840 F. 2d 17 - Mahlerwein v. Bruewer

Before BOYCE F. MARTIN, Jr., and ALAN E. NORRIS, Circuit Judges and JOINER, Senior District Judge.*

This Ohio plaintiff moves the court to stay the execution of a state foreclosure judgment pending his appeal of the district court's judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. Sec. 1983. Additionally, plaintiff moves the court to hold defendants in contempt and to issue a permanent injunction against appellees. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and the briefs, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Plaintiff filed the underlying civil rights action seeking monetary damages and injunctive relief against an Ohio judge, a sheriff, and a deputy. Plaintiff alleged that defendants attempted to accomplish the judicial sale of his property in violation of constitutionally protected rights. The district court granted defendants' motions to dismiss after determining that defendants were entitled to absolute judicial immunity.

Upon review we conclude that dismissal under Fed.R.Civ.P. 12(b)(6) was proper. Defendants are entitled to absolute immunity from suit for damages. See King v. Love, 766 F.2d 962 (6th Cir.), cert. denied, 474 U.S. 971 (1985); Green v. Maraio, 722 F.2d 1013 (2d Cir.1983). Moreover, no hearing or trial is required prior to dismissal pursuant to Fed.R.Civ.P. 12(b)(6). See e.g., Imbler v. Pachtman, 424 U.S. 409, 419 n. 13 (1976).

We further conclude that the motion for stay of execution pending the appeal, the motion to hold appellees in contempt, and the request for a permanent injunction are without merit.

Accordingly, the requests for injunctive relief and the motion to hold appellees in contempt are denied. The judgment of dismissal entered June 9, 1987, is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.