Henderson Duval Houghton v. Glenn Osborne, Frank Tuss, H. William Coder, Joel G. Roth and Gladys M. Vance
834 F.2d 745
9th Cir.
1987
Check Treatment

*2 GOODWIN, Before ALARCON and LEAVY, Circuit Judges.

ALARCON, Judge: Circuit question novel presented to us in appeal is whether the district court had to refer the merits of the plaintiff’s claim to a United States (1982). arrested, Be- After under 28 U.S.C. trate regarding was raised his capacity the claims at issue cause we to stand determine Following psychiatric trial. involve conditions in this case do not evaluations hearing, Houghton and a court reverse ad- we incapable judged to stand trial and purported as it commit- district court insofar ted to the Montana State Hospital condi- until not invoke a refer a claim that does *3 such time as his competency was restored. magistrate a for an tion of confinement hearing on the merits. evidentiary B judges whether are also decide We must Following filing the complaint, of this the liability for of 42 violations immune district court referred the matter to a Unit- (1982) refusing jail for a U.S.C. § magistrate. Thereafter, Judge ed States request ap- that he be allowed to inmate’s Coder and Roth filed motions to pretrial proceed- for criminal pear in court grounds judi- dismiss the action on the ings clothing. in We affirm the his own immunity. magistrate pro- cial The filed on this issue and hold district court decision posed findings of fact and recommended liability are immune from un- judges granted. that the motion to dismiss be circumstances. der such court, record, reviewing district the accepted magistrate’s the recommendation I judgment and entered a of dismissal. Hough- Plaintiff-appellant Henderson D. After the district court’s on the decision (hereinafter Houghton) appeals from ton dismiss, magistrate motion the held an (1) action the dismissal of his section 1983 hearing evidentiary at the Montana State 12(b)(6) against Mon- under Fed.R.Civ.P. Hospital on the merits of Judges H. William Coder and Joel G. tana against remaining the defendants. Roth; (2) summary judgment the order of magistrate previously had ordered that Gladys of the Peace in favor of Justice discovery completed prior be to the date for Vance; and the order of hearing. beginning evidentiary At the dismissal after an be- proceedings, Judge filed of these Vance a magistrate, fore the on motion of Frank summary judgment claiming ju- for motion Tuss, supervisor County jail Cascade and presentation of immunity. dicial After the Osborne, County Glenn Cascade sheriff. Houghton's evidence on the merits of alleged complaint, Houghton In his that a claims, dismiss Tuss and Osborne moved to County requirement ap- that he Cascade right to complaint for failure to show a pear proceedings, at various court doctor relief. in appointments psychiatric and evaluations evidence, Following clothing jail violated his fourteenth amend- magistrate findings of proposed filed protection process equal ment due Judge Vance’s fact and recommended that eighth rights, as his amendment as well judgment grant- summary motion for a be pun- protection against cruel and unusual the claims ed. He also recommended that ishment. against Tuss Osborne be dismissed be- Houghton had failed to establish cause application in violation constitutional felony Houghton was arrested clothing him. The district policy to jail in charges and detained the Cascade Coun- record, court, adopted after review of the time, County ty jail. At that Cascade magistrate’s recommendations. required per- Department that a Sheriffs the dis- Appellant appealed has each of clothing ap- custody jail in wear when son orders. trict court’s non-jury proceedings, unless the pearing prisoners ap- trial ordered that II jail clothing, jail clothing was not pear sponte first address sua jurisdic- in the inmate’s size. available refer the claims challenges of the district court to policy the instant matter. tion magis- Tuss. and to the dence or recommit the matter to the evidentiary hearing. magistrate trate to conduct with instructions. The district to refer court’s (Emphasis magistrate is matters to a set forth in 28 The statute authorizes a 636(b)(1) U.S.C. 636. Section states: § to submit to the proposed district court provision Notwithstanding of law findings of fact and recommendations for contrary— disposition of a motion to dismiss and a (A) designate judge may motion for summary judgment. 28 U.S.C. any pre- trate to hear determine See Britt v. also Simi Val ley Dist., pending court, trial matter School before the Unified (9th Cir.1983) (“a judge may designate except injunctive relief, a motion for proposed to submit findings pleadings, for on the fact and disposi recommendations summary judgment, ... to dismiss for *4 dismiss”). tion of a motion to Section upon failure a claim to state which 636(b)(1)(B) magistrate also a authorizes to granted, can be relief and to involun- conduct an evidentiary hearing pre tarily A judge dismiss an action. of trial motion to “involuntarily dismiss an may any pretrial the court reconsider action” prisoner petitions or of challenging (A) subparagraph matter under this conditions of including section where it has shown mag- been that the Cook, 1983 actions. See Wimmer clearly istrate’s order is erroneous or (4th Cir.1985) (1983 by action contrary to law. prisoner challenging conditions of confine (B) judge may designate a also a ment falls within class proceedings of magistrate hearings, to conduct includ- which may be magistrate referred to a ing evidentiary hearings, and to submit 636(b)(1)(B)). under section Tuss and Os judge proposed to a of court the find- borne pretrial did not make a motion “to ings of fact and recommendations for involuntarily the dismiss” action filed disposition, by judge court, a of the against them. The district court referred any excepted of subpara- motion magistrate matter to the to conduct an (A), graph applications posttrial of for evidentiary hearing on the merits of by relief made individuals convicted Houghton’s remaining claims. Tuss and prisoner peti- criminal offenses and of Osborne moved for dismissal at tions challenging conditions of confine- the conclusion of evidentiary hearing. ment. Section 636(b)(1)(B)permits magistrate (C) magistrate pro- shall file his to conduct an evidentiary hearing on a mo- posed findings and recommendations tion summary judgment. for Tuss and Os- (B) under subparagraph with the court borne did not move summary judgment copy and a shall forthwith be mailed to before or at parties. all time. After both presented argu- sides days being Within ten served with regarding ments the merits of copy, any may party serve and file claims, said, magistrate going “I’m to objections written to such proposed find- give you the benefit doubt at this ings and provided recommendations as stage and you put assume that prima on a by rules of court. A of the court by facie picture case showing your that shall make a de novo determination of opening statements.” At that time the