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Frazier v. Glensor

filed*fn*: August 1, 1991.

JOHN FRAZIER, PLAINTIFF-APPELLANT,
v.
C. GLENSOR, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Eastern District of California; Edward J. Schwartz, Senior Judge, Presiding; D.C. No. CV-S-90-005-MLS-J.

Farris, Alarcon, and T. G. Nelson, Circuit Judges.

MEMORANDUM

John Frazier, a California state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action as frivolous under 28 U.S.C. § 1915(d) because Frazier's complaint did not contain a short and plain statement of his claims as required by Fed. R. Civ. P. 8(a). We affirm in part, reverse in part, and remand for issuance and service of process.*fn1

In his complaint, Frazier alleged that the defendant prison officials violated his civil rights by (1) continuing to house him near members of the Aryan Brotherhood after he warned them he had been assaulted and he was in continuing danger, which resulted in subsequent assaults, (2) injuring him while breaking up a prison riot, (3) denying him access to the law library in retaliation for his litigation activities, (4) fabricating documents to justify disciplinary action and denying him access to his file to review or challenge the documents, (5) confiscating or losing his personal property, (6) refusing to transfer him to a lower custody classification within the prison system, and (7) denying him rehabilitative programs.

The magistrate dismissed Frazier's original complaint because it contained some frivolous claims and because the other claims were vague and conclusory. Frazier filed three more complaints which asserted the same claims in more detail. The district court eventually dismissed the entire action for failure to comply with Rule 8(a) because "the statement of the [potentially cognizable claims] . . . remained so vague and conclusory, imbedded among frivolous claims, that it did not suffice to give fair notice of the substance of the claims against them."

A complaint may "properly be dismissed sua sponte and before the filing of responsive pleadings only if it [is] . . . frivolous." McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (original complaint dismissed for failure to comply with Rule 8(a); after pro se litigant failed to file amended complaint, district court dismissed for failure to prosecute; on appeal, this court reversed and remanded for service of process) (citing 28 U.S.C. § 1915(d); Neitzke v. Williams, 490 U.S. 319, 325 (1989)). A complaint is frivolous if it "lacks an arguable basis in law or in fact." Neitzke, 490 U.S. at 325. In civil rights cases where the plaintiff appears pro se, the court must construe pleadings liberally and afford the plaintiff the benefit of any doubt. McKeever, 932 F.2d at 798. If the plaintiff has an arguable claim, he is entitled to issuance and service of process. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citing Neitzke, 490 U.S. at 329-30).

Here, the district court properly determined that Frazier's claims concerning loss of property, his custody status, and right to rehabilitative programs are frivolous. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (loss of property does not state a section 1983 claim if state law provides adequate postdeprivation remedies); Olim v. Wakinekona, 461 U.S. 238, 245-49 (1983) (no due process right to be housed in a particular institution); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (no constitutional right to a custody classification); Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982) (no right to rehabilitation).

We cannot say from the face of Frazier's complaint, however, that the rest of his claims are frivolous. Although the magistrate dismissed for failure to comply with Rule 8(a), all that is required are sufficient allegations to put the defendants fairly on notice of the claims against them. McKeever, 932 F.2d at 798. Because Frazier's complaint contains arguable claims, he is entitled to issuance and service of process. Jackson, 885 F.2d at 640.*fn2

AFFIRMED IN PART, REVERSED IN PART, ...


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