Malberg v. Nagle ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 MARTIN MALBERG, Case No. 5:22-cv-05027-EJD 9 Plaintiff, ORDER GRANTING MOTION TO DISMISS 10 v. 11 SHARON NAGLE, et al., Re: ECF No. 21 Defendants. 12 13 Plaintiff Martin Malberg brings this suit alleging First Amendment constitutional 14 violations against Defendants Sharon Nagle, Jeffrey Vincent, Kymberly Speer, Rob Bonta, and the 15 State of California, arising out of the motions to dismiss they had filed on behalf of defendants in 16 another one of Plaintiff’s other actions. Defendants have all filed motions to dismiss the instant 17 Complaint on multiple grounds. 18 Based on the following, Defendants’ motions to dismiss are GRANTED. The Complaint 19 is DISMISSED WITHOUT LEAVE TO AMEND and WITH PREJUDICE. 20 I. FACTUAL AND PROCEDURAL HISTORY 21 On March 17, 2022, Plaintiff filed the first of several actions in federal court challenging 22 the restraining order imposed on him by his ex-wife pursuant to the California Domestic Violence 23 Protection Act. See, e.g., Malberg v. McCracken, et al., Case No. 5:22-cv-01713-EJD; Malberg v. 24 Cashen, et al., Case No. 5:22-cv-01788-BLF. Throughout these various actions, Plaintiff named 25 two Superior Court judges, the California Attorney General’s office, and the attorneys who 26 represented his ex-wife as defendants, alleging that the restraining order violated his constitutional 27 rights. In nearly all actions, the defendants have moved to dismiss successfully. 1 Now before the Court is Plaintiff’s complaint for an “emergency injunction” to prevent the 2 Court from granting defendants’ motions to dismiss in the action numbered 5:22-cv-01713 (“1713 3 Action”), claiming that those motions violate Plaintiff’s First Amendment rights. ECF No. 1 4 (“Compl.”), at § V. Plaintiff invokes 42 U.S.C. § 1983 to vindicate his First Amendment rights, as 5 well as federal criminal statutes 18 U.S.C. §§ 241, 242, and 2384. Compl. § II.A. Plaintiff also 6 asks the Court to “strike down” all “CA ‘immunity’ statutes, and all CA courts ‘immunity’ rules,” 7 and to strike down “improper use of 11th Amendment.” Compl. § V. Plaintiff also seeks 1,791 8 ounces of U.S. Silver Eagles as damages, as well as criminal referral and maximum prison time 9 for all individual defendants. Id. The present action is asserted against the attorneys who filed 10 motions to dismiss in the 1713 Action, specifically Sharon Nagle (who represented Judges Joanne 11 McCracken and Christine Garcia-Sen) and Jeffrey Vincent, Kymberly Speer, Rob Bonta, and the 12 State of California (who filed a motion to dismiss the Attorney General and State of California in 13 the 1713 Action). 14 After filing the instant Complaint and before the named Defendants had any opportunity to 15 respond, Plaintiff filed a veritable smorgasbord of miscellaneous documents, such as a petition for 16 emergency injunction (ECF No. 13), a general affidavit (ECF No. 15), an opposition response to a 17 motion to dismiss that was never filed in this action (ECF No. 18), and a “petition for a redress of 18 grievances” (ECF No. 20). Plaintiff has also filed—spontaneously and without any apparent 19 relation to a particular motion—three “logic briefs” on the topics of “unconstitutional usurpation 20 of state sovereignty” (ECF No. 26), “unconstitutional actions of all CA courts and official per 21 Article IV” (ECF No. 27), and “unconstitutional ‘immunity’ claim” (ECF No. 30). 22 II. DISCUSSION 23 Defendants Attorney General Bonta, Speer, Vincent, and the State of California 24 (collectively “State Defendants”) have moved to dismiss the instant action. ECF No. 21. 25 Defendant Nagle has also filed her own motion to dismiss. ECF No. 31. Because Defendants’ 26 motions to dismiss challenge the facial sufficiency of Plaintiff’s complaint, the Court must resolve 27 the motions to dismiss first before turning to any of Plaintiff’s merits-based relief. 1 Notably, although he filed a generic “Response in Oppostion [sic] to All Motions to 2 Dismiss” before Defendants even filed any motion (ECF No. 18), Plaintiff has not filed an 3 opposition to the Defendants’ current motions or otherwise responded to the arguments the 4 Defendants have raised in these motions. Accordingly, Plaintiff’s Complaint is subject to 5 dismissal on this basis alone. However, the Court will nonetheless proceed to address the 6 substance of Defendants’ motions and evaluate the sufficiency of Plaintiff’s Complaint. 7 A. Federal Criminal Statutes 8 To begin, Plaintiff has no standing to assert claims for relief based on federal criminal 9 statutes, including 18 U.S.C. §§ 241, 242, and 2384. See Malberg v. Cashen, No. 22-cv-01788- 10 BLF, 2022 WL 4544729, at *3 (N.D. Cal. Sept. 28, 2022) (collecting cases), aff’d, No. 22-16703, 11 2023 WL 4418598 (9th Cir. July 10, 2023). Accordingly, the Complaint is DISMISSED 12 WITHOUT LEAVE TO AMEND to the extent Plaintiff seeks to pursue criminal claims and 13 obtain criminal penalties against the Defendants. The only remaining claim is the § 1983 claim 14 against Defendants for alleged violation of Plaintiff’s First Amendment and Fourteenth 15 Amendment rights. See Compl. § II.A. 16 B. Standing 17 Both the State Defendants and Defendant Nagle have challenged Plaintiff’s action as 18 unripe because, at the time he filed the action, the Defendants’ motions to dismiss in the 1713 19 Action were still pending. However, on March 31, 2023, the 1713 Action was dismissed with 20 partial leave to amend, and judgment was subsequent entered against Plaintiff. Malberg v. 21 McCracken, et al., Case No. 5:22-cv-01713-EJD, ECF Nos. 61, 65. Consequently, Plaintiff’s 22 request for injunctive relief in the instant action is now moot, but he has experienced an injury-in- 23 fact for standing and ripeness purposes. As a result, Plaintiff’s standing and this Court’s subject 24 matter jurisdiction are secured, and the Court may address Plaintiff’s § 1983 claims. 