Leonard Ginter v. State Bar of Nevada

Ninth Circuit

Leonard Ginter v. State Bar of Nevada

625 F.2d 829, 1980 U.S. App. LEXIS 14991

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 11, 1980

Docket77-3530

StatusPublished

Cited by35 cases

This text of 625 F.2d 829 (Leonard Ginter v. State Bar of Nevada) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Leonard Ginter v. State Bar of Nevada, 625 F.2d 829, 1980 U.S. App. LEXIS 14991 (9th Cir. 1980).

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Opinion

PER CURIAM.

Ginter appeals the dismissal of his pro se case against the Nevada State Bar Association and two attorneys.

*830 As to the bar association, it is obvious that the district judge intended to dismiss the action because he believed no possible amendment could cure the complaint. Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir. 1978); Lanning v. Serwold, 474 F.2d 716 (9th Cir. 1973). The district court held such an organization is not a person within the meaning of 42 U.S.C. § 1983, apparently relying on Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir. 1966). Clark, however, relies indirectly on the holding in Monroe v. Pape, 365 U.S. 167, 187-91, 81 S.Ct. 473, 484-486, 5 L.Ed.2d 492 (1961) (a municipality is not a “person” within the meaning of § 1983), and that part of Monroe has been expressly overruled in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-2036, 56 L.Ed.2d 611 (1978).

Nevertheless, Supreme Court case law decided subsequent to Monell has made it clear that Monell does not alter the rule that § 1983 does not constitute an abrogation of the Eleventh Amendment immunity of the states. E. g., Quern v. Jordan, 440 U.S. 332, 338-41, 99 S.Ct. 1139, 1143-1144, 59 L.Ed.2d 358 (1979); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). See Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1972). This case is thus controlled by Alabama v. Pugh, supra, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114, in which the Court held “that the State of Alabama could not be joined as a defendant without violating the Eleventh Amendment.” Quern v. Jordan, supra, 440 U.S. at 339, 99 S.Ct. at 1144. Similarly, the Nevada State Bar Association, as an arm of the state, is not subject to suit under the Eleventh Amendment.

As to the attorneys Smith and Dotson, from the record, it is not clear whether the district court dismissed only the complaint or whether the district court also dismissed the underlying action. A motion was brought to dismiss the action or in the alternative to dismiss the complaint. In its order the district court stated “defendants, J. E. Smith and Edwin J. Dotson, although persons, have not been charged by plaintiff with acting under color of state law.” There is no reason appearing in the record why such allegations could not be made, and therefore we assume that the district court was only dismissing the complaint.

Because the dismissal of a complaint is not an appealable order, we dismiss the appeal as to Smith and Dotson. Clardy v. Levi, 545 F.2d 1241, 1242 n. 2. (9th Cir. 1976); Jones v. Pitchess, 469 F.2d 678 (9th Cir. 1972); Jackson v. Nelson, 405 F.2d 872 (9th Cir. 1968).

AFFIRMED AS TO NEVADA STATE BAR ASSOCIATION; APPEAL DISMISSED AS TO SMITH AND DOTSON.

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PER CURIAM.

Ginter appeals the dismissal of his pro se case against the Nevada State Bar Association and two attorneys.

*830 As to the bar association, it is obvious that the district judge intended to dismiss the action because he believed no possible amendment could cure the complaint. Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir. 1978); Lanning v. Serwold, 474 F.2d 716 (9th Cir. 1973). The district court held such an organization is not a person within the meaning of 42 U.S.C. § 1983, apparently relying on Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir. 1966). Clark, however, relies indirectly on the holding in Monroe v. Pape, 365 U.S. 167, 187-91, 81 S.Ct. 473, 484-486, 5 L.Ed.2d 492 (1961) (a municipality is not a “person” within the meaning of § 1983), and that part of Monroe has been expressly overruled in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-2036, 56 L.Ed.2d 611 (1978).

Nevertheless, Supreme Court case law decided subsequent to Monell has made it clear that Monell does not alter the rule that § 1983 does not constitute an abrogation of the Eleventh Amendment immunity of the states. E. g., Quern v. Jordan, 440 U.S. 332, 338-41, 99 S.Ct. 1139, 1143-1144, 59 L.Ed.2d 358 (1979); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). See Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1972). This case is thus controlled by Alabama v. Pugh, supra, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114, in which the Court held “that the State of Alabama could not be joined as a defendant without violating the Eleventh Amendment.” Quern v. Jordan, supra, 440 U.S. at 339, 99 S.Ct. at 1144. Similarly, the Nevada State Bar Association, as an arm of the state, is not subject to suit under the Eleventh Amendment.

As to the attorneys Smith and Dotson, from the record, it is not clear whether the district court dismissed only the complaint or whether the district court also dismissed the underlying action. A motion was brought to dismiss the action or in the alternative to dismiss the complaint. In its order the district court stated “defendants, J. E. Smith and Edwin J. Dotson, although persons, have not been charged by plaintiff with acting under color of state law.” There is no reason appearing in the record why such allegations could not be made, and therefore we assume that the district court was only dismissing the complaint.

Because the dismissal of a complaint is not an appealable order, we dismiss the appeal as to Smith and Dotson. Clardy v. Levi, 545 F.2d 1241, 1242 n. 2. (9th Cir. 1976); Jones v. Pitchess, 469 F.2d 678 (9th Cir. 1972); Jackson v. Nelson, 405 F.2d 872 (9th Cir. 1968).

AFFIRMED AS TO NEVADA STATE BAR ASSOCIATION; APPEAL DISMISSED AS TO SMITH AND DOTSON.

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625 F.2d 829, 1980 U.S. App. LEXIS 14991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leonard-ginter-v-state-bar-of-nevada-ca9-1980.

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