Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1015 (9th Cir. 1991)

Albert R. SALMAN, Emil P. Tolotti, Jack Shrader, Plaintiffs-Appellants,v.Brent ADAMS, et al., Defendant-Appellee.

No. 90-15614.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 21, 1990.* Decided May 20, 1991.

Before HUG, WILLIAM A. NORRIS and NOONAN, Circuit Judges.


Appellants Emil Tolotti ("Tolotti"), Jack Shrader ("Shrader") and Albert Salman ("Salman") appeal, pro se, the district court's order dismissing their civil rights action against District Court Judge Brent Adams ("Adams"). They brought suit pursuant to 42 U.S.C. § 1983, based on various rulings made by Judge Adams in a case involving Tolotti's alimony payments. Appellants Shrader and Salman brought this action in their fiduciary capacities as Trustees of certain trusts created by Tolotti. We have jurisdiction pursuant to 28 U.S.C. § 1291,1  and we affirm the district court's dismissal of this action.

With respect to Tolotti's claims, the district court granted Judge Adams' motion to dismiss the complaint with prejudice pursuant to Fed. R. Civ. P. 12(b) for failure to state a claim. The district court found that Judge Adams, who clearly had subject matter jurisdiction over the action, had absolute immunity from the claims made in the complaint. With respect to the Trustees' claims, however, the district court dismissed the action without prejudice. It determined that a non-lawyer trustee may not file an action pro se in his fiduciary capacity. Rather, an action may be filed pro se only by a person acting personally in his own behalf.

Dismissal of Tolotti's Action

Dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) is a ruling on a question of law reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990).

Initially, Tolotti argues Judge Adams had no jurisdiction to entertain a divorce proceeding involving Tolotti because his marriage should have been declared void pursuant to Nevada Revised Statutes ("NRS") Sec. 125.290(2).2  Therefore, he argues that judicial immunity is not an available defense for Judge Adams' actions.

The critical inquiry to determine whether a defendant judge is immune from suit is "whether at the time he took the challenged action he had jurisdiction over the subject matter before him." Stump v. Sparkman, 435 U.S. 349, 356 (1978). The scope of the judge's jurisdiction must be construed broadly by the district court when determining the immunity of the judge. Id. The Supreme Court has stated that " [a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.' "3  Id. at 356-57. Moreover, even if that judge's exercise of authority includes serious procedural errors, he will still be absolutely immune from liability for his judicial acts. Id. at 359. See also Bradley v. Fisher, 13 Wall 335, 357 (1872).

Here, it is Judge Adams' actions with respect to Tolotti's divorce proceeding that Tolotti complains of. Clearly, Judge Adams, a state district court judge, had jurisdiction over the divorce proceeding between Tolotti and his wife. See NRS Sec. 125.020 (conferring jurisdiction upon district court to entertain divorce proceedings); Nev. Const. art. 636 (district courts of Nevada are courts of general jurisdiction); see also New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298 (9th Cir. 1989). It is apparent that Judge Adams had subject matter jurisdiction over the proceedings before him from which the actions complained of arose.

Apparently Tolotti also argues that even if jurisdiction was present in this case, Judge Adams' actions were not judicial acts. Thus, he was not entitled to judicial immunity. Even when jurisdiction is found to exist, a judge may nevertheless be denied judicial immunity because his action did not constitute a "judicial" act. Stump, 435 U.S. at 360. The relevant factors used in determining whether an act by a judge is a "judicial" one relate to the nature of the act itself. Id. at 362. The Supreme Court has enumerated the following two factors in order to aid in this determination: (1) whether it is a function normally performed by a judge, and to the expectations of the parties, and (2) whether they dealt with the judge in his judicial capacity. Id.

As discussed, jurisdiction over the proceeding was present. Likewise, the actions taken by Judge Adams must be characterized as "judicial" acts. Clearly, the finding by Judge Adams that Tolotti's marriage was not void pursuant to NRS Sec. 125.290 was a judicial act. Further, Judge Adams' decision to hold a show-cause hearing for nonpayment of alimony was a judicial act. Additionally, the decision to hold Tolotti in contempt for failure to pay alimony and to sentence him to jail4  subject to such payment was likewise a judicial act. Finally, the order by Judge Adams restraining Tolotti from transferring certain assets and requiring him to correct certain defaults which jeopardized community property was a judicial act.

Additionally, Bradley v. Fisher, 13 Wall 335 (1872), which established the doctrine of absolute judicial immunity in order to further the public interest in an independent judiciary, often to the detriment of legitimate individual grievances, relied on the fact that the judicial system itself provided other means for protecting individual rights. Id. at 354 (" [T]he law has provided for private parties numerous remedies, and to those remedies they must in such cases resort.")

Under the authority of Bradley and Stump, the actions taken by Judge Adams complained of in this case are shielded from a section 1983 claim by the doctrine of absolute judicial immunity. Tolotti's remedy, if appropriate, must be pursued through other available avenues within the state judicial system. Accordingly, we affirm the decision by the district court to dismiss Tolotti's action with prejudice for failure to state a claim.

Dismissal of Trustees' Action

Appellant-Trustees Shrader and Salman ("Trustees") also contend their section 1983 rights were violated as a result of certain acts by Judge Adams. They claim certain orders entered by Judge Adams impaired their right to contract and serve as Trustees. Although Trustees now argue that they were suing for violations of their personal constitutional rights, the complaint is clear that they are suing in their official capacity.

Although a non-attorney may appear in propria persona in his own behalf, that privilege is personal to him. C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (citations omitted). Specifically, he has no authority to appear as an attorney for anyone other than himself. Id. The status as trustee does not include the right to present arguments pro se in federal court. Id. at 698. Accordingly, the district court was correct in dismissing the Trustees' action without prejudice upon a finding that " [a] trustee may not file an action pro se in his fiduciary capacity." The district court's dismissal of this action is affirmed.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 9th Cir.R. 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


Dismissal of an action without prejudice is appealable under 28 U.S.C. § 1291. See Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985)


Section 125.290(2) provides in pertinent part that a marriage prohibited by law because of: "2. Either of the parties having a former husband or wife then living, if solemnized within this state, are void without any decree of divorce or annulment or other legal proceedings." NRS Sec. 125.290(2)


The Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with this example:

if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.

Stump, 435 U.S. at 357 n. 7.


A civil contempt proceeding does not implicate the constitutional right to counsel. See United States v. Rylander, 714 F.2d 996, 1004 (9th Cir. 1983), cert. denied, 467 U.S. 1209 (1984)