Unpublished Disposition, 896 F.2d 1370 (9th Cir. 1986)

MEMORANDUM^** 

Terrance Andrew Mackie, a Montana state prisoner, appeals pro se the district court's dismissal of his civil rights complaint as frivolous and denial of his motion for leave to proceed in forma pauperis. Mackie sued numerous state judges, court officers and an assistant state attorney general, alleging the four-and-one-half-year delay in ruling on his state tort action violated his rights under federal and state constitutions and state statutory law.

In April, 1984, Mackie filed a complaint under the Montana Tort Claims Act alleging that prison officials negligently lost his personal property and deprived him of due process and equal protection by attempting to conceal this loss. On May 3, 1984, Judge Boyd issued an order granting Mackie leave to proceed in forma pauperis.

After numerous delays and failed attempts at discovery, Mackie filed a petition for writ of supervisory control in the Montana Supreme Court. The Court summarily dismissed this motion on December 9, 1986. Mackie then appealed the dismissal to the United States Supreme Court. He also filed with the Supreme Court an emergency motion for a stay of the judgment and orders of the Montana Supreme Court. The Supreme Court denied both the petition for certiorari and the emergency motion.

Shortly thereafter, Mackie filed this civil rights complaint in federal district court. He named as defendants various court officials from the state district and supreme courts and an assistant state attorney general.¹  Mackie sought declaratory and injunctive relief.²  Mackie also applied to the district court for in forma pauperis status. The district court denied the motion and dismissed the complaint as frivolous. Mackie timely appeals.

ANALYSIS

Jurisdictional issues must be raised by this court sua sponte. MacKay v. Pfeil, 827 F.2d 540, 542 (9th Cir. 1987). This court reviews independently the question of whether or not the district court erred in dismissing a case on ripeness grounds. Standard Alaska Production Co. v. Schaible, 874 F.2d 624, 625 (9th Cir. 1989). The district court's denial of a motion to proceed in forma pauperis is reviewed for abuse of discretion. Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). The district court's determination that a complaint is frivolous is reviewed de novo. Id.

The district court dismissed Mackie's complaint as frivolous because it was premature and in the wrong court. Mackie contends that his complaint is not premature because the four-and-one-half-year delay irrevocably damaged his state tort matter. Mackie also contends that he is not in the wrong court because the relief he seeks is independent of the state court matter. These contentions lack merit.

"Federal district courts, as courts of original jurisdiction, may not serve as appellate tribunals to review errors allegedly committed by state courts." (emphasis in original) MacKay, 827 F.2d at 543. Therefore, a federal district court has no subject matter jurisdiction to review a state court's final judgments. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983). The federal district court also lacks jurisdiction to review those elements of the plain-tiff's complaint that are "inextricably intertwined" with the state court's decision. Id. at 486-87. This jurisdictional bar applies to civil rights actions. Worldwide Church of God v. McNair, 805 F.2d 888, 893 n. 4 (9th Cir. 1986).

Mackie's complaint, in part, seeks review of a final state court judgment. He alleges that the justices of the Montana Supreme Court³  displayed "discriminatory bias" by failing to properly adjudicate or grant his petition for supervisory control. He seeks a declaratory judgment that these defendants violated federal and state constitutional and statutory law. He also requests an injunction substituting court personnel and ordering those newly-appointed officials to rehear the petition for writ of supervisory control.

Although Mackie's complaint is couched in constitutional terms, he is essentially seeking a review of the Montana Supreme Court's decision. This the district court cannot do. See Feldman, 460 U.S. at 486-87. Therefore, dismissal was proper as to the Montana Supreme Court defendants.⁴  See Samarzia v. Clark County, 859 F.2d 88, 91 (9th Cir. 1988) (appellate court can affirm on any basis supported by the record).

To state a section 1983 claim, the plaintiff must allege facts which show a deprivation of a right, privilege or immunity secured by the Constitution by a person acting under color of state law. 42 U.S.C. § 1983. A state tort claim is " [a]rguably ... a species of 'property' protected by the Due Process Clause." Martinez v. California, 444 U.S. 277, 281-82 (1980). Thus, a suc-cessful attempt by the defendants to deprive a potential plaintiff of his right to bring a civil action may amount to an actionable deprivation of federally protected rights. Dooley v. Reiss, 736 F.2d 1392, 1394-95 (9th Cir.), cert. denied, 469 U.S. 1038 (1984).

Ripeness requires an evaluation of "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). "A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final." Standard Alaska Production Co., 874 F.2d at 627.

Mackie alleges that the defendants conspired to prevent him from obtaining relief in his state court tort action. If the defendants successfully deprived Mackie of his tort claim, this allegation would state an actionable section 1983 claim. See Dooley, 736 F.2d at 1394-95. Yet, Mackie seeks review while the state court action is still pending. Because Mackie cannot claim that he was prevented from obtaining relief until his tort claim is litigated, his complaint is not ripe for judicial review.⁵  See Standard Alaska Production Co., 874 F.2d at 627. But cf. Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554, 559-60 (7th Cir. 1986) (although deprivation of a civil right implies "more than delay," ripeness found in "unusual" case involving divorce suit by prisoner where there was a delay and state judge refused to grant divorce unless prisoner was physically present).

Unlike the situation in Lynk, Mackie, despite the delay, is not precluded from having his case heard on the merits in state court. Therefore, the district court properly dismissed the complaint as to the remainder of the defendants.

The district court denied Mackie's motion for leave to proceed in forma pauperis because the complaint was frivolous. Mackie contends that the district court abused its discretion in denying the motion without considering or making reference to his financial status. Mackie's contention lacks merit.

28 U.S.C. § 1915(a) provides that the district court "may authorize the commencement ... of any suit ... without prepayment of fees and costs ... by a person who makes affidavit that he is unable to pay such costs...." However, the district court may deny leave to proceed in forma pauperis at the outset if the action is frivolous. Tripati, 821 F.2d at 1370. A claim is frivolous if it "lacks an arguable basis in law or in fact." Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). The claim may also be frivolous if the "defense is complete and obvious from the face of the pleadings or the court's own records." Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).

The district court properly denied Mackie's motion. The court lacked subject matter jurisdiction to review the claims against the Montana Supreme Court defendants. See supra at 3-4. The claims against the remainder of the defendants were premature for review. See supra at 5-6. Therefore, the defense was complete and obvious from the face of the pleadings. See Franklin, 745 F.2d at 1228.

The judgment is AFFIRMED.