Mullis v. U.S. Bankruptcy Court For Dist. of Nevada

• Decision Date: 11 March 1987
• Docket Number: No. 86-2331,86-2331
• Citation: 828 F.2d 1385
• Parties: , 16 Bankr.Ct.Dec. 810, Bankr. L. Rep. P 72,008 Tom Neeley MULLIS, Plaintiff-Appellant, v. UNITED STATES BANKRUPTCY COURT FOR the DISTRICT OF NEVADA; Honorable Robert Clive Jones, Honorable Lawrence Ollason, Honorable Robert Skidmore, Honorable James H. Thompson, United States Bankruptcy Judges; Patricia Edwards, Clerk; Valerie Russell and Brandi Tripp, Deputy Clerks; and John R. Martz, Bankruptcy Trustee and Attorney at Law, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1385

828 F.2d 1385

56 USLW 2198, 16 Bankr.Ct.Dec. 810, Bankr.

L. Rep. P 72,008

Tom Neeley MULLIS, Plaintiff-Appellant, v. UNITED STATES BANKRUPTCY COURT FOR the DISTRICT OF NEVADA Honorable Robert Clive Jones, Honorable Lawrence Ollason Honorable Robert Skidmore, Honorable James H. Thompson United States Bankruptcy Judges; Patricia Edwards, Clerk Valerie Russell and Brandi Tripp, Deputy Clerks; and John R. Martz, Bankruptcy Trustee and Attorney at Law, Defendants-Appellees.

No. 86-2331.

United States Court of Appeals, Ninth Circuit.

Submitted March 11, 1987. ^*

Decided Sept. 24, 1987.

Tom Neeley Mullis, Reno, Nev., for plaintiff-appellant.

Shirley Smith, Reno, Nev., for defendants-appellees.

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

Before NOONAN, and O'SCANNLAIN, Circuit Judges, and TASHIMA, ^** District Judge.

TASHIMA, District Judge:

Appellant Tom Neeley Mullis ("Mullis" or "appellant") appeals the district court's dismissal of his civil rights action against four bankruptcy judges (the "bankruptcy judge" or "judges") of the United States Bankruptcy Court for the District of Nevada (the "bankruptcy court"), the bankruptcy court clerk and two deputy clerks (the "clerk" or "clerks") and a bankruptcy court trustee ("Martz" or the "trustee"). We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

This dispute arises from the treatment of a bankruptcy petition. The complaint alleges that Mullis sent his wife to the bankruptcy court with his bankruptcy petition, which contained no designation of the chapter of the Bankruptcy Code under which Mullis was filing. ¹ He sent his wife there to find out from the clerks under which chapter of the Bankruptcy Code he could file that would permit him subsequently to withdraw or dismiss his petition as a matter of right.

Mullis alleges that the clerks neither provided his wife with the requested information nor advised her that they could not give legal advice, but instead "took" his petition and schedules from her, "stating that the petition and schedules would be filed under the appropriate chapter of the bankruptcy code." The clerks collected a filing fee from his wife, then accepted and filed the petition under Chapter 7. A clerk later refused to accept and file an amended petition and schedules on the ground that the chapter designated on the petition was incorrect.

Mullis filed a motion to withdraw his petition and dismiss the bankruptcy case. The bankruptcy judge denied this motion. Mullis purported to appeal this order. Both the bankruptcy judge and the district judge to whom the appeal was taken denied Mullis' motions for a stay of the bankruptcy court's order and suspension of further proceedings pending appeal. ² Mullis also petitioned this Court for writs of mandamus and prohibition directing the bankruptcy court to cease all further proceedings in the bankruptcy case for want of jurisdiction pending final disposition of the appeal to the district court. We denied the petition, finding that Mullis had not demonstrated that he was threatened with irreparable injury. ³

The district court, first noting that the denial of a motion to dismiss is an interlocutory order and that Mullis had not sought leave to appeal, concluded that the bankruptcy court had a reasonable basis for its order. ⁴ Treating the notice of appeal as a motion for leave to appeal under Bankr.R. 8003(c), it denied leave to appeal and dismissed the appeal. ⁵

Mullis then commenced this action. He alleges that through a variety of acts relating to the treatment of his bankruptcy case, described further below, appellees violated his rights to due process under the Fifth Amendment, to self-representation under the Sixth Amendment and to petition the government for redress of his grievances and to access to the courts under the First and Sixth Amendments. He seeks monetary damages, declaratory and injunctive relief.

