Unpublished Disposition, 865 F.2d 1271 (9th Cir. 1989)

MEMORANDUM^** 

Robert Earl Thomas, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 civil rights action. Thomas contends that he was wrongfully deprived of his personal property. We conclude that the district court should not have dismissed the action without allowing Thomas the opportunity to amend his deficient complaint. We reverse and remand.

DISCUSSION

Thomas argues that he was deprived of personal property. He alleges that when he was transferred to Arizona from a Kentucky prison, (1) Arizona officers allowed him to bring only one of his five boxes of belongings; (2) the officers told Kentucky officials to ship the remaining boxes to Arizona; and (3) the Arizona prison refused to accept delivery of the boxes and returned them to Kentucky. He therefore claims that he was deprived of his property by random and unauthorized state action. Since Arizona provides an adequate postdeprivation remedy, see Ariz.Rev.Stat. Sec. 12-821 (1988), we agree with the district court that Thomas failed to state a claim under section 1983. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 543 (1981).

Nevertheless, " [a] pro se litigant must be given the opportunity to amend his or her complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curiam)). Thomas may be able to allege facts that will make the availability of a postdeprivation remedy irrelevant. See, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982) (intentional or deliberate conduct authorized by established state procedure); Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir. 1985) (en banc) ("deliberate, considered, planned, or prescribed conduct"); Wood v. Ostrander, 851 F.2d 1212, 1216 (9th Cir. 1988) ("established [non]procedure" that allows officers to act within a "vacuum of unguided discretion").

We therefore reverse the dismissal of Thomas' action and remand to allow the district court to notify Thomas that his complaint was deficient because Arizona law provides an adequate post-deprivation remedy. See Noll, 809 F.2d at 1448-49. Thomas should be given the opportunity to amend his complaint after being notified of the deficiency. Id.

REVERSED and REMANDED.

ALARCON, Circuit Judge, concurring.

I concur in the majority's conclusion that Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987) compels reversal in this matter for the reason that the trial judge failed to notify Thomas that his complaint was deficient because Arizona provides an adequate post deprivation remedy under Ariz.Res.Stat. Sec. 12-821 (1988).

I write separately to stress that the district court is under no duty to serve as a lawyer for Thomas in this matter. The fact that the majority has concluded that there are other legal theories that might possibly be asserted does not indicate that it is the opinion of this court that facts supporting such hypothetical causes of action exist or that the district court must assist a party in any respect in the drafting of an amended complaint. See Noll, 809 F.2d at 1448-49.