Unpublished Disposition, 899 F.2d 18 (9th Cir. 1984)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 18 (9th Cir. 1984)

L.R. BRETZ, Plaintiff-Appellant,v.Morris L. BRUSETT; Jerry R. Smith; John W. Mosely; DavidGould; C.D. Avery, et al., Defendants-Appellees.

No. 89-35219.

United States Court of Appeals, Ninth Circuit.

Submitted March 9, 1990.* Decided March 19, 1990.

Before JAMES R. BROWNING, ALARCON and RYMER, Circuit Judges.


MEMORANDUM** 

Bretz appeals the dismissal of his complaint, brought pursuant to 42 U.S.C. § 1983, alleging that during the course of criminal investigations and prosecutions against him, various Montana state officials deprived him of his constitutional rights. We affirm.

Bretz first argues that he was denied due process because the district court granted a protective order with respect to discovery. Bretz argues that the protective order prevented him from engaging in the discovery necessary to avoid dismissal of his complaint. This court reviews the granting of a protective order for an abuse of discretion. Wood v. McEwen, 644 F.2d 797, 801-02 (9th Cir. 1981), cert. denied, 455 U.S. 942 (1982). "A district court may limit discovery 'for good cause,' Rule 26(c) (4), Federal Rules of Civil Procedure, and may continue to stay discovery when it is convinced that the plaintiff will be unable to state a claim for relief." Id. at 801. The protective order issued in this case only prevented Bretz from taking Woodahl's deposition. Therefore, the protective order only limited discovery, it did not prohibit discovery. The district court's order did not prevent Bretz from engaging in discovery through means other than depositions. Which he did not attempt to do. Further, the purpose of the protective order was to allow the court to examine the interrelationship between this action and a second action, Bretz brought against many of the same defendants which was dismissed for failure to state a cause of action. Specifically, the court prohibited Bretz from taking Woodahl's deposition until he showed why this action should not be dismissed "in light of, and for the same reasons as," the other action. Once this ruling was made, the prohibition was lifted. Under Wood, this reason constitutes "good cause" for a limitation on discovery. See id. at 801-02. We see no abuse of discretion here.

Bretz next argues that a Montana state court order, resulting from the insolvency and subsequent liquidation of Glacier General Assurance Company, enjoined him from proceeding further with this action. The liquidation order in question enjoined all persons from maintaining or instituting any action against Glacier or its liquidator without court approval. This order had no affect upon the prosecution of the substantive claims of Bretz's action because Bretz's complaint contains no claim against Glacier. Bretz's argument is meritless.

Next Bretz argues that the district court erroneously dismissed thirteen of his causes of action for failure to file within the applicable statute of limitations period. In Wilson v. Garcia, 471 U.S. 261, 279-80, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), the Supreme Court held that the appropriate statute of limitations for Sec. 1983 actions is the state statute of limitations applicable to personal injury actions. Under Montana law, the statute of limitations governing actions for personal injury is three years. Mont.Code Ann. Sec. 27-2-204 (1985). Each of the claims that the court dismissed alleged tortious conduct that occurred prior to July 14, 1975, the date of Bretz's imprisonment. "While state law determines the period of limitations, federal law determines when the cause of action arises. Under federal law, a cause of action generally accrues when a plaintiff knows or has reason to know of the injury which is the basis of his action." Cline v. Brusett, 661 F.2d 108, 110 (9th Cir. 1981). Using the date of Bretz's imprisonment as the latest date that he knew or had reason to know of the injuries that were the basis of his action, absent some tolling provision, the statute of limitations on the dismissed claims would have run no later than July 13, 1978. Bretz filed the complaint in this action on September 19, 1979. Since Bretz's complaint was filed more than three years after July 14, 1975, the district court properly dismissed those causes of action the statute of limitations barred.1  Further, Bretz "may not invoke M.C.A. Sec. 27-2-401(1), the Montana statute which tolls the statute of limitations while a person is in prison, because he was not under a disability, imprisonment, when his causes of action accrued. See M.C.A. Sec. 27-2-401(3)." Id. at 110.2 

Bretz next argues that the prosecuting attorneys named in his complaint were not entitled to prosecutorial immunity. First, Bretz argues that prosecutorial immunity is inappropriate because the prosecuting attorneys had no statutory authority under Montana law to prosecute him. The Supreme Court of Montana rejected this argument in State v. Cline, 170 Mont. 520, 555 P.2d 724 (1976).

Second, Bretz argues that the Attorney General unlawfully delegated responsibility for the prosecution of his case to special prosecutors not licensed to practice law in Montana. The district court took judicial notice of the evidence adduced in the related case Cline v. Brusett, No. CV-78-66-BU (D. Mont., Apr. 17, 1984), which showed that all of the defendant prosecutors were properly admitted to conduct prosecutions within Montana. The Montana Supreme Court granted the special nonresident prosecutors temporary admission to conduct prosecutions within the state, and that court has the exclusive power to determine who may practice law in Montana. Cline, 555 P.2d at 731. Therefore, Bretz's argument is without merit.

