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Mosley v. County of Clark

filed*fn*: June 29, 1993.

JEROME MOSLEY, PLAINTIFF-APPELLANT,
v.
COUNTY OF CLARK, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-91-00153-PMP. Philip M. Pro, District Judge, Presiding

Before: Fairchild,**fn** Beezer, and Wiggins, Circuit Judges.

MEMORANDUM

Plaintiff Jerome Mosley filed 42 U.S.C. § 1983 claims against various defendants, including the State of Nevada;*fn1 Clark County; the Las Vegas Metropolitan Police Department ("LVMPD"); sheriff John Moran; officers Michael McClary, Steve Franks, and J. Tighe; James Beshear, an accountant for LVMPD; District Attorney Rex Bell; Assistant District Attorneys Thomas Leen and C. Dan Bowman; Justice of the Peace James M. Bixler; and John H. Momot, a private attorney.*fn2 The claims arose from the defendant's variegated participation in the procurement and execution of arrest and search warrants and the subsequent forfeiture proceedings with regard to property that was seized from Jerome Mosley, Alma Lee Mosley, and Delores V. Mosley. After Alma Lee Mosley and Delores V. Mosley stipulated to the dismissal with prejudice of their claims against the various defendants, the district court dismissed all of Jerome Mosley's § 1983 claims. Mosley appeals. We affirm.

I. Facts

Prior to March 7, 1990, a member of the LVMPD allegedly purchased cocaine from Jerome Mosley as part of an undercover investigation. On March 7, 1990, officers obtained search and seizure warrants from Justice of the Peace Bixler regarding property at the Mosley household and other residences believed to be under the direct control of Jerome Mosley. Officers executed the warrants and seized property that the officers believe was derived from the profits of drug sales. Among the property were items in which all of the aforementioned Mosleys claim to share varying degrees of title. Jerome Mosley was subsequently arrested and indicted for trafficking in and conspiring to sell cocaine.

II. Discussion

A. Defendants Bell, Leen, Bowman and Bixler

The district court dismissed Jerome Mosley's § 1983 claims against the prosecutorial defendants (Bell, Leen, and Bowman) based on prosecutorial immunity and against Justice of the Peace Bixler based on judicial immunity. Mosley now challenges these dismissals. We affirm.

First, Mosley's appeal of this issue is untimely. The district court entered its "final judgment" dismissing defendants Bell, Leen, Bowman, and Bixler on September 4, 1991. Under Fed. R. Civ. P. 54(b), this was a final, appealable judgment, see Continental Airlines v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1524-25 (9th Cir. 1987), and Mosley had 30 days thereafter to file his notice of appeal with the district court. See Fed. R. App. Proc. 4(a). Because Mosley did not do so, his appeal as to this issue is untimely.

Second, even if Mosley's appeal were timely, it would nevertheless fail. Prosecutors are entitled to absolute immunity from § 1983 claims. Imbler v. Pachtman, 424 U.S. 409, 427 (1976); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). This "immunity extends to protect a prosecutor who acts within his or her authority and in a quasi-judicial capacity," Ashelman, 793 F.2d at 1076, with "the focus [] on the nature or function of the prosecutor's activity." Id. If the activities "were performed as part of the prosecutor's preparation of his case, even if they can be characterized as 'investigative' or 'administrative,'" the immunity attaches. Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir. 1984), cert. denied, 469 U.S. 1127 (1985). Because we conclude that the prosecutor's immunity applies to all of the challenged actions in this case, including applying for and executing a search warrant, obtaining property by forfeiture, and reaching a compromise agreement regarding the forfeiture with Mosley's then attorney, we affirm the district court's dismissal of Mosley's § 1983 claims against defendants Bell, Leen, and Bowman.

With respect to defendant Justice of the Peace Bixler, "Judges are immune from damage actions for judicial acts taken within the jurisdiction of their courts." Ashelman, 793 F.2d at 1075. A Judge is deprived of this immunity "only when he has acted in the clear absence of all jurisdiction", Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1872)), or when he performs an act that is not "judicial" in nature. Id. at 360.

First, a Judge acts in the "clear absence of all jurisdiction" only when he clearly lacks subject matter jurisdiction. Ashelman, 793 F.2d at 1076. Because Nevada law authorizes a Justice of the Peace to issue search warrants, see Nev. Rev. Stat. Ann. §§ 169.095 & 179.045 (Michie 1992), such is not the case here.

Second, to determine if a given action is judicial in nature, we consider "whether (1) the precise act is a normal judicial function; (2) the events occurred in the Judge's chambers; (3) the controversy centered around a case then pending before the Judge; and (4) the events at issue arose directly and immediately out of a confrontation with the Judge in his or her official capacity." Ashelman, 793 F.2d at 1075-76. "These factors are to be construed generously in favor of the Judge and in light of the policies underlying judicial immunity." Id. at 1076. We focus our inquiry on the "ultimate acts" of the Judge, not his underlying actions. Id. at 1078.

In this case, Mosley essentially challenges defendant Bixler's actions in issuing and sealing a search warrant. Focusing on this as defendant Bixler's "ultimate act," we have little difficulty concluding that this was a judicial act for ...


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