                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 08 2009

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 JOSEPH DANNY PROPHET,                           No. 08-16449

               Plaintiff - Appellant,            D.C. No. 1:07-cv-01372-OWW-
                                                 DLB
   v.

 ALLISON DUNHAM; et al.,                         MEMORANDUM *

               Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                     Oliver W. Wanger, District Judge, Presiding

                           Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Joseph Danny Prophet, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that the

district attorney submitted inadmissible evidence during his criminal trial. We

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

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have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal

under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

We affirm.

        The district court properly dismissed the claims against deputy district

attorney Dunham, the prosecutor who allegedly submitted inadmissible evidence,

because prosecutors are absolutely immune from damages under section 1983

when acting within the scope of their duties in presenting the state’s case. See

Imbler v. Pachtman, 424 U.S. 409, 410 (1976) (applying absolute immunity to bar

a section 1983 action alleging that a prosecutor knowingly used false testimony at

trial). The district court properly dismissed the claims against defendant Lavra,

Prophet’s defense attorney, because the complaint pleaded no facts suggesting that

Lavra was a state actor or that he deprived Prophet of a constitutional right under

section 1983. See Miranda v. Clark County, 319 F.3d 465, 469 (9th Cir. 2003) (en

banc) (affirming the dismissal of plaintiff’s section 1983 action against his former

defense attorney for lack of state action).

        AFFIRMED.




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