Williams v. County of Fresno ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PRINCE PAUL RAYMOND WILLIAMS, Case No. 1:21-cv-00648-AWI-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF’S 13 v. COMPLAINT BE DISMISSED FOR FAILURE TO STATE A CLAIM AND THIS 14 COUNTY OF FRESNO, et al., MATTER BE DISMISSED FOR FAILURE TO COMPLY WITH MAY 27, 2021 COURT 15 Defendants. ORDER AND FAILURE TO PROSECUTE 16 (ECF Nos. 1, 4) 17 OBJECTIONS DUE WITHIN THIRTY DAYS 18 19 Prince Paul Raymond Williams (“Plaintiff”), proceeding pro se and in forma pauperis, 20 filed this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United 21 States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 Plaintiff’s complaint was screened and on May 27, 2021, a screening order issued finding 23 that Plaintiff had failed to state any cognizable claims in this action and granting him thirty days 24 in which to file an amended complaint. More than thirty days have passed and Plaintiff has 25 neither filed an amended complaint nor otherwise responded to the May 27, 2021 order. For the 26 reasons discussed herein, it is recommended that the complaint be dismissed for failure to state a 27 cognizable claim and this action be dismissed for failure to comply with a court order and failure to prosecute. 1 I. 2 SCREENING REQUIREMENT 3 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 4 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 5 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 6 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 7 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); 8 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis 9 proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 10 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis 11 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) 12 (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to 13 screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; (ii) 14 fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a 15 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 16 In determining whether a complaint fails to state a claim, the Court uses the same 17 pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a 18 short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. 19 Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 20 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 21 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 22 544, 555 (2007)). 23 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 24 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 25 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, 26 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] 27 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops 1 Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for 2 the court to draw the reasonable conclusion that the defendant is liable for the misconduct 3 alleged. Iqbal, 556 U.S. at 678. 4 II. 5 COMPLAINT ALLEGATIONS 6 Plaintiff brings this action against the County of Fresno and Judge Amy Guerra on the 7 basis of federal question and diversity of citizenship. (Compl. 2, 3,1 ECF No. 1.) Plaintiff 8 contends that the defendants falsely accused him of kidnapping his minor child and relocated the 9 child out of the state . (Id. at 4.) The child’s mother provided the court with false address 10 information. (Id.) Defendant Guerra and Ms. Browns, court appointed counsel for the child, do 11 not know the child’s address. (Id.) The child’s mother made verbal threats of harm against 12 Plaintiff in the presence of the child. (Id.) Plaintiff is seeking monetary damages. (Id.) 13 On February 4, 2019, Judge Tharpe granted Plaintiff sole legal and physical custody of 14 his minor child, Khiren Williams. (Id. at ¶ 8.) On September 17, 2020, Defendant Guerra 15 granted the child’s mother sole legal and physical custody. (Id. at ¶ 9.) The custody ordered 16 provided that “the child shall reside with the father as mutually agreed upon between the parties” 17 and “Neither parent shall remove the child from the State of California, County of Fresno for the 18 purpose of changing the child’s residence.” (Id.) Defendant Guerra knew that the residency of 19 Khiren’s mother was Las Vegas, Nevada. (Id.) 20 On October 2, 2020, Defendant Guerra ordered that Plaintiff could have supervised visits 21 in Las Vegas, Nevada. (Id. at ¶ 10.) The order provided that Plaintiff would be responsible for 22 100% of the cost of visitation. (Id.) 23 On October 26, 2020, Plaintiff and the mother were ordered to report to the family court 24 on November 16, 2020, at 8:25 a.m. (Id. at ¶ 11.) On November 16, 2020, Defendant Guerra 25 appointed Cheryl Browns as counsel for Khiren. (Id. at ¶ 13.) The court ordered that the parents 26 would have joint legal custody with the father having sole physical custody and the mother’s 27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 1 contact with Khiren was limited to participating in supervised visits unless otherwise agreed 2 upon by the parents. (Id. at ¶ 12.) In November 2020, Plaintiff informed Browns that he did not 3 want her to represent Khiren. (Id. at ¶ 14.) 