Thurston v. Robison

603 F. Supp. 336, 1985 U.S. Dist. LEXIS 22366
CourtDistrict Court, D. Nevada
DecidedFebruary 22, 1985
DocketNo. CV-R-84-362-ECR
StatusPublished
Cited by1 cases

This text of 603 F. Supp. 336 (Thurston v. Robison) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thurston v. Robison, 603 F. Supp. 336, 1985 U.S. Dist. LEXIS 22366 (D. Nev. 1985).

Opinion

ORDER

EDWARD C. REED, Jr., District Judge.

Plaintiffs pro se complaint alleges that Judge Norman Robison, Attorney General Brian McKay and Capitol Reporters have violated her constitutional rights. Plaintiff, Sheila Smith Thurston, institutes this action for money damages under 42 U.S.C. §§ 1983, 1985(2), (3) and 1986.

This Court recognizes that pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) reh. denied 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1973). Further, pleadings in civil rights suits are to be liberally construed. See Thomas v. Younglove, 545 F.2d 1171, 1172 (9th Cir.1976).

Robison and McKay have filed a motion to dismiss. Capitol Reporters have also filed a motion to dismiss. Pursuant to Fed.R.Civ.P. 12(b)(6) and 56, these motions to dismiss shall be converted into motions for summary judgment.1 Also, Thurston has moved for a preliminary injunction. Because this Court grants the motions for summary judgment, we decline to rule on the preliminary injunction.2

In support of her claims against Judge Robison, Thurston alleges that: (1) Robison erroneously refused to admit certain evidence at the child custody hearing; (2) Robison’s award to the father of exclusive control over medical and educational decisions for the child violated Thurston’s civil rights; (3) Robison refused to release alleged illegally sealed evidence; and (4) Robison’s order to seal the record violated Thurston’s due process and equal protection rights.3 It is important to note that Thurston has not appealed any of Judge Robison’s rulings to the Nevada Supreme Court.

The immunity of judges is well settled. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Absolute judicial immunity is founded upon the principle that “a judicial officer, in exercising the authority vested in him, (should) be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, 80 U.S. (13 Wall) 335, 347, 20 L.Ed. 646 (1871).

Thurston suggests that Robison conspired to violate her constitutional rights and she is therefore entitled to money damages. However, Robison is immune from actions under § 1983 for judicial acts not [338]*338taken in the clear absence of all jurisdiction when the relief sought is money damages. Stump v. Sparkman, 435 U.S. 349, 357, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978); O’Connor v. State of Nev., 686 F.2d 749, 750 (9th Cir.1982); Rankin v. Howard, 633 F.2d 844, 847 (9th Cir.1980), cert. denied, 451 U.S. 939,101 S.Ct. 2020, 68 L.Ed.2d 326 (1981). This Court notes that judicial immunity does not bar § 1983 claims for prospective injunctive relief. Pulliam v. Allen, — U.S. —, 104 S.Ct. 1970, 1981, 80 L.Ed.2d 565 (1984).

Clearly Robison had jurisdiction in this matter. He was acting as a judge of the juvenile division of the district court. Exclusive jurisdiction is vested in the juvenile courts concerning any child where there is concern over his welfare. NRS 62.-040(1)(a)(3). Thurston’s allegations concern those actions Robison took pursuant to his judicial authority.4 According to the Order by Judge Robison dated August 22, 1984, physical custody was vested in the child’s father, and legal custody was vested both with Thurston and the father. The court also retained jurisdiction. This Court fails to find any abuse of jurisdiction by Judge Robison. Therefore, Judge Robison’s motion for summary judgment is granted.

The factual basis for Thurston’s claims against McKay are somewhat confusing. Apparently, Thurston alleges that the Attorney General of Nevada failed to criminally prosecute Judge Robison.

A state prosecuting attorney acting within the scope of his duties is absolutely immune from a civil suit for damages under 42 U.S.C. § 1983 for alleged deprivation of constitutional rights. Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976); see also Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir.1984). The question of whether the failure to initiate prosecution could lead to an award of damages in a civil rights action was specifically addressed in Raitport v. Provident Nat. Bank, 451 F.Supp. 522, 528 (E.D.Pa.1978). The court held:

“[T]hat the decision to approve or disapprove a private criminal complaint fits squarely within the broader function of ‘initiating a prosecution,’ and therefore it cannot subject a prosecutor to civil liability for damages under section 1983.... It would be anomalous to hold that because Imbler spoke only of ‘initiating a prosecution,’ the prosecutor who approves a complaint is immune while the prosecutor who disapproves a complaint is subject to civil liability for damages.... Just as the prosecutor who initiates a criminal case requires protection from the defendant who ‘transform[s] his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate.’ Imbler, supra, 424 U.S. at 425, 96 S.Ct. at 992, so the prosecutor who concludes that prosecution is unwarranted requires protection from the complainant whose excessive zeal for invoking the criminal process blinds him to any aspects of the case that counsel against prosecution.”

Id.

It is not clear whether a criminal complaint was filed with the Nevada Attorney General. However, even if this Court assumes that a criminal complaint was filed with McKay, the decision whether to prosecute is solely within the discretion of McKay unless ordered by the governor. See NRS 228.120. Therefore, Thurston’s claims against Attorney General McKay for damages is dismissed.

Finally, Thurston argues that by refusing to deliver a transcript of the August 17,1984, child custody hearing to her, Capitol Reporters have violated her constitutional rights. However, the record was ordered sealed by the court.5

[339]*339Judicial immunity “extends to other officers of government whose duties are related to the judicial process.”

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Bluebook (online)
603 F. Supp. 336, 1985 U.S. Dist. LEXIS 22366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thurston-v-robison-nvd-1985.