Sadoski v. Mosley

                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JEANETTE FAYE SADOSKI, on behalf         
of herself and as a representative
of all other persons who have
been illegally re-sentenced by
Defendant Nevada District Judge
Donald M. Mosley in violation of
rights under the Fifth Amendment
of the United States Constitution
not to be twice placed in jeopardy
for the same criminal offense,
                  Plaintiff-Appellant,
                  v.
DONALD M. MOSLEY, as an                       No. 04-15447
individual and also in his official
capacity as District Court Judge of            D.C. No.
                                             CV-03-01292-RCJ
the Eighth Judicial District of the
State of Nevada; STEWART L. BELL,               OPINION
as an individual and also in his
official capacity as the District
Attorney of Clark County,
Nevada; DAVID ROGER, as an
individual and also in his official
capacity as the District Attorney
of Clark County, Nevada; JACKIE
CRAWFORD, as an individual and
also in her official capacity as the
Director of the Nevada
Department of Corrections; CLARK
COUNTY, NEVADA,
              Defendants-Appellees.
                                         

                              969
970                 SADOSKI v. MOSLEY
       Appeal from the United States District Court
                for the District of Nevada
        Robert C. Jones, District Judge, Presiding

                Argued and Submitted
      November 18, 2005—San Francisco, California

                  Filed January 24, 2006

      Before: John T. Noonan, Pamela Ann Rymer, and
              Ronald M. Gould, Circuit Judges.

                Opinion by Judge Gould;
               Concurrence by Judge Gould
972                   SADOSKI v. MOSLEY


                         COUNSEL

Clark Garen, Law Offices of Clark Garen, Corona, California,
for the plaintiff-appellant.

Thom Gover, Senior Deputy Attorney General, Las Vegas,
Nevada; Stephanie A. Barker, Chief Deputy District Attorney,
Las Vegas, Nevada, for the defendants-appellees.


                         OPINION

GOULD, Circuit Judge:

   Plaintiff-Appellant, Jeanette Faye Sadoski, appeals the dis-
trict court’s order dismissing her complaint for damages and
injunctive relief under 

42 U.S.C. § 1983

. Sadoski alleges that
Defendant-Appellee, Judge Donald M. Mosley, after sentenc-
ing Sadoski to a twelve-month term of incarceration for
attempted theft, unlawfully re-sentenced her to a term of
incarceration between twelve and thirty-two months, subject-
ing Sadoski to double jeopardy in violation of her federal and
state constitutional rights. Sadoski further alleges that
Defendants-Appellees Stewart Bell, David Roger, Jackie
Crawford, and Clark County violated Sadoski’s protection
against double jeopardy by seeking or executing the more
severe sentence.
                          SADOSKI v. MOSLEY                           973
   The district court concluded that Judge Mosley was entitled
to absolute immunity for his actions in Sadoski’s case and that
Judge Mosley’s immunity protected the other defendants as
well. The district court also concluded that Sadoski did not
have standing to assert a class claim for injunctive relief. The
district court dismissed Sadoski’s suit pursuant to Fed. R. Civ.
P. 12(b)(6). We have jurisdiction under 

28 U.S.C. § 1291

, and
we affirm.1

                                    I

   At the time of the events underlying this appeal, Donald
Mosley served as a judge of the criminal division for the
Eighth Judicial District of Nevada. In October 1999, with
Judge Mosley presiding, Sadoski pleaded guilty to attempted
theft. Under Nevada law, Judge Mosley had discretion to find
Sadoski guilty of either a gross misdemeanor or a felony. On
June 7, 2000, Judge Mosley signed a Judgment of Conviction
finding Sadoski guilty of a gross misdemeanor and sentencing
her to a twelve month term of incarceration, which Judge
Mosley suspended in favor of probation for an indeterminate
period of time not to exceed three years.

   Judge Mosley later learned that he had misunderstood
Sadoski’s criminal history when he sentenced her. Between
Sadoski’s guilty plea and her sentencing, Sadoski had been
arrested and charged with possession of a controlled sub-
stance with intent to sell. This information was not reflected
in the sentencing report on which Judge Mosley relied when
  1
    We review de novo a district court’s determination that a judge is pro-
tected by absolute immunity. See Crooks v. Maynard, 

913 F.2d 699, 700

(9th Cir. 1990). We also review de novo a district court’s order dismissing
a complaint pursuant to Fed. R. Civ. P. 12(b)(6). See Kirtley v. Rainey,

326 F.3d 1088, 1092

 (9th Cir. 2003). For purposes of our review, we
assume that Sadoski’s factual allegations are true, and we analyze them in
the light most favorable to her claims. See Cervantes v. United States, 

330 F.3d 1186, 1187

 (9th Cir. 2003).
974                   SADOSKI v. MOSLEY
he sentenced Sadoski, and Sadoski’s counsel did not inform
Judge Mosley of the pending charges.

