390 F.2d 644 | 2d Cir. | 1968
Ralph Marshall GARNER, Plaintiff-Appellant,
v.
Sam Polk RAULSTON, Judge of the Eighteenth Circuit, Second
Division, of the State of Tennessee, Defendant-Appellee.
No. 18376.
United States Court of Appeals Sixth Circuit.
Feb. 13, 1968.
Ralph Marshall Garner in pro. per.
James C. Dale, III, Special Counsel for Tennessee, Nashville, Tenn., for appellee.
Before WEICK, Chief Judge, and O'SULLIVAN and PHILLIPS, Circuit judges.
PER CURIAM.
Appellant filed a complaint seeking damages against the State Circuit Judge who imposed the sentence which appellant is now serving in the Tennessee State Penitentiary. It appears upon the face of the complaint that the sentence which was imposed upon appellant in the State Court constitutes the basis of the allegations against the defendant judge.
District Judge Frank W. Wilson dismissed the suit as frivolous on its face, saying:
'It further appears upon the face of the complaint that the defendant, Sam Polk Raulston, was and is a duly authorized and acting judge of the State of Tennessee and that while acting in his judicial capacity and within his jurisdiction he imposed a sentence upon the complainant, which sentence is herein complained of as the basis of the complainant's present cause of acction. It is well settled that judges are immune from any civil action under 42 U.S.C. 1983 for acts done in the exercise of their judicial function. Harvey v. Sadler, 331 F.2d 387 ((9th Cir.)); Sires v. Cole, 320 F.2d 877 ((9th Cir.)); Saier v. State Bar of Michigan, 293 F.2d 756 ((6th Cir.)), cert. den. 368 U.S. 947 (82 S. Ct. 388, 7 L. Ed. 2d 343). The present action is accordingly frivolous on its face and as such is subject to dismissal by the Court pursuant to 28 U.S.C. 1915(d).'
A timely motion has been filed to affirm the judgment under Rule 18(5) of the rules of this Court, as amended December 12, 1967, which provides:
'The Court will receive a motion to affirm the judgment sought to be reviewed on the ground that it is manifest that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument.'
This panel was appointed by the Chief Judge pursuant to Rule 3(5) of the rules of this Court to review this case under Rule 18(5). After a careful examination and study of the brief of appellant and the entire record, it is our opinion that it is manifest that the questions on which the decison of the cause depends are so unsubstantial as not to need further argument, that the appeal is frivolous and entirely without merit, and that the District Court was correct in dismissing the suit as frivolous on its face. Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 18 L. Ed. 2d 288; Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646.
The motion to affirm the judgment of the District Court is granted.