Antoine v. Byers & Anderson, Inc., s. 90-35293

• Decision Date: 13 December 1991
• Docket Number: 90-35362 and 90-35363,Nos. 90-35293,s. 90-35293
• Parties: Jeffery ANTOINE, Plaintiff-Appellant-Cross-Appellee, v. BYERS & ANDERSON, INC., Shanna Ruggenberg, Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1471

950 F.2d 1471

21 Fed.R.Serv.3d 669

Jeffery ANTOINE, Plaintiff-Appellant-Cross-Appellee, v. BYERS & ANDERSON, INC., Shanna Ruggenberg Defendants-Appellees-Cross-Appellants.

Nos. 90-35293, 90-35362 and 90-35363.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 11, 1991.

Decided Dec. 13, 1991.

M. Margaret McKeown and Daniel Laster, Perkins Coie, Seattle, Wash., for plaintiff-appellant-cross-appellee.

Tyna Ek, Merrick, Hofstedt & Lindsey, Seattle, Washington; William P. Fite and Karen J. Feyerherm, Betts, Patterson & Mines, Seattle, Wash., for defendants-appellees-cross-appellants.

Blair B. Burroughs, Mills & Cogan, Seattle, Wash., for amicus.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, FARRIS and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Jeffery Antoine appeals the district court's grant of summary judgment in favor of Byers & Anderson, Inc. and Shanna Ruggenberg. Antoine asserted constitutional claims for violation of due process and access to the courts plus state law claims for breach of contract as a result of Ruggenberg's failure to produce a criminal trial transcript. The district court held that Ruggenberg, a delinquent court reporter, was absolutely immune as a quasi-judicial officer. Byers & Anderson, Ruggenberg's "employer," and Ruggenberg cross-appeal from denial of summary judgment on the issue of whether Ruggenberg was an independent contractor or an employee. We affirm.

I

Byers & Anderson, a court reporting firm in Tacoma, Washington, contracted with the United States District Court for the Western District of Washington to provide court reporting services. As required by the contract, Byers & Anderson sent Shanna Ruggenberg, one of its court reporters, to provide reporting services for the district court. Ruggenberg had provided court reporting services through Byers & Anderson for approximately one and one-half years.

Ruggenberg performed full-time court reporting services for the district court from February 1986 to August 1986. While working in the district court, Ruggenberg spent business hours at the courthouse and contacted Byers & Anderson daily by telephone or in person. To satisfy the requests for overnight transcripts, excerpts of cases, verbatim reports of proceedings, and transcript requests, Ruggenberg was required to transcribe at home in the evenings and on weekends. She was unable to satisfy all of the requests and soon found herself with a backlog of work.

Ruggenberg served on March 3 and 4, 1986, as the court reporter during Jeffery Antoine's jury trial for bank robbery. Antoine appealed his conviction for this crime. Immediately following the trial, on March 20, 1986, Antoine ordered the transcript of proceedings from Ruggenberg. He made a payment of seven hundred dollars on the transcription fee because he was not aware that he could have obtained a transcript without cost due to his inability to pay.

The court ordered the transcript filed by May 29, 1986. Ruggenberg did not meet this deadline, and did not request an extension. For the next three years, Antoine attempted to obtain the transcripts through motions, court orders and hearings. The court set five subsequent filing deadlines for the transcript. Ruggenberg failed to provide the complete transcript, communicate with counsel, or comply with the orders of the court.

Ruggenberg did produce fifty-eight pages of transcript, but she was unable to locate the notes and tapes for the remainder of the proceeding. In July 1988, over two years after the initial transcript request, Ruggenberg claimed in an affidavit that she had lost the remaining notes and tapes. Subsequently, however, in April of 1989, additional notes and tapes were discovered. These items were delivered to the district court, and a substitute reporter attempted to reconstruct the record pursuant to Fed.R.App.P. 10(c). ¹ The substitute reporter was unable to complete a full transcript of the criminal proceeding because the notes alone were insufficient to produce an adequate transcript. The reconstructed transcript was deficient in that it included no charge to the jury, no transcript of the sentencing, inaudible words or phrases, garbled testimony, and insufficient identification of speakers.

