Unpublished Disposition, 925 F.2d 1469 (9th Cir. 1991)
Annotate this CaseCharles Oren ANDERSON, Plaintiff-Appellant,v.Robert J. GOWER, Brian McKay, Attorney General, Judge LloydD. George, Magistrate Lawrence R. Leavitt, et al.,Defendants-Appellees.
No. 90-16333.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 4, 1991.* Decided Feb. 6, 1991.
Before TANG, SCHROEDER and CYNTHIA HOLCOMB HALL, Circuit Judges.
MEMORANDUM**
Charles Anderson, a Nevada state prisoner, appeals pro se the district's sua sponte dismissal of his 42 U.S.C. § 1983 action as frivolous under 28 U.S.C. § 1915(d). This section 1983 action concerns the district court's denial of Anderson's section 2254 habeas corpus petition for failure to exhaust state remedies. Names as defendants are the judge and magistrate who denied the habeas petition, the attorney general, the deputy attorney general representing the defendants in the habeas action, and the State of Nevada. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and we affirm.
Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). A complaint is frivolous "where it lacks an arguable basis in law or in fact." Id. 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).
Anderson alleges that Judge George and Magistrate Leavitt violated his rights by dismissing his section 2254 habeas corpus petition for failure to exhaust state remedies, and in denying his petition for rehearing. Anderson's proper remedy is to file an appeal of the denial of his habeas petition with this court. Our records indicate that he is pursuing that remedy.
If, however, Anderson is attempting to obtain monetary relief for the denial of his habeas petition, his action is without merit. The district court correctly determined that judicial officers and prosecutors are absolutely immune from section 1983 liability for damages. See Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (judicial immunity); Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (prosecutorial immunity). In addition, a suit against a state is barred by the Eleventh Amendment, unless the state has consented to suit in the federal courts. Quern v. Jordan, 440 U.S. 332, 338-40 (1979). The State of Nevada has not waived its immunity. See Nev.Rev.Stat. Sec. 41.031(3).1
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
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
Section 455(a) of Title 28 of the United States Code provides that a judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Section 455(b) (5) (i) provides that a judge shall disqualify himself from any proceeding to which he is named as a party. The Supreme Court has recently indicated that if a judge violates section 455(a) "there is surely room for harmless error." See Liljeberg v. Health Services Acquisition Corp., 108 S. Ct. 2194, 2202 (1988). The Court further states that " [t]here need not be a draconian remedy for every violation of Sec. 455(a)." Id
The instant case is one where a draconian remedy would be inappropriate. Judge George presided over this action to which he is also named as a defendant. Although this may be bad practice, no other judge could have reached any other decision in this case. See United States v. Van Griffin, 874 F.2d 634 (9th Cir. 1989) (applying harmless error rule to violation of sections 455(a) & (b)). There is no reversible error here.
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