Medeiros v. D' Addezio Kotler ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 19cv1787 JAH (LL) KIMBERLY MEDEIROS 12 ORDER: Plaintiff, 13 v. 1. GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 [Doc. No. 2]; MARYANN D’ADDEZIO KOTLER. 16 2. DENYING MOTION TO APPOINT Defendant. 17 COUNSEL [Doc. No. 3]; 18 3. DISMISSING COMPLAINT WITH 19 PREJUDICE PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) [Doc. No. 1] 20 21 22 INTRODUCTION 23 On September 17, 2019, Kimberly Medeiros (“Plaintiff”), proceeding pro se, filed a 24 complaint seeking damages against San Diego Superior Court Judge Maryann D’Addezio 25 Kutler (“Defendant”) for violations “of certain protections guaranteed to him by the First, 26 Fifth, Eighth, Ninth and Fourteenth Amendments of the Federal Constitution.” See Doc. 27 No. 1 at 1. Civil filing fees, as required by 28 U.S.C. § 1914(a), were not paid at the time 28 of filing. Instead, a motion for leave to proceed in forma pauperis (“IFP”) was filed, 1 pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. Plaintiff also filed a motion to appoint 2 counsel. Doc. No. 3. After a careful review of the pleadings, exhibits and motions and for 3 the reasons set forth below, the Court (1) GRANTS the motion for leave to proceed IFP, 4 [Doc. No. 2]; (2) DENIES the motion to appoint counsel [Doc No. 3], and (3) DISMISSES 5 the Complaint, [Doc. No. 1], with prejudice. 6 DISCUSSION 7 I. Plaintiff’s IFP Motion 8 All parties instituting any civil action, suit or proceeding in a district court of the 9 United States, except an application for writ of habeas corpus, must pay a filing fee of 10 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 11 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 12 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 13 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Courts grant leave to proceed IFP when 14 plaintiffs submit an affidavit, including a statement of all of their assets, showing the 15 inability to pay the statutory filing fee. See 28 U.S.C. § 1915(a). 16 In support of Plaintiff’s motion, she has submitted an application to proceed in 17 district court without paying fees or costs. See Doc. No 2. The application indicates that 18 Plaintiff is currently self-employed and earns an income of $1,8332 per month. Doc. No. 2 19 at 5. Plaintiff receives no income from real property, investments, retirement accounts, 20 gifts, or alimony. Id. at 1. Plaintiff’s average monthly expenses total $2895.00, exceeding 21 her total monthly income. Id. at 4-5. She indicates no other assets of value. Id. at 2-5. 22 23 24 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 25 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed 26 IFP. Id. 2 Plaintiff represents she earns $22,000 average monthly income in section one of her IFP application, but 27 later represents a gross monthly pay of $1833.00. See Doc. No. at 1-2. Because the Court believes Plaintiff erroneously placed a yearly salary where a monthly salary was requested, the Court will resolve this 28 1 Based on these representations, the Court finds Plaintiff is unable to pay the statutory filing 2 fee. Accordingly, the Court GRANTS Plaintiff’s motion for leave to proceed IFP. 3 II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) 4 A. Standard of Review 5 When a plaintiff seeks leave to proceed IFP, pursuant to 28 U.S.C. § 1915(a), the 6 Complaint is subject to sua sponte review, and mandatory dismissal, if it is “frivolous, 7 malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary 8 relief from a defendant immune from such relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman 9 v. Tollefson, 135 S. Ct. 1759, 1763 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court 10 shall dismiss the case at any time if the court determines that… (B) the action or appeal… 11 (ii) fails to state a claim on which relief may be granted.”); Lopez v. Smith, 203 F.3d 1122, 12 1127 (9th Cir. 2000) (en banc) (section 1915(e) not only permits, but requires, a district 13 court to dismiss an in forma pauperis complaint that fails to state a claim.). “The standard 14 for determining whether a plaintiff has failed to state a claim upon which relief can be 15 granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 16 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th 17 Cir. 2012). 18 Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 19 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint 20 lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 21 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) 22 authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”). 