Unpublished Disposition, 862 F.2d 875 (9th Cir. 1984)

MEMORANDUM^** 

Edward Diamontiney, a California prisoner, appeals pro se the district court's dismissal of his action under 42 U.S.C. §§ 1983 and 1985(3) against various state court judges, prosecutors and public defenders, a private attorney, and an investigator in the public defender's office ("defendants"). Diamontiney contends the district court (1) erred in holding that his complaint failed to state a claim against all but two of the defendants, (2) erred in holding that his only remedy against the remaining two defendants was through a petition of habeas corpus under 28 U.S.C. § 2254, and (3) abused its discretion in failing to rule on pending discovery motions before dismissing the action. We affirm.

FACTS

Diamontiney filed his initial complaint on January 31, 1984. This rather conclusory complaint alleged that the defendants deprived and conspired to deprive Diamontiney of his rights under the Sixth, Eighth, Thirteenth and Fourteenth Amendments, thereby violating Secs. 1983 and 1985(3). The district court dismissed the complaint for failure to include a short and plain statement of the claims, as required by Fed. R. Civ. P. 8(a). Diamontiney was given 30 days to amend his complaint. The court instructed him that his complaint should allege "what the defendants conspired to do," and "how this resulted in the violation of plaintiff's constitutional rights." The court also advised Diamontiney of legal immunities which could apply so as to bar his action against most of the defendants.

Diamontiney's first amended complaint was filed March 12, 1984. This time, he alleged that the defendants conspired to deny him a fair trial on racial grounds.¹  In support of this allegation, he offered (1) a trial judges's denial of his motions requesting that the Public Defenders Office withdraw, that he have new counsel appointed, and for a new trial; and (2) a state appellate court's acceptance of his appellate counsel's brief over Diamontiney's objection and refusal to allow him to represent himself. The district court again dismissed for failure to comply with Rule 8(a), with leave to amend. The court instructed Diamontiney that he should "allege ... exactly how and when each violation occurred, and which defendants were responsible for each violation." In addition, the court instructed him that, to plead a conspiracy, he must allege facts suggesting that the defendants had an agreement or "meeting of the minds" to violate his rights.

Diamontiney's second amended complaint alleged that the public defender defendant Michael Bigelow had made a statement "that in his opinion, plaintiff was guilty."²  It also alleged that Bigelow made a further statement that "he (Michael Bigelow) would personally see to it that (Diamontiney) would never be represented in the best of his interest by the Sacramento Public Defenders Office." Although the complaint suggests that Diamontiney viewed these statements as the root of a conspiracy against him, centered in the Sacramento Public Defenders Office, it does not allege acts in furtherance of the conspiracy. The court again dismissed the complaint with leave to amend "one more time," advising Diamontiney to "specifically allege what actions each defendant took and how these actions resulted in the deprivation of a specific constitutional right."

Diamontiney's third amended complaint attributed the same statements to defendant Bigelow, adding that the first, concerning Diamontiney's guilt, was made to Diamontiney's wife. It alleged that she in turn complained to supervisory Public Defenders Kenneth Wells and Ferris Salami (also named as defendants) about Bigelow's "unprofessional attitude" and that Wells and Salami "refused to reprimand Bigelow." The second statement, amounting to a threat of poor representation, was also made to Diamontiney's wife. The complaint alleges that these statements, and the failure of the Public Defenders Office to discipline Bigelow, "fed an inherent racism in that office."

In support of this claim, the third amended complaint alleges conduct by various specific individuals that we summarize here: Public defender defendant June Scoggins was appointed to represent Diamontiney after his arrest for driving under the influence of alcohol or drugs.³  Diamontiney's vehicle was apparently involved in an accident, which he claimed was the direct result of mechanical failure. He requested Scoggins to have an investigator check the vehicle while it was impounded, to support his defense. Scoggins did not comply with this request. Charges were subsequently dismissed for insufficient evidence, and the vehicle was ordered destroyed. Diamontiney subsequently was charged again for the same offense. Scoggins "refused" to present motions challenging Diamontiney's rearrest on the same charge after crucial evidence was destroyed. (Third Amended Complaint, p 12(1)).

Public defender defendant Jess Rivera was appointed to represent Diamontiney after Scoggins took maternity leave. Rivera refused to subpoena Scoggins to prove that Diamontiney requested an investigation of his vehicle for mechanical failures, and refused to challenge the refiling of charges. (Third Amended Complaint, p 12(2)).