4 On December 4, 2020, the court ordered sole and physical custody to the mother with no 5 visitation to Plaintiff claiming a risk of abduction pursuant to FCS 3048(b)(1). (Id. at ¶ 15.) 6 Defendant Guerra ordered that Plaintiff could not remove Khiren from the county, state, or 7 country. (Id.) 8 In February 2021, Ms. Browns coordinated Zoom meetings between Plaintiff and Khiren. 9 (Id. at ¶ 16.) In March of 2021, Ms. Browns coordinated a spring break visit between Plaintiff 10 and Khiren. (Id. at ¶ 17.) On March 30, 2021, Plaintiff and Khiren met with Ms. Browns at her 11 office for the purpose of Ms. Browns personally meeting Khiren and to discuss custody and 12 visitation, including spring break and summer break child exchanges between the parents. (Id. at 13 ¶ 18.) Ms. Browns spoke with Khiren, acknowledging Khiren’s desire to return to Plaintiff’s 14 home permanently. (Id.) Ms. Browns emphasized to Plaintiff the need to respect the court’s 15 authority. (Id.) 16 Ms. Browns made the following recommendations. At the conclusion of spring break, 17 Plaintiff would travel to Las Vegas to return Khiren to his mother. (Id. at ¶ 19.) At the start of 18 summer, Khiren would return to Plaintiff for a period of three to four weeks, return to the mother 19 for three to four weeks, and then return to Plaintiff for the remainder of summer break. (Id.) Ms. 20 Browns explained to Plaintiff that the exchanges were a test of the parties ability to exchange 21 Khiren in a manner in the child’s best interest. (Id.) Ms. Browns informed Plaintiff that she 22 would recommend giving custody to Plaintiff as it was Khiren’s wish. (Id.) Plaintiff agreed with 23 the recommendations. (Id. at ¶ 20.) 24 On April 4, 2021, Plaintiff traveled to Las Vegas to return Khiren to his mother. (Id. at ¶ 25 21.) Plaintiff notified the mother by email of the estimated arrival time but she did not respond. 26 (Id. at ¶ 22.) When they arrived in Las Vegas, Plaintiff intended to return Khiren to the address 27 on file with the court, but Khiren informed him that they actually lived at a different location. 1 When they went to the door of the apartment, Khiren’s mother expressed anger and 2 frustration and grabbed Khiren by the arm telling him to come inside. (Id. at ¶¶ 25, 26.) Plaintiff 3 attempted to give Khiren his belongings and say his goodbyes, but the mother grabbed Khiren 4 telling him to come inside and called out for the cohabitant of the apartment to get up. (Id. at ¶¶ 5 27, 28.) As Plaintiff was walking away, in the presence of Khiren, the mother stated, “You’re 6 lucky my brother isn’t here because he’d. . . .” (Id. at ¶ 29.) The mother recorded Plaintiff 7 walking to his car and driving away. (Id. at ¶ 30.) 8 A short time later, Plaintiff received a reply to the email that stated, “Location.” (Id. at ¶ 9 31.) Plaintiff called Ms. Browns leaving multiple voice mail messages regarding the exchange. 10 (Id. at ¶ 32.) 11 On April 5, 2021, Plaintiff emailed Khiren’s mother that he was going to file for 12 emergency custody of the child. (Id. at ¶ 33.) Plaintiff subsequently called Ms. Browns to 13 inform her of the events that had occurred during the exchange and that he did not want to 14 proceed with the proposed terms of visitation. (Id.) Ms. Browns told Plaintiff that they had an 15 agreement and he questioned her on why she did not know Khiren’s address. (Id.) Ms. Browns 16 told him she was not aware of Khiren’s address and Plaintiff stated that he was going to file an 17 ex parte motion with the court. (Id.) Ms. Browns told Plaintiff to file his motion and they would 18 see what the judge says. (Id.) 19 On this same date, Khiren’s mother emailed Plaintiff asking him to help pay for extra 20 activity, dental care, therapy, a tutor, or to plan a summer trip with Khiren so he could benefit 21 and help develop their son. (Id. at ¶ 35.) She also stated that that is not what interests Plaintiff 22 and that was clear to