Unpublished Disposition, 884 F.2d 582 (9th Cir. 1990)

MEMORANDUM

Massey appeals from the judgment dismissing his action brought pursuant to 42 U.S.C. §§ 1983 and 1985 requesting that Farmer, Frasier, and McConnell be enjoined from proceeding in the state action entitled State v. Massey and from interfering with his first amendment rights by "abusing legal process or malicious prosecution." He also sued all named defendants requesting they be enjoined from interfering with his private property claims, and seeking compensatory and punitive damages. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a). We have jurisdiction over Massey's timely appeal pursuant to 28 U.S.C. § 1291. We affirm in part, and reverse and remand in part.

Massey served his complaint only on Frasier, Thompson, and Josephine County. Thus, no other defendants were before the district court. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969). Massey moved for a temporary restraining order and an order to show cause against Frasier, Thompson, and Josephine County to enjoin the state trial. A motion to dismiss pursuant to Rule 12 was filed by Frasier and Thompson.

The district judge denied plaintiff's requested relief, granted the motion of Frasier and Thompson and then dismissed the action in its entirety.

We review independently the dismissal of an action for failure to state a claim under Fed. R. Civ. P. 12(b) (6). A district court may grant a Rule 12(b) (6) motion only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim. Civil rights complaints are to be liberally construed. Gobel v. Maricopa County, 867 F.2d 1201, 1203 (9th Cir. 1989) (Gobel), overruled in part on other grounds, City of Canton, Ohio v. Harris, 109 S. Ct. 1197, 1204 & nn. 6 & 8 (1989) (Harris) .

We affirm the Rule 12 order dismissing the action against Frasier and Thompson. Frasier and Thompson are protected by prosecutorial immunity. Immunity extends to a prosecutor who acts in a quasi-judicial capacity. Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986) (en banc) (Ashelman) . Absolute immunity applies where a prosecutor acts as an advocate in initiating a prosecution and presenting the state's case. Id. Massey's allegations that Frasier and Thompson are prosecuting him to further a conspiracy does not vitiate their immunity. A prosecutor's engaging in a conspiracy to predetermine the outcome of a judicial proceeding, despite being clearly improper, does not pierce his immunity. Id. at 1078.

Massey also alleges that the defendants instituted frivolous criminal proceedings against him with no expectation of conviction, knowing that the court lacked jurisdiction, in order to discourage his exercise of his right to free speech. But this prosecutorial activity, however motivated, falls within the category of absolutely immune behavior: conduct in which a prosecutor acts as an advocate in initiating a prosecution and presenting the state's case. Gobel, 867 F.2d at 1203; Ashelman, 793 F.2d at 1076. Massey does not allege that the defendants acted outside the scope of their authority as prosecutors. See Gobel, 867 F.2d at 1203 & n. 7; Ashelman, 793 F.2d at 1075-78. Therefore, the district court correctly dismissed Massey's action against Frasier and Thompson.

We need not reach the merits of Massey's challenge to the district court's refusal to enjoin defendants from proceeding in the state action entitled State v. Massey, case number 86-CR-266. That action has been concluded so this question is now moot.

Finally, we reverse the district court's dismissal of Massey's section 1983 action against Josephine County, which we construe as a dismissal under Rule 12(b) (6) for failure to state a claim. Frasier and Thompson's motion to dismiss under Rule 12 did not include Josephine County as a moving party. The district court included Josephine County in its sua sponte dismissal of the entire action. A section 1983 claim against a county or municipality must allege a custom or policy which has caused the plaintiff's constitutional deprivation. Monell v. New York City Department of Social Services, 436 U.S. 658, 694 (1978); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681 (9th Cir. 1984). "Respondeat superior or vicarious liability will not attach under Sec. 1983." Harris, 109 S. Ct. at 1203.

Massey's amended complaint alleges that Josephine County has a custom or policy of depriving him "of his rights to free speech, to petition the government for redress of grievances and to deprive [him] of his right to settle the public domain of the United States and to claim ownership to real property." Massey alleges a series of acts done "with the approval of and in concert with" Josephine County and its employees in furtherance of this custom or policy. These allegations are sufficient under section 1983 to prevent a Rule 12(b) (6) dismissal at this stage of the proceedings. We therefore reverse the dismissal of his section 1983 claim against Josephine County and remand for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.