   When Judge Mosley realized that he had sentenced Sadoski
based on incomplete information, Judge Mosley decided to
re-sentence Sadoski to a longer term of incarceration. On
November 20, 2000, Judge Mosley signed a second Judgment
of Conviction, finding Sadoski guilty of a felony and sentenc-
ing her to a term of incarceration not to exceed thirty-two
months with a minimum parole eligibility of twelve months.
Judge Mosley suspended the sentence, imposing instead an
indeterminate period of probation not to exceed three years.

   On August 7, 2001, the Nevada Supreme Court issued an
unpublished order in Steinberg v. State, addressing a Nevada
district court’s authority to modify a sentence after a defen-
dant had begun serving it. Citing Edwards v. State, 

918 P.2d 321

 (Nev. 1996), the Nevada Supreme Court recognized that
Nevada district courts have jurisdiction to modify a sentence
that was “based on mistaken assumptions about a defendant’s
criminal record which work to the defendant’s extreme detri-
ment.” See 

id. at 324

. In Steinberg, the Nevada Supreme
Court concluded that a Nevada district court did not have
jurisdiction to modify a sentence where the mistaken assump-
tion underlying the sentence disadvantaged the State rather
than the defendant. Sadoski contends that Judge Mosley, as
well as defendants Bell and Roger, received copies of this
order, and that Defendants knew that the Nevada Supreme
Court had prohibited re-sentencing a defendant under circum-
stances that were factually analogous to Sadoski’s case.

   On October 17, 2001, the Clark County District Attorney
requested that Judge Mosley revoke Sadoski’s probation. On
November 13, 2001, Judge Mosley granted the District Attor-
ney’s request and issued an Order for Revocation of Probation
and Amended Judgment of Conviction, subjecting Sadoski to
the sentence imposed on November 20, 2000: a term of incar-
ceration of up to thirty-two months, at least twelve months of
                       SADOSKI v. MOSLEY                      975
which Sadoski would have to serve before she could qualify
for parole.

   In October 2002, Sadoski filed a Motion to Correct Illegal
Sentence. Judge Mosley denied the motion and Sadoski
appealed. The Nevada Supreme Court reversed this decision
and ordered Judge Mosley to reinstate Sadoski’s original,
June 7, 2000, sentence. On July 16, 2003, Judge Mosley did
so and Sadoski was released from incarceration. In October
2003, Sadoski filed this civil action asserting a violation of
her civil rights guaranteed by the Constitution and 

42 U.S.C. § 1983

.

                               II

   [1] Although judges usually are immune from suits for
damages based on their judicial conduct, a judge who acts “in
the ‘clear absence of all jurisdiction’ ” is not entitled to abso-
lute immunity. See Stump v. Sparkman, 

435 U.S. 349, 356-57

(1978) (quoting Bradley v. Fisher, 

80 U.S. (13 Wall.) 335, 351

 (1871)); Mullis v. United States Bankr. Court, 

828 F.2d 1385, 1388

 (9th Cir. 1987). Sadoski contends that Judge Mos-
ley acted in the clear absence of all jurisdiction when he mod-
ified her sentence to extend the term of her incarceration. We
disagree.

   [2] Judge Mosley retained subject matter jurisdiction over
Sadoski’s conviction for attempted theft after she began serv-
ing her sentence. Under Nevada law, Judge Mosley had juris-
diction to modify Sadoski’s sentence, even after she had
begun serving it, if the sentence was “based on mistaken
assumptions about a defendant’s criminal record which work-
[ed] to the defendant’s extreme detriment.” Edwards, 

918 P.2d at 324

. Here, however, the mistaken assumption on
which Judge Mosley relied did not work to Sadoski’s detri-
ment, but to the State’s. Accordingly, as the Nevada Supreme
Court later ruled, Judge Mosley did not have jurisdiction to
extend the term of Sadoski’s incarceration. Because we are
976                      SADOSKI v. MOSLEY
reviewing a district court’s order pursuant to Fed. R. Civ. P.
12(b)(6), we credit Sadoski’s allegation that Judge Mosley
knew the limits of his jurisdiction when he modified
Sadoski’s sentence. But the United States Supreme Court has
stated clearly that “[a] judge will not be deprived of immunity
because the action he took was in error, was done maliciously,
or was in excess of his authority . . . .” See Sparkman, 

435 U.S. at 356

. Although we assume for purposes here that Judge
Mosley acted in excess of his jurisdiction when he modified
Sadoski’s sentence to impose a longer term of incarceration,2
we conclude that he did not act in the clear absence of all
jurisdiction. As the Supreme Court said more than a century
ago “[if a criminal judge] should sentence a party convicted
to a greater punishment than that authorized by the law upon
its proper construction, no personal liability to civil action for
such acts would attach to the judge, although those acts would
be in excess of his jurisdiction . . . .” See Bradley, 

80 U.S. (13 Wall.) at 352

. We hold that Judge Mosley is entitled to abso-
lute immunity for the conduct underlying Sadoski’s com-
plaint.

