William W. Roche; Steven J. Henry, Plaintiffs-appellants, v. City of Hamilton; Martha Bethel, Judge, Defendants-appellees, 113 F.3d 1242 (9th Cir. 1997)

MEMORANDUM^** 

William W. Roche and Steven J. Henry appeal pro se the district court's dismissal for failure to state a claim of their 42 U.S.C. § 1983 action for damages against the City of Hamilton and Judge Martha A. Bethel, a municipal judge for the City of Hamilton. They allege that Judge Bethel violated their constitutional rights by prohibiting Roche, a non-attorney, from defending Henry in a misdemeanor criminal case. We affirm.

We agree with the district court that Roche and Henry's allegations against Judge Bethel are barred by the doctrine of judicial immunity. See Franceschi v. Schwartz, 57 F.3d 828, 830-31 (9th Cir. 1995). The City of Hamilton cannot be held liable on a theory of respondeat superior. See Monell v. New York City Dep't of Social Services, 436 U.S. 658, 691-95 (1978).

The district court did not abuse its discretion by awarding attorney's fees against Roche and Henry because this action is frivolous and vexatious. See 42 U.S.C. § 1988; Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). Roche and Henry were on notice that judges acting in a judicial capacity have absolute immunity from liability for damages in a section 1983 action. See Roche v. Town of Darby, CV-94-00025-CCL (D. Mont. 1994), aff'd 68 F.3d 481 (9th Cir. 1995) (unpublished disposition).

AFFIRMED.¹