Unpublished Disposition, 890 F.2d 420 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 890 F.2d 420 (9th Cir. 1989)

Johnny PATTILLO, Plaintiff-Appellant,v.Earl WHITE; James W. Tyree, Defendants-Appellees.

No. 89-15032.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 6, 1989.* Decided Nov. 30, 1989.

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


MEMORANDUM** 

Johnny Pattillo ("Pattillo") appeals pro se the dismissal of his 42 U.S.C. § 1983 damage action against state court judge Earl White and James Tyree for failure to state a claim and judicial immunity. Pattillo alleges that Judge White and Tyree conspired to deny him due process in a bail proceeding by forcing the withdrawal of a letter of support submitted in his behalf. Judge White eventually denied Pattillo bail pending sentencing and appeal. We affirm.

Judges are immune from damage actions for judicial acts taken within the jurisdiction of their courts. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). Despite the alleged impropriety prior to the bail hearing, Judge White's ultimate act of denying Pattillo bail was within his subject matter jurisdiction. Therefore, he is immune from suit in this action. See id. at 1078.

Pattillo subsequently moved the Nevada Supreme Court for bail pending appeal of the judgment of conviction. The withdrawn letter was attached to his motion as an exhibit. In its order denying bail, the court stated: " [h]aving reviewed the record on appeal and the transcript of the hearing held in the district court on appellant's motion for bail pending sentencing, we conclude that appellant's release would pose a risk of flight and a danger to the community and that, therefore, bail pending appeal should be denied."

After an impartial and complete review, the Nevada Supreme Court determined that Pattillo was not entitled to bail pending appeal. This independent determination conclusively demonstrates that Pattillo cannot show that White and Tyree's misconduct, if any, resulted in a constitutional deprivation. Accordingly, the district court properly dismissed the action for failure to state a claim upon which relief can be granted.

AFFIRMED.

 *

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