JAMES DALE HUFFMAN, Esquire, Plaintiff-Appellant, v. AMY LINDGREN; SAMUEL ERSKINE; CITY OF ST. HELENS, Defendants-Appellees.
No. 22-35471
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
September 1, 2023
D.C. No. 3:21-cv-00343-AC
FOR PUBLICATION
OPINION
Submitted August 25, 2023*
San Francisco, California
Filed September 1, 2023
Before: Michael Daly Hawkins, Sidney R. Thomas, and M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
SUMMARY**
Pro Se Litigant Attorneys
The panel affirmed the district court‘s dismissal with prejudice of a complaint and held, in accordance with other circuits, that pro se litigants who are also attorneys should not be afforded special consideration or be treated as proceeding without counsel under the Circuit Rules.
James Huffman, a practicing attorney, sued a municipal court judge, a prosecutor, and the City of St. Helens, Oregon, in state court. After defendants removed the case to federal court, Huffman moved to remand to state court, claiming that, although his complaint referenced federal law, it was poorly drafted, and he did not intend to bring federal claims. The district court severed and remanded the state-only claims, and dismissed the retained claims with prejudice. On appeal, Huffman filed an informal pro se brief and argued that he should have been granted leave to amend his complaint to exclude any mention of a federal claim and to seek a remand to state court.
The panel held that, although there is a good reason for awarding leeway to pro se parties who presumably are unskilled in the law and more prone to make pleading errors, that logic does not apply to practicing attorneys.
Noting that Huffman neither moved to amend in the district court nor voluntarily moved to dismiss his case, the panel determined that his attempt to backtrack seemed aimed at robbing the government of its removal option and ensuring another bite at the apple in state court. The panel held that a sophisticated attorney like Huffman should not be allowed to jettison his own complaint when it is beneficial yet avoid the consequences of that renunciation.
Addressing the merits, the panel held that because Hoffman facially alleged a violation of his federal rights, the district court had federal question jurisdiction. In view of the immunity of the government defendants, the complaint could not be saved by amendment and therefore the district court‘s dismissal without leave to amend was proper.
COUNSEL
James D. Huffman, Scappoose, Oregon, pro se Plaintiff-Appellant.
Aaron P. Hisel and Elizabeth A. Jones, Law Offices of Montoya Hisel and Associates, Salem, Oregon, for Defendants-Appellees.
OPINION
McKEOWN, Circuit Judge:
This appeal asks us to consider whether pro se litigants who are also attorneys
BACKGROUND
The strangeness of the facts in this case is matched only by the oddity of the jurisdictional posture. Huffman, an attorney who has argued before our court on three occasions and appeared on multiple other occasions,1 was representing a client in City of St. Helen‘s Municipal Court when he concluded that the judge hearing his case would not give him a fair shake. He informed Judge Lindgren that he was orally disqualifying her. Huffman alleges that Judge Lindgren violated his state and federal constitutional rights by ignoring his oral dictum and holding him in contempt. Huffman also ropes in the prosecutor opposing him in that case, Sam Erskine, and the City of St. Helens, alleging Erskine made a “malicious statement” against him in the hearing and the City is responsible for the acts of the allegedly rogue judge.
Pointing to Huffman‘s references to federal constitutional rights and violations of equal protection and due process, the government removed the case to federal court. The district court severed and remanded the state-only claims, keeping jurisdiction over the apparent
ANALYSIS
We begin by assuring ourselves of jurisdiction, as Huffman argues that he never intended to include a federal claim. Despite Huffman‘s second thoughts about his own allegations, the complaint is unambiguous, stating that the imprisonment in county jail for six hours “was a violation of [his] state a [sic] federal constitutional rights” and the judge‘s acts against him were “violation[s] of the plaintiffs [sic] right to due process and equal protection.” The district court correctly determined that the complaint raises a federal question and the “state claims arising from the January 2019 Hearings share a common nucleus of operative fact with his federal claims[,]” affording supplemental jurisdiction. Huffman, 2022 WL 1479514, at *5; see United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966).
