                  UNITED STATES COURT OF APPEALS
Filed 7/26/96TENTH CIRCUIT


 DAVID S. PETERSON,

                Plaintiff-Appellant,

 v.                                                        Case Nos. 95-2200, 95-2246

 D’ANN RASMUSSEN,                                          (D.C. CIV-95-911-JC)
                                                            (District of New Mexico)
                Defendant-Appellee.




                                 ORDER AND JUDGMENT*


Before BRORBY, EBEL, and HENRY, Circuit Judges.




       After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

       Plaintiff David S. Peterson appeals the district court’s dismissal of his claims

       *
               This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.

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against defendant D’Ann Rasmussen, an Assistant District Attorney for the First Judicial

District of New Mexico. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm.

          Mr. Peterson brought this action in the First Judicial District Court for the State of

New Mexico (“the state court”). He alleges that, in January 1995, he filed a criminal

complaint against a corrections officer who had illegally confiscated his legal files and

word processor. According to Mr. Peterson, Ms. Rasmussen failed to adequately

investigate the criminal complaint and improperly filed a notice of dismissal on the

grounds that there was insufficient evidence to prosecute the case. He maintains that in

dismissing the complaint, Ms. Rasmussen knowingly presented false evidence to the

court, “knowingly desert[ed] her clients, the citizens of New Mexico,” and “knowingly

jeopardize[d] her clients[, the people of New Mexico,] in order to favor the [corrections

officer].” See Rec vol. I doc. 1, Ex. 1, ¶¶ 14-17. Mr. Peterson also asserts that Ms.

Rasmussen acted under color of law to violate his First and Fourteenth Amendment right

of access to the courts. He seeks actual and punitive damages and an order disbarring Ms.

Rasmussen.

          After service of the complaint, Ms. Rasmussen filed a notice of removal in the

United States District Court for the District of New Mexico (“the district court”). She

noted that Mr. Peterson had alleged violations of rights secured by the United States

Constitution. The district court then dismissed the complaint sua sponte pursuant to 28


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U.S.C. § 1915(d) and Fed. R. Civ. P. 12(b)(6). The court reasoned that Mr. Peterson’s

allegations concerned Ms. Rasmussen’s conduct as a prosecutor and that, as a result, she

was entitled to absolute immunity. The court subsequently denied Mr. Peterson’s request

for reconsideration.

       On appeal, Mr. Peterson argues that the removal of the case to the district court

was improper. He also challenges the district court’s conclusion that Ms. Rasmussen was

entitled to absolute immunity. Finally, he argues that dismissal was not warranted

because his complaint alleges violations of New Mexico statutes.

       The district court’s allowance of removal raises a legal question that is subject to

de novo review. See Garrett v. Commonwealth Mortgage Corp., 938 F.2d 591, 593 (5th

Cir. 1991). As to the court’s dismissal of the complaint, we treat its decision as a grant of

a motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) and engage in de novo review.

See Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir. 1995).1 We “must accept all the well-

pleaded allegations of the complaint as true and must construe them in the light most

favorable to the plaintiff.” Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991).

“Dismissal is only appropriate when the plaintiff can prove no set of facts to support a



       1
               As noted, in dismissing the complaint, the district court cited 28 U.S.C. § 1915(d)
and Fed. R. Civ. P. 12(b)(6). Our review of § 1915(d) dismissals is more deferential than our
review of Rule 12(b)(6) dismissals. Compare Fratus v. DeLand, 49 F.3d 673, 674 (10th Cir.
1995) (reviewing the district court’s dismissal under § 1915(d) for an abuse of discretion) with
Jojola, 55 F.3d at 490 (10th Cir. 1995) (reviewing de novo the district court’s dismissal under
Rule 12(b)(6)). By treating the district court’s decision as a dismissal under Fed. R. Civ. P.
12(b)(6), we adopt an interpretation that allows a more searching appellate review.

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claim for relief.” Jojola, 55 F.3d at 490.

         The district court did not err in allowing removal. Federal statutes authorize

removal of actions over which the federal district courts have original jurisdiction,

including civil rights actions filed pursuant to 42 U.S.C. § 1983. See 28 U.S.C. § 1441;

see also Harris v. Birmingham Bd. of Educ., 817 F.2d 1525, 1526-27 (11th Cir. 1987).

Because Mr. Peterson alleged that Ms. Rasmussen violated his rights under the First and

Fourteenth Amendments, removal was proper. Moreover, the fact that Mr. Peterson

asserted violations of state law did not require the remand of those claims to the state

court. Under 28 U.S.C. § 1367, the district court had supplemental jurisdiction to

adjudicate them. See Zuniga v. Blue Cross & Blue Shield, 52 F.3d 1395, 1399 (6th Cir.

1995).

         With regard to Mr. Peterson’s claim that Ms. Rasmussen violated his rights under

the federal constitution, we agree with the district court that dismissal is warranted

because Ms. Rasmussen is entitled to absolute immunity. State prosecutors are entitled to

absolute immunity from § 1983 actions based on conduct “intimately associated with the

judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976).

Mr. Peterson’s allegations involve Ms. Rasmussen’s decision not to prosecute the

criminal complaint against the corrections officer, an act “intimately associated with the

judicial phase of the criminal process.” See id.; see also Brodnicki v. City of Omaha, 75

F.3d 1261, 1268 (8th Cir. 1996) (“The decisions relating to the initiation and dismissal of


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cases are at the very heart of a prosecutor’s function as an advocate for the state, and

absolute immunity thus attaches to those decisions.”); Hammond v. Bales, 843 F.2d 1320,

1321 (10th Cir. 1988) (“[T]he decision not to prosecute criminal charges is similar to the

decision to prosecute and should therefore be protected by absolute immunity.” (citing

Dohaish v. Tooley, 670 F.2d 934, 938 (10th Cir.), cert. denied, 459 U.S. 826 (1982)));

Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984) (“We think that conferring

with potential witnesses for the purpose of determining whether to initiate proceedings is

plainly a function `intimately associated with the judicial phase of the criminal process.’”

(quoting Imbler, 424 U.S. at 430)), cert. denied, 469 U.S. 1127 (1985).

       Finally, with regard to Mr. Peterson’s allegations of state law violations, we also

agree with the district court that dismissal is warranted. Under the New Mexico Tort

Claims Act, N. M. Stat. Ann. §§ 41-4-1 to -27, public officials such as Ms. Rasmussen

are entitled to immunity from liability for torts unless their immunity is specifically

waived by the Tort Claims Act itself. See N. M. Stat. Ann.§ 41-4-4(A); Garcia v. Board

of Educ., 777 F.2d 1403, 1407 (10th Cir. 1985), cert denied, 479 U.S. 814 (1986). Mr.

Peterson has identified no provision of the Tort Claims Act that waives Ms. Rasmussen’s

immunity, and we have found none.




       Accordingly, the district court’s dismissal of Mr. Peterson’s complaint is affirmed.


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The mandate shall issue forthwith.

                                         Entered for the Court,



                                         Robert H. Henry
                                         Circuit Judge




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