   [3] The district court did not consider whether the other
defendants were entitled to immunity because the district
court accepted Sadoski’s concession that her claims against
the other defendants would fail if Judge Mosley was entitled
to absolute immunity. Sadoski makes the same concession on
appeal, which we accept. Accordingly, we conclude that the
district court was correct to dismiss Sadoski’s claims against
defendants Bell, Roger, and Crawford.

   [4] Sadoski’s claim against Clark County also fails.
Because Sadoski does not contend that Clark County main-
tains a policy or custom pertinent to her alleged injury, and
because Sadoski does not explain how such a policy caused
her injury, Sadoski’s claim against Clark County cannot suc-
  2
  Although malice alone is not sufficient to deprive a judge of absolute
immunity, we note that the record does not show malice, but only mistake.
                       SADOSKI v. MOSLEY                     977
ceed as a matter of law. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 694

 (1978).

   [5] Because Sadoski is no longer incarcerated pursuant to
an unlawfully modified sentence, her class claims fail
because, as the district court recognized, Sadoski no longer
has a personal stake in the outcome of this litigation. See Flast
v. Cohen, 

392 U.S. 83, 101

 (1968).

  AFFIRMED.



GOULD, Circuit Judge, concurring:

   At trial and on this appeal, Sadoski stated that her claims
against defendants Bell, Roger, and Crawford would fail if we
concluded that Judge Mosley was entitled to absolute immu-
nity. The district court accepted Sadoski’s concession and did
not separately address the standards for immunity of the pros-
ecutors and of the corrections official. The opinion of our
court on this appeal also accepts the appellant’s concession
and does not address the immunity standards for the other
defendants. To avoid the risk that a reader might think incor-
rectly that the immunity of the prosecutor and the corrections
official turns on the resolution of the issue of judicial immu-
nity, I write separately to express the view that the prosecutor
and the corrections official would here have immunity even
if Judge Mosley had acted in the clear absence of all jurisdic-
tion.

  Generally, a prosecutor is immune from civil liability for
actions taken during the course of the prosecutor’s duties. See
Ashelman v. Pope, 

793 F.2d 1072, 1076

 (9th Cir. 1986)
(“Where a prosecutor acts as an advocate in initiating a prose-
cution and in presenting the state’s case, absolute immunity
applies.” (internal quotations omitted)). Defendants Bell and
Roger were acting as advocates when they participated in
978                    SADOSKI v. MOSLEY
Sadoski’s re-sentencing and subsequent parole revocation,
and they are entitled to immunity for their actions in this case.
See 

id.

 This would be true even if Judge Mosley had acted in
the clear absence of all jurisdiction.

   We have not considered whether a type of absolute immu-
nity applies to a corrections official who imprisons a defen-
dant pursuant to a facially valid judicial order. We have said,
however, that “[t]he fearless and unhesitating execution of
court orders is essential if the court’s authority and ability to
function are to remain uncompromised.” Coverdell v. Dep’t of
Soc. & Health Servs., 

834 F.2d 758

, 765 (9th Cir. 1987) (con-
cluding that a social worker who sought, obtained, and exe-
cuted a court order to remove a child from her mother’s care
was entitled to absolute quasi-judicial immunity). If this issue
were reached, I would agree with the Eighth Circuit that a
corrections official who executes a valid court order is enti-
tled to absolute immunity from liability based on the fact of
a prisoner’s incarceration. See Patterson v. Von Riesen, 

999 F.2d 1235, 1241

 (8th Cir. 1993) (“We simply conclude that
a warden is absolutely immune from damages flowing from
the fact of a prisoner’s incarceration, when that incarceration
occurs pursuant to a facially valid order of confinement.”).
Permitting Sadoski’s suit to proceed against Crawford would
create a risk of harassing litigation aimed at corrections offi-
cials who are entitled to absolute immunity when they follow
a facially valid court order. This, again, would be true even
if Judge Mosley had acted in a clear absence of all jurisdic-
tion.

   It is a reasonable judicial procedure to accept the stipula-
tion of Sadoski’s counsel that we should affirm the district
court’s dismissal of suit against the other defendants if we
concluded that Judge Mosley was entitled to absolute immu-
nity. However, it is important to keep in mind that the stan-
dards for immunity of the various defendants differ and that,
if the issues were reached, on the record here, both the prose-
cutors and the corrections official would be entitled to immu-
                     SADOSKI v. MOSLEY                 979
nity for their respective actions, even if Judge Mosley had
acted in the clear absence of all jurisdiction.