Unpublished Disposition, 877 F.2d 64 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 877 F.2d 64 (9th Cir. 1989)

Michael MURPHY, Plaintiff-Appellant,v.Don STEPHAN, Defendant-Appellee.

No. 87-4293.

United States Court of Appeals, Ninth Circuit.

Submitted June 6, 1989.Decided June 15, 1989.

Before GOODWIN, Chief Circuit Judge, and WRIGHT and WILLIAM A. NORRIS, Circuit Judges.


MEMORANDUM** 

This is a civil rights action brought by Michael Murphy, an inmate incarcerated in a prison under the jurisdiction of the Missouri Department of Corrections, against Don Stephan, an employee of the Idaho Department of Corrections. We affirm the district court's dismissal of Murphy's complaint.

FACTUAL AND PROCEEDURAL BACKGROUND

In his complaint, Murphy claimed that Stephan, by drafting the Religious Advisory Committee's (RAC's) position paper on the Church of Jesus Christ Christian/Aryan Nations ("Aryan Nations") religion, of which Murphy is a member, interfered with Murphy's exercise of his religion while he was incarcerated in Missouri. Murphy's complaint was filed on a civil rights complaint form under 42 U.S.C. § 1983.1  He invoked the first and fourteenth amendments, requesting the district court to order Stephan to "cease and desist assisting and/or directing the Missouri Department of Corrections in denying [Murphy's] rights to religious freedom and assembly." He also asked for damages resulting from the "confiscation of much of his religious literature" and from his suffering "due to the denial of religious services and funding."

Murphy had previously brought other suits relating to the alleged infringement of his civil rights, and he cited these cases to the district court. Two of these are Murphy v. Missouri Department of Corrections, 769 F.2d 502 (8th Cir. 1985) ("Murphy I") and Murphy v. Missouri Department of Corrections, 814 F.2d 1252 (8th Cir. 1987) ("Murphy II"). The position paper had come to Murphy's attention when it was produced in discovery for Murphy I. The paper, which was directed to the Idaho Department of Corrections, recommended that the Department do "all that is within its legal power to vigorously resist entrance [of the Aryan Nations religion] into Idaho's correctional institutions."

The district court found that, based upon facts as asserted in the complaint, no constitutional wrong had been alleged. It stated correctly the standard to be applied to a pro se plaintiff's complaint: such a plaintiff must be given an opportunity to amend his complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. See Stanger v. Santa Cruz, 653 F.2d 1257, 1257-58 (9th Cir. 1980). The district court concluded that there was no feasible way to amend the complaint, and dismissed the case pursuant to 28 U.S.C. § 1915(d) as a frivolous claim. Stephan had never filed an answer nor entered an appearance.

DISCUSSION

The district court's dismissal of the complaint without requiring an answer pursuant to 28 U.S.C. § 1915(d) is clearly permissible. Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). Such a decision is reviewed for abuse of discretion. Shapley v. Nevada Board of State Prison Comm'rs, 766 F.2d 404, 406 (9th Cir. 1985); see also Murphy I, 769 F.2d at 503.

Two elements are essential to establishing a prima facie section 1983 cause of action: (1) the conduct complained of was committed by a person acting under the color of state law, and (2) the conduct resulted in deprivation of the plaintiff's rights, privileges, or immunities secured by the constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part and on other grounds sub nom Daniels v. Williams, 474 U.S. 327 (1986). We assume for the purpose of discussion that Stephan acted under color of state law.

Murphy alleges only that Stephan drafted the RAC position paper, which Murphy saw as a result of Murphy I discovery. He alleges that Stephan intended the paper to influence the Missouri Department of Corrections' treatment of Murphy, and thus concludes that Murphy's authoring of the paper infringed his first amendment rights. What his allegations fail to assert is any causal link between the position paper and his alleged deprivations. The record shows that even if Murphy were allowed to amend his complaint, he could never show sufficient causation to state a cause of action. Cause in fact is expressly required by the language of section 1983. Rizzo v. Goode, 423 U.S. 362, 370-71 (1975); cf. Monell v. Department of Social Services, 436 U.S. 658, 692 & n. 57 (1978) (no respondeat superior liability under section 1983). It was not alleged either that Stephan was personally involved, or that he set in motion a series of acts to cause the alleged deprivation. There is simply no imaginable causal connection rising to the level required to make out a section 1983 claim between the RAC document--a recommendation written for the Idaho Department of Corrections--and the alleged denial of the Murphy's exercise of his religion in the Missouri Department of Corrections.2 

Murphy offers his conclusion that the position paper authored by Stephan affected the religious access policy of the Missouri Department of Corrections. Even if Murphy could establish a sufficient causal connection between Stephan's authoring of the paper and the actions of the Missouri Department of Corrections, article III imposes additional requirements. A plaintiff must also show a distinct and palpable injury, and a substantial likelihood that the relief requested will redress the injury. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982). It is clear that any injunctive relief granted as to the defendant Stephan would have no effect on decisions made--past or future--by the Missouri Department of Corrections. Indeed, not only is the Department the appropriate defendant, but it is also the actual defendant in cases brought by Murphy in Missouri federal courts based on alleged infringement of his civil rights while incarcerated in Missouri. Therefore, we agree with the district court that Murphy's Missouri federal action, which was then pending, "will fully protect him if his First Amendment rights are being violated."

The district court's dismissal of Murphy's action is AFFIRMED.

 *

The panel unanimously finds this case appropriate for submission without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for pbulication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Although Murphy also typed "Diversity of Citizenship, 28 USCA 1332" on the form, no amendment could cause the complaint to state a cause of action under state law--presumably of tort--for the same reason that it could not be amended to state a section 1983 cause of action; as discussed below, the lack of causation in fact is fatal to both

 2

Indeed, as the Eighth Circuit explained in Murphy II, the nonrecognition of the Aryan Nations was the result of Murphy's own failure to apply for official recognition. 814 F.2d at 1257