                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                             FOR THE NINTH CIRCUIT                          DEC 16 2009

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

 STEVEN CRAIN,                                   No. 08-17646

               Plaintiff - Appellant,            D.C. No. 2:08-cv-00818-KJD-PAL

   v.
                                                 MEMORANDUM *
 CLARK COUNTY PUBLIC DEFENDER;
 et al.,

               Defendants - Appellees.



                     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.

          *
             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
§ 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).




NW /Research                               2                                    08-17646
        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.




NW /Research                               3                                    08-17646
