Unpublished Disposition, 883 F.2d 1024 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1024 (9th Cir. 1987)

No. 87-6384.

United States Court of Appeals, Ninth Circuit.

Before LEAVY and TROTT, Circuit Judges, and BREWSTER* , District Judge.

MEMORANDUM** 

To recite fully the entire factual and legal setting in which this appeal arises would require an extremely lengthy decision, which in our judgment is not necessary. The parties no doubt are painfully aware of the lengthy multi-faceted dispute between them and the numerous lawsuits it has spawned; there is no need to remind them of all the terrain which they have traversed--although to us it is very noteworthy.

Suffice it to say for the purpose of this appeal that in a consolidated trial of numerous prior actions held before the Honorable Mariana R. Pfaelzer during July, 1985, the Greenes lost. This action was filed in the California Superior Court on April 21, 1987, against James L. Meeder, Armco Inc., and Brobeck, Phleger & Harrison. Others were identified in the caption of the Complaint as follows: "unnamed and unserved co-conspirators, Mariana R. Pfaelzer, other unnamed and unserved co-conspirators including judges of the U.S. Court of Appeals for the Ninth Circuit and Does 1-500, inclusive." The case was removed to the district court.

The plaintiffs allege in their complaint that one of the issues in the previous litigation was whether James L. Meeder had committed perjury in his testimony before the State Bar Court of the State Bar of California. In paragraph eleven of the complaint, the plaintiffs allege that

In order to cover up the aforementioned criminal act (perjury), and other unlawful acts of MEEDER, to wit, the submission of "information to the Equal Employment Opportunity Commission and violation of 42 U.S.C. § 2000(e) et seq., (sic) PFAELZER, BROBECK, MEEDER and ARMCO, (hereinafter collectively "the conspirators"), conspired to deny the plaintiffs a trial by jury, and the right to have certain issues determined by jury, and to deprive the plaintiffs of a fair trial before an impartial trier of fact."

ER 4.

In paragraph 7 of the complaint the plaintiffs further allege that

This action arises under the United States Constitution, particularly under the provisions of the 7th and 14th Amendments to the United States Constitution, under the California Constitution, particularly Article I, Secs. 7 and 16, and under the laws of the United States, particularly under Title 42, United States Code, Secs. 1983 and 1985.

ER 3.

Judge Pfaelzer, James L. Meeder, and the law firm of Brobeck, Phleger & Harrison, formed by Armco Inc., moved to dismiss. The court converted the motions to ones for summary judgment. The defendants contended in support of their motion for summary judgment that the Greenes' case was nothing more than a poorly disguised and vexatious attempt to relitigate issues that had already been decided adversely to them. In response, the Greenes admitted that some of the issues may have indeed been decided, but they pointed out that Judge Pfaelzer's motives had not been scrutinized in connection with the new allegation, i.e., that the trial was nothing more than the unlawful product of a conspiracy.

The district court granted the defendants' motions for summary judgment and dismissed as to the other persons listed in the caption. In granting defendants' motion for summary judgment, the district court determined that (1) Judge Pfaelzer was entitled to absolute immunity for acts performed in her judicial capacity; (2) the claims against Meeder, Brobeck, Phleger & Harrison, and Armco were barred by the doctrines of res judicata and collateral estoppel; and (3) the claims against the unnamed and unserved defendants were barred for failure to timely serve pursuant to Fed. R. Civ. P. 4(j). The Greenes timely appeal.

ANALYSIS

Initially, we note that while the complaint alleges violations and conspiracies to violate 42 U.S.C. §§ 1983 and 1985, it fails to state a claim under either because it does not allege that any of the defendants acted under color of state law or that their actions were motivated by any class-based animus. See Lonneker Farms, Inc. v. Klobucher, 804 F.2d 1096, 1097 (9th Cir. 1986). However, it does seem to us that this complaint states a claim under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), because one defendant, Judge Pfaelzer, was acting under color of federal law. Accordingly, we treat the complaint as made under Bivens. See Mullis v. U.S. Bankruptcy Court, 828 F.2d 1385, 1387 (9th Cir. 1987), cert. denied, 108 S. Ct. 2031 (1988).

We doubt that Judge Pfaelzer is a party to this action because of the way plaintiff Walter Greene Jr., a lawyer, has chosen to identify her in the caption; but we think she was prudent in making that assumption and responding. Judges sued under Bivens are absolutely immune from civil damage liability unless they act in absence of all jurisdiction or perform acts that are not judicial in nature. Lonneker, 804 F.2d at 1097. In their complaint, the Greenes concede that Judge Pfaelzer "was acting in her capacity" as a federal district judge at all times pertinent to their action. Judicial immunity thus clearly bars their conspiracy claim against her.

B. Dismissal of Defendants Meeder, Brobeck, Phleger & Harrison, and Armco

A Bivens action does not lie against a private person, but a valid Bivens action may be stated against private persons who are willful participants in joint action with the government or its agents. See Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1338 n. 17 (9th Cir. 1987). Under such circumstances, private parties may be liable even though the officials themselves are immune from civil liability. Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). Therefore, the Greenes have stated a claim against private actors Meeder, Brobeck, Phleger & Harrison, and Armco.

Although we agree with the district court that this lawsuit involves issues that have previously been finally decided, there is one issue that has never before been decided, and that is the alleged conspiracy to violate federal civil rights between these particular defendants and Judge Pfaelzer. Therefore, the district court, in relying only on the doctrines of res judicata and collateral estoppel, did not articulate a proper basis for granting the motion for summary judgment, since the conspiracy issue had not been previously litigated. It is on this ground that Francisco Enterprises, Inc., v. Kirby, 482 F.2d 481 (9th Cir. 1973), is distinguishable. Therefore, we are compelled to reverse and remand this case for further proceedings.

C. Dismissal of Unnamed and Unserved Defendants

Because the Greenes did not properly serve the remaining unnamed and unserved defendants, including the Judges of the United States Court of Appeals for the Ninth Circuit and Does 1-500, within 120 days after filing the complaint, the district court properly dismissed the action as to them pursuant to Fed. R. Civ. P. 4(j). See Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985).

Costs are allowed to Judge Pfaelzer against the Greenes; others are to bear their own costs.

AFFIRMED in part, REVERSED and REMANDED in part.

 *

The Honorable Rudi M. Brewster, United States District Judge for the Southern District of California, sitting by designation

 **

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 Circuit Rule 36-3

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