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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

WESTERN DIVISION

11 PETER KLEIDMAN, ) Case No. 2:24-cv-02353-PA-JDE ) 12 ) 13 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY v. ) THIS ACTION SHOULD NOT BE 14 ) DISMISSED 15 ADMINISTRATIVE PRESIDING ) ) JUSTICE ELWOOD LUI, et al., ) 16 ) 17 Defendants. )

18 19 I. 20 INTRODUCTION 21 On March 20, 2024, Peter Kleidman (“Plaintiff”), proceeding pro se, filed 22 a civil rights Complaint pursuant to 42 U.S.C. § 1983 against Justice Elwood 23 Lui. Dkt. 1 (“Complaint”). The Complaint alleged that Justice Lui violated 24 Plaintiff’s right of access to the courts by denying his request to file an appeal 25 from an adverse judgment. On June 18, 2024, Justice Lui filed a Motion to 26 Dismiss the Complaint, alleging the Court lacks subject matter jurisdiction 27 pursuant to the Rooker-Feldman doctrine, among other issues. Dkt. 11 28 (“Motion”). 1 On July 9, 2024, Plaintiff filed a First Amended Complaint (“FAC”), 2 making the FAC the operative complaint and mooting the Motion. Dkt. 14. 3 The FAC names Justice Lui and Chief Judge Mary H. Murguia of the United 4 States Court of Appeals for the Ninth Circuit as defendants. Plaintiff alleges a 5 violation of his right of access to the courts against Justice Lui for denying a 6 request to file an appeal by a vexatious litigant. FAC at 2-4. Plaintiff also raises 7 due process and equal protection claims against Chief Judge Murguia, 8 challenging the Ninth Circuit’s Rule of Interpanel Accord (“RIA”), “two-tiered 9 system whereby some decisions have precedential value and others do not,” 10 and “practice of disposing of cases with perfunctory decisions.” Id. at 4-10. 11 Pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure, “[i]f 12 the court determines at any time that it lacks subject-matter jurisdiction, the 13 court must dismiss the action.” Based on a review of Plaintiff’s FAC, it appears 14 the Court lacks subject matter jurisdiction over this action. 15 II. 16 STANDARD OF REVIEW 17 “Federal courts are courts of limited jurisdiction, possessing only that 18 power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 19 251, 256 (2013) (citation and internal quotation marks omitted). “A federal 20 court is presumed to lack jurisdiction in a particular case unless the contrary 21 affirmatively appears.” Stevedoring Servs. of Am., Inc. v. Eggert, 953 F.2d 22 552, 554 (9th Cir. 1992) (as amended) (citation omitted). Courts “have an 23 independent obligation to determine whether subject-matter jurisdiction exists, 24 even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 25 546 U.S. 500, 514 (2006); Scholastic Ent., Inc. v. Fox Ent. Grp., Inc., 336 F.3d 26 982, 985 (9th Cir. 2003); Fed. R. Civ. P. 12(h)(3). 27 / / / 28 / / / 1 III. 2 DISCUSSION 3 A. The Court Appears to Lack Jurisdiction Over Plaintiff’s Claim 4 Against Justice Lui Under the Rooker-Feldman Doctrine 5 Plaintiff was previously designated a vexatious litigant in state court, 6 subject to a prefiling order. In this action, Plaintiff challenges Justice Lui’s 7 denial of a request by a vexatious litigant to file an appeal of an adverse 8 judgment in superior court. FAC at 2-3. However, as Plaintiff has been 9 repeatedly notified in his prior actions, federal district courts lack subject 10 matter jurisdiction over a de facto appeal from a state court judgment. See 11 Kleidman v. Willhite, et al., Case No. 2:20-cv-2365-PSG-JDE (C.D. Cal.) 12 (“First Action”), Dkt. 28 at 8-16; Kleidman v. Collins, et al., Case No. 2:22-cv- 13 03263-CJC-JDE (C.D. Cal.) (“Second Action”), Dkt. 23 at 6-9; Kleidman v. 14 RFF Family Partnership, LP, et al., Case No. 2:22-cv-03947-SPG-AFM (C.D. 15 Cal.) (“Third Action”), Dkt. 39 at 5-6; Kleidman v. Cal. Court of Appeal for 16 the Second Appellate District, et al., Case No. 20-56256 (9th Cir.) (“Prior 17 Appeal”), Dkt. 35 at 2-3, cert. denied, Case No. 22-725 (Apr. 17, 2023). 18 Under the Rooker-Feldman doctrine, a federal district court may not 19 exercise subject-matter jurisdiction over a de facto appeal from a state court 20 judgment. Noel v. Hall, 341 F.3d 1148, 1154, 1156 (9th Cir. 2003) (citing 21 Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Ct. of Appeals v. 22 Feldman, 460 U.S. 462 (1983)). Congress, in 28 U.S.C. § 1257, vests the 23 United States Supreme Court, not the lower federal courts, with appellate 24 jurisdiction over state court judgments. Lance v. Dennis, 546 U.S. 459, 463 25 (2006) (per curiam). “Review of such judgments may be had only in [the 26 Supreme] Court.” Feldman, 460 U.S. at 482. 