1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Sean Matthew Finnegan, Case No.: 21-cv-816-GPC-KSC

12 Plaintiff, ORDER: 13 v. (1) DENYING MOTION TO 14 Jeffery Frazier, PROCEED IN FORMA PAUPERIS 15 Defendant. [Dkt. No. 2]; AND

16 (2) SUA SPONTE DISMISSING 17 PLAINTIFF’S COMPLAINT FOR FAILING TO STATE A CLAIM AND 18 FOR SEEKING DAMAGES 19 AGAINST AN IMMUNE DEFENDANT PURSUANT TO 28

(e)(2)(B) 21 22 I. INTRODUCTION 23 On April 26, 2021, Plaintiff Sean Matthew Finnegan (“Plaintiff”), proceeding pro 24 se, filed a complaint against Defendant Jeffery Frazier (“Defendant”) pursuant to 18

. (Dkt. No. 1.) Plaintiff alleges that false statements were made when the 26 Defendant, a judge in Fulton County, Georgia, dismissed Plaintiff’s case for failure to 27 appear. (Dkt. No. 2.) Plaintiff concurrently filed a motion to proceed in forma pauperis 28 (“IFP”). (Id.) Based on the reasoning below, the Court DENIES Plaintiff’s motion to 1 proceed IFP and sua sponte DISMISSES Plaintiff’s complaint for failure to state a claim 2 on which relief may be granted and for seeking damages against a defendant who is 3 immune from suit. 4 II. FACTUAL BACKGROUND 5 The Court recounts the following information from Plaintiff’s complaint. (Dkt. No. 6 1.) Plaintiff appears to have had a case or cases before Defendant. (Id. at 4.) Plaintiff was 7 hospitalized in New York City and against medical advice left the hospital so that he 8 could fly to Atlanta, Georgia to attend four court hearings before Defendant. (Id.) 9 Defendant was the assigned judge for all four hearings. Plaintiff claims Defendant 10 dismissed his case for “failure to appear,” even though the Plaintiff was allegedly present 11 in the courthouse. (Id.) Plaintiff seeks three types of relief: 1) $5,000,000 in damages 12 payable to a foundation of the Plaintiff’s choice, 2) that Defendant be disbarred, removed 13 from the bench, and placed on an emergency psychiatric hold until cleared by a medical 14 professional, and 3) that Defendant advance payment for all costs, fees, and any other 15 damages to the Plaintiff and his corporations. (Id.) 16 III. DISCUSSION 17 A. The Court Denies Plaintiff’s Motion for Leave to Proceed IFP Under 28

(a)(1). 19 All parties filing any civil action, suit, or proceeding in federal district court must 20 pay a $402 filing fee. See

(a)1. However, a federal district court may 21 waive the filing fee if it is it appropriate to grant leave to proceed IFP.

22 (a)(1). In order to proceed IFP, a plaintiff is required to submit an affidavit that details a 23 statement of all assets and exhibits the plaintiff’s inability to pay the necessary filing fee. 24

(a)(1); see also S.D. Local Civ. R. 3.2. Approval to proceed IFP is 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 27 See

(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to 28 1 proper where the affidavit is “sufficient” in that it “alleges [the plaintiff] cannot pay the 2 court costs and still afford the necessities of life.” Escobedo v. Applebees,

(9th Cir. 2015). While the Plaintiff must show his financial situation prevents 4 payment, he is not obliged to demonstrate complete financial insolvency. Adkins v. E.I. 5 DuPont de Nemours & Co.,

, 339–40 (1948). In evaluating whether a 6 Plaintiff may proceed IFP, courts consider whether the Plaintiff has detailed his financial 7 circumstances “with some particularity, definiteness, and certainty.” Escobedo,

at 1234 (quoting United States v. McQuade,

(9th Cir. 1981)); see 28

(a)(1) (to proceed IFP, a plaintiff must submit an affidavit that contains a 10 complete statement of his assets and reflects his inability to pay the fee). The court 11 possesses discretion to deny a plaintiff’s motion to proceed IFP if the plaintiff is “unable, 12 or unwilling, to verify [his] poverty.” McQuade,

. 13 Here, Plaintiff has filed a signed affidavit in support of his IFP application. (Dkt. 14 No. 2.) He marks most fields of the affidavit with a $0.00 value. (Id.) The Court notes 15 that some of the fields Plaintiff has left blank—such as employment, property owned, and 16 dependents—may be inapplicable. (Id.) However, Plaintiff has also not listed “[a]ny 17 housing, transportation, utilities, or loan payments, or other regular monthly expenses.” 18 (Id. at 2.) Because Plaintiff is not incarcerated, it is unlikely that he has no regular 19 monthly expenses whatsoever. Plaintiff has also reported that he possesses medical debt, 20 but the amount is not listed. (Id.) Additionally, Plaintiff has indicated that he receives 21 benefits through the CalFresh program, however, the amount of money he receives and 22 expects to receive in the future based off that source was not provided. (Id.) Taking the 23 aforementioned into consideration, the Plaintiff has not represented his financial 24 circumstances “with some particularity, definiteness, and certainty” to allow the Court to 25 resolve the motion. Escobedo,

