Unpublished Disposition, 911 F.2d 740 (9th Cir. 1990)

MEMORANDUM^*** 

Jerry Wilson ("Wilson") appeals pro se the district court's order dismissing his 42 U.S.C. § 1983 action against two state court judges and his second court-appointed attorney based upon their actions after his criminal trial.

BACKGROUND FACTS

This action arises out of a state court criminal proceeding. Judge Herschel E. Crutchfield ("Crutchfield") presided over that proceeding. He appointed counsel to represent Wilson in the proceeding. Wilson was subsequently convicted.

Wilson filed a motion for a new trial and new counsel. The prosecution failed to oppose the motion and the court subsequently granted it. James M. Hackett ("Hackett") was appointed as Wilson's counsel for the new trial.

The prosecution then made a motion to reconsider the order granting the new trial. Judge Crutchfield granted the motion to reconsider and then recused himself from any further proceedings in the case.

Judge Kauvar was assigned to the case following Judge Crutchfield's recusal. Wilson then filed a motion to dismiss Hackett and represent himself. Hackett, in the interim, entered a peremptory challenge to Judge Kauvar, and the case was subsequently assigned to Judge Christopher E. Zimmerman ("Zimmerman"). Wilson then challenged the appointment of Judge Zimmerman, whom Wilson felt had a personal bias against him, but was informed that his peremptory challenge had been exhausted. Wilson made a motion for the court to reconsider its ruling that Wilson's peremptory challenge had been exhausted. Judge Zimmerman subsequently denied that motion along with Wilson's request to represent himself.

Wilson then filed a section 1983 complaint alleging that Hackett, Judge Crutchfield and Judge Zimmerman acted in concert to deprive him of his statutory and federal constitutional rights. The defendants answered with a motion to dismiss, which the district court subsequently granted. The court found that it lacked jurisdiction over Wilson's claims against Judges Crutchfield and Zimmerman and that the complaint failed to state a claim against Hackett. Wilson filed a timely appeal from the dismissal.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction to review Wilson's claims against Hackett pursuant to 28 U.S.C. § 1441(b). We have jurisdiction over Wilson's appeal pursuant to 28 U.S.C. § 1291.

We review de novo the existence of subject matter jurisdiction, Allah v. Superior Court of the State of California, 871 F.2d 887, 889 (9th Cir. 1989), and the dismissal of a complaint for failure to state claim. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 58 U.S.L.W. 3801, --- S. Ct. ----, 110 L. Ed. 2d 664 (1990).

DISCUSSION

The defendants claim and the district court found that the district court lacked subject matter jurisdiction to review Wilson's claims against the Judges because those claims, in essence, were simply an attack upon the state courts' actions.

It is well established that a federal court does not have appellate jurisdiction over a plaintiff's constitutional claim if the claim is limited to a challenge to the application of a particular rule or proceeding to the plaintiff. District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 1316, 75 L. Ed. 2d 206 (1983). In Feldman, the plaintiff filed a petition in the District of Columbia court requesting a waiver of the District's bar application rule which limited access to the bar examination to graduates of ABA-approved law schools. The court denied his petition. The plaintiff subsequently filed a section 1983 claim in federal court. The Supreme Court found that the federal court had subject matter jurisdiction to determine the constitutionality of the bar admission rule because the resolution of that claim did not require a review of the local court proceedings in which the rule was actually applied. However, it also held that it did not have subject matter jurisdiction to review the plaintiff's constitutional challenge to the bar rule as applied in the plaintiff's case, since the resolution of that claim would require a review of the local court proceeding over which the federal courts had no jurisdiction.

We applied the Feldman doctrine in Worldwide Church of God v. McNair, 805 F.2d 888, 892-93 (9th Cir. 1986). In Worldwide Church, the plaintiffs filed a section 1983 claim against the Superior Court after they lost an underlying state court defamation suit. They claimed that the statements which the jury found defamatory were absolutely protected by the First Amendment. We dismissed the claim for lack of subject matter jurisdiction because resolution of the plaintiffs' section 1983 claim would have necessitated a review of the state court proceedings in which the same statements were found to be defamatory. See also Allah, 871 F.2d at 890.

In this case, Wilson's section 1983 claim is merely an attack on several state court decisions. He claims that Judge Crutchfield's granting of the prosecution's motion to reconsider the court's grant of a new trial and his unexplained recusal of himself from the case, together with Judge Zimmerman's denial of Wilson's motion for reconsideration and denial of Wilson's motion to represent himself, somehow formed the basis of a conspiracy to deny Wilson the right to represent himself. However, Wilson does not allege in his papers that the judges had any corrupt or evil motive for their conduct in those proceedings. Instead, he merely asserts that they made the wrong decisions. The district court could not determine the validity of Wilson's conspiracy claim without examining the merits of each of the state court proceedings--something which it did not have jurisdiction to do.

There is not even a hint of a corruption claim anywhere in Wilson's papers. Therefore, we hold that the district court properly dismissed Wilson's claim against the judges for lack of subject matter jurisdiction.

It is clear that Hackett's actions, standing alone, were not actions under the color of state law. See Polk County v. Dodson, 454 U.S. 325, 102 S. Ct. 445, 450-51, 70 L. Ed. 2d 509 (1981). Therefore, any claim that Wilson may have regarding the exercise of the peremptory challenge is a private one.

However, a claim that a private individual acted in concert with a public official acting under color of state law to deprive an individual of his constitutional rights does bring the claim under color of state law. See Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 186-87, 66 L. Ed. 2d 185 (1980). In Dennis, the court held that the plaintiff had stated a cause of action against a private attorney who had conspired with a judge to deprive the plaintiff of his civil rights, notwithstanding the fact that the plaintiffs' claims against the judge had been dismissed on judicial immunity grounds.

Here, although Wilson did not claim that Hackett conspired with state officials to deprive Wilson of his constitutional rights in his initial complaint, he did make this allegation in his papers in opposition to the defendants' motion to dismiss.

However, in order for us to review the claim, we would have to review the Judges' actions in the state court proceedings, because, as we have already pointed out, those actions are all that Wilson relies upon to establish the existence of the conspiracy. We have no subject matter jurisdiction to make that review. Wilson, therefore, adds nothing to his claim by merely joining Hackett and asserting that Hackett should not have filed a peremptory challenge.

CONCLUSION

We hold that we do not have subject matter jurisdiction to review Wilson's claims against Judges Crutchfield and Zimmerman because that review would involve a review of state court proceedings that were not challenged at the state level. We do not have jurisdiction to review the conspiracy claim against Hackett for the same reason. Finally, the complaint fails to state a valid section 1983 claim against Hackett individually for his alleged improper exercise of a peremptory challenge since he was not acting under color of state law when he made that challenge.

AFFIRMED.