Opinion
Case No. 2:16-cv-00132-DB-EJF
03-14-2017
DR. MILOS JIRICKO, Plaintiff, v. FRANKENBURG JENSEN LAW FIRM; CAROLYN STEVENS JENSEN, lawyer; JENIFER M. BRENNAN, lawyer, KEITH KELLY, State Judge in his official and personal capacity, HEATHER BRERETON, Judge in her official and personal capacity; Defendants.
REPORT AND RECOMMENDATION TO DISMISS THE AMENDED COMPLAINT AGAINST THE JUDICIAL DEFENDANTS FOR FAILURE TO STATE A CLAIM
(ECF NO. 17) Judge Dee Benson Magistrate Judge Evelyn J. Furse
Defendants Judges Keith Kelly and Heather Brereton ("the Judicial Defendants") move the Court to dismiss Plaintiff Milos Jiricko's ("Dr. Jiricko") Amended Complaint. (Judicial Defs.' Mot. to Dismiss & Mem. in Supp. ("Mot."), ECF No. 17.) The Judicial Defendants argue judicial immunity, Younger abstention, and the Rooker-Feldman doctrine bar Dr. Jiricko's claims against them. After considering the parties' briefing, the undersigned finds judicial immunity shields the Judicial Defendants from Dr. Jiricko's claims, the Younger abstention doctrine prevents this Court from adjudicating Dr. Jiricko's case, and the Judicial Defendants are not the proper party to defend the constitutionality of the Utah Health Care Malpractice Act. Accordingly, the undersigned RECOMMENDS the District Court dismiss the Amended Complaint against the Judicial Defendants for failure to state a claim.
On April 8, 2016, District Judge Dee Benson referred this case to the undersigned Magistrate Judge under 28 U.S.C. § 636(b)(1)(B). (ECF No. 15.)
The undersigned finds oral argument unnecessary and issues this Report and Recommendation based on the written memoranda. See DUCivR 7-1(f).
BACKGROUND
This case arises out of an adverse ruling against Dr. Jiricko in state court. On October 17, 2013, Dr. Jiricko filed an action in the Utah Third District Court against Dr. Bradley, a Utah licensed ophthalmologist, for personal injuries including severe permanent loss of central vision in his right eye as a result of a surgical procedure. (Pl.'s 1st Am. & Suppl. Civil Rights Compl. ("Am. Compl.") ¶ 13, ECF No. 2.) In the state court case, Dr. Jiricko alleged breach of fiduciary duties, misrepresentation, fraud in the inducement, fraud in omission, and unlawful touching. (Compl. 4-8, Jiricko v. Hoopes Vision Ctr., No. 13907101 (Utah 3d Dist. Ct. filed Oct. 17, 2013), ECF No. 17-2.) Judge Kelly held that Dr. Jiricko's claims "all relate to whether Dr. Jiricko gave informed consent. As such, the Utah Health Care Malpractice Act, § 78B-3-401, et. seq., applies in this case, and outlines what a patient must do in order to recover damages . . . ." (Order Re: Hr'g of 6/10/14, June 26, 2014, at 2, Jiricko v. Hoopes Vision Ctr., No. 130907101, ECF No. 17-3.) Accordingly, Judge Kelly required Dr. Jiricko to meet the requirements of the Utah Health Care Malpractice Act ("the Act") § 78B-3-406. (Id.) On September 20, 2015, Dr. Jiricko's case was reassigned to Judge Brereton. (Jiricko v. Hoopes Vision Ctr., No. 130907101, attached as Appendix 1.) Judge Brereton granted the defendants' motion for summary judgment because Dr. Jiricko failed to designate a qualified expert witness as required by the Act. (Order Granting Defs.' Mot. for Summ. J. & Order of Dismissal with Prejudice in Favor of Defs., Dec. 18, 2015, at 2, Jiricko v. Hoopes Vision Ctr., No. 13907101, ECF No. 17-5.) The Utah Court of Appeals summarily affirmed the district court judgment. (Order of Summ. Affirmance, Jiricko v. Hoopes Vision Ctr., No. 20160027-CA (Utah Ct. App. Mar. 4, 2016), ECF No. 17-7.)
