846 F. 2d 1383 - Strand v. Government of United States M J

MEMORANDUM**

On September 18, 1986, John Albert Strand filed a pro se complaint against the United States, the United States Department of Justice and its employee attorney Robert M. Messick, and United States District Court Judge J. Lawrence Irving. The complaint alleged a cause of action for "compensatory and punitive damages for $10,000,000" plus costs because attorney Messick had made "distorted statements and lies" in a motion to dismiss an earlier action by Strand, and Judge Irving had "agreed with" Messick by ordering the dismissal. Strand further alleged that "the Government of the United States negligently failed to properly instruct, supervise, control and discipline" Judge Irving, and that the United States and the "Department of Justice negligently failed to properly instruct, supervise, control and discipline Defendant Robert M. Messick on a continuing basis." Strand claimed that the acts of the defendants were a "conspiracy, ... libel and slander," and deprived him of the "constitutional and statutory rights guaranteed to me ... by the first, fifth, seventh and fourteenth amendments of the Constitution of the United States" and by 42 U.S.C. Secs. 1983 & 1985.

The district court dismissed the complaint with prejudice based upon the sovereign immunity of all the defendants, and, with regard to Judge Irving and attorney Messick in their individual capacities, on the basis of judicial and quasi-judicial immunity. The district court also found that Strand had failed to allege a denial of his constitutional rights. On October 15, 1987, Strand filed this timely notice of appeal.ANALYSIS

The district court determined that it lacked subject matter jurisdiction based upon the sovereign immunity of some defendants, and the judicial and quasi-judicial immunity of defendants Judge Irving and Assistant United States Attorney Messick, in their individual capacities. Strand contends that the district court's dismissal of his complaint based on these immunities was in error. The existence of subject matter jurisdiction presents a question of law, which is reviewed de novo by this court. Peter Starr Production Co. v. Twin Continental Films, 783 F.2d 1440, 1442 (9th Cir.1986).

The United States is immune from suit unless it expressly waives immunity and consents to be sued. United States v. Shaw, 309 U.S. 495, 500-01 (1940); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985). Absent express statutory consent to sue, dismissal is required. Id. Additionally, the Department of Justice, as a federal agency, is also protected by sovereign immunity and is not subject to suit eo nomine, absent express consent. City of Whittier v. Department of Justice, 598 F.2d 561, 562 (9th Cir.1979). The United States has not provided a statutory waiver of sovereign immunity applicable to the present action.

Under certain circumstances, the Federal Tort Claims Act ("the Act") may provide a limited waiver of sovereign immunity. However, the Act specifically excludes: (1) any claims based upon the performance of a discretionary function or duty on the part of a federal employee, "whether or not the discretion involved [was] abused," 28 U.S.C. Sec. 2680(a); (2) any claims "arising in respect of the assessment or collection of any tax," 28 U.S.C. Sec. 2680(c)1; and (3) any claims "arising out of libel, slander, misrepresentation, [or] deceit," 28 U.S.C. Sec. 2680(h). Each of these exclusions defeats a waiver under the Act; thus sovereign immunity prohibits Strand from filing the present action. Additionally, the Act specifically prohibits the award of punitive damages, which were requested in the present action. 28 U.S.C. Sec. 2674. Finally, Strand's action may not be maintained under the Act, because he has not alleged or shown that he has filed an administrative claim prior to filing of this action, as required by the Act. 28 U.S.C. Sec. 2675(a).

The Bivens doctrine allows suits in certain circumstances against federal officials. Under Bivens, a plaintiff may sue federal officers in their individual, rather than their official, capacity. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971); Holloman v. Watt, 708 F.2d 1399, 1401-02 (9th Cir.1984), cert. denied, 106 S.Ct. 1183 (1985). However, a Bivens claim may not be brought against the United States or federal officials acting in their official capacity. Id. Since Strand's suit is against the United States and the federal employee defendants as federal officials and not as individuals, Bivens provides no jurisdictional basis for his claim.

Further, even if Strand had named Judge Irving and Assistant United States Attorney Messick in their individual capacities, his claim would still be barred, due to judicial and prosecutorial immunity.2 Judges are absolutely immune from liability in suits such as this one, seeking civil damages for their judicial acts. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.1986) (en banc); see Forrester v. White, 108 S.Ct. 538 (1988); see also Mullis v. Bankruptcy Court, 828 F.2d 1385, 1388 (9th Cir.1987).

Messick is also immune from liability in this action under prosecutorial immunity. Prosecutors are immune from a civil suit for damages in a 42 U.S.C. Sec. 1983 action. Imbler v. Pachtman, 424 U.S. 409, 431 (1976); see also Ashelman, 793 F.2d at 1076 ("where a prosecutor acts as an advocate 'in initiating a prosecution and in presenting the state's case,' absolute immunity applies.").

Because all the defendants in the action were immune from liability, the allegations of a conspiracy among them add nothing to the issue. Thus, the district court did not err in dismissing the complaint with prejudice.3 The decision of the district court is affirmed.