portions report those specified or magistrate proceeded calling with the proposed findings or recommendations to witnesses. At the conclusion of the hear- objection which is made. A ing the defendants made an oral motion to may accept, reject, court modify, in dismiss. Their attorney stated that she part, whole or in findings or recom- thought testimony presents “the mendations magistrate. made court no choice but dismiss the com- judge may receive plaint also further evi- complete failure on behalf of to the court plaintiff meaning to show basis for consider the of the term “condi- equal protection Congress violation or cruel tions of confinement” as either used it punishment.” in 28 and unusual U.S.C. Luther Swygert of the Seventh Circuit ad- summary judgment A motion for dressed this in his concurring granted genuine be if there is no issue Jenkins, in Hill v. 603 F.2d 1256 dispute of material fact in to be resolved (7th Cir.1979). Judge Swygert stated that moving party a trier of fact and the “conditions of confinement” as used sec- law, a matter of entitled to as 636(b)(1)(B) tion “encompasses ongoing 56(c). Here the Fed.R.Civ.P. prison practices regulations with re- presented “pri- found that had gard to placement matters such as in maxi- ma facie case” that he was entitled to deadlocks, security, mum unhealthy living proceeded recover. Tuss and Osborne conditions, unnecessary exposure to vio- present Had Tuss and evidence. inmates, lence-prone physical overcrowded go failed to forward with the environments, punish- and cruel or unusual evidence, presumably by prison ment authorities.” Id. at 1260 Houghton. would have found for (emphasis Hill, plaintiff plaintiff prima has made out a seeking “damages for the loss of his facie case is with inconsistent a determina property resulting single from a incident genuine tion that no issue of material fact prison.” occurred in the dispute was in or that the defendants were Swygert concluded that the district court judgment. entitled to referring erred in the matter to a *5 above, presenta As noted after the trate for an because completed, tion of evidence was Tuss and property by prison personnel loss of was Osborne moved for a dismissal of the com not a “condition of confinement.” Id.3 41(b) plaint. Under Rule of the Federal Judge Swygert’s interpretation juris- of the Procedure, Rules of Civil a defendant diction which can magis- be accorded to a move for dismissal in a bench adopted has by trate been the Fourth Cir- plaintiff completed trial after the has Wimmer, in cuit 774 F.2d at 74 n. 9 presentation grounds of evidence “on the Johnson, (4th Orpiano v. 687 F.2d 47 plaintiff right Cir.1982), that has shown no to Eleventh Circuit relief.” (11th Tuss and Osborne’s motion for a Sharpe, 812 1 Hall v. 647 n. dismissal, such, Cir.1987) (adopting while labelled as was portion Judge Swy- of 41(b) proper definition). gert’s under Rule because it was We also embrace Swygert’s made reading of the evi of section authority, dence. The had no Houghton currently in a state however, to hold a trial on the merits or facility. longer mental health He is no 41(b) grant a Rule motion unless subject County’s jail clothing to Cascade challenging the was conditions of his conf seeking damages rules. He is not for an inement.1 Moreover, ongoing jail prison practice. or 636(b)(1)(B)authorizes a Section district complaining he is not about the “condition” designate magistrate to to conduct jail clothing County that Cascade hearing petition evidentiary chal- prison issued. The conditions covered lenging 636(b)(1)(B) conditions of confinement.2 We type section relate of previously upon concerning have not been called to and matters facts, proposed findings majority 1. In his 3.The in Hill did not reach the hearing trate stated that he had conducted a "on plaintiffs issue of whether the concerned claim [appellant’s] the merits of defend- majority a condition confinement. The deci- (Emphasis ants Osborne and Tuss." magistrate’s juris- sion was based on lack preside diction to over a civil trial without the appellant 2. We need not decide whether is a Hill, parties. consent of both F.2d at 1258. prisoner meaning within the of the statute be- challenging cause of our decision that he is not conditions of confinement. health, punishment. Houghton safety, or subject court’s jurisdiction, matter im requirement munity applies.” claim that the that a does not Id. at 1078. clothing that identifies him prisoner wear case, In this each judge Hough- denied safety his health or prisoner as a affected request ton’s that he be appear allowed to physical pain him to suffer or that it causes clothing. in his own Houghton contends Thus, exposes Hough- him to violence. judges that jurisdiction while had the to not involve a condition of ton’s claim does presence, they command his could not re- his confinement. quire appear jail him clothing. to lacked the The district court grant Houghton’s refusal to re this matter to the to refer quest appear in his own clothes was hearing evidentiary conduct an on the mer- clearly judge’s within capacity. each official 1983 action. its party’s motion is a normal such, judicial function. As subject it is not Ill to review under section 1983. Appellant contends that district court Houghton argues that this case is factu- finding erred in that Coder and ally similar to Gregory Thompson, Judge Roth and Justice of the Peace (9th Cir.1974). F.2d 59 disagree. In liability Vance4 were immune in this matter, we held that the agree. case. We do not acting scope outside authority of his In Pope, physically Ashelman v. 793 F.2d 1072 when he plaintiff threw the out (9th Cir.1986) (en banc), we held of his proceeded courtroom and to beat “[¡judges performing judge-like and those him. In Gregory, we denying found that absolutely are immune immunity functions from dam under those circumstances would age liability performed type for acts in their not result in the of “intimidation that capacities.” might judges] official Id. at 1075. We also rob independence [the public’s held that “Title U.S.C. 1983 so crucial to princi- interest in judi pled not intended to abolish the doctrine of decision-making.” fearless Greg- immunity.” immunity ory, cial “Judicial 500 F.2d at repre- Gregory, the *6 applies ‘however erroneous judge the act hensible acts of the had no relation- been, injurious ship have and type judicial however in its to the conduct ordinari- consequences may proved ly it have involved in an adverse on a motion ” plaintiff.’ (quoting Cleavinger properly Id. v. before the court. In the matter Saxner, 193, 199-200, judice, 474 U.S. judge ques- 106 S.Ct. sub each addressed the 496, (1985)). 88 L.Ed.2d 507 presented tion that to the court appropriate ruling in an unaccompanied by immunity This is not absolute. Id. personal misconduct or violence directed immunity “A lacks where he acts in plaintiff. toward the jurisdiction’, ‘clear absence of all ... or performs ‘judicial’ an act that is not IV (quoting Fisher, nature.” Bradley v. (13 Wall.) 335, 351,

