Unpublished Disposition, 877 F.2d 64 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 877 F.2d 64 (9th Cir. 1987)

No. 87-2958.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 23, 1989.* Submission vacated March 2, 1989.Resubmitted June 15, 1989.Decided June 15, 1989.

Robert C. Bloomfield, District Judge, Presiding.

Before CHOY, ALARCON, CANBY, Circuit Judges.


MEMORANDUM** 

Otis Rodgers (Rodgers) appeals pro se from the dismissal of his 42 U.S.C. § 1983 complaint. Rodgers alleges that various Arizona State officials maintain an official policy of employing a particular white prostitute in order to entrap black males for enslavement in prison. Rodgers filed his complaint in forma pauperis and the district court dismissed it as frivolous under 28 U.S.C. § 1915(d). We affirm.

* On March 26, 1981, Rodgers was convicted of 12 counts of receiving the earnings of a prostitute and one count of pandering. His conviction was affirmed by the Arizona Court of Appeals. State v. Rodgers, 134 Ariz. 296, 655 P.2d 1348, 1351 (1982) (case remanded for sentencing).

On August 31, 1987, Rodgers filed a section 1983 civil rights action in federal district court. He alleged that Arizona State Attorney General Robert K. Corbin, Assistant Attorney Generals Jessica Gifford and Frank Dawley, Maricopa County Superior Court Judge Edward W. Hughes, and Phoenix Police Detectives Darrell E. Graham and Gerald Cash maintain an official policy of utilizing a white prostitute, Carla Joanne Williams, to entrap black males for enslavement in prison. Rodgers seeks declaratory and injunctive relief aimed at halting this policy. Specifically, Rodgers alleged that "the appellees violated Title 18, Chapter 50(a) (Racial) GENOCIDE (Domestic War Crimes; Neo-Slavery) which arguably violates 42 U.S.C.A. 1983, 1985(2), & 1986; appellant's Fourth, Fifth, Thirteenth, and Fourteenth U.S. Constitutional guarantees; Pendent State Torts; [and] International Laws and Treaties."

On October 19, 1982, the district court sua sponte dismissed the action as "patently frivolous" under 28 U.S.C. § 1915(d) and Franklin v. Murphy, 745 F.2d 1221, 1227 (9th Cir. 1984).

II

Proceedings in forma pauperis are governed by 28 U.S.C. § 1915. Subsection (d) of section 1915 states in pertinent part that a court "may dismiss the case ... if satisfied that the action is frivolous or malicious." In Franklin this court defined frivolous actions as those "lacking arguable basis in law or in fact." 745 F.2d at 1225. Although uncontroverted allegations of an in forma pauperis complainant are to be construed liberally, Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir. 1988), and are entitled to a presumption of truth, a court may dismiss as frivolous, complaints based upon wholly fanciful facts. Franklin, 745 F.2d at 1228; Hernandez, 861 F.2d at 1426.

In Hernandez, we noted that the authority to dismiss frivolous complaints is based upon the concept of judicial notice. "We therefore hold that a court may dismiss an action as frivolous if it is dependent upon allegations which conflict with facts of which a district court may take judicial notice." Hernandez, 861 F.2d at 1426. In Franklin we stated that facts contained in "records and files of the court" constitute appropriate material for judicial notice. Franklin, 745 F.2d at 1228. In the present matter, it is therefore appropriate to take judicial notice of the facts in the opinion of the Arizona Court of Appeals. See In re Kelly, 841 F.2d 908, 911 n. 1 (9th Cir. 1988) (court took judicial notice of Arizona Court of Appeals' memorandum opinion because lower court record did not contain a full exegesis of the factual allegations).

The facts as enunciated by the Arizona Court of Appeals are squarely at odds with the factual allegations upon which Rodgers relies. The Arizona Court of Appeals found that Rodgers came to the attention of authorities after Carla Williams reported that she had been assaulted by Rodgers because her earnings as a prostitute had been decreasing. Rodgers, 635 P.2d at 1351. This finding contradicts Rodgers' allegation that the police approached Mrs. Williams in order to secure her cooperation in an entrapment scheme. The Arizona Court of Appeals also found that Mrs. Williams was not motivated by an offer of immunity or a plea-bargain. Id. at 1352-53. "Rather, Mrs. Williams' admissions against her own interests, that she had engaged in acts of prostitution, lend credibility to her assertions." Id. The court also ruled that testimony concerning whether Mrs. Williams was considered to be a confidential informant of the police department had been properly excluded because Rodgers' inferential entrapment defense "was without foundation, as appellant maintained throughout that he was innocent." Id. at 1355. Rodgers' contention that the state employed Mrs. Williams to entrap black males is also contradicted by the finding of the Arizona Court of Appeals that "there was substantial evidence in the record in this case to support a conclusion that appellant not only encouraged but induced Carla Williams to live a life of prostitution." Id. at 1357. Finally, the Arizona Court of Appeals found no error "in any of the trial court's challenged evidentiary rulings." Id. at 1356.

These factual findings explicitly contradict Rodgers' allegations that he was an innocent victim of a government conspiracy to enslave him in prison. The district court properly dismissed Rodgers' complaint as frivolous under 28 U.S.C. § 1915(d).

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 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