Simmons v. Koh

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 MELVIN JOSEPH SIMMONS, Case No. 21-cv-05966-EMC

8 Plaintiff,

ORDER OF DISMISSAL

9 v.

10 LUCY H. KOH,

11 Defendant.

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14 I. INTRODUCTION

15 Melvin Joseph Simmons, a prisoner at the California Substance Abuse Facility, filed this

16 pro se civil rights action under 42 U.S.C. § 1983 to complain about a separate action considered

17 by United States District Judge Lucy H. Koh (“Judge Koh”). See Docket No. 1 (“Complaint”).1

18 Mr. Simmons’s Complaint is now before the Court for review under 28 U.S.C. § 1915A.

19 II. BACKGROUND

20 On December 21, 2020, Mr. Simmons filed a lawsuit against California Correctional

21 Health Care Services. See Docket No. 1, Simmons v. Cal. Corr. Health Care Servs., 5:20-cv-9282

22 (N.D. Cal. Dec. 21, 2020) (“CCHCS Action”). That action was assigned to Judge Koh.

23 Also on December 21, 2020, the Clerk of the Court sent Mr. Simmons a notice that he had

24 neither paid the filing fee for nor moved to proceed in forma pauperis in the CCHCS Action. See

25 Docket No. 3, CCHCS Action (“Clerk’s Notice”). The Clerk’s Notice informed Mr. Simmons that by

26 January 18, 2021, he needed either to pay the filing or to move to proceed in forma pauperis, and that

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1 if he failed to do so his “action will be DISMISSED.” Id. (emphasis in original).

2 On February 2, 2021, this District received a check from Mr. Simmons. See Docket No.

3 11, CCHCS Action. The check was received and processed by a cashier in the Office of the Clerk

4 of the Court in San Francisco. See id, CCHCS Action (showing that the check was received by

5 “division 3” of this District). The receipt of the check was not reflected on the docket for the

6 CCHCS Action at that time. See generally, Docket, CCHCS Action.

7 As of February 22, 2021, more than one month past the deadline given to Mr. Simmons in

8 the Clerk’s Notice, the docket for the CCHCS Action did not reflect any response from Mr.

9 Simmons. See generally, Docket, CCHCS Action. Judge Koh therefore dismissed the CCHCS

10 Action without prejudice. See Docket No. 4, CCHCS Action.

11 On March 12, 2021, Mr. Simmons objected that he had, in fact, paid the filing fee for the

12 CCHCS Action, and attached an account statement which showed a “voluntary withdrawal” to a

13 “U.S. dist[rict] court.” See Docket No. 6 at 3, CCHCS Action. The account statement neither

14 identified the court to which payment had been sent, nor identified the case number of the action

15 for which payment had been made. See id.

16 On April 21, 2021, the Clerk of the Court found Mr. Simmons’s check, and posted a

17 “correct[ion]” to the docket for the CCHCS Action stating that Mr. Simmons’s payment for the

18 CCHCS Action had been received. See Docket No. 11. This payment was applied to the filing fee

19 due for the CCHCS Action. See id. After the Clerk of the Court confirmed that Mr. Simmons

20 had, in fact, responded to the Clerk’s Notice, Judge Koh reopened the CCHCS Action and

21 screened Mr. Simmons’s complaint pursuant to 28 U.S.C. § 1915A. See Docket No. 12, CCHCS

22 Action (screening complaint); see also 28 U.S.C. § 1915A(a) (requiring a district court to screen

23 any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or

24 officer or employee of a governmental entity”). Judge Koh dismissed Mr. Simmons’s complaint

25 with leave to amend, and provided extensive instructions to Mr. Simmons on how to state a

26 cognizable claim. See Docket No. 12, CCHCS Action.

27 On August 2, 2021, Mr. Simmons filed the instant action alleging that Judge Koh had

1 administrative dismissal of the CCHCS Action for non-payment was an act of bias. See Compl. at 2,

2 4. As relief, Mr. Simmons demanded that Judge Koh recuse herself from any action involving Mr.

3 Simmons; that Judge Koh pay damages to Mr. Simmons; that the CCHCS Action not be dismissed for

4 any reason in the future; and that Mr. Simmons be released from prison. See id. at 7.

