Unpublished Disposition, 925 F.2d 1469 (9th Cir. 1990)

MEMORANDUM^** 

Joseph George Finocchi sued the Arizona attorney general, an Arizona assistant attorney general and an Arizona state judge for damages and injunctive relief, claiming they conspired to punish him for exercising his right to trial by enhancing his sentence with a prior conviction. He also named the Arizona Department of Corrections, again seeking damages and declaratory relief, alleging he is unlawfully held in "lock-down" status 24 hours per day and that prison officials are preventing him from appealing his classification risk scores. He claims the defendants conspired to deprive him of his rights in violation of 42 U.S.C. § 1985. The district court dismissed his complaint sua sponte before the defendants were served. We affirm in part, reverse in part and remand.

* The district court may dismiss a frivolous in forma pauperis complaint sua sponte. 28 U.S.C. § 1915(d). Because the district court dismissed Finocchi's complaint before issuing and serving process upon the defendants, we construe the dismissal as one under Sec. 1915(d). See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 1831, 104 L. Ed. 2d 338 (1989). "A pro se litigant must be given leave to amend his or her complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curiam)).

II

The district court correctly dismissed damages claims against defendants Corbin, Jarosz and Budzin. As to Judge Budzin, "Judges are immune from damage actions for judicial acts taken within the jurisdiction of their courts." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). Sentencing is such an act, and Finocchi's conclusory allegation that Judge Budzin acted outside the scope of her authority is unfounded. "As long as the judge's ultimate acts are judicial actions taken within the court's subject matter jurisdiction, immunity applies." Id. at 1078.

Likewise, prosecutors enjoy immunity for acts within the scope and function of their prosecutorial activity. "Where a prosecutor acts as an advocate 'in initiating a prosecution and in presenting the state's case,' absolute immunity applies." Id. at 1076 (quoting Imbler v. Pachtman, 424 U.S. 409, 431, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976)). Allegations of conspiracy to produce a certain decision do not pierce this immunity. Id. at 1078. Thus, the district court was correct in determining that the individual defendants were immune from Finocchi's damages claims.

III

Finocchi seeks an order declaring a prior conviction unconstitutional and preventing its use in enhancing his sentence. The district court did not address this request for relief.

This prayer for relief is not cognizable in a civil rights action. "Where a state prisoner challenges the fact or duration of his confinement, his sole federal remedy is a writ of habeas corpus." Young v. Kenny, 907 F.2d 874, 875-76 (9th Cir. 1989) (citing Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973)), petition for cert. filed, Sept. 24, 1990 (No. 90-5854). The gravamen of this claim of Finocchi's is that his current incarceration is the result of an improper use of a prior conviction. Because this claim challenges the "fact or duration" of his confinement, he must pursue it in a habeas corpus proceeding. We affirm the district court's dismissal of this claim.

IV

The district court dismissed Finocchi's claims against the Department of Corrections, reasoning that the Eleventh Amendment barred them. The Arizona Department of Corrections is immune from the damages claims Finocchi presents here. "It is clear ... that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). Arizona has not waived its sovereign immunity to suits in federal court. See id. at 99 ("We have insisted ... that the State's consent [to suit against it in federal court] be unequivocally expressed").

The Constitution does not, however, bar suits against state officials acting in their official capacities for prospective injunctive relief. Quern v. Jordan, 440 U.S. 332, 337, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979). Finocchi's request for a "temporary injunction against the defendants for inflicting cruel and unusual punishment" is for prospective injunctive relief. With the simple amendment of naming a state official acting in his or her official capacity rather than naming the Department as defendant, Finocchi's request for this injunction survives the state's defense of sovereign immunity. Under Noll, 809 F.2d at 1448, the district court erred in failing to provide Finocchi with an opportunity to amend his complaint to cure this deficiency.

Finocchi alleged that he is confined to "lock-down" status 24 hours a day. The district court did not specifically address this claim. Due process mandates that the State follow certain procedural requirements before segregating an inmate. See Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987) (notice of charges, informal, nonadversary hearing within reasonable time after inmate is segregated and periodic review of inmate's status). Although Finocchi's complaint does not contain any specific allegations showing why his due process rights were violated by his "lock-down" status, it is not absolutely clear that these deficiencies could not be cured by amendment. Furthermore, Finocchi could amend his complaint to state a claim against the warden in his individual capacity for damages. Under Noll, 809 F.2d at 1448, the district court erred in failing to provide Finocchi with an opportunity to amend his complaint to cure these deficiencies.

Finally, Finocchi alleged that prison officials have denied him his right to appeal his classification risk scores. Although the district court did not specifically address this claim, it has no merit. Finocchi's attempts to appeal his risk score through the administrative process were denied. He may disagree with the result, but no one denied him access to the appeal process.

V

We affirm the district court's dismissal of claims against the individual defendants and of damages claims against the Department of Corrections. We reverse its dismissal before service of process of claims for prospective injunctive relief and direct the district court to allow Finocchi an opportunity to amend his complaint to name an official who is not immune as a defendant for that claim. We also reverse the dismissal as to Finocchi's claim regarding his "lock-down" status and remand to allow him an opportunity to amend his complaint to specify how a defendant who is not immune violated his rights.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED for proceedings not inconsistent with this decision.