Huffman‘s argument that his complaint was poorly written is creative but unavailing. Huffman neither moved to amend in the district court nor voluntarily dismissed the case, and his attempt at backtracking now seems aimed at robbing the government of its removal option and ensuring another bite at the apple in state court. A sophisticated attorney like Huffman should not be allowed to jettison his own complaint when it is beneficial yet avoid the consequences of that renunciation. Because Huffman facially alleged a violation of his federal rights, the district court had federal question jurisdiction under
We next address the proper pleading standard for a pro se litigant who is also a licensed attorney, a question that has split several district courts in this circuit. The Central District of California has declined to afford pro se attorneys leniency. See Spadaro v. County of San Bernardino, No. 5:19-cv-01054-CJC (SHK), 2019 WL 8064075, at *3 (C.D. Cal. Dec. 16, 2019) (“With respect to the liberality with which the Court assesses a complaint for compliance with the technical requirements under the Federal Rules of Civil Procedure, a pro se litigant who is an attorney is not afforded the ‘special consideration which the courts customarily grant to pro se parties.” (quoting Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82 n.4 (2d Cir. 2001))), report and recommendation adopted, 2020 WL 917281 (C.D. Cal. Feb. 24, 2020). In contrast, courts in the District of Hawaii and the Southern District of California have chosen to liberally construe the filings of attorneys who appear pro se. See Rossmann v. Pompeo, No. 17-00539 DKW-KJM, 2017 WL 5163232, at *1 (D. Haw. Nov. 7, 2017); Osgood v. Main Streat Mktg., LLC, No. 16cv2415-GPC(BGS), 2017 WL 131829, at *3–4 (S.D. Cal. Jan. 13, 2017) (“Since the law is not settled in this circuit on whether a pro se plaintiff who attended law school and has past litigation experience is entitled to liberal construction of his or her pleadings, the Court will liberally construe Plaintiff Ewing‘s pleadings.“). The findings and recommendations adopted by the district court acknowledged this divide and “continue[d] to construe Huffman‘s complaint liberally and allow[ed] him leave to amend when possible.” Huffman, 2022 WL 1479514, at *4.
The circuits that have reached the issue speak with one voice: they have uniformly declined to extend the liberal pleading standard to pro se attorneys. See Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (noting that “the degree of solicitude may be lessened where the particular pro se
We join this chorus. There is a good reason that we afford leeway to pro se parties, who appear without counsel and without the benefit of sophisticated representation: “Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc) (citation omitted). That logic does not apply to practicing attorneys, nor should the grace extend to them.
Turning to the merits, we construe Huffman‘s pleadings without deference and conclude that his claims are deficient, and amendment would be futile. Huffman‘s claims against the prosecutor and the City are cursory at best, and his appeal seems aimed entirely at Judge Lindgren. Huffman‘s only mention of his claims against Erskine and the City of St. Helens is his note that “[t]here are a variety of bases to bring actions against the other defendants that were admittedly not clear enough in the complaint to withstand a motion to separately state the claims and make more definite and certain. Any pleading defects are clearly curable by amendment.” Huffman does not explain how he would amend to cure the defects against these defendants.
As is, Huffman alleges that the prosecutor, Erskine, did not take appropriate steps to ensure that a pro tem judge was assigned, and he “made a false a [sic] malicious statement that the City of St. Helens had no provision for pro tem judges.” Huffman fails to state a claim against Erskine; even if there was a cause of action for interference or “malicious statement,” Erskine would be shielded by prosecutorial immunity. See Imbler v. Pachtman, 424 U.S. 409, 420–28 (1976). Huffman fares no better against the City of St. Helens. Huffman seems to allege that the City is liable for the judge‘s alleged acts, but “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep‘t of Soc. Servs., 436 U.S. 658, 691 (1978). The state-law claims also fail because Huffman does not include sufficient facts to state a plausible claim. In addition, judicial and prosecutorial immunity are imputed to the City. See
The bulk of Huffman‘s appeal is targeted at Judge Lindgren, who held him in contempt, a function shielded by judicial immunity. See Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 1990). Huffman claims that he orally disqualified Lindgren at the January 3 hearing. The government responds that Oregon law requires a subsequent written motion and affidavit to be filed by the next judicial day after oral notice. See
In view of the immunity of the government defendants, where, as here, “it is clear that the complaint could not be saved by amendment,” then “dismissal without leave to amend is proper.” Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (citation omitted) (cleaned up). We affirm the dismissal with prejudice of Huffman‘s complaint.
AFFIRMED.
M. MARGARET MCKEOWN
UNITED STATES CIRCUIT JUDGE