Unpublished Disposition, 895 F.2d 1416 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1416 (9th Cir. 1990)

Patricia M. BOURKE, Plaintiff-Appellant,v.Jeanne SCHUMAN; William Gibbs; David Himmelman, and DoesI-X, Defendants-Appellees.

No. 88-2446.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 13, 1989.Decided Feb. 6, 1990.

Before EUGENE A. WRIGHT, HUG and LEAVY, Circuit Judges.


Patricia Bourke, an attorney appearing pro se, appeals the district court's dismissal of her action as frivolous and harassing under Fed. R. Civ. P. 11, and the imposition of Rule 11 sanctions in the amount of $5,000. Bourke sued her former employee, Jeanne Schuman, Schuman's present employer, David Himmelman, and Schuman's attorney, William Gibbs, under 42 U.S.C. § 1983 for alleged constitutional wrongs connected with an earlier state court proceeding. We affirm.

Rule 11 prohibits "frivolous filings" and using "judicial procedures as a weapon for personal or economic harassment." Zaldivar v. City of Los Angeles, 780 F.2d 823, 830 (9th Cir. 1986). The district court dismissed Bourke's complaint as "frivolous" and also found that Bourke was "simply trying to harass and vex the defendants" and that "the court system [was] being used improperly." The district court thus relied upon both the "frivolousness" clause and the "improper purpose" clause of Rule 11. See id.

To determine whether a filing is frivolous or made for an improper purpose in violation of Rule 11, an objective standard of reasonableness is applied. Hudson v. Moore Business Forms, Inc., 836 F.2d 1156, 1159 (9th Cir. 1987). With frivolousness, the key question is whether the pleading states an arguable claim--not whether the pleader is correct in her perception of the law. Id.

We find that Bourke could not state an arguable claim because the district court had no subject matter jurisdiction to review the state court's decisions. A federal district court, as a court of original jurisdiction, has no authority to review the final determinations of a state court in judicial proceedings. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir. 1986). This doctrine applies even when the challenge to the state court decision involves alleged deprivations of due process or equal protection. Feldman, 460 U.S. at 484-85.

The federal action is an impermissible appeal from the state court decision if the constitutional claims presented to the district court are "inextricably intertwined" with the state decision. McNair, 805 F.2d at 892 (quoting Feldman, 460 U.S. at 483-84 n. 16). Federal constitutional issues are inextricably intertwined with the state court judgment if the district court could not evaluate the plaintiff's constitutional claims without conducting a review of the state court's determinations. Id.

Bourke alleged six claims for relief under 42 U.S.C. § 1983. Specifically, Bourke alleged: (1) that the state arbitration award was void because the arbitrator lacked subject matter jurisdiction and deprived her of her property without due process; (2) that the arbitrator made "gross legal errors" violating her right to due process, and that his award of punitive damages to Schuman on the defamation claim violated Bourke's First Amendment rights because her statements were "truthful;" (3) that defendants' continued opposition to Bourke's attempts to vacate the arbitrator's award caused her injury; (4) that the defendants "engaged in a conspiracy to deprive [Bourke] of her civil rights" by opposing her attempts to vacate the arbitrator's award; (5) that she was denied "equal protection of the laws by reason of gender;" (6) and that the state appellate division's imposition of $2,500 sanctions was erroneous.

As to her first two claims, the district court could not determine whether Bourke was denied due process without first reviewing the arbitrator's decision or those of the myriad state courts upholding the arbitrator's decision. Similarly, as to her sixth claim, the federal court could not decide that the state appellate division erroneously imposed sanctions without directly reviewing that court's decision. These claims are inextricably intertwined with the state court decision and the district court therefore had no subject matter jurisdiction to decide them.1  See McNair, 805 F.2d at 892.

Bourke's third and fourth claims are also deficient. Bourke cannot state a constitutional violation based on the defendants' opposition to her attempts to vacate the arbitrator's decision. See Dooley v. Reiss, 736 F.2d 1392, 1394-95 (9th Cir.) (because plaintiffs were not prevented from pursuing relief in civil action, they suffered no deprivation based on defendants' attempts to conceal evidence in that litigation), cert. denied, 469 U.S. 1038 (1984).

Finally, while the basis for Bourke's equal protection claim is unclear, it appears that Bourke is asserting that she was denied equal protection either because the arbitrator's decision, or the defendants' opposition to her attempts to overturn that decision, were motivated by gender-based animus. In either case, to the extent Bourke has requested the district court to scrutinize the arbitrator's decision in her case, the district court lacked subject matter jurisdiction. See Allah v. Superior Court of State of California, Los Angeles County, 871 F.2d 887, 891 (9th Cir. 1989).

