Unpublished Disposition, 841 F.2d 1130 (9th Cir. 1988)

MEMORANDUM

Segura, a California state prisoner appearing pro se, appeals an order dismissing his section 1983 action as frivolous under 28 U.S.C. § 1915(d) and for failure to state a claim upon which relief can be granted. Segura alleged that the defendant county sheriff, certain county detectives, and a towing company deprived him of a truck, another automobile, and construction work tools at the time of his arrest and have yet to return them. The district court had jurisdiction under 28 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291. We reverse.

We review de novo the dismissal of an action as frivolous under section 1915(d) or for failure to state a claim. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (Noll) . A complaint is frivolous under section 1915(d) if it has no arguable basis in law or fact. Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987).

The district court dismissed the action because it concluded that Parratt v. Taylor, 451 U.S. 527 (1981), prohibits all deprivation of property claims under section 1983 where the state provides adequate post-deprivation procedures for recovering the property. The district court then concluded that California law provided an adequate recovery remedy.

Parratt does hold that post-deprivation remedies will satisfy due process where the deprivation is the result of a "random or unauthorized act" because "the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur." Id. at 541. However, Parratt only applies when predeprivation process is not feasible. Bretz v. Kelman, 773 F.2d 1026, 1030-31 (9th Cir. 1985) (en banc). Thus, Parratt requires a court to make a threshold determination that predeprivation process was not feasible. Id.; see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-37 (1982) (Parratt does not apply to instances where a deprivation of property was the result of faulty state procedures because such deprivations are foreseeable and it is not impracticable for a state to provide predeprivation process). The district court's failure to make an initial determination concerning the feasibility of predeprivation process mandates reversal, unless some other basis in the record supports the district court's dismissal. Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987) (court may affirm on any basis supported in the record).

We can find no basis in the record to support the dismissal. Segura has alleged sufficient facts to support his contention that the defendants, in seizing his property, acted under color of state law and deprived him of a federally protected right. See Goichman v. Rheuben Motors, Inc., 682 F.2d 1320, 1322 (9th Cir. 1982) (towing company acts under color of state law for section 1983 purposes). He has not, however, alleged the facts with the requisite degree of particularity concerning the procedures the defendants used and how the procedures violated due process. Rather than dismissing the action, however, the district court should have notified Segura of these defects and given him an opportunity to amend. Noll, 809 F.2d at 1448 (do not dismiss pro se litigant's complaint unless absolutely clear that litigant could not cure deficiencies by amendment).

REVERSED.