Unpublished Disposition, 921 F.2d 280 (9th Cir. 1990)

MEMORANDUM^** 

Graham Henry, an Arizona 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, Henry alleged that prosecutors and witnesses violated various constitutional rights in his criminal proceedings. He also asserted that police officers failed to give him the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966) during his interrogation. The district court dismissed his action, noting that Henry's claims are properly raised only in a habeas petition. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and we affirm.

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); see also 28 U.S.C. § 2254; Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam) (state prisoner must exhaust all available state court remedies before a federal court may consider granting habeas corpus relief).

Here, the district court correctly determined that the prosecutors and witnesses are absolutely immune from section 1983 liability for damages and that Henry's claims could be asserted only in a habeas petition. See Preiser, 411 U.S. at 500; Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (prosecutorial immunity); Briscoe v. LaHue, 460 U.S. 325, 326 (1983) (witness immunity). Moreover, the district court properly dismissed Henry's claim for damages for insufficient Miranda warnings. Miranda rules are not "themselves rights protected by the Constitution but [are] instead measures to insure the right against compulsory self-incrimination is protected...." Michigan v. Tucker, 417 U.S. 433, 444 (1974). Because the Constitution only gives Henry the right to be free from self-incrimination, any violation of the "prophylactic [Miranda ] rule developed to protect that right" does not subject the officers to civil liability. See id. at 439, 444; accord Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir. 1976).

Although ordinarily the district court should have construed Henry's complaint as a habeas petition rather than requiring him to file a new petition, Franklin, 662 F.2d at 1347-48 & n. 13, we nevertheless affirm the district court's dismissal. The record demonstrates that Henry was in the process of exhausting his state court remedies when he filed his section 1983 action. When he has exhausted his state remedies, he may file a habeas petition in district court challenging the alleged improprieties in his criminal proceedings. See Duckworth, 454 U.S. at 3.

AFFIRMED.