Andrew J. Johnson v. Jon Forwood

28 F.3d 113 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Andrew J. JOHNSON, Plaintiff-Appellant, v. Jon FORWOOD, Defendant-Appellee. No. 93-8033. United States Court of Appeals, Tenth Circuit. June 6, 1994. KELLY ORDER AND JUDGMENT1 Before MOORE, ANDERSON and KELLY, Circuit Judges.2 [1] Mr. Johnson, appearing pro se, appeals from the district court's dismissal of his civil rights complaint. Mr. Johnson seeks money damages, alleging that the Defendant, a state prosecutor, conspired to procure false testimony at his suppression hearing and trial. The district court dismissed the action as factually frivolous under 28 U.S.C.1915(d), and barred by either res judicata or absolute prosecutorial immunity, Imbler v. Pachtman, 424 U.S. 409, 431 (1976). [2] On appeal, Mr. Johnson contends that the prosecutor failed to correct a witness's false testimony, "implicitly admitting that false testimony was ... agreed upon...." Mr. Johnson's lawsuit is based upon an indisputably meritless legal theory, Neitzke v. Williams, 490 U.S. 319, 327 (1989), because a prosecutor, as advocate for the State, is absolutely immune from a suit for civil damages based upon preparing and presenting the State's case. Buckley v. Fitzsimmons, 113 S.Ct. 2606, 2615 (1993). Dismissal was appropriate. [3] Mr. Johnson's motion to proceed in forma pauperis is GRANTED and the district court's judgment dismissing the complaint is AFFIRMED. Footnotes [1] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order. 151 F.R.D. 470 (10th Cir.1993) [2] After examining the briefs and 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 cause therefore is ordered submitted without oral argument