919 F2d 146 Turner v. Reiner

919 F.2d 146

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Melvin Leon TURNER, Plaintiff-Appellant,
Ira REINER, District Attorney, et al, Defendants-Appellees.

No. 90-55345.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.*
Decided Nov. 29, 1990.

Before WALLACE, DAVID R. THOMPSON, and TROTT, Circuit Judges.

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Melvin Leon Turner, a California state prisoner, appeals pro se the district court's denial of leave to file his 42 U.S.C. Sec. 1983 complaint without prepayment of filing fees on the ground that the action was frivolous. In his complaint, Turner alleged that state judicial officers and prosecutors violated various constitutional rights in his criminal proceedings. We affirm in part and reverse and remand in part.


Under 28 U.S.C. Sec. 1915(a), a district court may grant in forma pauperis status if a litigant is unable to pay the costs of the suit. Nevertheless, the district court may deny leave to proceed in forma pauperis if the complaint is frivolous. Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir.1987). A complaint is frivolous when it lacks an arguable basis in law or in fact. Neitzke v. Williams, 109 S.Ct. 1827, 1831 (1989). A district court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987).


When a state prisoner challenges the fact or duration of his confinement, his exclusive remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). When a prisoner files a section 1983 complaint that seeks relief available only by habeas corpus, the district court should construe the complaint to that extent as a habeas petition and require exhaustion of state remedies. Franklin v. Oregon, 662 F.2d 1337, 1347 n. 13 (9th Cir.1981); see also Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th Cir.1984).


Here, the district court correctly determined that the judicial officers and prosecutors are absolutely immune from section 1983 liability for damages. See Imbler v. Pactman, 424 U.S. 409, 431 (1976) (prosecutorial immunity); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.1986) (en banc) (judicial immunity). Nevertheless, the district court should have construed Turner's complaint as a habeas petition and ruled upon it on that basis. Ybarra, 723 F.2d at 681-82; see Noll, 809 F.2d at 1448.1




The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Turner's motion for oral argument is denied

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


In his complaint, Turner also named as a defendant the warden of San Quentin, and thus names the proper defendant for a section 2254 proceeding