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COTTON v. McNUNN

United States District Court, N.D. California


July 6, 2004.

BOBBY LEE COTTON a.k.a. HABEEBULLAH NA'EEM RASHEED, Plaintiff,
v.
AGENT JOHN McNUNN, Defendant.

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS; DISMISSING ACTION WITH PREJUDICE
Before the Court is the application to proceed in forma pauperis filed by plaintiff Bobby Lee Cotton, also known as Habeebullah Na'eem Rasheed. Pursuant to 28 U.S.C. § 1915(e)(2)(B), when a party seeks to proceed in forma pauperis, the Court shall dismiss the case if the Court determines that the plaintiff fails to state a claim upon which relief can be granted, or that he seeks monetary relief against a defendant who is immune from relief.

Plaintiff seeks damages, pursuant to 42 U.S.C. § 1983, against Agent John McNunn of the California Department of Corrections, for filing an allegedly false parole violation report in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. The Ninth Circuit has held, however, that "probation officers preparing reports for the use of state courts possess an absolute judicial immunity from damage suits under section 1983 arising from acts performed within the scope of their official duties." See Demoran v. Witt, 781 F.2d 155, 157 (9th Cir. 1986) (citing Burkes v. Callion, 433 F.2d 318, 319 (9th Cir. 1970)). As Agent McNunn possesses absolute judicial immunity, plaintiff cannot state a claim against him.

  Accordingly, plaintiff's request to proceed in forma pauperis is DENIED, and the action is DISMISSED, with prejudice.

  The Clerk shall close the file.

  IT IS SO ORDERED. JUDGMENT IN A CIVIL CASE

  [] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  [X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS ORDERED AND ADJUDGED plaintiff's request to proceed in forma pauperis is DENIED, and the action is DISMISSED, with prejudice.

20040706

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