Finally, Bretz argues that the prosecuting attorneys were not entitled to absolute immunity because they were engaged in investigative activities. In Imbler v. Pachtman, 424 U.S. 409, 431, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976), the Supreme Court held that prosecuting attorneys enjoy absolute immunity from suit under 42 U.S.C. § 1983 for actions taken "in initiating a prosecution and in presenting the State's case." In delineating the boundaries of its holding, the Supreme Court declined to consider whether "a prosecutor engaged in certain investigative activities enjoys not the absolute immunity associated with the judicial process, but only a good-faith defense comparable to the policeman's." Id. at 430. However, even if we assume the more limited "good faith" defense, Bretz's argument fails to survive summary judgment.

Rule 56 provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "If the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact," then "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.' " T.W. Elec. Serv. Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 630 (9th Cir. 1987) (citations omitted) (emphasis added). Again, the district court took judicial notice of the evidence adduced at a hearing on May 31, 1983 in the related case Cline v. Brusett, No. CV-78-66-BU (D. Mont., Apr. 17, 1984). That evidence "unequivocally" showed that "most if not all" of the prosecutors' acts complained of were of a prosecutorial nature. Further, there was no showing that any investigative acts were carried out in bad faith. Additionally, the defendants presented the affidavit of Robert Woodahl which stated that defendants Eastman and Masar were involved only in prosecutorial activities. Once it was shown that the facts upon which Bretz relied to support his allegations were not susceptible to the interpretation which he sought to give them, then he had the burden to produce some probative evidence to support his complaint. See T.W. Elec. Serv., 809 F.2d at 630. Bretz did not meet this burden. Therefore, the district court properly granted summary judgment on this issue.

Bretz next argues that defendant Judge E.G. Brownlee was not entitled to judicial immunity because he did not have jurisdiction in the third judicial district, the district where Bretz was criminally charged, since he was a judge in the fourth judicial district. Although a judge lacks immunity when he or she acts in the clear absence of jurisdiction, Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc), Bretz's argument fails as a matter of law. The jurisdiction of the Montana state district court judges is coextensive with the boundaries of the state. Mont.Code Ann. Sec. 3-5-312(1) (1985). Therefore, the district court properly dismissed Bretz's claims against Brownlee.

Bretz also argues that defendants Boone and Hooks, members of the Montana Supreme Court's Commission on Practice, were not entitled to judicial immunity for leaking information concerning the Commission's activities, specifically Bretz's potential disbarment, to the general public. State bar committee members, acting within their official capacities, are entitled to absolute immunity from suit. Slavin v. Curry, 574 F.2d 1256, 1266 (5th Cir.), modified, 583 F.2d 779 (5th Cir. 1978); see Ginger v. Circuit Court for County of Wayne, 372 F.2d 621, 625 (6th Cir.), cert. denied, 387 U.S. 935 (1967). See Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir. 1966). Since Bretz's allegations concern the activities of defendants Boone and Hooks in their official capacities as members of the Montana Supreme Court's Commission on Practice, the district court properly dismissed this claim.

Bretz next argues that in the event that he is not entitled to recovery under 42 U.S.C. § 1983, he has an alternative remedy against the same defendants under the rationale of Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Bivens held that a federal court could award money damages for a federal officer's violation of a person's constitutional rights. Since none of the defendants in this action were federal officers, or acting under the color of federal law, a Bivens remedy is not available. The district court properly dismissed this claim.

Finally, Bretz argues that the district court improperly dismissed his claims for malicious prosecution. The court held "that to the extent the plaintiff has attempted to state a claim of malicious prosecution, the complaint fails to state a claim." To have a viable malicious prosecution claim, Bretz must establish that the prosecutions at issue were terminated in his favor. See Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980), cert. denied, 450 U.S. 920 (1981); Restatement (Second) of Torts Sec. 658 (1977). "Proceedings are 'terminated in favor of the accused' only when their final disposition is such as to indicate the accused is not guilty, Restatement (Second) of Torts Sec. 660, Comments a & b (1977)." Singleton, 632 F.2d at 193. The transcript of the dismissal hearing establishes that the proceedings against Bretz were dismissed because further prosecution would serve no purpose. The question of Bretz's guilt was left unresolved. Bretz did not respond either at the dismissal hearing or at the request of the district court for further factual development and argument on this issue. Therefore, any of Bretz's claims purporting to state a cause of action for malicious prosecution were properly dismissed.

AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 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 9th Cir.R.36-3

 1

The district court's order of April 11, 1985 dismissed some of Bretz's claims using a two year statute of limitations period. We need not discuss the retroactivity of Wilson v. Garcia because Bretz's claims are time barred using the longer three year statute that Wilson mandates

 2

Bretz alleges in count one of his complaint that the unlawful audit of his and his client's files occurred between July 1, 1973 and July 1, 1976. The defendants presented an affidavit of Morris Brusett establishing that the audit and audit field work relating to Bretz was completed on June 24, 1974. An audit report was also issued on that date. These events occurred over a year before the date that Bretz was imprisoned. Bretz presented no evidence that contradicted or raised a material fact with respect to when the audit was finished. Therefore, the district court properly granted summary judgment on count one. See Simon v. United States, 756 F.2d 696, 697 (9th Cir. 1985)

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