521 F2d 1304 Foster v. J Macbride

521 F.2d 1304

Roy B. FOSTER, Appellant,
Thomas J. MacBRIDE et al., Appellees.

No. 74-1825.

United States Court of Appeals,
Ninth Circuit.

Decided July 11, 1975.
Amended Aug. 6, 1975.
Rehearing Denied Sept. 5, 1975.

Roy B. Foster, in pro. per.

William B. Shubb, Asst. U. S. Atty., Sacramento, Cal., for appellees.


Before MERRILL and KENNEDY, Circuit Judges, and ENRIGHT,* District Judge.


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This is an appeal from the district court's dismissal of the appellant's complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(1) and (6). We affirm.


The appellant filed suit against the United States and Thomas J. MacBride, Chief Judge of the United States District Court for the Eastern District of California, seeking over $400,000 damages for certain allegedly improper rulings in another action over which Judge MacBride presided. Since judges are immune from liability for damages for acts committed within their judicial discretion, Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 1974), dismissal of the complaint against Judge MacBride was proper.


In the district court appellant failed to allege any basis for his claim against the United States. The district court held that the appellant thus failed to meet his burden of alleging a specific statute clearly authorizing suit against the United States for the damages asserted. See, e. g., Albert v. Brownell, 219 F.2d 602 (9th Cir. 1955).


In his Brief on Appeal, appellant contends that the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 Et seq., provides a proper jurisdictional basis for suit. However, a federal district judge in trying cases is a member of the independent judiciary and is not under the control of the United States. Therefore, he is not an "employee of the government" as required by 28 U.S.C. § 1346. Cromelin v. United States, 177 F.2d 275 (5th Cir. 1949), Cert. denied, 339 U.S. 944, 70 S.Ct. 790, 94 L.Ed. 1359 (1950).


Accordingly, the judgment of the district court is affirmed.


The Honorable William B. Enright, United States District Judge for the Southern District of California, sitting by designation