Surina v. Glanzer

Opinion

FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Jan 08, 2021 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK

In propria persona AARON M. No. 2:20-cv-00345-SMJ SURINA; A.A.S., minor son; and D.M.S., minor son, ORDER GRANTING Plaintiffs, DEFENDANTS SPOKANE COUNTY SUPERIOR COURT v. JUSTICES’ MOTION TO DISMISS

KEITH A. GLANZER; KEITH A. GLANZER, P.S.; SPOKANE JUSTICES; DONNA HENRY; and

Defendants.

Before the Court, without oral argument, is Defendants Spokane County Superior Court Justices’1 (“Judges”) motion to dismiss, ECF No. 35. The Court is fully informed and grants the motion and dismisses Judges with prejudice. Plaintiffs filed their Complaint on September 24, 2020. ECF No. 1. The 1 Filings in this matter alternately name “Spokane County Superior Court Justices,” “Spokane County Superior Court Justices (EN BANC),” and “Spokane County Superior Court.” See, e.g., ECF Nos. 1, 9 & 35. Complaint names “Spokane County Superior Court Justices (EN BANC)” as a Defendant. ECF No. 1 at 2. Plaintiffs filed “Proof of Service” on October 16, 2020.

ECF No. 9. The proof of service indicated that the process server left the summons for “Spokane County Superior Court” at “Rm 300/Clerk.” Id. at 1. Plaintiffs appears to bring a claim under 42 U.S.C. § 1983, alleging that

Defendants violated their Fourth, Fifth, and Eighth Amendment Rights. ECF No. 1 at 3–4. As to Judges, Plaintiff Aaron Surina alleges that Commissioner Swennumson ordered ninety percent of his income to go to his wife, and denied his motion to correct this judgment. Id. at 6. Commissioner Swennumson also allegedly

denied him equal time with his children (minor Plaintiffs A.A.S. and D.M.S.). Id. He also alleges that Commissioners receive payments from Washington State Department of Social and Health Services (DSHS) to place children in the lower

income household of divorcing parents and that the court has ignored his objections to this practice. Id. Plaintiffs assert monetary damages and other “appropriate relief.” Id. at 7.

A. The Court takes judicial notice of the Final Divorce Order A Court may take judicial notice of facts which are either “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate

and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A court may not take judicial notice of a matter that is in dispute. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001). The

Court can take judicial notice of facts contained in public records. Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir.2006). The Court takes Judicial Notice under Federal Rule of Evidence 201 of

Plaintiff’s state action at issue here, Plaintiff’s Final Divorce Order in Spokane County Superior Court Cause Number 17-3-01817-0. ECF No. 37-1; see also Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). The rights and obligations created by this Order constitute the basis of Plaintiffs’ Complaint

against Judges. See ECF No. 1 at 6. The existence and contents of the Final Divorce Order are generally known to this tribunal as well as being capable of being authenticated by a source whose accuracy cannot reasonably be questioned and

meets the requirements for admission. B. This Court lacks jurisdiction to hear claims against Judges 1. Plaintiffs did not properly serve Judges “A federal court is without personal jurisdiction over a defendant unless the

defendant has been served in accordance with Fed. R. Civ. P. 4.” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). Plaintiffs did not properly serve Judges as required by Federal Rules of Civil Procedure 4 and 12. See Fed. R. Civ P.

4(a)(1)(a)–(b), 12(b)(4). First, Plaintiffs did not name or serve a proper Defendant. Second, Plaintiffs did not comply with the statutory rules for service upon a county. See Wash. Rev. Code § 4.28.080(1).

