Unpublished Disposition, 922 F.2d 844 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 922 F.2d 844 (9th Cir. 1991)

Joseph CURIALE, Plaintiff-Appellant,v.STATE OF ALASKA, State Trooper Cox, Defendants-Appellees.

No. 89-35861.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 8, 1991.* Decided Jan. 10, 1991.

Before WRIGHT, BRUNETTI and LEAVY, Circuit Judges.


MEMORANDUM** 

Joseph Curiale brought the instant civil rights action against the State of Alaska, a former Alaska Attorney General, Harold Brown, and an Alaska state trooper, Robert Cox, seeking damages for his arrest following an altercation with another man, Jimmie Campbell. The United States District Court for the Western District of Washington, where the complaint was originally filed, granted the State of Alaska's motion to dismiss on the ground of Eleventh Amendment immunity, denied the individual defendants' joint motion to dismiss for improper venue, and transferred the case to the United States District Court for the District of Alaska pursuant to 28 U.S.C. § 1406. The two remaining defendants then moved to dismiss or, in the alternative, for summary judgment, asserting the defenses of absolute immunity (Brown) and qualified immunity (Cox). The district court granted their motions for summary judgment on those bases and dismissed the action with prejudice.1  Curiale has timely appealed. We review de novo, see Daniels v. Burlington N.R. Co., 916 F.2d 568, 570 (9th Cir. 1990), and we affirm.

Absent a waiver of its sovereign immunity, a state may not be sued for damages in federal court under 42 U.S.C. § 1983. Edelman v. Jordan, 415 U.S. 651, 677 (1974). The State of Alaska has not waived its immunity from damage actions involving false arrest claims. See Alaska Stat. Sec. 09.50.250(3). Accordingly, the district court did not err on this point.

Prosecutors enjoy absolute immunity from section 1983 damage claims for their actions undertaken as prosecutors. Imbler v. Pachtman, 424 U.S. 409, 427 (1976). Although Brown was the Attorney General for the State of Alaska at the time Curiale filed the instant law suit, and the Attorney General is Alaska's chief prosecutor, see Alaska Stat. Sec. 44.23.010, it is undisputed that Brown was not the Attorney General at the time of Curiale's arrest, nor was he involved in any way with the incident of which Curiale complains. At most, therefore, Curiale has alleged nothing more than that Brown should be held liable under a theory of respondeat superior, and section 1983 damages may not be predicated on such a basis. See Los Angeles Protective Police League v. Gates, 907 F.2d 879, 889 (9th Cir. 1990) (municipality). The district court did not err on this point, either.

It has long been settled that police officers enjoy qualified immunity from damage claims under section 1983 where the evidence shows that they acted in good faith and with probable cause in effecting an arrest. Pierson v. Ray, 386 U.S. 547, 557 (1967). Although Curiale vehemently protested his innocence to troopers Cox and Clemons when the officers arrived on the scene of the disturbance, the uncontroverted2  affidavits and exhibits proffered in support of Cox's motion for summary judgment show that the witnesses to the altercation stated that Curiale had made an unprovoked attack on Campbell. In light of the witnesses' accounts and Campbell's act of placing Curiale under arrest, it cannot be said that Cox lacked probable cause to take Curiale into custody. Therefore, the district court's ruling on the issue of qualified immunity was not erroneous.3 

In light of the above, we conclude that the district court did not err by denying Curiale's remaining motions, viz., to substitute Brown's successors in office as parties-defendant; to add Shirley Curiale as a party-plaintiff; to increase the prayer for damages from $49,000 to $149,000; to refer the complaint to the Federal Bureau of Investigation; and to appoint a Special Prosecutor under the provisions of 28 U.S.C. § 591. Finally, we DENY Curiale's request to take judicial notice of the pleadings and briefs in other litigation, and we DENY his motion to add parties-defendant as appellees here.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. 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 Ninth Circuit Rule 36-3

 1

More correctly, the district court granted Brown's motion for summary judgment on October 13, 1987, and granted Cox's motion for summary judgment on October 26, 1989. The district court then entered final judgment and dismissed the complaint with prejudice on October 31, 1989

 2

Although Curiale responded to the motions for summary judgment, he did so by simply rehashing his complaint. Thus, while he obviously disagreed with the witnesses' reported versions of the incident, he proffered nothing to controvert the motion as supported. Cf. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990) ("Plaintiffs opposing summary judgment may not rest on their pleadings. Fed. R. Civ. P. 56(e)")

 3

In reaching this conclusion we do not hold that there was no genuine issue of material fact on the question whether Curiale or Campbell started the fight; we hold only that there was no genuine issue of material fact on the question whether Cox had probable cause to take Curiale into custody and, consequently, whether Cox was entitled to qualified immunity from section 1983 damages