Unpublished Disposition, 879 F.2d 865 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 865 (9th Cir. 1989)

Joseph K. NEMOURS, Plaintiff-Appellant,v.James CARONADO, Defendant-Appellee.

No. 87-4387.

United States Court of Appeals, Ninth Circuit.

Submitted*  June 28, 1989.Decided July 11, 1989.

Before FARRIS, NOONAN and LEAVY, Circuit Judges.


After reviewing the entire record in this action, we affirm the district court's dismissal of Nemours' action for failure to amend his complaint for two reasons. First, as the district court stated, Nemours' original complaint failed to state the grounds on which the court had jurisdiction as Fed. R. Civ. P. 8(a) (1) requires, and failed to give a short and plain statement of the claim showing Nemours was entitled to relief. Fed. R. Civ. P. 8(a) (2).

Second, an in forma pauperis action may be dismissed if it is frivolous. 28 U.S.C. § 1915(d). A complaint is frivolous if it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989), Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Nemours' due process claim is inarguable and his factual allegations are fanciful. See Neitzke, 109 S. Ct. at 1831 ("Sec. 1915(d)'s term 'frivolous,' when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.") (footnote omitted). Further, a patently insubstantial complaint may be dismissed for want of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b) (1). Id. at 1832 n. 6.

Therefore, the district court's decision to dismiss Nemours' action is AFFIRMED.


The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. 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 Ninth Circuit Rule 36-3