Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1096 (9th Cir. 1989)

Brian Patrick Spenser PERCEVAL, Plaintiff-Appellant,v.Lori ZAJAC, Defendant-Appellee.

No. 88-15395.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 23, 1989.* Decided Nov. 17, 1989.

Before ALARCON, O'SCANNLAIN and LEAVY, Circuit Judges.



Brian Patrick Spenser Perceval ("Perceval") appeals the dismissal of his civil rights action for damages, and declaratory and injunctive relief against Lori Zajac ("Zajac"), a deputy clerk for the United States District Court of Nevada. Perceval alleges that his constitutional rights were violated due to Zajac's failure to give him notice of an evidentiary hearing set in his 28 U.S.C. § 2255 habeas corpus action. The district court granted Zajac's motion to dismiss due to the improper service of Zajac by Perceval, and for the "additional and more compelling reason" that Zajac's actions are entitled to absolute quasi-judicial immunity pursuant to Mullis v. United States Bankruptcy Court, Dist. of Nevada, 828 F.2d 1385 (9th Cir. 1987), cert. denied, 108 S. Ct. 2031 (1988). We affirm.


A dismissal under Rule 12(b) (6) is subject to de novo review. Id. at 1388. In reviewing such a dismissal, it must appear to a certainty that the plaintiff would not be entitled to any relief under any set of facts that could be proved. Id.

In Mullis, this court held that federal " [c]ourt clerks have absolute quasi-judicial immunity from damages for civil rights violations when they perform tasks that are an integral part of the judicial process." Id. at 1390. The amended complaint alleges that Zajac failed to notify Perceval of an order setting a hearing date and later misrepresented by letter that no orders had been issued regarding his section 2255 motion. Viewing these allegations as true, both acts are properly characterized as "integral parts of the judicial process," and not acts done "in the clear absence of all jurisdiction." Id. Accordingly, Zajac is absolutely immune from Perceval's action for damages.

Perceval's action for declaratory and injunctive relief is likewise barred by Mullis, which held that the quasi-judicial immunity available to certain federal officers extends to actions for declaratory, injunctive, and other requitable relief. " [W]hen a person who is alleged to have caused a deprivation of constitutional rights while acting under color of federal law can successfully assert judicial or quasi-judicial immunity from damages, that immunity also will bar declaratory and injunctive relief." Id. at 1394. Accordingly, the district court properly dismissed Perceval's civil rights action due to the absolute, quasi-judicial immunity enjoyed by Zajac.1 



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a) and 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 Circuit Rule 36-3


Because we find that Zajac is completely protected by quasi-judicial immunity, we do not address the alternative basis for dismissal, improper service of process