Dr. Jiricko alleges he filed the state court action on September 17, 2013; however, the state court complaint indicates Dr. Jiricko filed it on October 17, 2013. (Compl., Jiricko v. Hoopes Vision Ctr., No. 13907101 (Utah 3d Dist. Ct. filed Oct. 17, 2013), ECF No. 17-2.) --------
On February 19, 2016, Dr. Jiricko, proceeding pro se, filed a complaint against the Judicial Defendants and the Frankenburg Jensen Law Firm, attorney Carolyn Stevens Jensen, and attorney Jenifer Brennan ("the Frankenburg Defendants"). (ECF No. 1.) On March 7, 2016, Dr. Jiricko filed his Amended Complaint. (ECF No. 2.) Dr. Jiricko alleges 42 U.S.C. § 1983 violations of his First, Fifth, Seventh, and Fourteenth Amendment rights, abuse of process, conspiracy, intentional infliction of emotional distress, and fraud upon the court against the Judicial Defendants and Frankenburg Defendants. (See Am. Compl. ¶¶ 29-61, ECF No. 2.) Dr. Jiricko also alleges the unconstitutionality of the Utah Health Care Malpractice Act, both on its face and as applied to him. (Id. 7, ECF No. 2.) On April 12, 2016, the Judicial Defendants filed this Motion to Dismiss arguing judicial immunity, the lack of an existing controversy, the Rooker-Feldman doctrine, Younger abstention, and the Federal Courts Improvement Act bar Dr. Jiricko's claims against them. (Mot., ECF No. 17.)
DISCUSSION
I. Legal Standard
To survive a motion to dismiss, a complaint must allege "enough facts to state a claim to relief that is plausible on its face." Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In reviewing a motion to dismiss, courts "accept all facts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the same." Wasatch Equal. v. Alta Ski Lifts Co., 820 F.3d 381, 386 (10th Cir. 2016) (citing Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012)). Although a court "construe[s] a pro se plaintiff's complaint broadly, the plaintiff still has 'the burden of alleging sufficient facts on which a recognized legal claim could be based.'" Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir. 2008) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
II. Judicial Immunity Bars Dr. Jiricko's Demand for Money Damages
"The Supreme Court of the United States has long held that judges are generally immune from suits for money damages." Stein v. Disciplinary Bd., 520 F.3d 1183, 1195 (10th Cir. 2008) (citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991)). "[J]udicial immunity is not overcome by allegations of bad faith or malice . . . ." Mireles, 502 U.S. at 11. Further, allegations of conspiracy do not overcome judicial immunity; accordingly, Dr. Jiricko's conspiracy allegations fail. Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir. 1994). Judicial immunity "is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." Mireles, 502 U.S. at 11-12.
A. Judges Kelly and Brereton Took Judicial Actions.
Dr. Jiricko alleges Judge Kelly's June 10, 2014 ruling was unlawful and therefore nonjudicial. (Plf.'s Mem. in Supp. of his Opp'n to Judicial Defs. Mot. to Dismiss under R 12 B (1) (6) ("Pl. Opp.") 7-10, ECF No. 35.) Dr. Jiricko alleges
In the furtherance of conspiracy, the Frankenburg's lawyer Jensen colluded with the judge Kelly premeditated to issue a ruling to unlawfully convert Dr. Jiricko's common law case action No: 130907101 which alleged misrepresentation, fraud,
breach of fiduciary duties fraud in inducement, fraud in omission; concealment, unlawful touching and battery into a statutory action under the Utah 78B-3-401.(Id. at 7, ECF No. 35.) " Herein the defendants knew full well that any application of Utah statute §78B-3-401 to Dr. Jiricko's state case, be it on its face or by its application or both violates due process." (Id. at 9, ECF No. 35.) "Judge Kelly is required under the Utah and US Constitution's uphold the oath of his office. Judge Kelly's act decided no dispute hence adjudicated nothing; it was unconstitutional act done in the furtherance of the defendants' conspiracy." (Id. at 9, ECF No. 35.) "Violation of the Judge Kelly own oath of office is unlawful act under Utah specific laws and therefore, misdemeanor is not a judicial act under any metrics ." (Pl. Opp. 10, ECF No. 35.)