5 The instant action was automatically assigned to Judge Koh pursuant to a General Order of

6 this District. See N.D. Cal. Gen. Order 44(6) (“[T]he Clerk [of the Court] shall assign any non-

7 habeas civil complaint filed by a prisoner within five (5) years after the filing of the first civil

8 complaint by that party to the same judge to whom the first such complaint was assigned.”). Judge

9 Koh recused herself from the instant action. See Docket No. 6. This action was then reassigned to

10 the undersigned. See Docket No. 7.

11 III. DISCUSSION

12 Having considered the Complaint and information subject to judicial notice, the Court

13 concludes the Complaint fails to state a claim for relief. As noted above, Mr. Simmons alleges

14 that Judge Koh attempted to embezzle his check for the CCHCS Action, and that Judge Koh

15 dismissed the CCHCS Action out of bias. See Compl. at 2, 4. The docket of the CCHCS Action,

16 of which this Court may properly take judicial notice,2 reveals that Mr. Simmons’s allegations of

17 embezzlement is false. In addition, Mr. Simmons’s bias claim fails as a matter of law. These

18 defects are incurable and require the dismissal of the instant action without leave to amend.

19 A. Legal Standard

20 A federal court must engage in a preliminary screening of any case in which a prisoner

21 seeks redress from a governmental entity or officer or employee of a governmental entity. See 28

22 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any

23 claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or

24 seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b).

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2 Courts “may take notice of proceedings in other courts, both within and without the federal

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judicial system, if those proceedings have a direct relation to matters at issue.” United States v.

Black, 482 F.3d 1035, 1041 (9th Cir. 2007). Court orders and other court documents are proper

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subjects of judicial notice, see id., as are records of court proceedings, see Dawson v. Mahoney,

1 Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901

2 F.2d 696, 699 (9th Cir. 1990). In screening a pro se complaint, a district court may consider

3 information which properly is subject to judicial notice. Cato v. United States, 70 F.3d 1103, 1105

4 (9th Cir. 1995) (affirming a district court’s dismissal of a complaint as duplicative at screening,

5 where district court considered previous actions filed by the plaintiff); Williams v. Paramo, 830 F.

6 App’x 981, 982 (9th Cir. 2020) (same, and noting that “the district court permissibly took judicial

7 notice of multiple actions” filed by the plaintiff) (citing Cato, 70 F.3d at 1105). A “court need not

8 . . . accept as true allegations that contradict matters properly subject to judicial notice or by

9 exhibit.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on

10 other grounds on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001).3

11 B. Embezzlement Claim

12 As to the embezzlement allegation, the docket of the CCHCS Action shows that Mr.

13 Simmons’s payment was applied to the filing fee for that action. See Docket No. 11, CCHCS

14 Action. Because Mr. Simmons’s payment was applied to the CCHCS Action, it was not

15 embezzled by Judge Koh.

16 Moreover, although the docket does not reveal the status of the check between its receipt

17 by this District on February 2, 2021 and its application to the CCHCS Action on April 21, 2021, it

18 is apparent that the check was received and processed by a cashier in the Office of the Clerk of the

19 Court in San Francisco. See Docket No. 11, CCHCS Action (showing that the check was received

20 by “division 3” of this District). See also United States Dist. Ct. for N.D. Cal., Office of the Clerk

21 of the Court, https://cand.uscourts.gov/about/clerks-office/ (last visited Sept. 16, 2021) (“The clerk

22 of the federal district court . . . serves as the chief executive officer of the court, managing all of its

23 non-judicial functions, such as . . . financial management and accounting . . . .”).4 Judge Koh sits

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3 See also Spencer v. Kokol, 744 F. App’x 515 (9th Cir. 2018) (finding that district court properly

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dismissed prisoner’s complaint at screening) (citing Sprewell, 266 F.3d at 988); Raiser v. City of

Los Angeles, 698 F. App’x 412, 413 (9th Cir. 2017) (same); Morales v. Cribbs, 633 F. App’x 434

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(9th Cir. 2016) (same); King v. Capps, 384 F. App’x 601, 602 (9th Cir. 2010) (same).

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4 The Court may “take judicial notice of this information, as it was made publicly available by

1 in San Jose and is not a cashier. See United States Dist. Ct. for N.D. Cal., District Judge Lucy H.

