Unpublished Disposition, 908 F.2d 978 (9th Cir. 1990)

Robert WILLETTE, Plaintiff-Appellant,v.Sam LEWIS, Col., Director of ADOC, John Hallahan, RobertHilton, and R. Austin, Defendants-Appellees.

No. 89-15229.

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1990.^* Decided July 18, 1990.

Before HUG and SCHROEDER, Circuit Judges, and JAMES A. VON DER HEYDT,^**  District Judge.

MEMORANDUM^*** 

Plaintiff-Appellant Willette, an inmate at the Arizona State Prison in Tucson, brought this action pro se under 42 U.S.C. § 1983 alleging that prison officials wrongly punished him when he refused to submit to urinalysis drug testing. The district court granted Willette's application to proceed in forma pauperis but, before issuing process, the court dismissed Willette's complaint as legally and factually insufficient. Willette appeals. We affirm in part, but reverse in part and remand with respect to several of Willette's claims. An insufficient pro se in forma pauperis complaint may be dismissed sua sponte before issuance of process only where the action is "frivolous" within the meaning of 28 U.S.C. § 1915(d). Further, such a complaint may be dismissed without leave to amend only where it is absolutely clear that the complaint's deficiencies cannot be cured by amendment. With respect to several of Willette's claims, we find that neither of these conditions has been satisfied.

A complaint filed in forma pauperis under 28 U.S.C. § 1915(a) may be dismissed sua sponte before issuance of process "if the allegation of poverty is untrue, or if ... the action is frivolous or malicious." 28 U.S.C. § 1915(d). Sua sponte dismissal before issuance of process confronts the judicial preference for development of issues in an adversarial context. The adversarial process "crystallizes the pertinent issues and facilitates appellate review of a trial court dismissal by creating a more complete record of the case." Neitzke v. Williams, 109 S. Ct. 1827, 1834 (1989) (citation omitted). Moreover, adversarial proceedings provide the plaintiff with notice of the legal theory underlying the defendant's challenge and a meaningful opportunity to oppose dismissal on legal grounds or to clarify deficient factual allegations. Id. Restrictions placed on sua sponte dismissal of in forma pauperis complaints ensure that indigent plaintiffs are afforded the same "practical protections against unwarranted dismissal generally accorded paying plaintiffs under the Federal Rules." Id.

When evaluating a complaint to determine whether an action is frivolous within the meaning of section 1915(d), the plaintiff's sworn allegations are liberally construed and presumed to be true. Franklin v. Murphy, 745 F.2d 1221, 1228, 1230 (9th Cir. 1984). The action may be dismissed as frivolous where the complaint recites bare legal conclusions without supporting facts, postulates events and circumstances of a wholly fanciful kind, or conflicts with facts of which the district court may take judicial notice. Franklin, 745 F.2d at 1228. The action also 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, 745 F.2d at 1228, or where the complaint "lacks an arguable basis either in law or in fact," comprising only "inarguable legal conclusion [s]" or "fanciful factual allegation [s]" that are "clearly baseless." Neitzke, 109 S. Ct. at 1831, 1833. In contrast, an action may not be dismissed as frivolous merely because the complaint fails to state a claim upon which relief can be granted within the meaning of Federal Rule of Civil Procedure 12(b) (6), as where the complaint "raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff." Id. at 1833, 1834 (emphasis added).

Further, before dismissal, a pro se plaintiff proceeding in forma pauperis must be given an opportunity to amend the complaint unless it appears absolutely clear that the complaint's deficiencies cannot be cured by amendment. Franklin, 745 F.2d at 1228 n. 9. The district court should briefly explain the deficiencies so that the pro se plaintiff will be better equipped to amend correctly. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

Willette challenges on several grounds the decision of prison officials to sanction him for refusing to submit to urinalysis drug testing. We find that Willette lacks standing to bring several of his claims and, consequently, that the district court correctly dismissed these claims without issuance of process or leave to amend.¹ 

To establish standing, a plaintiff must demonstrate that (1) a distinct and concrete actual or threatened injury to the plaintiff, (2) traceable to the defendant's allegedly illegal conduct, (3) is likely to be redressed by the requested relief. Nat'l Wildlife Federation v. Burford, 871 F.2d 849, 852-54 (9th Cir. 1989); Darring v. Kincheloe, 783 F.2d 874, 876-77 (9th Cir. 1986). Willette did not submit to the test and, consequently, no evidence was gathered through testing which could be used against him. We find that Willette lacks standing to bring due process claims based upon the alleged unreliability of the testing procedure or to bring self-incrimination claims based upon speculation that, in the future, Willette might be tested, the test might yield adverse results, and those results might be used by prosecutors as evidence against him. See Darring, 783 F.2d at 877 (to establish standing based on threat of prosecution, plaintiff must allege a threat that is credible, not imaginary or speculative); Storms v. Coughlin, 600 F. Supp. 1214, 1225-26 (S.D.N.Y. 1984) (claims dismissed without prejudice because plaintiffs who had not been disciplined for drug use lacked standing to seek injunction prohibiting officials from relying on allegedly unreliable drug test); Anable v. Ford, 653 F. Supp. 22, 32-34 (plaintiff who had not been accused of drug or alcohol use lacked standing to challenge selective drug testing in the public schools where prospect that drug test would yield adverse results leading to prosecution was merely "speculation and conjecture"), modified on other grounds, 663 F. Supp. 149 (W.D. Ark. 1985).

While Willette's other claims suffer numerous infirmities as presently framed,²  we find that Willette has standing to bring them. See, e.g., Everett v. Napper, 833 F.2d 1507 (11th Cir. 1987) (firefighter who had refused to submit to urinalysis permitted to challenge selective drug testing of firefighters on Fourth Amendment, substantive due process, and equal protection grounds); Goff v. Nix, 626 F. Supp. 736, 746 (S.D. Iowa 1984) (prisoner who refused to submit to a visual body cavity search had standing to challenge such searches on Fourth Amendment grounds), rev'd on other grounds, 803 F.2d 358 (8th Cir. 1986), cert. denied, 484 U.S. 835 (1987); Justice v. Elrod, 649 F. Supp. 30, 31 (N.D. Ill. 1986) (plaintiff who refused to submit to courthouse search had standing to challenge such searches on Fourth Amendment grounds), aff'd, 832 F.2d 1048 (7th Cir. 1987).

We agree with the district court's conclusion that these claims as presently framed are factually threadbare and legally tenuous. The claims are not, however, merely inarguable legal conclusions or bare legal conclusions bereft of supporting facts. Further, it is not absolutely clear that the deficiencies in Willette's remaining claims cannot be cured by amendment.

We hold that Willette's remaining claims, while infirm, are not sufficiently flawed to justify sua sponte dismissal without issuance of process or an opportunity to amend. Accordingly, dismissal of Willette's remaining claims is reversed and the case is remanded to the district court with instructions to issue process.

AFFIRMED in part, REVERSED in part, and REMANDED.