Unpublished Dispositionchester Salyer, Rita Salyer, Plaintiffs-appellants, v. Andrew J. Van Doren, Michael H. Cherry, Bessie Grove, Andothers, Defendants-appellees, 911 F.2d 733 (6th Cir. 1990)

Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and JARVIS, District Judge.^* 

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Chester and Rita Salyer appeal the summary judgment for the defendant state court judge and the Fed. R. Civ. P. 12(b) (6) dismissal with respect to the defendant attorney and state court litigant in this civil rights action filed under 42 U.S.C. § 1983. Upon consideration, we conclude that the district court's judgment was proper.

First, we note that this appeal is timely. Plaintiffs' "petition for rehearing" is properly treated as a Fed. R. Civ. P. 59(e) motion. See Smith v. Hudson, 600 F.2d 60, 62 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979). Plaintiffs' notice of appeal, filed within 30 days of the denial of the motion, is therefore timely. Fed. R. App. P. 4(a) (1).

Further, the district court properly accorded the defendant judge absolute immunity. See Dennis v. Sparks, 449 U.S. 24, 27 (1980). The remaining defendants did not act under color of state law in connection with the state court litigation at issue. See Dennis, 449 U.S. at 27-29.

Accordingly, the judgment of the district court is affirmed for the foregoing reasons and for the reasons stated by the district court in its opinion entered September 15, 1989. Rule 9(b) (5), Rules of the Sixth Circuit.