940 F2d 668 Noheart v. A Fomin J

940 F.2d 668

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Franklin P. NOHEART, Plaintiff-Appellant,
Christine A. FOMIN, Daniel J. Berschauer, Thurston County,

No. 90-35352.

United States Court of Appeals, Ninth Circuit.

Submitted July 23, 1991.*
Decided July 26, 1991.

Before PREGERSON, D.W. NELSON and REINHARDT, Circuit Judges.




Franklin P. Noheart appeals pro se the district court's summary judgment in favor of defendants Daniel J. Berschauer and Thurston County and dismissal without prejudice of defendant Christine A. Fomin under Rule 4(j) in Noheart's 42 U.S.C. Sec. 1983 action for damages. We review the district court's grant of summary judgment de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 110 S.Ct. 3217 (1990), and review a dismissal under Rule 4(j) for an abuse of discretion, Townsel v. County of Contra Costa, 820 F.2d 319, 320 (9th Cir.1987). We affirm.


In his complaint, Noheart alleged that Judge Berschauer deprived him of his civil liberties by refusing to enter a default judgment in his divorce case. The district court properly granted summary judgment in favor of Berschauer, who is absolutely immune from section 1983 liability for his judicial acts involving rulings in a state divorce proceeding. See Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir.1986) (en banc); see also Wash. Const. art. IV, Sec. 6 (superior court has original jurisdiction in divorce proceedings); Wash.Rev.Code Sec. 2.08.010 (same).


Noheart also alleged in his complaint that Thurston County was liable for the alleged omissions by Judge Berschauer because Judge Berschauer was elected by county residents and therefore is a county employee. The district court properly granted summary judgment in favor of Thurston County on this claim. See generally Monell v. Department of Social Servs., 436 U.S. 658 (1978).


Finally, the district court properly dismissed Noheart's complaint without prejudice as to defendant Fomin for failure to timely effect service within 120 days as required by Fed.R.Civ.P. 4(j). Noheart, who is proceeding in forma pauperis, attempted to serve Fomin with the assistance of a United States Marshal in accordance with Rule 4(c)(2)(B)(i). An incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the Marshal for service of the summons and complaint after having provided the necessary information to help effectuate service. Puett v. Blandford, 912 F.2d 270, 275 (9th Cir.1990). Here, however, Noheart was unable to obtain Fomin's correct address, and the Marshal was unable serve Fomin. Moreover, as the district court noted, Noheart will not be prejudiced by the dismissal of Fomin without prejudice because Washington's tolling statute suspends the limitations period for actions accruing after a plaintiff's incarceration. See Wash.Rev.Code Sec. 4.16.190. Accordingly, the district court properly dismissed Fomin without prejudice.




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