The proper court in which to obtain review of state court determinations is the United States Supreme Court. 28 U.S.C. § 1257; McNair, 805 F.2d at 890. The Supreme Court has already denied certiorari in this case.

The district court also correctly determined that Bourke's complaint was filed for an improper purpose. "Harassment under Rule 11 focuses upon the improper purpose of the signer, objectively tested, rather than the consequences of the signer's act, subjectively viewed by the signer's opponent." Zaldivar, 780 F.2d at 832. Thus, conduct forming the basis of the charge of harassment "must do more than bother, annoy or vex the complaining party." Id. at 831-32.

A claim of harassment may be sustained on the basis of successive filings if the same parties are involved in the successive claim and the same issues were resolved in the earlier action. Id. at 834. In addition, the absence of any support for the amount of damages claimed may be an indication of "bad faith." See Bright v. Bechtel Petroleum, Inc., 780 F.2d 766, 772 n. 8 (9th Cir. 1986). Applying these standards, the district court correctly concluded that Bourke's complaint was filed for an improper purpose.

Here, Bourke's federal action is in large part successive. Schuman was a party in both the state and federal actions and a number of Bourke's claims were resolved in the state courts. See Zaldivar, 780 F.2d at 832. In addition, Bourke's prayer for relief, in which she requested $1.05 million compensatory and $600,000 punitive damages to compensate her for paying a $14,500 judgment, is a strong indication of the retaliatory and bad faith nature of this action. See Bright, 780 F.2d at 772 n. 8.

Once a Rule 11 violation has been found, sanctions are mandatory. Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1540 (9th Cir. 1986). The district court has wide discretion in determining the appropriate sanction for a Rule 11 violation. Id. at 1538.

Given the troubling history of this case, the fact that Bourke has been sanctioned for bringing similar claims in the state courts and yet continues to attempt to litigate them, the district court did not abuse its discretion in imposing $5,000 sanctions against Bourke.

Although we affirm the district court on other grounds, we address Bourke's arguments with the hope of finally ending this litigation. First, Bourke's section 1983 claims are frivolous because she has not shown that the defendants acted under color of state law. See Tower v. Glover, 467 U.S. 914, 920 (1984). Private individuals are not subject to suit under section 1983 unless engaged in a conspiracy with public officials. Id. Although Schuman, Gibbs and Himmelman are attorneys, they are private persons for purposes of section 1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). Moreover, to prove conspiracy under section 1983, an agreement or meeting of the minds to violate the plaintiff's constitutional rights must be shown. See Woodrum v. Woodard County, 866 F.2d 1121, 1126 (9th Cir. 1989).

Here, Bourke has not alleged any facts to show that the defendants conspired with any state actors. Her complaint contains specific allegations which demonstrate that the section 1983 violation she complains of resulted not from any conspiracy between the defendants and the arbitrator or other state officials but because the defendants "deliberately misled the courts as to the facts and the law at every opportunity." The only reference to "conspiracy" she makes in the complaint involves an allegation of conspiracy among the defendants, not between the defendants and state officials. Thus, the express allegations of her complaint belie the existence of any conspiracy between the defendants and any state official.

Finally, the genesis of Bourke's complaint is that the arbitrator used letters against Bourke that Bourke herself had submitted into evidence. Bourke presents a technical argument that the arbitrator improperly used this evidence against her, since defendant-Schuman did not move to have these letters considered in her cross-complaint. First, we note that Bourke cites no authority to support her contention that evidence cannot be used against the party who submits it. Second, Bourke's admission that she agreed to be part of binding arbitration means that she agreed to abide by the rules of arbitration. An arbitrator is not bound by the formal rules of procedure and evidence. Sunshine Mining Co. v. United Steelworkers of America, 823 F.2d 1289, 1295 (9th Cir. 1987). Thus, an arbitrator may admit and rely on evidence inadmissible under the federal rules, as long as the parties receive a fundamentally fair hearing. Id. We find that Bourke received a fair hearing and even if the arbitrator did rely on letters submitted by Bourke, such reliance in no way invalidated the arbitrator's holding.



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


Indeed, as relief, Bourke sought a judgment declaring the arbitrator's award "void by reason of lack of subject matter jurisdiction," an order restraining defendants from enforcing the judgment, and vacation of the $2,500 sanction imposed by the state appellate division. Such requests provide strong indication that Bourke is asking the federal court to act as an appellate court for decisions by the state courts. This the federal court cannot do. See McNair, 805 F.2d at 892