Unpublished Disposition, 914 F.2d 263 (9th Cir. 1990)

MEMORANDUM^** 

Helmut W. Schlosser and the Federal Health and Crisis Management Organization (collectively "Schlosser") appeal pro se the district court's order dismissing their 42 U.S.C. § 1983 action as barred by the eleventh amendment. We review de novo, Miles v. Department of the Army, 881 F.2d 777, 780 (9th Cir. 1989), and affirm.

* We first consider our jurisdiction to review the district court's order of dismissal. The district court entered its judgment of dismissal on February 8, 1989. On February 15, 1989, Schlosser served on appellees a "Motion for En Banc Reconsideration of Motion to Dismiss." Although the court clerk rejected Schlosser's attempt to file this motion for failure to note the proper date for the court's motions calendar, we find that the motion was nevertheless timely under Fed. R. Civ. P. 59(e) because Schlosser served the motion on appellees within ten days after entry of judgment. See Fed. R. Civ. P. 59(e); Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 467 (9th Cir. 1989).

The time for appeal from the judgment of dismissal was therefore tolled until the court denied the motion for reconsideration on April 7, 1989. See Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir.), cert. denied, 110 S. Ct. 192 (1989). Thus, because Schlosser's notice of appeal filed on April 28, 1989 was timely under Fed. R. App. P. 4(a) (1), we have jurisdiction to review the order of dismissal.¹ 

II

Under the eleventh amendment of the United States Constitution, a State is immune from suit brought in federal court by her own citizens as well as citizens of another state.²  Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Suits against state agencies are considered suits against the state and are therefore barred by the eleventh amendment as well. Shaw v. State of California Dept. of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir. 1986). The eleventh amendment does not bar, however, section 1983 actions against state officials sued in their individual, rather than their official or representative, capacities. Blaylock v. Schwinden, 862 F.2d 1352, 1354 (9th Cir. 1988).

Moreover, although a state may waive its sovereign immunity by consenting to suit in federal court, such waiver must be unequivocally expressed. Pennhurst, 465 U.S. at 99. The State of Washington has waived its sovereign immunity to section 1983 actions in its own courts, but not in the federal courts. McConnell v. Critchlow, 661 F.2d 116, 117 (9th Cir. 1981); see also Quern v. Jordan, 440 U.S. 332, 338 (1979).

Here, Schlosser did not name any state officials as defendants in either their official or individual capacities. Rather, Schlosser named only the State of Washington as well as several Washington state agencies as defendants. Thus, in the absence of a waiver of sovereign immunity, the district court did not err in determining that Schlosser's action is barred by the eleventh amendment. See Pennhurst, 465 U.S. at 100.

The circumstances of this case, however, raise an issue as to whether the district court should have allowed Schlosser an opportunity to amend his complaint before dismissing the action. Under Fed. R. Civ. P. 15, courts should freely grant leave to amend a pleading when justice so requires, especially when the litigant is pro se. See Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987). Nevertheless, our review of the pleadings and Schlosser's brief on appeal demonstrates that the district court did not err in not granting Schlosser leave to amend.

First, both the Board of Medical Examiners ("Board") and the Department of Licensing ("Department") are state agencies empowered to seek injunctions against unlicensed medical practitioners. See Wash.Rev.Code Sec. 18.130.190(2).³  The State Attorney General is empowered to represent the State and its agencies in judicial proceedings. See Wash.Rev.Code Sec. 43.10.040.⁴ 

Thus, the individual state officials within the Board and the Department acted within the scope of their statutory duties in seeking the injunction against Schlosser. Further, because their actions were quasi-prosecutorial in nature, the individual officials are entitled to absolute immunity from suit. See Babcock v. Tyler, 884 F.2d 497, 501 (9th Cir. 1989), cert. denied, 110 S. Ct. 1118 (1990); cf. Meyers v. Contra Costa County Dept. of Social Servs., 812 F.2d 1154, 1156 (9th Cir.) (according absolute prosecutorial immunity to a social worker who initiated, within the scope of his duties, dependency proceedings against parents suspected of abusing their children), cert. denied, 484 U.S. 829 (1987). In addition, the Attorney General, in prosecuting the State's case against Schlosser, is also entitled to absolute immunity. See Imbler v. Pachtman, 424 U.S. 409, 424-25 (1976).

Second, it is well-established that federal courts do not have jurisdiction to review final determinations of state courts in judicial proceedings unless the challenge to the state court decision involves only general constitutional issues and does not require an examination of the state court's application of the law. Worldwide Church of God v. McNair, 805 F.2d 888, 890-93 (9th Cir. 1986); see also District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 482-86 & n. 16 (1983).

Here, it is the application of the state statute prohibiting the unlicensed practice of medicine which allegedly deprived Schlosser of his constitutional rights. In determining whether the appellees violated Schlosser's rights in seeking the injunction, the district court would have to determine whether application of the statute was warranted under the facts. In effect, the district court would have to determine whether the state court was correct in issuing the injunction. Thus, because the district court could not resolve Schlosser's constitutional claims without examining the state court's judgment, Schlosser's action effectively constitutes an impermissible appeal of a state court judgment. See Worldwide Church of God, 805 F.2d at 890.

In summary, the deficiencies of Schlosser's complaint clearly cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Any individual Washington state officials Schlosser could name as defendants would be entitled to absolute immunity from suit because their actions were quasi-prosecutorial in nature. See Babcock, 884 F.2d at 501. Moreover, the district court would lack subject matter jurisdiction because it would be called upon to review a state court judgment. See Worldwide Church of God, 805 F.2d at 890.

AFFIRMED.