Unpublished Disposition, 872 F.2d 428 (9th Cir. 1987)

MEMORANDUM^** 

Lawrence C. Krain appeals pro se the district court's dismissal of his civil rights action as frivolous under 28 U.S. Sec. 1915(d). We reverse and remand.

* FACTS AND PROCEEDINGS BELOW

This action arose out of the criminal prosecution of Krain for solicitation to commit bribery and fraud. As a result of such prosecution, Krain filed numerous civil actions in both state and federal court. While it is difficult to discern from the record before us, this initial barrage of civil actions was apparently dismissed.

On February 13, 1987, Krain was permitted to file a complaint for deprivation of an assortment of constitutional rights under the Civil Rights Act, in forma pauperis, pursuant to 28 U.S.C. § 1915(a). Named as defendants were a Superior Court and a Municipal Court judge, his former court-appointed attorneys, and the County of Orange. Krain sought damages in the amount of $1,000,000, as well as injunctive relief.

A district court magistrate recommended that the complaint and action be dismissed as frivolous as to all defendants because Krain had failed to state a claim upon which relief could be granted. Krain filed an opposition to the magistrate's recommendations and requested leave to amend his complaint. The district court, nevertheless, adopted the magistrate's recommendations and dismissed the complaint without giving Krain leave to amend. Krain timely appeals.

II

STANDARD OF REVIEW

This court reviews de novo a district court's dismissal of an action as frivolous under 28 U.S.C. § 1915(d). Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987). For purposes of determining whether an action is frivolous, we must presume that all of plaintiff's allegations are true. Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir. 1988). We will affirm a district court's dismissal only if the action has "no arguable substance in law or fact." Id. at 1425.

III

DISCUSSION

The district court determined that Krain's claims against Kathleen O'Leary, a Superior Court judge, and Daniel Brice, a Municipal Court judge, were based solely on acts performed as part of their official duties as judges. As such, they were absolutely immune from suit for acts performed in their judicial capacities.

Judges enjoy absolute immunity from damage actions for acts performed in their judicial capacities, so long as their "ultimate acts are judicial actions taken within the court's subject matter jurisdiction." Ashelman v. Pope, 793 F.2d 1072 1078 (9th Cir. 1986) (en banc); see also Forrester v. White, 108 S. Ct. 538, 543-45 (1988).

Krain has alleged that the judges' acts of which he complains were unrelated to their judicial capacities and were beyond the scope of their jurisdiction.¹  We must accept these allegations as true. Because such claims have an arguable substance in law, the district court's dismissal must be reversed and remanded. On remand, Krain should be allowed to amend in order to assert a factual basis to support his conclusory allegations. If Krain is unable to do so, dismissal will be proper. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).

Defendants Milton Grimes, Marne Glass, Keith Monroe, Michael Garey, and David Haigh were all sued individually and as court-appointed attorneys. The district court dismissed all claims against them on the basis that they were purely private actors and not susceptible to suit under 42 U.S.C. § 1983.

To establish a section 1983 claim, a plaintiff must allege that (1) the defendants acted under color of state law, and (2) their conduct deprived the plaintiff of a federally protected right. Parratt v. Taylor, 451 U.S. 527, 535 (1981). Ordinarily, private defense counsel, whether retained or appointed, do not act under color of state law for purposes of section 1983 liability. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Franklin v. Oregon, 662 F.2d 1337, 1345 (9th Cir. 1981). A private party may be considered to have acted under color of state law, however, when he engages in a conspiracy or acts in concert with state agents to deprive a plaintiff of his constitutional rights. Tower v. Glover, 467 U.S. 914, 920 (1984); Fonda v. Gray, 707 F.2d 435, 437 (9th Cir. 1983). To prove a conspiracy between the state and private parties, the plaintiff must show "an agreement or 'meeting of the minds' to violate constitutional rights." Fonda, 707 F.2d at 438.