everyone. (Id.) 23 The court has not provided a remedy for Plaintiff; he has not had contact with Khiren’s 24 mother, Ms. Browns, or Khiren; and the mother has made financial demands by email stating, 25 “Another payment coming to you that I would like to use for Kiren’s Therapy. Can you pay the 26 therapist directly with the payment you will be getting this Friday?” (Id. at ¶¶ 36, 37, 40.) Ms. 27 Browns had sent a letter in November 2020 requesting the therapist’s contact information if 1 therapist or counselor to the court, Ms. Browns, or Plaintiff. (Id.) 2 Plaintiff asserts claims of violation of oath of office pursuant to 5 U.S.C. § 3331 and 28 3 U.S.C. § 544, discrimination because he and Khiren are African American and state law claims 4 of negligence, intentional affliction of emotional distress, and breach of contract. (Id., pp. 17- 5 20.) 6 For the reasons discussed below, Plaintiff has failed to state a claim for a violation of his 7 federal rights. 8 III. 9 DISCUSSION 10 Plaintiff’s complaint is replete with citations to constitutional amendments, statutory 11 citations, and case law but fails to specifically bring any federal claim other than violation of 12 oath of office under 5 U.S.C. § 3331 and 28 U.S.C. § 544 and discrimination. Plaintiff may also 13 be attempting to bring the claims against Ms. Browns although she is not specifically named as a 14 defendant in the complaint. The Court will not address every citation in the complaint but only 15 those statutory or constitutional citations that appear applicable to the facts alleged. 16 A. Jurisdiction 17 Plaintiff states that one of the basis of jurisdiction in this action is diversity of citizenship. 18 (Compl., p. 3.) Federal courts are courts of limited jurisdiction and their power to adjudicate is 19 limited to that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). 20 District courts have original jurisdiction of all civil actions between citizens of different States in 21 which “the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and 22 costs.” 28 U.S.C. § 1332(a). This requires complete diversity of citizenship and the presence 23 “of a single plaintiff from the same State as a single defendant deprives the district court of 24 original diversity jurisdiction over the entire action.” Abrego Abrego v. The Dow Chemical Co., 25 443 F.3d 676, 679 (9th Cir. 2006) (citations omitted). 26 Here, Plaintiff alleges that he is a citizen of California and he is bringing this action 27 against Defendant Guerra who is a judge for the Superior Court of California, Fresno County. An 1 remain there indefinitely.” Lew v. Moss, 797 F.2d 747, 752 (9th Cir. 1986). Defendant Guerra 2 would reasonably be a citizen of California. 3 Plaintiff also names the County of Fresno as a defendant in this action. For the purposes 4 of diversity, the County of Fresno is a citizen of the State of California. Moor v. Alameda Cty., 5 411 U.S. 693, 717 (1973) see also Lewis v. AT&T, Inc., No. 2:20-CV-461-KJM-EFB PS, 2020 6 WL 3642360, at *2 (E.D. Cal. July 6, 2020) (county agencies are citizens of State for purpose of 7 diversity of citizenship); 147 A.L.R. 786 (originally published in 1943) (“Counties have been 8 recognized as corporations, and as such citizens, for the purpose of suits based on diverse 9 citizenship in the Federal court.”) 10 Since Plaintiff and the named defendants are all citizens of California, diversity of 11 citizenship does not exist in this action. 12 Jurisdiction in this action must therefore be based on a federal question. Pursuant to 28 13 U.S. C. § 1331, federal courts have original jurisdiction over “all civil actions arising under the 14 Constitution, laws, or treaties of the United States. “A case ‘arises under’ federal law either 15 where federal law creates the cause of action or where the vindication of a right under state law 16 necessarily turns on some construction of federal law.” Republican Party of Guam v. Gutierrez, 17 277 F.3d 1086, 1088 (9th Cir. 2002) (internal punctuation omitted) (quoting Franchise Tax Bd. 18 v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983) (citations omitted)). “[T]he 19 presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint 20 rule,’ which provides that federal jurisdiction exists only when a federal question is presented on 21 the face of the plaintiff's properly pleaded complaint.” Republican Party of Guam, 277 F.3d at 22 1089 (citations omitted). 