Unpublished Disposition, 872 F.2d 428 (9th Cir. 1989)

Memorandum^** 

Ronald Lamerson, a California state prisoner, appeals pro se the district court's dismissal of his section 1983 action as frivolous. Although the complaint is unclear, Lamerson apparently alleged that while incarcerated, and during an interdepartmental transfer, he was deprived of personal property pursuant to the policies and practices of the Department of Corrections. Lamerson named as defendants, the Department of Corrections, the State Board of Control, and an individual he identified only as "Attn. Gary Hoig."

A federal magistrate granted Lamerson in forma pauperis status, but dismissed the complaint sua sponte because it did not contain a short and plain statement of Lamerson's claim, as required by Fed. R. Civ. P. 8(a). The magistrate granted Lamerson thirty days to amend his complaint and instructed him on how to cure the pleading's deficiencies.

Lamerson then filed an amended complaint naming all of the same defendants as in the first complaint, and adding the State of California as a defendant. In this complaint, Lamerson alleged that defendant Gary Hoig was an attorney for the State Board of Control. The magistrate reviewed the amended complaint and recommended that it be dismissed as frivolous on the grounds that (1) the Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties against a state or state agency, and (2) although Lamerson did not allege whether attorney Hoig is a public defender, state-appointed private attorney, or district attorney, Hoig either did not act under color of state law (if he was a public defender or state-appointed attorney) or he was immune from suit (if he was a prosecutor).

Following a de novo review, the district court adopted the magistrate's findings and recommendations in full and dismissed the complaint as frivolous. We affirm.¹ 

A district court may not dismiss an in forma pauperis complaint unless it has no arguable substance in law or fact. Hernandez v. Denton, 861 F.2d 1421, 1425 (9th Cir. 1988). However, a district court does have authority to dismiss sua sponte, pursuant to 28 U.S.C. § 1915(d), complaints that are frivolous or contain a complete defense to the action. Id. A complaint is frivolous if it recites bare legal conclusions without any supporting facts. Id. When a court does dismiss a pro se complaint as frivolous for failure to state a claim, the court should draft a few sentences explaining to the plaintiff the deficiencies and allow the plaintiff to amend. Id. at 1423. This court reviews section 1915(d) dismissals de novo. Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987) (citing Rizzo v. Daw-son, 778 F.2d 527, 529-30 (9th Cir. 1985)).

The Eleventh Amendment serves as a jurisdictional bar to suits brought in federal court against a state by its own citizens or citizens of another state, unless the state has consented to suit. Welch v. State Dept. of Highways and Public Transportation, 107 S. Ct. 2941, 2945 (1987). A suit against a state agency is considered a suit against the state and therefore is barred by the Eleventh Amendment. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984); Shaw v. California Dept. of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir. 1986). The jurisdictional bar applies regardless of the nature of the relief sought. Pennhurst State School, 465 U.S." 100-101. Here, because the Department of Corrections and the State Board of Control are state agencies, see Cal.Gov't Code Sec. 11000 (West 1980), and the State has not consented to the suit, the State, the Department of Corrections, and the State Board of Control enjoy sovereign immunity and therefore cannot be sued under section 1983. Welch, 107 S. Ct. at 2945; Pennhurst State School, 465 U.S. at 100; Shaw, 788 F.2d at 603. Therefore, the district court correctly dismissed the claim against these defendants.

The same cannot be said about the claim against Gary Hoig only because it is not at all clear who Gary Hoig is. In Lamerson's first complaint he identified Hoig simply as "attn. Gary Hoig." In the amended complaint, Lamerson identified Hoig as an attorney employed by the State Board of Control. However, it appears that a decision rendered by the State Board of Control regarding Lamerson's claims was courtesy copies to a Gary Hoig, of the Department of Corrections. Without further clarification as to Hoig's identity, his entitlement to immunity is unclear.

However, this court may affirm on any bases in the record. See Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir. 1986). Here, the record reflects that this complaint was properly dismissed as frivolous as to Hoig, because it contained only bare legal conclusions without any supporting facts. See Hernandez, 861 F.2d at 1425.

In his initial complaint Lamerson alleged that it was "inappropriate" to deny inmates their "rights" under various penal code sections, but he never states what property he was denied and by whom. He alleges that Hoig acted recklessly and caused him to suffer both mentally and physically. However, Lamerson never identifies what particular acts Hoig committed which resulted in deprivation of his constitutional rights.

Lamerson's second pleading is not any more specific than his first and still does not provide any link between Hoig's actions and the claimed deprivation of his rights.

Neither of these pleadings do anything more than recite bare legal conclusions without any supporting facts. Accordingly, neither presents an arguable basis in law or fact and therefore are properly dismissable as frivolous. See Hernandez, Id.; Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaints stating vague and conclusory allegations of official participation in civil rights violations are subject to dismissal).

As the district court gave Lamerson an opportunity to amend his complaint, with instructions on how to cure the deficiencies, the district court properly dismissed the amended complaint as frivolous. See Hernandez, 861 F.2d at 1423-25.

The judgment is AFFIRMED.