Unpublished Disposition, 940 F.2d 1534 (9th Cir. 1991)
Annotate this CaseDennis Nelson FIXEL, Plaintiff-Appellant,v.UNITED STATES of America, Richard L. Owens, SalvadoreGodinez, Defendants-Appellees.
No. 90-15739.
United States Court of Appeals, Ninth Circuit.
Submitted July 29, 1991.* Decided Aug. 5, 1991.
Before FARRIS, ALARCON and THOMAS G. NELSON, Circuit Judges.
MEMORANDUM**
Dennis N. Fixel appeals pro se the district court's sua sponte dismissal pursuant to 28 U.S.C. § 1915(d) of two civil rights complaints in which Fixel sought to sue the United States, a law clerk, the district court, various court clerks, the Nevada Department of Prisons, and warden Salvadore Godinez. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
On appeal, Fixel alleges that he was denied access to the courts by a law clerk who failed to file two habeas petitions and a negligence complaint submitted by Fixel.1 Fixel also alleges that the court clerks have a policy of not filing pro se papers.
The district court properly determined that clerks, who perform acts that are integral parts of the judicial process, have absolute quasi-judicial immunity from civil rights actions requesting damages or injunctive relief. See Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1390, 1394 (9th Cir. 1987) (court clerks), cert. denied, 486 U.S. 1040 (1988); Ashelman v. Pope, 793 F.2d 1072, 1075-76 (9th Cir. 1986) (en banc) (judicial immunity). Moreover, a mistake or act in excess of jurisdiction does not abrogate such immunity even if it results in " 'grave procedural errors.' " Mullis, 828 F.2d at 1390 (quoting Stump v. Sparkman, 435 U.S. 349, 359 (1978)). Allegations of bad faith, personal interest, malevolence, or conspiracy also fail to pierce the cloak of immunity. McCarthy v. Mayo, 827 F.2d 1310, 1315 (9th Cir. 1987). Accordingly, the district court did not err in dismissing Fixel's action as to these claims. See Mullis, 828 F.2d at 1390.
Fixel also claims that he is being improperly held by Warden Godinez because Nev.Rev.Stat. Sec. 193.165, the statute under which his sentence was enhanced, is unconstitutional. This claim lacks merit. Fixel has raised the constitutionality of Nev.Rev.Stat. Sec. 193.165 in at least two prior habeas proceedings. The district court rejected his challenges in both proceedings, and we denied Fixel's motion for a certificate of probable cause in one appeal and affirmed the district court's dismissal in the second appeal. In addition, Fixel has presented the same issue to the district court in at least two prior civil rights actions, which the district court resolved against him. See also Eckert v. Tansy, No. 89-16476, slip op. (9th Cir. June 17, 1991) (1991 WESTLAW 101667) (upholding constitutionality of Nev.Rev.Stat. Sec. 193.165). Accordingly, we affirm the district court's dismissal of this action.2
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth 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
Fixel also claims that the United States breached its duty to properly train its court law clerks. The United States, however, is not a "person" and cannot be sued under section 1983 or under a Bivens-type claim. See Accardi v. United States, 435 F.2d 1239, 1240 (3d Cir. 1970) (United States is not a "person" for purposes of section 1983); Keene Corp. v. United States, 700 F.2d 636, 645 n. 13 (2d Cir.) (Bivens-type action cannot be maintained against the United States), cert. denied, 464 U.S. 664 (1983); accord Garcia v. United States, 666 F.2d 960, 966 (5th Cir.), cert. denied, 459 U.S. 632 (1982). Moreover, Fixel has failed to establish that the United States has waived its soveriegn immunity as to his claim. See Holloman v. Wall, 708 F.2d 1399, 1401-02 (9th Cir. 1983) (waiver of soveriegn immunity by the United States must be express and cannot be implied, and party suing the United States has burden to establish unequivocal waiver of immunity)
To the extent Fixel's complaints contain issues not raised on appeal, these issues are deemed abandoned. See Wilcox v. Commissioner, 848 F.2d 1007, 1008 n. 2 (9th Cir. 1988) (applying rule to pro se litigant)
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