23 B. Section 1983 24 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 25 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 26 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 27 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim under section 1983, a 1 defendant deprived him of rights secured by the Constitution or federal law. Long, 442 F.3d at 2 1185. To state a claim, Plaintiff must demonstrate that each defendant personally participated in 3 the deprivation of his rights. Jones, 297 F.3d at 934. 4 1. Ms. Browns is not acting under color of state law 5 To the extent that Plaintiff seeks to bring this action against his child’s court appointed 6 counsel, she is not acting under color of state law in representing Khiren. It is well established 7 that court appointed attorneys are not acting under color of state law for § 1983 purposes but 8 rather act as an advocate for their client. Polk v. Dodson, 454 U.S. 312, 325 (1981) (a court 9 appointed attorney representing an indigent client does not act under color of state law when 10 performing the traditional functions of a lawyer); Miranda v. Clark County of Nevada, 319 F.3d 11 465, 468 (9th Cir. 2003) (upholding dismissal of complaint on basis that public defender was not 12 acting on behalf of county for purposes of § 1983 in representing plaintiff’s interests); Walters v. 13 Mason, No. 215CV0822KJMCMKP, 2017 WL 6344319, at *2–3 (E.D. Cal. Dec. 12, 2017); 14 Forte v. Merced Cty., No. 1:15-CV-0147 KJM-BAM, 2016 WL 159217, at *12–13 (E.D. Cal. 15 Jan. 13, 2016), report and recommendation adopted, No. 1:15-CV-0147-KJM-BAM, 2016 WL 16 739798 (E.D. Cal. Feb. 25, 2016); Torres v. Saba, No. 16-CV-06607-SI, 2017 WL 86020, at *3– 17 4 (N.D. Cal. Jan. 10, 2017) (“A public defender does not act under color of state law, an essential 18 element of a claim under § 1983, when performing a lawyer’s traditional functions, such as 19 entering pleas, making motions, objecting at trial, cross-examining witnesses, and making 20 closing arguments.”); Hall v. Quillen, 631 F.2d 1154, 1156 (4th Cir. 1980) (court appointed 21 attorney representing plaintiff in involuntary commitment proceedings is not a state actor); 22 Harkins v. Eldredge, 505 F.2d 802, 805 (8th Cir. 1974) (the conduct of an attorney, whether 23 retained or appointed, does not constitute action under color of state law). 24 Here, the actions complained of are clearly related to Ms. Browns actions on behalf of 25 her client in her capacity of representing him in the state court action. Ms. Browns is not a state 26 actor and Plaintiff cannot state a claim against her under section 1983. 27 2. Equal Protection 1 African America. The Court construes this as an equal protection claim. There are two ways for 2 a plaintiff to state an equal protection claim. A plaintiff can state a claim for violation of the 3 Equal Protection Clause, by showing “that the defendant acted with an intent or purpose to 4 discriminate against him based upon his membership in a protected class.” Serrano v. Francis, 5 345 F.3d 1071, 1082 (9th Cir. 2003). Intentional in this context means that the defendant acted, 6 at least in part, because of the plaintiff’s membership in a protected class. Serrano, 345 F.3d at 7 1082. Alternately, the plaintiff can state a claim by alleging that he was intentionally treated 8 differently than similarly situated individuals and there was no rational basis for the difference in 9 treatment. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (2005); Village of Willowbrook 10 v. Olech, 528 U.S. 562, 564 (2000). 11 Here, Plaintiff alleges that he and Khiren are African American, a protected status, and 12 that the acts of Defendant Guerra and Browns are due to intentional discrimination. However, 13 there are no facts alleged to indicate intentional discrimination but the acts complained appear to 14 be an attempt by the state court and appointed counsel to address the custody of the minor given 15 the contentious relationship between Plaintiff and the child’s mother. Plaintiff’s conclusory 16 allegations of discrimination are not entitled to a presumption of truth and there are no facts 17 alleged in the complaint by which the Court can reasonably infer discriminatory intent by any 18 named defendant. Iqbal, 556 U.S. at 678. 19 C. Section 1986 20 Section 1985 prohibits private individuals from conspiring to deprive another person of 21 their civil rights. Griffin v. Breckenridge, 403 U.S. 88, 96 (1971). The section applicable here 22 would be 1985(3) which protects against conspiracies to deprive a person from equal protection 23 of the law. 42 U.S.C. § 1985(3). “The elements of a § 1985(3) claim are: (1) the existence of a 24 conspiracy to deprive the plaintiff of the equal protection of the laws; (2) an act in furtherance of 25 the conspiracy and (3) a resulting injury.