Unpublished Disposition, 884 F.2d 1395 (9th Cir. 1989)

MEMORANDUM^** 

Lacey Mark Sivak, an Idaho state prisoner, appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint against L. Alan Smith, an Idaho state magistrate, arising out of Smith's handling of Sivak's state habeas petition. The district court dismissed Sivak's action on immunity grounds. We affirm.

A district court may dismiss a pro se litigant's complaint without leave to amend if the complaint has no arguable basis in law or fact and it is absolutely clear that the deficiencies cannot be cured through amendment. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989); Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir.), cert. denied, 109 S. Ct. 561 (1988). We review such a dismissal de novo. Schucker, 846 F.2d at 1203.

To the extent that Sivak sought damages as relief, the district court properly dismissed the claims because judges are absolutely immune from damages actions for judicial acts taken within the jurisdiction of their courts. See id. at 1204. A judge loses this immunity when he acts "in the clear absence of all jurisdiction or performs an act that is not judicial in nature." Id. As the basis of his complaint, Sivak alleges that Smith improperly determined that Sivak was not in state custody, and dismissed his state habeas petition. Because this is a judicial act, which, even if in error, was within Smith's jurisdiction, Smith is entitled to immunity from the claim. See id.

In addition to damages, Sivak seeks various other forms of relief, including that the state court allow him to go to trial on his habeas claim and that the defendant and his agents be ordered not to retaliate against him or his family.

In regard to his request that he be allowed to proceed with trial on his state habeas petition, this is a claim that is properly raised in a direct appeal of the dismissal of the petition. See Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir. 1986) (federal court does not have jurisdiction to review state court's determinations). In fact, Sivak did pursue this issue in a direct appeal and has provided this court with a copy of the decision of the State of Idaho's Court of Appeals showing that the appellate court reversed the magistrate's dismissal and remanded for further proceedings.

Sivak's request for an order preventing retaliation is a request for injunctive relief from which a judge is not immune. See Pullman v. Allen, 466 U.S. 522, 541-42 (1984) (judicial immunity is not a bar to prospective injunctive relief against judicial officer acting in her judicial capacity). However, this court may affirm on any basis in the record. See Smith v. Block, 784 F.2d 993, 994 n. 4 (9th Cir. 1986). To obtain equitable relief, Sivak must show "an inadequate remedy at law and [ ] a serious risk of irreparable harm." Pullman, at 537. Sivak did not make such a showing. Indeed, he does not even suggest that there has been any past retaliation or threat of future retaliation. Accordingly, the request for an order that the judge not retaliate was properly dismissed.

AFFIRMED.