Unpublished Disposition, 860 F.2d 1089 (9th Cir. 1988)

MEMORANDUM^** 

Curtis J. Pettes ("Pettes"), a Nevada state prisoner, appeals pro se and in forma pauperis the dismissal of his 42 U.S.C. § 1983 action against three Nevada state officials. Pettes contends that the officials conspired to deprive him of his right to a speedy trial for criminal charges pending against him. We affirm.

In November, 1985, Pettes' trial on various state charges was continued on the condition that Pettes would be released on his own recognizance. The state later dismissed the charges. On May 5, 1987, Pettes filed a civil rights complaint against the judge who granted the continuance, the public defender who represented Pettes, and the prosecuting attorney. Pettes's complaint alleged that the defendants violated his right to a speedy trial because a continuance was granted to which he did not consent.

On June 15, 1987, the district court granted the public defender's motion to dismiss Pettes's complaint under Fed. R. Civ. P. 12(b) (6) for failure to state a claim upon which relief may be granted. The court also dismissed sua sponte Pettes' other claims as frivolous under 28 U.S.C. § 1915(d). Pettes timely appealed both orders.¹ 

Pettes's contentions that the judge, prosecutor, and public defender are liable for damages under 42 U.S.C. § 1983 as participants in an alleged conspiracy to deprive him of his sixth amendment right to a speedy trial are wholly without merit. Pettes complaint consists entirely of conclusory allegations that these parties conspired to continue his trial. Although pro se pleadings must be liberally construed, these conclusory allegations are not sufficient to sustain a section 1983 action. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (" [v]ague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss."); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (complaint must allege facts sufficient to support a conspiracy). Moreover, even if they were, all of the parties are immune for their participation in obtaining the continuance.

"Judges are immune from damage actions for judicial acts taken within the jurisdiction of their courts." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). Pettes's only claims against the judge apparently concerned the judge's role in continuing the trial. Continuing a trial is a function which a judge normally performs in his official capacity. See Stump v. Sparkman, 435 U.S. 349, 362 (1978) (judge immune when performing act normally done only by judges and doing so while acting in judicial capacity.). The judge was thus entitled to immunity from Pettes's section 1983 damages claim.

Prosecutors are also immune from section 1983 liability for acts taken within the scope of their authority. Imbler v. Pachtman, 424 U.S. 409, 424-31 (1975); Ashelman, 793 F.2d at 1075-76. Immunity extends to a prosecutor's actions in initiating and presenting the state's case. Imbler, 424 U.S. at 431. The duties of a prosecutor may involve actions apart from the courtroom and actions preliminary to the initiation of a prosecution. Id. at 431, n. 33. Pettes only alleges that the prosecutor agreed to a continuance of Pettes's trial. This action is within the scope of prosecutorial authority. See id. at 430-31. Thus, the prosecutor also was immune from Pettes's claims.

In addition, Pettes only allegation against the public defender was that the attorney had also agreed to a continuance. To state a claim under section 1983, a plaintiff must show, inter alia, that a defendant acted under the color of state law. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert. denied, 107 S. Ct. 928 (1987). A public defender does not act under color of state law when performing the traditional functions of a lawyer as counsel to a defendant in a criminal proceeding. Polk County v. Dodson, 454 U.S. 312, 325 (1981), holding limited on other grounds by West v. Atkins, 56 U.S.L.W. 4664, 4667 (June 20, 1988).

Pettes argues that the public defender was liable for conspiring with state officials regarding the continuance. " [A]n otherwise private person acts 'under color of' state law when engaged in a conspiracy with state officials to deprive another of federal rights." Tower v. Glover, 467 U.S. 914, 920 (1984) (citing Dennis v. Sparks, 449 U.S. 24, 27-28 (1980)). Since, however, Pettes only makes vague and conclusory allegations of the public defender's participation in the alleged conspiracy, Pettes's section 1983 claim against the attorney was insufficient to withstand a motion to dismiss. See Ivey, 673 F.2d at 268.

Pettes's contention that the district court should not have dismissed his action because it could have been brought under 42 U.S.C. § 1985 also lacks merit.²  Pettes merely contends that his claims are actionable under this section because the named defendants conspired against him. However, an allegation of class-based animus is an essential requirement of a claim under 42 U.S.C. § 1985(2). Bretz v. Kelman, 773 F.2d 1026, 1029 (9th Cir. 1985). Pettes fails to allege facts showing that the defendants' conduct was motivated by such a discriminatory animus, but instead merely alleges legal conclusions. Such legal conclusions are grounds for dismissal as frivolous under 28 U.S.C. § 1915(d). See Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). Thus, even construing his claims liberally, Pettes fails to state a claim under section 1985.

Moreover, once charges are dropped the Speedy Trial Clause is no longer applicable. United States v. McDonald, 456 U.S. 1, 7 (1982). Any allegation of undue delay before charges are filed or after they are dismissed must be scrutinized under the Due Process Clause. Id. Since the state dismissed the charges against Pettes--and since he has not shown that the "delay" in his trial resulted in any actual prejudice to him--he has no claim based on delay. See Arnold v. McCarthy, 566 F.2d 1377, 1383 (9th Cir. 1978) (in due process test for impermissible delay, court must compare the gravity of the actual prejudice shown with reasons for delay). Pettes claims thus fail.

Since it is absolutely clear that Pettes could not amend his complaint to cure the deficiencies, the district court correctly dismissed the complaint before [without] allowing Pettes to amend it. See Tripati v. First National Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987) (pro se plaintiff proceeding in forma pauperis must be given the opportunity to amend unless it is absolutely clear that the complaint's deficiencies cannot be cured by amendment). The decision of the district court is therefore AFFIRMED.