Unpublished Disposition, 867 F.2d 613 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 867 F.2d 613 (9th Cir. 1989)

Gary L. PEPPER, Plaintiff-Appellant,v.Maxine MILLER, Robert Calderone, Eugene Martin, TerryJackson, Ronald Bloxham, Michael Miller, and 1 to50 others who are or wish to becomeinvolved, Defendants-Appellees.

No. 87-2315.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 12, 1988* .Decided Jan. 26, 1989.

Howard D. McKibben, District Judge, Presiding.

Before FLETCHER, BEEZER, and O'SCANNLAIN, Circuit Judges.


Gary Pepper appeals pro se the district court's dismissal of his section 1983 action for failure to state a claim upon which relief can be granted. Pepper sued the Nevada chief probation officer, an assistant probation officer, the district attorney and three public defenders for conspiring to deny him a fair sentencing hearing by including false information about his background and prior criminal record in a presentence report. Dismissal for failure to state a claim is reviewed de novo. First Am. Title Ins. Co. v. United States, 848 F.2d 969, 970 (9th Cir. 1988). We affirm in part the district court's dismissal.

1. Probation Officers. Probation officers have absolute judicial immunity from damage suits under section 1983 arising from acts performed within the scope of their official duties. Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1986). Allegations of conspiracy do not pierce judicial immunity. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc).

The probation officers were clearly acting within the scope of their official duties. Nevada Revised Statute section 176.135 requires the Department of Probation to make a presentence investigation and report on each defendant who pleads guilty, while section 213.1096(8) directs assistant probation officers to make written reports required by the court. Training and supervising assistant probation officers is also statutorily placed within the scope of the chief probation officer's duties. Nev.Rev.Stat. Sec. 213.1095(6)-(10).

The probation officers were acting within the scope of their official duties and are entitled to judicial immunity. Pepper's claim was properly dismissed. See Demoran, 781 F.2d at 158.

2. District Attorney. Criminal prosecutors are also clothed with absolute immunity for quasi-judicial acts while acting within the scope of their official duties. McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987). Significantly, in McCarthy we ruled that allegations of conspiracy do not pierce the prosecutor's immunity. Id. at 1315.

The district attorney was clearly acting within the scope of his official duties. Sentencing is one stage of a criminal proceeding. See, e.g., Cunningham v. Nevada, 94 Nev. 128, 575 P.2d 936, 938 (1978). Representation of the state during a presentencing hearing before the court is well within the district attorney's mandate. See Nev.Rev.Stat. Secs. 252.080-.090.

Pepper's claim against the district attorney was properly dismissed.

3. Public Defenders. In Glover v. Tower we reluctantly concluded that public defenders were not clothed with qualified or absolute immunity. 700 F.2d 556, 559 (9th Cir. 1983), aff'd, 467 U.S. 914 (1984). Although a public defender "performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding" does not act under color of a state law, Polk County v. Dodson, 454 U.S. 312, 325 (1981), a public defender who conspires with state officials does, and may therefore be liable under section 1983, Glover, 467 U.S. at 923.

The district court dismissed Pepper's complaint against the public defenders for failure to state a claim upon which relief could be granted. This dismissal was premature. A pro se litigant whose action was dismissed for failure to state a claim upon which relief could be granted must be given leave to amend, unless it is absolutely clear that amendment could not cure the deficiency. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624-25 (9th Cir. 1988). In this case, as in Glover, 700 F.2d at 558 n. 1, it is not absolutely clear that Pepper cannot sufficiently amend his complaint. Therefore, we must remand this portion of the district court's order.

AFFIRMED in part, REVERSED in part and REMANDED.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3