The Complaint names “Spokane County Superior Court Justices (EN BANC)” as a Defendant. But the proof of service lists “Spokane County Superior Court” at “Rm 300/Clerk.” ECF No. 9 at 1. There is no such entity as “Spokane

County Superior Court Justices (EN BANC)”. Service was thus not directed to a particular defendant. See Fed. R. Civ. P. 4(a)(1). Nor did Plaintiff serve the summons and complaint on the county auditor or chief executive officer as required. See ECF No. 9 at 1; Wash. Rev. Code § 4.28.080(1); Fed. R. Civ. P. 4(j)(2). The

Court thus lacks personal jurisdiction over Judges. Although Plaintiffs seek alternative service or service by the U.S. Marshal Service, ECF No. 39 at 1, because Plaintiffs’ Complaint is otherwise deficient, see

below, the Court denies Plaintiffs’ request. 2. This Court lacks subject-matter jurisdiction to adjudicate Plaintiffs’ damages claims against judges

A two-part test determines whether a judge is immune from liability when sued under Section 1983. Stump v. Sparkman, 435 U.S. 349, 362 (1978) First, the judge must have dealt with the plaintiff in his judicial capacity. Id. “[W]hether an act by a judge is a judicial one relates to the nature of the act itself, i.e. whether it is a function normally performed by a judge, and to the expectations of the parties, i.e. whether they dealt with the judge in his judicial capacity.” Mireles v. Waco, 502 U.S. 9, 12 (1991) (quoting Stump, 435 U.S. at 362). Second, the judge must not

have acted in the “clear absence of all jurisdiction.” Stump, 435 U.S. at 357. Both prongs of judicial immunity are met here. Plaintiff seeks damages from this court which he asserts stem from a state court judgment. This is a function

normally performed by judges in their judicial capacity. And in issuing the Final Divorce Order, the judge did not act in the clear absence of all jurisdiction. See ECF No. 37-1; Stump, 435 U.S. at 357, 362. The Eleventh Amendment further bars Plaintiffs’ claims against Judges.

Under the Eleventh Amendment, this Court cannot adjudicate an action brought by a citizen of a state against the state itself, its agencies, or its officials in their official capacities. See Hans v. Louisiana, 134 U.S. 1, 10–11 (1890); Walden v. Nevada,

945 F.3d 1088, 1092 (9th Cir. 2019). Washington has not unmistakably waived this immunity for judges in their official capacity, nor has unmistakably Congress abrogated it. See Raygor v. Regents of the Univ of Minn., 534 U.S. 533, 541–42 (2002). Washington law provides judges with absolute immunity from civil damage

suits for acts performed within their judicial capacity. Taggart v. State, 822 P.2d 243, 247 (Wash. 1992); Wash. Rev. Code § 4.24.470. The purpose of such immunity is to ensure that judges can administer justice without fear of personal

consequences. Taggart, 822 P.2d at 247. Judges are thus immune from money damages. C. Plaintiffs improperly appeal a state court judgment in federal court

“The Rooker–Feldman doctrine forbids a losing party in state court from filing suit in federal district court complaining of an injury caused by a state court judgment, and seeking federal court review and rejection of that judgment.” Bell v.

City of Boise, 709 F.3d 890, 897 (9th Cir. 2013); see also Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003). A plaintiff cannot bring a federal suit when the claim merely constitutes “a forbidden de facto appeal of a state court decision” or any inextricably intertwined

claim. Id.; see also Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008) (holding a federal suit is prohibited “the adjudication of the federal claims would undercut the state ruling or require the district court to interpret the

application of state laws or procedural rules.”). Plaintiffs’ action here is “inextricably intertwined” with the Final Divorce Order. See Bell, 709 F.3d at 897; ECF Nos. 37-1, 27-2. They dispute the validity of the custody and child support decision as well as the division of assets. ECF No. 1

at 6. They blame this on procedural shortcomings, alleged constitutional violations, and a supposed scheme with DSHS to favor custody with the lower-income parent. See id. As to their claims against Judges, Plaintiffs merely attempt a de facto appeal

of state court proceedings. Plaintiffs’ raises other arguments and allegations in response to his motion to dismiss. ECF No. 39. These include that Judges refused to accept pleadings

requesting a temporary restraining order to protect minor plaintiffs and ordered a writ of habeas corpus without a hearing while Plaintiff was in the hallway. Id. at 3. They also include that Judges have denied Plaintiffs’ request for a change of venue.

