Unpublished Disposition, 889 F.2d 1094 (9th Cir. 1989)

MEMORANDUM^** 

Appellant timely appeals the district court's dismissal, under 28 U.S.C. § 1915(d), of his 42 U.S.C. § 1983 action. We review de novo the district court's conclusions of law. We reverse and remand.

The legal component of the section 1915(d) frivolity standard is similar to the test for dismissal of pro se complaints for failure to state a claim. See Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). A complaint is not frivolous if "there is a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded." Franklin, 745 F.2d at 1227 (quoting Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976)). Hernandez's sworn allegations are entitled to a presumption of truth.

Under this standard, Hernandez's amended complaint is not frivolous. He does not postulate "events and circumstances of a wholly fanciful kind." See Franklin, 745 F.2d at 1228 (citing Crisafi v. Holland, 655 F.2d 1305, 1307-08 (D.C. Cir. 1981) (per curiam)). He alleges that while incarcerated at the California Medical Facility at Vacaville, California, he was physically assaulted by employees of the Medical Facility who were acting at the direction of the Superintendent of the facility. Hernandez specifically alleges that appellee MacFadden falsely accused him of refusing to take his drugs and then, with other officers of the Medical Facility, beat, kicked, unclothed, and drugged him. These allegations, if taken as true, state a colorable claim for a section 1983 violation. Therefore, this case is

REVERSED and REMANDED.