Kimble v. Birchak

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25-cv-3507-AGS-SBC
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Jolee KIMBLE,
Plaintiff,
v.
Frank BIRCHANK,
Defendant.
Case No.: 25-cv-3507-AGS-SBC
ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
(ECF 2) AND DISMISSING
COMPLAINT
Plaintiff Jolee Kimble, proceeding without an attorney, seeks to waive the filing fee
for her lawsuit against Superior Court Judge Frank Birchank. (ECF 1, at 2.) Her request to
proceed without prepayment is granted, but her case does not survive mandatory screening
and is dismissed with leave to amend.
DISCUSSION
A. 	Motion to Proceed In Forma Pauperis
Parties instituting a civil action in a federal district court must typically pay filing
fees of $405. 28 U.S.C. § 1914(a) ($350 filing fee); District Court Misc. Fee Schedule,
§ 14 (effective Dec. 1, 2023) ($55 administrative fee). But if granted the right to proceed
in forma pauperis (“IFP”), a plaintiff can proceed without prepaying those fees. Rodriguez
v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Plaintiff claims to be “homeless,” and
although she is very recently employed at “Applebees,” she has virtually no assets to her
name and “$1,900” a month in expenses. (See ECF 2, at 2, 4, 5.) Her request is granted,
after all a plaintiff “need not be completely destitute to proceed IFP.” Blount v. Saul, No.
21-cv-0679-BLM, 2021 WL 1561453, at *1 (S.D. Cal. Apr. 21, 2021).
B. 	Screening
In addition, when reviewing an IFP motion, the court must screen the complaint and
dismiss it if—among other things—it “fails to state a claim” or “seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). This
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requirement is an obstacle here, as the only named defendant—a Superior Court judge—
appears to be immune from suit.
“[A] judicial officer, in exercising the authority vested in him, shall be free to act
upon his own convictions, without apprehension of personal consequences to himself.”
Bradley v. Fisher, 80 U.S. 335, 347 (1871). Accordingly, judges may not be sued in civil
actions for their judicial acts, “however erroneous the act may have been, and however
injurious in its consequences it may have proved to the plaintiff.” Id. Litigants who believe
judicial proceedings have wrongfully harmed them may pursue relief through the appellate
process; they are not entitled to sue judges for alleged mistakes in their decision making.
Judicial immunity seems to apply to all plaintiff’s claims against Judge Birchank, which
center on Judge Birchank allegedly “putting 2 filings in the U.S. Mail” after plaintiff
appeared before him “on December 10, 2025.” (ECF 1, at 2.)
There are only two instances in which a judge will be deprived of this immunity.
“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 v. Waco, 502 U.S. 9,
11–12 (1991) (internal citations omitted). Nothing in the complaint suggests either
exception applies: the actions were taken by Judge Birchank while allegedly functioning
in his judicial role, and there is no reason to suspect he lacked jurisdiction over plaintiff’s
underlying case.
So, the complaint must be dismissed. But the Court will give plaintiff an opportunity
to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (holding amendment
is typically appropriate “unless it is absolutely clear that the deficiencies of the complaint
could not be cured by amendment”).
CONCLUSION
Thus, the Court orders as follows:
1. 	Plaintiff’s motion to proceed in forma pauperis is GRANTED.
2. 	By January 16, 2026, plaintiff may file a new amended complaint addressing
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the deficiencies discussed in this order. The amended complaint must be complete by itself
without reference to any previous version of his pleading; defendants not named and any
claims not re-alleged in the amended complaint will be considered waived. If plaintiff fails
to timely amend, the Court will enter a final Order dismissing this case.
Dated: December 15, 2025
___________________________
Hon. Andrew G. Schopler
United States District Judge
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