Full opinion text
MEMORANDUM OPINION JENKINS, District Judge. This is a civil rights action alleging wrongdoing on the part of a Federal Judge, a United States Attorney and several Assistant United States Attorneys, several deputy United States Marshals, a host of individuals and agencies engaged in federal and state law enforcement, and a television news reporter. The plaintiff seeks damages for and declaratory and equitable relief from what he asserts to be an overall conspiracy to deprive him of his civil rights and to “railroad” him into prison on unsubstantiated criminal charges. The allegations in Martinez’ complaint relate to the commencement of a criminal action entitled United States v. Martinez and the events leading to a mistrial in that case. Those events have been briefly summarized by the Court of Appeals: On November 9, 1973, Martinez was indicted on seven counts relating to possession of unregistered explosives and the sending of explosives through the United States mails. Before trial commenced, in January, 1981, four counts were severed by the district court, Chief Judge Fred Winner presiding. Martinez went to trial on counts one, four, and seven; one count alleged a conspiracy and the other two charged possession of explosives and mailing of the explosives to an individual known as Carol Hogue. On January 27, 1981, trial commenced in Pueblo, Colorado on the unsevered counts. On January 29, the defendant moved to replace two jurors with two alternates because of complaints allegedly made by the two jurors about spectators wearing T-shirts with “Free Kiko” (defendant’s nickname) printed on them. The two jurors had also allegedly complained about a law student at the defense table wearing sun-glasses. The government objected to the motion and Judge Winner denied the motion. On the evening of the third day.of trial, January 29, the trial judge held a secret meeting with the prosecutors, court personnel, and several government witnesses in his hotel room. Neither defendant nor his counsel were notified about this meeting. Judge Winner stated that he believed there was an atmosphere of intimidation in the court room caused by some of the spectators who were sympathetic to the defendant and that he wanted hidden cameras to be installed to record the intimidation. Judge Winner informed the prosecutors that he would grant a motion for a mistrial, but advised them not to make such a motion until after the cameras were installed and after the defense presented its case. The judge further indicated that he could provoke defense counsel to request a mistrial. One witness, Officer Tyus, stated that he could cause a mistrial by giving testimony which had previously been ruled inadmissible. Judge Winner repeated many of these comments in chambers to United States Attorney Roberts who arrived from Denver the next day. The trial judge also expressed a desire to remain in ex parte contact with the prosecutors. The reason given for not inviting defendant’s counsel to the meeting was the court’s suspicion (unverified on this record) that one of defendant’s counsel might be involved in a conspiracy to intimidate the jury. On January 30, the morning after the meeting, the government stated that it “did not object to the granting of defendant’s motion for a mistrial.” At that time all of the defendant’s motions had been overruled. The prosecutor, Mr. Barksdale, explained: We understand the jurors’ two names were in the newspaper. I was aware of that this morning. We also understand from the Court this morning that the — in court, of course, the juror was — one juror was ill, and we, therefore, have changed our position. The court granted a recess to allow the defense to decide whether to join in the government’s motion. The defense then joined in the motion. The trial court granted the joint motion for mistrial. United States v. Martinez, 667 F.2d 886, 887-888 (10th Cir. 1981) (footnote omitted). The Court of Appeals held in the criminal case that the prosecutors’ failure to inform the defense of the January 29 meeting barred retrial on three counts because of the Double Jeopardy Clause. Id., 667 F.2d at 890. Martínez now asserts claims for wrongdoing at and after the January 29 meeting as well as claims based upon a pattern of purported wrongdoing by state and federal officials reaching back to before the filing of the indictment against him in November of 1973. He asserts claims based upon 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988, the First, Fourth, Fifth, Sixth, Eighth, Ninth, Thirteenth, and Fourteenth Amendments to the United States Constitution, unspecified sections of the Constitution of the State of Colorado, common-law tort actions such as false arrest, false imprisonment, abuse of process, harassment, gross misconduct, outrageous conduct, and negligence, and violations of the Code of Judicial Conduct and the Code of Professional Responsibility. I. JURISDICTION Though this action was not commenced in this Court, and the pleadings consequently lack the jurisdictional allegations common to federal complaints, the jurisdiction of this Court is firmly established by the removal statutes relied upon by the defendants in moving the case to this forum. See 28 U.S.C. §§ 1441(b), 1442(a) (1976). This Court has original jurisdiction of plaintiff’s action pursuant to 28 U.S.C. §§ 1331 (federal question), and 1343(a) (civil rights actions); see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (actions directly under Constitution), as well as exclusive original jurisdiction of plaintiff’s tort claims against the United States. See 28 U.S.C. § 1346(b) (1976). Though all but two named defendants have moved to dismiss the plaintiff’s complaint, subject matter jurisdiction is not at issue. But see Part VIII, infra. II. MOTIONS UNDER RULE 12(b)(6) The defendants’ motions uniformly assert that the plaintiff’s complaint should be dismissed “for failure to state a claim upon which relief may be granted,” Rule 12(b)(6), Federal Rules of Civil Procedure, the modern equivalent of the obsolete plea of demurrer. In determining the issue raised by the motions, the material factual allegations of the complaint are, of course, to be taken as true, see Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed.2d 338 (1976); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 222, 68 S.Ct. 996, 999, 92 L.Ed. 1328 (1948), and the complaint is to be read in a light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421-422, 89 S.Ct. 1843, 1848-1849, 23 L.Ed.2d 404 (1969); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 at 594 & n. 46 (1969). A complaint should not be dismissed unless it appears to a certainty that plaintiff is not entitled to relief under any state of facts which could be proved in support of the claim. Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972); Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); 2A Moore’s Federal Practice ¶ 12.08 at 2274 (2d ed. rev. 1981). The requisite want of merit “may consist in an absence of law to support a claim of the sort made, or of fact sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim.” DeLoach v. Crowley’s, Inc., 128 F.2d 378, 380 (5th Cir. 1942). III. THE EIGHTH AND THIRTEENTH AMENDMENT CLAIMS The complaint, paragraphs 163-164, 167-168, alleges in a conclusionary fashion that the conduct of the defendants described in the complaint (jointly and severally) violates the plaintiff’s rights under the Eighth and Thirteenth Amendments to the United States Constitution. Yet Martinez’ complaint describes no “excessive” bail requirement, see e.g., Stack v. Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951); United States v. Beaman, 631 F.2d 85 (4th Cir. 1980), no imposition of an excessive fine (or any fine, for that matter), e.g-., United States v. Miller, 588 F.2d 1256 (9th Cir. 1978), cert. denied 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636, nor facts even approaching the imposition of a “cruel and unusual punishment,” e.g., Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), or conditions of “slavery or involuntary servitude.” See e.g., United States v. Booker, 655 F.2d 562 (4th Cir. 1981). One can only conclude from a careful reading of the lengthy pleading filed by the plaintiff that these claims for relief are surplusage. The 189 paragraphs of the complaint in this action are heavily laden with colorful legal terminology. Paragraph 38, for example, alleges that 38. Said [Denver] Police Department and named and unnamed officers and employees thereof investigated the allegations against plaintiff in a reckless and negligent manner so as to deny him the equal protections of the laws through malicious abuse of process. That a defendant could negligently engage in a malicious act seems incongruous. Abuse of process (if that be the ground relied upon) is an intentional tort. See Restatement (Second) of Torts § 682 (1977). The plaintiffs conclusory assertions of liability under the Eighth and Thirteenth Amendments exhibit similar weaknesses. The complaint offers conclusions of liability under these two amendments, without a factual premise. Rule 8(e)(1), F.R.Civ.P., — useful in both federal and state litigation — states that “[e]ach averment of a pleading shall be simple, concise and direct,” and Rule 8(a) directs that the complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Since no such claims under the Eighth and Thirteenth Amendments appear within the four corners of the pleading, Counts X and XII shall be and are DISMISSED as against all defendants. See also Rule 12(f), Federal Rules of Civil Procedure. IV. CLAIMS UNDER THE NINTH AMENDMENT Similarly, all one can say about Martinez’ Ninth Amendment claims is that they are alleged in Count XI of the complaint as conclusions. The Ninth Amendment provides: The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. The complaint nowhere particularizes which of these unenumerated rights have allegedly been violated, how they have been violated, or by whom. This leaves the Court in the curious position of having to identify the plaintiff’s Ninth Amendment claims through a comparison of Martinez’ “factual” allegations with the body of governing case law as it has developed under that amendment. Chief Justice Burger offered some guidance in a recent opinion in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980): Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain1 unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. Id., 448 U.S. at 579-580, 100 S.Ct. at 2828-2829 (footnote omitted) (Burger, C. J., for plurality). In Richmond Newspapers, the Court found the right to attend criminal trials to be constitutionally protected by implication. Id. at 580, 100 S.Ct. at 2829. Relying upon the Chief Justice’s informal enumeration, as well as similar authority, this Court will search among the penumbral shadows of plaintiff’s other claims for the defendants’ alleged Ninth Amendment liabilities. The plaintiff’s allegations against the federal defendants make up a veritable pepper pot of claims, including constitutional, statutory and common-law causes of action. The defendants in return have asserted various forms of official immunity to those claims, and have attacked the allegations as meritless on their face. For convenience, the claims and defenses shall be determined by category of defendant. V. CLAIMS AGAINST JUDGE WINNER Many of the allegations of the complaint focus on the conduct of Chief Judge Winner before and during the jury trial in United States v. Martinez. Martinez asserts that Judge Winner received and read police surveillance materials and reports concerning Martinez which were gathered and provided by the Denver police and the Federal Bureau of Investigation. He further claims that Judge Winner assigned the Martinez case to himself in violation of established work distribution procedures, that he maintained “tight” security arrangements in the courtroom, that he made rulings unfavorable to the defense, and that he planned and/or conspired to have hidden cameras installed to conduct surveillance on spectators in the courtroom and to “spy on” Martinez and his defense attorneys. Further, the complaint alleges that he conspired with the persons he called to the ex parte meeting on January 29, 1981 to procure the conviction of Martinez and to prosecute Martinez’ supporters who attended the trial through the use of evidence to be obtained by the hidden cameras. See complaint, at ¶¶ 69-111. The complaint alleges that Judge Winner utilized the news media to publish “false and libelous” accusations against Martinez. Complaint, at ¶¶ 112-122. Counsel for the plaintiff asserts that the Judge’s actions and omissions in and around the trial were acts in furtherance of a “conspiracy by Judge Winner, F. B. I. agents and police to railroad plaintiff to jail, ...” Plaintiff’s Brief in Response, at 10; see also Complaint, at ¶ 64 (“defendant Winner determined to have plaintiff convicted of a crime and railroaded to jail in order to chill plaintiff . .. ”). The threshold inquiry would seem to be whether defendant Winner’s actions were “judicial” acts, or whether they were conduct of a different sort, e.g., of an investigative nature. In Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), the United States Supreme Court identified two factors to be considered in determining whether an act is “judicial”: (1) “the nature of the acts itself, i.e., whether it is a function normally performed by a judge,” and (2) “the expectation of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Id., 435 U.S. at 362, 98 S.Ct. at 1107. A judge who acts in the “clear absence of all jurisdiction” id., 435 U.S. 357, 98 S.Ct. at 1105, is not acting “judicially”; a judge, on