Unpublished Disposition, 899 F.2d 1224 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1224 (9th Cir. 1990)

No. 89-15957.

United States Court of Appeals, Ninth Circuit.

Submitted March 26, 1990.* Decided April 4, 1990.

Before FLETCHER, LEAVY and FERNANDEZ, Circuit Judges.


Michael Henry Ferdik, an Arizona state prisoner, appeals pro se and in forma pauperis the district court's dismissal before service of his 42 U.S.C. § 1983 action. We affirm.

Ferdik's complaint alleged that the Arizona Court of Appeals denied him equal protection and due process under the fifth and fourteenth amendments by failing to rule on his criminal appeal for over one year. He further alleges that under Arizona rules of procedure, he was entitled to a decision within ninety days of filing his appeal. Ferdik requested both an injunction requiring the Court of Appeals judges to rule on his case and damages in the amount of $500,000.00. The district court granted Ferdik's motion to proceed in forma pauperis and dismissed the complaint prior to serving process on the defendants. We interpret a district court's dismissal prior to service of process as pursuant to 28 U.S.C. § 1915(d) and review de novo. Jackson v. State of Arizona, 885 F.2d 636, 640 (9th Cir. 1989).

Frivolous in forma pauperis complaints may be dismissed sua sponte under section 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. In civil rights cases where the plaintiff appears pro se, the court must construe pleadings liberally and afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). If the plaintiff has an arguable claim, he is entitled to issuance of service of process. Jackson, 885 F.2d at 640.

The district court properly concluded that eleventh amendment bars suits against the Arizona Court of Appeals, see Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 (1985), and the individual judges are entitled to absolute immunity from damages, Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 198) . Judicial immunity does not bar prospective injunctive relief under section 1983. See Pulliam v. Allen, 466 U.S. 522, 541-42; Ashelman, 793 F.2d at 1075. However, Ferdik's claim that the Arizona Court of Appeals has not decided his case within the 90 days provided by Arizona law is, by itself, insufficient to justify the granting of injunctive relief against the judges of that court.



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