Jerry B. Balisok, Plaintiff-appellant, v. Michael T.j. Hogan; King County; Norman Maleng,defendants-appellees, 9 F.3d 1550 (9th Cir. 1993)

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US Court of Appeals for the Ninth Circuit - 9 F.3d 1550 (9th Cir. 1993)

Submitted Oct. 20, 1993. *Decided Oct. 29, 1993


Before: BEEZER, KOZINSKI, and KLEINFELD, Circuit Judges.


MEMORANDUM** 

Jerry Balisok, a Washington state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action as frivolous, pursuant to 28 U.S.C. § 1915(d). We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992), 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 in fact." Id. at 325.

Defendants Maleng and King County cannot be held liable for damages under section 1983 solely under the theory of respondeat superior. See Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 & n. 58 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ("There is no respondeat superior liability under section 1983."). Therefore, the claims against these defendants lack an arguable basis in law, and were properly dismissed. See Neitzke, 490 U.S. at 324. Further, defendant Hogan is entitled to absolute immunity from suit for his actions taken within the scope of his authority as a prosecutor in initiating and presenting the state's case. See Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 678 (9th Cir. 1984). Accordingly, the district court did not abuse its discretion by dismissing this action as frivolous. See Denton, 112 S. Ct. at 1734; Neitzke, 490 U.S. at 324-25.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision 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