the other hand, who is acting within his jurisdiction is likely engaging in “judicial” actions, notwithstanding the fact that the judge may have committed “grave procedural errors.” Id., 435 U.S. at 359, 98 S.Ct. at 1106. The complaint avers no “clear absence of jurisdiction” in United States v. Martinez. The question “whether at the time he took the challenged action he had jurisdiction over the subject matter before him,” Stump v. Sparkman, supra, 435 U.S. at 356, 98 S.Ct. at 1104, must be answered in the affirmative. The inquiry thus turns to the nature of the acts and the perceived capacity of the actor. There are few acts more “judicial” than the making of rulings upon motions and objections during the course of a trial. That is a part of a trial judge’s function. Control over the admission and presentation of evidence, for example, is expressly vested in the trial judge. Rule 611, Federal Rules of Evidence. A claim arising from a judge’s rulings on motions is a claim concerning a “judicial” act. See Clark v. Taylor, 200 U.S.App.D.C. 231, 627 F.2d 284, 288 (1980). Similarly, the division of the workload in a federal district court is a “judicial” function governed “by rules and orders of the court.” 28 U.S.C. § 137 (1976). As chief judge, defendant Winner possessed authority to secure the observance of such rules and orders, and to “divide the business and assign the cases as far as such rules and orders do not otherwise prescribe.” Id. If the district judges prove unable to agree on an appropriate distribution system, “the judicial council of the circuit shall make the necessary orders.” Id., 28 U.S.C. § 332. It is significant that the Administrative Office of the United States Courts plays no part in this matter. See 28 U.S.C. §§ 601 et seq. If a chief judge violates an outstanding order on workload distribution, the appropriate remedy is a petition to the appropriate court of appeals for a writ of mandamus. See Utah-Idaho Sugar Co. v. Ritter, 461 F.2d 1100, 1104 (10th Cir. 1972) (per curiam); Kerr-McGee Corp. v. Ritter, 461 F.2d 1104, 1105 (10th Cir. 1972) (per curiam), or raising the question after the fact as an error from which an appeal is taken. The agreed distribution of business ... is merely to promote accord and avoid conflict; it may be imperative, so far as it extends, but it does not go to the essence of the judge’s power. . . . [Cjompliance with every rule of court is not essential to the judge’s jurisdiction, nor may his acts be ignored if they do not conform to all. There is a way to correct such errors which must be followed! Yet unless rules for the distribution of business stand on a different footing from rules in general, the decrees vacated were not the empty words of a mere intruder. Johnson v. Manhattan Ry. Co., 61 F.2d 934, 938 (2d Cir. 1932), affirmed 289 U.S. 479, 53 S.Ct. 721, 77 L.Ed. 1331 (1933). In Johnson, the Senior Circuit Judge for the Second Circuit assigned himself to sit in the Southern District of New York and then designated himself to sit in a specific case involving the Interboro Rapid Transit Company. He then appointed receivers to manage property that was a subject of the suit. Johnson filed a collateral lawsuit that assailed the authority of the Senior Circuit Judge to make the appointments. The Court of Appeals for the Second Circuit held that the work allocation rules “are only directory, and that their disregard was at most no more than error.” Id., 61 F.2d at 939; “however valid the rules may be,” a judge’s order in violation of them “would still be a judicial act, unassailable collaterally.” [Emphasis added.] Id., 61 F.2d at 938. The Supreme Court affirmed. Though conceding that the Senior Circuit Judge had “acted hastily and evidently with questionable wisdom,” id., 289 U.S. at 505, 53 S.Ct. at 730, the court held the receivership appointments to be beyond collateral attack. Contrary to the plaintiff’s bald assertion, the control of order and security in and around the courtroom is an essential “judicial” function. In reviewing the famous Sam Sheppard murder trial, the United States Supreme Court observed that the “carnival atmosphere” at that trial “could easily have been avoided since the courtroom and courthouse premises are subject to the control of the court,” Sheppard v. Maxwell, 384 U.S. 333, 358, 86 S.Ct. 1507, 1519, 16 L.Ed.2d 600 (1966). Where, for example, it appears that a criminal defendant’s supporters are attempting to intimidate and harass witnesses and otherwise disrupt a trial, “the trial judge must exercise his power to exclude those who act and those who appear to be acting in concert with them lest it be impossible for the trial to proceed and for the jury to pass on the charges.” United States v. Fay, 350 F.2d 967, 970 (2d Cir. 1965). The United States Court of Appeals for this circuit has already stated that “[t]he type and necessity of precautionary measures taken during the course of the trial is within the sound discretion of the trial court.” Snow v. State of Oklahoma, 489 F.2d 278, 280 (10th Cir. 1973) (citations omitted). Exercise of that discretion is an exclusively “judicial” function: It is essential to the proper administration of criminal justice that dignity, order and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations.... Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970). The complaint does not allege that Martinez was bound and gagged, shackled, or involuntarily removed from the courtroom during trial. Rather, it asserts that “defendant Winner issued orders designed and intended to create an atmosphere and climate of unconstitutional intimidation and tension in the courtroom. ...” Complaint, at ¶ 69. This was allegedly accomplished through placement of deputy marshals and police officers in the courtroom, searches of persons and items entering the courtroom, and in general, ordering “tight” security. Id., at ¶ 71. Such measures, says plaintiff, are not a judicial matter: “[A]cts of providing for courtroom security are routinely and ordinarily determined upon, handled and undertaken by the United States Marshal and his deputies.” Id., at ¶ 72. In asserting that Winner’s orders regarding courtroom security are not “judicial,” plaintiff misconceives the focus of power to control courtroom conduct. As the Court of Appeals for the Fourth Circuit has explained, it is for the Court to balance the interests of the defendant in having the indicia of innocence, e.g., a minimum of physical restraint, in appearances before the jury and the interests of the press and the public in attending trials against needs for security to maintain order and decorum in the courtroom: The cases traditionally state that accommodation between these conflicting interests lies within the discretion of the district judge. It is he who is best equipped to decide the extent to which security measures should be adopted