Dr. Jiricko's argument that Judge Kelly's June 10, 2014 ruling does not qualify as "a judicial act under any metrics" lacks merit. Dr. Jiricko cannot overcome judicial immunity by simply characterizing Judge Kelly's Order as a nonjudicial act. "[T]he factors determining whether an act by a judge is a 'judicial' one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Stump v. Sparkman, 435 U.S. 349, 362 (1978).
Here, Judge Kelly's actions meet each factor. First, Judge Kelly presided over and ruled after a hearing, a function routinely performed by a judge. State district court judges have original jurisdiction over all civil matters not prohibited by the law or excepted in the Utah Constitution. Utah Code Ann. § 78A-5-102(1); Utah Const. art. VIII § 5. On June 10, 2014, Judge Kelly performed a judicial function when he presided over a hearing "regarding [Dr. Jiricko's] Motions pursuant to request to submit for decision and Court-issued Notice." (Order Re: Hr'g of 6/10/14, June 26, 2014, at 1, Jiricko v. Hoopes Vision Ctr., No. 130907101, ECF No. 17-3.) Neither the law nor the Utah Constitution prohibited Judge Kelly from holding the hearing or ruling on the matter before him. Second, Dr. Jiricko came to the hearing as a plaintiff before Judge Kelly in Judge Kelly's capacity as a Third District Court judge. Thus, Dr. Jiricko should expect Judge Kelly to make rulings in his case. Third, Dr. Jiricko never alleges Judge Kelly had any dealings with him in anything other than his judicial capacity. Therefore, Judge Kelly's acts, as alleged, constitute judicial actions.
Dr. Jiricko also alleges Judge Brereton acted nonjudicially in issuing her ruling. Dr. Jiricko argues "Judge Brereton's 11/17/15 action is solely based upon the Jude [sic] Kelly's 6/9/14 void Order. it therefore itself must be regarded as invalid, void and nullity by the application of law." (Pl. Opp. 11, ECF No. 35.)
Like Judge Kelly, Judge Brereton took judicial action. First, Judge Brereton presided over a motion hearing, heard argument from Dr. Jiricko and defense counsel, and issued a ruling from the bench. In other words, Judge Brereton performed a function routinely performed by a district judge. Second, even though Dr. Jiricko disagrees with the outcome of Judge Brereton's ruling, surely Dr. Jiricko expected Judge Brereton to issue a ruling after the motion to dismiss hearing. And finally, Dr. Jiricko appeared as a plaintiff before Judge Brereton in her capacity as a Third District Court Judge. Accordingly, Judge Brereton's actions constitute judicial acts. Whether Judge Brereton's ruling is a nullity does not deprive Judge Brereton of judicial immunity for the act.
B. Judges Kelly and Brereton Acted With Jurisdiction.
Next, Dr. Jiricko attempts to meet the second exception to judicial immunity by arguing Judge Kelly "usurped subject matter jurisdiction" when he ruled that the Utah Healthcare Malpractice Act applies to Dr. Jiricko's case. To overcome judicial immunity, Dr. Jiricko must allege facts showing Judge Kelly acted in "the complete absence of all jurisdiction." Mireles, 502 U.S. at 11. However, "[a] judge does not act in the clear absence of all jurisdiction even if 'the action he took was in error, was done maliciously, or was in excess of his authority.'" Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000) (quoting Stump, 435 U.S. at 356-57). Moreover, "[a] judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors." Id. (quoting Stump, 435 U.S. at 359). "[T]he necessary inquiry in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jurisdiction over the subject matter before him." Stump, 435 U.S. at 356.
Utah state district courts have general jurisdiction. See Utah Const. art. VIII §§ 1, 5. Utah state district courts maintain power to consider "all matters except as limited by" statute or constitution. Utah Const. art. VIII § 5. Judge Kelly acted in his capacity as a Third District Court Judge in a court of general jurisdiction. Even if Judge Kelly acted in error, nothing indicates that Judge Kelly acted without jurisdiction. Further, neither the Utah Constitution nor a statute prohibited Judge Kelly from ruling on the matter before him. Accordingly, Judge Kelly did not act "in the clear absence of all jurisdiction." Therefore, judicial immunity shields Judge Kelly from Dr. Jiricko's claims.