(quoting McQuade,

). 26 Accordingly, the Court DENIES Plaintiff’s motion to proceed IFP without prejudice. 27 \ \ \ 28 \ \ \ 1 B. Sua Sponte Review Under

(e)(2) 2 A complaint filed by any person proceeding IFP pursuant to § 1915(a) is subject to 3 mandatory sua sponte review and dismissal by the Court if it is “frivolous, or malicious; 4 fails to state a claim upon which relief may be granted; or seeks monetary relief against a 5 defendant immune from such relief.”

(e)(2)(B); Calhoun v. Stahl, 254

(9th Cir. 2001) (“[T]he provisions of

(e)(2)(B) are not 7 limited to prisoners.”); Lopez v. Smith,

, 1126–27 (9th Cir. 2000). Section 8 1915(e)(2) provides that a court reviewing a complaint filed pursuant to the IFP 9 provisions of

make and rule on its own motion to dismiss before 10 directing that the complaint be served by the U.S. Marshal pursuant to Federal Rule of 11 Civil Procedures 4(c)(2). See Lopez,

. 12 “The standard for determining whether a plaintiff has failed to state a claim upon 13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

(9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient 16 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 17 Ashcroft v. Iqbal,

(2009) (internal quotation marks omitted). A claim 18 is facially plausible when the factual allegations permit “the court to draw the reasonable 19 inference that the defendant is liable for the misconduct alleged.”

20 As noted, Section 1915(e)(2)(B)(iii) requires dismissal of a case that “seeks 21 monetary relief against a defendant who is immune from such relief.”

1915(e)(2)(B)(iii). “Anglo-American common law has long recognized judicial 23 immunity, a ‘sweeping form of immunity’ for acts performed by judges that relate to the 24 ‘judicial process.’” In re Castillo,

, 947 (9th Cir. 2002) (quoting Forrester 25 v. White,

(1988)). “A judge is absolutely immune from liability for his 26 judicial acts even if his exercise of authority is flawed by the commission of grave 27 procedural errors.” Stump v. Sparkman,

(1978). “This absolute 28 immunity insulates judges from charges of erroneous acts or irregular action, even when 1 it is alleged that such action was driven by malicious or corrupt motives[.]” Castillo, 297 2 F.3d at 947. Even if a judge acts in excess of judicial authority, he or she is not deprived 3 of immunity. Moore v. Brewster,

(9th Cir. 1996), superseded by 4 statute on other grounds. The immunity promotes the use of the appellate procedure to 5 correct judicial error and discourages collateral attacks on final judgments. Castillo, 297

. 7 Here, the complaint asserts claims for false statements under

1001, but Plaintiff, as a private citizen, has no authority to bring claims under criminal 9 statutes. See Allen v. Gold Country Casino,

(9th Cir. 2006) (no 10 private right of action for violation of criminal statutes). Further, Plaintiff’s complaint 11 challenges the unfavorable ruling of a state court judge that presided over Plaintiff’s case. 12 Because Defendant was engaged in acts of judicial decision making, he is absolutely 13 immune from liability. Therefore, Plaintiff’s complaint must be dismissed. 14 “[A] pro se litigant must be given leave to amend his or her complaint, and some 15 notice of its deficiencies, unless it is absolutely clear that the deficiencies of the 16 complaint could not be cured by amendment.” Cato v. United States,

, 1106 17 (9th Cir. 1995); see also Lopez,

. Because absolute immunity bars 18 claims against judges for actions related to the judicial process, the deficiencies in the 19 complaint cannot be cured by amendment. 20 Accordingly, the Court DISMISSES Plaintiff’s complaint with prejudice for failing 21 to state a claim pursuant to

(e)(2)(B)(ii) and for seeking damages 22 against a defendant who is immune pursuant to

(e)(2)(B)(iii). 23 \ \ \ 24 \ \ \ 25 \ \ \ 26 \ \ \ 27 \ \ \ 28 \ \ \ 1 IV. CONCLUSION 2 For these reasons, this Court DENIES Plaintiff's motion to proceed IFP pursuant 3

(a) with leave to amend and DISMISSES the action under 28 U.S.C. 4 ||§ 1915(e)(2) without leave to amend. 5 IT IS SO ORDERED. 6 ||Dated: June 23, 2021 Casto 0h 7 Hon. Gonzalo P. Curiel 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28