Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-93-00082-EJG. Edward J. Garcia, District Judge, Presiding
Before: Schroeder, Canby and Wiggins, Circuit Judges.
Dixianne Hawks appeals the district court's dismissal of her 42 U.S.C. § 1983 action as frivolous under 28 U.S.C. § 1915(d).*fn1 We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Denton v. Hernandez, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1734 (1992), and affirm.
A district court may dismiss an in forma pauperis complaint sua sponte if the complaint is frivolous under 28 U.S.C. § 1915(d). Neitzke v. Williams, 490 U.S. 319, 324, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989). A complaint is frivolous "where it lacks an arguable basis in law or in fact." Id. at 325. In civil rights cases where the plaintiff appears pro se, the court must construe pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Before dismissing a complaint, the district court should give a pro se plaintiff an opportunity to amend, unless it is absolutely clear the complaint's deficiencies cannot be cured by amendment. Id. (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). In reviewing a section 1915(d) dismissal for abuse of discretion, a court of appeals should consider whether the plaintiff was proceeding pro se and whether the dismissal was with or without prejudice. Hernandez, 112 S. Ct. at 1734.
In her complaint, filed January 13, 1993, Hawks alleged that the defendants violated her first amendment rights by prosecuting her for felony jury tampering for handing out leaflets to prospective jurors at her son's criminal trial. Hawks named Judge Jerome Warren, District Attorney Michael Ramsey, Butte County, and ten John Doe Assistant District Attorneys as defendants.*fn2 On January 20, 1993, the district court held that the complaint was frivolous in its entirety and dismissed the complaint with prejudice.
Judges are absolutely immune for all judicial acts performed within their subject matter jurisdiction when the plaintiff is seeking damages pursuant to 42 U.S.C. § 1983. Stump v. Sparkman, 435 U.S. 349, 356, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). An act is a "judicial" one when it is a function normally performed by a Judge and the parties dealt with the Judge in his judicial capacity. Sparkman, 435 U.S. at 362; Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 1990). "A Judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction." Sparkman, 435 U.S. at 356-57 (citation omitted).
Here, Hawks challenges Judge Warren's conduct in presiding over the state proceedings against her for felony jury tampering. Judge Warren was clearly performing a judicial act as hearing cases is the essence of the judicial role. See Crooks, 913 F.2d at 700. In addition, the court had subject matter jurisdiction to hear the jury tampering charges against Hawks. Accordingly, since Judge Warren has absolute immunity, the district court did not err in dismissing the claims against him as frivolous. See Stump, 435 U.S. at 356-57; Karim-Panahi, 839 F.2d at 623.
Prosecutors are also entitled to absolute immunity for acts which are within their authority and performed in a quasi-judicial capacity. Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S. Ct. 984 (1976); Ashelman, 793 F.2d at 1076. "Acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity." Buckley v. Fitzsimmons, 125 L. Ed. 2d 209, 113 S. Ct. 2606, 2615 (1993). However, when the prosecutor performs functions other than those of an officer of the court, the prosecutor loses the protection of absolute immunity. Id. at 2615-16; Gobel v. Maricopa County, 867 F.2d 1201, 1203 (9th Cir. 1989). A prosecutor who makes statements at a press conference is acting outside the role of an officer of the court, even though this function may form an integral part of a district attorney's job. Buckley, 113 S. Ct. at 2618. Therefore, a prosecutor who makes allegedly false statements to the media is entitled to qualified immunity only, and not absolute immunity from section 1983 liability. Id. ; Gobel, 867 F.2d at 1205.
Here, Hawks challenges District Attorney Michael Ramsey's actions in prosecuting Hawks for felony jury tampering. In addition, Hawks contends that the district attorney made slanderous remarks about her on radio and television. To the extent that District Attorney Ramsey initiated judicial proceedings and prosecuted Hawks for felony jury tampering, he was acting as an officer of the court and is entitled to absolute immunity. See Buckley, 113 S. Ct. at 2615; Ashelman, 793 F.2d at 1076. Ramsey is not entitled to absolute immunity in connection with Hawks' allegations that he made false public statements on radio and television. See Buckley, 113 S. Ct. at 2618. However, Hawks has not alleged the kind of "defamation plus" injury necessary to state a cognizable section 1983 claim, see Gobel, 867 F.2d at 1205, and on appeal she suggests no cure. It is clear that the complaint's deficiencies cannot be cured by amendment. See Karim-Panahi, 839 F.2d at 623. Accordingly, the district court did not err in dismissing the claims against District Attorney Ramsey. See id.
Although a municipality or governmental entity cannot be found liable under section 1983 on a respondeat superior theory, liability may be imposed for constitutional deprivations inflicted pursuant to an official policy or custom. See Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690-94, 98 S. Ct. 2018 (1978); Karim-Panahi, 839 F.2d at 624. A claim of municipal liability is sufficient if the plaintiff alleges that the individual defendants' conduct conformed to official policy, custom, or practice. Karim-Panahi, 839 F.2d at 624 (citation omitted).
Hawks' complaint does not contain any such allegations against the County. Moreover, it is clear that Hawks cannot cure the complaint's deficiencies by amendment since her claims against the individual defendants are frivolous. See Monell, 436 U.S. at 690-694. Accordingly, the district court did not err in dismissing ...