Here, Krain alleged that each of his court-appointed attorneys conspired or acted in concert with Judges Brice and O'Leary and/or the County of Orange to deprive Krain of numerous federal rights. See Complaint paragraphs 6, 17, 18, 19, 20, 21, 27. Again, accepting these allegations as true, Krain's claims against them have an arguable substance in law. While these patently bald assertions of conspiracy or unlawful agreement are unsupported by any underlying factual details, the district court should permit Krain to amend to assert such facts on remand. Again, if Krain is unable to do so, dismissal will be proper. Aldabe, supra.

Krain alleged that the County of Orange conspired with the other individual defendants to deprive him of assorted constitutional rights. The district court reasoned that because Judges Brice and O'Leary, acting as agents of the County, were absolutely immune from suit, Krain's conspiratorial allegations failed to state a claim against the County.

Counties may be liable for damages arising from civil rights violations if the alleged deprivation of rights resulted from an official policy, practice, or custom. Monell v. New York Dept. of Social Services, 436 U.S. 658, 694 (1978).

In his complaint, Krain alleged that the denial of his rights arose from a policy or practice of the County of Orange. One such alleged policy was that the County of Orange established "an appointment system for judges that would insure Krain would get a judge who hates Jews." Complaint p 22. Assuming that such a policy exists, as we must, and that it constitutes a "moving force" to the constitutional deprivation, see Monell, 436 U.S. at 694, leave should be granted to allow Krain to present a factual basis in support of his conclusory allegation of a county policy. Absent such a presentation, dismissal will be appropriate. Aldabe, supra.

Krain alleged that the various defendants had conspired, ostensibly under 42 U.S.C. § 1985(3), to harass him because of their alleged hatred of Jews. The district court determined that dismissal was appropriate as Krain had failed to support his discrimination claims with any allegations of fact.

To state a conspiracy claim under section 1985(3), a plaintiff must allege sufficient facts showing the defendants' conduct was motivated by some invidiously discriminatory class-based animus. Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980); see also Slotnick v. Garfinkle, 632 F.2d 163, 165-66 (1st Cir. 1980); Henzel v. Gerstein, 608 F.2d 654, 659 (5th Cir. 1979); Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.), cert. denied, 409 U.S. 1042 (1972).

Here, Krain's conclusory allegations that the defendants "conspired" to victimize Krain because of their hatred for Jews is, at present, wholly insufficient to support a section 1985(3) claim. He may, however, be able to state such a claim upon being given the opportunity to amend his complaint to state sufficient facts in support of his allegations. Absent such facts, dismissal will be appropriate. Aldabe, supra.

IV

CONCLUSION

The district court was faced with a complaint that appeared wholly lacking in merit because of its completely unsubstantiated charges against a large number of judges and lawyers. The district court should dismiss meritless complaints at the pleading stage. However, persons acting as pro pers must be given adequate opportunity to state with specificity their claims and to establish that they are supported by more than bald assertions.

Krain's allegations against the judges appear to address acts outside the scope of their judicial duties. However, these allegations are, at present, wholly conclusory. Krain should be given the opportunity to provide a factual basis for his bald assertions.

With regard to the individual attorneys involved, as private parties they are amenable to suit only to the extent that Krain is able to allege specific facts of a conspiracy between them and the state agents or entities involved. Absent a showing of material facts to support an agreement or meeting of minds between the attorneys and either the judges or the County of Orange, dismissal will be appropriate.

Krain has alleged, albeit in conclusory terms, that a county policy or practice existed which resulted in a deprivation of his constitutional rights. We must accept this allegation as true. Should he be unable on remand to provide a factual basis to support his allegations of a county policy, his cause of action against the County of Orange should be dismissed.

Finally, Krain's allegations of a section 1985(3) conspiracy against the various defendants also should be dismissed unless he is able to plead sufficient factual basis in its support.

If Krain does not plead with specificity and substantiate his claims, nothing in this decision precludes dismissal of the complaint without requiring a response from the defendants or some of them.

REVERSED and REMANDED