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Sands v. Arizona Supreme Court

filed*fn*: July 31, 1991.


Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding; D.C. No. CV-89-1358-RCB.

Farris, Alarcon, and T. G. Nelson, Circuit Judges.


Royce Calvin Sands appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action for failure to serve the defendants within 120 days pursuant to Fed. R. Civ. P. 4(j). We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

We review a district court's dismissal of an action pursuant to Rule 4(j) for abuse of discretion. West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1528 (9th Cir. 1990). Rule 4(j) provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

Here, Sands was proceeding in forma pauperis and was entitled to service of process by the U.S. Marshal. 28 U.S.C. § 1914(c). Sands filed his amended complaint on September 25, 1989. On November 2, 1989, the court dismissed all but two of the defendants and ordered service by the Marshal on the remaining two defendants. Sands was sent a service packet with instructions to complete and return it. Sands failed to return the service packet. On March 20, 1990, the Magistrate issued an order in which he found that the Rule 4(j) period for service had already expired and gave Sands 30 days in which to show good cause why service had not been made. Sands failed to respond to this order, and on April 27, 1990, the action was dismissed. Given these circumstances, we find that the district court did not abuse its discretion in dismissing the action pursuant to Rule 4(j). See West Coast Theater, 897 F.2d at 1528; Wei v. Hawaii, 763 F.2d 370, 371-72 (9th Cir. 1985).

On appeal, Sands argues that the district court erred when it dismissed the other defendants under the doctrine of judicial immunity. In his complaint, Sands named Justices of the Arizona Supreme Court, Judges of the Arizona Court of Appeals and the Superior Courts, Clerks of the Superior Courts, an Assistant Arizona Attorney General, the Chairman of the Arizona Board of Pardons and Paroles, and the Arizona Department of Corrections.

Judges are absolutely immune from section 1983 liability for damages for their judicial acts unless they act in the clear absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). Here, all the named justices and judges were sued for judicial acts and thus are absolutely immune.

Court clerks have absolute quasi-judicial immunity from [Illegible Word] for under section 1983 when they perform tasks that are an integral part of the judicial process. Mullis v. United States Bankruptcy Court, Dist. of Nev., 828 F.2d 1385, 1390 (9th Cir. 1987). Here, Sands alleged only acts which were part of the judicial process, and the clerks are immune from suit.

A prosecutor is absolutely immune from a section 1983 suit for damages for initiating a prosecution and presenting the State's case. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Because Sands sued the Assistant Arizona Attorney General for her role in prosecuting his case, she is immune from suit.

Parole board officials are entitled to absolute immunity from suits by prisoners for actions taken when processing parole applications. Sellars v. Procunier, 641 F.2d 1295, 1302, cert. denied, 454 U.S. 1102 (1981). Sands sued the Chairman of the Arizona Board of Pardons and Paroles because he denied Sands's parole. Thus, the Chairman is entitled to immunity.

Under the Eleventh Amendment, a state or state agency may not be sued in federal court without its consent. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Thus, the Arizona Department of Corrections is not a proper defendant. Accordingly, these defendants were all properly dismissed.

the district court also correctly dismissed Sands's complaint insofar as it sought injunctive and declaratory relief. Sands alleged that his rights had been violated in several proceedings in the Arizona state courts. Federal courts do not sit in review of state courts' decisions. Allah v. Superior Court of State of Cal., 871 F.2d 887, 890 (9th Cir. 1989). Although Sands was given two opportunities to amend his complaint, he failed to allege specific facts supporting a ...

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