Unpublished Disposition, 927 F.2d 608 (9th Cir. 1990)

MEMORANDUM^** 

John Robert Demos, Jr. appeals the district court's dismissal of his habeas corpus petition and three separate civil rights complaints. He argues that the district judge misapplied the law, exceeded his jurisdiction, and denied his constitutional rights by dismissing his petitions as frivolous.

We affirm.

BACKGROUND FACTS

John Robert Demos is a Washington state prisoner. In 1989, Demos filed a petition for a writ of habeas corpus, naming a prison warden as defendant. Demos also filed three civil rights complaints under 42 U.S.C. § 1983. One was against a federal district court judge, another against a prison superintendent, and another against the governor of Washington.

On November 29, 1989, the district court dismissed all four actions. The judge wrote separate orders for each action and set forth his reasons for dismissal. Demos filed a "Motion for Certificate of Probable Cause" on December 18, 1989. We construed this as a notice of appeal in an order filed January 18, 1990.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the district court's denial of Demos' habeas corpus petition de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989). The decision to deny an evidentiary hearing is reviewed for abuse of discretion. United States v. Watts, 841 F.2d 275, 277 (9th Cir. 1988).

We review de novo the district court's denial of Demos' civil rights actions. Wood v. Ostrander, 879 F.2d 583, 591 (9th Cir. 1989).

DISCUSSION

In 1982, federal district judge Robert McNichols dismissed seventeen section 1983 complaints and three habeas corpus petitions filed by Demos. At that time, Demos had filed 184 separate actions in that court. See Demos v. Kincheloe, 563 F. Supp. 30, 31 (E.D. Wash. 1982).

In the present habeas corpus petition, Demos objects to Judge McNichols' order, saying he was denied access to the courts. The district court correctly pointed out that this purportedly collateral attack is really just a thinly disguised direct appeal from a judgment. Therefore, habeas corpus is an improper vehicle.

Furthermore, Demos has alleged no facts which warrant an evidentiary hearing. We affirm the district court's dismissal without prejudice.

Demos filed three civil rights actions against Judge McNichols, seeking monetary damages for the distress and grief McNichols caused Demos in dismissing Demos' various claims. Demos also seeks impeachment of Judge McNichols for misconduct.

As stated in Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc), "Judges ... are absolutely immune from damage liability for acts performed in their official capacities." Moreover, government agents acting under authority of federal law rather than state law are beyond the scope of a Sec. 1983 action. See Wheeldin v. Wheeler, 373 U.S. 647, 650 n. 2, 83 S. Ct. 1441, 1444 n. 2, 10 L. Ed. 2d 605 (1963). The district court properly dismissed Demos' complaints against Judge McNichols with prejudice.

2. Against the Prison Superintendent and State Governor

In the remaining two civil rights complaints, Demos names only the current prison superintendent and the state governor. However, his vague and conclusory allegations of physical mistreatment and death threats are directed at individuals other than the named defendants. Therefore, under the standards set forth in Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982), the district court's dismissal without prejudice was proper.

AFFIRMED.