Unpublished Disposition, 876 F.2d 898 (9th Cir. 1989)

MEMORANDUM^** 

Randall Wiideman, a Nevada state prisoner, timely appeals pro se the district court's dismissal of his civil rights actions. In No. 87-1993, Wiideman claims that Wanda McMillion, a private citizen, conspired with a Nevada official, detective Frank J. Perez, to steal his vehicle, thus violating his civil rights under 42 U.S.C. §§ 241, 242, 1985, and 1986, and his due process rights under the fourth, fifth, and fourteenth amendments. In No. 87-1994, Wiideman claims that Renee McGuigan, a private citizen, conspired with Perez to deprive him of his residence, automobile, furniture, applicances, clothing and other personal property, in violation of his same civil rights and due process rights. The district court dismissed his in forma pauperis complaints in both actions, under 28 U.S.C. § 1915(d), as "conclusory, frivolous and inadequate to state a claim upon which relief can be granted." On this consolidated appeal from both actions, Wiideman contends that the district court erred by dismissing his in forma pauperis complaints: (1) because appellees conspired to deprive him of his property without due process of law; (2) without allowing him to amend his complaints prior to dismissal; and (3) prior to service of the summonses for process. We have jurisdiction over this timely consolidated appeal pursuant to 28 U.S.C. § 1291 because the district court intended the dismissal of Wiideman's complaints to dispose of his civil rights actions. See Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987). We affirm.

* A frivolous in forma pauperis action is one lacking arguable basis in law or in fact. Neitzke v. Williams, 57 U.S.L.W. 4493 (U.S. May 1, 1989) (No. 87-1882); Franklin v. Murphy, 745 F.2d 1221, 1227 (9th Cir. 1984) (Franklin II) . An in forma pauperis action may be dismissed as frivolous where the defense is complete and obvious from the face of the pleadings or the court's own records. Franklin II, 745 F.2d at 1228. The trial court's determination of the frivolity of pro se prisoners' civil rights actions under section 1915(d) is "an assessment of the substance of the claim presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded." Id. at 1227 (internal quotation omitted).

We review de novo the district court's judgment dismissing as frivolous Wiideman's in forma pauperis complaints. Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (district court's determination that plaintiff's complaint lacked arguable substance in law or fact is reviewed de novo as a question of law).

II

Wiideman first contends that the district court erred by dismissing his in forma pauperis complaints because appellees conspired to deprive him of his property without procedural due process.¹  An action under section 1983 requires a plaintiff to allege facts which show: (1) that defendants have acted under color of state law or authority; and (2) that defendants have deprived plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds Daniels v. Williams, 474 U.S. 327 (1986); Smith v. City of Fontana, 818 F.2d 1411, 1415 n. 5 (9th Cir.), cert. denied, 108 S. Ct. 311 (1987).

If an intentional deprivation of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, pre-deprivation procedures are simply "impracticable" since the state cannot predict when such deprivation will occur. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt, 451 U.S. at 541; Merritt v. Mackey, 827 F.2d 1368, 1372 (9th Cir. 1987). Such deprivations of property by a state employee do not constitute violations of the procedural requirements of the due process clause of the fourteenth amendment, provided that meaningful post-deprivation remedies for the loss are available to protect the victim's procedural due process rights. Hudson, 468 U.S. at 533; Wood v. Ostrander, 851 F.2d 1212, 1215 (9th Cir. 1988).

Appellant does not argue that Nevada tort law is inadequate to remedy the wrongs he alleges. From all that appears in his complaints, moreover, Wiideman chose not to pursue his post-deprivation remedies at the state level.²  The fact that more remedies may have been available under section 1983 than were available under state procedures is irrelevant. See Lake Nacimiento Ranch Co. v. County of San Luis Obispo, 841 F.2d 872, 879 (9th Cir. 1987), cert. denied, 109 S. Ct. 79 (1988). Because Wiideman failed to pursue meaningful post-deprivation remedies available through state procedures, he simply has no basis in law for a claim under section 1983 alleging a deprivation of property in violation of the procedural requirements of the due process clause. See Hudson, 468 U.S. at 533. Consequently, the district court did not err in concluding that Wiideman's in forma pauperis actions lack arguable basis in law and in fact and are frivolous.

III

Wiideman contends, however, that the district court erred by dismissing his in forma pauperis complaints without allowing him to amend prior to dismissal. It is true that pro se plaintiffs proceeding in forma pauperis must "be given an opportunity to amend their complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987) (quoting Franklin II, 745 F.2d at 1228 n. 9). In the present case, however, Wiideman has not alleged facts in support of any viable claims entitling him to relief and no amendment which Wiideman could reasonably be expected to make can overcome or cure the deficiencies of his complaints.

As previously discussed, Wiideman's due process claims are frivolous because they lack arguable basis in law and in fact. Wiideman was specifically asked, in an item in the form civil rights complaints he completed, whether he had pursued any state administrative or judicial remedies. From his answers, it is clear that he did not. Remanding to allow for amendment of his complaints would be futile because it is "absolutely clear" that the deficiencies in his complaints could not be cured.

As to his other claims, Wiideman simply has no standing to sue under 28 U.S.C. §§ 241 and 242, as a matter of law, and no amendment to the factual allegations could give Wiideman standing to pursue an action on these federal criminal statutes. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (these criminal provisions provide no basis for civil liability). Moreover, Wiideman has no claim for relief under 42 U.S.C. §§ 1985 and 1986, as a matter of law, because he cannot show the existence of a conspiracy with invidious racial or class-based animus to deprive him of his civil rights.³  See id.; DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 F.2d 327, 332 (9th Cir. 1979).

IV

Wiideman's final contention is that the district court erred by dismissing his in forma pauperis complaints prior to service of the summonses. However, a court may dismiss a frivolous in forma pauperis action sua sponte before service of process on the defendants. Franklin II, 745 F.2d at 1225-26, 1227. See also Rizzo, 778 F.2d at 529 (district court may engage in pre-service review). As previously discussed, the district court was correct in dismissing Wiideman's complaints as frivolous. Consequently, the district court was also correct in dismissing his complaints before service of process.⁴ 

AFFIRMED.