OpenJurist

919 F2d 145 McKinney v. R Leavitt E I

919 F.2d 145

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

William McKINNEY, Plaintiff-Appellant
v.
Lawrence R. LEAVITT, Bill E. Hammer, Charles Thompson, Jane
Doe I, et al., Defendants-Appellees

No. 88-2716.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 6, 1990.*
Decided Nov. 23, 1990.

Before JAMES R. BROWNING, PREGERSON and TROTT, Circuit Judges.

1

MEMORANDUM**

2

William McKinney, an inmate at the Nevada state prison, acting pro se and proceeding in forma pauperis, appeals the dismissal of his civil rights complaint. McKinney contends that the district court failed to consider his timely objections to the magistrate's report recommending dismissal of the complaint. We affirm.

3

A district judge may designate a United States magistrate to conduct hearings and submit to the court proposed findings of fact and recommendations for disposition of the matter. 28 U.S.C. Secs. 636(b)(1)(B) and (C). Upon service of the magistrate's report, a party has ten days to file written objections to the proposed findings and recommendations. 28 U.S.C. Secs. 636(b)(1)(C). Thereafter, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.

4

The magistrate assigned to McKinney's case found that his cause of action was frivolous under 28 U.S.C. Sec. 1915(d) and filed a report on March 7, 1988 recommending dismissal of the complaint before service on the defendants. On March 16, 1988, McKinney filed timely objections to the report. On April 22, 1988, the district court adopted the magistrate's findings and ordered dismissal of McKinney's complaint. In this order, the court erroneously explained that "no objection has been filed and the time for filing objections has expired."

5

Because McKinney filed written objections to the proposed factual findings and recommendation of the magistrate, the district court had a statutory obligation to make a de novo determination of the disputed facts. United States v. Remsing, 874 F.2d 614, 616 (9th Cir.1989). See also Gee v. Estes, 829 F.2d 1005, 1009 (10th Cir.1987) ("A court abuses its discretion by dismissing a claim under Sec. 1915(d) upon a magistrate's recommendations and findings without providing a de novo determination as to objections to the magistrate's report."). We find, however, that the district court's failure to review McKinney's objections was harmless error. Because the complete defense of absolute immunity appears on the face of McKinney's allegations, McKinney could not prevail even if the case were remanded for lack of de novo review.

6

In his objections to the magistrate's report, McKinney challenges the magistrate's finding that the named defendants, the judge and prosecutors, are absolutely immune from liability under 42 U.S.C. Sec. 1983. He alleges that the judge and prosecutors conspired to deprive him of due process and equal protection of law. Further, he alleges that the judge stepped outside his judicial capacity when he allowed the prosecutor to introduce illegally seized evidence and when the judge interfered with an attempted plea bargain. McKinney also alleges that the prosecutors unnecessarily continued their investigation of him after his arrest and improperly taped his conversations with prison visitors.

7

Based upon these allegations, the defendants have absolute immunity against liability. In Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir.1986) (en banc), we re-examined judicial and prosecutorial immunity and held that "a conspiracy between judge and prosecutor to predetermine the outcome of a judicial proceeding, while clearly improper, nevertheless does not pierce the immunity extended to judges and prosecutors." We broadly construed judicial immunity and stated that "[a]s long as the judge's ultimate acts are judicial actions taken within the court's subject matter jurisdiction, immunity applies." Id. Thus, the judge in this case is absolutely immune because the allegations, even if true, represent actions taken within the court's jurisdiction.

8

The prosecutors in this case have absolute immunity as well. In his objections, McKinney argues that the prosecutors lost their immunity by acting in an investigative capacity. We have stated, however, that "absolute prosecutorial immunity attaches to the actions of a prosecutor if those actions were performed as part of the prosecutor's preparation of his case, even if they can be characterized as 'investigative'...." Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir.1984). See also Freeman ex. rel. the Sanctuary, 708 F.2d 442, 443 (9th Cir.1983) (stating "[I]nvestigative functions carried out pursuant to the preparation of a prosecutor's case also enjoy absolute immunity."). In support of his argument that the prosecutors are not absolutely immune, McKinney only alleges that the prosecutors acted in an investigative capacity by taping his conversations after his arrest; however, he does not allege that any of their activities occurred outside the preparation of their case. Therefore, McKinney's allegations do not support his claim that the prosecutors lost their immunity in this case.

9

Accepting McKinney's allegations as true, we hold that the judge and prosecutors retained their absolute immunity against liability. Because we find that the defendants in this case are absolutely immune from liability, the fact that the district court failed to review McKinney's objections is immaterial. The order of the district court dismissing the cause of action is affirmed.

10

AFFIRMED.

*

The panel unanimously found this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 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 Cir.R. 36-3