1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DWAYNE LUCIOUS, Case No.: 22-cv-1261-JAH-NLS

12 Plaintiff, 1. GRANTING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS, [Doc. No. 2]; 14 PENNIE K. MCLAUGHLIN,

15 Defendant. 2. DISMISSING COMPLAINT WITH

PREJUDICE PURSUANT TO 28

16 U.S.C. § 1915(e)(2)(B)(ii), [Doc. No. 1]. 17 18 I. INTRODUCTION 19 On August 26, 2022, Dwayne Lucious (“Plaintiff”), proceeding pro se, filed a 20 complaint seeking damages against San Diego Superior Court Commissioner Hon. Pennie 21 K. McLaughlin (“Defendant”) for a violation of his civil rights under 42 U.S.C. § 1983. 22 Civil filing fees, as required by 28 U.S.C. § 1914(a), were not paid at the time of filing. 23 Instead, a motion for leave to proceed in forma pauperis (“IFP”) was filed, pursuant to 28 24 U.S.C. § 1915(a). See Doc. No. 2. After a careful review of the pleadings and for the 25 reasons set forth below, the Court (1) GRANTS the motion for leave to proceed IFP, (Doc. 26 No. 2); and (2) DISMISSES WITH PREJUDICE the Complaint, (Doc. No. 1). 27 /// 28 /// 1 II. DISCUSSION 2 A. Plaintiff’s IFP Motion 3 All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 6 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 7 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 8 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Courts grant leave to proceed IFP when 9 plaintiffs submit an affidavit, including a statement of all of their assets, showing the 10 inability to pay the statutory filing fee. See 28 U.S.C. § 1915(a). 11 In support of his motion, Plaintiff has submitted an application to proceed in district 12 court without prepaying fees or costs. See Doc. No. 2. The application indicates that 13 Plaintiff is unemployed and does not have any other sources of income. Id. at 1. Moreover, 14 the application indicates that Plaintiff only has $53.47 in cash or in a checking or savings 15 account. Id. at 2. Plaintiff has monthly expenses of $50.00, resulting in a net disposable 16 income of ($50.00) per month. Id. He indicates no other assets of value. Id. Based on 17 these representations, the Court finds that Plaintiff is unable to pay the required statutory 18 fee. Accordingly, the Court GRANTS Plaintiff’s motion for leave to proceed IFP. 19 B. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) 20 1. Standard of Review 21 Pursuant to 28 U.S.C. § 1915(a), a plaintiff who seeks leave to proceed IFP, subjects 22 their Complaint to sua sponte review, and mandatory dismissal, if the action or appeal “is 23 frivolous or malicious; fails to state a claim on which relief may be granted; or seeks 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 28 1 monetary relief against a defendant who is immune from such relief.” See 28 U.S.C. § 2 1915(e)(2)(B); Coleman v. Tollefson, 575 U.S. 532, 537-38 (2015) (pursuant to 28 U.S.C. 3 § 1915(e)(2), “the court shall dismiss the case at any time if the court determines that… 4 (B) the action or appeal… (iii) seeks monetary relief against a defendant who is immune 5 from such relief.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). 6 2. Analysis 7 “It is well established that state judges are entitled to absolute immunity for their 8 judicial acts.” Swift v. California, 384 F.3d 1184, 1188 (9th Cir. 2004) (citing Pierson v. 9 Ray, 386 U.S. 547, 553-55 (1967)). “Like other forms of official immunity, judicial 10 immunity is an immunity from suit, not just from ultimate assessment of damages.” 11 Mireles v. Waco, 502 U.S. 9, 11 (1991). This absolute immunity extends to court 12 commissioners. Franceschi v. Schwartz, 57 F.3d 828, 830-31 (9th Cir. 1995) (holding that 13 a commissioner “performing ‘judge-like functions’ that were not clearly outside the scope 14 of [their] jurisdiction” is judicially immune from civil damages liability). “This immunity 15 applies even when the judge is accused of acting maliciously and corruptly . . . .” Pierson 16 v. Ray, 386 U.S. 547, 554 (1967). Only two sets of circumstances can overcome judicial 17 immunity2: (1) “a judge is not immune from liability for nonjudicial actions,” or (2) “a 18 judge is not immune for actions, though judicial in nature, taken in the complete absence 19 of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991). 20 Plaintiff’s complaint primarily contains conclusory claims that Defendant violated 21 his due process, privacy, and equal protection rights secured by the United States 22 23 24 2 “Although sovereign immunity bars money damages and other retrospective relief 25 against a state or instrumentality of a state, it does not bar claims seeking prospective injunctive relief against state officials to remedy a state's ongoing violation of federal law.” 26 Arizona Students' Ass'n v. Arizona Bd. of Regents, 824 F.3d 858, 865 (9th Cir. 2016). In 27 the Complaint, Plaintiff requests declaratory and injunctive relief, however, the specific requests for relief from this Court appear to be compensation and/or relief for past judicial 28 1 Constitution under the Fifth and Fourteenth Amendments. From what this Court can 2 || discern, Plaintiff alleges during child support proceedings on October 29, 2020, and April 3 2021, over which Defendant presided, (1) Defendant talked rudely and disrespectfully 4 towards Plaintiff during the proceedings, and muted/silenced Plaintiff when he attempted 5 ||to give his defense and object to the evidence being used against him, (Doc. No. | at 4); 6 Plaintiff never authorized the court to obtain his personal financial information, and 7 || Defendant allowed the information obtained without Plaintiff's permission to be used as 8 ||evidence in the child support calculation, (id. at 9-10); and (3) the child support order 9 || approved by Defendant resulted in wage garnishment, causing Plaintiff to go into debt, (/d. 10 5). Plaintiff also alleges that Defendant intentionally violated the law, resulting in a 11 deprivation of his “civil rights and liberties.” (/d. at 5). All of the actions described by 12 || Plaintiff above are normal judicial actions taken in the course of family court proceedings 13 |}over which Defendant had jurisdiction. Because the facts submitted by Plaintiff do not 14 ||demonstrate either of the circumstances that can overcome judicial immunity, the claims 15 |/against Defendant are barred by absolute judicial immunity and any amendment to 16 overcome this immunity would be futile. Therefore, the Complaint is DISMISSED WITH 17 || PREJUDICE. 18 Il. CONCLUSION 19 For all the reasons discussed above, IT IS HEREBY ORDERED: 20 1. Plaintiff's Motion for Leave to Proceed IFP, pursuant to 28 U.S.C. § 1915(a), 21 (Doc. No. 2), is GRANTED; and 22 2. The Complaint is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. 23 § 1915(e)(2)(B)(ii1). 24 IT IS SO ORDERED. 25 || DATED: February 14, 2023 Lb. Mb 17 JC A. HOUSTON

ITED STATES DISTRICT JUDGE

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