The opinion of the court was delivered by: EDUARDO C. ROBRENO
Plaintiff, an inmate, has filed a pro se 42 U.S.C. § 1983 civil rights complaint against the Honorable Victor DiNubile of the Philadelphia Court of Common Pleas. Plaintiff alleges that Judge DiNubile violated his due process rights while presiding over plaintiff's criminal prosecution including his trial.
With his complaint, plaintiff filed a request for leave to proceed in forma pauperis. As it appears he is unable to pay the cost of commencing this action, leave to proceed in forma pauperis is granted.
Judges are entitled to absolute immunity in § 1983 actions, such as this, in which money damages are sought for actions performed by judges in their judicial capacity. See Stump v. Sparkman, 435 U.S. 349, 355-56, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978). Only if a judge acts in the "clear absence of all jurisdiction" is that immunity forfeited. Id. at 357.
While defendant claims that Judge DiNubile "knew or should have known he was acting without jurisdiction," see Statement of Claim Form Used By Prisoners Filing A Complaint under the Civil Rights Act, 42 U.S.C. § 1983, (the "Complaint"), it is clear from the face of the Complaint that Judge DiNubile, as a judge of the Court of Common Pleas, had jurisdiction to preside over the criminal proceedings involving the plaintiff. Fairly read, what plaintiff appears to complain of is not the absence of jurisdiction on the part of the court in which he was convicted, but rather the results of Judge DiNubile's exercise of his jurisdiction. Therefore, the complaint must be dismissed as frivolous pursuant to 28 U.S.C. § 1915(d).
An appropriate order follows.
AND NOW, this 7th day of December, 1993 since it appears plaintiff is unable to prepay the costs of commencing this suit pursuant to 28 U.S.C. § 1915(a).
1. Leave to proceed in forma pauperis is GRANTED.
2. This complaint is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(d).