Unpublished Disposition, 889 F.2d 1094 (9th Cir. 1988)

MEMORANDUM^** 

Thomas J. Cushing appeals pro se the district court's dismissal of his action under 42 U.S.C. § 1985 against Jeanice J. Sausser. We affirm.

* Susan Noonan prosecuted Cushing in state court. According to Cushing, Noonan conspired with Sausser, a Community Corrections Officer who was a Presentence Investigator, to deprive him of his right to bail upon appeal. Cushing alleges that on April 8, 1987, Sausser provided the trial court with "false [ ] and intentionally misleading information for a presentence report."

On June 20, 1988, Cushing filed this suit against Sausser, alleging violation of his rights under subsections (1), (2), and (3) of 42 U.S.C. § 1985 (1982). He was allowed to proceed in forma pauperis. The district court referred the matter to a magistrate. On August 9, 1988, the district court, at the magistrate's recommendation, entered an order, pursuant to 28 U.S.C. § 1915(d), dismissing Cushing's lawsuit with prejudice. Cushing appeals.

II

Cushing alleges three grounds for error: (1) the district court's construction of his claim in its dismissal order as a section 1983 claim, and not as a section 1985 claim; (2) the district court's dismissal of his complaint on the ground that Sausser enjoys absolute immunity from damages action for her presentence report; and (3) the district court's dismissal of his claim without first allowing him to see and respond to the magistrate's recommendation.

III

* Cushing has stated no cause of action under section 1985. Section 1985(1) gives to "any person" the right to be free from a conspiracy "to prevent, by force, intimidation or threat" his acceptance of a federal office or his discharge of its duties. Section 1985(2) gives to any person who is a "party or witness in any court of the United States" a right to be free from a conspiracy to deter, intimidate, or threaten him for attending or testifying. Cushing clearly falls into neither group.

Section 1985(3) is no more helpful to Cushing in his claim against Sausser. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (for a claim to lie under section 1985(3), "there must be some racial, or otherwise class-based, invidiously discriminatory animus behind the conspirators' action").

The district court's construction of his claim as a section 1983 suit therefore is immaterial.

B

The record shows that Sausser, as a presentence investigator, prepared a presentence report for the court. Therefore, whether Cushing's claim is under section 1983 or section 1985, the district court properly held that Sausser was absolutely immune from damages for her actions in delivering to the state court the presentence report. Cf. Demoran v. Witt, 781 F.2d 155, 156-58 (9th Cir. 1986) (extending judicial immunity under section 1983 to actions taken by a probation officer pursuant to his statutory duty to provide a presentence report).

C

Because Sausser is absolutely immune from damages here, the district court acted properly in dismissing sua sponte, under 28 U.S.C. § 1915(d), Cushing's complaint as frivolous. See Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) (in action in forma pauperis, district court "may dismiss an action as frivolous where a complete defense is obvious from the pleadings").

AFFIRMED.