Unpublished Disposition, 934 F.2d 324 (9th Cir. 1989)

MEMORANDUM^** 

Joseph George Finocchi, an Arizona state prisoner, appeals pro se the district court's (1) sua sponte dismissal under 28 U.S.C. § 1915(d) of his civil rights claims against Arizona attorneys general Robert Corbin and Peter Jarosz and (2) grant of summary judgment in favor of Arizona public safety officer Manuel Flores. Finocchi contends that the defendants (1) leaked information concerning Finocchi's willingness to be an informant to other criminal suspects, who then beat him up, and (2) illegally recorded his telephone conversations. The district court had federal question jurisdiction and we have jurisdiction under 28 U.S.C. § 1291. We affirm.

BACKGROUND

In October 1988, Finocchi was convicted in Arizona state court for the sale of narcotics. Prior to his conviction, on July 11, 1988, Finocchi filed this 42 U.S.C. § 1983 action against Arizona Attorney General Robert Corbin, Assistant Attorney General Peter Jarosz, and Public Safety Officer Manuel Flores.

In claim I, Finocchi alleged that in March 1987 (while he was being investigated for the sale of narcotics), Jarosz sent a letter to Finocchi's counsel requesting that Finocchi provide information to the attorney general's office. After Finocchi's attorney advised Jarosz that cooperating would not be in Finocchi's best interests, Flores allegedly leaked information to other criminal suspects that Finocchi was an informant so that he would be attacked and decide to cooperate with the government. Finocchi further alleged that as a result, the other suspects beat him up, causing permanent damage to his eye and that the defendants' conduct violated the eighth amendment.

In claim II, Finocchi alleged that Corbin, Jarosz, and Flores illegally intercepted Finocchi's telephone conversations. Specifically, he states that Flores arranged by telephone to buy drugs from Finocchi and taped the calls, thereby illegally obtaining evidence for the prosecution.

Finocchi does not appeal the district court's disposition of claims III and IV. In claim V, which he preserved for appeal, he alleged that all the defendants conspired to deny him the rights asserted in all four claims in his complaint.

Finocchi sought damages for claims I and II and damages, a preliminary injunction, and dismissal of his criminal case pending in Maricopa County Superior Court for claim V.

On September 6, 1988, the district court (1) sua sponte dismissed Finocchi's claims against Corbin and Jarosz on the ground of absolute prosecutorial immunity, (2) dismissed Finocchi's fifth claim for conspiracy without prejudice because it was conclusory and duplicative and because the attorneys general were immune, and (3) ordered service of process on defendant Flores. On March 31, 1989, the district court granted Flores's motion for summary judgment and dismissed the action. Finocchi timely appeals.

DISCUSSION

This court reviews de novo the district court's sua sponte dismissal of a pro se civil rights complaint under 28 U.S.C. § 1915(d). See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). A district court's grant of summary judgment also is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). On a summary judgment order, the appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court applied the substantive law correctly. Tzung v. State Farm Fire and Cas. Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989). There is no genuine issue of material fact if the party opposing the motion "fail [s] to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In his complaint, Finocchi alleged that prosecutors Corbin and Jarosz and public safety officer Flores leaked information concerning Finocchi's willingness to be an informant to other criminal suspects so that he would be attacked and cooperate with the government. Finocchi further alleged that as a result of this leak, the criminal suspects beat him up and caused permanent damage to his eye. Finocchi argues that the defendants' conduct violated the eighth amendment. On appeal, Finocchi contends that the district court erred in dismissing his claim against Corbin and Jarosz and in granting summary judgment in favor of Flores.

The district court determined that Finocchi's claims against prosecutors Corbin and Jarosz were frivolous because the prosecutors were entitled to absolute immunity from suit. Therefore, the court sua sponte dismissed the claim under section 1915(d) before service of process. Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Id. A district court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies cannot be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). When a plaintiff has an arguable claim, he is entitled to issuance and service of process. Jackson, 885 F.2d at 640.

We decline to address the issue of immunity and, instead, affirm the district court's dismissal because the appellant's claims are factually frivolous. See Neitzke, 490 U.S. at 325. We cannot conceive of any scenario in which government officers would leak information about an individual's cooperation with the government so that that individual will be beaten up by angry conspirators in order to procure that individual's cooperation in an investigation. An individual who is beaten up for participating in a government investigation is highly unlikely to cooperate further. The beating would have the opposite effect of immediately silencing the individual, as happened in this case.

The district court's sua sponte dismissal of Finocchi's complaint against Corbin and Jarosz is affirmed.

The district court granted summary judgment in favor of public safety officer Flores because Finocchi presented no competent evidence that Flores caused the leak in the investigation. We affirm the district court's grant of summary judgment.

In support of his motion for summary judgment, Flores submitted an affidavit containing the following testimony:

5. As of May 15, 1987 (the day Finocchi claims to have been beaten), to the best of my knowledge, no one that I spoke with about Finocchi's offer had discussed the offer with any person outside of law enforcement other than Finocchi's attorney.

