Opinion
Case No. 06cv0353 R (CAB).
February 17, 2006
ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER JURISDICTION
On February 15, 2006 Plaintiff a Petition Re Plaintiff's Ex Parte Motion for a Temporary Restraining Order and Order to Show Cause for Preliminary Injunction ("Petition"). By means of the Petition, Plaintiff seeks to restrain and enjoin Defendant from executing on a state court judgment by proceeding with a sheriff's sale of one of Plaintiff's properties, currently scheduled for sale on February 22, 2006. Defendant Loshonkohl opposes the motion for injunctive relief. Having carefully considered the record, pertinent authorities, oral arguments of counsel, and for the reasons set forth below, the court dismisses the action for lack of subject matter jurisdiction.
BRIEF FACTS
On September 27, 2001 Defendant police officer Donna Loshonkohl "won a judgment against Plaintiff for defamation in the amount of $350,000 . . . pursuant to California Civil Code § 47.5, which creates a private right of action for police officers against people who knowingly file a false complaint against them." (Petition ¶ 10). Plaintiff alleges that "said judgment was and continues to be in violation of Plaintiff's rights to free speech under the First Amendment of the United States Constitution in that California Civil Code § 47.5 is viewpoint-based speech discrimination in favor of police officers." (Petition ¶ 14).
Plaintiff Kinder unsuccessfully appealed the judgment to the California Court of Appeal. Loshonkohl v. Kinder, 109 Cal.App.4th 510 (2003). The California Supreme Court denied the petition for review on August 20, 2003 and the United States Supreme Court denied the Petition for Writ of Certiorari "in late 2003 or early 2004." (Zeidman Decl. ¶ 5). On appeal, as at the trial court, Plaintiff argued that California Civil Code § 47.5 violated the First Amendment. Plaintiff did not prevail on this argument in any court proceeding.
Plaintiff commenced the present action asserting federal question jurisdiction arising under 42 U.S.C. § 1983. The thrust of Plaintiff's argument, as previously raised in numerous court proceedings, is that California Civil Code § 47.5 is unconstitutional.
DISCUSSION
Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction. "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868)). Accordingly, federal courts are under a continuing duty to confirm their jurisdictional power and are even "obliged to inquire sua sponte whenever a doubt arises as to [its] existence. . . ." Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations omitted).
Here, the court lacks subject matter jurisdiction to adjudicate Plaintiff's claims. To state a claim under 42 U.S.C. § 1983, Plaintiff must allege a violation of his constitutional rights and show that Defendant's actions were taken under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-156 (1978);Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001). "Just because [Defendant Loshonkohl] is a police officer does not mean that everything [s]he does is state action." Gritchen at 812. In Gritchen the plaintiff sought to enjoin the police officer defendant from prosecuting in state court a defamation claim brought pursuant to California Civil Code § 47.5. Plaintiff Gritchen argued, as Plaintiff Kinder does here, that California Civil Code § 47.5 violates the First Amendment.
The Ninth Circuit in Gritchen found that defendant police officer was not a state actor for purposes of § 1983 because, among other things, he did not bring the defamation action as one of his official duties, the police officer's litigation strategy was not subject to the control of the Police Department, and any recovery would be paid to the police officer, not the Police Department. In further support that Defendant Loshonkohl is not a state actor, Plaintiff Kinder himself specifically recognized in his brief filed before the California Court of Appeal that California Civil Code § 47.5 creates "an entirely private cause of action to police officers" under the rationale of Gritchen. (Petition for Rehearing, 2000WL34472192, *8, June 23, 2000; Petition ¶ 10 (California Civil Code § 47.5 creates a private right of action "against people who knowingly file a false complaint against them")).
In sum, Defendant Loshonkohl is not a state actor for purposes of 42 U.S.C. § 1983. Accordingly the court lacks subject matter jurisdiction under 28 U.S.C. § 1331 to entertain Plaintiff's claims. The Clerk of Court is instructed to close the file.
Because the court has determined that it lacks subject matter jurisdiction to entertain Plaintiff's claims, it does not reach the other issues raised by the parties, including the doctrines of collateral estoppel and res judicata. Given the time constraints imposed by Plaintiff's last minute filing, the parties are advised that the court may file a supplemental order more fully addressing the issues raised by the parties.