Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1990)

MEMORANDUM^** 

Charles A. Taylor, a federal prisoner, appeals pro se the district court's dismissal of his civil rights action. We affirm.

After Taylor was imprisoned for attempted sexual assault of one of his children, his wife Dolly filed for divorce in state superior court. Taylor then filed the instant federal action, alleging claims under numerous civil rights, jurisdictional and criminal statutes.¹  He named as defendants Dolly, Superior Court Judge Ted Kolbaba, county prosecutor Edward Shamek and the State of Washington, and sought only monetary damages. The district court dismissed the in forma pauperis complaint sua sponte.² 

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989).³  A complaint is frivolous "where it lacks an arguable basis in law or in fact." Id. However, unless it is absolutely clear that the deficiencies of the complaint cannot be cured, a pro se action cannot be dismissed before the plaintiff is given an opportunity to amend his complaint. Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987).

* Taylor's 42 U.S.C. § 1983 claims against the defendants have no arguable basis in law and cannot be cured by amendment. Judge Kolbaba is absolutely immune from suit for damages under section 1983 because his actions, involving rulings in a state divorce proceeding, were judicial acts within the court's jurisdiction. See Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986) (en banc); Wash. Const. Art. VI, Sec. 6 (superior court has original jurisdiction in divorce proceedings); Wash.Rev. Code 2.08.010 (West 1989).⁴ 

Taylor's section 1983 claim against Prosecutor Shamek is similarly deficient. Taylor alleges that Shamek prosecuted him with "false information," and opposed his request for a jury trial. However, "prosecutors are absolutely immune for quasi-judicial activities taken within the scope of their authority." Ashelman, 793 F.2d at 1078. Shamek's alleged actions were quasi-judicial in nature because he was "acting as an advocate in initiating a prosecution and presenting the state's case." See Schlegel v. Bebout, 841 F.2d 937, 942 (9th Cir. 1988); Ashelman, 793 F.2d at 1078. They were also within the scope of Shamek's authority; the evidence a prosecutor presents at trial or the decision to oppose a motion for a jury trial are matters committed to the prosecutor's control. See Schlegel, 841 F.2d at 943.

Further, Taylor's section 1983 claim against his wife Dolly fails. She is a private individual who does not act under color of state law and therefore is not subject to suit under section 1983 unless she conspired with public officials. See Tower v. Glover, 467 U.S. 914, 920 (1984). Taylor's conclusory allegations that Dolly has conspired with the other defendants to deprive him of his civil rights are insufficient to establish liability under section 1983. Cf. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

Finally, Taylor's section 1983 claim against the State of Washington is frivolous because a state is immune from suit under the eleventh amendment. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984).

II

Taylor's 42 U.S.C. §§ 1981 and 1985 claims lack an arguable basis in law because he has alleged no race or class-based discriminatory animus on the part of defendants. See Saint Francis College v. Al-Kharraji, 481 U.S. 604, 613 (1987); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Because Taylor cannot state a claim under section 1985, his section 1986 claim fails. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 626 (9th Cir. 1988). Taylor is not the prevailing party; he is not entitled to attorney's fees under 42 U.S.C. § 1988.

Taylor's remaining claims are brought either under criminal or jurisdictional statutes that provide no private right of action. See, e.g., Aldabe, 616 F.2d at 1092 (no private right of action under 18 U.S.C. § 241, 242); Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980) (no substantive rights under 28 U.S.C. § 1343). His entire complaint was therefore frivolous and could not be cured by amendment.

AFFIRMED.⁵