Herman J. Jaindl, Plaintiff-appellant, v. William R. Moran, et al., Defendants-appellants, 12 F.3d 1106 (9th Cir. 1993)

MEMORANDUM^*** 

Herman J. Jaindl appeals pro se the district court's denial of leave to file a 42 U.S.C. § 1983 action in forma pauperis. We review for abuse of discretion, see Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992), and AFFIRM.

28 U.S.C. § 1915(d) allows district courts to dismiss frivolous in forma pauperis actions sua sponte. An action is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Here, Jaindl's proposed Sec. 1983 action seeks damages for loss of property. California jail personnel apparently either misplaced or destroyed personal property and legal documents seized from Jaindl at the time of his arrest. Jaindl specifies no constitutional violation supporting a Sec. 1983 award.

The district court found no arguable legal basis to support Jaindl's action and dismissed it as frivolous. If the action is construed as one based on denial of property without due process, the adequate post-deprivation proceedings provided by California forestall liability. See Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 330-33 (1986). If the action is construed as one based on denial of access to the courts, Jaindl's failure to allege any specific instance of access denial precludes relief in this context. See Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989). The complaint suggests no other constitutional theories for evaluation.

AFFIRMED.