Unpublished Disposition, 940 F.2d 1534 (9th Cir. 1989)
Annotate this CaseLayton FAY, Plaintiff-Appellant,v.Michael J. QUINLAN, Director, Federal Bureau of Prisons,Defendant-Appellee.
No. 89-35404.
United States Court of Appeals, Ninth Circuit.
Submitted July 30, 1991.* Decided Aug. 13, 1991.
Before EUGENE A. WRIGHT, BEEZER and WIGGINS, Circuit Judges.
MEMORANDUM**
Layton Fay appeals pro se and in forma pauperis the district court's dismissal of his actions against Michael J. Quinlan, Director of the Federal Bureau of Prisons. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We affirm.
BACKGROUND
Fay filed his original complaint on October 28, 1988 alleging that Michael J. Quinlan, the Director of the Federal Bureau of Prisons, and Chase Riveland, the Secretary of Washington State Department of Corrections, violated his civil rights by incarcerating him on the basis of his race as an Indian. The district court found the complaint conclusory, and ordered Fay to amend his complaint to include sufficient facts to establish federal subject matter jurisdiction. Fay filed an amended complaint on November 9, 1988, but the district court found that it, too, was based on conclusory allegations and ordered the filing of a second amended complaint. Fay filed his second amended complaint on January 11, 1989. This complaint named only Michael J. Quinlan as a defendant, but added the further allegation that Fay's civil rights were violated when he was transferred from federal to state prison. The district court found that Fay had failed to comply with its previous orders to allege sufficient facts to establish federal subject matter jurisdiction and dismissed Fay's complaint without prejudice.
Ordinarily, a dismissal of a complaint, without a dismissal of the action, is not a final order and is not appealable. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987). There is an exception when it appears that the district court intended the dismissal as a final order, or when an amendment cannot cure the legal defect on which the district court relied in dismissing the complaint. See id. It does not appear that the district court intended the dismissal of the complaint in this case as a final order because the complaint was dismissed without prejudice. But cf. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984) (dismissal of an action without prejudice is a final, appealable order), cert. denied, 470 U.S. 1007 (1985). Nevertheless, Fay is a pro se litigant who has already responded twice to the court's orders to amend his complaint. Further, it does not appear that an amendment could cure the major defect in Fay's complaint: The district court rejected his bald assertion that he has a liberty interest in being in federal prison rather than state prison. Fay maintains that he has such a liberty interest. For these reasons, we accept jurisdiction and decide the issue on the merits.
DISCUSSION
An in forma pauperis claim can be dismissed under 28 U.S.C. § 1915(d) if it is frivolous.1 A complaint is frivolous if "it lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). We review a determination that a claim is frivolous de novo. Coakley v. Murphy, 884 F.2d 1218, 1221 (9th Cir. 1989).2
A pro se litigant's civil rights pleadings must be construed liberally to afford him the benefit of any doubt when determining whether a valid cause of action has been stated. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Even with the most liberal construction of Fay's complaint, however, it is exceedingly difficult to determine the basis of his claims. It appears that Fay is alleging that Quinlan, acting under color of law, violated Fay's civil rights by transferring him from Federal to State prison. Though the support for this claim is almost incoherent, the district court analyzed it under both 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. at 397 (1971). Section 1983 does not apply to actions by federal officers acting under color of federal law. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). The district court, therefore, was correct in its conclusion that an action could not be maintained under section 1983 against Michael J. Quinlan in his capacity as Director of the Federal Bureau of Prisons.
In Bivens, the Supreme Court recognized a cause of action against federal officers for violations of constitutional rights. Bivens, 403 U.S. at 397. Fay appears to allege that his constitutional right to due process was violated because he had a liberty interest in not being transferred from a federal prison to a state prison. Though it is not completely clear from the face of the complaint, Fay seems to argue that Quinlan is liable as the Director of the Federal Bureau of Prison under the theory of respondeat superior. This court has recently held, however, that the doctrine of respondeat superior is inapplicable to Bivens actions. Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991).
Moreover, when officials have discretion to transfer prisoners no liberty interest exists in remaining in a particular location. Olim v. Wakinekona, 461 U.S. 238, 250 (1982). Fay has cited no authority which limits the discretion of the Director of the Federal Bureau of Prisons to transfer him. No liberty interest is violated if there is "a failure to allege a restriction on the authorities' right to transfer." Coakley v. Murphy, 884 F.2d 1218, 1221 (9th Cir. 1989). Olim and Coakley dealt with interstate and intrastate transfers of prisoners, but they do not purport to limit the scope of their holdings to those circumstances. Fay has cited no authority and has suggested no reason why the analysis of these decisions should not apply to transfers from federal prisons to state prisons as well. Thus, Fay's claim fails even if it is not based on respondeat superior.
Fay also alleges that the United States does not have jurisdiction over him because he is an Indian and the Indian people never gave their consent to be governed by the United States. The United States has plenary power over the Indian tribes, however, and can punish them for violations of federal law for which no express exception to jurisdiction has been granted. United States v. Farris, 624 F.2d 890, 893-94 (9th Cir. 1980), cert. denied, 449 U.S. 1111 (1981). Fay's complaint alleges no express exception to the general rule of jurisdiction, and, therefore, his claim fails.
Fay attempts to make other claims, but they consist almost wholly of conclusory allegations supported by irrelevant authority. The district court gave Fay two opportunities to amend his complaint and gave the final version the liberal construction it was due before it dismissed it as frivolous. Fay has made no arguments which can be supported by law or fact, and his complaint, therefore, is frivolous. Neitzke, 490 U.S. at 325. Accordingly, we hold the district court did not err in its determination.
CONCLUSION
We AFFIRM the judgment of the district court.
The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
In its order of dismissal, the district court did not state whether it dismissed Fay's action because it failed to state a claim under Federal Rule of Civil Procedure 12(b) (6) or whether it dismissed it because it was frivolous under 28 U.S.C. § 1915(d). We may, however, affirm a district court on any legal ground supported by the record. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Because the district court did not follow the correct procedure for dismissing a claim under Rule 12(b) (6) as required by Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir. 1970), we assume here that the district court dismissed the complaint under 28 U.S.C. § 1915(d) and review accordingly
There is a discrepancy in Ninth Circuit law as to what standard of review applies to dismissals of frivolous claims under 28 U.S.C. § 1915(d). Some cases hold that we review for an abuse of discretion. See, e.g., Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 406 (9th Cir. 1985); Gifford v. Tiernan, 670 F.2d 882, 885 (9th Cir. 1982), appeal dismissed and cert. denied, 459 U.S. 804 (1982); Torres v. Garcia, 444 F.2d 537 (9th Cir. 1971) (per curiam). Other cases, however, hold that we review de novo. See, e.g., Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Coakley v. Murphy, 884 F.2d 1218, 1221 (9th Cir. 1989); Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985). To give the appellant the benefit of any doubt that might arise from this discrepancy, we review de novo here
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