to prevent disruption of the trial, harm to those in the courtroom, escape of the accused, and the prevention of other crimes. E.g., Gregory v. United States, 365 F.2d 203 (8th Cir. 1966); Guffey v. United States, 310 F.2d 753 (10th Cir. 1962). United States v. Samuel, 431 F.2d 610, 615 (4th Cir. 1970). As to the relative role of the Marshal, the court stated: We stress that the discretion is that of the district judge. He may not, as is suggested at one part in the record before us, delegate that discretion to the Marshal. Of course he should consult with the Marshal when other than ordinary security such as the general presence of guards in the courtroom is contemplated, and he may rely heavily on the Marshal’s advice as to what may be required.... Id., 431 F.2d at 615. The exercise of the trial judge’s discretion in controlling courtroom security is subject to appellate review. A reviewing court may determine if an abuse of discretion has occurred. Id. The exercise of this discretion is nevertheless “judicial” within the criteria set forth in Stump v. Sparkman and other cases. Concerning the January 29 meeting, the complaint alleges as follows: 90. Defendant Winner proposed at the aforestated January 29, 1981 meeting that; a)he would be “meaner” to plaintiff if the prosecution desired; b) the prosecution should ask for a mistrial; c) the mistrial request should be made only after the prosecution had gained knowledge of the defenses and the defense strategy; d) the mistrial could be procured by Defendant Winner’s deliberate provocation of one of plaintiff’s attorneys; e) the mistrial would be granted whenever the prosecution wanted it; f) the mistrial would be granted only under circumstances which would not support a claim of double jeopardy; g) in the new trial, the prosecution should improve its presentations of the case in order to insure plaintiff’s conviction. Complaint, at ¶90. While these are the most damning of the complaint’s specific allegations, such averments describe “judicial” acts. Defendant Winner, as presiding judge at the Martinez trial, called the prosecutors, deputy marshals and certain witnesses to a meeting. He discussed the granting of a mistrial in a manner which, though here pleaded in contradictory terms, was sufficient standing alone to make a mistrial a “manifest necessity”. Arizona v. Washington, 434 U.S. 497, 505-508, 98 S.Ct. 824, 830-831, 54 L.Ed.2d 717 (1978). The implications of the defendant Winner’s remarks possess gravity because he was speaking as the judge regarding the impending performance of his role in the trial then before him. The alleged comments reflect a purpose to engage in “judicial” conduct in an injudicious manner. It is apparent, therefore, that the acts which the plaintiff asserts give rise to liability were “judicial” acts, a determination of particular importance to the question of official immunity. It seems well settled at this point that a judge “is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.” Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331 (1978). Moreover, a judge cannot be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather he will be subject to liability only when he has acted in “ ‘clear absence of all jurisdiction.’ ” Id., at 356-357, 98 S.Ct. at 1104-1105; Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1871); Rheuark v. Shaw, 628 F.2d 297, 304 (5th Cir. 1980). This common-law doctrine of absolute judicial immunity has been described as “[a] seemingly impregnable fortress in American jurisprudence.” Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 1974). Yet judicial immunity, like other forms of official immunity, “is not a badge of emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government.” Barr v. Mateo, 360 U.S. 564, 572-573, 79 S.Ct. 1335, 1340, 3 L.Ed.2d 1434 (1959). “Immunity is thought necessary to insulate judges from intimidation that might rob them of the independence so crucial to the public’s interest in principled and fearless decision-making.” Gregory v. Thompson, supra, 500 F.2d at 63. This immunity applies even when the judge is accused of acting maliciously or corruptly, and it “is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judge should be at liberty to exercise their functions with independence and without fear of consequences.” (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868) quoted in Bradley v. Fisher, [80 U.S. (13 Wall.) 335,] 349, note at 350 [20 L.Ed. 646].) It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation. Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967). In Pier-son, the United States Supreme Court held that the common-law doctrine of judicial immunity was not abridged by the enactment of the Civil Rights Act of 1871 as codified in 42 U.S.C. § 1983: We do not believe that this settled principle of law was abolished by § 1983, which makes liable “every person” who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Id., 386 U.S. at 554, 87 S.Ct. at 1217. State judges are thus immune from suit under § 1983 for their “judicial” acts. In Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), the Supreme Court again affirmed the continuing force of the doctrine of judicial immunity, making clear that the question of immunity in no way depends upon the relative propriety or error to be found in a judge’s actions. Stump unequivocally holds that immunity arises from the judicial nature of actions taken with at least a colorable claim of jurisdiction. Id., 435 U.S. at 363-364, 98 S.Ct. at 1108; see also Apton v. Wilson, 506 F.2d 83, 90 (D.C.Cir.1974). Both Pierson and Stump deal directly with the liability of state judges pursuant to 42 U.S.C. § 1983. In this case, plaintiff has asserted claims against Judge Winner arising under that section and § 1985 as well as direct claims under the Constitution itself. Compare Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Kostal v. Stoner, 292 F.2d 492 (10th Cir. 1961), the Court of Appeals for this circuit affirmed the dismissal of a lawsuit alleging that the judge and prosecutor in plaintiff’s criminal trial “conspired together in the judge’s chambers to deprive the plaintiff of a fair trial, as guaranteed by the 14th Amendment to the Constitution,” all in violation of 42 U.S.C. §§ 1983, 1985(3). Deciding the case six years prior to Pierson, the court in Kostal observed that “[w]e have held that the Civil Rights Act does not impair the traditional common-law immunity of judges from personal liability in damages for their official acts in matters within their jurisdiction.” Id., 292 F.2d at 493 (citations omitted). The plaintiff now asks this Court to engraft an exception upon the rules reaffirmed in Pier-son, Stump, Kostal and other cases, an exception imposing liability upon a federal judge for intentionally wrongful and/or conspiratorial violations of the Civil Rights Act, or the