Darrell K. Fatty, Plaintiff-appellant, v. State of Arizona; William F. Garbarino, Judge, Superiorcourt, Coconino; Melvin T. Shelley, Judge, Court of Appeal,state of Arizona; James Duke Cameron, Judge, Arizonasupreme Court, Defendants-appellees, 967 F.2d 585 (9th Cir. 1992)

MEMORANDUM^** 

Darrell Fatty, an Arizona state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action brought against the State of Arizona and three state court judges. A court's sua sponte dismissal of a complaint before issuance and service of process upon the defendants is construed as a dismissal as frivolous under 28 U.S.C. § 1915(d). Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). We review for an abuse of discretion, Denton v. Hernandez, 60 U.S.L.W. 4364, 4348 (May 4, 1992), and we affirm.

In his complaint, Fatty sued various state court judges in connection with the denial of his motion for state court trial transcripts at the government's expense. Fatty contends that the trial transcripts contain information that his state court conviction was the result of improper use of evidence at trial in violation of his constitutional rights.

A prisoner proceeding in forma pauperis on a habeas corpus petition is entitled to receive copies of court documents at government expense. 28 U.S.C. 2250; United States v. Connors, 904 F.2d 535, 536 (9th Cir. 1990). Nevertheless, until a prisoner has filed a habeas petition, he is not entitled to obtain such copies. Connors, 904 F.2d at 536 (9th Cir. 1990).

Here, Fatty has not yet filed a habeas petition. Thus, although he is indigent, he is not entitled to copies of court documents at government expense until he files a habeas petition. See id.

Further, the judges are absolutely immune from section 1983 liability for damages for their judicial acts in ruling on Fatty's motion for his trial transcripts. See Stump v. Sparkman, 435 U.S. 349, 356-62 (1978) (judges are subject to section 1983 liability for damages only when they act in the clear absence of all jurisdiction). The state of Arizona was also properly dismissed because the state has not consented to suit. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Accordingly, the district court properly dismissed Fatty's action as frivolous. See Nietzke v. Williams, 490 U.S. 319, 324 (1989) (a complaint is frivolous "where it lacks an arguable basis either in law or fact."); Hernandez, 60 U.S.L.W. at 4348.

AFFIRMED.