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.