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This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted June 28, 1989.

N.D.Cal.

AFFIRMED.

Appeal from the United States District Court for the Northern District of California; Robert P. Aguilar, District Judge, Presiding.

Before WALLACE, POOLE and CYNTHIA HOLCOMB HALL, Circuit Judges.

MEMORANDUM

Gaceta and Vunck (Gaceta) appeal from summary judgment in their action brought against various defendants arising out of an arrest on Mt. Ununham Road in Santa Clara County. The district court had jurisdiction under 42 U.S.C.§ 1983 and 28 U.S.C. § 1343. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291 and 1294. We affirm.

1.

In order to state a section 1983 claim against a public entity, the claimant must establish that the public entity had an official policy, custom or practice which caused the claimants to be deprived of their constitutional rights under the color of state law. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-95 (1978). According to the record, Gaceta was unable to produce evidence that the County of Santa Clara had any such "policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 690. Instead, Gaceta, without any supportive facts, merely attributes the actions of county employees to the policies and customs of the county. Therefore, Gaceta failed to state a claim against the county, because a county "cannot be held liable solely because it employs a tortfeasor--or, in other words, a [county] cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691 (emphasis in original).

Once the County pointed out that Gaceta had no basis to claim that such a policy, practice, or custom existed on this essential element of the claim, Gaceta was then required to prove that a genuine issue of material fact existed to avoid summary judgment. United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1543 (9th Cir.1989) (en banc) (Steelworkers ); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (Celotex ). Gaceta made no such showing. Consequently, the district court was correct in granting summary judgment in favor of the County.

2.

"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 108 S.Ct. 2250, 2255 (1988). "Private parties act under color of state law if they willfully participate in joint action with State officials to deprive others of constitutional rights." Steelworkers, 865 F.2d at 1540.

Gaceta repeatedly alleged that throughout the pendency of the state court litigation Koone was involved in a conspiracy to deprive him of his constitutional rights. However, Gaceta failed to allege that any of Koone's alleged acts in so conspiring took place under color of state law. Furthermore, Gaceta failed to allege any action taken jointly by Koone and state officials during the litigation. Once Koone pointed out this lack of evidence, the burden shifted to Gaceta to produce evidence that a genuine issue of fact existed on this essential element of the claim. Id. at 1543; Celotex, 477 U.S. at 322-23. Since there is no evidence in the record that Gaceta established a genuine issue of material fact as to this element, the district court was correct in granting summary judgment as to claims 6 through 27.

3.

Pursuant to 28 U.S.C. § 2679, as amended by Public Law No. 100-694, upon certification by the attorney general that a federal employee was acting within the scope of his employment, "any civil action or proceeding commenced upon such a claim in a United States district court shall be deemed an action against the United States...." 28 U.S.C. § 2679(d)(1). Section 2679(b) provides that the Federal Tort Claims Act shall be the exclusive remedy for such common law tort claims in such actions. These amendments to 28 U.S.C. § 2679 were expressly made effective for all actions pending on the date of the enactment of this Act, November 18, 1988. Pub.L. No. 100-694, § 8(b), U.S.Code Cong. & Admin., 102 Stat. 4565-66 (1988).

Pursuant to 28 C.F.R. § 15.3 (1988), the Attorney General, acting through United States Attorney Joseph P. Russoniello, certified that Koone, a federal employee, was at all times acting within the scope of his employment with the federal government, in committing the acts complained of by Gaceta. Therefore, the district court was correct in finding that Koone was immune from suit for the common law pendent state claims.

4.

"[J]udges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities." Dennis v. Sparks, 449 U.S. 24, 27 (1980) (quotation omitted). A judge is only subject to liability "when he has acted in the clear absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349, 357 (1978) (quotation omitted).

Gaceta alleged that Judges Hoffman and Murphy were liable under section 1983, among other things, for claiming personal jurisdiction over Gaceta in the state court action. The Municipal Court Judges had authority to hear Gaceta's misdemeanor criminal matters. Cal.Penal Code §§ 602 and 1462 (West 1982). Therefore, the judges also had authority to rule on jurisdiction in these matters. Cal.Civ.Proc.Code § 187 (West 1982). Thus, Hoffman and Murphy were not acting in "clear absence of all jurisdiction" and were afforded absolute judicial immunity.