80 U.S. 20 L.Ed. 646 Because the jurisdic- district court has no Stump Sparkman, and v. 435 U.S. tion to magistrate, refer this matter to the 349, 360, 1099, 1106, 98 S.Ct. precluded L.Ed.2d we are considering the mer- (1978)). deciding Houghton’s whether act is its of against Osborne judicial, the court must determine whether and Tuss. For the same reason we do not challenged conduct is a function which address the whether judge normally performs and whether process rights due by holding were violated parties dealt with judicial his at the Montana capacity. long judge’s Id. “As as Hospital ulti State instead of at the court house judicial mate acts are actions taken complaint within where the was filed and the ac- Vance, Peace, nity judge. while a Justice of the Gregory Thompson, as other (9th judicial Cir.1974). covered the same doctrines of immu- 500 F.2d issue is occurred. That complained tions of our reversal in view

now moot concerning against Os- the claims

judgment Tuss.

borne and of the claims

The dismissal Judge Roth is AF-

Judge Coder

FIRMED. summary judg- granting judgment is AFFIRMED. Vance

ment Tuss and for defendants REMANDED. is REVERSED and party. be borne each shall

Costs

GOODWIN, dissenting, Judge, Circuit part: overconsidering this essen-

At the risk case, I dissent from

tially frivolous in the prisoner Whether a

partial reversal. pur- required security jail is

county commend purposes that

poses or other bright to wear to the sheriff

themselves

orange is indeed a condition coveralls say so and we should ought distinguish the Sev-

affirm. be, case, if need

enth Circuit Supreme question to the

present a conflict

Court. parts in those

I concur

which affirm. BERKELEY, corpora-

TOYOTA OF *7 tion, Plaintiff/Appellee, UNION,

AUTOMOBILE SALESMEN’S 1095, AND UNITED FOOD

LOCAL UNION, WORKERS COMMERCIAL

Defendant/Appellant.

No. 87-1555. Appeals, Court

United States

Ninth Circuit.

Argued Oct. 1987. and Submitted

Decided Dec.