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1141 (9th 26 Cir. 2000). 27 To state a claim under section 1985(3), a plaintiff allege sufficient facts to show 1 discriminatory animus behind the conspirators’ actions.’” RK Ventures, Inc. v. City of Seattle, 2 307 F.3d 1045, 1056 (9th Cir. 2002) (quoting Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 3 (9th Cir. 1992)). The Ninth Circuit requires “either that the courts have designated the class in 4 question a suspect or quasi-suspect classification requiring more exacting scrutiny or that 5 Congress has indicated through legislation that the class required special protection.” Sever, 978 6 F.2d at 1536. “The conspiracy . . . must aim at a deprivation of the equal enjoyment of rights 7 secured by the law to all.” Orin v. Barclay, 272 F.3d 1207, 1217 (9th Cir. 2001) (quoting 8 Griffin, 403 U.S. at 102) (emphasis omitted). Section 42 U.S.C. § 1986 provides a cause of 9 action for damages for violation of section 1985. I.H. by & through Hunter v. Oakland Sch. for 10 Arts, 234 F.Supp.3d 987, 994 (N.D. Cal. 2017); Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th 11 Cir. 1985). 12 There are no facts alleged in the complaint that would implicate the existence of a 13 conspiracy to violate Plaintiff’s federal rights. Further, there are no facts alleged to demonstrate 14 any racial or other class based discriminatory animus. Rather the acts alleged in the complaint 15 demonstrate that the claims here are based on a dispute over the custody of Plaintiff’s minor son 16 and the court’s adjudication of the issue. Plaintiff has failed to state a claim under section 1985. 17 D. There is No Private Right of Action for a Violation of Oath of Office 18 Plaintiff argues that Defendant Guerra and Ms. Browns took an oath to uphold and honor 19 the United States Constitution and execute their duties faithfully and have not done so because 20 they are not acting in the child’s best interest, gathering evidence that bears on the child’s best 21 interest, and presenting the child’s wishes to the court. (Compl. at ¶ 44.) Plaintiff contends that 22 Defendant Guerra and Ms. Browns violated 5 U.S.C. § 3331 and 28 U.S.C. § 544 by failing to 23 act in the child’s best interest and knew that Khiren wishes to return home to Plaintiff and failed 24 to take immediate and appropriate corrective measures. (Id. at ¶ 95.) 25 Pursuant to 28 U.S.C. § 544, “[e]ach United States attorney, assistant United States 26 attorney, and attorney appointed under section 543 of this title, before taking office, shall take an 27 oath to execute faithfully his duties. However, based on the allegations in the complaint, section 1 Browns would reasonably be held to be a United States attorney, assistant United States attorney 2 or a special attorney appointed by the Attorney General. Rather, Defendant Guerra is a state 3 court judge and Ms. Browns is an attorney representing litigants in state court. The term attorney 4 for the government in the federal rules does not include attorneys for state and local 5 governments. Definition of Terms, 1 Fed. Prac. & Proc. Crim. § 23 (4th ed.). 6 The oath of office is set forth at 5 U.S.C. § 3331. 7 An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, 8 AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true 9 faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully 10 discharge the duties of the office on which I am about to enter. So help me God.” 11 Courts have found that there is no private right of action for plaintiff to enforce an alleged 12 of violation of the oath of office. Eleson v. Lizarraga, No. 2:19-CV-0112 KJN P, 2019 WL 13 4166799, at *5 (E.D. Cal. Sept. 3, 2019), appeal dismissed, No. 19-17435, 2019 WL 8128252 14 (9th Cir. Dec. 17, 2019); Smith v. United States, 2013 WL 2154004, at *1 (D. Mass. May 15, 15 2013) (finding that 5 U.S.C. §§ 3331 and 3332 do not “give rise to a private right of action in a 16 civil context”); Gudgel v. Cty. of Okanogan, No. CV-12-108-RHW, 2012 WL 3637431, at *4 17 (E.D. Wash. Aug. 22, 2012) (recognizing that no private right of action exists under 5 U.S.C. § 18 3331). Plaintiff cannot bring a claim for violation of the oath of office. 