23 Alternatively, a complaint may be dismissed where it presents a cognizable legal theory 24 yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a 25 plaintiff need not give “detailed factual allegations,” he must plead sufficient facts that, if 26 true, “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 27 550 U.S. 544, 545 (2007). If a court determines that a complaint fails to state a claim, the 28 court should grant leave to amend unless it determines that the pleading could not possibly 1 be cured by the allegation of other facts. See Doe v. United States, 58 F.3d 494, 497 (9th 2 Cir. 1995). 3 B. Insufficiency of the Complaint 4 In the Complaint, Plaintiff alleges due process claims against Superior Court Judge 5 Maryann D’Addezio Kotler based on her rulings during family court proceedings. The 6 Ninth Circuit has held that judges are absolutely immune from civil liability for acts 7 performed in their official capacity. See Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 8 1986); Moore v. Brewster, 96 F.3d 1240, 1243-44 (9th Cir. 1996). In the instant case, all 9 of Plaintiff's allegations concern Judge Kotler’s conduct in her judicial capacity, 10 specifically Defendant’s decision to remove two minor children from Plaintiff’s custody. 11 See Stump v. Sparkman, 435 U.S. 349 (1978) (stating that a “judicial act” is one that is 12 normally performed by a judge or an action where the parties dealt with the judge in his 13 judicial capacity); Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 18 L.Ed.2d 288 14 (1967). As such, Judge Kotler is shielded from liability from the claims of purported 15 misconduct in Plaintiff's complaint. See In re Castillo, 297 F.3 d 940, 947 (9th Cir. 2002) 16 (“[A]bsolute immunity insulates judges from charges of erroneous acts or irregular action, 17 even when it is alleged that such action was driven by malicious or corrupt motives.”). 18 Thus, Plaintiff’s complaint is subject to sua sponte dismissal for failing to state a 19 claim upon which relief can be granted. Further, because judges acting in their official 20 capacity are afforded absolute immunity, the deficiencies in the complaint cannot be cured. 21 Accordingly, the Court DISMISSES this action with prejudice. 22 III. Motion for Appointment of Counsel 23 Plaintiff moved for appointment of counsel based on an inability to pay for the cost 24 of an attorney. See Doc No. 3. She notes that she had her car repossessed and is in the 25 process of filing for bankruptcy because she owes over $25,000 in attorney’s fees. Id. 26 The motion was brought pursuant to paragraph (e)(1) of section 1915, which 27 provides that a court “may request an attorney to represent any such person unable to 28 employ counsel.” 28 U.S.C § 1915 (e)(1). However, the authority of a court to appoint 1 || counsel is discretionary and there exists no statutory or constitutional right for an indigent 2 ||to have counsel appointed in a civil case. Willbourn v. Escalderon, 789 F.2d 1328, 1331 3 || (9th Cir.1986). 4 Counsel may be appointed under [1915(e)(1)] only in ‘exceptional circumstances’ 5 which requires an evaluation of both: (1) the likelihood of success on the merits, and (2) the ability of petitioner to articulate [her] claims pro se in light of the complexity 6 of the legal issues involved. Neither factor is dispositive and both must be viewed 4 together. (Citations omitted) 8 || Collier v. Pickett, No. C-94-20065-RMW, 1995 WL 274186, at *1 (N.D. Cal. May 9, 1995) 9 || (citing Willbourn, 789 F.2d at 1331). Even assuming Plaintiff’s limited financial resources 10 || and inability to articulate her claims, the Court finds appointment of counsel in the instant 11 || action unwarranted. In light of this Court’s determination that Plaintiff has failed to state a 12 |\claim for relief, the Court also finds that Plaintiff has not shown a likelihood of success on 13 merits of her case and therefore Plaintiffs motion to appoint counsel is DENIED. 14 CONCLUSION AND ORDER 15 For all the reasons discussed above, IT IS HEREBY ORDERED: 16 1. Plainitff’s Motion for Leave to Proceed IFP, pursuant to 28 U.S.C. § 1915(a), 17 [Doc. No. 2] is GRANTED; 18 2. Plaintiff's Motion to Appoint Counsel [Doc. No. 3] is DENIED; 19 3. The Complaint is DISMISSED with prejudice pursuant to 28 U.S.C. § 20 1915(e)(2)(B)(ii). 21 IT IS SO ORDERED. 22 23 DateD: June 25, 2020 24 Mk 25 foie — 26 JNITED STATES DISTRICT JUDGE 27 28