Unpublished Disposition, 921 F.2d 279 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 279 (9th Cir. 1990)

Robert N. ABEL, Plaintiff-Appellant,v.Beverly CUTLER, Superior Ct. Judge, et al., Defendants-Appellees.

No. 89-35611.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 18, 1990.* Decided Dec. 21, 1990.

Before GOODWIN, Chief Judge, and SCHROEDER and BRUNETTI, Circuit Judges.


MEMORANDUM*

Robert N. Abel, an Alaska state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action as frivolous under 28 U.S.C. 1915(d). In his complaint, Abel alleged that state judicial officers, prosecutors, public defenders, and witnesses violated various constitutional rights in his criminal proceedings. The district court dismissed his action without prejudice to the bringing of a 28 U.S.C. § 2254 habeas petition.1  We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and we affirm in part and vacate and remand in part.

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). A complaint is frivolous "where it lacks an arguable basis in law or in fact." Id. A district court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

When a state prisoner challenges the fact or duration of his confinement, his exclusive remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). When a prisoner files a section 1983 complaint that seeks relief available only by habeas corpus, the district court should construe the complaint to that extent as a habeas petition and require exhaustion of state remedies. Franklin v. Oregon, 662 F.2d 1337, 1347-48 & n. 13 (9th Cir. 1981).

Here, the district court correctly determined that the judicial officers, prosecutors, and witnesses are absolutely immune from section 1983 liability for damages. See Briscoe v. LaHue, 460 U.S. 325, 326 (1983) (witness immunity); Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (prosecutorial immunity); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (judicial immunity). The district court also correctly determined that Abel cannot state a section 1983 claim against the public defenders, who are private persons who do not act under color of state law. Polk County v. Dodson, 454 U.S. 312, 325 (1981). Nevertheless, the district court should have construed Abel's complaint as a habeas petition and allowed Abel an opportunity to allege exhaustion of state remedies rather than requiring him to file a new petition. Franklin, 662 F.2d at 1347-48 & n. 13; see Noll, 809 F.2d at 1448.

AFFIRMED in part and REMANDED in part for consideration as a habeas petition.

 *

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

 1

The district court's dismissal of the action without prejudice is an appealable final order. See United States v. Wallace & Tiernan Co., 336 U.S. 793, 794-95 n. 1 (1949); Ash. v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985)