Unpublished Disposition, 861 F.2d 268 (9th Cir. 1988)

We review de novo a district court's dismissal of an action under Rule 12(b) (6). McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987). In conducting this review, we must assume the correctness of all the factual allegations made by Burns, the party whose suit the district court dismissed. Shah v. County of Los Angeles, 797 F.2d at 745. A pro se civil rights complaint such as Burns' must be liberally construed, and should not be dismissed unless it appears certain that the plaintiff can prove no set of facts that would create an entitlement to relief. Haddock v. Board of Dental Examiners, 777 F.2d 462, 464 (9th Cir. 1985) (citing Haines v. Kerrer, 404 U.S. 519, 520-21 (1972) (per curiam)).

Daniels' actions in seizing, damaging, and refusing to return Burns' pictures clearly fulfill the Section 1983 condition that the defendant acted under "color of law." See Shw v. County of Los Angeles, 797 F.2d at 746 (Those clothed with the legitimacy of prison authority, purporting to act under that authority, need not have been acting specifically under the scope of that authority in order to have been acting under color of law.) The more difficult issue is whether Burns' complaint alleges deprivation of a federally protected right.

We conclude that it does not. Burns makes no showing in his complaint of religious discrimination, or of substantive interference with his right to practice his religion. Although we must construe a pro se civil rights complaint liberally, vague allegations such as Burns' do not suffice to create a claim of interference with religious freedom in violation of the First and Fourteenth Amendments.

We therefore view this case as an argument over damaged property that happens to be religious. Burns' deprivation of property does not infringe upon a federally protected right because a state post-deprivation remedy is available to compensate him fully for his property loss. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Paratt v. Taylor, 451 U.S. 527, 543 (1981). Burns could have sued Daniels in tort under Nev.Rev.Stat. 341.031 and 41.036.¹  Thus, the district court properly dismissed Burns' action for failure to state a claim upon which relief could be granted.

28 U.S.C. § 1915(d) confers discretion on the district court to request an attorney to represent an indigent civil litigant. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (citing Franklin v. Murphey, 745 F.2d 1221, 1236 (9th Cir. 1984)). Courts will only designate counsel under Sec. 1915(d) in "exceptional circumstances." Id. (citing Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963), cert. denied, 375 U.S. 845 (1963)). "A finding of exceptional circumstances requires an evaluation of both 'the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.' " Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

This court reviews the district court's denial of a motion for appointment of counsel for an abuse of discretion. Wilborn v. Escalderon, 789 F.2d at 1331.

Burns has not shown a likelihood of success on the merits. Moreover, Burns has not shown that the complexity of the issues involved in this case is sufficient to require designation of counsel. The district court did not, therefore, abuse its discretion in denying Burns' motion for appointment of counsel.

Under Fed. R. Civ. P. 55(c), an entry of default may be set aside for "good cause shown." Our past opinions reveal that our primary concern in considering whether to grant relief from default is not how good the cause of default is, but whether the movant has a meritorious defense. See Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d at 513. (The underlying concern ... is to determine whether there is some possibility that the outcome of the suit after a full trial will be contrary to the result achieved by default.... A party in default thus is required to make some showing of a meritorious defense as a prerequisite to vacating an entry of default.")

We review the district court's grant of a motion for relief from entry of default for abuse of discretion. Mendoza v. Wight Management, 783 F.2d 941, 945 (9th Cir. 1986). A decision on a motion to set aside an entry of default is not an abuse of discretion unless the court is "clearly wrong" in its determination of "good cause." Id.

Daniels' counsel noted in his motion for relief from default that Daniels had a meritorious defense to Burns' action. Counsel argued that the essence of Burns' claim was loss of property and that such claims were barred by the Supreme Court in Parratt v. Taylor, 451 U.S. 526 (1981), and Hudson v. Palmer, 468 U.S. 517 (1984). In view of precedent, the district court's grant of relief from default was thus within its discretion.

AFFIRMED.