Unpublished Disposition, 852 F.2d 571 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 571 (9th Cir. 1988)

No. 87-1879.

United States Court of Appeals, Ninth Circuit.

Submitted June 17, 1988.* Decided July 6, 1988.

Before GOODWIN, Chief Judge, and BARNES and KILKENNY, Circuit Judges.


MEMORANDUM** 

Krug appeals pro se the district court's dismissal of his civil rights action for want of subject matter jurisdiction. The gravamen of Krug's complaint is that he was denied due process when the state court clerks declined to file as untimely his motion before the Missouri Court of Appeals to reconsider its imposition of sanctions against him for having filed a frivolous appeal. Krug contends that the district court erred by sua sponte dismissing his complaint and by having done so without first having issued any summons to the appellees. We affirm.

To state a claim under 42 U.S.C. § 1983, Krug must show that (1) the clerks acted under color of state law; and (2) their conduct deprived him of a federally protected right or interest. See Leer v. Murphy, 844 F.2d 628, 632-33 (CA9 1988). While prisoners have a due process right of access to the courts, the negligent act of a public official does not violate that right. Cf., Daniels v. Williams, 474 U.S. 327, 333 (1986) (prisoner's due process rights not violated where official's negligence results in physical injury to prisoner); Rinker v. Napa County, 831 F.2d 829, 832 (CA9 1987) (policeman's negligent shooting of individual did not implicate victim's due process rights).

Here, Krug has neither alleged nor shown anything more than the simple failure of a state court clerk to file Krug's motion to reconsider. Since a court may sua sponte dismiss a complaint for want of jurisdiction, Fiedler v. Clark, 714 F.2d 77, 78-79 (CA9 1983), and jurisdiction is deemed not to lie where the federal claim is immaterial, insubstantial or frivolous, Franklin v. Oregon Welfare Div., 662 F.2d 1337, 1342 (CA9 1981), the district court did not err by dismissing Krug's complaint. Similarly, there was no error in its dismissal of Krug's complaint without first issuing summons to any of the appellees. See Franklin, 662 F.2d at 1343 (failure to issue summons prior to dismissal not improper where subject matter jurisdiction lacking).

Accordingly, the decision of the district court is AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument per FRAP 34(a) and CA9 Rule 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 CA9 Rule 36-3