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 DENYING MOTION FOR

13 v. LEAVE TO ELECTRONICALLY

FILE DOCUMENTS AND

14 TERRIE E. ROBERTS,

DISMISSING COMPLAINT WITH

15 Defendant. PREJUDICE 16 (ECF Nos. 8, 9) 17 Presently before the Court are Plaintiff Maria Herta’s Amended Complaint (“SAC,” 18 ECF No. 8), and Motion for Leave to Electronically File Documents (“Mot.,” ECF No. 9). 19 Having considered both documents and the law, the Court DISMISSES WITH 20 PREJUDICE Plaintiff’s Amended Complaint and DENIES AS MOOT Plaintiff’s 21 Motion for Leave to Electronically File Documents. 22 BACKGROUND 23 This case arises out of a series of adverse rulings issued by Judge Terrie E. Roberts 24 in a custody dispute between Plaintiff Maria Herta and her ex-husband, Marius Herta. SAC 25 ¶ III.A.1. The underlying custody dispute had been stewing in San Diego County Superior 26 Court—on which Judge Roberts sits—and eventually resulted in a final custody judgment 27 on December 20, 2021. Id. Since that time, Plaintiff has suffered a series of additional 28 setbacks in the proceedings before Judge Roberts and has made multiple attempts in federal 1 court to rectify violations of her constitutional rights Plaintiff alleges resulted from Judge 2 Roberts’s actions. Id. ¶¶ III.A.2, III.C.1–5. 3 Plaintiff previously filed a lawsuit in this Court with similar allegations to those 4 presented in the instant matter on February 2, 2022, but that suit was dismissed due to 5 Plaintiff’s failure to either pay the required filing fee or to file a satisfactory motion to 6 proceed in forma pauperis (“IFP”). See Herta v. Roberts, No. 22-cv-00156-LAB-RBB 7 (S.D. Cal. June 1, 2022), ECF Nos. 1, 5. She then brought this lawsuit on September 23, 8 2024, where she advances several allegations related to purported constitutional violations 9 perpetrated by Judge Roberts between 2022 and 2023. Specifically, Plaintiff takes issue 10 with the following actions: (1) rescheduling a hearing without providing proper notice, 11 SAC ¶ III.C.1; (2) reopening a final custody judgment and issuing a full custody order in 12 favor of Plaintiff’s ex-husband, id. ¶ III.C.2; (3) ratifying improper service of custody 13 documents by Plaintiff’s ex-husband’s new wife, id. ¶ III.C.3; (4) dismissing evidence 14 proffered by Plaintiff and removing Plaintiff from the courtroom “when [Plaintiff] 15 questioned the legality and fairness of the custody decision,” id. ¶ III.F.1; and 16 (5) suggesting to Plaintiff’s ex-husband that he hide his child from Plaintiff, id. ¶ III.G.1. 17 This final action, Plaintiff says, was taken in retaliation for Plaintiff filing her first federal 18 lawsuit against Judge Roberts.1 Id. ¶ III.G.1. 19 As relevant here, the Court twice screened—based on Plaintiff’s IFP status— prior 20 Complaints pursuant to 28 U.S.C. § 1915(a). See ECF Nos. 3, 7. Both times, the Court 21 noted the judicial nature of each of the acts complained of and dismissed Plaintiff’s claims 22 under the doctrine of judicial immunity. See, e.g., ECF No. 7 at 5 (“Here, as before, all of 23 Plaintiff’s allegations describe judicial acts, thus shielding Defendant from civil liability.”). 24 However, despite “serious doubts that Plaintiff [would] be able to cure her claims through 25

