Shalaby v. Judicial Officers

Ninth Circuit

Shalaby v. Judicial Officers

138 F. App'x 897

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 24, 2005

DocketNo. 03-17067; D.C. No. CV-03-03358-CRB

StatusPublished

Cited by1 cases

This text of 138 F. App'x 897 (Shalaby v. Judicial Officers) 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.

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Shalaby v. Judicial Officers, 138 F. App'x 897 (9th Cir. 2005).

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Opinion

MEMORANDUM

**

Andrew W. Shalaby appeals the district court’s dismissal of his action against all of [898]*898the Judicial Officers of the State of California. We affirm.

Shalaby sued the judicial officers in their official capacity for the purpose of having one of the State of California’s statutes ¹ declared unconstitutional. His suit is, in effect, an action against an arm of the state itself. See Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir.2003). However, with certain exceptions, pursuant to the Eleventh Amendment to the United States Constitution “[t]he Judicial power of the United States” does not extend to an action by a citizen against a State. See Pennhurst State Sch. efe Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Hans v. Louisiana, 134 U.S. 1, 3-4, 9-10, 21, 10 S.Ct. 504, 505, 509, 33 L.Ed. 842 (1890). No exception to that prohibition applies here. See Seminole Tribe v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252 (1996) (exception when Congress properly abrogates immunity); Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304-05, 110 S.Ct. 1868, 1872, 109 L.Ed.2d 264 (1990) (exception when state waives immunity); Ex Parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 452, 52 L.Ed. 714 (1908) (state official can be enjoined).

Shalaby does assert that because he is suing the state’s judicial officers, he comes within the Ex Parte Young exception. He is wrong. “We agree with [the] decisions holding that judges adjudicating cases pursuant to state statutes may not be sued under § 1983 in a suit challenging the state law.” Grant v. Johnson, 15 F.3d 146, 148 (9th Cir.1994); see also Wolfe v. Strankman, 392 F.3d 358, 365-66 (9th Cir.2004); In re The Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 22 (1st Cir.1982).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM

**

Andrew W. Shalaby appeals the district court’s dismissal of his action against all of [898]*898the Judicial Officers of the State of California. We affirm.

Shalaby sued the judicial officers in their official capacity for the purpose of having one of the State of California’s statutes ¹ declared unconstitutional. His suit is, in effect, an action against an arm of the state itself. See Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir.2003). However, with certain exceptions, pursuant to the Eleventh Amendment to the United States Constitution “[t]he Judicial power of the United States” does not extend to an action by a citizen against a State. See Pennhurst State Sch. efe Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Hans v. Louisiana, 134 U.S. 1, 3-4, 9-10, 21, 10 S.Ct. 504, 505, 509, 33 L.Ed. 842 (1890). No exception to that prohibition applies here. See Seminole Tribe v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252 (1996) (exception when Congress properly abrogates immunity); Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304-05, 110 S.Ct. 1868, 1872, 109 L.Ed.2d 264 (1990) (exception when state waives immunity); Ex Parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 452, 52 L.Ed. 714 (1908) (state official can be enjoined).

Shalaby does assert that because he is suing the state’s judicial officers, he comes within the Ex Parte Young exception. He is wrong. “We agree with [the] decisions holding that judges adjudicating cases pursuant to state statutes may not be sued under § 1983 in a suit challenging the state law.” Grant v. Johnson, 15 F.3d 146, 148 (9th Cir.1994); see also Wolfe v. Strankman, 392 F.3d 358, 365-66 (9th Cir.2004); In re The Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 22 (1st Cir.1982).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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