Unpublished Disposition, 898 F.2d 156 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 898 F.2d 156 (9th Cir. 1990)

Norman E. TEDDER, Plaintiff-Appellant,v.STATE OF OREGON; United States of America; Michael R.Hogen, Magistrate, Defendants-Appellees.

No. 87-4043.

United States Court of Appeals, Ninth Circuit.

Submitted June 5, 1989.* 

Withdrawn from Submission Aug. 31, 1989.

Resubmitted Sept. 14, 1989.

Decided March 12, 1990.

Before JAMES R. BROWNING and FLETCHER, Circuit Judges, and EUGENE F. LYNCH,**  District Judge.

MEMORANDUM*** 

Norman Tedder appeals the district court's denial of leave to proceed in forma pauperis under 28 U.S.C. § 1915(d). We reverse and remand.

FACTS

Tedder completed a form that prisoners use in filing a 42 U.S.C. § 1983 civil rights complaint pro se. This complaint was accompanied by Tedder's affidavit in support of the complaint, a memorandum of law, and another document detailing defendants' alleged violations of United States and Oregon RICO and civil rights laws. Finally, Tedder added an appendix consisting of photocopied newspaper articles, affidavits, and various opinions and letters relating to Tedder's legal claims in this and previous litigation. Tedder included a request to proceed in forma pauperis. As the district court noted in its order, these materials were voluminous and not very coherent.

The court found Tedder's complaint incomprehensible, and for this reason concluded that the complaint was frivolous and "wholly without merit." The court directed the court clerk to return Tedder's complaint and supporting materials unfiled.

DISCUSSION

A court may deny in forma pauperis status for lack of subject matter jurisdiction when the complaint is founded on "wholly fanciful" factual allegations. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) (Franklin II) (citing Franklin v. Oregon, 662 F.2d 1337, 1342 (9th Cir. 1981)). If the court grants in forma pauperis status, it may dismiss the complaint before summons and complaint are served on the defendants if the complaint is frivolous in the sense of having no "arguable substance in law and fact." Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); Franklin II, 745 F.2d at 1227-28. Unless it is "absolutely clear" that amendment cannot cure the complaint's deficiencies, the court must give a pro se plaintiff the opportunity to amend, Rizzo, 778 F.2d at 530; Franklin II, 745 F.2d at 1228 n. 9, and explain the complaint's deficiencies to the plaintiff, Hernandez v. Denton, 861 F.2d 1421, 1423, 1427 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

The district court found that Tedder could not get past the first step of this road to court because Tedder's complaint was incomprehensible. We disagree. The factual core of Tedder's claim is clear. He alleges that prison officials retaliated against him for his jailhouse lawyering by stealing his legal documents from his cell. When he "filed charges" against these officials, they further retaliated by hiring another inmate to assault him and paid that inmate with drugs they had smuggled into the prison. Tedder finally alleges that a U.S. magistrate and members of the Oregon Attorney General's office conspired to cover up the prison officials' criminal activity and that the former and current Oregon governors were aware of and permitted the cover-up. Tedder asserts that these facts establish a cause of action under various statutes, including 42 U.S.C. § 1983 and federal and Oregon RICO laws. We do not find these claims so frivolous as to deprive the district court of subject matter jurisdiction.

Presuming Tedder's factual allegations to be true, see Franklin II, 745 F.2d at 1228, we also find that Tedder's claims have an arguable substance in law and fact. He does not "recite bare legal conclusions without any supporting facts." See Hernandez, 861 F.2d at 1425 (Schroeder, J.).

We note two other aspects of Tedder's complaint that may be frivolous. Because the complaint was not filed, the district court did not reach these issues. Some of the defendants--the magistrate and the prosecutors--may be absolutely immune from suit on Tedder's claims. Such a finding, if indisputable, would make Tedder's claims frivolous as to those defendants. Second, Tedder has filed several previous civil rights actions, some of which appear to be based on the same facts as the current one. If his current claims duplicate other litigation or are barred by res judicata, they may be frivolous. Hernandez, 861 F.2d at 1426 (Schroeder, J.); Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987) (per curiam).

CONCLUSION

We hold that the complaint is not so frivolous as to deprive the district court of jurisdiction. On remand, we instruct the district court to determine whether Tedder meets the other requirements for in forma pauperis status. If he qualifies, as the record indicates he will, the court should instruct the court clerk to file Tedder's complaint. The district court should further determine which claims are not frivolous either because they are duplicative or barred by res judicata or because the defendants have absolute immunity. The court should require process to be served on the surviving claims. If the court determines on a motion to dismiss that Tedder has stated no claim, the court should grant Tedder leave to amend and briefly explain the complaint's deficiencies. The court must explain the complaint's deficiencies under applicable legal theories for recovery. We suggest that the court may wish to make explicit what constitutes a suitable complaint, including that it must be concise and coherent and that memoranda of law and the other materials in Tedder's appendix are not properly included.

We realize that review of complaints such as the one Tedder tendered is time-consuming and frustrating. However, we conclude Tedder has made his claims clearly enough so that he is at least entitled to have his complaint filed.

Reversed and remanded.


 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

The Hon. Eugene F. Lynch, United States District Judge for the Northern District of California, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3

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