Robert Waterbury, Defendant-appellant, v. State of Kansas and Michael F., Powers, Morris Countyattorney, Defendants-appellees,, 961 F.2d 221 (10th Cir. 1992)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Robert Waterbury appeals the district court's dismissal of his suit under 42 U.S.C. § 1983 (1988). Mr. Waterbury alleges that the county attorney of Morris County, Kansas violated his right to equal protection of the laws when he decided not to bring perjury charges against a witness who had testified adversely to Mr. Waterbury in both a civil and a criminal case. The district court dismissed the suit after concluding that the prosecutor was, under the facts alleged by Mr. Waterbury, shielded from suit by the doctrine of prosecutorial immunity. See Imbler v. Pachtman, 424 U.S. 409 (1976).

After granting Mr. Waterbury's motion to proceed in forma pauperis, we affirm for substantially the reasons stated by the district court. Whatever the scope of the doctrine of absolute prosecutorial immunity, it is beyond question that it shields a prosecutor's decision not to prosecute. Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991), cert. denied, 112 S. Ct. 903 (1992); Meade v. Grubbs, 841 F.2d 1512, 1532 (10th Cir. 1988). Thus, section 1983 does not offer Mr. Waterbury relief from whatever adverse effects he may have suffered as a result of the prosecutor's decision.

The motion to proceed in forma pauperis is GRANTED. The decision of the district court is AFFIRMED. The mandate shall issue forthwith.