Unpublished Disposition, 907 F.2d 154 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 154 (9th Cir. 1990)

Dennis Nelson FIXEL, Plaintiff-Appellant,v.UNITED STATES of America, U.S. District Judge Edward C.Reed, U.S. District Judge Howard D. McKibben, U.S.Magistrate Phyllis Halsey Atkins,Defendants-Appellees.

No. 89-16149.

United States Court of Appeals, Ninth Circuit.

Submitted May 8, 1990.* Decided July 2, 1990.

Before WALLACE, SKOPIL and PREGERSON, Circuit Judges.


Dennis Nelson Fixel, a Nevada state prisoner, appeals pro se and in forma pauperis the district court's order dismissing his lawsuit against two United States District Judges, a United States Magistrate, and the United States. Fixel sued under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and numerous federal statutes. Pursuant to 28 U.S.C. § 1915(d), the district court dismissed the action because the in forma pauperis complaint was frivolous.

The judgment is affirmed. The judicial officers are absolutely immune from Fixel's Bivens-type claims. Ryan v. Bilby, 764 F.2d 1325, 1328 (9th Cir. 1985). The claims under federal penal statutes are "patently frivolous." Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1320 (9th Cir. 1984). And the United States is protected by sovereign immunity because the Federal Tort Claims Act is not available to Fixel. McQuade v. United States, 839 F.2d 640, 642 (9th Cir. 1988).

Fixel has not merely failed to state a claim against any of the defendants, he has proceeded on "indisputably meritless legal theor [ies]." Neitzke v. Williams, 109 S. Ct. 1827, 1833 (1989). Therefore, because Fixel's complaint lacks any arguable basis in law, it was properly dismissed as frivolous within the meaning of 28 U.S.C. § 1915(d). See id. at 1831.



The panel unanimously found this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 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