859 F2d 154 Burgess v. State of Nevada

859 F.2d 154

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Jerald H. BURGESS, Plaintiff-Appellant,
v.
STATE OF NEVADA, Robert G. Legakes, Myron E. Leavitt, Robert
J. Miller, Melvyn T. Harmon, Defendants-Appellees.

No. 87-1678.

United States Court of Appeals, Ninth Circuit.

Submitted June 17, 1988.*
Decided Sept. 15, 1988.

Before FLETCHER, PREGERSON and CANBY, Circuit Judges.


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1

MEMORANDUM**

2

Jerald H. Burgess, a Nevada state prisoner, appeals pro se and in forma pauperis the district court's dismissal of his 42 U.S.C. Sec. 1983 action for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm the judgment.

3

* Background

4

Jerald H. Burgess was apparently convicted of a felony in state court based on an information. On June 10, 1986, Burgess filed a pro se civil rights action under 42 U.S.C. Secs. 1981, 1983, 1985 and 1988 in federal district court. The complaint alleged that: (1) the State of Nevada, Judges Robert Legakes and Myron Leavitt, and District Attorneys Robert Miller and Melvyn Harmon conspired to deny Burgess his constitutional right to a grand jury indictment; (2) Miller and Harmon conspired to prevent Burgess's release on parole; and (3) all the defendants subjected Burgess to cruel and unusual punishment as a result of improper prison conditions.1

5

Miller and Harmon moved under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim. On January 9, 1987, the district court granted the motion and dismissed Burgess's complaint as to all defendants.2 Burgess appeals.

II

Standard of Review

6

This court reviews de novo a district court's dismissal of an action for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Mir v. Little Company of Mary Hospital, 844 F.2d 646, 649 (9th Cir.1988). A Rule 12(b)(6) dismissal motion "can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980).

7

A court should liberally construe pro se civil rights pleadings, affording the plaintiff the benefit of any doubt. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985) (en banc)).

III

Merits

A. Right to Grand Jury


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8

Burgess contends that the defendants violated his civil rights by trying him for a felony without a grand jury indictment. This contention lacks merit.

9

The fifth amendment right to a grand jury indictment does not apply to state court proceedings. Hurtado v. California, 110 U.S. 516, 538 (1884); Morford v. Hocker, 394 F.2d 169, 170 (9th Cir.), cert. denied, 392 U.S. 944 (1968). In Nevada, there is no state constitutional right to a grand jury. See Nev. Const. Art. I Sec. 8; Nev.Rev.Stat. 173.025 (1987); Morford, 394 F.2d at 170. Therefore, the defendants did not violate Burgess's constitutional rights by charging him by information.

10

Because Burgess had no constitutional right to a grand jury indictment, his section 1983 claim lacks substance in law and cannot state a claim upon which relief can be granted. See Mir, 844 F.2d at 649.

11

B. Sovereign, Judicial, and Prosecutorial Immunity

12

Even if Burgess's grand jury claim were cognizable under section 1983, the defendants--the State of Nevada, two state court judges, and two state prosecutors--are immune from damages under 42 U.S.C. Sec. 1983.

13

The eleventh amendment guarantees a state sovereign immunity from private citizens' federal court actions unless the state has consented to suit. Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam). Nevada has not waived the sovereign immunity granted by the eleventh amendment. Nev.Rev.Stat. Sec. 41.031(3) (1987); Production & Leasing, Ltd. v. Hotel Conquistador, Inc., 709 F.2d 21 (9th Cir.1983) (per curiam).

14

Judges are absolutely immune from civil suits for damages for actions taken in their official capacities. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.1986) (en banc). A judge's act is "judicial" when it is a function ordinarily performed by a judge and when the parties have dealt with the judge in his or her official capacity. Stump, 435 U.S. at 362; Ashelman, 793 F.2d at 1075. Prosecutors are entitled to absolute immunity from civil damages under section 1983, when, as advocates, they initiate a prosecution and present the state's case. Imbler v. Pachtman, 424 U.S. 409, 427, 430-431 (1976).

15

Hence, all the defendants are entitled to absolute immunity from damages for their roles in prosecuting Burgess without a grand jury indictment.

16

Burgess also claims that prosecutors Miller and Harmon violated his civil rights by petitioning the parole board not to release him on parole. Prosecutors are absolutely immune from section 1983 liability for "acts performed within the scope of [their] authority in [their] role as ... advocate[s]." Morris v. County of Tehama, 795 F.2d 791, 793 (9th Cir.1986). The Nevada Supreme Court has held that the prosecutor of a criminal defendant is a "person beneficially interested" in the defendant's parole hearing and, therefore, may present evidence against the defendant at the hearing. Shepley v. Warden, Nevada State Prison, 90 Nev. 93, 94, 518 P.2d 619, 620 (1974); Raggio v. Campbell, 80 Nev. 418, 421-422, 395 P.2d 625, 627 (1964).

17

Although the district court did not address this claim, Burgess merely alleged that the prosecutors recommended that he not be paroled. Because such recommendations are within the scope of their authority as advocates, the prosecutors are absolutely immune from liability for such actions. See Morris, 795 F.2d at 793.

18

Thus, all of the defendants enjoy absolute immunity, and dismissal as to them was proper.3

19

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3

1

In his brief on appeal, Burgess also contends that (1) he should be credited with jail time served in the Clark County jail while awaiting trial; (2) he was entitled to a grand jury indictment because the southern part of Nevada was a territory of the United States and not an independent state; and (3) Judge Leavitt was biased. However, this court will not review an issue not raised in the district court except to prevent manifest injustice. International Union of Bricklayers & Allied Craftsman Local 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985). Before we will address such an issue, the proponent must demonstrate exceptional circumstances for failing to raise the issue below. Id. Burgess gives no reason for his failure to raise these issues in the district court; therefore, we decline to address them

2

The district court dismissed the claims against the nonmoving defendants on its own motion. A trial court may sua sponte dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir.1987); Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir.1981)

3

Defendants' requests for attorneys' fees are denied