2 Koh, https://cand.uscourts.gov/judges/koh-lucy-h-lhk/ (last visited Sept. 16, 2021). Judge Koh

3 therefore did not take receipt of Mr. Simmons’s check. While the delay in applying Mr.

4 Simmons’s check to the filing fee for the CCHCS Action is regrettable, that administrative delay

5 cannot be attributed to embezzlement by Judge Koh.

6 Because Mr. Simmons’s check was applied to the filing fee for the CCHCS Action, and

7 was not handled by Judge Koh in any case, Mr. Simmons’s embezzlement claim fails.

8 C. Bias Claim

9 As to the bias allegation, Mr. Simmons’s claim fails because the sole defendant is entitled

10 to absolute immunity. Moreover, the record from the CCHCS Action reveals no bias.

11 Judge Koh is a federal judge and her actions with respect to the CCHCS Action were done

12 in her judicial capacity. A federal judge is absolutely immune from civil liability for acts

13 performed in his or her judicial capacity; this immunity is not limited to immunity from damages,

14 but also extends to actions for declaratory, injunctive, and other equitable relief. See Moore v.

15 Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996); Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1394 (9th

16 Cir. 1987) (applying judicial immunity to actions under Bivens ); see also Pierson v. Ray, 386 U.S.

17 547, 553-54 (1967) (“Few doctrines were more solidly established at common law than the

18 immunity of judges from liability for damages for acts committed within their judicial jurisdiction,

19 as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed.

20 646 (1872).”); see also In re Castillo, 297 F.3d 940, 951 (9th Cir. 2002) (concluding that “the

21 judicial function of managing” a docket “is unquestionably discretionary in nature,” and entitled to

22 immunity). Accordingly, Mr. Simmons’s bias claim must be dismissed because is it barred by the

23 doctrine of absolute judicial immunity. See Harshman v. Beistline, No. 18-CV-05430-EMC, 2019

24 WL 295261, at *2 (N.D. Cal. Jan. 23, 2019) (dismissing complaint barred by judicial immunity),

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05098-JSC, 2018 WL 5794526, at *4 (N.D. Cal. Nov. 2, 2018) (taking judicial notice of statistical

and administrative information published on the website of the United States Courts); Paralyzed

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Veterans of Am. v. McPherson, No. C064670SBA, 2008 WL 4183981, at *5 (N.D. Cal. Sept. 9,

1 appeal dismissed, No. 19-16693, 2019 WL 6445436 (9th Cir. Oct. 30, 2019).

2 In any event, the record from the CCHCS Action reveals no bias on the part of Judge Koh.5

3 The Clerk’s Notice informed Mr. Simmons that by January 18, 2021, he must pay the filing fee

4 for, or move to proceed in forma pauperis in, the CCHCS Action or his case “will be dismissed.”

5 Docket No. 3, CCHCS Action. When January 18, 2021 arrived, the docket for the CCHCS Action

6 did not reflect any payment or in forma pauperis motion from Mr. Simmons. See generally,

7 Docket, CCHCS Action. Judge Koh waited an additional month before dismissing the CCHCS

8 Action, meaning she gave Mr. Simmons extra time in which to comply with the Clerk’s Notice.

9 See Docket No. 4, CCHCS Action (case dismissed on February 22, 2021). In addition, Judge Koh

10 dismissed Mr. Simmons’s action without prejudice, meaning Mr. Simmons could re-file his claim

11 in a new action. See id. These circumstances do not suggest bias, but rather routine case

12 management decisions which happened to be adverse to Mr. Simmons. It is well-settled that

13 “adverse rulings, standing alone, are not proof of misconduct.” In re Compl. of Jud. Misconduct,

14 715 F.3d 747, 749 (9th Cir. 2013); see also Liteky v. United States, 510 U.S. 540, 555 (1994)

15 (“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion”).

16 Because Judge Koh is judicially immune from Mr. Simmons’s bias claim and in any event

17 did not exhibit bias, Mr. Simmons’s bias claim fails.

