Unpublished Disposition, 861 F.2d 268 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 861 F.2d 268 (9th Cir. 1988)

Robert BURNS, Plaintiff-Appellant,v.Bernie DANIELS, Defendant-Appellee.

Nos. 86-2426, 86-2427 and 86-2756.

United States Court of Appeals, Ninth Circuit.

Submitted*  Sept. 12, 1988.Decided Oct. 24, 1988.

Before KOELSCH, CANBY and TROTT, Circuit Judges.


Robert Burns, pro se, a Nevada state prisoner, appeals the district court's denial of his "request for clarification" of its order dismissing his 42 U.S.C. § 1983 action for failure to state a claim upon which relief can be granted. Burns alleged in his complaint that Bernie Daniels, a prison officer, seized, damaged, and refused to return two pictures of personal religious significance to Burns. On appeal, Burns contends the district court erred in dismissing his action for failure to state a claim, denying his request for appointment of counsel, and granting Daniels' motion to set aside entry of default. We affirm the district court's ruling on all counts.

I. Dismissal for Failure to State a Claim

A Section 1983 action must have two elements: the defendant must have acted under "color of law," and the defendant's conduct must have deprived the plaintiff of a federally protected right. Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986). Dismissal of a Section 1983 claim under Fed. R. Civ. P. 12(b) (6) is proper if the complaint lacks an allegation of either of these elements. 2A J. Moore, J. Lucas, G. Grotheer, Moore's Federal Practice p 12.07 [2.-5] (1987).

We review de novo a district court's dismissal of an action under Rule 12(b) (6). McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987). In conducting this review, we must assume the correctness of all the factual allegations made by Burns, the party whose suit the district court dismissed. Shah v. County of Los Angeles, 797 F.2d at 745. A pro se civil rights complaint such as Burns' must be liberally construed, and should not be dismissed unless it appears certain that the plaintiff can prove no set of facts that would create an entitlement to relief. Haddock v. Board of Dental Examiners, 777 F.2d 462, 464 (9th Cir. 1985) (citing Haines v. Kerrer, 404 U.S. 519, 520-21 (1972) (per curiam)).

Daniels' actions in seizing, damaging, and refusing to return Burns' pictures clearly fulfill the Section 1983 condition that the defendant acted under "color of law." See Shw v. County of Los Angeles, 797 F.2d at 746 (Those clothed with the legitimacy of prison authority, purporting to act under that authority, need not have been acting specifically under the scope of that authority in order to have been acting under color of law.) The more difficult issue is whether Burns' complaint alleges deprivation of a federally protected right.

We conclude that it does not. Burns makes no showing in his complaint of religious discrimination, or of substantive interference with his right to practice his religion. Although we must construe a pro se civil rights complaint liberally, vague allegations such as Burns' do not suffice to create a claim of interference with religious freedom in violation of the First and Fourteenth Amendments.

We therefore view this case as an argument over damaged property that happens to be religious. Burns' deprivation of property does not infringe upon a federally protected right because a state post-deprivation remedy is available to compensate him fully for his property loss. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Paratt v. Taylor, 451 U.S. 527, 543 (1981). Burns could have sued Daniels in tort under Nev.Rev.Stat. 341.031 and 41.036.1  Thus, the district court properly dismissed Burns' action for failure to state a claim upon which relief could be granted.

28 U.S.C. § 1915(d) confers discretion on the district court to request an attorney to represent an indigent civil litigant. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (citing Franklin v. Murphey, 745 F.2d 1221, 1236 (9th Cir. 1984)). Courts will only designate counsel under Sec. 1915(d) in "exceptional circumstances." Id. (citing Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963), cert. denied, 375 U.S. 845 (1963)). "A finding of exceptional circumstances requires an evaluation of both 'the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.' " Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

This court reviews the district court's denial of a motion for appointment of counsel for an abuse of discretion. Wilborn v. Escalderon, 789 F.2d at 1331.

Burns has not shown a likelihood of success on the merits. Moreover, Burns has not shown that the complexity of the issues involved in this case is sufficient to require designation of counsel. The district court did not, therefore, abuse its discretion in denying Burns' motion for appointment of counsel.

Under Fed. R. Civ. P. 55(c), an entry of default may be set aside for "good cause shown." Our past opinions reveal that our primary concern in considering whether to grant relief from default is not how good the cause of default is, but whether the movant has a meritorious defense. See Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d at 513. (The underlying concern ... is to determine whether there is some possibility that the outcome of the suit after a full trial will be contrary to the result achieved by default.... A party in default thus is required to make some showing of a meritorious defense as a prerequisite to vacating an entry of default.")

We review the district court's grant of a motion for relief from entry of default for abuse of discretion. Mendoza v. Wight Management, 783 F.2d 941, 945 (9th Cir. 1986). A decision on a motion to set aside an entry of default is not an abuse of discretion unless the court is "clearly wrong" in its determination of "good cause." Id.

Daniels' counsel noted in his motion for relief from default that Daniels had a meritorious defense to Burns' action. Counsel argued that the essence of Burns' claim was loss of property and that such claims were barred by the Supreme Court in Parratt v. Taylor, 451 U.S. 526 (1981), and Hudson v. Palmer, 468 U.S. 517 (1984). In view of precedent, the district court's grant of relief from default was thus within its discretion.



The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)


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


Section 41.031 waives the state of Nevada's immunity from civil liability; section 41.036 lists the requirements for maintaining a tort action against the state. See Nev.Rev.Stat.Ann. Secs. 41031, 41036 (Michie 1986)