1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER-BOYD BARKUS, Case No.: 3:22-cv-470-RSH-NLS

12 ORDER: 13 Plaintiff, GRANTING MOTION TO DISMISS 14 v. DIRECTING PLAINTIFF TO 15 EFFECTUATE SERVICE OF POLLY H. SHAMOON, et al., PROCESS 16

17 [ECF No. 3] Defendants. 18

19 Plaintiff’s Complaint, filed on April 7, 2022, asserts one cause of action under 42

based on an alleged violation of his constitutional rights to due process and 21 equal protection. ECF No. 1. Plaintiff is proceeding pro se. The alleged violations arise 22 from criminal proceedings against him in California Superior Court, County of San Diego, 23 Case No. SCD287135. ECF No. 1 at 4. Plaintiff seeks damages, an injunction that 24 Defendants “leave him alone, to avoid further injury,” and a declaratory judgment finding 25 that Defendants violated his constitutional rights.

. 26 Two of the named defendants, California Superior Court Judges Polly Shamoon and 27 Joseph Brannigan, moved to dismiss the claim against them with prejudice, on the basis of 28 1 (1) the Younger abstention doctrine, (2) judicial immunity, (3) Eleventh Amendment 2 immunity, and (4) the Complaint’s failure to otherwise state a claim (the “Motion”). ECF 3 No. 3 at 2. Plaintiff did not oppose the Motion.1 4 I. Analysis 5 The Court grants the Motion for two reasons. 6 First, “[a] long line of [Supreme Court] precedents acknowledges that, generally, a 7 judge is immune from a suit for money damages.” Mireles v. Waco,

(1991) 8 (per curiam). This immunity is overcome in only two sets of circumstances.

. “First, 9 a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the 10 judge’s judicial capacity. Second, a judge is not immune for actions, though judicial in 11 nature, taken in the complete absence of all jurisdiction.”

(citations omitted). 12 “[W]hether an act by a judge is a ‘judicial’ one relate[s] to the nature of the act itself, i.e., 13 whether it is a function normally performed by a judge, and to the expectations of the 14 parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 15

(1978). A “complete absence of all jurisdiction” means a clear lack of 16 subject matter jurisdiction. Miller v. Davis,

(9th Cir. 2008). 17 Additionally, Section 1983 “contemplates judicial immunity from suit for injunctive 18 relief for acts taken in a judicial capacity.” Wolfe v. Strankman,

(9th Cir. 19 2004). “The statute provides that ‘injunctive relief shall not be granted’ in an action brought 20 against ‘a judicial officer for an act or omission taken in such officer’s judicial 21 capacity . . . unless a declaratory decree was violated or declaratory relief was 22 unavailable.’”

(quoting

).2 See Ezor v. Lacey, No. 21-55383,

24 25 1 Under this Court’s Local Rules, failure to timely respond to a motion “may constitute 26 a consent to the granting of a motion.” CivLR 7.1(f)(3)(c). 27 2 For purposes of this provision in Section 1983, declaratory relief is deemed available to a plaintiff who could pursue an appeal in state court. See Weldon v. Kapetan, No. 17-cv- 28 1 1184165, at *1 (9th Cir. Apr. 21, 2022) (holding that “section 1983 ‘contemplates judicial 2 immunity for injunctive relief for acts taken in a judicial capacity’” (quoting Wolfe, 392 3 F.3d at 366)); Simmons v. Sacramento Cnty. Super. Ct.,

(9th Cir. 4 2003) (“Plaintiff cannot state a claim under § 1983 against the judge who entered the 5 default, because the judge is absolutely immune for judicial acts.”); Ison v. Superior Ct., 6 No. 2:21-cv-01546,

, at *7 (E.D. Cal. Sept. 27, 2022) (“[J]udicial 7 immunity applies regardless of whether Plaintiffs seek monetary damages, injunctive, or 8 declaratory relief.”). 9 Here, the Complaint seeks to hold Judges Shamoon and Brannigan liable for actions 10 they allegedly took, or failed to take, in presiding over Plaintiff’s criminal case. Plaintiff 11 seems to allege that he appeared before Judge Brannigan on November 1, 2021, and 12 claimed that a previous plea had been asserted on his behalf without his knowledge, but 13 that Judge Brannigan took no meaningful action in response. ECF No. 1 at 4. Plaintiff also 14 alleges that he appeared before Judge Shamoon on March 15, 2022, and that she questioned 15 Plaintiff’s competence, requested that he sign a document, threatened to have him arrested 16 and involuntarily medicated if he did not sign the document, refused to answer Plaintiff’s 17 questions, and set another hearing.

. However, all of the alleged actions of Judges 18 Brannigan and Shamoon that Plaintiff challenges are judicial in nature, and there is no 19 indication that the Superior Court lacked subject matter jurisdiction. 20 Second, federal courts will abstain from granting injunctive or declaratory relief 21 where granting such relief would interfere with pending state judicial proceedings. Younger 22 v. Harris,

(1971). The Younger doctrine “reflects a strong policy against 23 federal intervention in state judicial processes in the absence of great and immediate injury 24 to the federal plaintiff.” Moore v. Sims,

(1979). In the absence of 25 “extraordinary circumstances,” abstention in favor of state judicial proceedings is required 26 27 state judge failed because declaratory relief was available where plaintiff had opportunity 28 1 the state proceedings (1) are ongoing, (2) implicate important state interests, and (3) 2 || provide the plaintiff an adequate opportunity to litigate federal claims. See Middlesex Cnty. 3 || Ethics Comm. v. Garden State Bar Ass’n,

(1982). “Where Younger 4 || abstention is appropriate . . . [it] requires dismissal of the federal action.” Beltran v. State 5 || of Cal.,

(9th Cir. 1988). Here, all three prongs of the Younger abstention 6 doctrine are met because Plaintiff's claims all involve decisions made in state criminal 7 || proceedings and those proceedings are: (1) ongoing, as described in the Complaint; (2) 8 ||involve important state interests, namely, the prosecution of violations of California law; 9 (3) provide Plaintiff the opportunity to litigate federal claims, by pursuing his 10 constitutional arguments in the California courts. Middlesex,

. 11 Plaintiff has not asked for leave to amend. Given the grounds for dismissal, 12 ||amendment would be futile and leave to amend is denied. See Gordon v. City of Oakland, 13 ||

(9th Cir. 2010). 14 II. Conclusions & Orders 15 Accordingly, the Motion is GRANTED. The Complaint as to Defendants Shamoon 16 Brannigan is DISMISSED with prejudice. 17 Additionally, Plaintiff filed his Complaint on April 7, 2022, but has not filed proof 18 service as to any of the Defendants in this case. Defendants Shamoon and Brannigan 19 ||appeared voluntarily without being served, but the other Defendants have not. As to the 20 || other Defendants, Plaintiff has therefore failed to serve the Complaint within 90 days of 21 || filing, as required by Federal Rule of Civil Procedure 4(m). Nonetheless, the Court grants 22 || Plaintiff thirty (30) days from the date of this Order to serve the remaining Defendants. 23 || The Court will dismiss the case as to any Defendant that Plaintiff has not properly served 24 |/in this time. 25 SO ORDERED. 26 || Dated: November 3, 2022 feohw z & Howe 7 Hon. Robert S. Huie United States District Judge 28