Unpublished Disposition, 878 F.2d 386 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 386 (9th Cir. 1987)

Lacey Mark SIVAK, Plaintiff-Appellant,v.Eugene R. GILMORE; James J. Rentie; Al Murphy; RalphPierce, Defendants-Appellees.

No. 87-4426.

United States Court of Appeals, Ninth Circuit.

Submitted*  April 21, 1989.Decided June 22, 1989.

Before CHOY, ALARCON and CANBY, Circuit Judges.


Lacey Mark Sivak, an Idaho state prisoner, pro se and in forma pauperis appeals the district court's order dismissing his 42 U.S.C. § 1983 action as frivolous, pursuant to 42 U.S.C. § 1915(d). We reverse and remand.

Prior to this case, Sivak filed a petition for habeas corpus in Idaho state court seeking the return of medications seized from him by the Idaho State Correctional Institution ("ISCI"). Sivak prevailed and on November 16, 1984, the District Court for the Fourth Judicial District of Idaho issued an order directing the ISCI to present any future seizures of medications to the ISCI medical staff for identification or to ascertain whether Sivak was authorized to possess those medications.

On September 3, 1987 Sivak pro se filed a 42 U.S.C. § 1983 civil rights complaint in federal district court. He alleged that on August 24, 1987, Eugene Gilmore, a prison guard, seized "legal, personal and medically authorized items" from Sivak's cell; that Sivak initiated a grievance with prison officials because of this seizure; that acting warden, defendant Ralph Pierce and the Director of Corrections, defendant Al Murphy, reacted to this grievance by warning the ISCI staff to refrain from assisting Sivak or be terminated; that Murphy said he wanted Sivak to suffer; and that defendant James J. Rentig, a unit supervisor at ISCI, refused to return and did not provide a receipt for the seized property.

Sivak sought, inter alia, to have the defendants' employment terminated and to recover $25,000 per day as compensation for the pain and suffering he incurred. In addition, Sivak filed an application to proceed in forma pauperis, which was granted.

The district court allowed Sivak's complaint to be filed but, prior to service, dismissed the complaint as frivolous, pursuant to 28 U.S.C. § 1915(d).1  Sivak timely appeals.

This court reviews de novo a district court's dismissal of an in forma pauperis litigant's complaint as frivolous under 28 U.S.C. § 1915(d). Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987). Generally, the district court must afford a pro se plaintiff notice of deficiencies and an opportunity to amend prior to the dismissal of his or her complaint. Id. at 1448. In addition, we liberally construe a pro se litigant's civil rights pleadings to afford the plaintiff the benefit of any doubt when deciding whether a valid cause of action has been stated. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). An action proceeding in forma pauperis is properly dismissed as frivolous only if it is " 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Noll, 809 F.2d at 1448; (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curiam)); see Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984) (dismissal of pro se section 1983 complaint appropriate when complaint fails to state a claim of constitutional dimension, is founded upon wholly fanciful allegations, or contains a complete defense on its face).

Sivak contends that the seizure of his medically authorized property deprived him of his due process rights and constituted deliberate indifference to his serious medical needs causing him to suffer cruel and unusual punishment.

The district court, citing Parratt v. Taylor, 451 U.S. 527 (1981), held that because Sivak could proceed in state court to recover his property, his action could not be maintained in federal court.

To state a valid claim for relief for violation of civil rights under 41 U.S.C. § 1983, a complaint must allege that the defendant acted under color of state law and deprived the plaintiff of rights, privileges or immunities secured by the United States Constitution or laws of the United States. Parratt, 451 U.S. at 535.

Contrary to the district court's ruling, the availability of a post-deprivation state remedy is irrelevant if the property was taken (1) as a result of intentional or deliberate conduct authorized by an established state procedure, Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982), or (2) by state actors operating within a "vacuum of unguided discretion", Wood v. Ostrander, 851 F.2d 1212, 1216 (9th Cir. 1988), or (3) pursuant to an affirmatively enacted or de facto governmental course of conduct, regardless whether such conduct is authorized. Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir. 1985) (en banc).

