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Case3:13-cv-02480-WHO Document10 Filed07/11/13 Page1 of 3













UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ROBERT DANIEL EBERWEIN, et al.,

Plaintiffs,

v.


DAVID S. LIVINGSTON, et al.,

Defendants.

Case No. 13-cv-02480-WHO


ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND AND
REQUIRING COMPLETED
APPLICATION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS





On May 31, 2013, plaintiffs filed a complaint and an application to proceed in forma

pauperis in this Court. On June 18, 2013, Judge Corley denied without prejudice the IFP

application because plaintiffs had not answered the required questions on the Court's IFP

Application Form to demonstrate their inability to pay the filing fee. Docket No. 5. Judge Corley

ordered plaintiffs to file a complete IFP application or pay the filing fee on or before July 2, 2013.

Judge Corley warned plaintiffs that failure to follow her order could result in dismissal of the case.

The case was reassigned to this Court on July 10, 2013. As of the date of this Order,

plaintiffs have not filed a complete IFP application and have not paid the filing fee. For the

reasons stated below: the Court DISMISSES plaintiffs’ complaint without prejudice; requires

plaintiffs to submit an amended complaint curing the problems identified below; and requires

plaintiffs to submit either a completed application to proceed IFP or pay the filing fee in full.

As an initial matter, despite Judge Corley's Order, plaintiffs' application to proceed IFP

remains incomplete and insufficient. The Court ORDERS plaintiffs to submit a complete IFP

application -- answering each question asked -- or pay the filing fee in full by July 31, 2013.

Pursuant to 28 U.S.C. § 1915(e)(2), the Court must review complaints filed in forma

pauperis to determine whether they are frivolous or fail to state a claim upon which relief can be

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granted. See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). If the complaint is frivolous or fails to state a

claim, the statute requires the Court to dismiss the case. 28 U.S.C. § 1915(e)(2). For the reasons

stated below, the Court also finds that plaintiffs' complaint must be dismissed with leave to amend.

Plaintiffs' complaint is styled as an "employment discrimination" case and plaintiffs

checked a box indicating that the acts complained of concern termination of employment.

However, "the basic facts surrounding" the claim of discrimination as handwritten by plaintiffs

are:


Alan Jaroslovsky screamed at my tenant, Robert Maynard Miller,
myself, Robert Daniel Eberwein and banned and closed our cases.

The facts alleged have nothing to do with terminating employment.

Instead, plaintiffs complain about actions taken by defendant Alan Jaroslovsky, a United

States Bankruptcy Judge in the Northern District of California, in plaintiffs' "cases." Judge

Jaroslovsky is entitled to judicial immunity and cannot be sued over judicial acts taken in

bankruptcy cases. See Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1389 (9th Cir.

1987) (concluding "the bankruptcy judges had absolute judicial immunity" for judicial acts); see

also Curry v. Castillo (in Re Castillo), 297 F.3d 940 (9th Cir. 2002) (recognizing that bankruptcy

judicial officers are entitled to quasi-judicial immunity for "functions essential to the authoritative

adjudication of private rights to the bankruptcy estate." ). Accordingly, the allegations against

Judge Jaroslovsky in plaintiffs' complaint appear to be barred by judicial immunity.

Further, plaintiffs' complaint fails to state a claim against the other eight defendants as it

does not allege any violation of federal or state law and fails to state a factual basis for claims

against any of them.1 There are no facts in the complaint explaining what each of the other eight

defendants did that gave rise to this lawsuit.

Finally, on June 7, 2013, plaintiffs filed a notice of related cases, which attaches multiple

documents from other court cases that appear to involve the parties. These cases are in various

In addition to Judge Jaroslovsky, plaintiffs sue Contra Costa Sherriff David O. Livingston,


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Javier Sanchez, Edward Jellen, Elaine Hammond, Sean H. Lane, August B. Landis, "Martinez
Police" and "Walnut Creek Police." The Court notes that Elaine Hammond is and Edward Jellen
was a United States Bankruptcy Judge in the Northern District of California.

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Case3:13-cv-02480-WHO Document10 Filed07/11/13 Page3 of 3



courts: the United States Bankruptcy Court for the Eastern District of California, the United

States Bankruptcy Court for the Northern District of California, and the Superior Courts of

Alameda, Contra Costa and San Francisco Counties. It is unclear how any of these documents

relate to the instant case.

If plaintiffs wish to proceed in federal court, they must file an amended complaint that

claims a violation of a federal law or otherwise shows that jurisdiction in this Court is proper.

Plaintiffs must also describe with specific facts the actions that each defendant took that caused

them harm.



Plaintiffs must file an amended complaint on or before July 31, 2013.

If plaintiffs fail to file an amended complaint by July 31, 2013, or if plaintiffs fail to file a

complete IFP application or pay the filing fee in full by July 31, 2013, this case will be dismissed.

IT IS SO ORDERED.

Dated: July 11, 2013



______________________________________
WILLIAM H. ORRICK
United States District Judge



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