Constitution. Counsel’s sweeping statements about the scope of liability under the civil rights acts notwithstanding, this Court can find no substantive legal or constitutional basis for such an exception. In fact, the governing case law is contrary to plaintiff’s view. In Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the United States Supreme Court declared that “without congressional directions to the contrary, we deem it untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.” Id., 438 U.S. at 504, 98 S.Ct. at 2909. In Butz, the question directly raised was whether federal officials were entitled to greater immunity than their state counterparts. The Court held they were not. Logically, it seems equally untenable to hold that federal officials, particularly federal judges and officers of the court are entitled to a lesser immunity than state judges and court officers. The policies underpinning judicial and judicially related immunities are at least as strong in relation to the federal courts: The cluster of immunities protecting the various participants in judge-supervised trials stems from the characteristics of the judicial process rather than its location. As the Bradley Court suggested, 13 Wall, at 348-349, controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus. See Pierson v. Ray, 386 U.S. at 554 [, 87 S.Ct. at 1217]. Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation. Butz v. Economou, supra, 438 U.S. at 512, 98 S.Ct. at 2913. The court in Butz makes no exception to the rule of Pierson, Stump, and Bradley v. Fisher; to the contrary, it expressly extended absolute immunity from damage liability to federal hearing examiners and administrative law judges. Id., 438 U.S. at 514, 98 S.Ct. at 2914. The Courts of Appeal have also rejected the notion that judges are liable for judicial acts engaged in as part of an alleged conspiracy. In Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980) (per curiam), the plaintiff alleged a conspiracy by six attorneys and eight judges involved in her divorce proceedings to violate her constitutional rights “by keeping her in a state of poverty for the purpose of hindering the effective prosecution of her case,” Id., 616 F.2d at 1091, all in violation of 42 U.S.C. §§ 1983, 1985(3). The district court dismissed the judge defendants on the basis of judicial immunity. The Court of Appeals affirmed: The district court dismissed appellant’s action against the judge appellees on the basis of judicial immunity. Appellant maintains that the doctrine of judicial immunity, being of common law stature, has been superceded by the Civil Rights Act. That argument was specifically rejected by Stump v. Sparkman, ... and Pierson v. Ray, . .. Appellant contends alternatively that a judge who violates a litigant’s legal rights is not acting in his or her judicial capacity. Stump and Pierson similarly dispose of that argument. The district court correctly dismissed the claims against the judge appellees. Id., 616 F.2d at 1091 (citations omitted). In Keating v. Martin, 638 F.2d 1121 (8th Cir. 1980), the Court of Appeals for the Eighth Circuit similarly held a judge defendant immune from suit under § 1983 for allegedly meeting with counsel for a second defendant “and a member of the prosecutor’s staff to ‘arrange for the denial of admission into evidence’ of certain materials which [their defendant] Keating planned to introduce at trial.” Id., 638 F.2d at 1122. Plaintiff directs this Court’s attention to no recent case in which the Tenth Circuit has made any retreat from its position in Kostal v. Stoner, supra, 292 F.2d at 493, that judicial immunity bars conspiracy claims under §§ 1983 and 1985 relating to “judicial” acts. See also Henriksen v. Bentley, 644 F.2d 852, 855 (10th Cir. 1981). The force of existing case authority aside, the bar of absolute immunity as against suits arising out of a judge’s conduct of a proceeding makes logical sense and serves sound public policy. “The cases granting absolute immunity to judges recognize that extraordinary reasons are required to justify the drastic step of barring the genuinely wronged individual from any redress against the wrongdoer.” Sellars v. Procunier, 641 F.2d 1295, 1299 (9th Cir. 1981). The most significant reason is the potential effect of such suits upon the judges and the judicial system. The judge is in a unique posture in the adversary system. His or her sole task is to make impartial decisions in vigorously contested actions, to “decide ‘[cjontroversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings.’ ” Butz v. Economou, 438 U.S. at 509, 98 S.Ct. at 2912 quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 348, 20 L.Ed. 646 (1872). The threat of constant litigation against the decision-maker is apparent .... Judges should not have to fear that unsatisfied litigants may hound [them] with litigation charging malice or corruption,” Pierson v. Ray, 386 U.S. at 554, 87 S.Ct. at 1217. Thus, the proper functioning and indeed the very survival of any independent, dispute-resolving system requires that the dread of subsequent lawsuits be prevented from becoming a factor in a judge’s assessment of the merits of a case. Sellars v. Procunier, supra, 641 F.2d at 1299-1300. Beyond the intimidating effect of the litigation, the burden of defense of such suits could readily consume much of a judge’s time and energy, taking him or her away from normal duties. Furthermore, there are safeguards against abuse built into the judicial process that minimize any necessity for a private civil damages action to redress erroneous or unconstitutional judicial conduct. As the Supreme Court said in Pierson v. Ray, supra, 386 U.S. at 554, 87 S.Ct. at 1217, “[a judge’s] errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption.” [Emphasis added]. The appellate remedy is a good remedy. It is an effective remedy. As the Supreme Court has reminded us, “it is typically a judicial system’s appellate courts which are by their nature a litigant’s most appropriate forum for the resolution of constitutional contentions.” Huffman v. Pursue, Ltd., 420 U.S. 592, 609, 95 S.Ct. 1200, 1210, 43 L.Ed.2d 482 (1975). At the hearing, this Court raised the question of the availability and efficacy of the appellate remedy, and whether the § 1983, § 1985, or the Bivens -type civil remedy is available to collaterally attack judicial and prosecutorial conduct in and concerning a trial which may be the subject of an appeal. Those questions seem particularly meaningful in this case by virtue of the fact that the plaintiff here prevailed in an appeal from the attempted retrial of his criminal charges. The Court of Appeals found that portions of the conduct complained of herein barred a retrial of such charges under the Double Jeopardy Clause. United States v. Martinez, supra, 667 F.2d at 889-890. At the same