Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1418 (9th Cir. 1990)

Jay L. SELLERS, Plaintiff-Appellant,v.James DOLLIVER, Defendant-Appellee.

No. 87-4143.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 9, 1990.* Decided Feb. 6, 1990.

Before JAMES R. BROWNING, POOLE and BEEZER, Circuit Judges.


MEMORANDUM** 

Jay Sellers appeals pro se the dismissal of his Sec. 1983 claim against James Dolliver, a former Chief Justice of the Washington State Supreme Court. His lawsuit claimed that Dolliver improperly and maliciously failed to perform his duty to assemble a majority of the justices of the Washington State Supreme Court to review his appeal of the court clerk's order denying his petition for mandamus and then fraudulently and without authority signed an order of affirmance purporting to be that of the court. He argues that Dolliver is not entitled to judicial immunity because he was performing a "psuedo [sic] ministerial function," acting in his administrative capacity as the executive officer of his branch of government, not in his judicial capacity. Sellers requests $10,000 in punitive damages.

Dismissals for failure to state a claim are reviewed de novo. Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989).

We reject Sellers' effort to circumvent judicial immunity. In performing their judicial functions, judicial officers are protected by the doctrine of absolute immunity from suits seeking damages, even if they are alleged to have acted in excess of their jurisdiction and maliciously. See Stump v. Sparkman, 435 U.S. 349, 356 (1978). They will be subject to liability only when they have acted "in the 'clear absence of all jurisdiction.' " Id. (quoting Bradley v. Fisher, 13 Wall. 335, 351 (1872)). Since the Civil Rights Act does not constitute a waiver of judicial immunity, Pierson v. Ray, 386 U.S. 547, 554-5 (1967), the doctrine applies here. Dolliver's handling of Sellers' petition was clearly within the scope of his judicial capacity.

Sellers' claim that Dolliver's attorney mailed his motion to dismiss to an outdated address, thus depriving him of an opportunity to prepare a thorough response, has no merit. Any injury was cured by the district court's reconsideration of its order dismissing as to Dolliver. That order explicitly stated, in denying Sellers' motion to set aside the dismissal, that the district court had considered the affidavit and 14-page memorandum Sellers submitted with his motion.

The judgment of the district court is AFFIRMED.

 *

The panel unanimously finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Federal Rule of Appellate Procedure 34(a)

 **

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