Harvey v. Waldron

• Citation: 210 F.3d 1008
• Decision Date: 16 February 2000
• Docket Number: No. 98-36112,98-36112
• Parties: (9th Cir. 2000) WILLIAM E. HARVEY, Plaintiff-Appellant, v. DAVID F. WALDRON, individually and in his official capacity as an investigator for the Montana Department of Revenue; STATE OF MONTANA, DEPARTMENT OF REVENUE; JESSE JOHNSON, JR.,individually and in his official capacity as a Detective in the Billings Police Department; DAVE COMFORT, individually and in his official capacity as a Detective in the Billings Police Department TERRY ST. JOHN, individually, and in his official capacity as a Detective in the Billings Police Department; BILLINGS, MONTANA, POLICE DEPARTMENT; PEDRO HERNANDEZ, individually, and in his official capacity as Justice of the Peace for Yellowstone County; DALE R. MRKICH, individually, and in his official capacity as Deputy County Attorney for Yellowstone County, Montana; YELLOWSTONE COUNTY, MONTANA; CITY OF BILLINGS, MONTANA, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1008

210 F.3d 1008 (9th Cir. 2000)

WILLIAM E. HARVEY, Plaintiff-Appellant, v. DAVID F. WALDRON, individually and in his official capacity as an investigator for the Montana Department of Revenue; STATE OF MONTANA, DEPARTMENT OF REVENUE; JESSE JOHNSON, JR.,individually and in his official capacity as a Detective in the Billings Police Department; DAVE COMFORT, individually and in his official capacity as a Detective in the Billings Police Department TERRY ST. JOHN, individually, and in his official capacity as a Detective in the Billings Police Department; BILLINGS, MONTANA, POLICE DEPARTMENT; PEDRO HERNANDEZ, individually, and in his official capacity as Justice of the Peace for Yellowstone County; DALE R. MRKICH, individually, and in his official capacity as Deputy County Attorney for Yellowstone County, Montana; YELLOWSTONE COUNTY, MONTANA; CITY OF BILLINGS, MONTANA, Defendants-Appellees.

No. 98-36112

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted February 16, 2000¹

Decided April 25, 2000

[Copyrighted Material Omitted] COUNSEL: William E. Harvey, Pro per, Littleton, Colorado, for the plaintiff-appellant.

Randall G. Nelson, Nelson Law Firm, Billings, Montana; Casey Heitz and Thomas D. Gai, Deputy Yellowstone County Attorneys, Billings, Montana, for the defendants-appellees.

Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District Judge, Presiding. D.C. No. CV-97-00065-JDS

Before: Stephen Reinhardt, David R. Thompson, and Thomas G. Nelson, Circuit Judges.

T.G. NELSON, Circuit Judge:

William Harvey appeals pro se the district court's dismissal of his 42 U.S.C. S 1983 action, alleging the City of Billings, the County of Yellowstone, Justice of the Peace Pedro Hernandez, and various individual officials violated his constitutional rights by illegally seizing and permanently depriving Harvey of gaming devices found on his property. We have jurisdiction under 28 U.S.C. S 1291. We affirm in part and reverse in part.

I.

Because we are reviewing the district court's dismissal on the pleadings of Harvey's S 1983 action, we assume the following facts, derived from Harvey's complaint, to be true. See Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir. 1998).

On November 23, 1988, defendants David F. Waldron, an investigator for the Montana Department of Revenue; and Jesse Johnson, Dave Comfort and Terry St. John, detectives with the Billings City Police Department, entered the Billings Trading Company, an antique business owned and operated solely by Harvey. These defendants entered Harvey's place of business without invitation or a search warrant despite the fact that the business was not yet open to the public and, over Harvey's protests, seized approximately twenty-five gaming devices. These gaming devices, which were more than twenty-five years old, were antiques and were not used for gambling. Harvey was subsequently charged in a Yellowstone County court with illegal possession of gaming devices in violation of Montana Code Annotated S 23-5-153 (1988).²

On August 7, 1992, while charges were still pending against Harvey, Yellowstone County (the "County") moved the County Justice Court for leave either to destroy the seized gaming devices or to donate the devices to a museum. Harvey was not given notice of this motion. On August 11, 1992, Justice of the Peace Pedro Hernandez granted the County's motion and ordered the devices either destroyed or donated to a museum. The County donated the seized gaming devices to the City of Billings (the "City") on August 11, 1992. In late August or early September 1992, the Deputy County Attorney assured Harvey's attorney that the seized gaming devices would be returned to Harvey, despite the fact that the County had already given the gaming devices to the City.

