial in nature, taken in the 4 complete absence of all jurisdiction.” Id. 5 Plaintiff’s claims against the individuals identified as federal judges in the FAC are based 6 upon judicial acts, such as issuing or applying pre-filing review orders, dismissing Plaintiff’s 7 pleadings and lawsuits, denying his appeals, and the like. Federal judges have absolute judicial 8 immunity for those actions. Accordingly, the following individual defendants identified as federal 9 judges in the FAC are DISMISSED WITHOUT LEAVE TO AMEND: 10 Richard G. Seeborg 11 Phyllis J. Hamilton 12 Lucy H. Koh 13 Edward M. Chen 14 Beth Labson Freeman 15 William H. Orrick 16 Claudia A. Wilken 17 Yvonne Gonzalez Rogers 18 Susan Y. Illston 19 Jeffrey S. White 20 Vince G. Chhabria 21 William H. Alsup 22 James Donato 23 Virginia K. DeMarchi 24 Alex G. Tse 25 Nathanael M. Cousins 26 Laurel Beeler 27 Sarah Evans Barker 1 Ralph R. Beistline 2 George H. King 3 Anthony W. Ishii 4 Stephen M. McNamee 5 Philip S. Gutierrez 6 Brian M. Morris 7 Miranda M. Du 8 Ronald S. W. Lew 9 Stefan R. Underhill 10 Freda L. Wolfson 11 John P. Bailey 12 S. Maurice Hicks, Jr. 13 Sara E. Lioi 14 Jon E. DeGuilio 15 John R. Tunheim 16 Leslie E. Kobayashi 17 Claire V. Eagan 18 L. Scott Coogler 19 Beryl A. Howell 20 Mary H. Murguia 21 Sidney R. Thomas 22 Mary M. Schroeder 23 Barry G. Silverman 24 Richard A. Paez 25 Danielle J. Forrest 26 Paul J. Watford 27 Mark J. Bennett 1 N. Randy Smith 2 Morgan Christen 3 Sandra S. Ikuta 4 Michelle T. Friedland 5 Alex Kozinski 6 J. Clifford Wallace 7 Richard C. Tallman 8 Richard R. Clifton 9 Alfred T. Goodwin 10 Dorothy W. Nelson 11 William C. Canby, Jr. 12 Diarmuid F. O’Scannlain 13 Edward Leavy 14 Stephen Trott 15 Ferdinand F. Fernandez 16 Andrew J. Kleinfeld 17 Michael Daly Hawkins 18 Wallace Tashima 19 Susan P. Graber 20 M. Margaret McKeown 21 Kim McLane Wardlaw 22 William A. Fletcher 23 Ronald M. Gould 24 Marsha S. Berzon 25 Johnnie B. Rawlinson 26 Jay S. Bybee 27 Consuelo M. Callahan 1 Milan D. Smith, Jr. 2 Jacqueline H. Nguyen 3 Andrew D. Hurwitz 4 John B. Owens 5 Ryan D. Nelson 6 Eric D. Miller 7 Bridget S. Bade 8 Daniel P. Collins 9 Kenneth Kiyul Lee 10 Daniel A. Bress 11 Patrick J. Bumatay 12 Jeffrey R. Howard 13 Debra A. Livingston 14 Michael A. Chagares 15 Roger L. Gregory 16 Priscilla R. Owen 17 Jeffrey S. Sutton 18 Diane S. Sykes 19 Lavenski R. Smith 20 Timothy M. Tymkovich 21 William H. Pryor, Jr. 22 Srikanth Srinivasan 23 Kimberly A. Moore 24 Pasco M. Bowman 25 J. Harvie Wilkinson III 26 John G. Roberts, Jr. 27 Anthony M. Kennedy 1 Stephen G. Breyer 2 Ruth Bader Ginsburg1 3 Samuel A. Alito, Jr. 4 Sonia Sotomayor 5 Elena Kagan 6 7 B. Previously Dismissed Defendants 8 The FAC reasserts claims against defendants that the Court has dismissed from this suit for 9 failure to effect service of process. Plaintiff did not obtain leave of court to reassert claims against 10 those defendants, who once again are dismissed. The following defendants are DISMISSED 11 WITHOUT LEAVE TO AMEND: 12 John Chase 13 Jeanette Tonini 14 Karl Sandoval 15 Karan Dhadialla 16 Jose Martinez 17 18 IV. COUNTY DEFENDANTS’ DEADLINE TO RESPOND TO FAC 19 On March 3, 2022, the County Defendants filed an administrative motion to stay their 20 deadline to respond to the FAC pending pre-filing review of the FAC. See Admin. Mot. to Stay, 21 ECF 22. Plaintiff filed opposition to the administrative motion to stay. See Pl.’s Opp., ECF 25. 22 The administrative motion is MOOT in light of the Court’s screening of the FAC herein. The 23 County Defendants’ deadline to respond to the FAC is EXTENDED to March 28, 2022, which is 24 fourteen days after the issuance of this order. 25 26 1 The Court observes that Justice Ruth Bader Ginsberg is deceased. 27 1 V. SERVICE OF REMAINING DEFENDANTS 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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