MEMORANDUM*

Gardner appeals pro se the court's orders dismissing several defendants from his 42 U.S.C. Sec. 1983 suit and granting summary judgment in favor of the remaining defendants. We affirm and sanction Gardner for filing a frivolous appeal.

Gardner sued defendant Kotvas in California state court alleging breach of a land sale contract. The court granted summary judgment against Gardner and the California Court of Appeal affirmed.

Gardner filed a Sec. 1983 suit in federal court, naming as defendants nearly everyone connected with the state court litigation: Kotvas and his attorney, Gardner's attorneys, four California Superior Court judges, two justices of the California Court of Appeal, two court reporters, and an appellate court clerk. He alleged that the defendants conspired to predetermine the outcome of the state suit, depriving him of his civil rights.

The court dismissed the complaint against the judges and court personnel because of judicial and quasi-judicial immunity. It granted summary judgment in favor of the remaining defendants because Gardner failed to produce evidence of a conspiracy.

The court ordered dismissal as to the nine judicial defendants on August 19, 1986. It granted summary judgment in favor of Kotvas, Maroney, and Jones on May 29, 1987, and in favor of the single remaining defendant, Satin, on September 17, 1987. Gardner filed his notice of appeal on October 19, 1987. Appellees argue that the appeals from the August 1986 and May 1987 orders are untimely. This contention has no merit.

28 U.S.C. Sec. 1291 confers jurisdiction "of appeals from all final decisions of the district courts." Fed.R.Civ.P. 54(b) states that:

[A]ny order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties ...

The district court may enter a final judgment as to fewer than all the parties "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Id.

The judge did not certify either the dismissal order or the May 1987 summary judgment order as final and appealable. The judgment was not final until he granted summary judgment on September 17, 1987. Gardner appealed timely. See Maurer v. Los Angeles County Sheriff's Dep't., 691 F.2d 434, 436 n. 1 (9th Cir.1982) (dismissal of some defendants not a final order as required by Sec. 1291 and not appealable absent certification under Fed.R.Civ.P. 54(b)).

Judge Keller dismissed Gardner's claim against the judges and court personnel under Fed.R.Civ.P. 12(b)(6). We review de novo. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). Dismissal is proper only if Gardner would not be entitled to relief under any state of facts. Id.

Judges are absolutely immune from civil damage liability in a conspiracy suit unless they act in absence of all jurisdiction or perform acts that are not judicial in nature. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.1986).

Judicial immunity bars Gardner's claim. Ruling on motions and deciding cases on appeal are judicial acts. See Stump v. Sparkman, 435 U.S. 349, 362 (1978). Gardner failed to allege that the judges acted in absence of jurisdiction or outside their judicial capacities. Ashelman, 793 F.2d at 1078.

Gardner alleges that the court clerk allowed falsified and untimely documents to be submitted to the court. He claims that one court reporter typed Kotvas' name rather than Gardner's at two points in the transcript and that the other court reporter failed to prepare it.

The court held correctly that the clerk and court reporters were entitled to quasi-judicial immunity. That immunity protects court clerks when performing tasks that are an integral part of the judicial process. Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir.1987), cert. denied, 108 S.Ct. 2031 (1988). Court reporters are entitled to judicial immunity when acting as quasi-judicial officers. Stewart v. Minnick, 409 F.2d 826 (9th Cir.1969).

The court granted summary judgment in favor of Kotvas and three attorneys: Maroney, Jones and Satin. We review de novo. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

Under Sec. 1983 Gardner must show that the defendants, acting under color of state law, deprived him of rights secured by the Constitution or federal statute. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980). Private persons or privately retained attorneys generally do not act "under color of state law." Taylor v. First Wyoming Bank, 707 F.2d 388, 389 (9th Cir.1983); Briley v. California, 564 F.2d 849, 855 (9th Cir.1977). An exception exists for private parties who conspire with state officials in their official capacities. Dennis v. Sparks, 449 U.S. 24, 29 (1980); Glover v. Tower, 700 F.2d 556, 558 n. 1 (9th Cir.1983), aff'd, 467 U.S. 914 (1984).

Gardner failed to produce any evidence of a conspiracy between these private persons and state officials. The non-moving party may not defeat summary judgment in the absence of significant probative facts tending to support his theory. THI-Hawaii v. First Commerce Fin. Corp., 627 F.2d 991, 994 (9th Cir.1980). Summary judgment was proper.

The court held also that Gardner's claim against attorney Satin was moot. A bankruptcy order limited Gardner's recovery from Satin to the proceeds of his malpractice insurance. Gardner failed to rebut Satin's declaration that he had no such insurance. Judge Keller acted properly in dismissing this claim.

Gardner contends that the court impeded his discovery attempts, frustrating his efforts to prove his conspiracy claim. We review discovery rulings for abuse of discretion. Hatch v. Reliance Ins. Co., 758 F.2d 409, 416 (9th Cir.), cert. denied, 474 U.S. 1021 (1985).

The court did not abuse its discretion in denying Gardner's motions to compel discovery. He failed to follow Federal Rules. Judge Keller stated:

As for Mr. Gardner's request for production of documents [from the judicial defendants' attorneys], their clients ... are no longer parties. Therefore, they are not required to produce documents pursuant to FRCP 34. Mr. Gardner, however, may avail himself of the discovery tools provided by the Federal Rules of Civil Procedure against non-parties with the understanding that all or most of what he seeks is a public record to which Mr. Gardner, like any other citizen, has access to upon payment of the proper fees.

Judge Keller informed Gardner of the proper discovery procedures.

Gardner contends also that the court granted summary judgment before he completed discovery. This contention has no merit. If he lacked sufficient time, the proper course was to file a Rule 56(f) motion for a continuance. THI-Hawaii, 627 F.2d at 994.

Appellees claim that Gardner filed a frivolous appeal and ask that we impose sanctions. We may award attorneys' fees and assess costs as sanctions for bringing a frivolous appeal. Fed.R.App.P. 38; 28 U.S.C. Sec. 1912. An appeal is frivolous when the result is obvious or the appellant's arguments are wholly without merit. McConnell v. Critchlow, 661 F.2d 116, 118 (1981).

We have imposed sanctions on pro se litigants. See Holloway v. United States, 789 F.2d 1372, 1374 (9th Cir.1986); Grimes v. Commissioner, 806 F.2d 1451, 1454 (9th Cir.1986); Cook v. Spillman, 806 F.2d 948, 949 (9th Cir.1986); Gattuso v. Pecorella, 733 F.2d 709, 710 (9th Cir.1984). In Grimes, we stated:

The purpose of Rule 38 and section 1912 is to induce litigants to conform their behavior to the governing rules, regardless of their subjective belief. Groundless litigation ... diverts the resources of the judicial system from more serious claims, and imposes unnecessary costs on other litigants. Even though [the appellant] is proceeding pro se, sanctions are appropriate.

806 F.2d at 1454.

Gardner's claims are clearly without merit. The record suggests that he pursued the appeal to harass the defendants. We conclude that this appeal is frivolous and grant Appellees' request for costs and attorneys' fees pursuant to Fed.R.App.P. 38 and 39. We direct Appellees to file an itemized and verified bill of costs pursuant to Fed.R.App.P. 39(d).

AFFIRMED.