Opinion
No. C 02-3508 CRB (PR)
July 30, 2002
ORDER OF DISMISSAL
Plaintiff, a state prisoner currently incarcerated at the Santa Clara County Jail, has filed a pro se civil rights complaint for damages under 42 U.S.C. § 1983 alleging that Santa Clara County District Attorney George W. Kennedy violated plaintiffs constitutional rights to free speech, equal protection and due process by charging him with a violation of California Penal Code section 148.6 (false allegations of misconduct against a peace officer), despite the fact that several courts have found section 148.6 unconstitutional.
Plaintiff seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
DISCUSSION
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dept, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Prosecutors are "absolutely immune from liability under section 1983 for their conduct in `initiating a prosecution and in presenting the State's case' insofar as that conduct is `intimately associated with the judicial phase of the criminal process.'" Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976)). Kennedy accordingly is entitled to absolute immunity for his decision to prosecute plaintiff under California Penal Code section 148.6. See Roe v. City and County of San Francisco, 109 F.3d 578, 583 (9th Cir. 1997) ("it is well established that a prosecutor has absolute immunity for the decision to prosecute"). That section 148.6 has been called into doubt by some courts does not compel a different result.
CONCLUSION
For the foregoing reasons, plaintiffs request to proceed in forma pauperis (doc #2) is DENIED and the complaint is DISMISSED.
To whatever extent plaintiff seeks relief from his section 148.6 conviction, or other resulting conviction, he must do so by way of a petition for a writ of habeas corpus. See Calderon v. Ashmus, 523 U.S. 740, 747 (1998) (any claim by a prisoner attacking the validity or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code).
The Clerk shall close the file and terminate all pending motions as moot.
SO ORDERED.