Shalaby v. Judicial Officers

138 F. App'x 897

Opinion

MEMORANDUM

Footnotes

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Andrew W. Shalaby appeals the district court’s dismissal of his action against all of the Judicial Officers of the State of California. We affirm.

Shalaby sued the judicial officers in their official capacity for the purpose of having one of the State of California’s statutes ¹ declared unconstitutional. His suit is, in effect, an action against an arm of the state itself. See Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir.2003). However, with certain exceptions, pursuant to the Eleventh Amendment to the United States Constitution “[t]he Judicial power of the United States” does not extend to an action by a citizen against a State. See Pennhurst State Sch. efe Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Hans v. Louisiana, 134 U.S. 1, 3-4, 9-10, 21, 10 S.Ct. 504, 505, 509, 33 L.Ed. 842 (1890). No exception to that prohibition applies here. See Seminole Tribe v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252 (1996) (exception when Congress properly abrogates immunity); Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304-05, 110 S.Ct. 1868, 1872, 109 L.Ed.2d 264 (1990) (exception when state waives immunity); Ex Parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 452, 52 L.Ed. 714 (1908) (state official can be enjoined).

Shalaby does assert that because he is suing the state’s judicial officers, he comes within the Ex Parte Young exception. He is wrong. “We agree with [the] decisions holding that judges adjudicating cases pursuant to state statutes may not be sued under § 1983 in a suit challenging the state law.” Grant v. Johnson, 15 F.3d 146, 148 (9th Cir.1994); see also Wolfe v. Strankman, 392 F.3d 358, 365-66 (9th Cir.2004); In re The Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 22 (1st Cir.1982).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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. Cal.Civ.Proc.Code § 425.16.