On December 6, 1994, the County dismissed its charges against Harvey. Harvey was not, however, notified of the dismissal until May 1995. On June 2, 1995, Harvey moved the justice court for return of the seized gaming devices. On June 9, 1995, the justice court denied the motion and informed Harvey that the devices had been given to the City. In June 1995, Harvey also wrote the Deputy County Attorney and requested that his property be returned. The County Attorney also informed Harvey that the property could not be returned because it had been given away. Harvey did not know, prior to June 1995, that the seized gaming devices were no longer in the possession of the County.

Harvey filed the present action on May 19, 1997, claiming that the defendants violated his constitutional right to be free from unreasonable searches and seizures when they illegally seized his gaming devices in November 1988; and violated his due process rights when they permanently deprived him of the gaming devices without notice, an opportunity to be heard and just compensation. On July 8, 1997, the district court dismissed defendant Judge Hernandez, finding Judge Hernandez absolutely immune from suit under the doctrine of judicial immunity,³ and directed Harvey to file an amended complaint.

After Harvey filed an amended complaint, the remaining defendants moved for dismissal or judgment on the pleadings. The district court granted the motions in an order entered on October 13, 1998, holding that Harvey's claims were barred by the applicable statute of limitations. On appeal, Harvey challenges both the district court's July 8, 1997, dismissal of Judge Hernandez and the district court's October 13, 1998, dismissal of the remaining defendants.

II.

The district court dismissed Judge Hernandez from the lawsuit based on its finding that Judge Hernandez was entitled to absolute judicial immunity. Harvey contends that Judge Hernandez acted without either personal or subject matter jurisdiction and is not, therefore, entitled to judicial immunity. We review the question of judicial immunity de novo . See Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996).

A. Sufficiency of Notice of Appeal

As a threshold matter, the defendants argue that because Harvey did not specifically list on his notice of appeal the July 8, 1997, order in which the district court dismissed Judge Hernandez,⁴ Harvey's appeal of the dismissal of Judge Hernandez is barred by Federal Rule of Appellate Procedure 3(c) (requiring notice of appeal to "designate the judgment, order, or part thereof being appealed"). We disagree.

"An appeal from a final judgment draws in question all earlier, non-final orders and rulings which produced the judgment." United Ass'n of Journeymen & Apprentices v. Bechtel Constr. Co., 128 F.3d 1318, 1322 (9th Cir. 1997). The July 8, 1997, order dismissing Judge Hernandez was clearly an "earlier, non-final order[ ]." Id.; see WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136-37 (9th Cir. 1997) (en banc) (holding that dismissal with leave to amend is not a final order); Pachick v. Kensington Publ'g Corp., 743 F.2d 675, 677 (9th Cir. 1984) (per curiam) (holding that dismissal of some, but not all, of the defendants who had been served with complaint is not a final order). To preserve his right to appeal the dismissal of Judge Hernandez, Harvey did not need to list Judge Hernandez in his second amended complaint, nor did he need to specifically list the July 8, 1997, order in his notice of appeal. Rather, when Harvey appealed the district court's October 13, 1998, final judgment and order, he drew into question all of the court's earlier, non-final orders, including the July 8, 1997, non-final order dismissing Judge Hernandez. See United Ass'n of Journeymen, 128 F.3d at 1322.

B. Applicability of Doctrine of Judicial Immunity

"Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction." Pierson v. Ray, 386 U.S. 547, 553-554 (1967). This "immunity is overcome in only two sets of circumstances. 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) (citations omitted).

Harvey admits that Judge Hernandez's actions "might have been judicial in nature," but contends that Judge Hernandez is not entitled to immunity because he "acted in complete absence of jurisdiction" when he ordered the disposal of Harvey's property without notice and a hearing. We disagree.

The Supreme Court has clearly held that as long as a judge has jurisdiction to perform the "general act" in question, he or she is immune "however erroneous the act may have been, . . . however injurious in its consequences it may have proved to the plaintiff" and irrespective of the judge's motivation. Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985); see Stump v. Sparkman, 435 U.S. 349, 356 (1978) (holding that because "some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, the scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge" (citations, quotations and ellipses omitted)).

The "general act" which Judge Hernandez was performing in this case--the issuance of an ex parte order to destroy contraband at the request of the county--is a function that Judge Hernandez has jurisdiction to perform. Judge Hernandez is therefore immune from liability for the act of issuing the order, however erroneous the act may have been, however injurious the consequences of the act may have been to Harvey and irrespective of Judge Hernandez's claimed motivation. See Cleavinger, 474 U.S. at 199-200. The district court's dismissal of the claim against Judge Hernandez based on judicial immunity was thus proper.

III.

The district court dismissed Harvey's second...