II. ISSUES ⁶

1. Are appellees immune from damages?

2. Are appellees immune from injunctive and declaratory relief?

III. DISCUSSION

Initially, we note that Mullis mistakenly designates his action throughout his complaint and briefs as an action under 42 U.S.C. Sec. 1983 ("Sec. 1983"). The district court also treated it as a Sec. 1983 action. Because appellees were all acting under color of federal law, not state law, the constitutional violations alleged in the complaint are more properly characterized as alleging direct constitutional tort claims under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). ⁷ See Daly-Murphy v. Winston, 820 F.2d 1470, 1477 (9th Cir.1987).

The district court dismissed the action on the grounds that: (1) the bankruptcy court eo nomine was absolutely immune under the doctrine of sovereign immunity; ⁸ (2) the judges were absolutely immune under the doctrine of judicial immunity; and (3) the clerks and trustee had absolute quasi-judicial immunity. It also held that appellees' judicial or quasi-judicial immunity barred appellant from seeking prospective injunctive relief.

A. Standard of Review

A dismissal under Rule 12(b)(6) is subject to de novo review. E.g., Kelson v. City of Springfield, 767 F.2d 651, 653 (9th Cir.1985). In reviewing such a dismissal, it must appear to a certainty that plaintiff would not be entitled to relief under any set of facts that could be proved. E.g., King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987). In civil rights cases where, as here, the plaintiff is acting pro se, the court has an obligation to construe the pleadings liberally and to afford the plaintiff the benefit of any doubt. Id. However, facts subject to judicial notice may be considered on a motion to dismiss. Mack v. South Bay Beer Distrib., Inc., 798 F.2d 1279, 1282 (9th Cir.1986). ⁹

B. Immunity From Damages

(1) The Bankruptcy Judges

Judges are absolutely immune from civil liability for damages for their judicial acts. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1872). See also Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (applying judicial immunity to Sec. 1983 action). "A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.' " Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978) (citing Bradley, 80 U.S. (13 Wall.) at 351, 20 L.Ed. 646).

Mullis alleges that the bankruptcy judges committed the following acts:

(1) failed to allow Mullis to withdraw from bankruptcy;

(2) (after notice of Mullis' appeal) continued to:

(a) administer the bankruptcy estate,

(b) conduct creditor meetings and debtor examinations, and

(c) enter orders;

(3) communicated ex parte with the trustee;

(4) failed to comply strictly with Local Rule 16(e) (which provides that failure to file a memorandum of points and authorities with a motion constitutes a consent to the denial of the motion);

(5) (with respect to Mullis' motion to remove the trustee) refused to allow Mullis to present evidence, struck as scandalous one of Mullis' filings, ordered Mullis to leave the courtroom, and failed to remove Martz as trustee;

(6) refused to increase the trustee's bond;

(7) granted Martz's ex parte motion requiring Mullis to pay him $1,000 before Mullis could take his deposition; and

(8) issued a temporary restraining order preventing Mullis from using the earnings from his private medical practice and ordered Mullis to produce confidential records.

Appellant does not dispute that the bankruptcy judges engaged in judicial acts. He contends that the acts were performed in the "clear absence of all jurisdiction." Mullis advances two grounds for this argument. First, he asserts that his bankruptcy petition was jurisdictionally defective under 11 U.S.C. Sec. 301, which provides that a voluntary bankruptcy case is commenced by filing a petition under one of the chapters of Title 11. ¹⁰ He contends that because his petition failed to indicate on its face on which chapter of the Bankruptcy Code he was relying, the petition did not invoke the jurisdiction of the bankruptcy court under Sec. 301. Second, he contends that the bankruptcy judges lacked all jurisdiction over matters arising from his bankruptcy petition after he filed his notice of appeal from the order denying his motion to withdraw his petition and to dismiss the bankruptcy case. He argues that his properly filed notice of appeal divested the bankruptcy court of jurisdiction over his petition, citing In re Bialac, 15 B.R. 901, 903 (Bankr. 9th Cir.1981), aff'd, 694 F.2d 625 (9th Cir.1982).

These contentions are without merit. Appellant misconstrues the meaning of the "clear absence of all jurisdiction" exception to the doctrine of judicial immunity. The Supreme Court has illustrated the distinction between an act in the clear absence of jurisdiction and an act in excess of jurisdiction with this example:

if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.

Stump, 435 U.S. at 357 n. 7, 98 S.Ct. at 1105 n. 7 (citing Bradley, 80 U.S. (13 Wall.) at 352, 20 L.Ed. 646). A clear absence of all jurisdiction means a clear lack of all subject matter jurisdiction. Bradley, 80 U.S. (13 Wall.) at 351-52. See also Rankin v. Howard, 633 F.2d 844, 848-49 (9th Cir.1980) ("a judge who acts in the clear and complete absence of personal jurisdiction loses his judicial immunity"), cert. denied, 451 U.S. 939, 101 S.Ct. 2020, 68 L.Ed.2d 326 (1981); O'Neil v. City of...