Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1988)

MEMORANDUM^** 

Anthony Allen Hancock ("Hancock"), a Nevada state prisoner, appeals pro se the dismissal of his civil rights action against the states of Washington and Nevada, numerous state and county officials, and Berta Ruth Harrington. The pro se complaint, asserting jurisdiction under 42 U.S.C. §§ 1983, 1985, 1986, various other federal statutes, and "under common law at law," alleged that defendants conspired to deprive him of constitutional rights by causing his extradition from Washington to Nevada based on an expired governor's warrant.

Three defendants, Craig, Richeson and Harrington, filed a motion under Fed. R. Civ. P. 12(f) asking the district court to strike plaintiff's claims against them in their entirety. The remaining defendants moved the court to dismiss Hancock's claims against them for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b) (6). In an order entered March 29, 1988, a second order entered June 23, 1988 and a third order entered August 4, 1988, the district court granted the motions as to all defendants.¹  Hancock's notice of appeal was filed on April 12, 1988. Although Hancock appealed before the district court had issued a final order, we conclude that we nevertheless have appellate jurisdiction under 28 U.S.C. § 1291.²  We affirm.

We review de novo a district court's dismissal under Fed. R. Civ. P. 12(b) (6) for failure to state a claim. United Energy Owners Comm., Inc. v. United States Energy Management Sys., Inc., 837 F.2d 356, 360 (9th Cir. 1988). A motion to dismiss should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In civil rights actions, we are obligated to construe the pleadings liberally, particularly where a pro se plaintiff is involved. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see also Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a liberal interpretation may not supply essential elements of a claim which were lacking in the original pleadings. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). To overcome the motion to dismiss, the plaintiff must offer more than mere vague and conclusory assertions of official participation in civil rights violations. Id.

Hancock failed to state a claim under 42 U.S.C. § 1985 since his complaint alleges no racial or class-based animus. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987); Ashelman v. Pope, 793 F.2d 1072, 1074 n. 1 (9th Cir. 1986). Hancock does not argue, nor does the record suggest, that Hancock's extradition to Nevada was delayed for any other reason than to permit him to serve the remainder of the sentence for which he was already imprisoned in Washington. Because Hancock's Sec. 1985 claim was properly dismissed, his claim under Sec. 1986 must also fail. See Karim-Panahi v. Los Angeles Police Dept't, 839 F.2d 621, 626 (9th Cir. 1988).

Dismissal of Hancock's Sec. 1983 claims was also proper. The eleventh amendment serves as a jurisdictional bar to Hancock's suits against the states of Washington and Nevada. Welch v. State Dep't of Highways and Public Transp., 483 U.S. 468, 472 (1987); Quern v. Jordan, 440 U.S. 332, 337-38 (1979); Jackson v. Hayakawa, 682 F.2d 1344, 1349 (9th Cir. 1982).

Defendant Craig is absolutely immune from liability for damages since her conduct in issuing the arrest warrant constituted a judicial act within her authority as justice of the peace and was not performed in the "clear absence of all jurisdiction." Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir.), cert. denied, 488 U.S. 995 (1988).

Section 1983 liability will not attach unless the acts giving rise to the constitutional deprivation were committed "under color of state law." See Parratt v. Taylor, 451 U.S. 527, 535 (1981); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020 (1986). Accordingly, we affirm the dismissal as to defendant Harrington since she was not a state actor within the meaning of Sec. 1983 and was not acting in concert with state actors when she offered the allegedly perjured testimony. See King v. Massarweh, 782 F.2d 825, 829 (9th Cir. 1986) (private party not to be held liable for injuries stemming from arrest unless he exercised some measure of control over official decisionmaking).

Similarly, a public defender does not act under color of state law when representing an indigent defendant in a state criminal proceeding. See Polk County v. Dodson, 454 U.S. 312 (1981). Therefore, Hancock's Sec. 1983 claims against Johnson and Roeser fail as a matter of law.

Hancock asserts that defendants Gardner and Cherberg, the governor and the acting governor for the state of Washington, are guilty of kidnap, illegal extradition and treason because they authorized his extradition to Nevada without a grand jury indictment. Plaintiff's claims against these parties are frivolous since there is no violation of federal or constitutional law where a state formally charges a criminal defendant using an information rather than an indictment. See James v. Reese, 546 F.2d 325, 327-28 (9th Cir. 1976).

Generally, state officials are not subject to Sec. 1983 liability unless they play an affirmative role in the alleged deprivation of constitutional rights. King v. Atiyeh, 814 F.2d at 568. With respect to Bryan and McKay, Hancock fails to aver facts indicating that these defendants either directly participated in or knew of the alleged constitutional violations. id. Plaintiff's vague and conclusory allegations are insufficient to form the basis for relief under Sec. 1983. Ivey, 673 F.2d at 268.

Hancock contends that the Nevada bailiff, Richeson, "took it upon himself to KIDNAP the Plaintiff without the proper papers for transportation of the Plaintiff from the state of Washington." We construe plaintiff's argument as suggesting that his extradition was faulty since someone other than Danny Woods and/or Raymond Dolan--the agents officially designated in the extradition documents to receive Hancock from Washington authorities--carried out his extradition. Since the nature and extent of Richeson's involvement in the challenged extradition is unclear from the pleadings, we find that the district court correctly dismissed Richeson without prejudice. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984) (dismissal of action without prejudice is appealable), cert. denied, 470 U.S. 1007 (1985).

We agree with the district court that the doctrine of res judicata bars Hancock from relitigating his legal claims against defendant Brown. See Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988).

Finally, we affirm the dismissal as to defendant Fjetland. The district court afforded Hancock notice of the deficiencies in his complaint against the sheriff and ample time to amend. See Karim-Panahi, 839 F.2d at 623-24. Hancock's failure to take any remedial action whatsoever merits no relief on appeal.

AFFIRMED.