27 The Rooker-Feldman doctrine governs “cases brought by state-court 28 losers complaining of injuries caused by state-court judgments rendered before 1 the district court proceedings commenced and inviting district court review 2 and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. 3 Corp., 544 U.S. 280, 284 (2005). In determining whether an action functions as 4 a de facto appeal, courts “pay close attention to the relief sought by the federal- 5 court plaintiff.” Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th Cir. 2003) 6 (citation omitted). “Rooker-Feldman bars any suit that seeks to disrupt or 7 ‘undo’ a prior state-court judgment, regardless of whether the state-court 8 proceeding afforded the federal-court plaintiff a full and fair opportunity to 9 litigate [his] claims.” Id. at 901 (citation and footnote omitted). “It is a 10 forbidden de facto appeal under Rooker-Feldman when the plaintiff in federal 11 district court complains of a legal wrong allegedly committed by the state 12 court, and seeks relief from the judgment of that court.” Noel, 341 F.3d at 13 1163; Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008) 14 (“[t]he clearest case for dismissal based on the Rooker-Feldman doctrine 15 occurs when a federal plaintiff asserts as a legal wrong an allegedly erroneous 16 decision by a state court, and seeks relief from a state court judgment based on 17 that decision.” (alteration in original) (citation omitted)). District courts do not 18 have jurisdiction “over challenges to state court decisions in particular cases 19 arising out of judicial proceedings even if those challenges allege that the state 20 court’s action was unconstitutional.” Feldman, 460 U.S. at 486; Benavidez v. 21 County of San Diego, 993 F.3d 1134, 1142 (9th Cir. 2021) (explaining that the 22 Rooker-Feldman doctrine applies “‘even where the challenge to the state court 23 decision involves federal constitutional issues,’ including section 1983 claims” 24 (citation omitted)). Further, allegations that are inextricably intertwined with 25 the state courts’ judgment are subject to dismissal under the Rooker-Feldman 26 doctrine. See Noel, 341 F.3d at 1158; Bianchi, 334 F.3d at 898. 27 The relief Plaintiff seeks—a declaration that he “has the constitutional 28 right to be allowed entry into DCA2” and an injunction “commanding AP 1 Justice Lui to allow [him] into DCA2 so that [he] can prosecute his appeal”— 2 constitutes a de facto appeal of the state court’s denial of authorization to file 3 an appeal by a vexatious litigant. The Ninth Circuit has repeatedly determined 4 that the Rooker-Feldman doctrine precludes a plaintiff from challenging the 5 application of a vexatious litigant order. See, e.g., Earls v. Greenwood, 816 F. 6 App’x 155, 155 (9th Cir. 2020); Giampa v. Duckworth, 586 F. App’x 284, 285 7 (9th Cir. 2014); see also Bashkin v. Hickman, 411 F. App’x 998, 999 (9th Cir. 8 2011) (challenge to vexatious litigant order barred by Rooker-Feldman 9 doctrine). District courts within the Ninth Circuit also have determined that 10 challenges to the application of a state court vexatious litigant order are barred 11 by the Rooker-Feldman doctrine. See, e.g., Westin v. City of Calabasas, 2023 12 WL 4289336, at *3 (C.D. Cal. Jan. 25, 2023), accepted by 2023 WL 4289519 13 (C.D. Cal. May 29, 2023); Rupert v. Atack, 2011 WL 320230, at *2 (N.D. Cal. 14 Jan. 28, 2011). As Plaintiff seeks precisely the type of relief that the Supreme 15 Court and the Ninth Circuit have instructed is outside the subject-matter 16 jurisdiction of district courts, it appears Plaintiff’s claim against Justice Lui is 17 barred by the Rooker-Feldman doctrine. 18 B. The Court Appears to Lack Jurisdiction Over Plaintiff’s Claims 19 Against Chief Judge Murguia 20 Plaintiff also challenges the Ninth Circuit’s RIA, “two-tiered system,” 21 and “practice of disposing of cases with perfunctory decisions,” naming Chief 22 Judge Murguia as a defendant. As explained below, it appears Plaintiff lacks 23 Article III standing to raise these challenges. 24 Article III of the United States Constitution limits the jurisdiction of 25 federal courts to actual cases and controversies. “[T]he core component of 26 standing is an essential and unchanging part of the case-or-controversy 27 requirement of Article III” and contains three elements: (1) the plaintiff must 28 have suffered an injury in fact that is concrete and particularized and actual or 1 imminent, not conjectural or hypothetical; (2) there must be a causal 2 connection between the injury and the challenged conduct; and (3) it is likely, 3 as opposed to merely speculative, that the injury will be redressed by a 4 favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992); see 5 also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006). 