Unpublished Disposition, 874 F.2d 815 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 874 F.2d 815 (9th Cir. 1987)

Theophilus BADFOOT, Plaintiff-Appellant,v.Wayne ESTELLE, et al., Defendants-Appellees.

No. 88-5589.

United States Court of Appeals, Ninth Circuit.

Submitted*  April 27, 1989.Decided May 2, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


Theophilus Badfoot, a California state prisoner, appeals pro se and in forma pauperis the district court's dismissal as frivolous of his 42 U.S.C. § 1983 and 1985(3) action against the warden of the California Mens Colony of San Luis Obispo, "codefendants" and "co-appellees." We affirm.

Badfoot filed a complaint purporting to raise civil rights claims under 42 U.S.C. §§ 1983 and 1985(3). He apparently alleged that Warden Emmett and one "unknown" and "unnamed" California Department of Corrections officer deprived him of his civil rights by conspiring to arbitrarily and capriciously "pass ex post facto racial discrimination laws by forcing two distinct bodies of each identifiable race of people who are to be assigned to the same cell amount approximately 97% of the entire said California State prison population." The complaint sought general damages in the amount of $1,000,000,000 (billion), punitive damages in the amount of $76,000,000 (million), compensatory damages in the amount of $13,000,000 (million) and equity damages in the amount of $89,000,000 from each of the defendants.1 

On November 19, 1987, a magistrate recommended that Badfoot's complaint be dismissed as frivolous because, whether construed as a civil rights action or as a petition for a writ of habeas corpus, the complaint set forth Badfoot's claims in a manner which were wholly conclusory without factual support, and written in such a confusing style as to make it impossible to ascertain any conduct or deprivation of Badfoot's rights. The district court adopted the magistrate's recommendations and dismissed the complaint without giving Badfoot leave to amend. Badfoot timely filed a timely notice of appeal.2 

* Standard of Review

This court reviews de novo a district court's dismissal of an action as frivolous under 28 U.S.C. § 1915(d). Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987). A complaint filed in forma pauperis may be dismissed under section 1915(d) if it lacks arguable substance in law and fact, is founded on wholly fanciful factual allegations, or is subject to a defense which is complete and obvious from the face of the pleadings or the court's own records. 28 U.S.C. § 1915(d); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). A court should liberally construe pro se civil rights pleadings, affording the plaintiff the benefit of any doubt. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). A pro se complaint may be dismissed without leave to amend only if it is absolutely clear that the deficiencies could not be cured by amendment. Noll, 809 F.2d at 1448.



Badfoot contends that the district court erred by dismissing as frivolous his civil rights complaint.3  In his complaint Badfoot alleged that the defendants violated 42 U.S.C. § 1985(3) by conspiring to arbitrarily and capriciously commit the passing of ex post facto racial discrimination laws by requiring two races of people to live together in prison cells. A plaintiff must allege sufficient facts showing that the defendant's conduct was motivated by some invidiously discriminatory class-based animus in order to state a conspiracy claim under 42 U.S.C. § 1985(3). Ashelman v. Pope, 793 F.2d 10-72, 1074 n. 1 (9th Cir. 1986); accord Trerice v. Pedersen, 769 F.2d 1398, 1402 (9th Cir. 1985). Badfoot's complaint fails to allege any such conduct and alleges only that the defendants acted with "implied and inferred prejudice and invidious discrimination on account of race." Badfoot did not allege facts to support the allegation that the defendants conspired together. Nor did Badfoot specifically state which ex post facto laws were allegedly passed by the defendants. Moreover, Badfoot does not state how the integration of prison cells would interfere with his civil rights or result in any discrimination. Therefore, the district court properly determined that the complaint failed to state a cause of action under 42 U.S.C. § 1985(3).

The district court also correctly determined that Badfoot's civil rights claims under 42 U.S.C. § 1983 lacked arguable substance in law and in fact. Section 1983 imposes liability upon any person who, acting under color of state law, deprives another of a federally protected right. 42 U.S.C. § 1983 (1982); Karim-Panahi, 839 F.2d 621, 624 (9th Cir. 1988). Badfoot's complaint, however, is vague and conclusory and lacks arguable substance in law and fact and therefore fails to state a cognizable section 1983 claim against the defendants. See Franklin v. Murphy, 745 F.2d at 1228. See also Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

There is no asserted or apparent connection between the named defendants and the claimed constitutional deprivations. Badfoot's complaint does not set forth any facts which specifically illustrate how his federally protected rights were deprived by the alleged racially integrated jail cell conditions. Moreover, Badfoot's complaint does not set forth any facts tying Warden Emmett or the "unnamed defendants" to the claimed deprivations. There are no allegations that the defendants personally did or failed to do anything that violated Badfoot's rights. Nor are there any allegations that the defendants set in motion acts by others that the defendants knew or should have known would injure Badfoot. Because it appears beyond doubt that Badfoot will not be able to amend his complaint to show that the defendant's conspired to violate his constitutional rights, the district court did not err in dismissing the action as lacking arguable substance in law and fact. See Franklin v. Murphy, 745 F.2d at 1228; Noll v. Carlson, 809 F.2d at 1447. See also Ivey, 673 F.2d at 268.4 



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3


The complaint also sought a temporary restraining order and a preliminary injunction against the state of California and "the federal insurance bonds" of each of the defendants. The reason why Badfoot requested the injunctive relief from the state of California and from the defendants is unclear and incomprehensible. Badfoot also requested that the district court grant a judicial bond gathering a fraction or percentage of personal property from the defendants who "have financial qualifications to surreptitiously and mechanically intercept our jointly-owned communications." Again, Badfoot is unclear and incomprehensible


During the pendency of this appeal, Badfoot filed a variety of motions and documents that were referred to the merits panel. These materials generally appear to concern either prison conditions unrelated to this action or the validity of Badfoot's state conviction, and we accordingly deny all pending motions


The district court construed Badfoot's complaint as a section 1983 action. On appeal, Badfoot claims that his complaint was a habeas corpus petition. The district court, however, properly construed Badfoot's complaint as a Sec. 1983 action because Badfoot did not seek release from custody and the only remedy he sought was monetary compensation. See Padilla v. Ackerman, 460 F.2d 477, 478 (9th Cir. 1972) (suit for declaratory judgment and injunctive relief that did not seek custody, but only challenged some incidents of custody, should have been treated as section 1983 action)


This conclusion is strengthened by an examination of Badfoot's opening brief which appears equally vague and is so incomprehensible that it is difficult to determine whether Badfoot raises the issue pertaining to the integrated jail cells on appeal. See Collins v. City of San Diego, 841 F.2d 337 (9th Cir. 1985) ("claims which are not addressed in the appellant's brief are deemed abandoned"). Moreover, with respect to his opening brief, Badfoot seems wholly concerned with the validity of a 1985 conviction and sentence and appears to attack it on sixth amendment right to counsel, fourth amendment search and seizure and other grounds. Furthermore, Badfoot did not raise the latter constitutional issues with the district court below and may not raise them now. See International Union of Bricklayers, Etc. v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985) (this court will not review an issue not raised below unless necessary to prevent manifest injustice)