Dr. Jiricko also alleges Judge Brereton acted in the absence of jurisdiction. "Judge Brereton had no personal or subject matter jurisdiction over the matter the Judge Brereton conducted on 11/17/15 and the ruling upon void matter adjudicates nothing - it is not a judicial act. The Judge Brereton's act dated 11/17/15 was without jurisdiction." (Pl. Opp. 11, ECF No. 35.) However, Judge Brereton did not act in the "absence of jurisdiction." On the contrary, like Judge Kelly, Judge Brereton acted in her capacity as a judge in a court of general jurisdiction with subject matter jurisdiction over Dr. Jiricko's case. Even if Judge Brereton committed an error by relying on Judge Kelly's previous ruling, judicial immunity nonetheless protects her from Dr. Jiricko's claims.
Therefore, the undersigned RECOMMENDS the District Judge dismiss Dr. Jiricko's claims for monetary damage against the Judicial Defendants as barred by judicial immunity. III. Younger Abstention Bars Dr. Jiricko's Demands for Declaratory and Injunctive Relief.
In his Amended Complaint, Dr. Jiricko requests
appropriate declaratory relief regarding the unlawful and unconstitutional acts and practices of the Defendants, including the enjoining and permanent restraining of these constitutional violations, including the direction to Defendants to take such affirmative action as is necessary to ensure that the effects of the unconstitutional and unlawful activities and practices are eliminated and that the Utah §78B-3-401 be declared unconstitutional, void & unenforceable.(Am. Compl. 15 ¶ A, ECF No. 2.) The Judicial Defendants contend that "[a]ny request for declaratory relief is barred by the Rooker-Feldman doctrine or by Younger abstention." (Mot. 8, ECF No. 17.) The Younger abstention doctrine prevents this Court from adjudicating Dr. Jiricko's request for declaratory and injunctive relief.
A. Younger Abstention Doctrine
Under the Younger abstention doctrine, federal courts must refrain from exercising jurisdiction when: (1) state proceedings remain ongoing; (2) state court offers an adequate forum to hear the federal complaint claims; and (3) the state proceeding involves important state interests. Weitzel v. Div. of Occupational & Prof'l Licensing, 240 F.3d 871, 875 (10th Cir. 2001) (citing Amanatullah v. Colo. Bd. of Med. Examiners, 187 F.3d 1160, 1163 (10th Cir. 1999)). "Younger abstention is non-discretionary; it must be invoked once the three conditions are met, absent extraordinary circumstances." Amanatullah, 187 F.3d at 1163. Here, Dr. Jiricko does not allege any "extraordinary circumstance," and his claims meet each condition.
First, on February 19, 2016, when Dr. Jiricko filed his Complaint, (ECF No. 1), state court proceedings remained ongoing. Dr. Jiricko filed his Complaint during the pendency of his appeal to the Utah Court of Appeals and before his time to appeal state court proceedings expired (Order of Summ. Affirmance, Jiricko v. Hoopes Vision Ctr., No. 20160027-CA (Utah Ct. App. Mar. 4, 2016), ECF No. 17-7). State court proceedings end when the time for appeal expires. Bear v. Patton, 451 F.3d 639, 642 (10th Cir. 2006).
The Tenth Circuit has yet to determine whether a case meets the first Younger prong when, as here, the state proceeding terminates after the filing of federal suit but before the federal district court closes the case. Columbian Fin. Corp. v. Stork, 811 F.3d 390, 395 (10th Cir. 2016) ("The termination of the state proceeding might render the Younger issue moot. But we need not decide this issue."). The Tenth Circuit did note that a number of circuits have held that
a state proceeding is considered ongoing if it was pending when the federal suit was filed. See Tony Alamo Christian Ministries v. Selig, 664 F.3d 1245, 1250 (8th Cir. 2012) ("[T]he relevant time for determining if there are ongoing state proceedings is when the federal complaint is filed."); Bettencourt v. Bd. of Registration in Med., 904 F.2d 772, 777 (1st Cir. 1990) (same); Beltran v. California, 871 F.2d 777, 782 (9th Cir. 1988) (holding that Younger abstention was required even where "the state court proceedings were completed by the time the district court granted summary judgment").Id. n.3 (alterations in original); but see Rocky Mountain Gun Owners v. Williams, No. 15-1336, — F. App'x —, 2016 WL 6574000, at *3 (10th Cir. Nov. 7, 2016) (holding "[t]he district court made a clearly erroneous factual finding that the parallel state court proceedings were still ongoing at the time it granted the Secretary's motion to dismiss on Younger abstention grounds.").