ECF No. 39 at 6. Those factual claims were not asserted in Plaintiffs’ Complaint. Nor have Plaintiffs filed any amended complaint. More importantly, for reasons discussed in the Court’s Order Denying Plaintiffs’ Motion for Preliminary Injunction, ECF No. 33, these claims are similarly improper. See ECF No. 33 at 10–

11 (discussing Noel, 341 F.3d at 1155 in the context of Plaintiffs other allegations). The gravamen of Plaintiffs’ Complaint is that they disagree with the results of his state court proceedings. And for the reasons discussed in this Order, the Court

cannot hear those claims. Plaintiffs must pursue the proper state court remedies. D. Plaintiffs fail to state a claim upon which relief can be granted Under Rule 12(b)(6), the Court must dismiss a complaint if it “fail[s] to state a claim upon which relief can be granted,” including where the plaintiff’s claims

either fail to allege a cognizable legal theory or fail to allege sufficient facts to support a cognizable legal theory. Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017). To survive a Rule 12(b)(6) motion, a complaint must contain

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Facial plausibility exists when a complaint pleads facts permitting a reasonable inference that the defendant is liable to the plaintiff for the misconduct alleged. Iqbal, 556 U.S. at 678. Plausibility does not require probability but

demands something more than a mere possibility of liability. Id. While the plaintiff need not make “detailed factual allegations,” “unadorned” accusations of unlawful harm and “formulaic” or “threadbare recitals” of a claim’s elements, supported only “by mere conclusory statements,” are insufficient. Id.

In deciding a Rule 12(b)(6) motion, the Court construes a complaint in the light most favorable to the plaintiff, assumes the facts as pleaded are true, and draws all reasonable inferences in his or her favor. Ass’n for L.A. Deputy Sheriffs v. County

of Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011); Iqbal, 556 U.S. at 678. Even so, the Court may disregard legal conclusions couched as factual allegations. See id. Here, Plaintiffs appear to bring a claim under 42 U.S.C. § 1983, alleging that Defendants violated their Fourth, Fifth, and Eighth Amendment Rights. ECF No. 1

at 3–4. As to Judges, Plaintiff Aaron Surina alleges that Commissioner Swennumson ordered ninety percent of his income to go to his ex-wife and denied his motion to correct this judgment. Id. at 6. Commissioner Swennumson also

allegedly denied him equal time with his children (minor Plaintiffs A.A.S. and D.M.S.). Id. He also alleges that Commissioners receive payments DSHS to place children in the lower income household of divorcing parents and that the court has

ignored his objections to this practice. Id. Plaintiffs’ Complaint contains little more than legal conclusions couched as factual allegations. Instead of making “detailed factual allegations,” his insistence that Judges have violated his rights contains little

support. See Iqbal, 556 U.S. at 678. Other than the Final Divorce order and threadbare allegations of a scheme with DSHS, there are no other facts in the complaint which give rise to legal liability for Judges. See id. E. The Court dismisses Judges with prejudice

“[D]ismissal without leave to amend is improper unless it is clear . . . that the complaint [can] not be saved by any amendment.” Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001). In this case, Plaintiffs clearly cannot save their claims

against Judges through Amendment. Accordingly, the Court dismisses the claims against Judges with prejudice. Accordingly, IT IS HEREBY ORDERED: 1. Defendant Spokane County Superior Court Judges Memorandum for

Dismissal Pursuant to FRCP 12(b); and Motion for Judgment on the Pleadings, ECF No. 35, is GRANTED. 2. Plaintiffs’ Prayer for Alternate/Substitute Service on Defendant

Spokane County Exec Gerry Gemmil (CEO), ECF No. 39 at 1, is 3. The claims against Judges in Plaintiffs’ Complaint, ECF No. 1, are 4. The Clerk’s Office is directed to UPDATE the caption to the

following: In propria persona AARON M. SURINA; A.A.S., minor son; and D.M.S., minor son, Plaintiffs, V. KEITH A. GLANZER; KEITH A. GLANZER, P.S.; DONNA HENRY; and CARL BERNARD WILSON, Defendants.

IT ISSO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel and pro se Plaintiffs. DATED this 8" day of January 2021. ry SALVADOR MENDtz\A, JR. United States District Jiuge

ORDER GRANTING DEFENDANTS SPOKANE COUNTY SUPERIOR