Unpublished Disposition, 845 F.2d 329 (9th Cir. 1988)

MEMORANDUM^** 

John Francis Pearce, a Washington state prisoner, appeals pro se and in forma pauperis the dismissal of his 42 U.S.C. § 1983 action against various Clark County officials. Pearce contends that the officials conspired to cause his illegal arrest and conviction for statutory rape and taking indecent liberties with minors. This court has jurisdiction under 28 U.S.C. § 1291. We Affirm.

After pleading guilty to 28 counts of statutory rape, taking indecent liberties with a minor, and witness tampering, Pearce was sentenced to 30 years in Washington state prison. Pearce later filed this 42 U.S.C. § 1983 civil rights action against Clark County; Robert L. Harris, the Clark County Superior Judge who accepted Pearce's guilty plea; James Peters, the Clark County Assistant Prosecuting Attorney who prosecuted Pearce's case; Timothy Trevarthen, the Clark County Sheriff who applied for a warrant to search Pearce's house; and Pearce's defense attorneys Clifford Kuhn, Robert Yoseph, and Richard Saunders. Pearce sought damages and injunctive relief for alleged wrongs in connection with his arrest, jailing, trial procedures, and sentencing.

The district court granted summary judgment in favor of defendants Harris, Peters, and Trevarthen. In a separate order, the district court granted summary judgment in favor of defendants Kuhn and Saunders and granted defendant Yoseph's motion to dismiss for failure to state a claim.

This court reviews de novo a district court's grant of summary judgment, Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986), as well as a district court's dismissal of an action for failure to state a claim, Guillory v. County of Orange, 731 F.2d 1379, 1381 (9th Cir. 1984).

To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show: (1) the defendants acted under color of state law, and (2) the defendants deprived the plaintiff of a constitutional rights. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc), cert. denied, 106 S. Ct. 3333 (1986).

Both judges and prosecutors enjoy absolute immunity from civil damages liability for acts performed in their official capacities. See Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). Here, Pearce does not allege sufficient facts showing that either Judge Harris or Assistant Prosecutor Peters acted outside the scope of their official capacities. Accordingly, both officials are immune from any liability in this action.

Neither Pearce's privately-retained attorney nor his two court-appointed attorneys acted under color of state law for purposes of Pearce's civil rights action. See Polk County v. Dodson, 454 U.S. 312, 325 (1981); Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir. 1978). A defense attorney who conspires with state officials to deprive a client of his federal rights acts under color of state law and thus may be liable under section 1983. See Tower v. Glover, 467 U.S. 914, 923 (1984). Here, however, the evidence does not support Pearce's allegation that Yoseph, Kuhn, and Saunders conspired with the other defendants to conceal Pearce's unlawful arrest, obtain his illegal criminal conviction, steal his personal property, deprive him of a fair trial, or coerce him into pleading guilty. Therefore, the attorneys are not liable under section 1983.

In a previous state action, a Washington court upheld the validity of the search warrant that Deputy Trevarthen used to search Pearce's house. Because the Washington state courts would give preclusive effect to that judgment, see Malland v. Dept. of Retirement Sys., 103 Wash. 2d 484, 489, 694 P.2d 16, 21 (1985), and because Pearce had a full and fair opportunity to litigate his claim during the state proceedings, see Haring v. Prosise, 462 U.S. 306, 313 (1983), Pearce is collaterally estopped from challenging the warrant's legality, see Allen v. McCurry, 449 U.S. 90, 96 (1980). Consequently, Pearce cannot state a section 1983 claim against Trevarthen based on the deputy's use of the warrant.

Because the Federal Rules of Appellate Procedure do not provide for default judgments on appeal, we deny Pearce's motion for a default judgment against four of the appellees who failed to file a timely brief. See Fed. R. App. P. Rule 31(c).

Similarly, we deny the appellees' motion for leave to file a late brief because the appellees failed to comply with Ninth Circuit Rule 31-2.3(2) and because the brief would not assist the court in resolving this case.

The district court judgment is affirmed and the two pending motions are denied.