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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BARRY CULBERT, No. CIV.S-04-2434 GEB DAD PS

Plaintiff,

v. FINDINGS AND RECOMMENDATIONS

GARET ONLEY,

Defendant.

__________________________/

This matter is before the court on defendant’s motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). 

Plaintiff, proceeding pro se, did not appear at the hearing on the

motion, although he has filed written opposition to the motion. 

William A. Krabbenhoft appeared on behalf of defendant Garrett Olney,

who was erroneously sued as “Garret Onley.” Having considered all

written materials submitted in connection with the motion, and after

hearing oral argument, the undersigned will recommend that

defendant’s motion be granted and that plaintiff’s amended complaint

be dismissed with leave to amend.

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LEGAL STANDARDS

A motion to dismiss pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure tests the sufficiency of the

complaint. See North Star Int’l v. Arizona Corp. Comm’n, 720 F.2d

578, 581 (9th Cir. 1983). Dismissal of the complaint or of any claim

within it “can be based on the lack of a cognizable legal theory or

the absence of sufficient facts alleged under a cognizable legal

theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

Cir. 1990); see also Robertson v. Dean Witter Reynolds, Inc., 749

F.2d 530, 534 (9th Cir. 1984).

In considering a motion to dismiss for failure to state a

claim, the court accepts as true all material allegations in the

complaint and construes those allegations, as well as the reasonable

inferences that can be drawn from them, in the light most favorable

to the plaintiff. See Hishon v. King & Spalding, 467 U.S. 69, 73

(1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). 

In a case where the plaintiff is pro se, the court has an obligation

to construe the pleadings liberally. Bretz v. Kelman, 773 F.2d 1026,

1027 n.1 (9th Cir. 1985)(en banc). However, the court’s liberal

interpretation of a pro se complaint may not supply essential

elements of a claim that are not pled. Pena v. Gardner, 976 F.2d

469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska,

673 F.2d 266, 268 (9th Cir. 1982).

ANALYSIS

Plaintiff initiated this 42 U.S.C. § 1983 action against

defendant for an alleged violation of his Fourth Amendment rights. 

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1 While the amended complaint does not provide further details

regarding the events leading to this action, state court documents

attached to defendant’s request for judicial notice indicate that

plaintiff was arrested on December 18, 2002, on a bench warrant that

defendant issued in 1998 after plaintiff failed to appear at

proceedings related to plaintiff’s alleged driving on a suspended

license and failure to provide proof of financial responsibility. As

indicated at the hearing on defendant’s motion, the request for

judicial notice will be granted. Pursuant to Federal Rule of

Evidence 201, the court may take judicial notice of its own files and

state court records. See Burbank-Glendale-Pasadena Airport Auth. v.

City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998); United States

v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); Hott v. City of San

Jose, 92 F. Supp. 2d 996, 998 (N.D. Cal. 2000).

3

Defendant is a Plumas County Superior Court Judge. Plaintiff’s

amended complaint alleges that on December 18, 2002, plaintiff was

arrested and taken to jail pursuant to an arrest warrant issued by

defendant. The amended complaint alleges that at the time the

warrant was issued “no complaint existed against plaintiff, no action

was pending, and the warrant was unrelated to any judicial

proceeding.” (Am. Compl. at 2.) It also alleges that “[t]he warrant

was issued solely to vindicate some personal objective of defendant,

to harass plaintiff, and to cause plaintiff to purposely be falsely

arrested and imprisoned for non-judicial reasons.” (Id.) According

to the amended complaint, plaintiff was released at or near the time

of initially appearing in court before defendant following

plaintiff’s arrest. Finally, the amended complaint prays for damages

and expungement of plaintiff’s arrest record.1

Defendant’s motion to dismiss is well-taken only in part. 

In particular, the amended complaint clearly alleges that defendant

is being sued in his “personal capacity” (i.e., individual capacity). 

Therefore, defendant’s argument that he is not a “person” subject to

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suit under § 1983 must be rejected. Hafer v. Melo, 502 U.S. 21, 31

(1991) ("We hold that state officials, sued in their individual

capacities, are ‘persons’ within the meaning of § 1983. The Eleventh

Amendment does not bar such suits, nor are state officers absolutely

immune from personal liability under § 1983 solely by virtue of the

‘official’ nature of their acts.”).

Because defendant is being sued in his individual capacity,

his Eleventh Amendment argument also fails. See id. Further, even

if defendant were sued in his official capacity, the court would be

forced to reject his Eleventh Amendment argument. A state official

seeking to invoke an Eleventh Amendment bar must demonstrate that the

action is in essence one for recovery of money from the state in that

the state would be liable for any judgment rendered. Regents of the

Univ. of California v. Doe, 519 U.S. 425, 429-30 (1997); Hyland v.

Wonder, 117 F.3d 405, 413-14 (9th Cir. 1997). Defendant has not

shown that any money judgment against him would be paid from the

state treasury.

Defendant’s statute of limitations argument also is

unpersuasive. It is agreed that defendant’s cause of action accrued

on or about December 18, 2002, and that California’s personal injury

statute of limitations applicable to this § 1983 action changed from

one year to two years effective January 1, 2003. See Cal. Civ. Proc.

