Unpublished Disposition, 878 F.2d 1438 (9th Cir. 1989)

MEMORANDUM^** 

BACKGROUND

Luca, an Arizona state prisoner, alleged in his pro se complaint that the loss of tee shirts contained within his Christmas package and the opening of his mail outside his presence violated his civil rights under 42 U.S.C. § 1983.

Luca was granted permission to proceed in forma pauperis. However, before process was issued and served, the district court dismissed sua sponte Luca's Christmas package claim. Luca's claim concerning mail tampering was also dismissed but leave to amend was granted. Luca failed to amend his complaint and his action was dismissed.

Notice of appeal was timely filed. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982), and we affirm.

ANALYSIS

An in forma pauperis action may be dismissed sua sponte prior to service of process if the action is frivolous.¹  28 U.S.C.A. Sec. 1915(d) (as amended, 1949); Neitzke v. Williams, 57 U.S.L.W. 4493 (U.S. May 1, 1989); Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984). A complaint is frivolous if it lacks arguable substance in law or fact. Neitzke, 57 U.S.L.W. at 4495; Franklin, 745 F.2d at 1225.

We review the district court's sua sponte dismissal of Luca's property claim de novo. Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987).

The gravamen of Luca's contention is that he never received "two brand-new tee shirts" which were misplaced or stolen by inmates working in the mail or property room.

"To make out a cause of action under [42 U.S.C.] Sec. 1983 [Luca] must plead (1) the defendants [were] acting under color of state law [and] (2) deprived [Luca] of rights secured by the Constitution...." Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1985), cert. denied, 479 U.S. 1054 (1987). Even if we assume that Luca's property claim satisfies the first element, he has not alleged the deprivation of a constitutionally protected right. The negligent or intentional deprivation of an inmate's personal property does not rise to the level of a constitutional violation when adequate state post-deprivation remedies are available. Parratt v. Taylor, 451 U.S. 527, 539 (1981) (negligent deprivation); Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional deprivation). Adequate state remedies were available to Luca in this case. See, e.g., A.R.S. Secs. 12-301, et seq. (state cause of action for replevin).

As the district court concluded, Luca's claim for loss of property is not a cognizable federal claim. It is at best a state claim which should have been brought in state court. Thus, it is clear that Luca cannot prove any facts which would entitle him to relief in federal court. See Franklin, 745 F.2d at 1228. The district court properly dismissed this claim as frivolous. See Franklin, 745 F.2d at 1228.

Luca's mail tampering claim was dismissed with leave to amend. By its order dismissing the claim, the district court informed Lucas of the deficiencies of his complaint. The complaint lacked any specific allegation to suggest a constitutional violation. It contained only conclusory allegations.

Conclusory allegations cannot supply the essential factual elements of a claim which are not initially pleaded in a civil rights action. Ivey v. Board of Regents of University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Thus, a pro se in forma pauperis complaint may be dismissed as frivolous if it contains only conclusory allegations without sufficient suggestion of facts to support the claims asserted. Franklin, 745 F.2d at 1228. See Neitzke, 57 U.S.L.W. at 4495.

Luca alleged that a letter from the Arizona State Bar was opened outside of his presence in violation of his constitutional rights under the fourteenth amendment. Just who allegedly opened the letter is unclear.

Mail sent to prisoners from public agencies or officials need not be opened in the prisoner's presence. See Mann v. Adams, 846 F.2d 589, 590 (9th Cir. 1988). In contrast, incoming correspondence from an attorney may only be opened in the prisoner's presence. Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974). However, in order for an attorney's communication to receive this extra level of protection, the letter must be clearly marked as originating from an attorney. See, e.g., id. at 576.

A review of Luca's allegations in light of the above-referenced authority illustrates the deficiencies of Luca's complaint. Not only did Luca fail to allege conduct by a government official, but his allegations fail to establish whether the communication from the Arizona State Bar was an attorney-client communication and whether it was clearly marked as such. Under these circumstances, the district court's dismissal of Luca's mail tampering claim was proper. The claim was frivolous. Luca alleged only "bare legal conclusions" in support of this claim, and he failed to set forth any specific factual allegations which would suggest a constitutional violation had occurred. See Neitzke, 57 U.S.L.W. at 4495; Franklin, 745 F.2d at 1228. Luca was given an opportunity to amend his complaint, together with an explanation of the complaint's deficiencies. Luca chose to ignore the court's invitation to amend. The court did not err in dismissing the action.

AFFIRMED.