Unpublished Disposition, 919 F.2d 145 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 919 F.2d 145 (9th Cir. 1990)

Jeannette M. PALENO and Eugene Paleno, Plaintiffs-Appellants,v.STATE OF CALIFORNIA, et al, Defendants-Appellees.

No. 86-2594.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 9, 1990.* Decided Nov. 30, 1990.

Before CHAMBERS, ALARCON and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Eugene and Jeannette Paleno appeal pro se the district court's grant of summary judgment in favor of the State of California, et al, in this 42 U.S.C. § 1983 action. The Palenos' action arises out of a California administrative action regarding the revocation of Eugene Paleno's insurance license. The Palenos allege that the district court erred in finding that the state and its agencies had immunity, and that the district court further erred by not appointing counsel for the Palenos. We affirm the summary judgement of the district court.

In 1980 an insurance client of Eugene Paleno complained to the California Department of Insurance about policies he had bought on his children's lives. The California Department of Insurance, as was standard procedure, set a hearing on the accusation which alleged the existence of a cause for disciplinary action against Paleno's insurance agent license.

Paleno did not attend the hearing and the administrative law judge issued a proposed decision recommending the revocation of Paleno's license. However, this was later changed to a recommendation of probation. Paleno challenged the administrative decision in California state court. The state court ruled that Paleno's failure to attend the administrative hearing was excusable and therefore the administrative order imposing probation was set aside.

At that time the California Department of Insurance withdrew the accusation and Paleno's license was restored to good standing. The notice of probation remains on Paleno's record.

Paleno then brought several other suits cumulating in this suit for section 1983 violations.

The lower court's grant of summary judgment is reviewed de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert, denied, 110 S. Ct. 3217 (1990); State Farm Fire and Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989). The appellate court must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

Appellants now bring a 42 U.S.C. § 1983 claim against the state of California and various employees. However, they have failed to supply sufficient evidence for their claim. As the court stated in Coverdell v. Dept. of Social & Health Services, 834 F.2d 758, 769 (9th Cir. 1987):

Although summary judgment is often questionable in civil rights actions where the defendant's motive and intent are involved ... the cases ... establish that even in a civil rights action, plaintiff may not survive a motion for summary judgment without offering some evidence in support of her claim.

Appellants allege that defendants failed to provide them with due process. However, California's occupational licensing laws have been found to satisfy due process. Borror v. Department of Inv. 15 Cal. App. 3d 531 (1971).

As to the immunity claims, the district court did not err in determining that the state and its agencies were immune from suit under the Eleventh Amendment. The Eleventh Amendment precludes suits against the state for money damages under 42 U.S.C. § 1983. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). Also, state agencies are not persons within the meaning of section 1983. Allison v. California Adult Authority, 419 F.2d 822, 823 (9th Cir. 1969).

Appellants' claims against the administrative law judges who were assigned to the hearing are barred on the ground of judicial immunity. See generally Butz v. Economou, 438 U.S. 478, 511-13 (1978).

The district court did not err in determining that the agency prosecutors had prosecutorial immunity and that the agency investigators had qualified immunity. Murphy v. Morris, 849 F.2d 1101 (8th Cir. 1988).

The district court did not err in denying the Palenos an injunction requiring the expungment of the record that Eugene Paleno's insurance license was placed on probation. There appears to be no authority which would entitle appellants to expungment of all records of a prior probation order. There is no liberty or property interest at stake in this case.

The district court and the Ninth Circuit Court of Appeals did not err in denying the Palenos' motions for appointment of counsel under 28 U.S.C. § 1915(d). Appointment of counsel in civil matters in the Ninth Circuit is restricted to "exceptional circumstances." Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). To show exceptional circumstances, Paleno must demonstrate the likelihood of success and the complexity of legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

We affirm the lower court's grant of summary judgment.

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The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3