Unpublished Disposition, 883 F.2d 1024 (9th Cir. 1989)

No. 88-1844.

United States Court of Appeals, Ninth Circuit.

Before WIGGINS, and KOZINSKI, Circuit Judges, and ALICEMARIE H. STOTLER, District Judge, sitting by designation.

MEMORANDUM^** 

Appellant Simon Hawley appeals the district court's dismissal with prejudice of his pro se civil rights complaint against Lt. R. Daniels, Correctional Officer at Folsom Prison. Because appellant's complaint is void of any legal merit we affirm.

Appellant, a state prisoner, proceeding pro se, filed a in forma pauperis civil rights action pursuant to 42 U.S.C. Section 1983 alleging defendant and others are "committing racial discrimination and prejudice" by forcing American Indian inmates to live with white inmates. Appellant further alleged that this "forced inter-racial housing" violates his "1st, 8th and 14th Amendment rights under the United States, Constitution." The complaint seeks compensatory and punitive damages, along with declaratory and injunctive relief.

Pursuant to 28 U.S.C. Section 1915(d), the magistrate recommended that appellant's entire complaint be dismissed as "frivolous" without service of process. In his report and recommendation, the magistrate briefly addressed appellant's claim and concluded "there is no constitutional right of segregated housing for inmates", and it was impossible to "discern how interracial housing violates [appellant's] constitutional rights." The district court subsequently adopted the magistrate's recommendation and ordered that appellant's complaint be dismissed with prejudice. Appellant filed a timely notice of appeal of the district court's dismissal order.

We begin our discussion of the propriety of the district court's dismissal of appellant's pro se civil rights complaint bearing in mind two separate, yet related, principles. First, we subject to de novo review the district court's determination that appellant's complaint lacked arguable substance in law or fact. Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987); Rizzo v. Dawson, 778 F.2d 527, 529-30 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under the frivolity standard of Section 1915(d), the issue is whether appellant has presented a "factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded." Franklin, 745 F.2d at 1228. If the complaint is frivolous then sua sponte dismissal is justified as in forma pauperis plaintiffs are immune from the economic deterrents to filing frivolous lawsuits, such as assignment of costs of suit and tort liability for abuse of process. Id. at 1226.

Second, as a pro se litigant, appellant's complaint must be interpreted with liberality. Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir. 1988); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 408 (9th Cir. 1985). To this end, appellant's uncontroverted factual allegations must be afforded the presumption of truth, and to the extent his complaint is deficient, he should be given the opportunity to amend his complaint unless it is clear that such amendment would not cure his pleading defects. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988); Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987); Franklin, 745 F.2d at 1228 n. 9 (9th Cir. 1984).

Even assuming that appellant's allegations concerning segregated housing are true, a failure to segregate prison inmates based upon racial criteria provides no basis in law or fact for claims of first, eighth or fourteenth amendment violation. Appellant concedes prison inmates have no right to be racially segregated. See Appellant's Brief, p. 4, 11. 24-27. He charges, however, that the segregation of other inmates based upon race, mandates racial segregation for all inmates, including "Native American prisoners" such as himself. This contention is unsupported by any authority and is wholly frivolous. The only cases, relied upon by appellant, remotely related to the issue of prison segregation are Cruz v. Beto, 405 U.S. 319, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972) and Lee v. Washington, 390 U.S. 333, 19 L. Ed. 2d 1212, 88 S. Ct. 994 (1968).

In Cruz the Court held that restraint of a prisoner's reasonable practice of the Buddhist religion violated the first and fourteenth amendments to the constitution. 405 U.S. at 321-22, 31 L. Ed. 2d at 267-68. The Lee Court upheld an order declaring unconstitutional a statute requiring segregation of individuals in prison, based on race. 390 U.S. at 333, 19 L. Ed. 2d at 1213. Neither Cruz nor Lee establish a right of prison inmates to racial segregation; nor is the Court aware of any case which declares such a right.

The deficiencies of the complaint could not be cured by amendment as the facts alleged do not state a claim upon which any relief can be granted. Furthermore, it appears from the record that appellant cannot allege additional facts to support a claim for the relief sought.

Because appellant's complaint is frivolous and incurable, dismissal pursuant to Section 1915(d) was proper.

The Judgment of the District Court is AFFIRMED.