Unpublished Disposition, 925 F.2d 1469 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 925 F.2d 1469 (9th Cir. 1991)

Alfred BANKS, Plaintiff-Appellant,v.STATE OF CALIFORNIA, Defendant-Appellee.

No. 90-55800.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 20, 1991.* Decided Feb. 22, 1991.

Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.

MEMORANDUM** 

Alfred Banks appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action against the State of California. In the body of the complaint, he also named a San Diego municipal court judge. The district court dismissed the entire action under Fed. R. Civ. P. 12(b) (6) for failure to state a claim. We review de novo, Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987), and we affirm.

The district court did not err in dismissing the action. Under the eleventh amendment, the State of California is immune from suits brought in federal court regardless of the type of relief sought. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Bair v. Krug, 853 F.2d 672, 674-75 (9th Cir. 1988). In addition, the district court properly determined that the state judge was absolutely immune from section 1983 liability for damages. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). Moreover, to the extent that Banks's civil rights complaint requested the district court to review the state court's judgment, the district court lacked subject matter jurisdiction over the complaint. See MacKay v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987).1 

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

In the district court, Banks filed an untimely opposition to the government's motion to dismiss and attached a proposed amended complaint which restated his claim against the judge and included different causes of action against employees of the State Department of Labor. Because the opposition was untimely, the district court did not file it, but considered it to determine whether he could state a claim against the State and the judge. After determining that he could not, the district court informed him that he could file a new section 1983 action against the Department of Labor employees

Under Fed. R. Civ. P. 15(a), a plaintiff may amend his complaint once as a matter of course before a responsive pleading is served. A motion to dismiss is not considered a responsive pleading for purposes of Rule 15(a). Miles v. Department of Army, 881 F.2d 777, 781 (9th Cir. 1989). Here, because Banks did not file his amended complaint but merely attached it to his untimely opposition (which the district court did not file), the district court did not err in dismissing the action without prejudice to the filing of a new action against the Department of Labor employees.

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