Unpublished Disposition, 865 F.2d 1271 (9th Cir. 1989)

MEMORANDUM^** 

Michael J. Liska appeals the dismissal of his 42 U.S.C. § 1983 action arising out of an alleged conspiracy among his probation officer, the officer's supervisor and his public defender to submit a four-year-old court clinic evaluation to Liska's sentencing judge as part of his presentence report.

The probation officer and the officer's supervisor enjoy absolute immunity from Liska's action for damages arising out of their participation in the preparation of Liska's 1982 presentencing report, including the submission of the 1978 court clinic evaluation. See Demoran v. Witt, 781 F.2d 155, 157-58 (9th Cir. 1986).¹ 

Although Liska is correct in asserting that absolute immunity does not apply to claims for declaratory or injunctive relief, Pullman v. Allen, 466 U.S. 522, 541-42 (1984), this fact will not save Liska's case. Liska's sentencing proceeding is over. There is nothing that the defendants in this case can do to affect its outcome, nor is this proceeding under 42 U.S.C. § 1983 a proper one for attacking the terms of the sentence. Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973). Because there is no injunctive relief that the district court could now award against these defendants, the dismissal of the claim for that relief was proper.

Declaratory relief is a matter committed to the discretion of the district court in the first instance, and then to this court upon review. Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1112 (9th Cir. 1987). In light of the dismissal of Liska's damage claim on the ground of absolute immunity, and the unavailability of any injunctive relief, it was well within the discretion of the district court, as it is within ours on appeal, not to keep this litigation alive solely for the purpose of possible declaratory relief.

AFFIRMED.