793 F.2d 1072 (9th Cir. 1986), 84-1580, Ashelman v. Pope

Docket Nº:84-1580.
Citation:793 F.2d 1072
Party Name:Kenneth O. ASHELMAN, Plaintiff-Appellant, v. Hon. Gary POPE, Judge Division I, Mohave County Superior Court; Mohave County Attorney's Office, Defendants-Appellees.
Case Date:July 08, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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793 F.2d 1072 (9th Cir. 1986)

Kenneth O. ASHELMAN, Plaintiff-Appellant,


Hon. Gary POPE, Judge Division I, Mohave County Superior

Court; Mohave County Attorney's Office,


No. 84-1580.

United States Court of Appeals, Ninth Circuit

July 8, 1986

Argued En Banc and Submitted April 29, 1986.

As Amended Aug. 12, 1986.

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[Copyrighted Material Omitted]

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Daniel H. Bookin, Farella, Braun & Martel, San Francisco, Cal., for plaintiff-appellant.

William J. Ekstrom, Jr., Mohave Co. Atty., William F. McDonald, Deputy Co. Atty., Kingman, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.


SKOPIL, Circuit Judge:

Kenneth O. Ashelman appeals the dismissal of his civil rights action against a state judge and county prosecutor. The question presented is whether a judge and prosecutor are immune from damages in a civil rights action charging them with conspiracy to predetermine the outcome of judicial proceedings. We conclude that the judge and prosecutor are immune. We affirm the district court's dismissal of the action.


Ashelman is a prisoner in custody of the Arizona Department of Corrections. While awaiting trial on criminal charges, Ashelman filed a pro se civil rights action against the state court judge and the County Attorney's Office. The complaint alleges the judge and prosecutor conspired to deprive Ashelman of (1) effective assistance of counsel; (2) access to a law library; (3) services of an investigator; (4) subpoenas for witnesses; and (5) supplies necessary for the preparation of his legal defense. Ashelman sought injunctive and declaratory relief.

After defendants answered, Ashelman filed a document entitled "Supplemental Pleadings" which further developed his conspiracy allegations, added as a defendant the prosecuting deputy county attorney, and sought damages in addition to injunctive and declaratory relief. The court construed the document as an amended pleading and instructed Ashelman to move to file an amended complaint pursuant to Fed.R.Civ.P. 15(a). Ashelman moved to file an amended complaint and lodged the proposed amendments with the court. His proposed amendments included most of his "supplemental pleadings" and also added the county sheriff as a defendant.

The district court dismissed Ashelman's complaint and denied the motion to amend. The court reasoned that the judge was protected by judicial immunity. The action against the County Attorney's Office was barred because the doctrine of respondeat superior did not apply absent allegations that actions were taken pursuant to regulations, customs, ordinance, or approved practice by the county. Process was ordered not to be filed against the prosecutor and sheriff because the prosecutor was protected by prosecutorial immunity and the sheriff was already a party to another action brought by Ashelman. Ashelman's various motions to compel discovery were accordingly denied. Ashelman timely appealed the dismissal of his action.

On appeal, we initially reversed and remanded. Ashelman v. Pope, 769 F.2d 1360 (9th Cir.1985). Relying on Ninth Circuit authority, we held that a judge and prosecutor are not protected by immunity when they conspire to deprive a defendant of constitutional rights. Id. at 1362 (citing Beard v. Udall, 648 F.2d 1264 (9th Cir.1981)). We affirmed only the dismissal of the County Attorney's Office. 1 Id. at 1363.

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The decision was subsequently withdrawn upon a majority vote of active judges. Ashelman v. Pope, 778 F.2d 539 (9th Cir.1985).


  1. Judicial and Prosecutorial Immunity.

    Judges and those performing judge-like functions are absolutely immune from damage liability for acts performed in their official capacities. Richardson v. Koshiba, 693 F.2d 911, 913 (9th Cir.1982). Immunity does not extend, however, to actions for prospective injunctive relief. Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 1980-81, 80 L.Ed.2d 565 (1984); Richardson, 693 F.2d at 913 n. 8. In his initial complaint, Ashelman sought only injunctive and declaratory relief. Since Ashelman's criminal proceedings are over, however, the equitable relief sought is no longer available. Only the monetary relief sought in his amended complaint may be available. Thus, the propriety of the district court's dismissal without leave to amend turns on whether immunity bars recovery of money damages from any of the defendants. If judicial and prosecutorial immunity bar recovery, no amendment could cure the deficiency and the action was properly terminated on a motion to dismiss.

