Unpublished Disposition, 857 F.2d 1477 (9th Cir. 1987)

MEMORANDUM^**

Don and Karen Dunworth appeal pro se from the district court's denial of their motion for leave to proceed in forma pauperis. We REVERSE.

On May 11, 1987, the Dunworths filed this civil rights action against Calavaras County, seven county sheriffs' officers, the county counsel, two district attorneys, and a county judge. The Dunworths alleged that defendants violated 42 U.S.C. §§ 1983, 1985(3), and 1986 by engaging in continued abusive treatment and continual harassment, culminating in an illegal search and arrest.

The Dunworths filed a motion for leave to proceed in forma pauperis on June 1, 1987. The district court denied the motion without comment on May 22, 1987. The Dunworths timely appealed.

The denial of a motion to proceed in forma pauperis is an appealable order. Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). We review the district court's decision for an abuse of discretion. Id. at 1369. We review de novo the apparent determination that the Dunworths' complaint was frivolous. Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985).

Under 28 U.S.C. § 1915(a), a district court may grant in forma pauperis status if the litigant is unable to pay the costs of the suit. The court may deny, however, a section 1915(a) motion if the complaint is frivolous. Tripati, 821 F.2d at 1370. The district court judge here did not set forth the reasons for his denial. Therefore, we discuss both the sufficiency of the Dunworths' allegations of poverty and whether or not the complaint was frivolous.

A litigant need not be absolutely destitute to enjoy the benefit of section 1915(a). An affidavit supporting an in forma pauperis motion is sufficient if it states that the plaintiff, because of his poverty, cannot " 'pay or give security for the costs ... and still be able to provide himself and dependents 'with the necessities of life.' " Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948).

The Dunworths' affidavit stated that Don Dunworth worked at odd jobs, earning approximately $600.00 per month. Karen Dunworth was a newspaper carrier, with a monthly income of $600.00. The Dunworths had no bank accounts or valuable assets and were supporting three minor children. The Dunworths thus sufficiently showed that they could not pay the costs of suit and provide for themselves and their family. The district court abused its discretion if it denied their motion because of insufficient proof of indigency.

The district court may have denied the Dunworths' motion on the ground that their complaint was frivolous. An in forma pauperis complaint is frivolous if it has no arguable substance in law or fact. Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). A pro se litigant, however, must be given leave to amend his complaint unless it is " 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curiam)).

The Dunworths' complaint adequately alleged violations of 28 U.S.C. §§ 1983, 1985, and 1986. The essential elements of a section 1983 action are: 1) the defendants acted under color of law, and 2) their conduct deprived plaintiffs of a constitutional right. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc), cert. denied sub nom. Cranke v. Haygood, 106 S. Ct. 3333 (1986). The first element was clearly alleged. Plaintiffs sued state officials acting under state law and under the authority of their county offices. Suit against the county was also proper because section 1983 "imposes liability upon municipalities for constitutional deprivations resulting from actions taken pursuant to government policy or custom." Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988).

The Dunworths also alleged several constitutional violations that this court has held to be cognizable under section 1983. These included: (1) An arrest without probable cause, McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984), (2) the use of excessive force during an arrest, id. at 1010, (3) an illegal search, Bilbrey v. Brown, 738 F.2d 1462, 1466-67 (9th Cir. 1984), and (4) malicious prosecution, Karim-Panahi, 839 F.2d at 624. The Dunworths also alleged specific facts to support these claims.

Under section 1985, the Dunworths must allege, with sufficient factual specificity, that the defendants conspired to interfere with their civil rights. See Karim-Panahi, 839 F.2d at 626. To recover under section 1986, the Dunworths must prove a valid section 1985 claim and must show that the defendants knew of the impending section 1985 violations but failed to prevent it. Id.

The Dunworths alleged sufficient facts in their proposed complaint to support both a section 1985 and a section 1986 claim. They stated that the officials subjected them to continual harassment, ranging from threats and verbal abuse to vandalism and unlawful arrest. The proposed complaint included numerous factual allegations regarding the events. In addition, the Dunworths alleged that the county, the board of supervisors, and the county counsel knew of these activities, but did nothing to prevent them. Hence, the Dunworths stated a civil rights conspiracy claim as well as a claim for failure to prevent the conspiracy. See Karim-Panahi, 839 F.2d at 626.

A complaint may also be frivolous if it is subject to a defense which is complete and obvious from the face of the pleadings or from the court's own records. See Franklin, 745 F.2d at 1228. Although many possible immunity defenses are apparent from the face of the Dunworths' complaint, none of these defenses are so complete as to render the action frivolous.

The sheriffs' officers, for example, would not be entitled to qualified immunity if a reasonably well-trained officer would have known that the arrest was illegal. See Malley v. Briggs, 475 U.S. 335, 341 (1986). The Dunworths' complaint suggests both that their arrest was illegal and that reasonable officers would have recognized its illegality. Similarly, although judges and prosecutors are normally immune from civil damage liability, see Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986), this immunity does not extend to conduct that exceeds the scope of the officials' authority or that the officials undertook in a non-judicial capacity. Id. The Dunworths alleged that Judge Mewhinney and the attorneys wrongfully prosecuted Mr. Dunworth with the intent of denying him his constitutional rights. Such conduct may exceed the scope of the defendants' authority, and may deprive the official of their immunity. Therefore, because the immunity defenses are not clear from the face of the complaint, they do not render the Dunworths' action frivolous. See Franklin, 745 F.2d at 1228.

Moreover, the district court never told the Dunworths of any problems with their complaint or gave them the opportunity to amend. It is not absolutely clear that any deficiencies could not be cured by amendment. See Tripati, 821 F.2d at 1370.

Thus, the district court erred if it denied the Dunworths' motion to proceed in forma pauperis on the ground that the action was frivolous.

CONCLUSION

We REVERSE and REMAND to the district court for further proceedings.