Unpublished Disposition, 886 F.2d 1319 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 886 F.2d 1319 (9th Cir. 1989)

Kitaw EJIGU, Plaintiff-Appellant, VSv.David M. SCHACTER, Gutierrez, Johnson, Rabow, Gross, Countyof Los Angeles, Betty Rosenfeld, Jill Regal,Chaffee, Defendants-Appellees.

No. 87-6664.

United States Court of Appeals, Ninth Circuit.

Submitted April 21, 1989.* Decided Sept. 25, 1989.

Before GOODWIN, Chief Judge, POOLE and BRUNETTI, Circuit Judges.


Kitaw Ejigu appeals pro se the district court's order dismissing, on abstention grounds, his 42 U.S.C. §§ 1983 and 1985 civil rights action against state court judges, social workers, court personnel and attorneys who were involved in juvenile court proceedings which resulted in Ejigu's children being placed in the custody of his wife. The judgment is affirmed.

The district court dismissed the action because:

(1) the court lacked subject matter jurisdiction over some claims;

(2) judicial and quasi-prosecutorial immunity protected some named defendants;

(3) some of the claims did not allege acts under color of state law; and

(4) the remaining allegations failed to state a claim and required dismissal under Fed. R. Civ. P. 12(b) (6).

First, " [f]ederal district courts, as courts of original jurisdiction, may not serve as appellate tribunals to review errors allegedly committed by state courts." Mackay v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987). Where the plaintiff's claims are inextricably intertwined with the state court's decision, the district court does not have jurisdiction over those elements of the complaint. D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486-87 (1983). While federal courts have subject matter jurisdiction over those claims which are general challenges to a state statute or rule, a pleading must state a non-frivolous claim of a federal constitutional violation. Ejigu seeks review of a state court decision which held that a state court judge need not disqualify himself from the juvenile proceedings. Further, part of his complaint is inextricably intertwined with his state court juvenile action because (1) he seeks a determination that California Welfare and Institutions Code Sec. 300 "as applicable in the instant action, is unconstitutionally vague," and (2) that without proper notice, Judge Schacter modified the juvenile petition. All of these claims, if they had any merit, would be points to raise in state appellate proceedings. Accordingly, the district court lacked subject matter jurisdiction over these claims. See Feldman, 460 U.S. at 486-87; Mackay, 827 F.2d at 543.

Second, Judges Schacter and Gutierrez are entitled to absolute judicial immunity for the rulings they made in the course of carrying out their judicial functions. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). Referee Gross, as an officer of the court, is entitled to quasi-judicial immunity. Meyers v. Contra Costa County Dept. of Social Serv., 812 F.2d 1154, 1159 (9th Cir.), cert. denied, 108 S. Ct. 986 (1987). Social workers Chaffee and Rabow are entitled to absolute immunity in performing quasi-prosecutorial functions connected with the initiation and pursuit of child custody dependency hearings. Id. at 1157. Retained and court-appointed counsel enjoy immunity because they do not act under color of state law. See Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1345 (9th Cir. 1981), aff'd in part, rev'd in part on other grounds, Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984).

Third, Commissioner Johnson, Judge Schacter and attorney Regal may have used the power and prestige of their offices when they asked Ejigu to leave a meeting of the Juvenile Court Bar Association, but he left voluntarily and no federal constitutional right was violated. See Harris v. Harvey, 605 F.2d 330, 337 (7th Cir. 1979), cert. denied, 445 U.S. 938 (1980).

Fourth, Ejigu failed to state a claim against Los Angeles County or attorney Rosenfeld. Los Angeles County is not liable under section 1983 for negligently supervising Chaffee and Rabow. See Davidson v. Cannon, 474 U.S. 344, 347 (1986). A vague and conclusory allegation that a court-appointed attorney conspired with a state actor is not sufficient to state a claim under section 1983. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaints stating vague and conclusory allegations of participation in civil rights violations are subject to dismissal).

Finally, we deny the request for defense attorneys' fees pursuant to 42 U.S.C. § 1988 and Fed. R. App. P. 38 for bringing a frivolous appeal. The appeal, if brought by a lawyer, would be frivolous, but in this case ignorance may provide an excuse.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 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 9th Cir.R. 36-3