Marcus W. Fields, Plaintiff-appellant, v. City of Cleveland, Defendant-appellee, 52 F.3d 325 (6th Cir. 1995)

Before: KEITH and MARTIN, Circuit Judges, and SMITH, District Judge.^* 

ORDER

Marcus W. Fields, an Ohio resident, appeals pro se the dismissal of his complaint filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Fields filed a complaint seeking reinstatement and back pay, alleging that he had been discharged from a job as a custodian at Cleveland Hopkins Airport due to race and sex discrimination. He argued that a female co-worker had not been discharged in spite of receiving more disciplinary write-ups than he. The district court dismissed the complaint as frivolous pursuant to 28 U.S.C. § 1915(d).

Upon review, we conclude that the district court abused its discretion in dismissing this complaint under Sec. 1915(d). See Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992). A complaint is properly dismissed as frivolous when it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Complaints which lack an arguable basis in law are those which allege infringement of a legal interest which clearly does not exist. Id., at 327-28. Complaints which lack an arguable basis in fact are those which are apparently delusional. See Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990).

In this case, the district court stated that the complaint lacked an arguable basis in law because it was conclusory. However, the legal right not to be discharged on the basis of race or sex discrimination does exist, and therefore the complaint did not meet the standard for frivolity due to the lack of any legal basis. Nor do the facts alleged appear to be delusional. If the court determines that the allegations are improbable, the case can properly be disposed of by summary judgment after factual development, rather than being dismissed as frivolous. See Denton, 112 S. Ct. at 1733.

Accordingly, the dismissal of this complaint is vacated and the case is remanded for further proceedings. Rule 9(b) (3), Rules of the Sixth Circuit.