Code § 335.1. The historical and statutory notes to § 335.1

indicate that the two-year limitations period is to be applied

retroactively only to victims of the events of September 11, 2001,

and relying on those notes, at least one district court has held that

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the statute of limitations in effect at the time an action accrues,

as opposed to the one in effect at the time it is filed, governs for

purposes of a timeliness determination. See Abreu v. Ramirez, 284 F.

Supp. 2d 1250, 1255-56 (C.D. Cal. 2003).

Nonetheless, applying the two-year limitations period to

plaintiff’s claim is appropriate and does not amount to a retroactive

application of § 335.1. Under California law, retroactive

application of a limitations statute occurs only when such an

application would revive a claim that had already been barred by the

lapse of time. See Mudd v. McColgan, 30 Cal.2d 463, 468 (1947);

Sanchez v. Workers' Comp. Appeals Bd., 217 Cal. App. 3d 346, 358, 266

Cal. Rptr. 21, 28 (1990); Gallo v. Superior Court, 200 Cal. App. 3d

1375, 1378, 246 Cal. Rptr. 587, 588 (1988). Thus, the extension of

the statutory period within which an action must be brought “is

generally held to be valid if made before the cause of action is

barred." Douglas Aircraft Co., Inc. v. Cranston, 58 Cal. 2d 462,

465, 24 Cal. Rptr. 851, 854 (1962). See also Maldonado v. Harris,

370 F.3d 945, 955 (9th Cir. 2004)(“Under California law, an extension

of a statute of limitations will not apply to claims already barred

under the prior statute of limitations unless the Legislature

explicitly provides otherwise.”);(Thompson v. City of Shasta Lake,

314 F. Supp. 2d 1017, 1024 (E.D. Cal. 2004) ("Unless otherwise

expressly excepted, a new statute which enlarges a statutory

limitations period applies to matters that are not already barred by

the original period at the time the new statute goes into effect.").

/////

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Here, plaintiff’s claim accrued in December, 2002. Under

the statute of limitations in effect in 2002, plaintiff's cause of

action would have been time barred as of December, 2003. However, §

335.1 went into effect on January 1, 2003. As plaintiff's claims

were not yet time barred on that date, the statute extended the

applicable limitations period for plaintiff’s claim from one year to

two years. The filing of the complaint in November, 2004 occurred

within two years of December, 2002. Therefore, plaintiff's action is

not time barred. Such a finding is consistent with California law

cited above and consistent with recent unpublished district court

decisions addressing virtually identical circumstances. See Mayfield

v. Trevors Store, Inc., No. C-04-1483 MHP, 2004 WL 2806175, *7 (N.D.

Cal. Dec. 6, 2004)(Slip Copy); Lamke v. Sunstate Equipment Co., LLC,

No. C-03-4956 EMC, 2004 WL 2125869, *6-7 (N.D. Cal. Sept. 22,

2004)(Slip Copy); Kiss v. City of Santa Clara, No. C-04-01964 RMW,

2004 WL 2075444, *2 (N.D. Cal. Sep 15, 2004)(Slip Copy).

On the other hand, the undersigned agrees with defendant

that he is absolutely immune from suit for damages based on

principles of judicial immunity. The Supreme Court has held that

judges acting within the course and scope of their judicial duties

are absolutely immune from liability for damages under § 1983. 

Pierson v. Ray, 386 U.S. 547 (1967). A judge is "subject to

liability only when he has acted in the 'clear absence of all

jurisdiction.'" Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)

(quoting Bradley v. Fisher, 13 Wall. 335, 351 (1872)). “A judge will

not be deprived of immunity because the action he took “was in error,

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2 Moreover, even if defendant’s alleged actions were found not

to be judicial acts, he would likely be entitled to qualified

immunity from a suit for damages. See Morrison v. Lipscomb, 877 F.2d

463, 466-67 (6th Cir. 1989).

7

was done maliciously, or was in excess of his authority.” Stump v.

Sparkman, 435 U.S. at 356. Moreover, a judge's jurisdiction is quite

broad. “[T]he factors determining whether an act by a judge is a

’judicial’ one relates 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.” Partington v. Gedan, 961 F.2d 852, 866

(9th Cir. 1992) (quoting Stump v. Sparkman, 435 U.S. at 362). See

also Mireles v. Waco, 502 U.S. 9, 13 (1991) (in determining whether

judicial immunity applies, court looks to the “particular act’s

relation to a general function normally performed by a judge”); Meek

v. County of Riverside, 183 F.3d 962, 967 (9th Cir. 1999).

