Unpublished Disposition, 940 F.2d 1533 (9th Cir. 1989)

MEMORANDUM^** 

Norman Chase appeals pro se the district court's order dismissing his civil rights action for injunctive and declaratory relief and monetary damages. Chase alleged violations of his civil and constitutional rights arising out of his state court criminal proceedings based on his arrest for drug crimes and utility theft. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

Chase was arrested for a marijuana growth operation found on his property in a barn that was illegally connected to an electricity station. Chase was represented in trial court by retained counsel and was subsequently convicted on drug charges and utility theft after trial by jury in Lane County, Oregon Circuit Court. Chase was sentenced to six months in jail and five years probation. Chase appealed his criminal conviction through the state courts and was ultimately incarcerated for probation violations. During the state appellate proceedings, counsel was appointed for Chase due to sudden indigency. The Oregon Court of Appeals eventually granted appointed counsel's motion for leave to withdraw due to conflicts with Chase over an alleged delay in ordering court transcripts. Chase requested the appointment of another attorney of his choice, but none was appointed in the Oregon Court of Appeals or the Oregon Supreme Court.

However, while Chase's case was pending in the Oregon Supreme Court, Chase filed a motion in federal district court for a temporary restraining order and a preliminary injunction against his state proceedings on the ground that he had been denied the right to counsel. On December 14, 1988, a hearing was scheduled before District Judge James M. Burns. Judge Burns continued the hearing, to be set at a later date in order to allow the parties to supply information as to the procedural posture of Chase's pending state action.

While his motions for injunctive relief were pending, Chase filed a complaint in the district court on October 11, 1988 seeking declaratory relief and damages arising from the denial of counsel in the state court proceedings. Specifically, Chase alleged that defendants Chief Justice Edwin J. Peterson of the Oregon Supreme Court, Chief Judge George M. Joseph of the Oregon Court of Appeals and Attorney General David B. Frohnmayer engaged in "invidious discrimination" by denying him the right to appointed counsel in State of Oregon v. Elaine Chase and Norman Keith Chase, Lane County Circuit Court No. 10-86-03551; Court of Appeals No. A44703 and Oregon Supreme Court No. S35523 and by denying other indigent criminal and civil litigants the same right. The Oregon Court of Appeals dismissed Case No. A44703 on August 31, 1988 due to Chase's failure to file an opening brief. The Oregon Supreme Court closed Case No. S35523 on September 27, 1988 after rejecting Chase's petition for review of the Court of Appeal's dismissal order.

On November 11, 1988, defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b) (1) and (6) for lack of jurisdiction and failure to state a claim. On May 25, 1989, defendants' motion was granted and Chase's action was dismissed. Consequently, Chase's pending motions for injunctive relief were denied as moot. Chase timely appeals.

Chase contends that the district court erred by dismissing his complaint for lack of jurisdiction and for failure to state a claim. This contention lacks merit.

To the extent that this suit is for monetary damages, it is barred because the Chief Justice of the Oregon Supreme Court, the Chief Justice of the Oregon Court of Appeals and the Oregon State Attorney General are absolutely immune. See Will v. Michigan, 491 U.S. 58 (1989); Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (immunity from liability for money damages for prosecutorial actions); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (judicial and prosecutorial immunity).

Chase can not obtain federal review of his state criminal conviction in the guise of a civil claim for injunctive or declaratory relief. Chase can not otherwise pursue his claims for injunctive and declaratory relief because they are moot. Chase's implicit assertion that he may again be subject to criminal proceedings without the appointment of counsel does not create the actual present case or controversy that must exist for injunctive relief to be entered. See Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (injunctive relief is only available if there is a real or immediate threat that the plaintiff will be wronged again). The fact that there may be ongoing criminal proceedings in which other defendants are represented by the Lane County public defender system is irrelevant here since Chase does not assert that he is a party to those actions. Dismissal was proper.

AFFIRMED.