Unpublished Disposition, 911 F.2d 740 (9th Cir. 1990)

MEMORANDUM^** 

Robert J. Wright appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 claim against Oregon State Court Judge Pierre Van Rysselberghe and his Sherman Act antitrust claims against the Oregon State Bar. We affirm.

DISCUSSION

Wright contends that judicial immunity does not protect Judge Van Rysselberghe from suit. Wright seems to base this claim on his assertion that he disqualified Judge Van Rysselberghe with an affidavit of prejudice.

"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). However, a judge lacks immunity if he or she acts in the clear absence of all jurisdiction or performs an act which is not judicial in nature. Id.

We conclude that Judge Van Rysselberghe retained his judicial immunity. Van Rysselberghe did not act "in the clear absence of jurisdiction"¹  because, for five reasons, Wright's affidavit of prejudice had no effect upon Van Rysselberghe's jurisdiction. First, under Oregon Revised Statute Sec. 14.260, a party who seeks to disqualify a judge must file a motion, not merely affidavit as Wright did. Second, section 14.260 permits filing of a motion only after an individual judge has been assigned, but Wright filed his motion before such assignment took place. Third, Oregon Revised Statute Sec. 14.270 allows Wright to challenge only two judges in a given case; however, Wright sought to disqualify all seven judges in the judicial district. Fourth, the presiding judge of the judicial district denied Wright's affidavit of prejudice. Wright has offered no reason on appeal why this denial was in error. Lastly, Wright challenged this denial with a writ of mandamus to the Oregon Supreme Court, which denied Wright's writ. Again, Wright fails to allege why the Oregon Supreme Court's denial constituted an error.

Wright contends that the Oregon State Bar violated section 1 and 2 of the Sherman Act by operating a monopoly,

Because "the Oregon State Bar is a public corporation and an instrumentality of the Judicial Department of the government of the State of Oregon," Or.Rev.Stat. Sec. 9.010, the state action exemption to the antitrust laws applies in this case. See Bates v. State Bar of Arizona, 433 U.S. 350, 359-363 (1977). The district court properly dismissed Wright's antitrust claims.

Wright seems to make several new arguments in his reply brief. We refuse to review these arguments which were not raised in the opening brief. See Guam v. Tedtaotao, 896 F.2d 371, 373 n. 3 (9th Cir. 1990).

AFFIRMED.