    Judges are immune from damage actions for judicial acts taken within the jurisdiction of their courts. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1872). Title 42 U.S.C. Sec. 1983 (1982) was not intended to abolish the doctrine of judicial immunity. Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). Judicial immunity applies "however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." Cleavinger v. Saxner, --- U.S. ----, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985) (quoting Bradley, 80 U.S. (13 Wall.) at 347).

    Prosecutors are also entitled to absolute immunity from section 1983 claims. Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 993, 47 L.Ed.2d 128 (1976). Such immunity applies even if it leaves "the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." Id. See also Campbell v. Maine, 787 F.2d 776, 778 (1st Cir.1986) (no bad faith exception to absolute immunity of prosecutor).

    The immunity afforded judges and prosecutors is not absolute. A judge lacks immunity where he acts in the "clear absence of all jurisdiction," Bradley, 80 U.S. (13 Wall.) at 351, or performs an act that is not "judicial" in nature. Stump v. Sparkman, 435 U.S. 349, 360, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331 (1978). The factors relevant in determining whether an act is judicial "relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Sparkman, 435 U.S. at 362, 98 S.Ct. at 1107. In Sparkman, the Supreme Court held that a judge's ex parte approval of a young woman's sterilization was a judicial act performed within the apparent scope of the court's broad, general jurisdiction. Id. at 357-64, 98 S.Ct. at 1105-09.

    Other circuits have expanded Sparkman's analysis. To determine if a given action is judicial, those courts focus on whether (1) the precise act is a normal judicial function; (2) the events occurred in the judge's chambers; (3) the controversy centered around a case then pending before the judge; and (4) the events at issue arose

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    directly and immediately out of a confrontation with the judge in his or her official capacity. See, e.g., Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir.1985) (en banc) (per curiam) (citing Harper v. Merckle, 638 F.2d 848, 858 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981)); Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir.1985) (citing McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir.1972)), cert. denied, --- U.S. ----, 106 S.Ct. 883, 88 L.Ed.2d 918 (1986). These factors are to be construed generously in favor of the judge and in light of the policies underlying judicial immunity. Adams, 764 F.2d at 297.

    To determine if the judge acted with jurisdiction, courts focus on whether the judge was acting clearly beyond the scope of subject matter jurisdiction in contrast to personal jurisdiction. E.g., Dykes, 776 F.2d at 948-49; Green v. Maraio, 722 F.2d 1013, 1017 (2nd Cir.1983). Where not clearly lacking subject matter jurisdiction, a judge is entitled to immunity even if there was no personal jurisdiction over the complaining party. E.g., Dykes, 776 F.2d at 948-49; Green, 722 F.2d at 1017. But see Rankin v. Howard, 633 F.2d 844, 848-49 (9th Cir.1980) (if a court lacks personal jurisdiction, it lacks "all jurisdiction" and loses judicial immunity), cert. denied, 451 U.S. 939, 101 S.Ct. 2020, 68 L.Ed.2d 326 (1981). Jurisdiction should be broadly construed to effectuate the policies supporting immunity. Holloway v. Walker, 765 F.2d 517, 523 (5th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 605, 88 L.Ed.2d 583 (1985).

    Prosecutorial immunity has developed along much the same lines as judicial immunity. Immunity extends to protect a prosecutor who acts within his or her authority and in a quasi-judicial capacity. Imbler, 424 U.S. at 430-31, 96 S.Ct. at 994-96. The focus is on the nature or function of the prosecutor's activity. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 678 (9th Cir.1984). Where a prosecutor acts as an advocate "in initiating a prosecution and in presenting the state's case," absolute immunity applies. Id. (quoting Imbler, 424 U.S. at 431, 96 S.Ct. at 995).

    This circuit has developed a somewhat narrow view of when judicial and prosecutorial immunity should bar civil rights actions. In Rankin, 633 F.2d at 847, we held that a judge's private, prior agreement to decide in favor of one party was not a judicial act giving rise to judicial immunity. There, a state judge allegedly agreed to issue ex parte guardianship papers enabling parents to take custody of their son for "deprogramming"...

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