Appeal from the United States District Court for the District of Nevada. D.C. No. CV-90-00457-PMP (R. Philip M. Pro, District Judge, Presiding
Before: Goodwin, Noonan, and T.g. Nelson, Circuit Judges.
Harold Davis (Davis) appeals the dismissal of his 42 U.S.C. §§ 1983 and 1985 claims against various defendants, including Judge William Beko (Beko), individual members of the grand jury, the prosecuting attorney, Philip Dunleavy (Dunleavy) and an investigator for the district attorney's office, John Adams (Adams). The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and affirm.
FACTS AND PROCEDURAL HISTORY
During all relevant times related to this appeal, Davis was the Sheriff for Nye County, Nevada. His complaint alleged that Beko and Dunleavy conspired to deprive him of his constitutional rights. He claims that they demanded his resignation as sheriff under threat of prosecution for his alleged misconduct in obtaining travel compensation by false pretenses. Davis further alleges that because he refused to resign, the district attorney's office filed a criminal complaint against him and that Judge Beko impaneled a limited grand jury to inquire into the misconduct.
After the Nye County District Court dismissed the grand jury indictment, Davis instituted this civil rights action against Beko, the grand jurors, Dunleavy and Adams.*fn1 Davis now appeals the district court's orders dismissing his action against each of the defendants. He contends that none of the appellees are immune from this civil rights action.*fn2
A dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) is a question of law reviewed de novo. Oscar v. University Students Co-operative Ass'n, 965 F.2d 783, 785 (9th Cir.) (en banc), cert. denied, 113 S. Ct. 655 (1992). Review is limited to the contents of the complaint. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id. (internal quotations omitted). The issue of whether a Judge is entitled to judicial immunity is reviewed de novo. Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 1990).
Davis argues that Judge Beko violated his constitutional rights in that he conspired with other officials to force Davis's resignation and that he impaneled a limited grand jury because Davis refused to resign. We reject this contention.
"Judges and those performing Judge-like functions are absolutely immune from damage liability for acts performed in their official capacities." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). Furthermore, judicial immunity applies to § 1983 claims. O'Neil v. City of Lake Oswego, 642 F.2d 367, 368 n.3 (9th Cir. 1981). A Judge is protected if: (1) he performed a "judicial act," and (2) he did not act in "clear absence of jurisdiction." Stump v. Sparkman, 435 U.S. 349, 356-57, 360 (1978).
In determining whether an act is "judicial," we consider "the nature of the act itself, i.e., whether it is a function normally performed by a Judge." Crooks, 913 F.2d at 700 (internal quotations omitted) (judge protected by absolute judicial immunity when he used his contempt power to enforce administrative order he had previously issued). Although absolute judicial immunity does not extend to administrative, legislative and executive functions that a Judge may perform, id. (citing Forrester v. White, 484 U.S. 219, 227-29 (1988)), immunity applies "as long as the Judge's ultimate acts are judicial actions taken within the court's subject matter jurisdiction. . . ." Ashelman, 793 F.2d at 1078 (emphasis added) (focus is upon the Judge's ultimate acts rather than his underlying actions). In Ashelman, ...