David Wayne Ferris, Plaintiff-appellant, v. David E. Yocom, Individually Employed with the Salt Lakecounty Prosecutors Association, Defendant-appellee, 5 F.3d 545 (10th Cir. 1993)

Plaintiff appeals the district court's order determining that Defendant was absolutely immune from suit and dismissing his civil rights case. 28 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Plaintiff alleges that on August 2, 1992, he was arrested for auto theft and spent ninety-four days in jail before the case was dismissed. Plaintiff brought this suit in forma pauperis against Defendant, the County Attorney, in his personal capacity, for initiating prosecution against him.

Under Sec. 1915(d), a court may dismiss "frivolous or malicious" claims filed in forma pauperis before the complaint has been served. 28 U.S.C. 1915(d); Neitzke v. Williams, 490 U.S. 319, 324 (1989). An argument is frivolous if it is "based on an indisputably meritless legal theory," such as when a defendant is immune from suit. Id. at 327. See Hall v. Bellman, 935 F.2d 1106, 1109 (10th Cir. 1991). Prosecutors are absolutely immune from civil suit for damages under Sec. 1983 " [when] initiating a prosecution and [when] presenting the State's case." Imbler v. Pachtman, 424 U.S. 409, 431 (1975). We review frivolousness determinations for an abuse of discretion, Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992), and because Defendant enjoys absolute immunity for initiating prosecution against Plaintiff, he cannot be sued for damages under Sec. 1983, and the district court did not abuse its discretion when it dismissed Plaintiff's case.

DISMISSED.