Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 281 (9th Cir. 1990)

Heinz J.U. SAUERBREY, Plaintiff-Appellant,v.Theodore R. KULONGOSKI, S.A.I.F. Corporation, Larry D.Young, Art Parmelle, Linda (Heintzman) Repp, DouglasDaughtry, Evelyn Ferris, Vinita Neal, Roderick H. DeWallace,Alan H. Coons, David A. Aamodt, David Gernant, Alan C.Bonebrake, Michael J. McElligott, Jon B. Lund, State ofOregon, Defendants-Appellees.

No. 90-35035.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 6, 1990.* Decided Dec. 5, 1990.

Before SCHROEDER, WIGGINS and LEAVY, Circuit Judges.


Heinz Sauerbrey appeals the district court's dismissal with prejudice of his claim for damages under 42 U.S.C. § 1983. Since that dismissal disposed of all of the claims against all of the defendants in this case, this court has jurisdiction under 28 U.S.C. § 1291.

Sauerbrey brought suit against Roderick DeWallace and Alan Coons, the State Accident Insurance Fund Corporation, the Director of the State of Oregon's Insurance and Finance Department and various state officials, alleging that they conspired to deprive him of his property rights through the mechanisms of Oregon's workers' compensation laws. Finding that none of these defendants could be liable for damages under section 1983 and that Sauerbrey alleged no facts that would indicate that his constitutional rights had been violated, the district court ruled that his complaint failed to state a claim and no amendment could cure that failure. It therefore ordered that the claim be dismissed with prejudice.

Because Sauerbrey filed his complaint pro se, he was entitled to notice of deficiencies in his complaint and an opportunity to correct them unless such correction would be impossible. Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987). A pro se plaintiff is not entitled to such an opportunity if it is clear that he can prove no set of facts that would entitle him to relief. Akao v. Shimoda, 832 F.2d 119, 120 (9th Cir. 1987), cert. denied sub nom Shimoda v. Akao, 485 U.S. 993 (1988). The question before us, therefore, is whether the complaint suggests any possible basis for a section 1983 claim, such that an amendment might cure its defects. We review this question de novo. Noll, 809 F.2d at 1447.


The district court found that none of the defendants against whom Sauerbrey asserted his claims could properly be sued for damages under section 1983. The first question presented for review, therefore, is whether the complaint could have been amended to state a claim for damages against these defendants.

Because a section 1983 claim only lies against one who acts under color of state law, any claim Sauerbrey may have against the two private individuals, DeWallace and Coons, is not properly brought under section 1983. See Briley v. California, 564 F.2d 849 (9th Cir. 1977). That the ways in which they allegedly harmed him involved the use of the state's workers' compensation system does not bring their conduct within the purview of section 1983. See Briscoe v. LaHue, 460 U.S. 325 (1983) (section 1983 does not cover damage claims brought against private citizens for their participation in legal proceedings). Thus, the district court properly dismissed Sauerbrey's claims against these two defendants.

Oregon's State Accident Insurance Fund Corporation ("SAIF") is an instrumentality of the state. See Frohnmayer v. State Accident Insurance Fund Corp., 294 Or. 570 (1983). As such, it benefits from the state's sovereign immunity and, under the eleventh amendment, cannot be sued for damages unless the state consents to such suit. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984); Thompson v. City of Los Angeles, 885 F.2d 1439, 1442 (9th Cir. 1989). The state has not so consented. No amendment to Sauerbrey's complaint could have cured the fact that SAIF cannot be sued for damages. Therefore, the district court was correct in dismissing the action against this defendant.

Defendant Theodore Kulongoski, the director of the State of Oregon's Insurance and Finance Department, cannot be held liable under section 1983 for the actions of those whom he supervised on a theory of respondeat superior. Jones v. Johnson, 781 F.2d 769, 772 (9th Cir. 1986). Because the complaint does not allege any personal involvement on Kulongoski's part in Sauerbrey's case, the district court correctly ruled that Sauerbrey failed to state a claim against Kulongoski.

The remaining defendants are government counsel, judges, and hearing officers and administrators of the State Workers' Compensation Board. Sauerbrey claims that they violated his constitutional rights by requiring him to pay workers' compensation to DeWallace, and by bringing and participating in civil proceedings against Sauerbrey based on his failure to purchase workers' compensation insurance. Because all of these defendants were performing judicial or a quasi-judicial function when they took action against Sauerbrey, all are entitled to absolute immunity from suit. Stump v. Sparkman, 435 U.S. 349, reh'g denied, 436 U.S. 951 (1978) (judges enjoy absolute immunity from suit under section 1983 for any acts performed in their judicial capacities); Butz v. Economou, 438 U.S. 478, 512-515 (1978) (officials performing judicial or prosecutorial roles in federal agencies enjoy absolute immunity analogous to that of judges); id. at 500 (the immunity of federal officials from suit for constitutional torts is no broader than that of state officials). Therefore, none of these officials could properly have been required to defend against Sauerbrey's claims. Again, no amendment to his complaint could have cured this defect.


The district court also found that Sauerbrey's constitutional rights were not violated by any action taken against him. Thus, a second question before us is whether the events outlined in Sauerbrey's complaint could give rise to any claim under section 1983.

Sauerbrey's claim that the requirement that he participate in the state workers' compensation scheme somehow violates his constitutional rights is foreclosed by longstanding precedent. See New York Central Railway Co. v. White, 243 U.S. 188 (1917) (workers' compensation schemes are a valid exercise of a state's police power); Bell v. State Accident Insurance Commission, 157 Or. 653 (1937) (Oregon's workers' compensation scheme upheld as a permissible form of regulation). Since violation of a constitutional right is an indispensable part of a section 1983 claim, the fact that Sauerbrey has no constitutional right to be free from the obligation to participate in the workers' compensation program or from the requirement that he pay workers compensation claims is fatal to this action. See Briley v. California, 564 F.2d 849, 853 (9th Cir. 1977).


Because none of the defendants named in Sauerbrey's complaint could properly be made to answer to any section 1983 claim for damages arising from the events in question, and because Sauerbrey had no constitutional right to be free from the actions to which he had been subjected, the district court correctly found that no amendment could cure the defects in his complaint. The dismissal of his claims with prejudice was therefore proper.



The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4


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