18 D. Amendment Would Be Futile

19 “[A] district court may dismiss without leave [to amend] where . . . amendment would be

20 futile.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011); see

21 also Bobadilla v. Lizarraga, 834 F. App’x 376, 377 (9th Cir. 2021) (affirming dismissal of

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5 To the extent Mr. Simmons intends to argue that Judge Koh exhibited bias by not reopening his

action upon receipt of his objection, as noted above Mr. Simmons’s account statement gave no

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indication that his check had been sent to this District, much less had been designated for the

CCHCS Action. See Docket No. 6 at 3, CCHCS Action. According to the system that provides

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access to federal court dockets, Mr. Simmons has filed well over one hundred cases in federal

courts across the country, at least forty of which are civil rights suits against government entities.

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See “Simmons, Melvin,” PACER Case Locator, https://pcl.uscourts.gov/ (last visited July 30,

2021). Judge Koh thus had no way of knowing whether the account statement’s reference to a

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payment made to some district court for some action reflected a payment to this District for the

1 prisoner’s complaint at screening without leave to amend because amendment would have been

2 futile). Here, because any attempt to amend his complaint would be futile, Mr. Simmons will not

3 be granted leave to amend.

4 Amendment of Mr. Simmons’s embezzlement claim would be futile because Mr. Simmons

5 cannot truthfully show on amendment that Judge Koh took receipt of his check, because judicially

6 noticeable information proves that she did not. See Fed. R. Civ. P. 11 (requiring truthful

7 allegations). Where “[i]t would not be possible” for a plaintiff to state a claim on amendment

8 “without contradicting any of the allegations of his original complaint,” courts regularly find that

9 amendment would be futile. See Reddy v. Litton Indus., Inc., 912 F.2d 291, 296-97 (9th Cir. 1990)

10 (holding that district court did not abuse discretion by denying leave to amend, where complaint

11 could not truthfully be amended to state a claim); see also Robinson v. WMC Mortg. Corp., 649 F.

12 App’x 636, 637 (9th Cir. 2016) (same); Heisen v. Pac. Coast Bldg. Prod., Inc., 26 F.3d 130 (9th

13 Cir. 1994) (unpublished) (same).

14 Amendment of Mr. Simmons’s bias claim would be futile because Mr. Simmons cannot

15 overcome Judge Koh’s absolute judicial immunity. Where a defendant is entitled to absolute

16 judicial immunity, the Ninth Circuit has held that a district court may deny leave to amend on

17 futility grounds. See Martinez v. Newport Beach City, 125 F.3d 777, 785 (9th Cir. 1997) (district

18 court did not abuse its discretion in denying leave to file third amended complaint), overruled on

19 other grounds by Green v. City of Tucson, 255 F.3d 1086 (9th Cir. 2001); see also Schlosser v.

20 Renne, 116 F.3d 1486 (9th Cir. 1997) (unpublished) (affirming district court’s of dismissal of

21 initial complaint against defendant entitled to absolute prosecutorial immunity); Zamora v.

22 Gonzalez, 15 F.3d 1095 (9th Cir. 1994) (unpublished) (affirming dismissal at screening of

23 complaint against defendants obviously entitled to qualified immunity).6

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6 See also Hubbard v. Johnson, No. 19-CV-04136-JST, 2019 WL 5579507, at *5 (N.D. Cal. Oct.

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29, 2019) (dismissing at screening a claim barred by judicial immunity, and denying leave to

amend because amendment would be futile), appeal dismissed as frivolous, No. 19-17309, 2020

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WL 2462576 (9th Cir. Apr. 8, 2020); Barnes v. Santa Clara Cty. Dist. Attorney’s Off., No. 20-CV-

02113-YGR (PR), 2020 WL 3971615, at *2 (N.D. Cal. July 14, 2020) (dismissing complaint at

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screening, and concluding amendment would be futile because defendants were entitled to

1 For these reasons, Mr. Simmons’s claims of embezzlement and judicial bias are incurably

2 defective. Mr. Simmons’s action is accordingly dismissed without leave to amend.

3 IV. CONCLUSION

4 This action is dismissed for failure to state a claim upon which relief may be granted.

5 Because amendment would be futile, dismissal is without leave to amend. The Clerk shall close

6 the file.

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8 IT IS SO ORDERED.

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10 Dated: September 17, 2021

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12 ______________________________________

EDWARD M. CHEN

13 United States District Judge

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