1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIA HERTA, Case No.: 24-CV-1698 JLS (BLM)

12 Plaintiff,

ORDER GRANTING MOTION TO

13 v. PROCEED IN FORMA PAUPERIS

AND DISMISSING COMPLAINT

14 TERRIE E. ROBERTS,

WITHOUT PREJUDICE

15 Defendant. (ECF Nos. 1 & 2) 16 17 Presently before the Court is Plaintiff Maria Herta’s Complaint (“Compl.,” ECF 18 No. 1), and Motion to Proceed In Forma Pauperis (“IFP Mot.,” ECF No. 2). Having 19 considered both documents and the law, the Court GRANTS Plaintiff’s IFP Motion and 20 DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint. 21 IFP MOTION 22 All parties instituting a civil action, suit, or proceeding in a district court of the 23 United States, except an application for writ of habeas corpus, must pay a filing fee of 24 $405.1 See 28 U.S.C. § 1914(a). An action may proceed despite the plaintiff’s failure to 25

26 1 In addition to the $350 statutory fee, all parties filing civil actions must pay an additional administrative 27 fee of $55. See 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, District Court Misc. Fee 28 Schedule, § 14 (eff. Dec 1, 2023). However, the additional administrative fee is waived if the plaintiff is 1 prepay the entire fee only if she is granted leave to proceed in forma pauperis pursuant to 2 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 3 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court may authorize 4 the commencement of an action without the prepayment of fees if the party submits an 5 affidavit, including a statement of assets, showing that she is unable to pay the required 6 filing fee. 28 U.S.C. § 1915(a). 7 Plaintiff has submitted the necessary affidavit as part of her IFP Motion. See IFP 8 Mot. at 1. Plaintiff’s affidavit notes that she is homeless and receives no income. Id. 9 at 1–2. Her only asset appears to be a 2006 Mazda 5, and she procures her food and 10 clothing by donation. Id. at 4. Given the foregoing, the Court concludes that Plaintiff’s 11 application demonstrates she is unable to pay the requisite fees and costs. Accordingly, 12 the Court GRANTS Plaintiff’s Motion to Proceed IFP. 13 SCREENING 14 The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a) 15 and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief 16 may be granted,” or “seeks monetary relief against a defendant who is immune from such 17 relief.” 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 18 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); 19 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. 20 § 1915(e) “not only permits but requires a district court to dismiss an in forma pauperis 21 complaint that fails to state a claim”). 22 All complaints must contain a “short and plain statement of the claim showing that 23 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 24 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 25 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 26 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a 27 complaint states a plausible claim is context-specific, requiring the reviewing court to draw 28 on its experience and common sense.” Id. at 663–64 (citing Twombly, 550 U.S. at 556). 1 “When there are well-pleaded factual allegations, a court should assume their 2 veracity, and then determine whether they plausibly give rise to an entitlement of relief.” 3 Id. at 679. “[W]hen determining whether a complaint states a claim, a court must accept 4 as true all allegations of material fact and must construe those facts in the light most 5 favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also 6 Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 7 152 F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) parallels the 8 language of Federal Rule of Civil Procedure 12(b)(6).”). In addition, the Court must 9 liberally construe a pro se litigant’s pleadings. See Haines v. Kerner, 404 U.S. 519, 521–22 10 (1972). 11 In the present case, the Court construes Plaintiff’s Complaint as bringing suit under 12 42 U.S.C. § 1983. Although Plaintiff does not reference Section 1983 nor clearly articulate 13 a recognized cause of action, she asserts that Defendant, a judge of the San Diego Superior 14 Court, violated Plaintiff’s right to due process of law when Defendant ruled on Plaintiff’s 15 custody dispute by ignoring substantial evidence and failing to provide adequate service 16 and notification. Compl. at 3. In the verbiage of Section 1983, Plaintiff alleges Defendant 17 deprived her of her constitutional rights under color of state law. To that end, Plaintiff 18 seeks relief in the form of a reevaluation of the custody order and the awarding of punitive 19 damages. Id. 20 However, Plaintiff’s claim against Defendant is for actions taken in her judicial 21 capacity, and “[t]he governing principle of law is well established . . . that ‘judges of courts 22 of superior or general jurisdiction are not liable to civil actions for their judicial acts . . . .” 23 Stump v. Sparkman, 435 U.S. 349, 355–56 (1978). “[W]hether an act by a judge is a 24 ‘judicial’ one relate[s] to the nature of the act itself, i.e., whether it is a function normally 25 performed by a judge, and to the expectations of the parties, i.e., whether they dealt with 26 the judge in his judicial capacity.” Id. at 362. Abiding by proper evidentiary or service 27 rules fits neatly within the subset of “judicial” acts, thereby immunizing Defendant in this 28 case from civil liability. Although there may well be other deficiencies in Plaintiff’s 1 || complaint, this alone is sufficient to warrant dismissal of Plaintiff's claim. 2 CONCLUSION 3 Given the foregoing, Plaintiff's IFP Motion (ECF No. 2) is GRANTED and her 4 ||Complaint (ECF No. 1) is DISMISSED WITHOUT PREJUDICE. Although the Court 5 ||}entertains serious doubts that Plaintiff will be able to cure her Complaint through 6 ||amendment, Plaintiff is nonetheless GRANTED LEAVE TO AMEND her Complaint. 7 || Plaintiff SHALL FILE an amended Complaint, if any, within forty-five days of the date 8 which this Order is electronically docketed. If Plaintiff does not so file within the 9 || allotted time, Plaintiff's case will be dismissed with prejudice. 10 IT IS SO ORDERED. 11 Dated: October 10, 2024 he it. Jt, itee- 12 on. Janis L. Sammartino 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28