Unpublished Disposition, 921 F.2d 280 (9th Cir. 1990)

MEMORANDUM^** 

Wilber Glen Geter, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 complaint against the State of Arizona, the Pima County Attorney Office, and Pima County Assistant Attorney Edward Nesbitt as frivolous under 28 U.S.C. § 1915(d). The district court held that the State of Arizona is not a person under section 1983, and that prosecutors enjoy absolute immunity from suits under section 1983. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and affirm.

The district court dismissed Geter's complaint before issuing and serving process upon the defendants. Therefore, we construe the dismissal as one under 28 U.S.C. § 1915(d). See Jackson, 885 F.2d at 640.

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 either in law or fact." Id. Before dismissing a complaint, the district court must give a pro se litigant an opportunity to amend, unless it is absolutely clear the complaint's deficiencies cannot be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

To state a section 1983 claim, the plaintiff must allege facts showing a person acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured by the Constitution. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988).

Neither a State nor its officials acting in their official capacities are "persons" under section 1983. Will v. Michigan Dept. of State Police, 109 S. Ct. 2304, 2312 (1989); Sable Communications v. Pacific Tel. & Tel., 890 F.2d 184, 191 (9th Cir. 1989); Jackson, 885 F.2d at 640-41. Thus, the State of Arizona cannot be sued under section 1983.

It is well settled that "in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under Sec. 1983." Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Schlegel v. Bebout, 841 F.2d 937, 942 (9th Cir. 1988); see Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). Absolute immunity attaches to prosecutorial conduct "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430. In his brief, Geter makes a litany of claims against the Pima County Attorney Office and Assistant County Attorney Edward Nesbitt, including fraudulent prosecution, conspiracy, false arrest, perjury in the indictment, failure to properly instruct the grand jury, and denial of Geter's right to a speedy trial. However, the activities upon which Geter bases his claims were all part of Nesbitt's preparation of the State's case. Nesbitt is thus entitled to absolute immunity from this suit. See id.; Schlegel, 841 F.2d at 943-44.

Geter's claims lack an arguable basis in law and fact, and are therefore frivolous. See Neitzke, 109 S. Ct. at 1831. Moreover, it is clear that the deficiencies of Geter's complaint cannot be cured by amendment. Accordingly, the district court did not err in dismissing the action. See Noll, 809 F.2d at 1448.

AFFIRMED.