26 1 Plaintiff does not explain the precise circumstances under which Judge Roberts allegedly made this 27 suggestion, but the entirety of the SAC takes place within the context of the underlying judicial 28 proceedings. There is, thus, no plausible basis to believe, despite the absence of any detail, that Judge 1 amendment,” the Court granted Plaintiff leave to make a third attempt to plead around 2 judicial immunity, though it cautioned Plaintiff that if she “again fails to allege any 3 non-judicial acts performed by Defendant, Plaintiff’s case will be dismissed with 4 prejudice.” Id. at 6. 5 LEGAL STANDARD 6 The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a) 7 and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief 8 may be granted,” or “seeks monetary relief against a defendant who is immune from such 9 relief.” 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 10 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); 11 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. 12 § 1915(e) “not only permits but requires a district court to dismiss an in forma pauperis 13 complaint that fails to state a claim”). 14 All complaints must contain a “short and plain statement of the claim showing that 15 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 16 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 17 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 18 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a 19 complaint states a plausible claim is context-specific, requiring the reviewing court to draw 20 on its experience and common sense.” Id. at 663–64 (citing Twombly, 550 U.S. at 556). 21 “When there are well-pleaded factual allegations, a court should assume their 22 veracity, and then determine whether they plausibly give rise to an entitlement of relief.” 23 Id. at 679. “[W]hen determining whether a complaint states a claim, a court must accept 24 as true all allegations of material fact and must construe those facts in the light most 25 favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also 26 Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 27 152 F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) parallels the 28 language of Federal Rule of Civil Procedure 12(b)(6).”). In addition, the Court must 1 liberally construe a pro se litigant’s pleadings. See Haines v. Kerner, 404 U.S. 519, 521–22 2 (1972). 3 ANALYSIS 4 Plaintiff’s SAC fails to address the Court’s repeated concerns that Defendant is 5 immune from suit. “To determine whether an act is judicial, [courts] consider these factors: 6 whether ‘(1) the precise act is a normal judicial function; (2) the events occurred in the 7 judge’s chambers; (3) the controversy centered around a case then pending before the 8 judge; and (4) the events at issue arose directly and immediately out of a confrontation with 9 the judge in his or her official capacity.’” Lund v. Cowan, 5 F.4th 964, 971 (9th Cir. 2021) 10 (quoting Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001)). Recognizing 11 these telltale signs of judicial functions, the Court previously rejected Plaintiff’s contention 12 that Judge Roberts undertook non-judicial acts that circumvent the shield of judicial 13 immunity. See ECF No. 7 at 5. 14 Plaintiff’s factual allegations in the SAC largely mimic the ones already held to be 15 judicial acts twice before. Plaintiff, as before, asserts violations under 42 U.S.C. § 1983 of 16 her procedural and substantive due process rights under the Fifth and Fourteenth 17 Amendments of the United States Constitution. SAC at 10. She also asserts a violation of 18 the First Amendment of the United States Constitution for Judge Roberts’s alleged 19 retaliation in response to Plaintiff filing her first federal lawsuit, and she further asserts 20 interference with her parental rights.2 Id. These causes of action are all premised upon, 21 broadly speaking, Judge Roberts’s discretionary decision-making, both procedurally and 22 substantively, in Plaintiff’s underlying custody dispute. As the Court found in regard to 23 their previous iterations, all of Plaintiff’s claims “are rooted in core judicial functions,” so 24

