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Klein v. Boxx

*fn* submitted: April 27, 1993.

NOLAN EDWARD KLEIN, PETITIONER-APPELLANT,
v.
SHERMANN BOXX; COUNTY OF WASHOE; DANIEL BOGDEN, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-89-00430-HDM. Howard D. McKibben, District Judge, Presiding

Before: Browning, Kozinski and Rymer, Circuit Judges.

MEMORANDUM

Nolan Klein appeals pro se the district court's dismissal with prejudice of his 42 U.S.C. § 1983 action against the City of Sparks ("City"), individual city employees and employees of Washoe County ("County").*fn1 Klein alleged constitutional violations arising from the towing of his motor vehicle at the time of his arrest for sexual assault. Klein also seeks review of the district court's denial of his motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b).*fn2 We dismiss in part and affirm in part Klein's appeal from the district court's dismissal of his section 1983 action. We dismiss Klein's appeal from the district court's denial of his Rule 60(b) motion for lack of jurisdiction.

I

District Court Judgment*fn3

A. Claims against the City and City employees

On December 20, 1991, the district court entered judgment dismissing with prejudice Klein's action against the City and City employees pursuant to a stipulation between Klein and the City defendants.

Generally, a plaintiff may not appeal a voluntary dismissal because it is not an involuntary adverse judgment against him. See Seidman v. City of Beverly Hills, 785 F.2d 1447, 1448 (9th Cir. 1986); accord Plasterers Local Union No. 346 v. Wyland Enters. Inc., 819 F.2d 217, 219 (9th Cir. 1987) ("Generally a party may not gain review of a stipulated judgment."). Accordingly, a plaintiff's agreement to dismiss his action with prejudice deprives this court of jurisdiction to consider his appeal. Seidman, 785 F.2d at 1448.

Here, Klein entered into an agreement to discharge the City and its employees from all liability in connection with the towing of his car and to dismiss the action with prejudice. Accordingly, because Klein agreed to dismiss his action with prejudice, this court lacks jurisdiction to review the district court's dismissal of Klein's action against the City defendants. See id.

B. County Defendants

Klein contends that Daniel Bogden, the deputy district attorney for Washoe County, violated his civil rights by advising City officers to impound Klein's vehicle.*fn4 The district court dismissed Klein's claim against Bogden on May 31, 1991 on the basis that Klein had failed to show any type of personal involvement that would subject Bogden to liability.

The prosecutor, in initiating and presenting the state's case, is immune from civil suits for money damages under section 1983. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Absolute immunity attaches to prosecutorial conduct intimately associated with the judicial phase of the criminal process. Id. at 430. Investigative functions carried out in the preparation of a prosecutor's case similarly enjoy absolute immunity. Schlegel v. Bebout, 841 F.2d 937, 944 (9th Cir. 1988).

Here, it appears that Bogden was acting in the capacity of an on-call deputy district attorney when he advised the City police officers to impound Klein's vehicle. Accordingly, because Bogden was entitled to absolute immunity for his acts, the ...


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