6 In the context of injunctive and declaratory relief, the plaintiff must 7 show that he has suffered or is threatened with a “‘concrete and particularized’ 8 legal harm, . . . coupled with ‘a sufficient likelihood that he will again be 9 wronged in a similar way.”” Canatella v. California, 304 F.3d 843, 852 (9th 10 Cir. 2002) (as amended) (citations omitted). A plaintiff must do more than 11 show a past injury, San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 12 1126 (9th Cir. 1996) (“Because plaintiffs seek declaratory and injunctive relief 13 only, there is a further requirement that they show a very significant possibility 14 of future harm; it is insufficient for them to demonstrate only a past injury”), 15 abrogated in part on other grounds as recognized by Libman v. United States, 16 2024 WL 2269271, at *1 (9th Cir. May 20, 2024); Scannell v. Wash. State Bar 17 Ass’n, 2014 WL 12907843, at *4 (W.D. Wash. Mar. 10, 2014) (“because 18 Plaintiff can achieve only prospective relief under Rooker-Feldman, ‘[p]ast 19 deprivation by itself is not enough to demonstrate the likelihood of future 20 deprivations” (alteration in original) (citation omitted)), and a mere claim that 21 he “suffers in some indefinite way in common with people generally” does not 22 state an Article III case or controversy. Lujan, 504 U.S. at 574 (citation 23 omitted); Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 24 817, 821 (9th Cir. 2002) (explaining that “the injury that a plaintiff alleges must 25 be unique to that plaintiff, one in which he has a ‘personal stake’ in the 26 outcome of a litigation seeking to remedy that harm”). 27 Plaintiff has been repeatedly advised of the Article III standing 28 requirement. See First Action, Dkt. 28 at 17-18; Second Action, Dkt. 23 at 10- 1 11; Third Action, Dkt. 39 at 8-9. Nonetheless, Plaintiff again seeks to assert 2 constitutional challenges to various rules and/or practices despite apparent 3 lack of standing. As Plaintiff concedes (FAC at 8), he previously challenged 4 the Ninth Circuit’s two-tiered system and the Court found he lacked standing 5 to challenge this system. See First Action, Dkt. 28 at 22-24; Dkt. 33. That 6 decision was affirmed by the Ninth Circuit. Prior Appeal, Dkt. 35 at 3. 7 Plaintiff asserted another challenge in the Second Action, and the Court found 8 the renewed claim was barred by res judicata. See Second Action, Dkt. 23 at 9 12. While Plaintiff offers various arguments regarding why the First Action 10 should not have any preclusive effect, Plaintiff has provided no basis for a 11 finding that he has standing to assert this claim. As he did in the First Action, 12 he speculates that his case ultimately will be decided by the Ninth Circuit in a 13 non-precedential decision based on Ninth Circuit statistics, such that he “now 14 has standing for this pre-enforcement challenge to the validity of this practice.” 15 FAC at 9. However, as in the First Action, Plaintiff’s alleged injury is entirely 16 speculative. The Court’s prior analysis of this issue equally applies to the 17 current challenge. As the Court previously explained: 18 The mere existence of this rule, which may or may not be applied 19 to Plaintiff in the future, is not sufficient to create a case or 20 controversy within the meaning of Article III. See Stoianoff v. 21 Montana, 695 F.2d 1214, 1223 (9th Cir. 1983) (finding that 22 plaintiff failed to show “any real or threatened injury at the hands 23 of persons acting under the authority granted by the statute” and 24 as such, he lacked standing to challenge advertising prohibition of 25 statute (citation omitted)); see also Schmier, 279 F.3d at 821-822 26 (alleged “speculative loss of some alleged right in citing and 27 relying on an unpublished decision someday” did not establish a 28 legally cognizable injury). “A plaintiff may allege a future injury in 1 order to comply with [the injury-in-fact] requirement, but only if 2 he or she ‘is immediately in danger of sustaining some direct injury 3 as the result of the challenged official conduct and the injury or 4 threat of injury is both real and immediate, not conjectural or 5 hypothetical.’” Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 6 656 (9th Cir. 2002) (citation omitted); Stoianoff, 695 F.2d at 1223 7 (explaining that the “plaintiff must demonstrate a genuine threat 8 that the allegedly unconstitutional law is about to be enforced 9 against him”). 10 Here, Plaintiff’s alleged injury is entirely speculative, based 11 on multiple levels of conjecture and hypothetical future events. 