Unpublished Disposition, 865 F.2d 264 (9th Cir. 1988)

MEMORANDUM^** 

Appellant David Johnson, Jr., a state prisoner, appeals the district court's dismissal of his pro se 42 U.S.C. § 1983 action as frivolous under 28 U.S.C. § 1915(d).¹  Johnson contends that prison officials deprived him of his constitutional rights under the fourteenth amendment. We review a district court's dismissal of an action as frivolous under 28 U.S.C. § 1915(d) for abuse of discretion. Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 406 (9th Cir. 1985).

We have held that an action is frivolous if it lacks "arguable substance in law and fact." Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984) (adopting the standard articulated in Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976)). We must determine whether "there is a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded." Id. at 1227 (citations omitted). Moreover, " [i]n civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford the plaintiff the benefit of any doubt." Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).

In order to state a claim under section 1983, a plaintiff must allege that: (1) the defendant acted under color of law; and (2) the defendant's conduct deprived the plaintiff of a federally protected right. Parratt v. Taylor, 451 U.S. 527, 535 (1981). Only the presence of the second element is at issue here.

Johnson's complaint arises from an assault and battery that was allegedly perpetrated against him by a cell-mate, Lonnie Keeton. He appears to be claiming that prison officials violated his constitutional right to be secure in his person²  by placing him in the same cell as Keeton. This claim is without legal merit.

The gravamen of Johnson's claim is that prison officials violated California statutory law and a tort duty by placing a known homosexual, Keeton, in the same cell as Johnson, a heterosexual. Contrary to Johnson's contention, the cell assignment does not violate any provisions of the California Administrative Code.³  Moreover, assuming arguendo that prison officials were negligent in pairing Johnson and Keeton in the same "cell, the merely negligent act of an official 'causing unintended loss or injury to life, liberty, or property' does not implicate...." the Due Process Clause. Daniels v. Williams, 474 U.S. 327, 333 (1986).

Moreover, Johnson has alleged no policy of the county upon which to base liability. Accordingly, we find that Johnson's complaint is frivolous under section 1915(d).

AFFIRMED.