Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1991)
Annotate this CaseGordon A. RASHE, Plaintiff-Appellant,v.Marilyn H. PATEL and Fern M. Smith, Defendants-Appellees.
No. 90-15368.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 20, 1991.* Decided Feb. 22, 1991.
Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.
MEMORANDUM**
Gordon A. Rashe appeals pro se the district court's dismissal of his complaint as frivolous under 28 U.S.C. § 1915(d). Rashe contends that Judges Patel and Smith obstructed justice and denied him the opportunity to bring his case to court. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and affirm.
Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 490 U.S. 319, 324 (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).
Rashe's complaint does not state the basis for his claim against Judges Patel and Smith. Nevertheless, because Rashe is pro se, we have an obligation to construe his pleadings liberally. See Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985). Because Judges Patel and Smith were acting under color of federal law, we treat the complaint as alleging a claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Mullis v. United States Bankruptcy Court for the Dist. of Nevada, 828 F.2d 1385, 1387 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988).
Judges sued under Bivens are absolutely immune from civil damage liability unless they act in the clear absence of all jurisdiction or perform acts that are not judicial in nature. Mullis, 828 F.2d at 1388; Lonneker Farms, Inc. v. Klobucher, 804 F.2d 1096, 1097 (9th Cir. 1986). Judicial immunity also bars a Bivens action for declaratory or injunctive relief. Mullis, 828 F.2d at 1394.
Here, Judges Patel and Smith were both acting within their proper capacities as federal district court judges when they dismissed previous actions filed by Rashe.1 Judges Patel and Smith are therefore absolutely immune from liability. See id. at 1388, 1394.
Because Rashe's complaint has no arguable basis in law or fact, see Neitzke, 109 S. Ct. at 1831, and because it is clear that amendment would not cure the complaint's deficiencies, see Noll, 809 F.2d at 1448, the district court did not err in dismissing Rashe's complaint as frivolous.2
AFFIRMED.3
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
Judge Patel dismissed Rashe's action against Judge Schwarzer, No. C-88-2784-MHP, and sua sponte issued an order requiring Rashe to obtain leave of court before filing any further pleadings or papers. Judge Smith dismissed Rashe's action against Ronald Reagan and George Schultz, No. C-88-3794-FMS, as frivolous under section 1915(d) after giving Rashe two opportunities to amend
Although the district court mentioned Judge Patel's prefiling order in its dismissal of Rashe's complaint, we do not reach the issue of whether the pre-filing order is valid. A pre-filing order can be challenged when it is enforced to bar the filing of plaintiff's pleadings with the clerk. See, e.g., West v. Procunier, 452 F.2d 645, 646 (9th Cir. 1971) (per curiam); accord Gelabert v. Lynaugh, 894 F.2d 746, 747 (5th Cir. 1990); Sassower v. Sansverie, 885 F.2d 9, 10 (2nd Cir. 1989). Here, however, the pre-filing order was not enforced to prevent Rashe from filing his complaint. Rather, the complaint was filed and the district court reached the merits of the complaint, dismissing it as frivolous
Because we affirm the district court's judgment on the merits, we deny Patel's pending motion to dismiss the appeal
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