19 E. Judicial Immunity 20 Plaintiff brings this claim against Defendant Guerra who is a state court judge presiding 21 over his case in family court. Absolute judicial immunity is afforded to judges for acts 22 performed by the judge that relate to the judicial process. In re Castillo, 297 F.3d 940, 947 (9th 23 Cir. 2002), as amended (Sept. 6, 2002). “This immunity reflects the long-standing ‘general 24 principle of the highest importance to the proper administration of justice that a judicial officer, 25 in exercising the authority vested in him, shall be free to act upon his own convictions, without 26 apprehension of personal consequences to himself.’ ” Olsen v. Idaho State Bd. of Med., 363 27 F.3d 916, 922 (9th Cir. 2004) (quoting Bradley v. Fisher, 13 Wall. 335, 347 (1871)). This 1 923. 2 Absolute judicial immunity insulates the judge from actions for damages due to judicial 3 acts taken within the jurisdiction of the judge’s court. Ashelman v. Pope, 793 F.2d 1072, 1075 4 (9th Cir. 1986). “Judicial immunity applies ‘however erroneous the act may have been, and 5 however injurious in its consequences it may have proved to the plaintiff.’ ” Id. (quoting 6 Cleavinger v. Saxner, 474 U.S. 193 (1985)). However, a judge is not immune where he acts in 7 the clear absence of jurisdiction or for acts that are not judicial in nature. Ashelman, 793 F.2d at 8 1075. Judicial conduct falls within “clear absence of all jurisdiction,” where the judge “acted 9 with clear lack of all subject matter jurisdiction.” Stone v. Baum, 409 F.Supp.2d 1164, 1174 (D. 10 Ariz. 2005). 11 To determine if an act is judicial in nature, the court considers whether (1) the precise act 12 is a normal judicial function; (2) the events occurred in the judge’s chambers; (3) the controversy 13 centered around a case then pending before the judge; and (4) the events at issue arose directly 14 and immediately out of a confrontation with the judge in his or her official capacity. Duvall v. 15 Cty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11, 16 2001) (quoting Meek v. County of Riverside, 183 F.3d 962, 967 (9th Cir. 1999)). 17 Here, Plaintiff is clearly bringing suit against Defendant Guerra for actions taken in her 18 judicial capacity over which she has jurisdiction. Plaintiff is challenging custody determinations 19 made by Defendant Guerra and disagrees that the custody findings have been in the best interest 20 of the minor. Defendant Guerra is entitled to absolute immunity for these clearly judicial actions 21 taken during the course of the state action. Plaintiff cannot bring a claim against Defendant 22 Guerra based on her handling of, or rulings made in, the state court proceeding. 23 F. There is No Private Right of Action Under Title 18 24 To the extent that Plaintiff also alleges violation of 18 U.S.C. §§ 242, 245, 1918, “the fact 25 that a federal statute has been violated and some person harmed does not automatically give rise 26 to a private cause of action in favor of that person.” Touche Ross & Co. v. Redington, 442 U.S. 27 560, 568 (1979) (quoting Cannon v. University of Chicago, 441 U.S. 677, 688 (1979). Rather, 1 begins with the language of the statute itself. Touche Ross & Co., 442 U.S. at 568. “Civil 2 causes of action ... do not generally lie under the criminal statutes contained in Title 18 of the 3 United States Code.” Del Elmer; Zachay v. Metzger, 967 F. Supp. 398, 403 (S.D. Cal. 1997). 4 Here, the sections cited under Title 18 provide for fines and incarceration for criminal 5 offenses and do not set forth a private cause of action nor is there any language that would imply 6 that a cause of action exists to allow Plaintiff to seek a remedy for these criminal statutes in this 7 action.2 8 G. Municipal Liability 9 Plaintiff also brings this action against the County of Fresno. A local government unit 10 may not be held responsible for the acts of its employees under a respondeat superior theory of 11 liability. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Rather, a local 12 government unit may only be held liable if it inflicts the injury complained of through a policy or 13 custom. Waggy v. Spokane County Washington, 594 F.3d 707, 713 (9th Cir. 2010). A 14 municipality can only be held liable for injuries caused by the execution of its policy or custom 15 or by those whose edicts or acts may fairly be said to represent official policy. Monell, 436 U.S. 16 at 694. 17 Generally, to establish municipal liability, the plaintiff must show that a constitutional 18 right was violated, the municipality had a policy, that policy was deliberately indifferent to 19 plaintiff’s constitutional rights, and the policy was “the moving force” behind the constitutional 20 violation. Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 400 (1997); Burke 21 v. County of Alameda, 586 F.3d 725, 734 (9th Cir. 2009); Gibson v. County of Washoe, Nev., 22 290 F.3d 1175, 1185-86 (9th Cir. 2002). “The custom or policy must be a ‘deliberate choice to 23 follow a course of action . . . made from among various alternatives by the official or officials 24 responsible for establishing final policy with respect to the subject matter in question.’ ” Castro 25 v. Cty. of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016) (quoting Pembaur v. City of 26 2 Plaintiff also alleges a violation of 18 U.S.C. § 3524 which provides that the Attorney General cannot relocate any 27 child in connection with any person under witness protection. However, this section is inapplicable in the instant case. Similarly, Plaintiff cites to 25 C.F.R. § 11.448 which applies to areas of Indian country and is inapplicable 1 Cincinnati, 475 U.S. 469, 483 (1986)). The deliberate indifference standard for municipalities is 2 an objective inquiry. Castro, 833 F.3d at 1076. 3 “A plaintiff may . . . establish municipal liability by demonstrating that (1) the 4 constitutional tort was the result of a ‘longstanding practice or custom which constitutes the 5 standard operating procedure of the local government entity;’ (2) the tortfeasor was an official 6 whose acts fairly represent official policy such that the challenged action constituted official 7 policy; or (3) an official with final policy-making authority ‘delegated that authority to, or 8 ratified the decision of, a subordinate.’ ” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) 9 (quoting Ulrich v. City & County of San Francisco, 308 F.3d 968, 984–85 (9th Cir. 2002)). 10 A plaintiff seeking to impose liability upon a municipality is required to identify the 11 policy or custom that caused the constitutional injury. Bd. of Cty. Comm’rs of Bryan Cty., Okl., 12 520 U.S. at 403. A municipality may only be held liable for those deprivations that result “from 13 the decisions of its duly constituted legislative body or of those officials whose acts may fairly be 14 said to be those of the municipality.” Id. at 403–04. “Similarly, an act performed pursuant to a 15 ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly 16 subject a municipality to liability on the theory that the relevant practice is so widespread as to 17 have the force of law.” Id. at 404. 18 The complaint is devoid of any factual allegations to demonstrate a policy or custom that 19 violated Plaintiff’s federal rights. Plaintiff has not set forth any policy or custom nor has he 20 stated a claim for a violation of his federal rights. Rather, here, Plaintiff is seeking to bring suit 21 against the judge handling his child’s custody and support issues. Plaintiff has failed to state a 22 claim against Fresno County. 23 H. State Law Claims 24 Plaintiff also alleges violations of California law. The California Government Claims 25 Act requires that a tort claim against a public entity or its employees be presented to the 26 California Victim Compensation and Government Claims Board no more than six months after 27 the cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2. 1 to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1239 (Cal. 2004); 2 Shirk v. Vista Unified School District, 42 Cal.4th 201, 209 (2007). To state a tort claim against a 3 public employee, a plaintiff must allege compliance with the California Tort Claims Act. Cal. 4 Gov’t Code § 950.6; Bodde, 32 Cal.4th at 1244. “[F]ailure to allege facts demonstrating or 5 excusing compliance with the requirement subjects a compliant to general demurrer for failure to 6 state a cause of action.” Bodde, 32 Cal.4th at 1239. 7 As Plaintiff has not alleged compliance with the Government Claims Act, he has failed to 8 state a claim under California law. 9 IV. 10 DISMISSAL FOR FAILURE TO COMPLY AND FAILURE TO PROSECUTE 11 Plaintiff has failed to comply with the May 27, 2021 order granting him leave to file an 12 amended complaint. A court may dismiss an action based on a party’s failure to prosecute an 13 action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 14 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik 15 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 16 order to file an amended complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 17 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised 18 of address); Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal 19 for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 20 1986) (dismissal for lack of prosecution and failure to comply with local rules). 