25 C. State Defendants 26 Turning first to the State Defendants, the Court first notes as a general matter that the 27 Eleventh Amendment shields the State of California and its employees from suit. See, e.g., Will v. 1 du Quebec (“Quebec”) v. Harris, 729 F.3d 937, 943 (9th Cir. 2013) (“Plaintiffs are plainly barred 2 by the Eleventh Amendment from suing the State of California in federal court.”). Although the 3 doctrine of Ex parte Young provides an exception to Eleventh Amendment immunity for state 4 officials sued in their official capacities, that exception only allows “for prospective declaratory or 5 injunctive relief . . . for their alleged violations of federal law.” Quebec, 729 F.3d at 943. Here, 6 the injunctive relief is moot, and Plaintiff does not seek declaratory relief. The State Defendants’ 7 Eleventh Amendment immunity, therefore, remains intact and effective. 8 In addition to the protection of the Eleventh Amendment, the individual State Defendants’ 9 challenged conduct is shielded by the absolute prosecutorial immunity, because the action of filing 10 a motion to dismiss in the 1713 Action is “intimately associated with the judicial phase of the 11 litigation.” Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir. 1991); see also Liao v. Ashcroft, 2009 12 WL 1371691, at *4 (N.D. Cal. May 15, 2009) (holding that absolute prosecutorial immunity 13 applies to deputy attorney general’s “official conduct in [defending] the government in a prior 14 state court action”). Accordingly, Plaintiff may not maintain any claim against the individual 15 State Defendants for their advocacy and defense in the 1713 Action. 16 All State Defendants are DISMISSED WITHOUT LEAVE TO AMEND from this action. 17 D. Defendant Nagle 18 Plaintiff also asserts a § 1983 claim against Ms. Nagle for her defense of Judges 19 McCracken and Garcia-Sen in the 1713 Action. This claim, however, fails for several reasons. 20 “To state a claim under § 1983, a plaintiff must . . . show that the alleged deprivation was 21 committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). 22 The Court finds that Ms. Nagle was not acting under color of state law. Ms. Nagle is an attorney 23 in private practice and does not become a state actor solely by performing private attorney 24 functions on behalf of public servants. See Reed v. Levy, 2009 WL 593933, at *1 (N.D. Cal. Mar. 25 4, 2009) (“Attorneys in private practice are not state actors.”); Dyer v. Maryland State Bd. of 26 Educ., 187 F. Supp. 3d 599, 615 (D. Md. 2016), aff’d, 685 F. App’x 261 (4th Cir. 2017) (“[I]t is 27 ‘well settled that a private attorney does not become a state actor simply by representing a public ] Additionally, Plaintiff's claim against Ms. Nagle also cannot be maintained for the 2 || separate and independent reason that her appearance and advocacy before a court of law are 3 || protected by the First Amendment per the Noerr-Pennington doctrine. “Under the Noerr- 4 || Pennington doctrine, those who petition any department of the government for redress are 5 || generally immune from statutory liability for their petitioning conduct.” B&G Foods N. Am., Inc. 6 || v. Embry, 638 F. Supp. 3d 1122, 1128 (E.D. Cal. 2022) (citing Sosa v. DIRECTV, Inc., 437 F.3d 7 || 923, 931 (9th Cir. 2006)). Plaintiffs present lawsuit imposes a clear burden on Ms. Nagle’s First 8 || Amendment petitioning rights by attempting to impose liability for her motions in the 1713 Action 9 || Ms. Nagle’s motion to dismiss in the 1713 Action is certainly a petition, i.e., a communication to 10 || support her request that the court undertake a specific action. Sosa, 437 F.3d at 933 (noting that 11 protected activities include filing a “complaint, an answer, a counterclaim and other assorted 12 || documents and pleadings, in which plaintiffs or defendants make representations and present E 13 arguments to support their request that the court do or not do something”). Plaintiff also has not 14 || responded to Ms. Nagle’s arguments, nor has he attempted to show an exception to Noerr- 3 15 || Pennington applies. See B&G Foods, 638 F. Supp. 3d at 1128-31. Indeed, he cannot, given that 16 || Ms. Nagle’s defense in the 1713 Action resulted in a complete defense judgment. i 17 In summary, Plaintiff fails to state a cause of action against Ms. Nagle. Accordingly, Ms. 18 || Nagle shall be DISMISSED WITHOUT LEAVE TO AMEND. 19 |} IT. CONCLUSION 20 Based on the foregoing reasons, Defendants’ motions to dismiss are GRANTED. The 21 Complaint is DISMISSED WITHOUT LEAVE TO AMEND and WITH PREJUDICE. 22 IT IS SO ORDERED. 23 Dated: September 29, 2023 EDWARD J. DAVILA 25 United States District Judge 26 27 28