2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS ALFRED USHER, Case No. 1:22-cv-00294-BAK (SKO) (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 TO DISMISS ACTION AS FRIVOLOUS v.

14

KERN COUNTY SUPERIOR COURT, FOURTEEN (14) DAY DEADLINE

15 Defendant. Clerk of Court to assign a district judge.

16 17 Plaintiff Thomas Alfred Usher, a state prisoner proceeding pro se, filed this civil rights 18 action under 42 U.S.C. § 1983. Plaintiff concurrently filed an application to proceed in forma 19 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. 1 (Doc. 2.) Plaintiff brings this action against a 20 single defendant, Kern County Superior Court, alleging a denial of due process. Because the 21 Superior Court is entitled to immunity under the Eleventh Amendment, this action must be 22 dismissed as frivolous. 23 Section 1915 provides that “the court shall dismiss the case at any time if the court 24 determines that . . . the action . . . is frivolous.” 28 U.S.C. § 1915(e)(2)(B)(i) (emphasis added). 25 This provision authorizes the court to sua sponte dismiss a frivolous in forma pauperis 26 complaint. Neitzke v. Williams, 490 U.S. 319, 322 (1989). Dismissal based on frivolousness is 27 1 The application was not accompanied by certified copy of Plaintiff’s trust fund account statement as required by 28 28 U.S.C. § 1915(a)(2). Therefore, Plaintiff’s IFP motion is not ripe for determination. 2 would entitle him or her to relief.” Id. at 322–23. 3 Under the Eleventh Amendment to the Constitution of the United States, a state or arm 4 of the state may not be sued in federal court without its consent. Pennhurst State Sch. & Hosp. 5 v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A 6 private citizen may only sue a state in federal court if (1) Congress has abrogated state 7 sovereign immunity under a grant of constitutional authority, or (2) the state has unequivocally 8 waived its immunity. Lucas v. Az. Sup. Ct. Fiduciary Certification Program, 457 F. App’x 689, 9 690 (9th Cir. 2011) (citing Holley v. Cal. Dep’t of Corrections, 599 F.3d 1108, 1111 (9th Cir. 10 2010)). Neither is applicable here. The Supreme Court has held that section 1983 was not 11 intended to abrogate a state’s Eleventh Amendment immunity.” Kentucky v. Graham, 473 U.S. 12 159, 169 n.17 (1985); accord Quern v. Jordan, 440 U.S. 332, 342 (1979). California has not 13 waived its Eleventh Amendment immunity with respect to section 1983 claims. Brown v. Cal. 14 Dep’t of Corrections, 554 F.3d 747, 752 (9th Cir. 2009) (citations omitted); Dittman v. State of 15 Cal., 191 F.3d 1020, 1025 (9th Cir. 1999) 16 The proper name of Defendant is the Superior Court of California, County of Kern.2 A 17 superior court is a state court and is treated as a state agency or arm of the state for purposes of 18 section 1983 claims. Simmons v. Sacramento Cnty. Superior Ct., 318 F.3d 1156, 1161 (9th Cir. 19 2003) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989)); Franceschi v. 20 Schwartz, 57 F.3d 828, 831 (9th Cir. 1995); Welchen v. Cnty. of Sacramento, 343 F. Supp. 3d 21 924, 935 (E.D. Cal. 2018) (citing Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 22 F.2d 1103, 1110 (9th Cir. 1987) (superseded by statute on other grounds)). Therefore, 23 Defendant Kern County Superior Court is entitled to immunity under the Eleventh Amendment. 24 Bishop v. Snohomish Superior Ct., 569 F. App’x 497, 498 (9th Cir. 2014) (citing Simmons, 318 25 F.3d at 1161)); Blount v. Sacramento Cnty. Superior Ct., 559 F. App’x 623 (9th Cir. 2014) 26 (citing Montana v. Goldin (In re Pegasus Gold Corp.), 394 F.3d 1189, 1195 (9th Cir. 2005). 27

28 2 https://www.kern.courts.ca.gov/ (last visited Mar. 30, 2022). 2 person within the jurisdiction thereof.” 42 U.S.C. § 1983. A state or a state official acting in an 3 official capacity is not a “person” under section 1983. Will v. Mich. Dep’t of State Police, 491 4 U.S. 58, 71 (1989); Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 5 1991) (citations omitted). Therefore, Plaintiff’s complaint against Kern County Superior Court 6 must be dismissed. 7 The Court must give some notice of the deficiencies in the complaint and grant a pro se 8 plaintiff leave to amend the complaint if the deficiencies can be cured by amendment. Cato v. 9 United States, 70 F.3d 1103, 1106 (9th Cir. 1995); Sun v. Yavapai Cnty. Sheriff’s Off., 914 F.2d 10 263 (9th Cir. 1990). However, the Court may dismiss the complaint if “it is absolutely clear 11 that the deficiencies of the complaint could not be cured by amendment.” Broughton v. Cutter 12 Lab’ys, 622 F.2d 458, 460 (9th Cir. 1980); Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 13 2015) (citations omitted). 14 Here, Plaintiff has named Kern County Superior Court as the sole defendant in this 15 action brought under 42. U.S.C. § 1983. As a state court or arm of the state, Defendant is 16 immune from liability under the Eleventh Amendment. Plaintiff cannot make any rational 17 argument in law or fact that would entitle him to relief. Plaintiff’s complaint is frivolous and 18 may be dismissed by the Court sua sponte. Because it is absolutely clear that the complaint 19 cannot be cured by amendment, this action must be dismissed without leave to amend. 20 Accordingly, IT IS RECOMMENDED that the Court DISMISS this case without leave 21 to amend. 22 The Clerk of Court is DIRECTED to randomly assign a district judge to this case. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 25 (14) days after being served with these Findings and Recommendations, the parties may file 26 written objections with the Court. The document should be captioned, “Objections to Magistrate 27 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 28 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 2 1991)). 3

4 IT IS SO ORDERED.

5 Dated: March 31, 2022 /s/ Sheila K. Oberto . 6 UNITED STATES MAGISTRATE JUDGE 7

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