time, the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling constitutional conduct. The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges. [Emphasis added and footnote omitted], Counsel adamantly insists that plaintiff may maintain his civil action against the judge and other defendants regardless of the appellate process. At the hearings, counsel responded to this Court’s inquiry as follows: THE COURT: . .. [I]n essence you are saying, are you not, that in any situation where a criminal defendant is found not guilty or a criminal defendant is triumphant at the Court of Appeals level that he is in a position to bring an action? MS. GRAHAM: Absolutely and there are thousands of such cases. [§] 1983 in a state matter, [§] 1981, no question about it. There are thousands of cases of that kind. # # * # $ * Hrg. Tr. at 53-54; see id. at 50-62. In the plaintiff’s brief it is asserted: The damages and other relief that may be recovered by means of lawsuits charging violations of those [Civil Rights Acts] and of the Constitution are not in any way dependent upon the outcome, favorable or otherwise, of a criminal prosecution .... While examples abound, the plain answer is that the Civil Rights Acts and their jurisdictional counterparts express no limitation on their use to seek damages, by a criminal defendant who was acquitted or otherwise had the charge against him dismissed. If the laws and constitutional provisions providing for rights are violated once, or an attempt is made through a conspiracy to abrogate them the later connection of the violation, or the failure of the conspiracy, does not destroy the causes of action set forth. To hold to the contrary would encourage the flouting of rights. To counsel’s knowledge, no court has so ruled. Plaintiff’s Brief in Response, at 24, 27. In making this argument, the plaintiff directly relies upon Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979), both of which are cases holding that law enforcement officers may be liable in damages under the Civil Rights Act, or the Constitution itself, for conduct related to unlawful searches and seizures. The Hampton case arose from the planning and execution of a police raid upon an apartment occupied by members of the Black Panther’s Party, and the resulting shoot-out and post-raid coverup by police officials. A careful reading of the 61 pages of opinion in Hampton discloses no civil damages claim against a judge for conduct in or concerning the handling of a criminal trial. Indeed, to the extent that Hanrahan and other prosecutor defendants were held potentially liable, it was because they were “performing investigative rather than advocacy functions” in planning and participating in the raid. Id., 600 F.2d at 631-633. The court reaffirmed its earlier finding that the prosecutors’ “alleged participation in the planning and execution of a raid of this character has no greater claim to complete immunity than the activities of police officers allegedly acting under [their] direction.’ ” Id., 600 F.2d at 632, quoting Hampton v. City of Chicago, 484 F.2d 602, 609 (7th Cir. 1973), cert. denied 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974). Similarly, in Bivens the plaintiff sought to recover damages in a direct action under the Fourth Amendment arising out of the warrantless entry and search of his apartment by federal narcotics agents and his subsequent warrantless arrest. Bivens did not complain of any unconstitutional abuse by a judge, or a prosecutor, or a deputy marshal or bailiff. Any charges against Bivens had been dismissed long before a trial. In the Bivens case, the question was merely, Whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. Id., 403 U.S. at 397, 91 S.Ct. at 2005 (citations omitted). Having determined that Bivens’ complaint stated a cause of action under the Fourth Amendment the Court held that the plaintiff was “entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of the Amendment.” Id. The Bivens case went no farther than redressing injuries arising from the unconstitutional search and seizure and establishing the liability of those who perpetrated it. No “judicial” or judicially related conduct was at issue. Plaintiff relies on a third case, Baldwin v. Morgan, 251 F.2d 780 (5th Cir. 1958), in arguing that a criminal defendant may assert an independent civil damages remedy to redress trial misconduct. Baldwin, which counsel says “comes closest to factual situation herein,” dealt with racial segregation in the waiting rooms of the Birmingham Railroad Terminal. Plaintiffs brought a class action suit for injunctive and declaratory relief against the Alabama Public Service Commissioners, Commissioners of the City of Birmingham, and the Birmingham Terminal Company alleging the maintenance of an “interstate and white waiting room,” and other rooms from which black persons were excluded. Id., 251 F.2d at 783-784. Misconstruing the meaning of “state action” under § 1983 and the correct scope of the plaintiffs’ complaint, the district court dismissed the action on the basis that charges against some plaintiff arising from arrests under the challenged policy had been dismissed. Observing that “ ‘[mjisuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken’ under color of ‘state law,’ ” id., 251 F.2d at 786, quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941) the Court of Appeals reversed, holding that the plaintiffs stated a viable, justiciable cause of action concerning the policy or custom of segregation at the Terminal: [Tjhis city criminal case, or its dismissal, was not the Civil Rights case before the Court below. When the criminal proceeding was closed, it did not automatically take with it the charge made in this cause that state agencies, pretending to act for the state and exerting the power of their respective offices were, under the threat of arrest or other means, depriving Negroes of the right to be free of discrimination in railway public waiting rooms on account of race or color. Id., 251 F.2d at 787 (emphasis added). Nothing in Baldwin speaks to judicial conduct, or to error or misconduct by anyone during the course of a trial, or to damages actions arising out of a trial. Plaintiffs, as noted, were seeking declaratory and injunctive relief against a state-sanctioned policy and custom of racial segregation in public facilities. Returning momentarily to Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), the plaintiffs in that case, a group of white and black clergymen, sought damages from police officers who arrested them, and from the judge who convicted them for “breaching the peace” by using segregated waiting room facilities in a bus terminal in Jackson, Mississippi in 1961. Such convictions were held unconstitutional in Thomas v. Mississippi, 380 U.S. 524, 85 S.Ct. 1327, 14 L.Ed.2d 265 (1965). In Pierson, as discussed supra, the Supreme Court held the judge to be