874 F. 2d 816 - Ortiz v. C Van Auken

MEMORANDUM*

Ben Ortiz brought this action pursuant to 42 U.S.C. Sec. 1983 (1982), alleging that a police officer, municipal judge, and deputy district attorney caused the issuance without probable cause of a search warrant for his home. The district court granted Judge Van Auken's motion to dismiss on the ground of absolute immunity. The claims against Jesse Witt, the prosecutor, were dropped at the summary judgment stage for similar immunity reasons. Pursuant to Fed.R.Civ.P. 54(b), the district court certified as final the judgments in favor of Witt and Van Auken, and Ortiz timely appealed. Ortiz challenges the district court's two immunity rulings. He further complains that an ethical violation occurred because the same law firm represented all three defendants. Finally, Ortiz contests the award of attorneys' fees levied against him by the district court for pursuing a groundless claim. We affirm.

A judge is absolutely immune from suit under 42 U.S.C. Sec. 1983 unless he or she "acts in the 'clear absence of all jurisdiction,' or performs an act that is not 'judicial' in nature." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.1986) (en banc) (citations omitted); see also Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). When making an immunity determination, a judge's motives are irrelevant. See Ashelman, 793 F.2d at 1078. "As long as the judge's ultimate acts are judicial actions taken within the court's subject matter jurisdiction, immunity applies." Id. Judge Van Auken's ultimate act--the issuance of a search warrant--was a judicial action within the court's jurisdiction. See Cal.Penal Code Secs. 808, 1528(a) (West 1982 & 1985) (providing the authority to issue a search warrant). Thus, the district court did not err in concluding that Judge Van Auken was absolutely immune from suit.

"Prosecutors are absolutely immune for quasi-judicial activities taken within the scope of their authority." Ashelman, 793 F.2d at 1078. In determining whether a prosecutor acted within the scope of his or her authority, we consider whether the conduct was "more or less connected with the general matters committed to his or her control or supervision." Schlegel v. Bebout, 841 F.2d 937, 943 (9th Cir.1988) (emphasis in original) (citing Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 678 (9th Cir.1984)). Conduct is quasi-judicial in nature if the prosecutor acted "as an advocate in initiating a prosecution and in presenting the state's case." Id. at 942 (citation omitted). A prosecutor's performance of investigative or administrative functions in the preparation of a case is also accorded absolute immunity. Id. at 943.

In the present case, Witt provided advice to a law enforcement official regarding the existence of probable cause and the likelihood of obtaining a search warrant. This activity was clearly within the scope of his authority as one of his job responsibilities was to consult with police officers on search and seizure matters. In addition, Witt's conduct was quasi-judicial in nature, because it was an integral part of the initiation and preparation of a potential prosecution. The district court did not err, then, in finding Witt absolutely immune from suit.

Ortiz next asks this court to "rule and establish some guidelines" regarding the ethics of a single law firm representing multiple defendants. Although it is true that all three original defendants were represented by the same law firm in the district court, Ortiz has never explained how he was prejudiced by the defendants' joint representation. We therefore decline to address the matter.

Finally, Ortiz argues that the district court's award of attorneys' fees to Van Auken was improper. Attorneys' fees should be awarded to a prevailing civil rights defendant "only where the action brought is found to be unreasonable, frivolous, meritless or vexatious." Patton v. County of Kings, 857 F.2d 1379, 1381 (9th Cir.1988) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). The district court found that Ortiz's claim against Van Auken was groundless because it was clearly foreclosed by Stump, 435 U.S. 349.

In Ortiz's defense, there was some confusion in this circuit regarding whether a judge's motives for performing a judicial act should be considered in the immunity calculus. See, e.g., Beard v. Udall, 648 F.2d 1264 (9th Cir.1981); Rankin v. Howard, 633 F.2d 844 (9th Cir.1980), cert. denied, 451 U.S. 939 (1981). This controversy, however, was laid to rest by Ashelman v. Pope, 793 F.2d 1072 (9th Cir.1986), an en banc decision (overruling Beard and Rankin ) issued one week before Ortiz filed his complaint. Given the tight time frame between the Ashelman decision and Ortiz's complaint, a sanction for filing the complaint would probably have been inappropriate. However, Ortiz continued to pursue the matter in the district court even after Ashelman had gutted his theory of relief. Indeed, Ortiz has made the same argument to this court on appeal. Under these circumstances, we will not disturb the district court's award of fees.

As for the present appeal, each party shall bear its own costs.

AFFIRMED.