Unpublished Disposition, 940 F.2d 668 (9th Cir. 1991)
Annotate this CaseF. Michael KRAGE and Christopher A. Krage, a minor and byhis natural father, legal and custodial guardian,Plaintiffs-Appellants.v.STATE OF CALIFORNIA, Santa Clara County, and Santa ClaraSuperior Court, Defendants-Appellees.
No. 89-16659.
United States Court of Appeals, Ninth Circuit.
Submitted July 23, 1991.* Decided July 26, 1991.
Before PREGERSON, D.W. NELSON and REINHARDT, Circuit Judges.
MEMORANDUM**
F. Michael Krage appeals pro se the district court's sua sponte dismissal of his complaint and denial of his motion for a temporary restraining order. Krage's complaint challenges the judgment in a state court divorce proceeding, alleging that the state court, in conspiracy with the State of California, several Superior Court judges and various other defendants, caused his home to be illegally seized and improperly denied him child support.1 We review de novo, Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986), 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 v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). 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).
Here the district court properly dismissed Krage's complaint. First, a federal district court has no jurisdiction "over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional." District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983). Second, under the eleventh amendment, the state of California is immune from suits brought in federal court regardless of the type of relief sought. See Pennhurt State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984). Third, judges are immune from section 1983 liability for damages for judicial acts taken within the subject matter jurisdiction of the court. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc).
Because the deficiencies of the complaint cannot be cured by amendment, we affirm the district court's dismissal.
AFFIRMED.
The panel unanimously finds this case suitable for decision 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
Although Krage took more than thirty days to file his notice of appeal, the district court never entered a separate judgment dismissing the action. Accordingly, Krage's notice of appeal is timely. See Mitchell v. Idaho, 814 F.2d 1404, 1405 (9th Cir. 1987) (if judgment not separately entered, appeal is timely). Furthermore, although the district court order dismissed only the complaint, it appears to be a final order. See Scanlon v. Atascadero State Hospital, 677 F.2d 1271, 1272 (9th Cir. 1982) (where order dismissing complaint was on ground not curable by amendment and it is clear that court intended to dispose of the action, order is appealable even where there is no judgment dismissing the action
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