At its core, the Younger analysis considers whether a federal court should exercise jurisdiction. "It has long been the case that 'the jurisdiction of the court depends upon the state of things at the time of the action brought.'" Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570 (2004) (quoting Mollan v. Torrance, 9 Wheat. 537, 539 (1824). Accordingly, the undersigned determines whether state court proceedings are ongoing as of the date Dr. Jiricko filed his Complaint. Under that analysis, state court proceedings were ongoing as of the relevant date for evaluation.
Second, the Utah state judiciary provides an adequate forum for Dr. Jiricko to assert his constitutional challenge. See Weitzel, 240 F.3d at 876 ("It is beyond dispute that the Utah state judiciary provides an adequate forum for [plaintiff] to assert his constitutional claims."). Dr. Jiricko does not provide any facts to indicate the state court would not provide an adequate forum to hear his claims. And third, the constitutionality of the Act involves an important state interest. "Indeed, the Younger doctrine is particularly applicable in a case such as this where the pending state proceeding may rectify any constitutional violations." Weitzel, 240 F.3d at 876. Accordingly, the undersigned RECOMMENDS the District Judge dismiss Dr. Jiricko's request for declaratory and injunctive relief because the Younger abstention doctrine prevents this Court from adjudicating Dr. Jiricko's requests.
B. Rooker-Feldman Doctrine
The Rooker-Feldman doctrine prevents a party who loses in state court from asking a lower federal court to "effectively exercis[e] appellate jurisdiction over claims actually decided by a state court and claims inextricably intertwined with a prior state-court judgment." PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1193 (10th Cir. 2010) (quoting Mo's Express, LLC v. Sopkin, 441 F.3d 1229, 1233 (10th Cir. 2006)). "Rooker-Feldman applies only to suits filed after state proceedings are final." Guttman v. Khalsa, 446 F.3d 1027, 1032 (10th Cir. 2006) (citing Federacion de Maestros v. Junta de Relaciones del Trabajo, 410 F.3d 17, 24-25(1st Cir. 2005)). Dr. Jiricko filed his Complaint on February 19, 2016. (ECF No. 1.) The Utah Court of Appeals issued its decision on March 4, 2016. (Order of Summ. Affirmance, Jiricko v. Hoopes Vision Ctr., No. 20160027-CA (Utah Ct. App. Mar. 4, 2016), ECF No. 17-7.) The state court proceedings terminated shortly thereafter when the time period for applying for certiorari to the Utah Supreme Court ran. See Bear, 451 F.3d at 642 (holding state court judgment final where state court issues judgment and time to appeal expires). The Rooker-Feldman doctrine does not apply in this case because Dr. Jiricko filed his Complaint before the state court proceedings ended. However, the undersigned notes that even if Dr. Jiricko refiled his Complaint now that the state court proceedings have ended, the federal court would likely dismiss them under the Rooker-Feldman doctrine because as currently stated, Dr. Jiricko seeks appellate review of a state court proceeding.
The undersigned further notes the absurdity that could result from determining Younger abstention at a point after filing. Assume a state court loser, one day prior to his time for appeal running in state court, files a case for review of that state court judgment in federal court. Presuming that a court need not abstain under Younger once the state court proceeding terminates, the plaintiff could continue his case to resolution. Assume as well, that had the state case terminated prior to filing in federal court, the Rooker-Feldman doctrine would have required its dismissal. The plaintiff that filed the federal case prior to termination of his state case could have his case heard in federal court, despite the Rooker-Feldman doctrine because of good timing, but not for any substantive reason. Such a result would allow state-court losers bringing federal court proceedings to review the state court judgments simply because of a mismatch between the time of assessment of Younger abstention and the Rooker-Feldman doctrine.
IV. No Case or Controversy Exists Between Dr. Jiricko and the Judicial Defendants.
In addition to the above doctrines, the Judicial Defendants contend this Court should dismiss Dr. Jiricko's claim seeking to declare the Utah Health Care Malpractice Act unconstitutional because no case or controversy exists between Dr. Jiricko and the Judicial Defendants. "[T]he Court does not have jurisdiction over this claim because no case or controversy exists—judges are not proper parties to defend the constitutionality of state statutes." (Mot. 4, ECF No. 17.) The undersigned finds the Judicial Defendants do not constitute proper parties to this declaratory judgment action, causing Dr. Jiricko's claim to fail.