According to the amended complaint, defendant Olney

violated plaintiff’s Fourth Amendment rights in the context of

issuing an arrest warrant and conducting proceedings from the bench

following plaintiff’s arrest on that warrant. Taking these

allegations as true, it is clear that the conduct complained of stems

from functions normally performed by a judge and that plaintiff dealt

with defendant in his judicial capacity. Thus, defendant is entitled

to judicial immunity with respect to plaintiff’s claim for damages

brought against him in his individual capacity.2

The determination that defendant is entitled to judicial

immunity with respect to plaintiff’s claim for damages does not end

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the required inquiry. As set forth above, the amended complaint also

prays for “[e]xpungement of [plaintiff’s] arrest record[,]” which the

undersigned has construed as a request for injunctive relief. While

“[j]udges and those performing judge-like functions are absolutely

immune from damage liability for acts performed in their official

capacities[,]” that immunity does not extend “actions for prospective

injunctive relief.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.

1986) (en banc). Indeed, "[i]t is now established that judicial

immunity does not bar declaratory or injunctive relief in actions

under § 1983." Mullis v. United States Bankruptcy Court, 828 F.2d

1385, 1391 (9th Cir. 1987). Therefore, there is an issue as to

whether plaintiff should be permitted to proceed against defendant on

the request for injunctive relief.

As a general matter, it is clear that a district court may

order the expungement of an arrest record under § 1983. See 42

U.S.C. § 1983; United States v. Sumner, 226 F.3d 1005, 1012 (9th Cir.

2000)(“A district court has the power to expunge a criminal record

under the Civil Rights Act[.]”); Maurer v. Individually and as

Members of L.A. County Sheriff's Dept., 691 F.2d 434, 437 (9th Cir.

1982)(“It is well settled that the federal courts have inherent

equitable power to order ‘the expungement of local arrest records as

an appropriate remedy in the wake of police action in violation of

constitutional rights.’”). However, with respect to defendant Olney

in particular, the undersigned has determined that defendant Olney is 

not the appropriate defendant in this regard. Arrest records are

maintained by California law enforcement authorities, not the Judges

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3 While some of the authorities cited herein may be

instructive, the undersigned expresses no opinion as to the identity

of the appropriate defendant, if any, or whether this matter

ultimately must be pursued in state court, as suggested by counsel

for defendant for the first time at the hearing on this motion. The

court has considered whether any claim seeking expungement might be

subject to dismissal under the Rooker-Feldman doctrine. See Rooker

v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462 (1983) However, plaintiff

is not seeking relief from a state court judgment based on an

erroneous state court decision. See Noel v. Hall, 341 F.3d 1148,

1164 (9th Cir. 2003). Nor is plaintiff attempting to enjoin any

ongoing state proceedings such that this action might be subject to

dismissal under Younger v Harris, 401 U.S. 37, 49-53 (1971).

9

of the Superior Court. Compare Central Valley Chapter of the 7th

Step Foundation, Inc. v. Younger, 214 Cal. App. 3d 145, 164 n.8, 262

Cal. Rptr. 496, 507 n.8 (1989)(observing that California Department

of Justice, its Bureau of Criminal Identification and various

officials thereof “are the state authorities with the responsibility

for compiling, maintaining and distributing arrest records”) with

Maurer, 691 F.2d at 437 (affirming dismissal of action against

Director of FBI when arrest in question was by state and local

officers since “FBI has no authority to expunge arrest records

maintained by California law enforcement agencies”). Because the

court is unable to grant plaintiff even the injunctive relief he

seeks, the undersigned will recommend that defendant Olney be

dismissed from this action altogether.

This is not to say, however, that plaintiff is entirely

unable to state a cognizable claim. The authorities cited above

suggest that plaintiff may be able to state a claim seeking the

expungement of his arrest record, albeit against a defendant other

than Judge Olney.3 Therefore, the undersigned will recommend that

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4 Plaintiff is informed that the court cannot refer to a prior

pleading in order to make plaintiff’s second amended complaint

complete. Local Rule 15-220 requires that an amended complaint be

complete in itself without reference to any prior pleading. This is

because, as a general rule, an amended complaint supersedes the

original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

1967). Once plaintiff files a second amended complaint, the earlier

pleadings no longer serve any function in the case. Therefore, in

any second amended complaint, as in an original complaint, each claim

and the involvement of each defendant must be sufficiently alleged. 

Any amended pleading which fails to provide the necessary factual

description will likely be dismissed.

10

plaintiff’s amended complaint be dismissed with leave to file and

serve a second amended complaint in this regard if plaintiff wishes

to pursue this action in this court.4

CONCLUSION

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Defendant’s motion to dismiss be granted;

2. Plaintiff’s amended complaint be dismissed; and

3. Plaintiff be granted twenty (20) days from the date of

any order adopting these findings and recommendations to file and

serve a second amended complaint.

These findings and recommendations are submitted to the

United States District Judge assigned to the case, pursuant to the

provisions of 28 U.S.C. § 636(b)(1). Within ten (10) days after

being served with these findings and recommendations, any party may

file written objections with the court and serve a copy on all

parties. Such a document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” Any reply to the

objections shall be served and filed within five (5) days after

service of the objections. The parties are advised that failure to

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file objections within the specified time may waive the right to

appeal the District Court’s order. See Martinez v. Ylst, 951 F.2d

1153 (9th Cir. 1991).

DATED: July 28, 2005.

DAD:th

DDad1\orders.prose\culbert2434.f&r

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