As a result of his delay in obtaining the partial transcript, Antoine's criminal appeal did not proceed to argument until four years after his conviction. In the underlying criminal action, this court vacated his conviction and remanded. We instructed the district court to determine whether Antoine was prejudiced by his lack of a complete transcript, and whether the delay in obtaining his transcript impaired his defense on retrial. See United States v. Antoine, 906 F.2d 1379, 1384 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 398, 112 L.Ed.2d 407 (1990). The present status of Antoine's criminal case is unknown.

Antoine filed the present action pursuant to 42 U.S.C. § 1983 (1988). The district court granted Byers & Anderson's and Ruggenberg's motions for summary judgment, holding that Ruggenberg's acts were within her official capacity as a quasi-judicial officer. Summary judgment was denied on Byers & Anderson's assertion that Ruggenberg was an independent contractor and not its employee. The court dismissed Antoine's federal claims and dismissed without prejudice his pendent state law claims.

II

A federal agent acting under authority of purely federal law cannot be held liable under Section 1983. ² Scott v. Rosenberg, 702 F.2d 1263, 1269 (9th Cir.1983), cert. denied, 465 U.S. 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984). Because Ruggenberg was a federal, not state, agent, and because Antoine filed his action pursuant to 42 U.S.C. § 1983, we must first determine whether the district court had jurisdiction to adjudicate his claim. Antoine apparently recognized the problem and sought to amend his complaint to set forth the jurisdictional basis as 28 U.S.C. § 1331 (1988), but the claims were dismissed before the amendment became effective. The district court's summary judgment order disposed of the case as if it were a Section 1983 action.

On appeal, Antoine characterizes his suit as a Bivens action. See 28 U.S.C. § 1331; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We follow Mullis v. United States Bankruptcy Court, 828 F.2d 1385 (9th Cir.1987), cert. denied, 486 U.S. 1040, 108 S.Ct. 2031, 100 L.Ed.2d 616 (1988), and ignore Antoine's initial mischaracterization. In Mullis, the action against federal agents was filed as a Section 1983 action instead of as a federal question case. On appeal, this court ignored Mullis' mischaracterization and found jurisdiction in the district court under 28 U.S.C. § 1331. Mullis, 828 F.2d at 1387 n. 7. Because immunity in Bivens actions is coextensive with immunities recognized in Section 1983 cases, our decision is unaffected by the jurisdictional basis. ³ See, e.g. Harlow v. Fitzgerald, 457 U.S. 800, 818 n. 30, 102 S.Ct. 2727, 2738 n 30, 73 L.Ed.2d 396 (1982); Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2909-10, 57 L.Ed.2d 895 (1978); F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1318 (9th Cir.1989). We conclude we have jurisdiction to hear this appeal.

III

A

We review de novo the district court's grant of summary judgment. Price v. Hawaii, 939 F.2d 702, 706 (9th Cir.1991). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864, 867 (9th Cir.1991). Issues of immunity are reviewed de novo. Doe v. Atty. Gen. of the United States, 941 F.2d 780, 783 (9th Cir.1991).

B

Antoine argues that court reporters are not, as a matter of law, entitled to the protection of absolute quasi-judicial immunity. We disagree.

In Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872), the Supreme Court confirmed the common law principle that judges have absolute immunity for acts committed within their judicial jurisdiction. The Court described the principle as follows:

For it is a general principle of the highest importance to the proper administration of justice that 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. Liability to answer to everyone who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English judge, it would establish the weakness of judicial authority in a degrading responsibility.

The principle, therefore, which exempts judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions, obtains in all countries where there is any well-ordered system of jurisprudence. It has been the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country.

Bradley, 80 U.S. (13 Wall.) at 347 (citation omitted).

In elaborating this principle, the Court stated the following with respect to the record of a lawsuit:

If upon such allegations a judge could be compelled to answer in a civil action for his judicial acts, not only would his office be degraded and his usefulness destroyed, but he would be subjected for his protection to the necessity of preserving a complete record of all the evidence produced before him in every litigated case, and of the authorities cited and arguments presented, in order that he might be able to show to the judge before whom he...