5.

Government officials are entitled to qualified immunity "to shield them from undue interference with their duties and from potentially disabling threats of liability." Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982) (Harlow ). This qualified immunity shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, citing Procunier v. Navarette, 434 U.S. 555, 565 (1978).

Koone was acting as a government employee in the actions complained of in claims 1 through 5. Assuming Gaceta states a Bivens claim, under the Harlow objective reasonableness standard, Koone would be protected by qualified immunity as long as his conduct did "not violate a clearly established statutory or constitutional right[ ] of which a reasonable person would have known." Harlow, 457 U.S. at 818. This qualified immunity extends to officers making an arrest. Hutchinson v. Grant, 796 F.2d 288, 290 (9th Cir.1986) (Hutchinson ). While Koone was not officially a "police" officer, part of his duty as a caretaker was to "[s]erve[ ] as a security guard at site by reporting to supervisor and county sheriff any trespassers upon property."

It is unclear from the record whether Gaceta enjoyed a clearly established right to travel on the road in question. The district court judge, relying upon a letter from the Midpeninsula Regional Open Space District (District), found that the right to travel on the road was at least subject to doubt. It was argued that there was a question regarding the existence of the easement based upon the 1964 County of Santa Clara Superior Court Case No. 150266, Rood v. McQueen, and that any easement presently in existence was created by the purchase of Almaden Air Force Base by the District following the incident in question. Gaceta argues that the easements were created in 1955 by a grant from the owners in fee. Based upon the record before us, we conclude the district court did not err in determining Gaceta did not prove there was a clearly established right to travel on the road in question.

In addition, even if a clearly established right existed, government officials would still be immune so long as the violated right was not a right of which reasonable person would have been aware. Koone approached Gaceta and asked whether he had observed "NO TRESPASSING" signs. He replied that he had observed the signs, but refused to leave. Koone advised Gaceta that he was trespassing on private property and asked him to leave. Deputy Contreras asked him if he had observed the signs. Gaceta stated that he had observed the signs and refused to leave. The Almaden Air Force Base contained a minimum of 99.99 acres. Therefore, the question is whether a reasonable caretaker of a deserted Air Force base, consisting of approximately 100 acres, should have been aware of an easement despite the presence of a fence around the property, clearly posted no trespassing signs, and no indication of being informed by either Gaceta or the owner of the property that such an easement existed. See Anderson v. Creighton, 438 U.S. 635, 641 (1987) (recognizing that the objective reasonableness inquiry may be a fact intensive inquiry). We conclude that, given these facts, a reasonable caretaker neither would have nor should have known of the easement. Therefore, even if there was a clearly established right for Gaceta to travel on the road, a reasonable caretaker would not have known of this right, immunizing Koone for any violation of this right.

The two deputy sheriffs, John Contreras and Georgia Anderson, were likewise protected by qualified immunity, so long as they were acting within the objective reasonableness standard. Hutchinson, 796 F.2d at 290. Contreras was arresting Gaceta pursuant to a properly executed citizen's arrest. Cal.Penal Code § 837.1 (West 1982). Anderson was acting upon the direction of a judge. Gaceta failed to offer any evidence that these official actions were in violation of any "clearly established" rights.

Sugiyama was the court reporter who transcribed the proceedings in the state court action. A court reporter is protected by qualified immunity in the course of his official conduct. Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir.1983). No evidence was presented which supported Gaceta's allegations that Sugiyama deliberately falsified the official court record. Therefore, no evidence was presented that Sugiyama acted in violation of any of Gaceta's rights.

Steven Woodside was the prosecuting attorney in the underlying action. Prosecuting attorneys are protected by absolute immunity. Imbler v. Pachtman, 424 U.S. 409, 428-29 (1976). Therefore, the district court was correct in dismissing the action against Woodside, since all of the actions complained of were committed in Woodside's official capacity as prosecutor. Even though the district court relied upon qualified immunity, the decision should be affirmed, since it is supported by the record. Bruce v. United States, 759 F.2d 755, 758 (9th Cir.1985).

The district court did not err in its determination that Koone, Sugiyama, Contreras, Anderson, and Woodside were entitled to qualified or absolute immunity.

AFFIRMED.

Note: 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.