6. I have no personal knowledge of a leak in the investigation of Finocchi. Further, I never intended that any such leak take place.

(C.R. 7, Ex. 1).

On December 21, 1988, Finocchi filed his opposition to Flores' motion for summary judgment. In his opposition, which was not submitted under oath, Finocchi contended that because the investigation involved law enforcement, it was "evident that the leak came from within the law enforcement operation." He further contended that "a person named 'Mo' " informed him that, at Flores's request, informant Steve Basin told suspect Richards' girlfriend that Finocchi was "making a deal" with the attorney general's office. Finocchi also contended that "Mo" told Finocchi that Flores wanted Finocchi set up so he would cooperate with the government's investigation of Richards. Finally, Finocchi attached a fragment of an affidavit by Flores, which apparently came from his criminal proceedings and which stated that

[s]ometime in March 1987, it is believed that information was leaked to the Finocchi organization of the ongoing investigation. In that regard, Joseph George Finocchi, through his then attorney Mike Wilkinson, contacted the Arizona Attorney General, about providing information. Mr. Finocchi, however, refused on March 16, 1987 the terms and conditions of cooperating with the state sent to him March 17, 1987 and no agreement was reached.

C.R. 10, Ex. I, Excerpt of Flores' Affidavit at 27.

In the government's reply to Finocchi's opposition, it acknowledged that Flores believed there was a leak in the investigation, but reiterated Flores' sworn statement that he neither caused it nor intended it to occur. (CR 11 at 2).

In opposing a motion for summary judgment, a party cannot rest upon the allegations or denials of his pleading but must set forth specific facts demonstrating that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Here, Finocchi established only that there was a leak in the investigation and presented no competent evidence contradicting Flores' sworn statement that he did not cause the leak. Even incorporating the additional information provided in Flores' affidavit from Finocchi's criminal case, Finocchi presented only multiple hearsay (Mo told me that Basin told him ...) (C.R. 10 at 3) to contradict Flores' statements. Because hearsay evidence does not create a genuine issue of material fact sufficient to withstand a summary judgment motion, the district court properly granted summary judgment in favor of Flores. See Jacobsen v. Filler, 790 F.2d 1362, 1367 (9th Cir. 1986).

In his complaint, Finocchi alleged that Corbin, Jarosz, and Flores illegally intercepted his telephone conversations. Specifically, he states that Flores arranged by telephone to buy drugs from Finocchi and taped the calls, thereby illegally obtaining evidence for the prosecution. The district court granted summary judgment to Flores on this claim as well, and dismissed the claim against Corbin and Jarosz because of absolute immunity.

Telephone conversations may be recorded by a person acting under color of law as long as that person is either a party to the communication or one of the parties has given prior consent to the recording. 18 U.S.C. § 2511(2) (c). In his affidavit, Flores stated that during the drug investigation, the police recorded approximately twenty-two telephone conversations with Finocchi. Flores further stated that each conversation was recorded with the consent of one party. Twenty of the conversations occurred between Finocchi and Flores, and Flores personally recorded the conversations. One conversation was between Finocchi and informant Basin, and Flores recorded the call in Basin's presence and with his consent. The last conversation was between Finocchi and Public Safety Officer Marie Dryer, and Dryer recorded the conversation.

Finocchi presented no evidence to controvert Flores' sworn statement that all telephone calls were taped with the consent of one party to the conversation. Accordingly, the district court properly granted summary judgment in favor of Flores. Fed. R. Civ. P. 56(c); Tzung, 873 F.2d at 1339-40. Moreover, the district court properly dismissed Finocchi's claims against Corbin and Jarosz for the taping of the conversations. Although taping conversations before criminal proceedings are initiated may constitute police conduct such that Corbin and Jarosz are not absolutely immune from prosecution for that conduct, see Gobel v. Maricopa County, 867 F.2d 1201, 1204 (9th Cir.), abrogation on other grounds recognized by, Merritt v. County of Los Angeles, 875 F.2d 765, 769 (9th Cir. 1989), we may affirm the district court's dismissal because the calls were taped with the consent of a party to the conversations and are, therefore, legally frivolous. Neitzke, 490 U.S. at 325.

III. Conspiracy to Commit the Acts Alleged in Claims I and II

Because the illegal telephone recording allegation was not supported by law on the facts, the conspiracy claim with respect to that allegation was also rightly dismissed. The same is true of the conspiracy to cause a leak in the investigation allegation against Flores. Because we find that that same allegation against Corbin and Jarosz is factually frivolous, we also find that conspiracy to commit the allegation is factually frivolous and affirm the district court's dismissal as to them.

CONCLUSION

The district court's sua sponte dismissal of the complaint against Corbin and Jarosz and of the conspiracy claim against Flores is AFFIRMED. The grant of summary judgment in favor of Flores on the investigatory leak and illegal telephone recording allegations is also AFFIRMED.