21 “In determining whether to dismiss an action for lack of prosecution, the district court is 22 required to consider several factors: ‘(1) the public’s interest in expeditious resolution of 23 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 24 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 25 drastic sanctions.’ ” Carey, 856 F.2d at 1440 (quoting Henderson v. Duncan, 779 F.2d 1421, 26 1423 (9th Cir. 1986)). These factors guide a court in deciding what to do, and are not conditions 27 that must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 1 In this instance, the public’s interest in expeditious resolution of the litigation and the 2 Court’s need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine 3 (PPA) Products Liability Litigation, 460 F.3d at 1226. Plaintiff was ordered to file an amended 4 complaint within thirty days of May 27, 2021. Plaintiff has neither filed an amended complaint 5 nor otherwise responded to the Court’s order. 6 Plaintiff’s failure to comply with the orders of the Court hinders the Court’s ability to 7 move this action towards disposition, and indicates that Plaintiff does not intend to diligently 8 litigate this action. 9 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 10 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 11 1452-53 (9th Cir. 1994). This risk of prejudice may be rebutted if Plaintiff offers an excuse for 12 the delay. In re Eisen, 31 F.3d at 1453. Plaintiff has not responded to the May 27, 2021 order so 13 the risk of prejudice to the defendants also weighs in favor of dismissal. 14 The public policy in favor of deciding cases on their merits is greatly outweighed by the 15 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This 16 action can proceed no further without Plaintiff’s cooperation and compliance with the order at 17 issue. There is no operative pleading that states a claim in this matter and the action cannot 18 simply remain idle on the Court’s docket, unprosecuted. In this instance, the fourth factor does 19 not outweigh Plaintiff’s failure to comply with the Court’s orders. 20 Finally, monetary sanctions are not available to induce compliance because Plaintiff is 21 proceeding in forma pauperis in this action. Additionally, a court’s warning to a party that their 22 failure to obey the court’s order will result in dismissal satisfies the “consideration of 23 alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 24 779 F.2d at 1424. The Court’s May 27, 2021 order requiring Plaintiff to file an amended 25 complaint expressly stated: “If Plaintiff fails to file an amended complaint in compliance with 26 this order, the Court will recommend to the district judge that this action be dismissed consistent 27 with the reasons stated in this order” (ECF No. 4 at 15:18-20.) Thus, Plaintiff had adequate 1 The Court finds that the balance of the factors weighs in favor of dismissing this action 2 | for Plaintiff's failure to comply with the May 27, 2021 order and failure to prosecute. 3 V. 4 CONCLUSION AND RECOMMENDATIONS 5 Plaintiff has failed to state a cognizable claim for a violation of his federal rights in this 6 | action. Further, considering the factors to be evaluated in determining whether to dismiss this 7 | action for the failure to comply and failure to prosecute, the Court finds that the factors weigh in 8 | favor of dismissal of this action 9 Based on the foregoing, it is HEREBY RECOMMENDED that: 10 1. Plaintiff's complaint, filed April 19, 2021 be DISMISSED for failure to state a 11 cognizable claim; and 12 2. This matter be dismissed for Plaintiff's failure to comply with the May 27, 2021 13 order and failure to prosecute. 14 This findings and recommendations is submitted to the district judge assigned to this 15 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) 16 | days of service of this recommendation, Plaintiff may file written objections to this findings and 17 | recommendations with the court. Such a document should be captioned “Objections to 18 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 19 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 20 | Plaintiff is advised that failure to file objections within the specified time may result in the 21 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 22 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 IT IS SO ORDERED. OF. nf ee 25 | Dated: _ July 19, 2021 UNITED STATES MAGISTRATE JUDGE 27 28