Unpublished Disposition, 855 F.2d 860 (9th Cir. 1988)

MEMORANDUM^** 

Attorney Rodney Klein filed a malpractice action in a California Superior Court against Donald Cannon, a chiropractor. Cannon sought to remove the case to federal court. The superior court held the removal to be defective and proceeded to a jury trial in the state court, and a judgment was rendered against Cannon. Following that judgment, Cannon moved in federal district court to have the state judgment set aside on the grounds that the state court had been divested of jurisdiction when the petition for removal was filed. The federal district court held that the jurisdiction of the federal court attaches as soon as the petition is filed, but that both the state and federal courts have jurisdiction until the removal process is completed, citing Berberian v. Gibney, 514 F.2d 790 (1st Cir. 1975) and 1A Moore p 0.168 at 509-11. The district court further held that the removal process had not been completed because the notice of filing of a bond had not been served on the defendants as required by statute. Thus, the district court held that the state court had not been divested of jurisdiction, denied the motion to set aside the state court judgment, and remanded the case to the state court. This decision of the federal district court was not appealed.

Thereupon, Cannon filed this action in federal district court seeking damages against the defendants for proceeding with the state court trial where there was no jurisdiction. Cannon had already litigated the issue of the state court jurisdiction before the federal district court in the proceeding just described and a final judgment had been rendered against him. He is precluded from raising that issue in this proceeding.

The district court in this action dismissed the complaint against all defendants. We affirm. Judges Fogerty and Tuttle are absolutely immune because the actions taken by them were judicial acts within their jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Schucker v. Rockwood, No. 86-2900, slip op. at 7748 (9th Cir. June 29, 1988). County Clerk Mitchell has absolute quasi-judicial immunity for the tasks he performed, which were an integral part of the judicial process. See Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir. 1987).

The allegations for the defendants' violation of Title 18 U.S.C. §§ 241 and 242 are meritless because these are criminal statutes that provide no basis for civil liability. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).

The claim against attorney Klein under 42 U.S.C. § 1983 is meritless because the allegations against him are merely that he participated in the state court litigation. In order to establish a claim under section 1983, a plaintiff must show that the defendant, acting under color of state law, deprived the plaintiff of rights secured by the Constitution or federal statutes. Aldabe, 616 F.2d at 1092. A privately retained attorney does not act under color of state law merely by participating in state court litigation. See Briley v. California, 564 F.2d 849, 855 (9th Cir. 1977).

The judgment dismissing Cannon's complaint is therefore AFFIRMED.