FILED
United States Court of Appeals
Tenth Circuit

MAR 13 2000

PATRICK FISHER
Clerk

	UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BILL E. TUCKER, JR.,

Plaintiff-Appellant,
v.

R.K. HOLLINGSWORTH, District Attorney of Sedgwick County; SEDGWICK COUNTY, Political subdivision of the State of Kansas; SEDGWICK COUNTY DISTRICT ATTORNEY, Prosecuting Attorney for Sedgwick County, Kansas,

Defendants-Appellees.	No. 99-3271
(D.C. No. CV-99-3098-GTV)
(D. Kan.)	

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.

	Plaintiff-Appellant Bill E. Tucker filed a pro se complaint seeking damages for alleged violations of his civil rights pursuant to 42 U.S.C. § 1983.  (See Doc. 1.)  Tucker alleged that Defendants-Appellees R.K. Hollingsworth, District Attorney of Sedgwick County, Kansas; the County of Sedgwick County, Kansas; and the Office of the District Attorney of Sedgwick County, Kansas maliciously prosecuted, falsely imprisoned, and otherwise unlawfully and unconstitutionally restrained his liberty in violation of his due process and equal protection rights.  (See id. at 2.)  Tucker’s complaint arises from the fact that Tucker spent twenty-six years in prison serving a sentence for a 1971 armed robbery conviction that was eventually overturned on state collateral review.  (See id.)  The state apparently set aside the conviction on the ground that the complaint and information failed to include an essential element of the crime charged.  (See id. at 5.)  
The district court dismissed the complaint sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii) after finding that the prosecutors were entitled to absolute immunity and that Tucker had failed to state a cognizable claim against Sedgwick County.  (See Doc. 3.)  Tucker sought reconsideration of the district court’s order dismissing the complaint pursuant to Federal Rule of Civil Procedure 59(e) (Motion to Alter or Amend the Judgment) and, in the alternative, leave to file an appeal in forma pauperis.  (See Doc. 5.)  The district court denied the motion for reconsideration but granted the motion for leave to proceed on appeal in forma pauperis.  (See Doc. 9.)  We review dismissals pursuant to § 1915(e)(2)(B)(ii) and (iii) de novo.  See Perkins v. Kansas Dep’t of Corrections, 165 F.3d 803, 806 (10th Cir. 1999) (§ 1915(e)(2)(B)(ii)); Scott v. Harris, No. 98‑3828, 1999 WL 506985 (6th Cir. June 10, 1999) (unpublished) (§ 1915(e)(2)(B)(iii)).  In determining immunity, we accept the allegations contained in Tucker’s complaint as true.  See Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502, 505, 139 L. Ed. 2d 471 (1997).
On appeal, Tucker argues that the district court erred in dismissing his complaint against Hollingsworth because prosecutors are not absolutely immune from suit.  Tucker emphasizes that his conviction was overturned because the court lacked jurisdiction to convict him due to the flawed complaint and information.  Citing Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978), Tucker asserts that judges are not immune from suit where they lack jurisdiction and that, by analogy, prosecutors should also be denied immunity under these circumstances.