While the Tenth Circuit has not yet addressed the matter, numerous circuits have held that state court judges do not constitute proper party defendants to defend the constitutionality of a state statute because no case or controversy exists between the litigant challenging the constitutionality of a statute and the judge who adjudicated a claim under the statute. In the seminal case on the matter, the First Circuit granted a writ of mandamus ordering the lower court to dismiss plaintiff's § 1983 lawsuit challenging the constitutionality of a statute against Supreme Court of Puerto Rico justices. In re Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 21-23 (1st Cir. 1982). The First Circuit noted that "ordinarily, no 'case or controversy' exists between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute." Id. at 21. The court reasoned that judges do not constitute proper party defendants to defend the constitutionality of a statute because
Judges sit as arbiters without a personal or institutional stake on either side of the constitutional controversy. They are sworn to uphold the Constitution of the United States. They will consider and decide a claim that a state or Commonwealth statute violates the federal Constitution without any interest beyond the merits of the case. Almost invariably, they have played no role in the statute's enactment, they have not initiated its enforcement, and they do not even have an institutional interest in following their prior decisions (if any) concerning
its constitutionality if an authoritative contrary legal determination has subsequently been made (for example, by the United States Supreme Court).Id. Other courts of appeals addressing this issue have followed the First Circuit's reasoning. See Brandon E. ex rel. Listenbee v. Reynolds, 201 F.3d 194, 199-200 (3d Cir. 2000) (holding where judge acts in adjudicatory rather than enforcement or administrative role, plaintiff cannot state a claim against the judge); Mendez v. Heller, 530 F.2d 457, 460 (2d Cir. 1976) ("Thus, as between appellant and Justice Heller, this case does not present the 'honest and actual antagonistic assertion of rights,' 'indispensible to adjudication of constitutional questions." (quotations omitted)); R.W.T. v. Dalton, 712 F.2d 1225, 1232-33 (8th Cir. 1983) (holding an adverse ruling by a judge does not make the judge an adversary for purposes of filing suit), abrogated on other grounds by Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827 (1990); Grant v. Johnson, 15 F.3d 146, 148 (9th Cir. 1994) ("holding that judges adjudicating cases pursuant to state statutes may not be sued under § 1983 in a suit challenging the state law").
While the First Circuit declined to address Article III standing, the Fifth Circuit held that a plaintiff challenging the constitutionality of a state statute lacked Article III standing because no case or controversy existed between the plaintiff and the judge. Bauer v. Texas, 341 F.3d 352, 359 (5th Cir. 2003). In Bauer, a woman contested the constitutionality of a Texas guardianship law she was involuntarily subjected to and named the judge as the defendant. The Fifth Circuit stated that "[t]he case or controversy requirement of Article III of the Constitution requires a plaintiff to show that he and the defendants have adverse legal interests." Id. at 359. The Court affirmed the district court's dismissal because "[t]he requirement of a justiciable controversy is not satisfied where a judge acts in his adjudicatory capacity." Id.
The undersigned agrees with the reasoning of the majority of the circuits that plaintiffs fail to state a claim for a declaratory action against a judge regarding the constitutionality of a statute because the judge is not adverse to party seeking the declaration of unconstitutionality. The judge has no personal interest in whether the statute is constitutional or not. Here, Dr. Jiricko does exactly that—seeks a declaratory judgment against the Judicial Defendants that the Act they applied is unconstitutional. Accordingly, the undersigned RECOMMENDS the District Judge dismiss Dr. Jiricko's Declaratory Judgment claim against the Judicial Defendants for failure to state a claim.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS the District Judge dismiss all claims against the Judicial Defendants for failure to state a claim. The Court will send copies of this Report and Recommendation to the parties and hereby notifies them of their right to object to the same. The Court further notifies the parties that they must file any objection to this Report and Recommendation with the clerk of the court, pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), within fourteen (14) days of service thereof. Failure to file objections may constitute waiver of objections upon subsequent review.
DATED this 14th day of March, 2017.
BY THE COURT:
/s/_________
EVELYN J. FURSE
United States Magistrate Judge
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