Unpublished Disposition, 841 F.2d 1128 (9th Cir. 1986)

MEMORANDUM^** 

Carlisle appeals pro se the district court's dismissal of his civil rights claim filed under 42 U.S.C. § 1983. This court has jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's dismissal of Carlisle's action. Schlegal v. Bebout, 831, 885 (9th Cir. 1987). We affirm.

BACKGROUND

On January 21, 1986, Carlisle was arraigned before Judge Shelton for alleged violations of Cal.Veh.Code Sec. 23152(a) (b). Carlisle requested that Mr. Guerrero, a lay person, be allowed to assist him in his representation. Judge Shelton denied the request on the ground that Guerrero was not licensed to practice law in California. The judge also denied a motion to have the jury decide questions of law as well as fact. Carlisle repeated his request in separate proceedings before Judges Kozloski and Miller, who denied the requests.

After his conviction, Carlisle filed this action in federal district court alleging that the judges had violated his constitutional rights by refusing to allow Mr. Guerrero to represent him and by refusing his request that the jury decide the law applicable to his case.

ANALYSIS

Right to counsel

There is no right to representation by a lay person. The sixth amendment guarantees a defendant the right to self-representation or representation by an attorney. U.S. v. Hoffman, 733 F.2d 596, 599 (9th Cir. 1984); cert. denied, 469 U.S. 1039 (1984); U.S. v. Wright, 568 F.2d 142, 143 (9th Cir. 1978). Carlisle's attempt to classify Mr. Guerrero as something other than counsel does not alter the representative function which Carlisle sought to have Mr. Guerrero perform. Therefore, the judge's denial of Carlisle's requests did not violate his sixth amendment rights.

Judicial Immunity

Judges are absolutely immune from liability for acts performed in their judicial capacities so long as (1) they did not act in "clear absence of all jurisdiction," and (2) the acts were of the type "normally performed by a judge." Stump v. Sparkman, 435 U.S. 349, 356, 360 (1978); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc).

Carlisle admits that the alleged section 1983 violations occurred while the judges were acting in their judicial capacities. Presiding over arraignment, pretrial, trial, and sentencing proceedings are the type of functions normally performed by a judge. See Stump, 435 U.S. at 361-62. Moreover, the judges did not exceed the scope of their subject matter jurisdiction in presiding over the state court proceedings. See Cal. Veh. Code Secs. 40302, 40303 (1987 Supp.).

Therefore, because the judges were acting within their jurisdiction and were performing functions which are normally performed by a judge, all four judges are entitled to absolute judicial immunity from Carlisle's section 1983 claims. See Ashelman, 793 F.2d at 1078.

Municipal Liability

To prevail against the County, Carlisle must show that he suffered a constitutional injury due to the execution of one or more of the County's policies or customs. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 (1978). Carlisle has failed to allege any facts showing that the judges' actions were undertaken to effect County policy or custom. Accordingly, the district court did not err in finding that the County was absolutely immune from liability for the actions of the judges.¹  Monell 436 U.S. at 694.

Right to Jury Trial

The trial court did not violate Carlisle's seventh amendment rights by refusing to allow the jury to decide questions of law. A jury's role is to decide the facts of the case and apply them to the law as determined and given to the jury by the court. See Sparf v. United States, 156 U.S. 51, 102 (1895); United States v. Simpson, 460 F.2d 515, 519 (9th Cir. 1972).

Default

Rule 55 of the Federal Rules of Civil Procedure requires the district court to enter default judgment in favor of the complainant when the defendant has "failed to plead or otherwise defend as provided by these rules". Fed. R. Civ. P. Rule 55. Here, however, Carlisle failed to comply with service of process as required under Rule 4(c).²  Therefore, under Fed. R. Civ. P. 12(a), the defendants were under no obligation to answer Carlisle's complaint. Accordingly, because Rule 55 only applies when a defendant fails to answer "as required," and because the defendants in this case were not required to answer Carlisle's complaint, the district court did not abuse its discretion in denying Carlisle's default motions. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986).

The district court order of dismissal is affirmed.

AFFIRMED.