124 F3d 212 Tong v. P Hunt L

124 F.3d 212

Shong-Ching TONG, Plaintiff-Appellant,
Jack P. HUNT, Individually; Jennifer Wenger, Individually;
Martin L. Goetsch, Individually; County of Los
Angeles, Defendants-Appellees.

No. 97-55252.

United States Court of Appeals, Ninth Circuit.

Submitted September 22, 1997.**
Decided September 29, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeal from the United States District Court for the Central District of California Kim McLane Wardlaw, District Judge, Presiding; No. CV-95-04292-KMW-Mc.

Before: HALL, BRUNETTI and THOMAS, Circuit Judges.

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Shong-Ching Tong appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action. We affirm.1


In his complaint, Tong alleged that the County of Los Angeles and a municipal court judge, commissioner and administrator violated his constitutional rights in connection with his conviction for driving without a seat belt. The district court dismissed his claims against the court commissioner, but granted him leave to amend as to the remaining defendants. Tong failed to file an amended complaint, and the district court dismissed his action for failure to prosecute.


We agree with the district court that Tong's claims against the court commissioner are barred by the doctrine of judicial immunity because the commissioner was acting in a judicial capacity in presiding at Tong's trial and sentencing. See Franceschi v. Schwartz, 57 F.3d 828, 830-31 (9th Cir.1995).


The district court did not abuse its discretion by dismissing Tong's remaining claims for failure to prosecute in light of his failure to file an amended complaint within the time specified by the magistrate judge, despite the magistrate judge's warning that failure to do so could result in the dismissal of his case. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.1992).


Finally, we reject Tong's assertion that the district court improperly denied his motions to disqualify the district judge and the magistrate judge. See Liteky v. United States, 510 U.S. 540, 555 (1994).



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The panel unanimously finds this case suitable for decision without oral argument. See 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 Cir. R. 36-3


Contrary to the defendants' contention, Tong's appeal has not become moot by virtue of the Los Angeles Superior Court's reversal of his conviction because he seeks damages. See Z Channel Ltd. Partnership v. Home Post Office, Inc., 931 F.2d 1338, 1340-41 (9th Cir.1991)