25 2 Plaintiff includes two causes of action labeled as “Count 5,” which are styled “Parental Alienation and 26 Emotional Distress” and “Abuse of Power and Failure to Act in Best Interests of the Child,” respectively. SAC at 11. Even under the liberal pleading standard extended to pro se litigants, the Court is unable to 27 neatly categorize these causes of action in any meaningful way other than as violations of constitutional 28 rights under 42 U.S.C. § 1983. Thus, the analysis that follows applies equally to all claims from Plaintiff’s 1 they must be dismissed. See ECF No. 7 at 6; see also Stump v. Sparkman, 435 U.S. 349, 2 362–63 (1978) (finding acts judicial in nature when they are “the type of act normally 3 performed only by judges”). 4 For the sake of completeness, the Court makes one final point related to remedies. 5 In her SAC, Plaintiff seeks compensatory and punitive damages, injunctive relief, and 6 attorneys’ fees. See SAC. The law is well-settled that, where judicial immunity attaches, 7 none of these types of relief are permitted, either as a result of the common law—which 8 bars suits seeking damages—or under 42 U.S.C. § 1983—which was expanded by 9 Congress in 1996 to preclude the availability of injunctive relief “in any action brought 10 against a judicial officer for an act or omission taken in such officer’s judicial capacity.” 11 See Moore v. Urquhart, 899 F.3d 1094, 1104 (9th Cir. 2018). This much the Court 12 recognized, albeit implicitly, in prior screenings. See ECF No. 7 at 5. 13 Now, in her SAC, Plaintiff adds an additional request for a “declaration that 14 Defendant Judge Terrie E. Roberts violated Plaintiff’s constitutional rights under the Fifth, 15 Fourteenth, and First Amendments.” See SAC. The availability of declaratory relief under 16 § 1983 is, under current law, an open question in this circuit. See Lund, 5 F.4th at 970 n.2 17 (“Our court has not yet explicitly answered whether the statutory amendment bars 18 declaratory relief, so [the plaintiff] urges us to hold that it does not. But we leave that 19 question for another day.”). 20 But even if prospective declaratory relief may be available, retrospective declaratory 21 relief is indisputably unavailable under the separate doctrine of Eleventh Amendment 22 sovereign immunity, which “bars individuals from bringing lawsuits against a state for 23 money damages or other retrospective relief” absent the state’s consent or an unequivocal 24 Congressional waiver. Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 864 25 (9th Cir. 2016) (citing Frew v. Hawkins, 540 U.S. 431, 437 (2004)). This Eleventh 26 Amendment immunity applies with full force to claims brought against a state court judge. 27 Simmons v. Sacramento Cnty. Superior Ct., 318 F.3d 1156, 1161 (9th Cir. 2003) (“Plaintiff 28 cannot state a claim against the Sacramento County Superior Court (or its employees), 1 because such suits are barred by the Eleventh Amendment.” (citing Will v. Mich. Dep’t of 2 State Police, 491 U.S. 58, 70 (1989))). Here, Plaintiff seeks only retrospective declaratory 3 relief in the form of a declaration that Judge Roberts has, in the past, violated Plaintiff’s 4 constitutional rights. Such a request cannot be sustained. See Lund, 5 F.4th at 970 (“We 5 agree with [the defendant] that [the claim] seeks purely retrospective relief and thus cannot 6 survive sovereign immunity.”). 7 Accordingly, to the extent Plaintiff seeks retrospective declaratory relief, her claims 8 are barred by Eleventh Amendment sovereign immunity. And to the extent Plaintiff seeks 9 monetary or injunctive relief, her claims are barred by judicial immunity. Thus, the Court 10 DISMISSES the SAC. Although the Court ordinarily “should not dismiss a pro se 11 complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the 12 complaint could not be cured by amendment,’” Rosati v. Igbinoso, 791 F.3d 1037, 1039 13 (9th Cir. 2015) (citing Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)), Plaintiff has 14 now been given multiple opportunities to isolate non-judicial conduct by Judge Roberts in 15 the course of Plaintiff’s underlying custody dispute that skirts judicial immunity. Because 16 “plaintiffs do not enjoy unlimited opportunities to amend their complaints,” the Court does 17 not grant Plaintiff leave to amend as it has done twice before. Stone v. Conrad Preby’s, 18 No. 12-CV-2031-IEG (BLM), 2013 WL 139939, at *2 (S.D. Cal. Jan. 10, 2013) (citing 19 McHenry v. Renne, 84 F.3d 1172, 1174 (9th Cir. 1996)). 20 CONCLUSION 21 Given the foregoing, Plaintiff’s Amended Complaint (ECF No. 8) is DISMISSED 22 WITH PREJUDICE. Given this resolution of the Court’s screening of the Amended 23 Complaint under 28 U.S.C. § 1915(a), Plaintiff’s Motion for Leave to Electronically File 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 || Documents (ECF No. 9) is DISMISSED AS MOOT. As this concludes the litigation in 2 matter, the Clerk of the Court SHALL CLOSE the file. 3 IT IS SO ORDERED. 4 || Dated: March 17, 2025 psi L. Lo meeaitie- 5 on. Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28