Unpublished Disposition, 880 F.2d 416 (9th Cir. 1989)

MEMORANDUM^*

Donald Gordon Sager filed the instant civil rights action against the arresting and booking officers, trial judge, prosecuting and defense attorneys, and court stenographer who were involved, in one way or another, with his arrest, trial, and conviction in state court on a charge of armed robbery. The district court entered judgment in favor of all defendants after granting their respective motions to dismiss or for summary judgment, and Sager now appeals. For the reasons set forth below, we affirm.

West

Sager's claims against Judge West are meritless. Judges are immune from liability for damages under the Civil Rights Act, even where conspiracies are alleged, so long as their "judicial actions [were] taken within the court's subject matter jurisdiction." Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc). None of the allegations against Judge West indicate that he acted outside the scope of his authority or jurisdiction as a trial judge. Accordingly, Sager's conclusory allegations state no claim for damages cognizable under the Civil Rights Act. See id.

Moreover, the United States Supreme Court's recent opinion, Will v. Michigan Dep't of State Police, 55 U.S.L.W. 4677 (U.S. June 5, 1989) reinforces our decision today. Will held that state officials acting within their official capacities are not persons within the meaning of 42 U.S.C. § 1983 and are thus not liable for money damages. 55. U.S.L.W. at 4680.

In Oregon, the judiciary operates on a state-wide level. See Or.Rev.Stat. Secs. 1.001-002 (1987). Oregon circuit judges are state officials. See, e.g., Or.Rev.Stat. Sec. 292.415 (1987) (salaries of elected state officials--judges). Will further emphasizes that Judge West cannot be held liable for damages for any alleged deprivation of appellant's civil rights while the judge acts in his official capacity.

Shepherd

With reference to Sager's claims against Shepherd, we note that prosecutors are absolutely immune from liability for damages for civil rights claims, including allegations of conspiracy, so long as they act within their authority and in a quasi-judicial capacity. Imbler v. Pachtman, 424 U.S. 409, 427 (1976); Ashelman, 793 F.2d at 1075, 1078. Here, Sager has neither alleged nor shown that Shepherd acted either outside his authority or in any capacity other than a quasi-judicial one. Accordingly, Shepherd was and is entitled to absolute immunity.¹  See id.

Mallow

Because the trial transcript allegedly contains an error concerning the timing of a recess, Sager concluded (and alleged) that the court reporter must have conspired with the judge and counsel to alter the transcript. This claim fails. A court reporter is a quasi-judicial officer entitled to derivative judicial immunity for acts performed in her official capacity. Stewart v. Minnick, 409 F.2d 826 (9th Cir. 1969) (per curiam). As it is uncontroverted that Mallow's acts were performed in her official capacity as a quasi-judicial officer, she is entitled to derivative judicial immunity. See id.

Furthermore, appellee Mallow may be a state official. See Or.Rev.Stat. Secs. 8.235, .340(2) (1987) (nonjudicial employes appointed by Chief Justice are state employes; official reporters to be appointed by the Chief Justice). To the extent the reporter had any liability for acts within her official capacity causing an alleged deprivation of appellant's civil rights, Will removes her liability for damages. 55 U.S.L.W. at 4680.

Aiken

With respect to Sager's allegations against his defense attorney, we note that a defense attorney is generally not deemed to act under color of state law for purposes of the Civil Rights Act while performing the functions of defense counsel, see Polk County v. Dodson, 454 U.S. 312, 320-22 (1981) (public defender); Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir. 1978) (retained counsel), unless she conspires with state officials to deprive a defendant of his federally protected rights. Tower v. Glover, 467 U.S. 914, 923 (1984) (public defender).

Here, Sager has alleged nothing more than that he disagrees with his counsel's decision not to call certain witnesses, and that the "conspiracy" regarding the allegedly altered trial transcript resulted in an error in the recorded time of a court recess. The first allegation involves a mere dispute over trial tactics, and the second proves nothing affecting Sager's civil rights. The district court did not err by concluding that the appellant had alleged nothing upon which a claim could be stated.

Alex, Salisbury, and Lumley

Sager's claims against the arresting and booking officers are that his arrest and subsequent detention were constitutionally impermissible because of an allegedly defective arrest warrant. In light of the fact that the warrant was issued by the court pursuant to an indictment and order signed by Judge Sloper, and return of the warrant was properly made by one of the arresting officers, Sager's claims against Alex, Salisbury, and Lumley are frivolous.

Injunction

With respect to the first part of his request for injunctive relief, Sager neither alleged nor showed that any harm had occurred, was likely to occur, or had even been threatened. As for the second part, the only practical way for the district court to afford the relief requested would have been to order Sager's release from custody. Under such circumstances, habeas corpus, and not the Civil Rights Act, provides the appropriate remedy. See, e.g., Toussaint v. McCarthy, 801 F.2d 1080, 1102 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) and Wolff v. McDonnell, 418 U.S. 539, 555 (1974)). Since habeas review requires exhaustion of state remedies, 28 U.S.C. § 2254(b), and it is undisputed that Sager did not do so here, the district court did not err by construing the request for an injunction as a disguised petition for a writ of habeas corpus and dismissing the claim for failure to exhaust. See Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 682 (9th Cir. 1984) (where Sec. 1983 action includes claim for relief available only under habeas corpus, court should construe claim as petition for writ and dismiss if state remedies unexhausted).

Frivolous Appeal

Pursuant to Ninth Circuit Rule 39-1.6, appellee Aiken has requested fees and double costs for this appeal under Fed. R. App. P. 38 and 28 U.S.C. § 1912. Such an award is justified where, as here, an appellee is forced to an appeal that is not only meritless but frivolous.

Appellee Aiken is therefore awarded fees and double costs for this appeal.² 

AFFIRMED.