Unpublished Disposition, 919 F.2d 144 (9th Cir. 1990)

MEMORANDUM^** 

William Cupp, an Arizona state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action against his former attorney H.K. Wilhelmsen and Judge James Sult. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and affirm.

A court's sua sponte dismissal of a complaint before issuance and service of process upon the defendants is construed as a dismissal as frivolous under 28 U.S.C. § 1915(d). Jackson, 885 F.2d at 640. A frivolous claim is one which lacks an arguable basis in either law or 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).

To state a section 1983 claim, a plaintiff must allege facts which show a deprivation of a right, privilege or immunity secured by the Constitution by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

Here, Cupp cannot state a section 1983 claim against his court-appointed attorney, a private person who does not act under color of state law. Tower v. Glover, 467 U.S. 914, 920 (1984); see also Polk County v. Dodson, 454 U.S. 312, 325 (1981) (public defenders are private individuals for purposes of section 1983).

Furthermore, judges are immune from suit for judicial acts taken within the subject matter jurisdiction of the court. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). Because Judge Sult did not act "in the clear absence of all jurisdiction" or "perform an act that [was] not judicial in nature", id. at 1075, immunity applies.

Because the deficiencies of the complaint cannot be cured by amendment, we affirm the district court's dismissal.

AFFIRMED.