Unpublished Disposition, 917 F.2d 27 (9th Cir. 1990)

Nos. 89-55033, 89-55049 and 89-55072.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and POOLE, Circuit Judges, and BREWSTER,^**  District Judge.

MEMORANDUM

Hahn appeals from the district court's order denying him leave to proceed in forma pauperis in his class action petition challenging restrictions on prisoner access to the law library at the federal prison at Terminal Island, California. Hahn's complaint alleges that federal officials deprived him of his constitutional rights, and seeks declaratory relief, injunctive relief, and damages. The district court had jurisdiction pursuant to 28 U.S.C. § 1343(a) (3). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We review the district court's denial of leave to proceed in forma pauperis for abuse of discretion. Tripati v. First National Bank & Trust Co., 821 F.2d 1368, 1369 (9th Cir. 1987) (Tripati) . We affirm.

Hahn asserts that he has a right to file his complaint in forma pauperis, without prepayment of fees, pursuant to 28 U.S.C. § 1915. The district court denied his application because (1) his complaint was vague and conclusory; (2) his complaint failed to allege any specific injury; and (3) there was no evidence that he attempted to pursue administrative remedies. Hahn argues that the district court abused its discretion by denying his application based on deficiencies in his complaint.

The government correctly points out, however, that "the statutory benefit of 28 U.S.C. § 1915, enabling a party, under some circumstances, to proceed in forma pauperis in the federal courts, is conferred as a privilege only, not as a matter of right." Williams v. Field, 394 F.2d 329, 332 (9th Cir.) (Williams) (emphasis added), cert. denied, 393 U.S. 891 (1968). The district court is not required to allow the filing of a complaint in forma pauperis. Dugan v. Lumpkin, 640 F.2d 189, 189 (9th Cir. 1979). The district court should be given particularly broad discretion to deny in forma pauperis motions in civil actions by prisoners against their wardens. Williams, 394 F.2d at 332.

Under 28 U.S.C. § 1915(d), the district court may dismiss an action if it determines that the suit is frivolous. In addition, we have held that a district court may deny an in forma pauperis petition at the outset if it appears from the face of the complaint that the action is frivolous or without merit. Tripati, 821 F.2d at 1370.

The Supreme Court has ruled that prison inmates have a constitutional right of access to the courts that "requires prison authorities to assist inmates ... by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977). However, the right has limitations. " [T]he Constitution does not guarantee a prisoner unlimited access to a law library. Prison officials of necessity must regulate the time, manner, and place in which library facilities are used." Lindquist v. Idaho State Board of Corrections, 776 F.2d 851, 858 (9th Cir. 1985).

We have held that a prisoner who claims a denial of either an adequate law library or adequate legal assistance is not required to allege an actual injury to court access. However, if the prisoner's claims "do not involve such an allegation, the court must consider whether the plaintiff has alleged an 'actual injury' to court access." Sands v. Lewis, 886 F.2d 1166, 1179 (9th Cir. 1989).

Hahn's complaint was too vague to allow the district court to determine that he alleged inadequacy in the prison's law library. As a result, his complaint must be judged in accordance with the latter standard. The district court properly found that Hahn's complaint alleged no "actual injury." Therefore, it was within the court's discretion to view the complaint as frivolous and to deny the in forma pauperis petition.

AFFIRMED.