Public defender defendant Albert Tamayo was appointed to represent Diamontiney after his arrest for violating Cal.Penal Code Sec. 211 (robbery). Tamayo refused to move for a severance of Diamontiney's trial from that of his co-defendant. Public defender defendants Kathy Bell and Ken Malavos failed to pass on notes from Diamontiney to Tamayo which were intended to help Tamayo with his defense. Tamayo refused to call witnesses who could exonerate Diamontiney. (Third Amended Complaint, p 12(3)).

Defendant Judge Tochterman denied two motions to have Diamontiney's counsel at the Sec. 211 trial excused from the case. (Third Amended Complaint, p 12(3)). The motion was renewed before defendant Judge Fields, who was willing to excuse the attorney and allow Diamontiney to present his own defense, but unwilling to grant Diamontiney a continuance to allow him time to prepare. (Id.)

Finally, defendant Larry Greer, an investigator employed by the Sacramento Public Defenders Office, failed to locate key witnesses who could allegedly have exonerated Diamontiney. (Third Amended Complaint, p 22).

The district court ordered that this complaint be served on the defendants. The defendants moved to dismiss the action under Fed. R. Civ. P. 12(b) (6). A federal magistrate recommended that the motion be granted and that the action be dismissed with prejudice. The district court adopted the magistrate's recommendations. This appeal followed.

ANALYSIS

This court reviews de novo dismissals for failure to state a claim. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). When considering a motion to dismiss an action on the pleadings, the court must accept as true the complaint's allegations and must construe the complaint in the light most favorable to the plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The court may grant a motion to dismiss only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. The Federal Rules of Civil Procedure embrace a flexible pleading policy. The essential requirement of a complaint is that it give the defendant "fair notice of what the claim is and the ground upon which it rests." Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977); see also Lynn v. Sheet Metal Workers' Int'l Ass'n, 804 F.2d 1472, 1482 (9th Cir. 1986). Complaints of plaintiffs appearing pro se are judged by a less stringent standard than pleadings drafted by trained attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972); Klingele v. Eikenberry, 849 F.2d 409, 413 (9th Cir. 1988).

To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege (1) a conspiracy, (2) a class-based discriminatory animus, (3) one or more acts by the alleged conspirators in furtherance of the conspiracy, and (4) a personal injury or deprivation of a right or privilege guaranteed to citizens of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971).

Diamontiney alleges as actions in furtherance of the conspiracy only that members of the Public Defenders Office failed to take certain actions that he felt were necessary to his defense. Discretionary decisions of public defenders acting within the scope of their duties generally will not support the inference of conspiracy. See Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983) (bank's breach of duty to depositor, even if proven, is insufficient to prove participation in conspiracy). The district court gave Diamontiney ample opportunity to amend his complaint so as to include facts supporting the inference of conspiracy. He has failed to meet this requirement. The district court's dismissal of the Sec. 1985(3) claims must, therefore, be affirmed.

A Sec. 1983 claim must include allegations that the defendants acted under color of state law and deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981). A private individual is ordinarily not subject to suit under this section, unless engaged in a conspiracy with public officials. Tower v. Glover, 467 U.S. 914, 920 (1984). The public defenders, their investigator, and the private attorney are private individuals for purposes of Sec. 1983.⁴  Thus, a Sec. 1983 claim would lie against only those of the private defendants who conspired with the state judges.

The complaint fails to allege acts in furtherance of the conspiracy by any of the state judges. The complaint alleges that Judges Mering and Warren "render [ed] adverse opinions against the plaintiff in motions submitted before the court," and that Judges Tochterman and Fields denied motions to excuse counsel and to grant a continuance in order to allow Diamontiney to prepare his own defense. These latter rulings may have contributed to a violation of Diamontiney's Sixth Amendment right to select counsel of his own choice, see Terry v. Enomoto, 723 F.2d 697, 700 (9th Cir. 1984), and to represent himself. See Faretta v. California, 422 U.S. 806, 821 (1975).

However, it is not enough that a judge's rulings be arguably unconstitutional to support an allegation of conspiracy. Such an allegation must be supported by specific allegations of conspiratorial actions, apart from the judge's rulings on motions. See Schucker v. Rockwood, 846 F.2d 1202, 1205 (9th Cir. 1988). These allegations are insufficient to withstand a motion to dismiss. "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

Since the third amended complaint fails to allege a conspiracy among the state judges and any other of the defendants, there can be no Sec. 1983 claim against any of the private defendants.

