Steven Crain v. Clark County Public Defender;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
NW /Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN CRAIN,
Plaintiff - Appellant,
v.
CLARK COUNTY PUBLIC DEFENDER;
et al.,
Defendants - Appellees.
No. 08-17646
D.C. No. 2:08-cv-00818-KJD-PAL
MEMORANDUM *
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Steven Crain appeals pro se from the district court’s judgment dismissing
with prejudice his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C.
FILED
DEC 16 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

NW /Research 08-17646 2
§ 1291. We review de novo an order dismissing a claim, Price v. State of Hawaii,
939 F.2d 702, 706 (9th Cir. 1991), and we affirm.
The district court properly dismissed Crain’s claims against the Nevada
Commission on Judicial Discipline because under the Eleventh Amendment the
Commission is immune from suit. See Nev. Rev. Stat. 41.031(3) (“The State of
Nevada does not waive its immunity from suit conferred by Amendment XI of the
Constitution of the United States.”); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989) (stating that Eleventh Amendment immunity applies to state agencies).
The district court properly dismissed Crain’s claims against psychotherapists
Williams and Pacult because Crain did not state a claim under 42 U.S.C. § 1983 or
18 U.S.C. § 241. See Price, 939 F.2d at 707-08 (stating that “private parties are
not generally acting under color of state law” for purposes of § 1983); Peabody v.
United States, 394 F.2d 175, 177 (9th Cir. 1968) (stating that § 241 does not
provide a private right of action).
The district court properly dismissed Crain’s claims against the Clark
County Public Defender and District Attorney because those claims were barred by
both the statute of limitations, see Perez v. Seevers, 869 F.2d 425, 426 (9th Cir.
1989), and by Heck v. Humphrey, 512 U.S. 477, 483-87, 490 n.10 (1994).

-- 2 of 3 --

NW /Research 08-17646 3
On appeal Crain contends that the district court should have given him leave
to amend. We disagree because amendment would have been futile. See Bonin v.
Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“Futility of amendment can, by itself,
justify the denial of a motion for leave to amend.”).
The district judge did not abuse his discretion when he declined to recuse
himself because Crain’s motion was based on previous adverse rulings. See Mayes
v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984).
We deny as moot Crain’s motions filed on February 23 and 27, 2009.
We instruct the Clerk to file Crain’s motion submitted on June 15, 2009, and
deny it.
We instruct the Clerk to file Crain’s request submitted on September 23,
2009.
We grant Crain’s motion filed on April 8, 2009, and instruct the Clerk to file
his second reply brief to the District Attorney’s answering brief.
AFFIRMED.

-- 3 of 3 --