12 Plaintiff claims that if he loses in this Court, he intends to appeal, 13 which, he claims, will result in a high probability that his case 14 ultimately will be decided by an unpublished decision of the Ninth 15 Circuit. He asserts that most decisions from the Ninth Circuit are 16 unpublished, which he claims, without support, results in more 17 erroneous decisions. However, only if he hypothetically lost in the 18 district court, then hypothetically lost substantively in the Ninth 19 Circuit, then hypothetically lost on a request for a published 20 opinion, then hypothetically lost a request for en banc review, and 21 finally, hypothetically was denied certiorari by the Supreme Court, 22 would an unpublished decision harm him based on a hypothetical 23 belief, not supported by any data, that the decision is more likely 24 to be wrong even though under the Ninth Circuit and general rules 25 of appellate procedure the opinion is available and can be 26 referenced but does not have precedential value. Plaintiff has failed 27 to allege an imminent threat of future harm based on such a 28 hypothetical situation. As such, Plaintiff lacks standing to pursue 1 his challenges to Ninth Circuit Rule 36-3. See Cent. for Biological 2 Diversity v. Bernhardt, 946 F.3d 553, 560 (9th Cir. 2019) (alleged 3 injury based on “speculative chain of future possibilities” did not 4 satisfy Article III standing). 5 First Action, Dkt. 28 at 22-24. As in the First Action, it appears Plaintiff lacks 6 standing to pursue his challenge to the Ninth Circuit’s two-tiered system. 7 Similarly, Plaintiff lacks standing to challenge the RIA and the Ninth 8 Circuit’s practice of issuing perfunctory decisions. With respect to the RIA 9 challenge, this claim also has been raised before. The Court previously found 10 in the Second Action that this claim was meritless. Second Action, Dkt. 23 at 11 10 n.1. Putting aside whether res judicata applies here, Plaintiff has not shown 12 he has suffered an injury in fact. As with his challenge to the Ninth Circuit’s 13 two-tiered system, Plaintiff again speculates that this action will be determined 14 on appeal and the Ninth Circuit “will adhere” to the RIA. FAC at 4. Plaintiff 15 relies on this same conjecture in support of his challenge to perfunctory 16 decisions. As with his other claims, he asserts that “[t]here is a substantial 17 likelihood (based on Ninth Circuit statistics) that this case will be decided on 18 appeal with a perfunctory memorandum or order, and so [he] now has 19 standing to challenge the validity of this practice as a pre-enforcement 20 challenge.” Id. at 10. The FAC does not allege facts sufficient to establish an 21 injury in fact that is fairly traceable to Chief Judge Murguia. As the Court has 22 repeatedly emphasized, this type of conjecture, does not satisfy Article III 23 standing. As such, it appears the Court lacks subject matter jurisdiction over 24 Plaintiff’s claims against Chief Judge Murguia. 25 C. Leave to Amend Does Not Appear Warranted 26 Plaintiff have been repeatedly apprised of these jurisdictional issues. The 27 FAC suffers from the same defects previously identified in Plaintiff’s prior 28 actions. Despite notice of these defects, Plaintiff has failed to correct any of the 1 defects in the instant action. It is apparent that the foregoing deficiencies are 2 ||not the result of inartful pleading but are instead the result of legal deficiencies 3 ||that cannot be cured by further amendment. Thus, it appears further leave to 4 ||amend is not warranted. See, e.g., Chaset v. Fleer/Skybox Int'l, 300 F.3d 5 ||1083, 1088 (9th Cir. 2002) (holding that “there is no need to prolong the 6 litigation by permitting further amendment” where the “basic flaw” in the 7 ||pleading cannot be cured by amendment). 8 IV. 9 CONCLUSION AND ORDER 10 Plaintiff is therefore ORDERED TO SHOW CAUSE why this action Il ||should not be dismissed by filing a written response within ten (10) days from 12 ||the date of this Order setting forth any valid legal and/or factual reasons or 13 |]arguments why the Court should not find that it lacks subject matter 14 ||jurisdiction over this action. 15 In addition, Plaintiff is ORDERED to take no action to serve Chief 16 || Judge Murguia and no summons shall issue for Chief Judge Murguia pending 17 || further order of the Court. Justice Lui’s time to respond to the FAC is stayed 18 || pending further order from the Court. 19 A failure to timely file a response to this Order may result in the 20 || dismissal of the action for lack of subject matter jurisdiction, for failure to 21 || prosecute, and failure to comply with Court orders. See Fed. R. Civ. P. 22 |/41(b) 23 IT IS SOORDERED. 24 jf KLE, 95 Dated: July 12, 2024 hiv 2 AG

JOHN D. EARLY

26 United States Magistrate Judge 27 28 10