Gary Eugene Kukes, Plaintiff-appellant, v. Roger Gilbert; Reginald M. Watt, Defendant-appellees, 947 F.2d 950 (9th Cir. 1991)

Before TANG, and TROTT, Circuit Judges, and BREWSTER,^**  District Judge.

MEMORANDUM^*** 

Gary Eugene Kukes appeals pro se and in forma pauperis the dismissal of his 42 U.S.C. § 1983 action in which he seeks $50,000 in damages from each state judicial defendant and vacatur of a state superior court order affirming a judgment of a lower court. Because the district court dismissed the action prior to service of process, the question presented on appeal is whether Kukes's action is frivolous within the meaning of 28 U.S.C. § 1915(d). See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). We conclude that it is, and so affirm the district court's dismissal.

A complaint is frivolous within the meaning of section 1915(d) if it lacks "an arguable basis either in law or in fact." Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989); Jackson, 885 F.2d at 640. In the present case, Kukes charges that two state court judges should have recused themselves from hearing Kukes appeal, and that their decision to hear the appeal was unlawful in view of their recusals from a prior case involving Kukes. Kukes's petition to the state supreme court for a writ of mandate compelling recusal or vacatur was denied.

Kukes's federal claims lack an arguable basis in law. We have recently held that state court judges in virtually the identical situation are immune from suit. Rosenthal v. Justices of the Supreme Court, 910 F.2d 561, 565-66 (9th Cir. 1990), cert. denied, 111 S. Ct. 963 (1991). As to Kukes's request for a vacatur of the state court decision, lower federal courts lack jurisdiction to review decisions of state courts such as the one presented here. See Allah v. Superior Court, 871 F.2d 887, 890-91 (9th Cir. 1989). Finding that Kukes's claims are frivolous, the decision of the district court dismissing the action is

AFFIRMED.