absolutely immune from damages suits arising out of his clearly unconstitutional yet plainly “judicial” actions. The Civil Rights Act did not abrogate that immunity. Id., 386 U.S. at 553-555, 87 S.Ct. at 1217. It seems irrefutable that Pierson, Stump v. Sparkman, and related cases strike at the •heart of plaintiff’s argument. The cases uniformly reject the availability of a civil rights damages action as a remedy for judicial misconduct, particularly where an appellate remedy is, or has been available. A similar problem has arisen when attorneys have sought to challenge state court disciplinary or admission proceedings on constitutional grounds. Noting that review of such questions is available by writ of certiorari in the United States Supreme Court, see In re Summers, 325 U.S. 561, 566, 65 S.Ct. 1307, 1310, 89 L.Ed. 1795 (1945), the courts have refused to permit collateral challenges to those proceedings under the Civil Rights Acts. In Doe v. Pringle, 550 F.2d 596 (10th Cir. 1976), the Court of Appeals for the Tenth Circuit states: This action is, in essence, an attempt by Doe to seek review in inferior federal courts of the entire state proceedings including the order of the Colorado Supreme Court refusing to grant his second application for admission. That function is one reserved exclusively to the United States Supreme Court. . .. Doe cannot invoke the provisions of § 1983 of the Civil Rights Act in federal district court so as to circumvent and avoid his obligation to seek direct review of the United States Supreme Court. Id., 550 F.2d at 599 (emphasis in original; citations omitted). The Court of Appeals for the Fifth Circuit had similar words for a civil rights suit brought by a Florida lawyer to challenge his three-month suspension from practice: Among the several answers to plaintiff’s claim, a basic and dispositive one is that we hold no warrant to review final judgments of the Florida Supreme Court. That power is reserved to the Supreme Court of the United States. Complaining of constitutional violations, Mr. Sawyer has cast his complaint in the form of a civil rights suit. What he seeks, however, is simply reversal of the state court judgment. We have scrutinized the state proceedings and find them to be manifestly judicial ones. They could have been reviewed in the Supreme Court. In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945). Mr. Sawyer has, boarded the wrong flight. Sawyer v. Overton, 595 F.2d 252 (5th Cir. 1979) (per curiam). As expressed by the Court of Appeals for the First Circuit, “The settled law, with which we agree, is ‘that disciplinary orders of the highest court of a state may be reviewed federally only in the Supreme Court by petition for certiorari and not by suits in the district courts.’ ” Martinez Rivera v. Trias Monge, 587 F.2d 539, 540 (1st Cir. 1978), quoting Grossgold v. Supreme Court of Illinois, 557 F.2d 122, 125 (7th Cir. 1977). The Grossgold court observes: If no court could review the constitutional question, the alleged constitutional deprivation could be redressed in district court under the Section 1343(3) [civil rights] subject matter jurisdiction grant. If indeed judicial review of a claimed constitutional deprivation were cut off entirely, grave constitutional practices would be posed. Hart, The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362 (1953). The flaw in plaintiff’s contentions is that it overtakes the judicial review already accorded him. The Illinois Supreme Court, which is fully competent to pass on federal constitutional questions, has passed upon this constitutional question, and its decision became final when the Supreme Court of the United States denied certiorari... . Consequebtly there whs no arguable constitutional “deprivation” upon which Section 1343 could operate to provide subject matter jurisdiction. The doctrine of res judicata bars any further litigation of this question. Id., 557 F.2d at 124-125 (emphasis added). Like the plaintiff in Grossgold, Martinez had available the remedy of appeal, in his case to the United States Court of Appeals for the Tenth Circuit and the Supreme Court. Unlike the plaintiff in Grossgold, Martinez prevailed on the material constitutional question he raised in that appellate forum. These cases reflect the general approach taken by the courts in foreclosing the use of the civil rights acts as a means of collateral attack seeking compensation or other relief for judicial error or misconduct when review by direct appeal is available. See e.g., Wilkins v. Rogers, 581 F.2d 399, 404 (4th Cir. 1978); Gibner v. Oman, 459 F.Supp. 436, 439 (D.N.M.1977). In Almon v. Sandlin, 603 F.2d 503 (5th Cir. 1979), the court noted that “[ajlthough Almon has styled his complaint in the form of a civil rights action seeking monetary damages for alleged constitutional violations, this action is patently an attempt to collaterally attack the validity of the final judgment of the Supreme Court of Alabama.” Id., 603 F.2d at 506. If Almon had asserted his constitutional grievances in the challenged proceedings, “his proper remedy for an unfavorable decision was to seek review by writ of certiorari to the Supreme Court of the United States, not by collaterally attacking the judgment in a federal district court under § 1983.” Id. The same principle has been applied to civil rights suits which challenge the validity of criminal convictions or punitive confinement. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court held that, the 42 U.S.C. § 1983 was not available to prisoners seeking to collaterally attack the fact or duration of their confinement. The Court found that the writ of habeas corpus was the sole means of raising such a challenge. Id., 411 U.S. at 498-500, 93 S.Ct. at 1840-1841. Prisoners may maintain damages actions under the Civil Rights Act, but “[i]f a state prisoner is seeking damages he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release — the traditional purpose of habeas corpus.” Id., 411 U.S. at 494, 93 S.Ct. at 1838. An attack on “the fact or length of confinement” comprehends assertions that the plaintiff “was denied his constitutional rights at trial, as in Johnson v. Zerbst, [304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)].” Id., 411 U.S. at 486, 93 S.Ct. at 1834. For federal prisoners, 28 U.S.C. § 2255 provides a means equivalent to habeas corpus for raising collateral attacks on federal criminal convictions. Davis v. United States, 417 U.S. 333, 344, 94 S.Ct. 2298, 2304, 41 L.Ed.2d 109 (1974); United States v. Hayman, 342 U.S. 205, 217, 219, 72 S.Ct. 263, 271, 272, 96 L.Ed. 232 (1952). Plaintiff’s post-conviction remedies, had he been convicted, would have been a direct appeal and, if appropriate standards were met, relief under § 2255. Judicial error or misconduct that is prejudicial to a criminal defendant may readily be raised upon a direct