Malberg v. Cashen
- Beth Freeman
- 5:22-cv-01788
- U.S. District Court · Northern District of California
- 7
In Malberg v. Cashen, Judge Freeman granted the defendants’ dismissal motion, ending the federal claims and allowing possible state-court refiling.
Martin Malberg’s federal claims were dismissed, including his claims under the First Amendment, 42 U.S.C. § 1983, specified federal criminal statutes, and 28 U.S.C. § 566. Any remaining unspecified or implied state-law claims were dismissed without prejudice to refiling in state court. The defendants obtained dismissal of the complaint under the final order.
What happened
In Malberg v. Cashen, Martin Malberg sued his former wife’s attorneys, a legal assistant, and a police officer over a restraining order issued during his divorce proceedings. He claimed that the defendants violated his free-speech rights and sought injunctions, damages, and criminal penalties.
The court dismissed the claims based on the Constitution, the federal civil-rights law, federal criminal laws, and the U.S. Marshals Service statute. It ruled that the private attorneys and legal assistant were not acting for the government, that private people cannot bring criminal charges under those statutes, and that the Marshals Service statute does not authorize private lawsuits. The court also dismissed any remaining unspecified state-law claims without prejudice to refiling them in state court.
Judge Beth Labson Freeman granted the motion to dismiss. The final order says the federal and remaining unspecified claims were dismissed without leave to amend; the state-law dismissal was also without prejudice to refiling in state court.
The detailed version
- Malberg v. Cashen · No. 5:22-cv-01788
- Beth Freeman
- Sept. 28, 2022
Background
Martin Malberg brought the action without a lawyer against Robert Cashen, Allison Dundas, Christine Guerra, and Temo Gonzalez. Cashen and Dundas represented Malberg’s wife during divorce proceedings in California state court, Guerra was a legal assistant for them, and Gonzalez was the police officer who enforced a restraining order obtained against Malberg. Gonzalez had previously been dismissed from the action, according to the opinion’s footnote.
Malberg alleged that the defendants violated his First Amendment rights by seeking an allegedly unconstitutional domestic-violence restraining order for his wife. He also alleged that fabricated evidence and edited text messages were presented during the state-court proceedings. His requested relief included injunctions concerning the restraining order and other divorce-related orders, damages of $2,477,171, criminal penalties, and arrest warrants.
Rule 12(b)(6) standard
The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether the complaint alleges enough facts to state a legally plausible claim. The court said it must accept the complaint’s factual allegations as true and interpret them favorably to the plaintiff, while also giving a self-represented plaintiff’s filings a liberal reading. A self-represented litigant must still follow the applicable procedural rules.
Section 1983 claim
Malberg relied on the First Amendment and 42 U.S.C. § 1983. Section 1983 provides a civil remedy for deprivation of federal rights by a person acting under color of state law, meaning through governmental authority or conduct fairly attributable to the state.
The court dismissed this claim because Malberg did not allege facts showing that Cashen, Dundas, or Guerra acted under color of state law. Cashen and Dundas were private attorneys, and Guerra was a legal assistant. The court rejected Malberg’s arguments that their California bar membership, status as officers of the court, or use of state legal procedures made them state actors. It stated that private attorneys do not become state actors merely by invoking state procedures or prevailing in state court.
The court dismissed the § 1983 claim without reaching whether the alleged conduct violated the First Amendment.
Federal criminal statutes
Malberg also cited 18 U.S.C. §§ 241, 242, and 2384 and sought criminal penalties, prison time, criminal charges, and arrest warrants. The court ruled that private individuals cannot use these criminal statutes to seek civil relief and that the statutes do not provide a basis for civil liability. It dismissed those claims for lack of standing.
U.S. Marshals Service statute
Malberg cited 28 U.S.C. § 566 in connection with his request for arrest warrants to be executed by federal marshals. The court held that § 566 describes the powers and duties of the U.S. Marshals Service but does not create an express or implied private right to sue. The court therefore declined to recognize a claim under that statute.
State-law claims and final disposition
After dismissing the federal grounds for jurisdiction, the court declined to exercise supplemental jurisdiction—the authority to hear related state-law claims in a case that also contains federal claims—over any remaining unspecified or implied state-law claims, such as possible fraud or evidence-fabrication claims. Those claims were dismissed without prejudice to refiling in state court.
The final order states that the motion to dismiss was granted and that claims purportedly arising under the First Amendment, § 1983, 18 U.S.C. §§ 241, 242, and 2384, and 28 U.S.C. § 566 were dismissed without leave to amend. It also states that remaining unspecified or implied state-law claims were dismissed without leave to amend and without prejudice to refiling in state court.
Leave to amend
The opinion’s earlier discussion says the motion was granted with leave to amend, but the later analysis and final order state that amendment would be futile and dismiss the claims without leave to amend. The final order controls the stated disposition.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.