The complaint is nevertheless facially adequate to plead a Sec. 1983 claim against Judges Tochterman and Fields, since it alleges actions by these two judges which might have violated Diamontiney's Sixth Amendment rights. However, the claim against these two defendants is barred by the availability of habeas corpus relief.

II The Effect of the Availability of Habeas Corpus Relief on

the Sec. 1983 Claim Against Judges Tochterman and

Fields

Judges are immune from damages under Secs. 1983 and 1985(3) for conduct within the scope of their duties. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). This immunity extends even to intentional misconduct. Judges are not, however, immune from actions for injunctive or declaratory relief. See Mullis v. Bankruptcy Court, 828 F.2d 1385, 1391 (9th Cir. 1987), cert. denied, 108 S. Ct., 2031 (1988). Diamontiney has requested only declaratory and injunctive relief against the state judge defendants.

The district court held that Diamontiney's sole remedy for the alleged Sixth Amendment violations is through a petition for habeas corpus relief. In Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675 (9th Cir. 1984), this court held that declaratory relief under Sec. 1983 cannot be granted where the effect of such a judgment would be to void collaterally the prisoner's state court conviction. Id. at 682. See also Preiser v. Rodriguez, 411 U.S. 475, 490 (1973) (state prisoners attacking the validity of the fact or length of their confinement limited to actions for habeas corpus relief). A declaratory judgment that Diamontiney's right to counsel was violated would require the reversal of his conviction. Terry v. Enomoto, 723 F.2d 697, 700 (9th Cir. 1984). Therefore, Diamontiney may not seek declaratory relief against any defendant in this action before exhausting his state remedies. Ybarra, 723 F.2d at 681. This he has not done.⁵ 

Diamontiney argues that his Sec. 1983 claims should be allowed to proceed because he is barred from pursuing his Sixth Amendment claims by the doctrine of Wainwright v. Sykes, 433 U.S. 72 (1977). This argument is unpersuasive.

Wainwright held that habeas petitioners are barred from raising claims that they procedurally waived during trial. 433 U.S. at 86-87. Diamontiney has not indicated that he waived at trial the issues he is attempting to assert in this action. Even if Diamontiney did waive these issues, he cannot avoid the Wainwright doctrine by bringing his claims under Sec. 1983 or Sec. 1985(3). To hold otherwise would be to negate Wainwright by means of a procedural bypass.

Although Ybarra requires the court to dismiss Diamontiney's requests for declaratory relief, the district court could retain his claims for injunctive relief if not otherwise barred. 733 F.2d at 682. The complaint seeks an injunction ordering all defendants to refrain from violating the rights of Native American litigants in Sacramento County courts. Construed literally, the court could not grant such relief, because Diamontiney lacks standing to raise claims on behalf of other litigants outside the context of a class action. Even if the complaint is liberally construed to seek only a protection of Diamontiney's own rights, the relief requested cannot be granted under Los Angeles v. Lyons, 461 U.S. 95 (1983). There is no showing that any criminal charges are currently pending against Diamontiney in Sacramento County, nor that any of the named judges is assigned to a civil action to which Diamotiney is a party.⁶ 

Diamontiney contends the district court abused its discretion by refusing to grant his pending discovery motions before dismissing the action. The district court was correct in reasoning that, because a ruling granting defendants' motion to dismiss would render the discovery motions moot, the latter need not be considered first. See SEC v. Seaboard Corp., 677 F.2d 1315, 1317 (9th Cir. 1982). Having affirmed the dismissal of Diamontiney's complaint, we also affirm the denial of the pending discovery motions.

"Dismissal of a pro se complaint without leave to amend is proper only if it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Schucker v. Rockwood, 846 F.2d 1202, 1203-04. (9th Cir. 1988) (citations omitted). Diamontiney has been given four opportunities to amend his complaint so as to state a claim, each time without success. The district court has given him ample instruction in the pleading requirements of Secs. 1983 and 1985(3). Dismissal without leave to amend was proper.

CONCLUSION

Diamontiney's third amended complaint fails to state a claim under Sec. 1985(3) because it fails sufficiently to allege a conspiracy on the part of any of the defendants. The complaint fails to state a claim under Sec. 1983 against the private defendants because it fails to allege facts which could support the inference of a conspiracy between them and the state court judges. The Sec. 1983 claim against the state court judges is barred by the availability of habeas corpus relief. The district court correctly refused to consider Diamontiney's pending discovery motions before consideration of defendants' motion to dismiss. Dismissal of the third amended complaint without leave to amend was proper.

AFFIRMED.