Here, Sivak's allegations are not frivolous because they form the potential for stating a claim under section 1983. They also are not wholly fanciful and the availability of a state remedy is not a complete defense. See Franklin, 745 F.2d at 1227-28. Sivak has a property interest in his seized personal property. See Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974).2  In addition, construing Sivak's complaint liberally, see Atiyeh, 814 F.2d at 567, it is not "absolutely clear" that an amendment to the complaint could not be made to allege that Gilmore acted pursuant to an authorized and established state procedure to remove personal property from inmates' cells. See Zimmerman Brush, 455 U.S. at 436. Further, Sivak's allegation that defendant Murphy warned the ISCI staff to refrain from assisting Sivak or be terminated, raises the possibility that the seizure occurred as part of a planned course of conduct. See Piatt, 773 F.2d at 1036. Finally, it is not "absolutely clear" that the seizure of Sivak's property and subsequent denial of relief could not provide the basis of a valid section 1983 claim on the ground that the prison officials acted pursuant to an "established [non]procedure" which created an unreasonable risk of harm to his personal property. See Wood, 851 F.2d at 1216.

Therefore, because Sivak might have been able to amend his complaint to state a cognizable section 1983 claim, he should have been given notice of the deficiencies in his complaint and an opportunity to amend. See Noll, 809 F.2d at 1448; see generally, Zimmerman Brush, 455 U.S. at 436; Wood, 851 F.2d at 1216; Piatt, 773 F.2d at 1036.

II. Deliberate Indifference to Serious Medical Needs

Sivak might have been able to amend his complaint to state a cognizable claim for violation of his due process right; he may also be able to amend to state a valid eighth amendment claim.

Deliberate indifference to a prisoner's serious medical needs is sufficient to state a valid cause of action under section 1983 because such indifference constitutes the infliction of pain and suffering proscribed by the eighth amendment to the United States Constitution. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Toussaint v. McCarthy, 801 F.2d 1080, 1113 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987). Prison officials are deliberately indifferent when they "deny, delay or intentionally interfere with medical treatment, or ... by the way in which prison physicians provide medical care." Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).

Here, prison officials allegedly refused to return Sivak's medically authorized property.3  Sivak's complaint could state a valid section 1983 claim if it could be amended to state that (1) the property was medically necessary, (2) the deprivation was intentional, and (3) as a result of this deprivation, he incurred pain and suffering. See Hutchinson, 838 F.2d at 394.

Therefore, because it is not absolutely clear that Sivak could state a valid section 1983 claim, the district court erred by dismissing Sivak's complaint as frivolous without informing him of the deficiencies and allowing him an opportunity to amend. See Noll, 809 F.2d at 1448.



The panel unanimously finds this case suitable for submission without oral argument. Fed. R. App. P. 34(a) and 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


Ordinarily, the dismissal of the complaint is not considered a final order, appealable under 28 U.S.C. § 1291. California v. Harvier, 700 F.2d 1217, 1218 (9th Cir.), cert. denied, 464 U.S. 820 (1983). However, here, the district court's dismissal of Sivak's complaint as frivolous effectively disposed of the entire action, and implied that no amendment could be made to save Sivak's suit. Therefore, we assert jurisdiction. Brower v. Inyo County, 817 F.2d 540, 543 (9th Cir. 1987), (quoting Marshal v. Sawyer, 301 F.2d 639, 643 (9th Cir. 1962)), rev'd on other grounds 109 S. Ct. 1378 (1989)


Although Sivak contends that he was deprived of legal items, he does not state in his complaint, nor in his brief, what type of material this was or that the loss of this material interfered with his ability to prosecute ongoing litigation. Thus, this contention fails to provide even the potential for stating a valid section 1983 claim on the ground he was denied access to the court. Cf. Vigliotto v. Terry, 865 F.2d at 1131, 1133 (9th Cir. 1989)


The appellees argue that the Idaho State Court's order is not applicable because Sivak complains only that he was deprived of medically authorized items, and not medications. This may be a distinction without a difference when evaluating an unsophisticated pro se complaint. See Atiyeh, 814 F.2d at 567. On the other hand, Sivak may have intentionally used this phrase because he was not deprived of his medications. Nevertheless, at a minimum, Sivak should be given notice of this defect and an opportunity to amend this complaint. See Noll, 809 F.2d at 1448