Unpublished Disposition, 940 F.2d 1534 (9th Cir. 1991)

MEMORANDUM^** 

Mayrdawna Ane' Davis appeals pro se the district court's dismissal of her civil rights action as frivolous pursuant to 28 U.S.C. § 1915(d) and imposition of a pre-filing order. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and reverse and remand.

* 1915(d) Dismissal

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or fact." Id. Before dismissing a complaint, the district court must give a pro se litigant an opportunity to amend, unless it is absolutely clear the complaint's deficiencies cannot be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

To state a section 1983 claim, the plaintiff must allege facts showing a person acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured by the Constitution. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). We construe Davis's complaint as a Bivens action because the defendants were acting under color of federal law. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

Here, Davis alleged that her rights were violated when the United States Postal Service failed to deliver or misdelivered several pieces of mail she had sent, delayed delivery of her mail to her, and generally harassed her. She alleged that this constituted discrimination against her on the basis of age, sex, race, color, and [national] origin. A denial of equal protection by a federal actor constitutes a violation of due process under the fifth amendment. See High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 570 (9th Cir.), reh'g denied, 909 F.2d 375 (1990). Further, we cannot conclude that Davis's factual allegations are wholly fanciful or delusional. See Hernandez v. Denton, 929 F.2d 1374, 1376 (9th Cir. 1990). Thus, Davis's complaint has an arguable basis in law and fact. See Neitzke, 109 S. Ct. at 1831. Accordingly, we remand for issuance and service of process. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989).

II

Pre-Filing Order

In its order dismissing Davis's complaint, the district court relied in part on an order issued in a previous case, Docket No. Civ-85-216-Misc. The court also ordered that the clerk of the court "observe and comply with the pre-filing review order issued with regard to this plaintiff in Civ. 85-216-Misc." The pre-filing review order provides:

It is ordered that the Clerk is required to refrain from filing any further actions originating from the aforesaid Mayrdawna Ane' Davis, a/k/a Mary Ann Hathorne, until any and all such complaints have been subjected to pre-filing review by a Judge of this District in order to ascertain what merit, if any, such pleadings may contain.

A litigant who is the subject of a pre-filing order can challenge it on direct appeal, see Moy v. United States, 906 F.2d 467, 469-70 (9th Cir. 1990), or when it is enforced against her and the filing of papers is prevented. See West v. Procunier, 452 F.2d 645, 646 (9th Cir. 1971). Thus, because the district court, in part, relied on the pre-filing order to dismiss Davis's case, and ordered that the pre-filing order be complied with in the future, we review the validity of the order itself. See id.

Certain requirements must be met when a district court issues a pre-filing review order. De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990). Specifically, (1) the plaintiff must be given notice and the opportunity to oppose the motion, (2) there must be an adequate record for review, (3) the court must make substantive findings of frivolousness, and (4) the order must be narrowly tailored to curb the abuses of this particular litigant. Id.

Here, the pre-filing order subjects all future filings to pre-filing review on the ground that Davis's past complaints have been incomprehensible. We conclude that this order may be overly restrictive. See id. at 1148 (if restrictive orders are used too freely or are overly broad they may block free access to the courts). Accordingly, we vacate the pre-filing order and remand with instructions that the the pre-filing order be reviewed in light of the De Long requirements.

REVERSED and REMANDED.