Unpublished Disposition, 921 F.2d 279 (9th Cir. 1990)

MEMORANDUM^** 

Richard A. Erickson, an Alaska State prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action. Erickson alleged that he had been deprived of his constitutional right to a fair trial when the trial judge and a juror discussed his case outside the courtroom, and because the judge revoked his bail. We affirm.

DISCUSSION

Erickson, in his complaint, contends that his right to a fair trial was violated when the trial judge in his state criminal proceeding, Karl S. Johnstone, and a juror, Thomas Salo, discussed his case outside the courtroom. Erickson also claims he was denied a fair trial because Judge Johnstone revoked his bail. Erickson seeks damages and a new trial.

The district court dismissed Erickson's complaint against the defendants on the grounds that the judge and juror were immune from liability. The district court also found that Erickson's request for a new trial must be treated as a habeas corpus action.

We agree. Judicial immunity precludes Erickson's section 1983 action against Judge Johnstone and juror Salo in this case.

Judges are absolutely immune from damages actions for judicial acts taken within the jurisdiction of their courts. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). Even grave procedural errors or acts in excess of judicial authority do not deprive a judge of this immunity. Stump v. Sparkman, 435 U.S. 349, 355-57 (1973). "As long as the judge's ultimate acts are judicial actions taken within the court's subject matter jurisdiction, immunity applies." Ashelman, 793 F.2d at 1078. A judge loses absolute immunity only when he or she acts in the clear absence of all jurisdiction or performs an act that is not judicial in nature. Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988).

In Ashelman, we held that a conspiracy between a judge and a prosecutor to predetermine the outcome of a judicial proceeding, while clearly improper, did not pierce the immunity extended to judges. Ashelman, 793 F.2d at 1078. This case is quite similar. Here, Erickson claims that by conferring with juror Salo, Judge Johnstone deprived Erickson of a fair trial. Judge Johnstone's ultimate acts, however, were judicial acts taken within the court's subject matter jurisdiction. As such, Judge Johnstone is immune from suit. Furthermore, Judge Johnstone's revocation of bail was clearly a judicial act for which judicial immunity applies. Stump, 435 U.S. at 355-57.

Similarly, we have previously held that a juror is immune from a civil action for damages arising out of a criminal prosecution. White v. Hegerhorst, 418 U.S. 894, 895 (9th Cir. 1969), cert. denied, 398 U.S. 912 (1970); see also Roberts v. Barbosa, 227 F. Supp. 20, 26 (S.D. Cal. 1964) ("If ever immunity should be granted, it should be granted to jurors."). Accordingly, we agree with the district court that juror Salo was immune from Erickson's action.

Finally, we affirm the district court's conclusion that Erickson's request for a new trial must properly stand as a habeas corpus action. " [W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment ... his sole federal remedy is a writ of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Here the district court concluded that although Erickson had not specifically asked for his release from custody, the request for a new trial based on alleged constitutional error in his first trial was tantamount to a request for a release. We agree. Erickson cannot seek the intervention of the federal courts until he has first sought and been denied relief in the state courts. 28 U.S.C. § 2254(b) (1988).

AFFIRMED.