appeal. Jurisdictional, constitutional and some non-constitutional errors may be redressed under § 2255. See Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962); United States v. Addonizio, 450 U.S. 178, 185-186, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Plaintiff herein cites no authority which holds that federal prisoners have available the additional collateral remedy of a civil rights damages action against the courts, judges or prosecutors involved in their conviction. In fact, § 1983 actions of this kind have been forbidden even in the absence of the availability of habeas corpus or § 2255 relief. See Waste Management of Wisconsin, Inc. v. Fokakis, 614 F.2d 138, 142 (7th Cir. 1980); Hanson v. Circuit Court of the First Jud. Cir., 591 F.2d 404, 410-411 (7th Cir. 1979), cert. denied 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143; Cavett v. Ellis, 578 F.2d 567, 569 (5th Cir. 1978); Lathon v. Parish of Jefferson, 358 F.Supp. 558, 560 (E.D.La.1973). The courts have repeatedly emphasized that “[s]o far as convictions obtained in the federal courts are concerned, the general rule is that the writ of habeas corpus will not be allowed to do service for an appeal.” Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982 (1947); United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979); Davis v. United States, 417 U.S. 333, 345, 94 S.Ct. 2298, 2304, 41 L.Ed.2d 109 (1974). The courts have also concluded that civil rights suits are not available as a substitute or supplement for the habeas corpus remedy. Preiser v. Rodriguez, supra; Cavett v. Ellis, supra; Taylor v. Kavanaugh, 640 F.2d 450, 451 (2d Cir. 1981). As Justice Douglas pointed out in Sunal v. Large, supra, “The normal and customary method of correcting errors of the trial is by appeal.” 332 U.S. at 177, 67 S.Ct. at 1590. Logic would dictate that a civil rights suit against a presiding judge is likewise not available as a supplement to or substitute for an appeal. The Civil Rights Act was not intended to be a source of damage actions brought by disappointed litigants against judicial officers who may commit errors or, irregularities while acting within the scope of their authority during the course of state court litigation. Sarelas v. Sheehan, 326 F.2d 490, 492 (7th Cir. 1963). It is not intended to serve that purpose as to federal litigation either, including criminal prosecutions. Nor does a party who has prevailed upon a criminal appeal have an action to exact damages from those who have erred. Again recalling Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967), and the court’s comment therein that a judge’s errors “may be corrected on appeal but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice and corruption,” it seems clear that the High Court has rejected any theory of qualified immunity for judges and prosecutors. To premise a judge’s official immunity from suit upon the absence of error or even malice in his actions is to destroy it. Absolute immunity, as the Supreme Court has acknowledged, leaves the genuinely wronged person without civil redress. However, broader societal concerns dictate that the balance be struck in favor of freeing judges from the constant fear of retaliatory suits. The alternative of qualified immunity, or no immunity at all, would disserve the public interest, because these officials would still be subject in some degree to vexatious litigation. Sellars v. Procunier, 641 F.2d 1295, 1300 (9th Cir. 1980). The multitude of cases referred to by plaintiff’s counsel in support of the contrary view, Hrg. Tr. at 53-54, have simply failed to materialize. Cases like Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), have permitted private actions for damages, but have done so in relation to events wholly extrinsic to the conduct of a criminal trial. At hearing, counsel for the plaintiff cited Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), for the proposition that “[a] judge is not immune who flouts the Constitution to get a conviction and who conspires with the police to railroad a defendant.” Hrg. Tr. at 49-50. The action in Gregoire also was against officials of the federal executive branch and alleged a claim for false arrest. There was no judicial defendant. In Gregoire, the court held the officials to be absolutely immune from suit, notwithstanding the fact that “their unlawful acts had been induced only by personal ill-will.” Id., 177 F.2d at 579. See also Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), affirmed 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1928). The court in Gregoire emphasized the important policy served by the defense of absolute immunity: It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Id., 177 F.2d at 581 (Learned Hand, C. J.). The plaintiff assails the application of the absolute immunity doctrine in this case because of the peculiar posture of the Martinez case. In Martinez, the Government appealed from Judge Kane’s dismissal of the attempted retrial of the plaintiff on the non-severed original three counts of the indictment. The plaintiff prevailed in that appeal on his claim that double jeopardy barred such retrial based on the failure of the prosecutors to disclose the nature of the January 29 meeting to the defense at the time that a mistrial motion was agreed upon. Id., 667 F.2d at 890. The Court of Appeals, however, did not have occasion to reach the plaintiff’s other allegations of trial court error and judicial misconduct. The immunity defense aside, the argument that a civil action for damages is needed to redress such problems following declaration of a mistrial misapprehends the nature of a mistrial. The declaration of a mistrial renders nugatory all trial proceedings with the same result as if there had been no trial at all. See 58 C.J.S. Mistrial at 833-834 (1948). The situation which exists is analogous to that which results from an appellate reversal and remand for new trial.... The parties are returned to their original positions and, at the new trial, can introduce new evidence and assert new defenses not raised at the first trial. See, e.g., United States v. Shotwell Mfg. Co., 355 U.S. 233, 243, 78 S.Ct. 245 [251] 2 L.Ed.2d 234 (1957); . . . United States v. Mischlich, 310 F.Supp. 669, 672 (D.N.J.1970) (citations omitted). Following Judge Winner’s mistrial determination, the plaintiff’s liberty was no longer at risk as a consequence of any of the alleged errors or misconduct which preceded it. As to the three counts mistried, the only cloud upon the plaintiff’s freedom was the threat of retrial, which dissipated upon an interlocutory appeal. See United States v. Martinez, supra. The errors of the first trial, whether intentional or not, have been rendered a nullity. There remains no threat of prejudice to the defendant’s rights posed by the conduct of that trial. No practical purpose would be served by a p